FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1998
Commission file number 1-9340
REEBOK INTERNATIONAL LTD.
_________________________________________________________________
(Exact name of registrant as specified in its charter)
Massachusetts 04-2678061
____________________________________ ____________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Technology Center Drive, Stoughton, Massachusetts 02072
_________________________________________________________________
(Address of principal executive offices) (Zip Code)
(781) 401-5000
_________________________________________________________________
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes (X) No ( )
The number of shares outstanding of registrant's common stock,
par value $.01 per share, at May 6, 1998, was 56,335,605 shares.
<PAGE>
REEBOK INTERNATIONAL LTD.
INDEX
PART I. FINANCIAL INFORMATION:
Item 1 Condensed Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets -
March 31, 1998 and 1997, and
December 31, 1997 . . . . . . . . . . . . . . . . 2-3
Condensed Consolidated Statement of Operations -
Three Months ended March 31, 1998 and 1997. . . . 4
Condensed Consolidated Statements of Cash Flows -
Three Months Ended March 31, 1998 and 1997. . . . 5-6
Notes to Condensed Consolidated Financial
Statements . . . . . . . . . . . . . . . . . . . 7-10
Item 2 Management's Discussion and Analysis of Results
Of Operations and Financial Condition . . . . .11-15
Part II. OTHER INFORMATION:
Item 1 Legal Proceedings . . . . . . . . . . . . . . . . 16
Items 2-3 Not Applicable . . . . . . . . . . . . . . . . . 16
Item 4 Submission of Matters to a Vote of Security
Holders . . . . . . . . . . . . . . . . . . . . 16
Item 5 Not Applicable . . . . . . . . . . . . . . . . . 16
Item 6 Exhibits and Reports on Form 8-K . . . . . . . 16-17
<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Amounts in thousands)
<TABLE>
<CAPTION>
March 31, December 31,
1998 1997 1997
__________ __________ ____________
(Unaudited)
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents $ 143,748 $ 174,617 $ 209,766
Accounts receivable, net
of allowance for doubtful
accounts (March 1998,
$45,859; March 1997,
$48,584; December 1997,
$44,003) 690,808 726,639 561,729
Inventory 531,859 518,101 563,735
Deferred income taxes 84,621 67,583 75,186
Prepaid expenses and other
current assets 56,021 34,981 54,404
__________ __________ __________
Total current assets 1,507,057 1,521,921 1,464,820
__________ __________ __________
Property and equipment, net 155,434 181,241 156,959
Non-current assets:
Intangibles, net of
amortization 64,164 66,539 65,784
Deferred income taxes 21,603 9,923 19,371
Other 47,759 56,074 49,163
__________ __________ __________
133,526 132,536 134,318
__________ __________ _________
Total Assets $1,796,017 $1,835,698 $1,756,097
========== ========== ==========
</TABLE>
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<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS (Continued)
(Amounts in thousands)
<TABLE>
<CAPTION>
March 31, December 31,
1998 1997 1997
__________ __________ ___________
(Unaudited)
<S> <C> <C> <C>
Current liabilities:
Notes payable to banks $ 69,888 $ 65,078 $ 40,665
Commercial paper 34,816
Current portion of
long-term debt 117,821 114,101 121,000
Accounts payable 170,129 183,330 192,142
Accrued expenses 233,293 200,541 219,386
Income taxes payable 6,975 81,483 4,260
__________ __________ __________
Total current liabilities 632,922 644,533 577,453
__________ __________ __________
Long-term debt, net of
current portion 629,176 740,808 639,355
Minority interest 32,090 36,347 32,132
Commitments and contingencies
Outstanding redemption value
of equity put options 16,559
Stockholders' equity:
Common stock, par value
$.01; authorized 250,000
shares; issued March 31, 1998,
93,030; issued March 31,
1997, 92,805; issued
December 31, 1997,
93,116 930 928 931
Retained earnings 1,124,457 1,039,342 1,145,271
Less 36,716 shares in
treasury at cost (617,620) (617,620) (617,620)
Unearned compensation (71) (242) (140)
Foreign currency translation
adjustment (22,426) (8,398) (21,285)
__________ __________ __________
485,270 414,010 507,157
__________ __________ __________
Total liabilities and
stockholders' equity $1,796,017 $1,835,698 $1,756,097
========== ========== ==========
</TABLE>
The accompanying notes are an integral part of the condensed
consolidated financial statements.
-3-
<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(Amounts in thousands except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
___________________________
1998 1997
____ ____
<S> <C> <C>
Net sales $ 880,123 $ 930,041
Other income (expense) (196) 1,096
_________ _________
879,927 931,137
Costs and expenses:
Cost of sales 566,072 573,812
Selling, general and
administrative expenses 265,442 271,682
Special charge 35,000
Amortization of intangibles 967 760
Interest expense 17,602 15,913
Interest income (4,842) (1,989)
_________ _________
880,241 860,178
_________ _________
Income (loss) before income taxes and
minority interest (314) 70,959
Income tax expense (benefit) (100) 25,700
_________ _________
Income (loss) before minority interest (214) 45,259
Minority interest 3,144 5,075
_________ _________
Net income (loss) $ (3,358) $ 40,184
========= =========
Basic earnings (loss) per share $ (.06) $ .72
========= =========
Diluted earnings (loss) per share $ (.06) $ .69
========= =========
</TABLE>
The accompanying notes are an integral part of the condensed
consolidated financial statements.
-4-
<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
________________
1998 1997
____ ____
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ (3,358) $ 40,184
Adjustments to reconcile net income (loss)
to net cash provided by (used for)
operating activities:
Depreciation and amortization 11,703 10,762
Minority interest 3,144 5,075
Deferred income taxes (11,667) (234)
Special charge 35,000
Changes in operating assets and
liabilities:
Accounts receivable (130,738) (156,320)
Inventory 29,508 13,263
Prepaid expenses (1,749) (8,991)
Other 6,022 15,069
Accounts payable (22,049) (5,118)
Accrued expenses (21,656) 31,061
Income taxes payable 2,202 16,365
__________ __________
Total adjustments (100,280) (79,068)
__________ __________
Net cash used for operating activities (103,638) (38,884)
__________ __________
Cash flows from investing activity:
Payments to acquire property and
equipment (8,369) (7,869)
__________ __________
Net cash used for investing activity (8,369) (7,869)
__________ __________
</TABLE>
-5-
<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued)
(Amounts in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
___________________
1998 1997
____ ____
<S> <C> <C>
Cash flows from financing activities:
Net borrowings of notes payable to banks 29,978 35,600
Proceeds from issuance of commercial paper 34,816
Repayments of long-term debt (13,658) (50,841)
Proceeds from issuance of common stock to
employees 282 6,612
Proceeds from premium on equity put options 2,002
Dividends to minority stockholders (2,590)
Repurchases of common stock (3,181)
________ ________
Net cash provided by (used for) financing
activities 47,649 (8,629)
________ ________
Effect of exchange rate changes on cash
and cash equivalents (1,660) (2,366)
________ ________
Net decrease in cash and cash equivalents (66,018) (57,748)
________ ________
Cash and cash equivalents at beginning of period 209,766 232,365
________ ________
Cash and cash equivalents at end of period $ 143,748 $ 174,617
======== ========
Supplemental disclosures of cash flow information:
1998 1997
____ ____
Cash paid during the period for:
Interest $ 18,475 $ 17,277
Income taxes 8,852 11,680
</TABLE>
The accompanying notes are an integral part of the condensed
consolidated financial statements.
-6-
<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
___________________________________________________
Basis of Presentation
_____________________
The accompanying unaudited condensed consolidated financial
statements reflect all adjustments (consisting of normal
recurring accruals, as well as special charges) which are, in the
opinion of management, necessary for a fair presentation of the
results of operations for the interim period. The interim
financial information and notes thereto should be read in
conjunction with the Company's latest annual report to
shareholders. The results of operations for the three months
ended March 31, 1998 are not necessarily indicative of results to
be expected for the entire year.
Recently Issued Accounting Standards
_____________________________________________
During 1997, the Financial Accounting Standards Board issued
Statement No. 130, "Reporting Comprehensive Income" ("Statement
130"). The Company will adopt the provisions of Statement 130
for fiscal year end 1998. Comprehensive income is generally
defined as all changes in stockholders' equity exclusive of
transactions with owners such as capital investments and
dividends. Comprehensive income (loss) for the quarters ended
March 31, 1998 and 1997 was ($4.5) million and $26.1 million
respectively.
In June 1997, the Financial Accounting Standards Board
issued Statement No. 131, "Disclosures About Segments of an
Enterprise and Related Information" ("Statement 131"). The
Company will adopt the provisions of Statement 131 for fiscal
year end 1998.
-7-
<PAGE>
NOTE 2 - SPECIAL CHARGE
_______________________
In the first quarter of 1998, the Company recorded a special
charge of $35.0 million, amounting to $23.7 million after taxes,
or $0.42 per share in connection with the Company's ongoing
business re-engineering efforts. The charge was for personnel
related expenses and certain other expenses associated with the
restructuring or adjustment of underperforming marketing
contracts. The business re-engineering, which is expected to
eliminate 485 full-time positions, should enable the Company to
achieve greater operating efficiencies by reducing management
layers, combining business units and centralizing various
business functions. The underperforming marketing contracts are
being terminated or restructured to focus the Company's spending
on those key athletes and teams who are more closely aligned with
its brand positioning. The charge will cover certain one-time
expenses, substantially all of which will affect cash.
The components of the first quarter 1998 charge is presented
below with additional information concerning the activities
affecting the liability for special charges recorded during 1997
and 1998:
<TABLE>
<CAPTION>
Balance Q1 98 Q1 98 Balance
12/31/97 Additions Payments/ 3/31/98
Utilization
________ _________ ___________ _______
<S> <C> <C> <C> <C>
Marketing contracts $ 25.0 M $ 18.5 M $ (5.8) M $ 37.7 M
Fixed asset write-downs 6.9 6.9
Employee severance 8.4 14.8 (1.3) 21.9
Termination of leases 5.8 5.8
Other 1.0 1.7 (1.7) 1.0
________ _________ ___________ _______
$ 47.1 M $ 35.0 M $ (8.8) M $ 73.3 M
======== ========= ========= ========
</TABLE>
-8-
<PAGE>
NOTE 3 - EARNINGS PER SHARE
___________________________
The following table sets forth the computation of basic and
diluted earnings (loss) per share:
<TABLE>
<CAPTION>
Three Months Ended
March 31
___________________
1998 1997
____ ____
(Amounts in thousands, except per share data)
<S> <C> <C>
Numerator:
Net income (loss) $ (3,358) $ 40,184
_______ _______
Denominator for basic earnings
per share:
Weighted average shares 56,344 55,944
Dilutive employee stock
options N/A 2,487
_______ _______
Denominator for diluted
earnings per share:
Weighted average shares and
assumed conversions 56,344 58,431
======== ========
Basic earnings (loss) per share $ (.06) $ .72
Diluted earnings (loss) per
share $ (.06) $ .69
</TABLE>
Common stock equivalents were anti-dilutive and therefore
were not included in the computation of weighted average shares
used in computing diluted loss per share for the three months
ended March 31, 1998.
-9-
<PAGE>
NOTE 4 - CONTINGENCIES
______________________
The Company is involved in various legal proceedings
generally incidental to its business. While it is not feasible
to predict or determine the outcome of these proceedings,
management does not believe that they should result in a
materially adverse effect on the Company's financial position,
results of operations or liquidity. Included in these
proceedings is a lawsuit filed by a former distributor in Brazil
in which the plaintiff has asserted a claim for damages in excess
of $50.0 million. In April 1998, a court of first instance in
Brazil awarded this distributor damages of approximately $15.0
million. The Company is appealing this ruling, which it believes
to be in error. The appeal will be heard on a de novo basis
which means that the appeals court will make its own factual
determinations and not be bound by the lower court's decisions.
The Company believes that no material liability will result from
this matter once it is concluded.
NOTE 5 - EQUITY PUT OPTIONS
___________________________
From time to time the Company issues equity put options as
part of its ongoing share repurchase programs. The redemption
value of the options, which represents the option price times the
number of shares under option, is presented in the accompanying
condensed consolidated balance sheet as "Outstanding redemption
value of equity put options." At March 31, 1998, 625,000 shares
of outstanding common stock are subject to repurchase at prices
ranging from $26.173 to $26.975 under the terms and conditions of
these options. The outstanding options expire in January 1999.
-10-
<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The following discussion contains forward-looking statements
which involve risks and uncertainties. The Company's actual
results may differ materially from those discussed in such
forward-looking statements. Prospective information is based on
management's then current expectations or forecasts. Such
information is subject to the risk that such expectations or
forecasts, or the assumptions underlying such expectations or
forecasts, become inaccurate. Factors that could affect the
Company's actual results and could cause such results to differ
materially from those contained in forward-looking statements
made by or on behalf of the Company include, but are not limited
to, those discussed below and those described in Exhibit 99 -
Issues and Uncertainties filed with this quarterly report on Form
10-Q.
OPERATING RESULTS
_________________
First Quarter 1998 Compared to First Quarter 1997
_________________________________________________
Net sales for the quarter ended March 31, 1998 were $880.1
million, a decrease of 5.4% from 1997's first quarter net sales
of $930.0 million. The Reebok Division's worldwide sales
(which includes sales of the Greg Norman Division) were $750.5
million, a 7.5% decrease from comparable sales of $811.6 million
in the first quarter of 1997. Approximately one-half of the
sales decline of the Reebok Division is due to currency
fluctuations, primarily as a result of the strength of the U.S.
dollar and the devaluation of certain Asian currencies. Reebok
Brand's U.S. footwear sales decreased 12.2% to $293.7 million in
the first quarter of 1998 from $334.6 million in the first
quarter of 1997. This decrease in sales is primarily the result
of increased rates of cancellations and returns and a slowdown in
the timing of many retailers' delivery requirements as compared
to last year's first quarter. Cancellations and returns
increased by approximately $35.0 million over last year's first
quarter level, and the slowdown in the timing of retail
deliveries also impacted comparisons by approximately $35.0
million. The Company expects these negative factors to continue
into at least the second quarter of 1998. In addition, decreases
in the classic and walking categories were only partially offset
by increases in the running and basketball
-11-
<PAGE>
categories. The Reebok Division's U.S. apparel sales
decreased by 1.1% to $96.8 million from $97.9 million in 1997.
Decreased sales of Reebok branded and licensed apparel were
partially offset by increased sales of apparel in Company-owned
retail outlet stores and the Greg Norman Division. The Reebok
Division's International sales (including footwear and apparel)
were $360.0 million in the first quarter of 1998, a decrease of
5.0% from $379.1 million in the first quarter of 1997. The sales
decline was partially attributed to foreign currency exchange
rates and partially due to the deterioration of economic
conditions in Japan, Korea, Brazil and Argentina. Sales during
the first quarter of 1998 were down by 26% in Asia Pacific and by
25% in Latin America when compared to the first quarter of 1997.
On a constant dollar basis for the quarter, the Reebok Division's
International sales increased 2.0%. In constant dollars, sales
of the Reebok Division's International footwear declined 3.0%,
whereas the Reebok Division's International apparel sales
increased 9.0%. For International sales, a significant decrease
in the basketball category was partially offset by increases in
the classic and children's categories. During the first quarter
of 1998, apparel sales accounted for approximately 40.0% of
Reebok's International Division's sales. On a local currency
basis, the United Kingdom and Europe had increases in sales
whereas Asia Pacific and Latin America reported a decline in
sales.
Rockport's first quarter sales increased by 9.5% to $129.6
million from $118.4 million in the first quarter of 1997.
Domestic sales of this Division increased by 5.0% and
International sales increased by 14.0%. Rockport's International
sales were also negatively impacted by the economic conditions in
Asia Pacific, where sales declined by 17.0% from the first
quarter of 1997. Increased sales in Rockport's walking and
outdoor categories were partially offset by decreased sales in
the women's lifestyle category. The Ralph Lauren Footwear
Division, which is included in Rockport's reported sales, had a
sales increase of 23.0% in the first quarter of 1998, with all of
the increase coming from active and rugged outdoor categories of
Polo Sport.
The gross margin of the Company declined to 35.7% during the
first quarter of 1998 compared to 38.3% in 1997's first
quarter. The decline reflects lower pricing margins on
technology products, increased markdowns required to sell out-of-
season or slow moving inventory of Reebok Brand footwear and a
greater percentage of the Reebok footwear business being off-
price due to the promotional
-12-
<PAGE>
retail environment during the first quarter of 1998. However, as
compared to the fourth quarter of 1997, overall pricing margins
improved slightly. Looking forward, the Company expects that its
pricing margins will improve from the 1998 first quarter but that
this improvement will be offset somewhat by higher markdown
percentages on distressed inventory and a continued decline in
full-price fill-in business due to the promotional activity at
retail.
Selling, general and administrative expenses for the first
quarter of 1998 were $265.4 million, or 30.2% of sales, as
compared to $271.7 million, or 29.2% of sales in 1997's first
quarter. The impact of the cost reduction programs initiated in
1997 and continuing throughout 1998 did not have a significant
impact on the first quarter 1998 spending. The Company expects
to begin to realize some saving from these programs throughout
the remainder of 1998. However, these cost reductions will be
offset by increased expenditures in brand-building activities
such as advertising and product development, as well as increased
investments in several of the Company's growth businesses
including the Rockport, Ralph Lauren Footwear, Greg Norman and
retail outlet Divisions. In addition, during 1998 the Company
expects to continue to incur ongoing start-up expenses for its
European logistics operation and shared service company as well
as the implementation of its global information system. These
start-up expenses amounted to approximately $5.0 million in the
first quarter of 1998 and are expected to aggregate to
approximately $25 million for the full year. For the first
quarter of 1998, exclusive of these start-up expenses, general
and administrative type expenses declined 9.0% whereas product
development expenses increased 11.0%. Advertising and marketing
expenses in the first quarter of 1998 were approximately the same
as in the first quarter of 1997.
As described in Note 2, the Company recorded a special
charge of $35.0 million in the first quarter of 1998 in
connection with the Company's ongoing business re-engineering
efforts for personnel related expenses and certain other expenses
associated with the restructuring of underperforming marketing
contracts. The business re-engineering, which is expected to
eliminate 485 full-time positions, should enable the Company to
achieve greater operating efficiencies by reducing management
layers, combining business units and centralizing various
business functions. The underperforming marketing contracts are
being terminated or restructured to focus the Company's spending
on those key athletes and teams who are more closely aligned with
its brand positioning.
-13-
<PAGE>
Net interest expense decreased for the first quarter of 1998
as compared to the first quarter of 1997 as a result of debt
repayments made during 1997.
The effective income tax rate was approximately 32% in the
first quarter of 1998 as compared to 36% in the first quarter of
1997. Looking forward, dependent on the geographic mix of
earnings in 1998, the Company expects the first quarter 1998 rate
to be indicative of the full year rate.
Reebok Brand Backlog
____________________
The Reebok Brand backlog (including Greg Norman apparel) of
open customer orders for the period April 1, 1998 through
September 30, 1998 decreased 3.8% as compared to the same period
last year. On a constant dollar basis, the Reebok Brand backlog
decreased 2.6%. North American backlog for the Reebok Brand,
which includes the U.S. and Canada, decreased 9.0% and the
International backlog increased 5.7%. On a constant dollar
basis, the International backlog increased 9.5%. Reebok U.S.
footwear backlog decreased 6.0% and Reebok U.S. apparel backlog
decreased 19% from the same period last year. These percentage
increases are not necessarily indicative of future sales trends.
The reasons for this are that many orders are cancelable, sales
by company-owned retail stores can vary from year to year, many
markets in South America and Asia Pacific are not included in the
open orders since sales are made by independent distributors, and
the ratio of orders booked early to at-once shipments can vary
from period to period.
Liquidity and Sources of Capital
________________________________
The Company's financial position remains strong. Working
capital was $874.1 million at March 31, 1998 and $877.4 million
at March 31, 1997. The current ratio at March 31, 1998, was 2.4
to 1, as compared to 2.5 to 1 at December 31, 1997 and 2.4 to 1
at March 31, 1997.
-14-
<PAGE>
Accounts receivable decreased from March 31, 1997 by $35.8
million, a decrease of 4.9%, which is consistent with the
Company's sales decrease. Inventory increased by $13.8 million,
or 2.7%, from March 31, 1997. Reebok Brand U.S. inventories
increased by 1.9%, or $3.6 million from March 31, 1997. Due
to cancellations and returns, the overall condition of the Reebok
Brand U.S. footwear inventory has deteriorated somewhat from year
end. The Company expects that it will be able to dispose of any
excess inventory during the year but at increased discounts due
to the promotional nature of the market. Inventories of Reebok
Brand U.S. apparel declined 14.0% from last year's first quarter
and Rockport's U.S. inventories declined 5.1%. Internationally,
total inventories increased 5.0% which is in line with the
backlog increase.
During the twelve months ended March 31, 1998, cash and cash
equivalents decreased by $30.9 million, and outstanding
borrowings decreased by $68.2 million. Cash used for operations
during the first quarter of 1998 was $103.6 million, an increase
of $64.8 million as compared with the first quarter of 1997.
Cash generated from operations, together with the Company's
existing credit lines and other financial resources, is expected
to adequately finance the Company's current and planned 1998 cash
requirements. However, the Company's actual experience may
differ from the expectations set forth in the proceeding
sentence. Factors that might lead to a difference include, but
are not limited to, the matters discussed in Exhibit 99 - Issues
and Uncertainties filed herewith, as well as future events that
might have the effect of reducing the Company's available cash
balances (such as unexpected operating losses or increased
capital or other expenditures, as well as increases in the
Company's inventory or accounts receivable) or future events that
might reduce or eliminate the availability of external financial
resources.
-15-
<PAGE>
PART II - OTHER INFORMATION
Item 1 - Legal Proceedings
Not applicable
Items 2 - 3
Not applicable
Item 4 - Submission of Matters to a Vote of Security Holders
The Company held its Annual Meeting of Shareholders on May 5,
1998. At the Annual Meeting, the following proposal was
approved:
Four Class II members of the Board of Directors were elected
by shareholders as follows (there were no abstentions or broker
non-votes):
Number of Votes Number of Votes
Name of Director Cast For Withheld
________________ _______________ _______________
Paul R. Duncan 51,803,395 462,901
M. Katherine Dwyer 51,488,905 777,391
William F. Glavin 51,798,988 467,308
Richard G. Lesser 51,801,079 465,217
Item 5
Not applicable
Item 6
(a) Exhibits:
10.1 Participation Agreement dated as of March 27, 1998
among Reebok International Ltd., as Lessee and as
Guarantor, Credit Suisse Leasing 92A, L.P., as Lessor,
the Lenders named therein, Credit Suisse First Boston,
as Administrative Agent, Fleet National Bank, as
Documentation Agent and Wachovia Bank, N.A. as
Syndication Agent
-16-
<PAGE>
10.2 Lease dated as of March 27, 1998 between Credit Suisse
Leasing 92A, L.P., as Lessor, and Reebok International
Ltd., as Lessee
10.3 Guaranty from Reebok International Ltd. dated as of
March 27, 1998
27. Financial Data Schedule
99. Issues and Uncertainties
(b) Reports on Form 8-K: There were no reports on Form 8-K
filed during the quarter ended March 31, 1998.
-17-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Dated: May 14, 1998
REEBOK INTERNATIONAL LTD.
BY: /s/ KENNETH WATCHMAKER
_________________________
Kenneth Watchmaker
Executive Vice President and
Chief Financial Officer
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<PAGE>
EXHIBIT 10.1
PARTICIPATION AGREEMENT
Dated as of March 27, 1998
Among
REEBOK INTERNATIONAL LTD.,
as Lessee and as Guarantor,
CREDIT SUISSE LEASING 92A, L.P.,
as Lessor,
THE PERSONS NAMED ON SCHEDULE I,
as Lenders
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
FLEET NATIONAL BANK
as Documentation Agent,
and
WACHOVIA BANK, N.A.
as Syndication Agent
CREDIT SUISSE FIRST BOSTON,
as Arranger
TABLE OF CONTENTS
(Participation Agreement)
Page
ARTICLE I
DEFINITIONS
ARTICLE II
EFFECTIVENESS; ACQUISITION AND LEASE; GENERAL PROVISIONS
SECTION 2.1. Effectiveness of Agreement. . . . . . . . . . . 3
SECTION 2.2. Agreement to Acquire and Lease and Make
Advances. . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3. Participation by Lenders and Lessor . . . . . . 4
SECTION 2.4. Advance Dates.. . . . . . . . . . . . . . . . . 4
SECTION 2.5. Commitment Fee. . . . . . . . . . . . . . . . . 8
SECTION 2.6. Payments to Participants. . . . . . . . . . . . 9
SECTION 2.7. Computations. . . . . . . . . . . . . . . . . . 9
SECTION 2.8. Renewal Term. . . . . . . . . . . . . . . . . . 10
SECTION 2.9. Highest Lawful Rate . . . . . . . . . . . . . . 11
SECTION 2.10. Conversion Options. . . . . . . . . . . . . . . 11
SECTION 2.11. Replacement of Lenders. . . . . . . . . . . . . 11
ARTICLE III
CONDITIONS TO ADVANCES AND COMPLETION
SECTION 3.1. Conditions to All Advances. . . . . . . . . . . 12
SECTION 3.2. Conditions to Acquisition of the Land . . . . . 13
SECTION 3.3. Conditions Precedent to Advances for
Construction Costs (other than Soft Costs). . . 18
SECTION 3.4. Conditions to Completion. . . . . . . . . . . . 20
SECTION 3.5. Final Advances. . . . . . . . . . . . . . . . . 22
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of Lessee. . . . 23
SECTION 4.2. Representations and Warranties of Each
Participant . . . . . . . . . . . . . . . . . . 32
ARTICLE V
COVENANTS OF LESSEE
SECTION 5.1. Further Assurances. . . . . . . . . . . . . . . 34
SECTION 5.2. Limitation on Fundamental Changes . . . . . . . 35
SECTION 5.3. Construction Matters; Changes.. . . . . . . . . 35
SECTION 5.5. Liens.. . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.6. Limitation on Sale of Assets. . . . . . . . . . 35
SECTION 5.7. Change of Name or Address . . . . . . . . . . . 36
SECTION 5.8. Environmental Matters . . . . . . . . . . . . . 36
SECTION 5.9. Investigation by Authorities. . . . . . . . . . 36
SECTION 5.10. Financial Statements; Certificates; Other
Information . . . . . . . . . . . . . . . . . . 36
SECTION 5.11. Securities. . . . . . . . . . . . . . . . . . . 38
SECTION 5.12. Interest Rates. . . . . . . . . . . . . . . . . 38
SECTION 5.13. Payment of Obligations. . . . . . . . . . . . . 38
SECTION 5.14. Conduct of Business and Maintenance of
Existence . . . . . . . . . . . . . . . . . . . 39
SECTION 5.15. Maintenance of Land; Insurance. . . . . . . . . 39
SECTION 5.16. Inspection of Land; Books and Records;
Discussions . . . . . . . . . . . . . . . . . . 40
SECTION 5.17. Notices . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.18. Financial Condition Covenants . . . . . . . . . 41
SECTION 5.19. Limitation on Transactions with Affiliates. . . 42
ARTICLE VI
OTHER COVENANTS AND AGREEMENTS
SECTION 6.1. Cooperation with Lessee . . . . . . . . . . . . 42
SECTION 6.2. Covenants of Lessor . . . . . . . . . . . . . . 43
SECTION 6.3. Restrictions on and Effect of Transfer. . . . . 45
SECTION 6.4. Covenants and Agreements of Lenders . . . . . . 46
SECTION 6.5. Future Lenders. . . . . . . . . . . . . . . . . 48
SECTION 6.6. Administrative Agent under Participation
Agreement and Mortgage. . . . . . . . . . . . . 48
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. General Indemnification . . . . . . . . . . . . 48
SECTION 7.2. General Tax Indemnity . . . . . . . . . . . . . 50
SECTION 7.3. Withholding Tax Exemption . . . . . . . . . . . 53
SECTION 7.4. Excessive Use Indemnity . . . . . . . . . . . . 54
SECTION 7.5. Gross Up. . . . . . . . . . . . . . . . . . . . 54
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Survival of Agreements. . . . . . . . . . . . . 55
SECTION 8.2. No Broker, etc. . . . . . . . . . . . . . . . . 55
SECTION 8.3. Notices . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.4. Counterparts. . . . . . . . . . . . . . . . . . 56
SECTION 8.5. Amendments. . . . . . . . . . . . . . . . . . . 56
SECTION 8.6. Headings, etc.. . . . . . . . . . . . . . . . . 57
SECTION 8.7. Parties in Interest . . . . . . . . . . . . . . 57
SECTION 8.8. GOVERNING LAW . . . . . . . . . . . . . . . . . 57
SECTION 8.9. Payment of Transaction Costs and Other Costs. . 57
SECTION 8.10. Severability. . . . . . . . . . . . . . . . . . 58
SECTION 8.11. Limited Liability of Lessor . . . . . . . . . . 58
SECTION 8.12. Liabilities of the Participants . . . . . . . . 59
SECTION 8.13. Liabilities of Administrative Agent . . . . . . 59
SECTION 8.14. Reproduction of Documents . . . . . . . . . . . 59
SECTION 8.15. Estoppel Certificates . . . . . . . . . . . . . 60
SECTION 8.16. Notices to Lessor under Loan Agreement. . . . . 60
SECTION 8.17. Confidentiality . . . . . . . . . . . . . . . . 60
SECTION 8.18. SUBMISSION TO JURISDICTION; WAIVERS . . . . . . 61
SECTION 8.19. Final Agreement . . . . . . . . . . . . . . . . 62
APPENDIX 1 Definitions
APPENDIX 2 Conditions to Documentation Date
APPENDIX 3 Commitment Fee Rate
SCHEDULE I Lessor Commitment
SCHEDULE II Lenders Commitments
SCHEDULE III Addresses For Notice; Wire Instructions
SCHEDULE 4.1A Filings and Recordings
SCHEDULE 4.1B Domestic Subsidiaries
SCHEDULE 4.1C Foreign Subsidiaries
EXHIBIT A Form of Lease
EXHIBIT B Form of Advance Request
EXHIBIT C Form of Loan Agreement
Exhibit A - Form of Note
EXHIBIT D [RESERVED]
EXHIBIT E Form of Mortgage
EXHIBIT F Form of Environmental Certificate
EXHIBIT G - 1 Form of Opinion of Ropes & Gray
EXHIBIT G - 2 Form of Opinion of Barry Nagler, General Counsel
of Lessee
EXHIBIT G - 3 Form of Opinion of Richards, Layton & Finger
EXHIBIT H Form of Officer's Certificate
EXHIBIT I Form of Investor's Letter
EXHIBIT J Form of Assignment of Lease
EXHIBIT K Form of Architect's Certificate
EXHIBIT L Form of Guaranty
EXHIBIT M Form of Secretary's Certificate
EXHIBIT N Plan showing Exchange Parcel
EXHIBIT O Plan showing Additional Parcel
THIS PARTICIPATION AGREEMENT, dated as of March 27, 1998
(this "Agreement"), is among REEBOK INTERNATIONAL LTD., a
Massachusetts corporation (the "Lessee" or the "Company") as
Lessee and as Guarantor; CREDIT SUISSE LEASING 92A, L.P. (the
"Lessor"), as Lessor; the Persons named on Schedule II hereto
(together with their respective permitted successors, assigns and
transferees) (the "Lenders"), as Lenders; CREDIT SUISSE FIRST
BOSTON (the "Administrative Agent"), as Administrative Agent;
FLEET NATIONAL BANK (the "Documentation Agent"), as Documentation
Agent; WACHOVIA BANK, N.A. (the "Syndication Agent"), as
Syndication Agent; and CREDIT SUISSE FIRST BOSTON, as Arranger
(the "Arranger").
W I T N E S S E T H:
WHEREAS, Lessee has previously entered into that certain
Purchase and Sale Agreement dated as of August 20, 1996 (the
"Purchase Agreement"), by and between Lessee, as purchaser, and
Instron Realty Trust, as Seller (the "Seller"), wherein Seller
agreed to sell Lessee, and Lessee agreed to purchase from Seller,
that certain unimproved land located in Canton, Massachusetts,
more particularly described in Exhibit A attached to the
Agreement to Lease (the "Land"), upon the terms and conditions
set forth in the Purchase Agreement;
WHEREAS, Lessor and Lessee have previously entered into an
Agreement to Lease, dated as of August 20, 1997 ("Agreement To
Lease") wherein Lessor agreed to advance to Lessee up to
$1,500,000 in one or more separate fundings, the proceeds of
which were used to pay Soft Costs incurred with respect to the
Land;
WHEREAS, pursuant to the Agreement to Lease, Lessor advanced
to Lessee $1,435,477.84 (the "Preacquisition Amount") for Soft
Costs;
WHEREAS, Lessee desires to enter into the Overall
Transaction for the purpose of financing the acquisition of the
Land and construction of a facility thereon;
WHEREAS, subject to the terms and conditions hereof, on the
Documentation Date Lessor proposes to (a) engage the Construction
Agent to design, engineer, procure, upgrade, transport, install
and construct on the Land buildings, structures and other
improvements now or in the future located or to be constructed on
the Land (the buildings, structures and improvements excluding
the Land, the "Facility") and (b) lease the Land, and upon
completion of construction of the Facility, to lease the Facility
to the Lessee under the Lease;
WHEREAS, Lessor has invested as equity a certain percentage
of the cost of the Land and certain costs relating to the
acquisition of, due diligence and feasibility investigations
relating to, and preparation for development of, the Land;
WHEREAS, Lessor wishes to obtain, and the Lenders are
willing to provide, financing (the "Financing") for a portion of
the costs of acquisition of the Land to be acquired by Lessor and
the construction of the Facility thereon;
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Lessee will execute and deliver a guaranty
(the "Guaranty) in the form of Exhibit L for the benefit of
Lessor, Administrative Agent and Lenders; and
WHEREAS, to secure the Financing, Lessor will provide the
Mortgage on the Property, an Assignment of Lease Agreement, and
an Assignment of Construction Agreement (the "Collateral") to the
Lenders.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Unless the context shall otherwise require, capitalized
terms used and not defined herein shall have the meanings
assigned thereto in Appendix 1 hereto for all purposes hereof.
ARTICLE II
EFFECTIVENESS; ACQUISITION AND LEASE; GENERAL PROVISIONS
SECTION 2.1. Effectiveness of Agreement. This Agreement
shall become effective on the date (on or before March 31, 1998)
on which all the conditions precedent thereto set forth in
Appendix 2 hereto shall have been satisfied or waived by the
applicable parties as set forth therein (the "Documentation
Date").
SECTION 2.2. Agreement to Acquire and Lease and Make
Advances. On the Documentation Date, Lessor and Lessee shall
enter into, among other Operative Documents, (i) the Lease
pursuant to which Lessor shall agree to lease the Land to Lessee
and (ii) the Construction Agency Agreement pursuant to which
Lessor shall appoint the Lessee as construction agent (the
"Construction Agent") to construct the Facility on the Land on
the terms and conditions herein and therein set forth. On each
Advance Date, on the terms and conditions herein set forth,
Lessor shall make Advances for the purposes of (x) funding or
reimbursing Construction Agent for Soft Costs, and (y) funding
Transaction Costs and/or (z) funding all other Construction Costs
contemplated by the Construction Agency Agreement.
SECTION 2.3. Participation by Lenders and Lessor. (a)
Subject to the terms and conditions of this Agreement and in
reliance on the representations and warranties of each of the
parties hereto contained herein or made pursuant hereto, on each
Advance Date until the Lenders have advanced $47,849,261.33
hereunder, each Lender shall finance each Advance by Lessor by
making a Loan to Lessor on such Advance Date in an amount equal
to such Lender's Adjusted Commitment Percentage of such Advance
and thereafter, each Lender shall finance, in part, each Advance
by Lessor (or portion thereof) by making a Loan to Lessor on such
Advance Date in an amount equal to such Lender's Commitment
Percentage of such Advance (or portion thereof), in each case in
the aggregate not more than its Commitment as set forth on
Schedule II hereto. Each Loan shall be evidenced by a Note
issued to a Lender under and repayable in accordance with the
terms of the Loan Agreement (which shall be substantially in the
form of Exhibit A thereto). All Loans made by each Lender in
accordance with this Section 2.3(a) shall be made to Lessor in
accordance with Lessor's payment instructions set forth in
Schedule III in immediately available funds no later than 12:00
(noon), New York City time, on the requested Advance Date.
(b) Subject to the terms and conditions of this
Agreement and in reliance on the representations and warranties
of each of the parties hereto contained herein or made pursuant
hereto, on any Advance Date after the Lenders have advanced
$47,849,261.33 hereunder, Lessor shall fund the Invested Amount.
Lessor shall be entitled to receive Yield on its aggregate
Invested Amount payable as Basic Rent on each Payment Date.
SECTION 2.4. Advance Dates.
(a) Notices and Closing. If any part of such Advance
is to be funded with Eurodollar Loans, not later than 12:00
(noon), New York City time, three (3) Business Days prior to such
Advance Date, or, in the case of ABR Loans not later than 11:00
a.m., New York City time, one (1) Business Day prior to such
Advance Date, the Construction Agent shall deliver to
Administrative Agent an irrevocable written notice substantially
in the form of Exhibit B (an "Advance Request"), setting forth:
(i) the proposed Advance Date;
(ii) in the case of an Advance to fund the acquisition
cost for the Land, the amount thereof, the scheduled
Acquisition Date, a copy of the draft of the title insurance
and such other information as Lessor may reasonably request;
(iii) in the case of an Advance to fund, or reimburse
the Construction Agent for, Construction Costs, including
Soft Costs a description of the work so funded or in good
faith estimated by the Construction Agent to be funded in
the 30-day period immediately following such Advance Date,
separately identifying Soft Costs and all other Construction
Costs, the identity of the provider thereof and copies, if
then available, of the related invoices or bills of sale;
(iv) in the case of an Advance to fund any Transaction
Costs, a description of such Transaction Costs;
(v) in the case of any Advance to fund Capitalized
Interest, Capitalized Yield or the Commitment Fee, the
amount thereof;
(vi) in the case of an advance for purposes other than
those set forth in clauses (iii) and (v) above, wire
transfer instructions for the disbursement of funds; and
(vii) if the Loans comprising such Advance are to be
entirely or partly Eurodollar Loans, the length of the
Interest Period for such Eurodollar Loans.
Any Advance may be used for more than one of the costs
described in clauses (ii), (iii) and (iv) above.
Except for any Advance to fund Capitalized Interest,
Capitalized Yield or the Commitment Fee, any Advance of
Eurodollar Loans shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, (i) the
aggregate principal amount of all Eurodollar Loans having
the same Interest Period shall not be less than $5,000,000 or a
whole multiple of $1,000,000 in excess thereof and (ii) no more
than 6 Interest Periods shall be in effect at any one time.
All documents and instruments required to be delivered on
the Documentation Date pursuant to this Agreement shall be
delivered at the offices of Mayer, Brown & Platt, 1675 Broadway,
New York, New York 10019-5820. All documents and instruments
required to be delivered on any other Advance Date pursuant to
this Agreement shall be delivered at the offices of the
Administrative Agent at 11 Madison Avenue, 20th Floor, New York,
New York 10010, or as otherwise instructed. On the scheduled
Advance Date, and subject to the terms and conditions of this
Agreement, and upon receipt of funds by Lessor from the
Lenders sufficient therefor, Lessor shall make the requested
Advance.
(b) Commitment Limits. The sum of the aggregate
amount disbursed by the Lessor and the Lenders hereunder shall
not exceed the aggregate Commitments.
(c) Number and Amount of Advances. No Advance Date
shall occur within the 30-day period immediately following the
prior Advance Date, and each Advance shall be in a minimum amount
of $5,000,000 or if the remaining amounts of the Commitments are
less than $5,000,000, such lesser amount.
(d) Obligations Several. The obligations of the
parties hereto or elsewhere in the Operative Documents shall be
several and not joint; and no Participant shall be liable or
responsible for the acts or defaults of any other Participant
hereunder or under any other Operative Document; provided
that the foregoing shall not limit or otherwise restrict any
liability of the general partner of the Lessor for any obligation
hereunder of the Lessor.
(e) Termination of Commitment. Notwithstanding
anything in this Agreement to the contrary, no party hereto shall
be obligated to make any fundings pursuant to this Agreement
after 2:00 P.M., New York time, on the last day of the Commitment
Period, and no Advance Date may occur following such date.
(f) Accounts, Notes and Certificates; Notations. The
Administrative Agent shall maintain at its address referred to in
Section 8.3 a copy of each Investor's Letter delivered to it, a
register for the recordation of the names and addresses of the
Participants and the Commitment of each Participant from time to
time, and a subaccount therein for each Participant in which
shall be recorded the information described in the last
sentence of this Section 2.4(f). Upon the consummation of each
Advance, the Administrative Agent shall make a notation in its
subaccount indicating the amount advanced by each Participant.
The Administrative Agent is hereby authorized to record the date
and amount of each Advance made by each Participant, each
continuation thereof, the date and amount of each payment or
repayment of principal and the length of each Interest Period
with respect thereto in the Administrative Agent's subaccount,
and any such recordation shall constitute prima facie evidence of
the accuracy of the information so recorded, provided, that the
failure to make any such recordation or any error in such
recordation shall not affect the obligation of Lessor under such
instrument or the corresponding obligation of Lessee to pay Rent.
(g) Construction Cost Advances. Lessor shall
establish and maintain with Administrative Agent a segregated
deposit account (the "Escrow Account") in the sole dominion and
control of the Administrative Agent into which any Advances made
in order to fund any Construction Costs shall be directly paid.
Lessor hereby grants to Administrative Agent for the benefit of
itself and the other Lenders a security interest in the Escrow
Account and any proceeds therefrom. The amount of such Advance
so funded into the Escrow Account shall be deemed advanced by the
Participants hereunder and under the other Operative Documents,
and the Lease Balance shall be increased by such amount on the
date so funded into the Escrow Account by the Participants. So
long as no Event of Default or Construction Agency Event of
Default exists, Lessor shall grant Construction Agent a special,
limited power of attorney to withdraw funds from such account for
the performance of its agency duties under the Construction
Agency Agreement. Construction Agent will provide the
Administrative Agent with a detailed accounting, reasonably
satisfactory to Administrative Agent, with respect to requested
disbursements from the Escrow Account, together with copies of
bills of sale, invoices and other similar items reasonably
requested by the Administrative Agent. Amounts in the
Escrow Account may, at the direction of the Construction Agent,
be invested in Permitted Investments. Any income or gain
realized as a result of such investment shall be held by the
Administrative Agent as part of the Escrow Account and reinvested
or disbursed as provided herein. Neither the Administrative
Agent nor any Participant shall have any liability for any loss
resulting from any such investment.
(h) Transaction Costs Advances and Capitalized Yield,
Capitalized Interest and Commitment Fee Advances. Advances for
Transaction Costs shall be disbursed directly by the
Administrative Agent in the amounts and to the Persons described
in the Advance Request.
During the Construction Period the Construction Agent shall
be treated as having timely delivered an Advance Request for the
payment when due of Capitalized Interest, Capitalized Yield and
the Commitment Fee owing to the Lenders and the Lessor,
respectively, whether or not such Advance Request was actually
delivered with respect to such amounts. Company agrees that the
Lenders and Lessor may fund and pay when due any Capitalized
Interest, Capitalized Yield and the Commitment Fee, that such
amounts shall be deemed advanced by the Participants hereunder
and under the other Operative Documents and that the Lease
Balance shall be increased on such date by such amounts.
(i) Additional Commitments to Fund Cost Overruns. If
at any time and from time to time during the Construction Period
Commitments have been fully funded and additional funds are
required in connection with the completion of construction of the
Facility Construction Agent may, at Construction Agent's expense
and by written request to the Lessor and the Administrative
Agent, arrange or request Administrative Agent to solicit
Participants to increase their Commitments pro rata to their
Commitment Percentages in an amount that would permit funding of
the costs requested therefor; if a Participant does not increase
its Commitment, then the Participants that increased their
Commitment pursuant to this Section 2.4(i) may further increase
their Commitments in such remaining amount that would permit the
funding of the costs requested therefor, provided, however, no
such additional Commitments under this Section 2.4(i) shall be
effective unless the Administrative Agent receives aggregate
additional Commitments in an amount not less than 10.1% of the
total amount required for completion of the Facility (the
"Threshold Requirement"). The relative Commitments of the
Participants shall reflect any adjustments made pursuant to this
Section 2.4(i) for all purposes of the Operative Documents. None
of the Lenders or the Lessor is in any way obligated to bid or
offer to increase its Commitment. Increased Commitments shall be
drawn in accordance with and subject to the conditions of Article
III; provided, however, that if the amount in which the
Commitments is increased satisfies the Threshold Requirement but
is less than the amount required for the completion of
construction of the Facility, then such increase in the
Commitments shall be conditioned upon the payment of such
difference by the Construction Agent pursuant to its obligation
under Section 4.1(b) of the Construction Agency Agreement.
SECTION 2.5. Commitment Fee. Lessee shall pay to
Administrative Agent a fully-earned, non-refundable commitment
fee (the "Commitment Fee") computed at the rate per annum set
forth on Appendix 3 on the daily unused portion of the aggregate
Commitments (including any portion thereof when any Commitments
are suspended by reason of the inability to satisfy any condition
of Article III) during the period (the "Commitment Period")
commencing on the Documentation Date and continuing through the
Construction Period Termination Date. The Commitment Fee is
payable quarterly in arrears on the last Business Day of each
consecutive March, June, September and December, commencing with
the first such day following the Documentation Date and on the
Construction Period Termination Date. From time to time upon
receipt, Administrative Agent will promptly deliver to the
Lenders their pro rata portions of such Commitment Fee in
accordance with their respective Commitments. To the extent a
Commitment Fee is funded pursuant to Section 2.4(h), Lessee shall
be deemed to have paid such amount pursuant to this Section 2.5.
SECTION 2.6. Payments to Participants. The parties to this
Agreement hereby agree that any payment (except Excluded Amounts)
required to be made to the Participants pursuant to any Operative
Document may be made directly to Administrative Agent on behalf
of the Participants by Lessee in lieu of the corresponding
payment required to be made by Lessee to Lessor pursuant to any
Operative Document. Such payment by Lessee to Administrative
Agent shall be deemed to constitute (a) the required payment from
Lessee to Lessor and (b) the corresponding payments by Lessor to
the Lenders. Lenders hereby agree that all payments under the
Lease shall be distributed in accordance with Article III of the
Loan Agreement.
SECTION 2.7. Computations. (a) For all purposes under the
Operative Documents, all computations of Interest and Yield in
respect of ABR Loans and the Investor Balance (when Yield is
calculated in respect of the ABR), Commitment Fees and other
accrued amounts shall be made on the basis of actual number of
days elapsed in a 365- (or 366- as the case may be) day year, and
Interest and Yield in respect of Eurodollar Loans and the
Investor Balance (when Yield is calculated in respect of the
Eurodollar Rate) shall be made on the basis of the actual number
of days elapsed in a 360-day year, except as otherwise
specifically provided in any Operative Document. Administrative
Agent shall as soon as practicable notify the Lessee and the
Lenders of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the
Eurocurrency Reserve Requirements and any change in the
Applicable Margin resulting from a change in the credit rating
of the Company shall become effective as of the opening of
business on the first day of the Interest Period immediately
following such change. Administrative Agent shall as soon as
practicable notify the Lessee and the Lenders of the effective
date and the amount of each such change in interest rate. Any
change in the interest rate on a Loan resulting from a change in
the ABR and any change in the Commitment Fee rate resulting
from a change in the credit rating of the Company shall become
effective on the earlier of (x) the date upon which such change
is publicly announced by the relevant rating agency and (y) the
date upon which the Company provides to the Administrative Agent
reasonably satisfactory evidence of such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Lessee and the Lenders in
the absence of manifest error. Administrative Agent shall, at
the request of the Lessee, deliver to Lessee a statement showing
the quotations used by the Administrative Agent in determining
any interest rate.
SECTION 2.8. Renewal Term. (a) Coincident with the
exercise by the Lessee of its option during the Base Term or a
Renewal Term then in effect to renew the Lease for a new Renewal
Term pursuant to Section 2.4 of the Lease: (i) Lessee may, at
Lessee's expense and by written request to the Lessor and
the Administrative Agent not earlier than 18 months nor later
than 15 months prior to the Maturity Date then in effect, arrange
or request Administrative Agent to solicit bids from Participants
to permit Lessee to extend the Operative Documents for another
Renewal Term, and concomitantly to extend the Final Maturity Date
to the new Renewal Term Expiration Date, which shall be the date
that is two years after the Maturity Date then in effect; Lessee
may, in its sole discretion, accept or reject any and all offers
from one or more Participants and in its sole discretion, Lessee
may elect, with the consent of the Administrative Agent, which
consent shall not be unreasonably withheld, to replace (in
accordance with Section 2.8(b)) any Participant that does not
submit an offer to extend or whose offer is not acceptable to
Lessee (in each case, a "Non- Consenting Participant"); and (ii)
on or before the expiration of the Basic Term or the Renewal Term
then in effect, Lessee, Administrative Agent, Lessor and
continuing or new Lenders shall enter into appropriate
documentation (including an amendment to this Agreement and the
Loan Agreement to reflect the agreed-upon economic terms) to
effect such renewal of the Lease and the other Operative
Documents for such Renewal Term, and concomitantly to extend the
Final Maturity Date to the new Renewal Term Expiration Date.
Such renewal of the Lease and concomitant extension of the
Final Maturity Date shall be effective for such Participants
approving the extension if the Required Entities agree to and
approve such extension. None of the Lenders or the Lessor is in
any way obligated to bid or offer to participate under the option
to renew the Lease or to otherwise remain subject to the
Operative Documents after the expiration of the Base Term.
(b) Lessee may cause Lessor to replace any Non-
Consenting Participant in accordance with Section 2.8(a) by
notifying such Non-Consenting Participant in writing that its
offer is not accepted, or if no such offer was received within
forty-five (45) days of request or solicitation of such offer,
by notifying such Non-Consenting Participant that due to its
failure to respond, such Non-Consenting Participant is being
replaced. All replacement Lenders will be required to enter into
the Operative Documents in the same manner as all existing
Lenders. Any Non-Consenting Participant as a condition to being
replaced will receive payment in full of all amounts owing
to such Non-Consenting Participant under the Operative Documents
including, as applicable, principal, Interest, Yield, and all
other amounts outstanding under the Operative Documents in
respect of such Non-Consenting Participant and its Commitment
Percentage. Section 2.8 of the Loan Agreement shall not
apply to payments received by any Lender under this Section
2.8(b).
SECTION 2.9. Highest Lawful Rate. Notwithstanding anything
to the contrary contained herein, in no event shall Lessee be
obligated to pay interest in excess of the maximum amount which
is chargeable under applicable law.
SECTION 2.10. Conversion Options. Lessee may elect from
time to time to convert Eurodollar Loans into ABR Loans by giving
the Administrative Agent irrevocable notice of such election, to
be received by the Administrative Agent prior to 12:00 noon, New
York City time, at least three (3) Business Days prior to the
proposed conversion date, provided that any such conversion
of Eurodollar Loans shall only be made on the last day of an
Interest Period with respect thereto. Lessee may elect from time
to time to convert all or a portion of the ABR Loans then
outstanding to Eurodollar Loans by giving the Administrative
Agent irrevocable notice of such election, to be received by
the Administrative Agent prior to 12:00 noon, New York City time,
at least three (3) Business Days prior to the proposed conversion
date, specifying the Interest Period selected therefor, and, if
no Default or Event of Default has occurred and is continuing
such conversion shall be made on the requested conversion date
or, if such requested conversion date is not a Business Day,
on the next succeeding Business Day. Upon receipt of any notice
pursuant to this Section 2.10, the Administrative Agent shall
promptly notify each Lender thereof. All or any part of the
outstanding Loans may be converted as provided herein, provided
that partial conversions of ABR Loans shall be in the aggregate
principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof and the aggregate principal amount of the
resulting Eurodollar Loans outstanding in respect of any one
Interest Period shall be at least $5,000,000 or a whole multiple
of $1,000,000 in excess thereof.
SECTION 2.11. Replacement of Lenders. In the event any
Lender requests payments pursuant to Section 2.8(b) or Sections
2.11 or 2.12 of the Loan Agreement (which costs Lessee is
obligated to pay as Supplemental Rent under Section 4.2 of the
Lease), the Lessee may require, at the Lessee's expense
and subject to Section 2.13 of the Loan Agreement, such Lender to
assign, at par plus accrued interest and fees, without recourse
to such Lender, in accordance with Section 6.3, all of its
interests, rights and obligations under the Operative Documents
(including all of its Commitments and the Loans and other amounts
at the time owing to it thereunder and its Notes) to a Person who
would qualify under Section 6.4(a) specified by the Lessee;
provided that (i) such assignment shall not conflict with or
violate any Applicable Law, (ii) the Lessee shall have received
the written consent of the Administrative Agent, which consent
shall not unreasonably be withheld, to such assignment and (iii)
the Lessee shall have paid to the assigning Lender all
Supplemental Rent accrued and owing under the Operative Documents
to it (including pursuant to Sections 2.11 or 2.12 of the Loan
Agreement).
ARTICLE III
CONDITIONS TO ADVANCES AND COMPLETION
SECTION 3.1. Conditions to All Advances. The obligation of
Lessor and each Lender to perform its obligations on any Advance
Date shall be subject to the fulfillment to the satisfaction of
(including, with respect to writings, such writings being in form
and substance reasonably satisfactory to Lessor and
Administrative Agent or, where expressly provided below, the
Required Entities), or the waiver in writing by, Lessor and
Administrative Agent (at the direction of Required Entities) of
the conditions precedent set forth in this Section 3.1 (in
addition to the conditions precedent set forth in Section
3.2 or 3.3, as applicable) on or prior to such Advance Date
(except that the obligation of any party hereto shall not be
subject to such party's own performance or compliance):
(a) Advance Request. Construction Agent shall have
delivered an Advance Request conforming with the requirements of
Section 2.4 in respect of the proposed Advance Date.
(b) Performance. Lessee shall have performed and
complied with all agreements and conditions contained herein and
in any other Operative Document to which it is a party required
to be performed or complied with by it on or prior to such
Advance Date.
(c) Consents and Approvals. All Government Actions
and other approvals and consents required to be taken, given or
obtained, as the case may be, by or from any Authority or another
Person, or by or from any trustee or holder of any Indebtedness
or obligation of Lessee, that are necessary in connection with
the execution, delivery and performance of the Operative
Documents by Lessee, shall have been taken, given or obtained, as
the case may be (subject to the provision of Section 4.1(r) that
no required building or use-related permit, approval or consent
material to the use of the Land need be obtained prior to the
date on which such permit, approval or consent is or becomes
necessary), shall be in full force and effect and the time for
appeal with respect to any thereof shall have expired (or, if an
appeal shall have been taken, the same shall have been dismissed)
and shall not be subject to any pending proceedings or appeals
(administrative, judicial or otherwise).
(d) Representations and Warranties True. Each
representation and warranty of Lessee contained herein or in any
other Operative Document shall be true and correct in all
material respects as though made on and as of such
Advance Date, except that any such representation or warranty
which is expressly made only as of a specified date need be true
only as of such date. Since September 30, 1997, there has been
no development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
(e) Transaction Costs. With respect to the initial
Advance Date, Lessee shall have paid or caused to be paid all
Transaction Costs invoiced through the initial Advance Date to
the parties to whom such Transaction Costs are payable (or shall
have requested payment thereof pursuant to the initial Advance
Request), and, with respect to any other Advance Date, Lessee
shall have paid all Transaction Costs invoiced through such
Advance Date to the parties to whom such Transaction Costs are
payable (or shall have requested payment thereof pursuant to the
Advance Request). Payments shall be made by wire transfer of
immediately available funds, with such wire transfer being
made to the account specified on Schedule III in the case of
payments to any of the parties listed on Schedule III.
(f) Proceedings Satisfactory, Etc. All corporate
proceedings taken in connection with such Advance Date and all
documents relating thereto shall be reasonably satisfactory to
Administrative Agent and counsel to the Participants, and
Administrative Agent and counsel to the Participants shall
have received copies of such documents as Administrative Agent or
such counsel may reasonably request in connection therewith.
(g) Taxes. All taxes, charges, fees and costs, if
any, payable in connection with the execution, delivery,
recording and filing of the Operative Documents and the
transactions contemplated to be consummated on each Advance Date
shall have been paid in full, or arrangements for such payment
shall have been made to the satisfaction of Administrative Agent.
SECTION 3.2. Conditions to Acquisition of the Land. The
obligation of each Participant to perform its obligations on the
date on which the Land is to be acquired by Lessor (the
"Acquisition Date") shall be subject to the fulfillment to the
satisfaction of (including, with respect to writings, such
writings being in form and substance reasonably satisfactory to
Administrative Agent or, where expressly provided below, the
Required Entities), or the waiver in writing by, Administrative
Agent (at the direction of the Required Entities)of the
conditions precedent set forth in this Section 3.2 (in
addition to the conditions precedent set forth in Section 3.1) on
or prior to such Advance Date (except that the obligation of any
party hereto shall not be subject to such party's own
performance or compliance):
(a) Filings and Recordings. All filings or recordings
enumerated and described in Schedule 4.1A hereof, as well as all
other filings and recordings necessary or advisable, including
precautionary financing statements, in the opinion of
Administrative Agent or counsel to the Participants, to perfect
the rights, titles and interests of the Participants intended to
be created by the Operative Documents shall have been made, or
shall have been arranged to be made promptly thereafter, in the
appropriate places or offices, including any recordings and
filings necessary to create, perfect, preserve and protect (i)
Lessor's interest in the Property, (ii) a first mortgage lien on
the Property included in the Collateral in favor of the
Administrative Agent, for the benefit of the Lenders, subject in
both cases, to Permitted Exceptions and the rights of Lessee
under the Lease. All recording and filing fees and taxes with
respect to any recordings or filings made pursuant to this
Section 3.2(a) shall have been paid in full, and satisfactory
evidence thereof shall have been delivered to Administrative
Agent, or arrangements for such payment shall have been made to
the satisfaction of Administrative Agent.
(b) Opinions of Counsel. Administrative Agent has
received an opinion of counsel addressed to Administrative
Agent, Lessor and the Lenders substantially in the form of
Exhibit G-1 with respect to the Operative Documents executed
and delivered in connection with such Advance Date and the
perfection and validity of the Participants' lien on the Land
being purchased on such Advance Date and the Facility to be
constructed thereon, with such qualifications and limitations as
are acceptable to Administrative Agent and counsel to the
Participants.
(c) Survey. Construction Agent shall have delivered,
or shall have caused to be delivered, to Administrative Agent and
its counsel an ALTA survey of the Land in a form satisfactory to
the Title Insurance Company and showing no state of facts
unsatisfactory to Administrative Agent and counsel to the
Participants, which survey shall be certified to Lessor and
Administrative Agent.
(d) Title Insurance. Lessor shall have received from
the Title Insurance Company its ALTA (1970 version, amended
10/17/70) (or such other form as may be customary in the
Commonwealth of Massachusetts) owner's policy of title insurance,
acceptable in form and substance to Administrative Agent (the
"Lessor's Policy") (or a final hand-marked original thereof
signed by the Title Insurance Company containing all of the
provisions to be included in such policy by the Title Insurance
Company, in which case Lessor shall receive a clean, final
original of such Policy within thirty (30) Business Days),
insuring that Lessor has good and marketable fee title to the
Land, together with complete, legible copies of all encumbrances,
maps and surveys of record. Administrative Agent, for the
benefit of the Lenders, shall have received from the Title
Insurance Company its ALTA (1970 version, amended 10/17/70) form
of loan policy of title insurance (or such other form
as may be customary in the Commonwealth of Massachusetts (the
"Loan Policy"; together with the Lessor's Policy, the "Title
Policies"), reasonably acceptable in form and substance to
Administrative Agent and the counsel for the Lenders, insuring
the creation under the Mortgage in favor of Administrative Agent
on behalf of Lenders and the Lease in favor of Lessor of
a valid first priority mortgage lien against the Land, subject to
such exceptions to title as are reasonably acceptable to
Administrative Agent and the counsel for the Lenders, together
with complete, legible copies of all encumbrances, maps and
surveys of record. The Title Policies shall be dated as of the
Acquisition Date, shall be in an amount not less than the
Commitment Amount plus the Preacquisition Amount (assuming that
the Facility had already been constructed on the Land) and, to
the extent permitted under Applicable Law and to the extent
available and applicable to each type of policy, shall contain
such endorsements and affirmative coverage reasonably
requested by Lessor and/or Administrative Agent, as the case may
be.
(e) Environmental Certificate and Audit.
Administrative Agent and Lessor shall have each received an
Environmental Certificate, substantially in the form of Exhibit F
(an "Environmental Certificate") with respect to such Land, and
the Environmental Audit prepared by the Environmental Engineer
for such Land shall have been delivered to and approved
by Administrative Agent and the Required Entities in their sole
and absolute discretion. Administrative Agent and the
Participants will timely advise Construction Agent if such
Environmental Audit is not approved; provided that
failure to so advise Construction Agent on or before the Business
Day prior to the Acquisition Date shall be deemed approval of
such Environmental Certificate.
(f) Zoning. In the event that an ALTA 3.0 Zoning
Endorsement (with express parking coverage) was not obtained in
connection with the Title Policies for the Land, Administrative
Agent shall receive evidence reasonably satisfactory to it that
the zoning of the Land is satisfactory and compatible with the
Facility to be constructed thereon.
(g) Purchase Agreement, Deed, Lease and Bill of Sale.
Administrative Agent shall have received (i) a fully executed
Purchase Agreement regarding the acquisition of the Land,
together with (x) an Officer's Certificate of the Lessee of such
Land to the effect that the Purchase Agreement is complete and
includes all existing amendments, modifications and riders, and
(y) a Purchase Agreement Assignment from Lessee to Lessor and
(ii) a Deed or assignment of lease conveying to Lessor such
Land.
(h) Mortgage. Administrative Agent shall have
received a Mortgage duly executed by Lessor and Lessee with
respect to the Property creating a first lien on the Property in
favor of the Administrative Agent for the benefit of the Lenders.
(i) Construction Agency Supplement. It shall be a
condition to such Advance that the Construction Agency Agreement
be in full force and effect and no Construction Agency Event of
Default shall have occurred and be continuing. Administrative
Agent shall receive a Construction Agency Agreement Supplement
with respect to the Facility to be constructed on the
Land, fully executed by the Construction Agent and Lessor.
(j) Filings and Recordations. Administrative Agent
shall have received evidence reasonably satisfactory to it that
each of the Deed, the Mortgage, the Assignment of Lease and the
Supplement to Assignment of Lease delivered on the Acquisition
Date shall have been or are being recorded with the appropriate
Authorities in the order in which such documents are listed in
this clause, and the UCC Financing Statements with respect to the
Facility being constructed shall have been or are being filed
with the appropriate Authorities.
(k) Insurance. Insurance complying with the
provisions of Article XI of the Lease shall be in full force and
effect as evidenced by certificates of insurance, broker's
reports or insurance binders delivered to Lessor in
form and substance reasonably satisfactory to Administrative
Agent.
(l) Appraisal. Not less than five (5) Business Days
prior to the Acquisition Date, Administrative Agent shall have
received and will deliver to Lessor and each Lender an appraisal
(the "Appraisal") which will establish (by the use of appraisal
methods set forth in the Appraiser Engagement Letter) (i)
as of the date such Land becomes subject to the Lease, such
Land's Fair Market Sales Value, (ii) the as-built Fair Market
Sales Value of the Property upon the Completion Date in an
amount not less than $150,000,000 and (iii) the Fair Market Sales
Value of such Property as of the end of the Basic Term in an
amount not less than $ 150,000,000. The opinions to be rendered
in connection with the Appraisals to be delivered pursuant to
this Section 3.2(n) shall be based upon the assumptions set forth
in the Appraiser Engagement Letter. The Appraisal will be
prepared in accordance with the Financial Institutions Reform
Recovery and Enforcement Act of 1989 and will be performed
by the Appraiser.
(m) FIRPTA Affidavit. Lessee shall have caused the
seller or assignor of the Land to deliver to Administrative Agent
either (i) a FIRPTA Affidavit in customary form or (ii) in the
case of a seller or assignor but not Lessee, if such seller is a
"foreign person" as defined in Section 1445 of the Code, evidence
that a portion of the sales price to be paid to such seller
or assignor has been withheld, if so required, in accordance with
the provisions of the Code and the Regulations.
(n) No Event of Loss. No Casualty (other than a
Casualty which has been taken into consideration in the Appraisal
or which has resulted in damage totaling less than 10% of the
Appraised Value of the Land as of the date the Land becomes
subject to the Lease) has occurred and no Event of Loss shall
have occurred in respect of the Land to be acquired on the
Acquisition Date. No action shall be pending or threatened by an
Authority to initiate a Condemnation or an Event of Taking in
respect of the Land to be acquired on the Acquisition Date.
(o) Good Standing. Lessee shall have delivered to
Administrative Agent a certificate issued by the office of the
secretary of state of the jurisdiction in which such Land is
located indicating that such Lessee is a corporation in good
standing under the laws of such jurisdiction.
(p) Construction on Land. The Completion Date with
respect to the Facility to be built on the Land is anticipated to
occur within thirty-six (36) months from the Construction
Commencement Date (and in any event prior to the Construction
Period Termination Date) and the purchase price for the Land
will be less than 25% of the as-built appraised value of the
Property at the Completion Date.
(q) Secretary's Certificate. The Administrative
Agent shall have received from Lessee (with sufficient copies for
distribution to each Participant) (a) an incumbency certificate
regarding the officers authorized to execute and deliver the
Operative Documents to which it is a party and other documents
and agreements delivered in connection therewith; (b) certified
copies of all documents evidencing the corporate actions of
Lessee, including resolutions of the boards of directors or
delegations of authority of Lessee duly authorizing the
execution, delivery and performance by Lessee of each of the
Operative Documents to which it is or is to be a party and the
transactions contemplated hereby and thereby; (c) certified
copies of the bylaws and charter of Lessee; and (d) such other
documents and evidence with respect to Lessee as any Participant
may reasonably request in order to establish the consummation of
the transactions contemplated by the Operative Documents, the
taking of all corporate proceedings in connection therewith and
compliance with the conditions herein set forth.
(r) Environmental Indemnity. Lessor shall have
received an Environmental Indemnity with respect to the Property
duly executed by Lessee, as Indemnitor.
SECTION 3.3. Conditions Precedent to Advances for
Construction Costs (other than Soft Costs). The obligation of
each Participant to perform its obligations on any Advance Date
for the payment of Construction Costs (other than Soft Costs) of
the Facility shall be subject to the satisfaction of (including,
with respect to writings, such writings being in form and
substance reasonably satisfactory to Administrative Agent or,
where expressly provided below, the Required Entities), or the
waiver in writing by, Administrative Agent (at the direction of
the Required Entities) of the conditions precedent set forth in
this Section 3.3 (in addition to the conditions precedent set
forth in Section 3.1) on or prior to such Advance Date (except
that the obligation of any party hereto shall not be subject to
such party's own performance or compliance):
(a) Building Plans and Architect's Agreement;
Assignment. Administrative Agent shall have received, upon
request, a copy of such Plans and Specifications as are in
existence at such time, signed and sealed by the Architect, which
shall include the Plans and Specifications for the portion of
construction for which the Advance is being made. Prior to the
first Advance under this Section 3.3 with respect to the
Facility, Administrative Agent shall receive an assignment from
the Construction Agent in favor of Lessor of the Construction
Agent's interest in the Plans and Specifications and the
Architect's Agreement relating to such Facility, in the
form required by the Construction Agency Agreement, and either
(i) attached thereto is the Architect's written consent to such
assignment, in the form required by the Construction Agency
Agreement, or (ii) included in such assignment is a
certification of the Lessee that the applicable Architect's
Agreement includes a provision in substance identical to such
consent.
(b) Construction Contract; Assignment. Administrative
Agent shall have received, upon request, a copy of each Major
Construction Document entered into by Construction Agent or by
Construction Agent's general contractor, as the case may be.
Prior to the first Advance under this Section 3.3, Administrative
Agent shall receive an assignment from the Construction
Agent in favor of Lessor of the general construction contract (if
any) relating to such Facility and the Permits related thereto,
in the form required by the Construction Agency Agreement, and
either (i) attached thereto is the contractor's written consent
to such assignment, in the form required by the Construction
Agency Agreement, or (ii) included in such assignment is a
certification of the Construction Agent that the applicable
general construction contract includes a provision in substance
identical to such consent.
(c) Assurance of Completion. Administrative Agent
shall have received with respect to each Advance where the
aggregate of all prior Advances for such Property exceeds
$100,000,000, upon request, from the Construction Agent,
assurance that the available aggregate Commitments for the
Facility being constructed, is sufficient to complete the
construction of such Facility in accordance with the Plans and
Specifications therefor and to fund all reasonably anticipated
Capitalized Yield and Capitalized Interest, and that all of such
construction is (or, absent any Force Majeure, would be)
capable of being completed by the end of the Construction
Period.
(d) Construction Progress Information. In the event
that either (i) mechanics' liens with an aggregate amount claimed
which equals or is greater than $250,000 are filed and
outstanding against the Property or (ii) five (5) or more
mechanics' liens are filed and outstanding against the
Property, the Construction Agent shall promptly (and in any event
not later than the delivery of the next following Advance
Request) furnish to Administrative Agent, and shall thereafter
continue to furnish to Administrative Agent as a condition to
each Advance with respect to such Property until such time as the
events described in clause (i) and (ii) above shall be
eliminated, notice of the amount and nature of each such
mechanics' lien claim and such additional details concerning
construction of the Facility as Administrative Agent shall
reasonably require, including invoices, bills of sale or
unconditional partial releases of lien (on the standard
form used in the relevant jurisdiction or such other forms
approved by the Administrative Agent and the Title Insurer) from
each materials dealer, laborer and contractor employed by
Construction Agent for all work completed or materials
supplied through such date for which payment is being requested
and invoices, bills of sale or unconditional partial releases of
lien (on such forms) from each materials dealer, laborer and
subcontractor employed by parties other than Construction Agent
for work completed or materials provided no more than 30 days
prior to the Advance Date.
(e) Budget. Prior to the first Advance under this
Section 3.3 with respect to the Facility, Construction Agent
shall have furnished to Administrative Agent a copy of a
construction budget for the Facility, prepared by the
Construction Agent.
SECTION 3.4. Conditions to Completion. Completion of the
Facility shall be deemed to have occurred upon the satisfaction
of the following conditions with respect thereto, and the
Construction Agent shall provide the following to the
satisfaction of (including, with respect to writings, such
writings being in form and substance reasonably satisfactory to
Administrative Agent or, where expressly provided below, the
Required Entities), or the waiver in writing by, the Lessor and
Administrative Agent (at the direction of the Required Entities)
within 60 days of substantial completion of the Facility and
prior to the final Advance with respect to the Property under
Section 3.5:
(a) Architect's Certificate. Construction Agent
shall have furnished to Administrative Agent a certificate of the
Architect (substantially in the form of Exhibit K) dated at or
about the Completion Date and stating that (i) the Facility has
been completed substantially in accordance with the Plans and
Specifications and is ready for occupancy, (ii) such Facility, as
so completed, complies in all material respects with all
Applicable Law, and certifying that attached thereto is a true
and correct copy of the "as-built" Plans and Specifications for
such Facility (which may be in the form of the initial Plans and
Specifications for such Facility, with all change orders
attached), and (iii) a final, unconditional certificate of
occupancy has been obtained from the necessary Authorities;
provided, that, so long as such Facility can be operated without
any restrictions and the Construction Agent diligently pursues in
good faith the issuance of the final, unconditional certificates
of occupancy, the certificate of occupancy may be a temporary
certificate of occupancy, in which event, the Construction Agent
hereby covenants to obtain a final, unconditional certificate
of occupancy as soon as practicable after substantial completion
of the Facility.
(b) Construction Agent's Certificate; As-Built
Survey; Title Insurance Endorsements. Construction Agent shall
have furnished to Administrative Agent true, correct and complete
copies, certified by the Construction Agent, of the following:
(i) an "as-built" ALTA survey of the Property,
certified to Administrative Agent and Lessor, showing the
location of the completed Facility, the location of all
points of access to the Property and the location of all
easements affecting the Property and certifying that
there are no encroachments of the Facility onto any
easements affecting the Property or onto any adjoining land
and that all applicable setback requirements and other
restrictions have been complied with; and
(ii) a date-down endorsement, dated not earlier than
the date of substantial completion of the Facility, to the
applicable Title Insurance Policy (or, if not available
under the applicable state law, then such other evidence of
the lack of recorded and unrecorded mechanics' liens
affecting (or inchoate rights thereto which could affect)
the Property as Administrative Agent may reasonably
request).
(c) Construction Completion. The construction of the
Facility shall have been completed substantially in accordance
with the Plans and Specifications for such Facility and all
Applicable Law, and such Facility shall be ready for occupancy
and operation no later than the last day of the Construction
Period. All fixtures and other improvements contemplated under
such Plans and Specifications to be incorporated into the
Property shall have been incorporated or installed free and clear
of all Liens except for Permitted Liens and Liens in favor of
Lessor or Administrative Agent.
(d) Lessee Certification. Lessee shall have furnished
Lessor and Administrative Agent with a certification of a
Responsible Officer of the Lessee to the effect that:
(i) The representations and warranties of the Lessee
with respect to the Property set forth in Section 4.1(n) are
true and correct in all material respects as of the
Completion Date for the Facility. All amounts due and owing
to third parties for the construction of the Facility have
been paid in full (other than contingent obligations for
which the Construction Agent has made adequate reserves).
All insurance required to be maintained under Section 11.1
of the Lease is in full force and effect.
(ii) No changes or modifications were made to any
related Plans and Specifications after the Acquisition Date
that materially and adversely effect the value, utility or
economic useful life of the Property.
(iii) A final Certificate of Occupancy has been granted
for the completed Facility.
(e) Searches. Administrative Agent shall have
received a report, as of a current date, prepared by a search
company reasonably satisfactory to Administrative Agent, of
judgment liens, tax liens and Uniform Commercial Code
filings with respect to the Lessee of the Property and the
Property filed of record with the applicable state filing offices
in the jurisdiction where such Property is located and the state
in which such Lessee has its principal place of business.
SECTION 3.5. Final Advances.
(a) Funding of Completion Escrow Account. Provided
that no Lease Event of Default shall have occurred and be
continuing no later than 30 days prior to the termination date
of the Commitments as set forth in Section 2.4(e), subject to
Section 2.4(b), Construction Agent may request by delivering an
Advance Request to Administrative Agent an Advance the proceeds
from which shall be deposited by the Participants into the
Escrow Account to fund Qualified Facility Costs. "Qualified
Facility Costs" mean (i) costs of construction of the Facility
which are not yet due and payable or are contingent at the date
such Advance Request is delivered to Administrative Agent, (ii)
costs to complete all "punchlist" items for the Facility and
(iii) costs of construction to fund change orders made after
Completion of a Facility, provided that the costs incurred
pursuant to clause (iii) shall not exceed five percent (5%) of
the Appraised Value of such Facility as of the Completion Date
as set forth in the as-built Appraisal delivered pursuant to
Section 3.2(n). Provided that no Lease Event of Default shall
have occurred and be continuing, amounts in the Escrow Account
may, at the direction of the Construction Agent, be invested in
Permitted Investments. Any income or gain realized as a result of
such investment shall be held by the Administrative Agent as part
of such Escrow Account and reinvested or disbursed as provided
herein. Neither the Administrative Agent nor any Participant
shall have any liability for any loss resulting from any such
investment. The amount of any Advance so funded into escrow shall
be deemed advanced by the Participants hereunder and under the
other Operative Documents as of the date so funded into escrow,
and the Lease Balance shall be increased by such amount on the
date so funded in escrow by the Participants. Construction Agent
shall cause all punchlist items and change orders funded
under this Section 3.5(a) to be completed six (6) months after
the expiration of the Construction Period for the Facility. Upon
the Construction Agent providing the Administrative Agent with a
detailed accounting, reasonably satisfactory to the
Administrative Agent and certified by the Construction
Agent, with respect to requested disbursements from such escrow
and the expenditure of such funds, together with copies of lien
releases, bills of sale, invoices and other similar items
reasonably requested by Administrative Agent, Advances funded
into escrow may be withdrawn by the Construction Agent as needed,
to fund Qualified Facility Costs.
(b) Repayments of Unused Advances. In the event any
portion of an Advance (including any income or gain realized on
investments of amounts in the Escrow Account) pursuant to Section
3.5(a) is not used by the Construction Agent to pay costs in
connection with which such Advance was made, then, Construction
Agent shall have the obligation to cause any such excess funds to
be remitted to Lessor on the first Payment Date not less than
one hundred eighty (180) days after the expiration of the
Construction Period for the Facility, in which event together
with any amounts remaining in the Escrow Account, Lessor shall
apply such amounts to repayment of the Notes and the Investor
Balance pro rata, and the Lease Balance shall be adjusted
accordingly.
All or any portion of any Commitment may be suspended by
reason of the inability to satisfy any condition in this Article
III.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of Lessee. As
of the date hereof and each Advance Date, Lessee represents and
warrants to each of the other parties hereto as follows:
(a) Corporate Existence; Compliance with Law. Lessee
and each Subsidiary of Lessee (i) is duly organized or formed,
validly existing and (in the case of Lessee and its Material
Subsidiaries) in good standing under the laws of the jurisdiction
of its incorporation or formation, (ii) has the corporate power
and authority and legal right to own and operate its property,
to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (iii) is in compliance
with all Requirements of Law, except to the extent that all
failures to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect, and
(iv) in the case of Lessee and its Material Subsidiaries, is duly
qualified and in good standing to do business in each
jurisdiction in which the nature or conduct of its business or
the ownership, leasing, operation or holding of its properties
requires such qualification, except such jurisdictions where
the failure so to qualify would not have a Material Adverse
Effect.
(b) Corporate Power; Authorization. Lessee has the
power and authority, and the legal right, to make, deliver and
perform this Agreement and all other Operative Documents to which
it is a party. Lessee has taken all necessary corporate action
to authorize the execution, delivery and performance of this
Agreement and the other Operative Documents to which it is
a party. No consent or authorization of, filing with, notice to
or other act by or in respect of, any Person (including any
Authority) is required in connection with the execution, delivery
or performance by Lessee, or for the validity or enforceability
against, the Lessee of this Agreement or any other Operative
Document except for the consents, authorizations and filings
which have been obtained or made and are in full force and
effect.
(c) Enforceable Obligations. This Agreement and each
Operative Document to which Lessee is a party has been duly
executed and delivered by Lessee and constitutes the legal, valid
and binding obligation of Lessee enforceable against Lessee in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, or
other similar laws relating to or affecting creditors' rights
generally, general principles of equity (regardless of whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(d) No Legal Bar. The execution, delivery and
performance of each Operative Document to which Lessee is a party
will not violate any Requirement of Law or Contractual Obligation
applicable to or binding upon Lessee or any of its Subsidiaries
and will not result in, or require, the creation or imposition of
any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual
Obligations, except for the Liens created under the Operative
Documents.
(e) No Material Litigation. No litigation,
investigation or proceeding of or before any arbitrator or
Authority is pending or, to the knowledge of a Responsible
Officer of Lessee, threatened by or against Lessee or any of its
Subsidiaries or against any of its or their respective properties
or revenues with respect to (a) any of the Operative Documents or
any of the transactions contemplated thereby or (b) which could
reasonably be expected to have a Material Adverse Effect.
(f) Investment Company Act; Other Regulations. Lessee
is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended. Lessee is not subject to regulation
under any Federal or State statute or regulation (other than
Regulation X of the Board of Governors of the Federal Reserve
System) which limits its ability to incur Indebtedness.
(g) No Default. Neither Lessee nor any Subsidiary is
in default under or with respect to any Contractual Obligation in
any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and
is continuing.
(h) Taxes. Lessee and each of its Material
Subsidiaries has filed or caused to be filed all Tax returns
which, to the knowledge of a Responsible Officer of Lessee or any
Material Subsidiary, are required to be filed. All Taxes shown
to be due and payable on such Tax returns or on any assessments
made against it or any of its property and all other Taxes
imposed on it or any of its property by any Authority have been
timely paid in full (other than any the amount or validity of
which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of Lessee or its
Subsidiaries, as the case may be), and no Tax Liens have been
filed and, to the knowledge of a Responsible Officer of Lessee,
no claims are being asserted against Lessee or any Material
Subsidiary with respect to any Taxes, fees or other charges.
(i) Subsidiaries. The Subsidiaries of Lessee listed
on Schedule 4.1B constitute all of the Domestic Subsidiaries of
Lessee and the Subsidiaries listed on Schedule 4.1C constitute
all of the Foreign Subsidiaries of Lessee as of the Documentation
Date.
(j) Ownership of Land; Liens. Lessee and each of its
Material Subsidiaries has good record and marketable title in fee
simple to, or a valid leasehold interest in, all of its real
property, and good title to, or a valid interest in, all of its
other property, and none of such property is subject to any Lien
other than Permitted Liens.
(k) Rights in Respect of the Property. Lessee is not
a party to any contract or agreement to sell any interest in the
Property or any part thereof other than pursuant to or in
accordance with this Agreement and the Lease.
(l) No Default, Loss, etc. As of each Advance Date:
no Default, Event of Default, Event of Loss or Casualty (where
Lessee reasonably expects repair and restoration costs resulting
from such casualty to exceed $10,000,000) has occurred and is
continuing; there is no action pending or, to the knowledge of a
Responsible Officer of Lessee threatened by an Authority to
initiate an Event of Taking; no condition exists that
constitutes, or with the giving of notice or lapse of time or
both would constitute an event of default by it under any
material indenture, mortgage, chattel mortgage, deed
of trust, lease, conditional sales contract, loan or credit
arrangement or other material agreement or instrument to which it
is a party or by which it or any of its properties may be bound
which individually or in the aggregate with all such events of
default could have a Material Adverse Effect.
(m) Chief Executive Office of Lessee. The principal
place of business and chief executive office, as such terms are
used in Section 9-103(3) of the UCC, of the Lessee are located at
100 Technology Center Drive, Stoughton, MA 02072.
(n) Compliance With Law. With respect to the Land
and the construction and use of the Facility upon Completion,
(i) Lessee has at all times complied with and is in compliance
with and will comply with all Applicable Laws, including all
Environmental Laws, except for any violations which would not
have a Material Adverse Effect; (ii) the Property and the use
thereof by Lessee and its administrative agents, assignees,
employees, invitees, lessees, licensees and tenants complies in
all material respects with all Applicable Laws (including all
zoning and land use laws and Environmental Laws) and insurance
requirements; and (iii) the Facility and any other Improvements
on the Land do not encroach in any material respect onto
any adjoining land (except as permitted by express written
easements or as insured by appropriate title insurance). There
are no underground storage tanks at the Land except such
underground storage tanks as are in compliance with Environmental
Laws.
(o) Licenses, Registrations and Permits. All material
licenses, approvals, authorizations, consents, permits (including
building, demolition and environmental permits, licenses,
approvals, authorizations and consents), easements and rights-of-
way, including proof and dedication (collectively, the
"Permits"), required for (x) the use, treatment, storage,
transport, disposal or disposition of any Hazardous Material on,
at, under or from the Land during the construction of the
Facility thereon, (y) construction of Facility in accordance with
the related Plans and Specifications and the Construction Agency
Agreement and (z) the use and occupancy of the Property and for
the operation thereof (including a certificate or certificates of
occupancy for the Facility or other legally equivalent
permission to occupy the Facility) have either been obtained
from the appropriate Authorities having jurisdiction or from
private parties, as the case may be, or will be obtained from the
appropriate Authorities having jurisdiction or from private
parties, as the case may be, prior to commencing any such
construction or use and operation, as applicable. Lessee has
delivered to Administrative Agent, upon request, true, correct
and complete copies of all Permits issued prior to the date that
this representation is made or remade, as the case may be.
Construction Agent and its contractors have assigned to Lessor,
to the extent assignable under applicable law, all of their
respective interests in all such Permits, whether heretofore or
hereafter issued.
(p) Nature, Condition and Use of Property. The Land
to be acquired on the Acquisition Date consists of land on which
a Facility will be constructed pursuant to the Construction
Agency Agreement. The Land is located in Massachusetts in the
County of Norfolk. The present condition of the Land conforms,
and the condition and use of Property at the end of the
Construction Period therefor will conform, in all material
respects, with all conditions or requirements of all existing
permits and approvals issued with respect to the Land and
Facility. Lessee's future intended use of the Property under
the Lease does not and will not, in any material respect, violate
any Applicable Law. No notices, complaints or orders of
violation or non-compliance or liability of any nature whatsoever
have been issued or threatened by any Person with respect to the
Property or any present or intended future use thereof, except
for such violations and instances of non-compliance as could
not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on the Property, and
Responsible Officers of Lessee are not aware of any circumstances
which could give rise to the issuance of any such notices,
complaints or orders. Upon completion of the Construction
Period the Property will comply, in all material respects, with
Applicable Law. Upon Completion of the Facility in accordance
with the related Plans and Specifications, (A) there will be no
material defects to such Facility, including the plumbing,
heating, air conditioning and electrical systems thereof and (B)
all water, sewer, electric, gas, telephone and drainage
facilities and all other utilities required to adequately service
such Facility for its primary intended use will be available
pursuant to adequate permits (including any that may be required
under applicable Environmental Laws).
(q) Utility Services. Upon Completion, the Property
will have available all material services of public facilities
and other utilities necessary for use and operation of the
Facility thereon for its primary intended purposes including
adequate water, gas and electrical supply, storm and sanitary
sewerage facilities, telephone, other required public utilities
and means of access between such Facility and public highways for
pedestrians and motor vehicles. All utilities serving the
Property, or proposed to serve such Property in accordance with
the related Plans and Specifications, are located in, and
vehicular access to the Property is provided by, either public
rights-of-way abutting such Property or by Appurtenant Rights.
(r) Use and Operation of the Property. All material
agreements, easements and other rights, public or private, which
are necessary to permit the lawful use and operation of the
Property as the Lessee thereof intends to use the Property under
the Lease during the Construction Period and upon Completion and
which are necessary to permit the lawful intended use and
operation of all presently intended utilities, driveways, roads
and other means of egress and ingress to and from the same have
been obtained and are in full force and effect or will be
obtained and be in full force and effect on or prior to
Completion, and Responsible Officers of Lessee have no actual
knowledge of any pending modification which would materially and
adversely affect the operation of the Facility or cancellation of
the same; and all required building and use-related permits,
approvals, licenses and consents material to the construction,
use and operation of the Facility will have been issued and be in
full force and effect on or prior to the date such permits,
approvals, licenses and consents are or become necessary.
(s) Securities Act. Neither Lessee nor anyone
authorized to act on behalf of Lessee (it being understood that
this representation is not being made with respect to Credit
Suisse First Boston and its Affiliates) has, directly or
indirectly, in violation of Section 5 of the Securities Act or
any state securities laws, offered or sold any interest in the
Notes, the Land or the Lease, or in any security or lease the
offering of which, for purposes of the Securities Act or any
state securities laws, would be deemed to be part of
the same offering as the offering of the aforementioned
securities or leases, or solicited any offer to acquire any of
the aforementioned securities or leases.
(t) Title. Neither Lessee nor any of its Affiliates
has taken or caused to be taken any action which would have an
adverse effect on Lessor's title to the Property from that
indicated in the Title Policies to be delivered pursuant to
Section 3.2(d). Neither Lessee nor any of its Affiliates has
created, consented to, incurred or suffered to exist any Lien
upon the Land other than Permitted Liens.
(u) Federal Reserve Regulations. No part of the
proceeds of any Advances will be used for the purpose of
purchasing or carrying any "margin security" or "margin stock"
within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System, as now and from time to time
hereafter in effect, or for the purpose of reducing or retiring
any indebtedness which was originally incurred to purchase or
carry a margin security or margin stock or for any other purpose
which might cause any of the transactions contemplated by this
Agreement or any other Operative Document to constitute a
"purpose credit" within the meaning of Regulation X of the Board
of Governors of the Federal Reserve System as now and from time
to time thereafter in effect, or for the purpose of purchasing
or carrying any security, and neither Lessee nor any Affiliate
of Lessee has taken or will otherwise take or permit any action
by Lessee or any of its Affiliates in connection with any of
the transactions contemplated by any of the Operative Documents
which would involve a violation of Regulation T, U, or X, or any
other regulation of the Board of Governors of the Federal Reserve
System as now and from time to time hereafter in effect. If
requested by any Lender or the Administrative Agent, the Lessee
will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
(v) ERISA. Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section
412 of the Code or Section 302 of ERISA) has occurred during the
five- year period prior to the date on which this representation
is made or deemed made with respect to any Plan, and each
Plan has complied in all material respects with the applicable
provisions of ERISA and the Code. No termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a
Plan has arisen, during such five-year period. The present value
of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits. Neither
the Company nor any Commonly Controlled Entity has had a complete
or partial withdrawal from any Multiemployer Plan, and
neither the Company nor any Commonly Controlled Entity would
become subject to any liability under ERISA if the Company or any
such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed
made. No such Multiemployer Plan is in Reorganization or
Insolvency. The present value (determined using actuarial and
other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the liability of the
Company and each Commonly Controlled Entity for post-retirement
benefits to be provided to their current and former employees
under Plans which are welfare benefit plans (as defined
in Section 3(1) of ERISA) does not, in the aggregate, exceed the
assets under all such Plans allocable to such benefits by an
amount in excess of $10,000,000.
(w) Financial Condition.
(i) The consolidated balance sheet (the "Balance
Sheet") of the Lessee and its consolidated Subsidiaries as
of December 31, 1996 and the related consolidated statements
of income and of cash flows for the fiscal year ended on
such date, reported on by Ernst & Young, copies of which
have heretofore been furnished to each of the Participants,
are complete and correct and present fairly in all material
respects the consolidated financial condition of the Lessee
and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. The
unaudited consolidated balance sheet of the Lessee and its
consolidated Subsidiaries as at September 30, 1997 and the
related unaudited consolidated statements of income and of
cash flows for the three-month period ended on such date,
certified by a Responsible Officer, copies of which have
heretofore been furnished to each Participant, are complete
and correct and present fairly in all material respects the
consolidated financial condition of the Lessee and its
consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their
consolidated cash flows for the three-month period then
ended (subject to normal year-end audit adjustments and the
absence of footnotes).
(ii) All such financial statements, including the
related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed
therein). Neither the Lessee nor any of its consolidated
Subsidiaries had, at the date of the most recent balance
sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment,
including any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the
foregoing statements or in the notes thereto. Except to the
extent permitted under this Agreement or separately
disclosed to the Participants in writing prior to the date
hereof, there has been no sale, transfer or other
disposition by the Lessee or any of its consolidated
Subsidiaries of any material part of its business or
property and no purchase or other acquisition of any
business or property (including any capital stock of any
other Person) material in relation to the consolidated
financial condition of the Lessee and its consolidated
Subsidiaries at December 31, 1996 during the period from
December 31, 1996 to and including the date hereof.
(x) No Other Filings. On the Acquisition Date, except
for the filings and recordings listed in Schedule 4.1A (which
filings or recordings shall have been duly made on the applicable
Advance Date, or shall have been arranged to be made promptly
thereafter (including the payment of any fees or taxes relating
to any of the foregoing) in a manner satisfactory to
Administrative Agent), no other filings or recordings are
necessary to validly and effectively convey to Lessor and
Administrative Agent such interests in the Property and the
Collateral as contemplated by the Operative Documents, in
each case free and clear of all Liens, other than Permitted
Liens.
(y) Zoning. The Land complies, and, by the end of the
Construction Period therefor, the Property will comply, in all
material respects with all applicable zoning and subdivision
laws, ordinances, regulations and restrictive covenants, and all
requirements thereof necessary for the use, occupancy and
operation of such Land have been, or upon the completion of the
Facility thereon will be, satisfied in all material respects, and
the current use and intended use under the Lease of such Land is
a conforming use.
(z) Disclosure. No information, schedule, exhibit or
report or other document furnished by the Lessee or any of its
Subsidiaries to the Administrative Agent or any Participant in
connection with the negotiation of this Agreement or any of the
other Operative Documents (or pursuant to the terms hereof or
thereof), as such information, schedule, exhibit or report or
other document has been amended, supplemented or superseded by
any other information, schedule, exhibit or report or other
document later delivered to the same parties receiving such
information, schedule, exhibit or report or other document,
contained any material misstatement of fact or omitted to
state a material fact or any fact necessary to make the
statements contained herein or therein, in light of the
circumstances when made, not materially misleading.
(aa) Appraisal Data. The information provided by
Lessee and its Affiliates to the Appraiser and forming the basis
for the conclusions set forth in the Appraisal, taken as a whole,
was true and correct in all material respects and did not omit
any information necessary to make the information provided not
materially misleading.
(bb) Subjection to Government Regulation. None of
Administrative Agent, Lessor nor any Lender will become (i)
solely by reason of entering into the Operative Documents or
consummation of the transactions contemplated thereby (other than
upon exercise of remedies under the Lease or upon the expiration
thereof), subject to ongoing regulation of its operations by any
Authority having jurisdiction solely by reason of any of
Lessee's business activities or the nature of the Property; or
(ii) except for regulation the applicability of which depends
upon the existence of facts in addition to the ownership of, or
the holding of any interest in, the Property or any interest
therein upon the exercise of remedies under the Lease or upon the
expiration thereof, subject to ongoing regulation of its
operations by any Authority having jurisdiction solely by reason
of any of Lessee's business activities or the nature of the
Property.
(cc) Intellectual Property. Each of the Lessee and
its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted,
except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is
pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of
any such Intellectual Property which, if accurate, could
reasonably be expected to have a Material Adverse Effect, nor
does the Lessee know of any valid basis for any such claim. To
the knowledge of Responsible Officers of the Lessee, the use
of such Intellectual Property by such Lessee and its Subsidiaries
does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 4.2. Representations and Warranties of Each
Participant. Each Participant represents and warrants
severally and only as to itself to each of the other parties
hereto as follows:
(a) Lessor represents and warrants that:
(i) Corporate Power; Authorization. It has the power
and authority, and the legal right, to make, deliver and
perform this Agreement and all other Operative Documents to
which it is a party. Lessor has taken all necessary
corporate action to authorize the execution, delivery and
performance of this Agreement and the other Operative
Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or
in respect of, any Person (including any Authority) is
required in connection with the execution, delivery or
performance by Lessor, or for the validity or enforceability
against, the Lessor of this Agreement or any other Operative
Document except for the consents, authorizations and filings
which have been obtained or made and are in full force and
effect.
(ii) Enforceable Obligations. This Agreement and each
Operative Document to which Lessor is a party has been duly
executed and delivered by Lessor and constitutes the legal,
valid and binding obligation of Lessor enforceable against
Lessor in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, or other similar laws relating
to or affecting creditors' rights generally, general
principles of equity (regardless of whether considered in a
proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
(iii) Due Organization, etc. It is duly organized and
validly existing under the laws of the jurisdiction of its
organization and has full power and authority to enter into
and perform its obligations as Lessor or Borrower (as the
case may be) under each Operative Document to which it is or
is to be a party and each other agreement, instrument and
document to be executed and delivered by it on or before
each Advance Date in connection with or as contemplated by
each such Operative Document to which it is or is to be a
party.
(iv) Lessor Liens. The Land is free and clear of all
Lessor Liens attributable to it.
(v) ERISA. It will fund the Invested Amount with
assets that are either (i) not assets of any Employee
Benefit Plan (or its related trust) which is subject to
Title I of ERISA or Section 4975 of the Code; or (ii) assets
of any Employee Benefit Plan (or its related trust) which is
subject to Title I of ERISA or Section 4975 of the Code, but
there is available an exemption from the prohibited
transaction rules under Section 406(a) of ERISA and Section
4975 of the Code and such exemption is immediately
applicable to each transaction contemplated by the Operative
Documents to the extent that any other party to such
transaction is a "party in interest" as defined in Section
3(14) of ERISA with respect to such plan assets.
(b) Each Lender represents and warrants that:
(i) ERISA. It is purchasing its interest in the
Notes with assets that are either (i) not assets of any
Employee Benefit Plan (or its related trust) which is
subject to Title I of ERISA or Section 4975 of the Code; or
(ii) assets of any Employee Benefit Plan (or its related
trust) which is subject to Title I of ERISA or Section 4975
of the Code, but there is available an exemption from the
prohibited transaction rules under Section 406(a) of ERISA
and Section 4975 of the Code and such exemption is
immediately applicable to each transaction contemplated by
the Operative Documents to the extent that any other party
to such transaction is a "party in interest" as defined in
Section 3(14) of ERISA with respect to such plan assets.
(ii) Investment in Notes. In the event that the Notes
are determined to be securities, it is acquiring the Notes
for its own account for investment and not with a view to
any distribution (as such term is used in Section 2(11) of
the Securities Act) thereof, and if in the future it should
decide to dispose of its interest in the Notes, it
understands that it may do so only in compliance with the
Securities Act and the rules and regulations of the SEC
thereunder and any applicable state securities laws.
Neither it nor anyone authorized to act on its behalf has
taken or will take any action which would subject the
issuance or sale of any Note or any interest in the
Property, the Collateral or the Lease to the registration
requirements of Section 5 of the Securities Act. No
representation or warranty contained in this Section
4.2(b) shall include or cover any action or inaction of
Lessee or any Affiliate thereof whether or not purportedly
on behalf of any Participant or any of their Affiliates.
ARTICLE V
COVENANTS OF LESSEE
SECTION 5.1. Further Assurances. Lessee, at its own cost
and expense, will cause to be promptly and duly taken, executed,
acknowledged and delivered all such further acts, documents and
assurances as Lessor or Administrative Agent reasonably may
request from time to time in order to carry out more effectively
the intent and purposes of this Agreement and the other Operative
Documents and the Overall Transaction. Lessee, at its own cost
and expense, will cause all financing statements (including
precautionary financing statements), fixture filings and other
documents, to be recorded or filed at such places and times in
such manner, and will take all such other actions or cause such
actions to be taken, as may be necessary or as may be reasonably
requested by Lessor or Administrative Agent in order to
establish, preserve, protect and perfect the title of Lessor to
the Property, as the case may be, and Lessor's rights under
this Agreement and the other Operative Documents and to perfect,
preserve and protect the first and prior Lien of the Mortgage
on the Collateral. Lessee will maintain in full force and effect
all Permits. Upon any transfer of the Property, whether pursuant
to any provision of the Operative Documents (including Article VI
of the Lease) or after the occurrence of a Lease Event of Default
or otherwise, Lessee, at its own cost and expense, will cause to
be promptly and duly taken, executed, acknowledged and delivered
all such further acts, documents and assurances as Lessor or
Administrative Agent reasonably may request from time to time in
order to cause the Permits to be transferred or reissued in the
name of the Person acquiring the Property.
SECTION 5.2. Limitation on Fundamental Changes. None
of the Lessee or any of its Subsidiaries shall enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution),
except that any Subsidiary of Lessee may be merged or
consolidated with or into Lessee (provided that the Lessee
shall be the continuing or surviving corporation) or with or into
any one or more wholly owned Subsidiaries of the Lessee (provided
that the wholly owned Subsidiary or Subsidiaries shall be the
continuing or surviving corporation).
SECTION 5.3. Construction Matters; Changes. Construction
Agent may execute, without any consent of the Participants or
Administrative Agent, any change order, modification or addition
to the Facility to be built on the Land prior to its completion,
so long as such change order, modification or addition does not
materially and adversely affect the value, utility or economic
useful life of the Facility, as built, in accordance with the
Plans and Specifications for such Facility.
SECTION 5.4. Construction Progress. Construction Agent
shall (i) commence construction of the Facility on the Land prior
to the expiration of six months after the Acquisition Date;
provided, however that if the delay in the commencement of
construction is caused by a delay in the receipt of permits
required for construction of the Facility, the six-month period
may be extended for up to an additional six months so long as the
Construction Agent diligently pursues in good faith the issuance
of such permits, (ii) diligently pursues construction of the
Facility after commencement of construction, (iii) pays promptly
all sums payable in connection with such construction of the
Facility, and (iv) (other than as permitted by Section 3.3(d) and
other than mechanics' liens arising solely by operation of law
that relate back to the commencement of construction for amounts
not overdue), exercise diligent efforts to ensure that no party
is entitled to a mechanics' lien upon any Land based upon amounts
due but unpaid.
SECTION 5.5. Liens. Lessee shall not incur or suffer to
exist any Lien on the Property other than Permitted Liens.
SECTION 5.6. Limitation on Sale of Assets. Lessee shall
not convey, sell, lease, assign, transfer or otherwise dispose of
all or substantially all of its property, business or assets
(including receivables and leasehold interests) or all or
substantially all of the properties, business or assets
(including receivables and leasehold interests) of its
Subsidiaries in any single transaction or any series of related
transactions.
SECTION 5.7. Change of Name or Address. Lessee shall
provide the Administrative Agent (with sufficient copies for each
Participant) thirty (30) days' prior written notice of (i) any
change in name, identity or corporate structure of Lessee or the
address of the chief executive office and principal place of
business of Lessee or the office where Lessee keeps its records
concerning its accounts and the Property or (ii) any change with
respect to the places of business of Lessee whereby it will
thereafter have a place of business in other counties in the
Commonwealth of Massachusetts or will thereafter have no place of
business in the Commonwealth of Massachusetts.
SECTION 5.8. Environmental Matters. (a) Lessee shall
comply in all material respects at all times with Applicable Laws
affecting the Property, including all Environmental Laws, and
shall maintain at such Property only such quantities of Hazardous
Materials, if any, as are necessary for the completion of the
Facility and ongoing operation of Property or held for
resale by Lessee, and in all events, such Hazardous Materials
shall be held in compliance with all Applicable Laws; and (b)
Lessee shall not cause or permit the installation of any
underground storage tanks at the Property.
SECTION 5.9. Investigation by Authorities. Lessee shall
deliver to the Administrative Agent (with sufficient copies for
each Participant) promptly upon Lessee's receiving notice of
the intent by any Authority to (x) take an action which would
constitute a Condemnation or an Event of Taking in respect
of the Property, (y) investigate the Property for a material
violation of any Applicable Law on or at such Property, including
any Environmental Law, under which liability may be imposed upon
any Participant or under which liability having a Material
Adverse Effect may be imposed on Lessee or (z) investigate
the Property (other than routine fire, life-safety and similar
inspections) for any violation of Applicable Law under which
criminal liability may be imposed upon any Participant or
Administrative Agent under which liability having a Material
Adverse Effect may be imposed on Lessee.
SECTION 5.10. Financial Statements; Certificates; Other
Information. Lessee shall furnish to the Administrative Agent
(with sufficient copies for each Participant):
(a) as soon as available, but in any event within 90
days after the end of each fiscal year of the Lessee, a copy of
the consolidated balance sheets of the Lessee and its
consolidated Subsidiaries as at the end of such fiscal year and
the related consolidated statements of income and retained
earnings and of cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous year
reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the
audit, by Ernst & Young or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later
than 45 days after the end of each of the first three quarterly
periods of each fiscal year of the Lessee, the unaudited
consolidated balance sheets of the Lessee and its consolidated
Subsidiaries as at the end of each such quarter and the related
unaudited consolidated statements of income and retained earnings
and of cash flows of the Lessee and its consolidated Subsidiaries
for the portion of the fiscal year through the end of such
quarter and unaudited consolidated statements of income for such
quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible
Officer as being fairly stated in all material respects (subject
to normal year-end audit adjustments);
(c) promptly upon receipt thereof, copies of all
updates to the Environmental Audit;
(d) concurrently with the delivery of the financial
statements referred to in Section 5.10(a), a certificate of the
independent certified public accountants reporting on such
financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(e) concurrently with the delivery of the financial
statements referred to in Sections 5.10(a) and (b), a
certificate of a Responsible Officer stating that, to the best
knowledge of such Responsible Officer, the Lessee has observed or
performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and
the other Operative Documents to be observed, performed or
satisfied by it, and that such Officer has obtained no knowledge,
after due inquiry, of any Default, Event of Default, Event of
Loss, Condemnation or Casualty except as specified in such
certificate (such certificate to include, in the case of
any such condition or event, the nature and period of existence
thereof and what action Lessee has taken or is taking or proposes
to take with respect thereto); or
(f) following the Documentation Date and until the
termination of the Lease, to Administrative Agent, a certificate
of the Lessee signed by a Responsible Officer of the Lessee
promptly after Lessee obtains knowledge that there exists a Lease
Default, Lease Event of Default or Construction Agency Event of
Default, which such certificate shall describe such Lease
Default, Lease Event of Default or Construction Agency Event of
Default in reasonable detail, with a statement of Lessee's
action with respect thereto taken or proposed to be taken;
(g) promptly upon their becoming available, copies of
all financial statements, reports, notices and proxy statements
sent or made available generally by the Lessee or any of its
Subsidiaries and all regular and periodic reports and all final
registration statements and final prospectuses, if any, filed by
the Lessee or any of its Subsidiaries with any securities
exchange or with the SEC or any Authority succeeding to any of
its functions;
(h) promptly, such additional financial and other
information as any Participant may from time to time reasonably
request; and
(i) concurrently with the delivery to Lessor of a
notice or communication under the Lease Agreement, a copy of such
notice or communication.
All financial statements furnished pursuant to Sections 5.10(a)
and (b) shall be complete and correct in all material respects
and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such
accountants or Responsible Officer, as the case may be, and
disclosed therein).
SECTION 5.11. Securities. Lessee shall not, nor shall it
permit anyone authorized to act on its behalf to, take any action
which would subject the issuance or sale of the Property or the
Notes, Lease or other Operative Documents, or in any security or
lease the offering of which, for purposes of the Securities Act
or any state securities laws, would be deemed to be part of
the same offering as the offering of the aforementioned
securities or leases to the registration requirements of Section
5 of the Securities Act or any state securities laws.
SECTION 5.12. Interest Rates. With respect to each
determination of Yield pursuant to this Agreement and an
interest rate pursuant to the Loan Agreement, Lessee agrees to be
bound by Section 2.7 of the Loan Agreement in connection with the
calculation of Basic Rent and Supplemental Rent (to the extent it
is calculated in respect of the Overdue Rate).
SECTION 5.13. Payment of Obligations. Lessee shall, and
shall cause each of its Subsidiaries to, pay, discharge or
otherwise satisfy at or before maturity in accordance with
customary terms or before they become delinquent, as the case may
be, all its material obligations and liabilities of whatever
nature, except (a) when the amount or validity thereof is
currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Lessee
or any of its Subsidiaries, as the case may be, (b) for
delinquent obligations which do not have a Material Adverse
Effect and (c) for trade and other accounts payable in the
ordinary course of business in accordance with customary trade
terms and which are not overdue for a period of more than 90
days (or any longer period if longer payment terms are accepted
in the ordinary course of business) or, if overdue for more than
90 days (or such longer period), as to which a dispute exists and
adequate reserves in conformity with GAAP have been established
on the books of the Lessee and its Subsidiaries, as the case may
be.
SECTION 5.14. Conduct of Business and Maintenance of
Existence. Lessee shall, and shall cause each of its
Subsidiaries to, continue to engage in business of the same
general type as now conducted by it and preserve, renew
and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and
franchises necessary or (in the reasonable judgment of Lessee)
desirable in the normal conduct of its business except as
otherwise permitted by Section 5.2; and comply with all
Contractual Obligations and Requirements of Law except to the
extent that the failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse
Effect.
SECTION 5.15. Maintenance of Land; Insurance. Without
limiting Lessee's obligations under Article XI of the Lease,
Lessee shall, and shall cause each of its Subsidiaries to:
(a) keep all material property useful and necessary in
its business in good working order and condition (ordinary wear
and tear excepted); and
(b) in addition to, and not in limitation of, the
Insurance Requirements and the provisions of Article XI of the
Lease, maintain with financially sound and reputable insurance
companies insurance on all its properties in at least such
amounts and with only such deductibles as are usually maintained
by, and against at least such risks (but including, in any event,
public liability and product liability insurance) as are usually
insured against in the same general area, by companies engaged in
the same or a similar business; and furnish to the Administrative
Agent, full information as to the insurance carried; provided
that the Lessee may implement programs of self insurance in the
ordinary course of business and in accordance with industry
standards for a Lessee of similar size so long as reserves are
maintained in accordance with GAAP for the liabilities associated
therewith.
SECTION 5.16. Inspection of Land; Books and Records;
Discussions. Lessee shall, and shall cause each of its
Subsidiaries to, keep proper books of record and account in which
full, true and correct entries are made of all dealings and
transactions in relation to its business and activities which
permit financial statements to be prepared in conformity with
GAAP and all Requirements of Law; and permit representatives of
the Administrative Agent upon reasonable advance notice to visit
and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time and as
often as may reasonably be desired upon reasonable notice, and to
discuss the business, operations, properties and financial and
other condition of the Lessee and its Subsidiaries with officers
and employees thereof and with their independent certified public
accountants.
SECTION 5.17. Notices. Lessee shall promptly give notice
to the Administrative Agent:
(a) of any (i) default or event of default under any
Contractual Obligation of the Lessee or any of its Subsidiaries
which default or event of default has not been waived and would
have a Material Adverse Effect, or any other default or event of
default under any such instrument, agreement, guarantee or other
collateral document which, but for the proviso to clause (h) of
Article XVII of the Lease, would have constituted a Lease Default
or Lease Event of Default under this Agreement, or (ii)
litigation, investigation or proceeding which may exist at any
time between the Lessee or any of its Subsidiaries and any
Authority, or, with respect to the Property, receipt of any
notice of any environmental claim or assessment against the
Lessee or any of its Subsidiaries by any Authority, which in any
such case would have a Material Adverse Effect;
(b) of any litigation or proceeding affecting the
Lessee or any of its Subsidiaries (i) in which more than
$10,000,000 of the amount claimed is not covered by insurance or
(ii) in which injunctive or similar relief is sought which if
obtained would have a Material Adverse Effect;
(c) of the following events, as soon as practicable
after, and in any event within 30 days after, Lessee knows or has
reason to know thereof: (i) the occurrence of any Reportable
Event with respect to any Single Employer Plan which Reportable
Event could have a Material Adverse Effect, or (ii) the
institution of proceedings or the taking of any other action by
PBGC, the Lessee or any Commonly Controlled Entity to terminate,
withdraw or partially withdraw from any Plan and, with respect to
a Multiemployer Plan, the Reorganization or Insolvency of the
Plan, in each of the foregoing cases which could have a Material
Adverse Effect, and in addition to such notice, deliver to the
Administrative Agent and each Participant whichever of the
following may be applicable: (A) a certificate of a Responsible
Officer of the Lessee setting forth details as to such Reportable
Event and the action that the Lessee or such Commonly Controlled
Entity proposes to take with respect thereto, together with a
copy of any notice of such Reportable Event that may be required
to be filed with PBGC, or (B) any notice delivered by PBGC
evidencing its intent to institute such proceedings or any notice
to PBGC that such Plan is to be terminated, as the case may
be; and
(d) of a material adverse change known to the Lessee
or its Subsidiaries in the business, assets, condition (financial
or otherwise) or results of operations of the Lessee and its
Subsidiaries taken as a whole.
Each notice pursuant to this Section 5.17 shall be accompanied by
a statement of a Responsible Officer setting forth details of the
occurrence referred to therein and (in the cases of clauses (a)
through (d)) stating what action the Lessee proposes to take with
respect thereto.
SECTION 5.18. Financial Condition Covenants. Lessee hereby
agrees that, so long as the Commitments remain in effect or any
amount is owing to any Participant or the Administrative Agent
hereunder or under any other Operative Document, Lessee shall
not, and (except with respect to Section 5.18) shall not permit
any of its Subsidiaries to, directly or indirectly:
(a) Indebtedness to EBITDA. Permit the ratio of (i)
total Indebtedness of Lessee and its Subsidiaries on a
consolidated basis at any date during a period set forth below to
(ii) EBITDA of Lessee and its Subsidiaries on a consolidated
basis for the period of four consecutive fiscal quarters most
recently ended prior to such date for which Lessee has delivered
the financial statements contemplated by Section 5.10(a) or (b),
as the case may be, to be greater than the ratio set forth below
opposite the "Test Period" during which such date occurs:
Test Period Ratio
Documentation Date
01/01/98- 03/31/98 3.40 to 1.0
04/01/98- 06/30/98 3.25 to 1.0
07/01/98- thereafter 3.00 to 1.0
(b) Interest Coverage. Permit, for any period of four
consecutive fiscal quarters most recently ended, the ratio of (i)
EBITDA of Lessee and its Subsidiaries on a consolidated basis for
such period to (ii) the amount of interest expense, both expended
and capitalized, of Lessee and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, for such period on
the aggregate principal amount of their consolidated
Indebtedness, to be less than 3.00 to 1.00.
SECTION 5.19. Limitation on Transactions with Affiliates.
None of the Lessee or any of its Subsidiaries shall enter into
any transaction, including any purchase, sale, lease or exchange
of property or the rendering of any service, with any Affiliate
unless such transaction is (a) otherwise permitted under this
Agreement, (b) in the ordinary course of the Lessee's or such
Subsidiary's business and (c) upon fair and reasonable terms no
less favorable to the Lessee or such Subsidiary, as the case may
be, than it would obtain in a hypothetical comparable
arm's-length transaction with a Person which is not an Affiliate
(it being understood that such fairness and reasonableness shall,
in the case of arrangements with joint ventures with unaffiliated
third parties, be determined in the context of all arrangements
between the Lessee and its Subsidiaries, on the one hand, and
such joint venture, on the other hand).
ARTICLE VI
OTHER COVENANTS AND AGREEMENTS
SECTION 6.1. Cooperation with Lessee. Administrative Agent
and each Participant shall, to the extent reasonably requested by
Lessee (but without assuming additional liability on account
thereof), at Lessee's expense, cooperate to allow Lessee to (a)
perform its covenants contained in Section 5.1, including at any
time and from time to time, upon the reasonable request of
Lessee, to promptly and duly execute and deliver any and all such
further instruments, documents and completed financing statements
(and continuation statements related thereto) as Lessee may
request in order to perform such covenants, (b) further
Lessee's requirements as lessee of the Property, including to
file or cause to be filed any completed statement with respect to
any tax abatements or other requirements, (c) execute and
acknowledge consents or joinders and otherwise assist with
respect to actions permitted under Section 8.3 of the Lease,
including such actions as Lessee may request on the Acquisition
Date (such as executing reciprocal easement agreements and
executing documents described in Section 8.3 of the Lease which
require Lessor's signature), and (d) upon transfer of
the Property to Lessee or any third party, minimize transfer and
mortgage recording taxes as long as by doing so no Administrative
Agent or Participant shall have any continuing liability with
respect thereto.
SECTION 6.2. Covenants of Lessor.
(a) Discharge of Liens. Lessor covenants that it will
not create or permit to exist at any time, and will, at its own
cost and expense, promptly take such action as may be necessary
duly to discharge, or to cause to be discharged, all Lessor Liens
attributable to it. Notwithstanding the foregoing, the Lessor
shall not be required to so discharge any such Lessor Lien while
the same is subject to a Permitted Contest; provided, however,
that the Lessor shall discharge any such Lessor Lien attributable
to it, whether or not subject to a Permitted Contest as provided
above, upon the purchase of the Property by Lessee pursuant to
the Lease.
(b) Change of Principal Place of Business. Lessor
shall give prompt notice to Administrative Agent, if Lessor's
principal place of business or chief executive office, or the
office where the records concerning the accounts or contract
rights relating to the Property or the Overall Transaction are
kept, shall cease to be located at 11 Madison Avenue, 20th
Floor, New York, New York 10010 or if it shall change its name or
identity.
(c) Exchange of Land. Subject to the provisions of
this Section, Lessor agrees that as long as this Lease is in
effect, Lessor will release from the Lease the parcel of Land
(the "Exchange Parcel") shown in the plan in Exhibit N, in
exchange for the submission to the Lease of the additional parcel
of land (the "Additional Parcel") shown in the plan in Exhibit O.
To make such exchange, Lessor shall give a notice in
writing to Lessee 15 (fifteen) days prior to the proposed day of
exchange (the "Exchange Date") that contains a description of the
Land (excluding the Exchange Parcel to be released and including
the Additional Parcel).
On the Exchange Date, Lessee shall transfer to Lessor
the Additional Parcel, free and clear of any kind of liens or
encumbrances and, thereafter, the Additional Land shall be
considered for all purposes hereof and in the other Operative
Documents "Land".
The obligation of Lessor to release the Exchange Land
shall be subject to (i) the amendment of the Operative Documents
to replace the description of the Land with the description of
Land that excludes the Exchange Parcel and includes the
Additional Parcel, to the satisfaction of Administrative Agent,
and (ii) the fulfillment to the satisfaction of (including, with
respect to writings, such writings being in form and substance
reasonably satisfactory to Administrative Agent or, where
expressly provided below, the Required Entities), or the waiver
in writing by, Administrative Agent (at the direction of the
Required Entities) of the conditions precedent set forth in
Section 3.2 (in addition to the conditions precedent set forth in
Section 3.1) on or prior to the Exchange Date (except that the
obligation of any party hereto shall not be subject to such
party's own performance or compliance). All references in Section
3.2. to Property shall be understood to be references to the
Additional Parcel and all references to the Advance Date shall be
understood to be references to the Exchange Date.
(d) Loan Agreement. Lessor hereby agrees that, so
long as the Lease is in effect, Lessor shall not consent to or
permit any amendment of the terms and provisions of the Loan
Agreement, the Mortgage or any Note whether or not any Lease
Event of Default shall have occurred and be continuing, in each
case without the prior written consent of the Lessee, except that
without such consent, (i) Lessor may waive performance by
Administrative Agent of obligations to Lessor the non-performance
of which does not adversely affect Lessee and (ii) Lessor may
consent to or permit amendment of the terms and provisions of the
Loan Agreement, the Mortgage or any Note for the purpose of
curing any ambiguity, inconsistency or omission, or of curing,
correcting or supplementing any defective provision contained
therein, or in regard to matters or questions arising thereunder,
as the parties thereto may deem necessary or desirable and not
inconsistent with this Agreement and which shall not adversely
affect Lessee.
(e) Tax Attributes. Prior to the Termination Date, no
Participant shall claim any federal or state tax attributes or
benefits (including depreciation) relating to the Property unless
required to do so by an appropriate taxing authority or after a
clearly applicable change in Applicable Law or as a protective
response to a proposed adjustment by an Authority; provided,
however, that if an appropriate taxing authority shall require
any Participant to claim any such federal or state tax attributes
or benefits, such Person shall promptly notify Lessee thereof and
shall permit the Lessee to contest such requirement in a manner
similar to the contest rights provided in, and subject to any
applicable limitation to a context contained in, Section
7.2(b).
(f) Maintenance of Record Title. Lessor hereby agrees
to maintain record title to the Property and not transfer same to
Persons other than Affiliates of Lessor, except as contemplated
in the Operative Documents or in connection with the exercise of
remedies under the Lease upon the occurrence of an Event of
Default.
SECTION 6.3. Restrictions on and Effect of Transfer. No
Lender shall assign, convey or otherwise transfer (including
pursuant to a participation) all or any portion of its right,
title or interest in, to or under any of the Operative Documents
except that (i) without the prior written consent of
Administrative Agent or the Lessee(x) any Lender may pledge or
assign all or any portion of its interest to any Federal Reserve
Bank in accordance with applicable law and (y) any Lender may
transfer all or any portion of its interest to any of its
Affiliates or to any other existing Participant and (z) any
Lender may enter into a participation with a Loan Participant
pursuant to Section 6.4. and (ii) with the prior written consent
of Administrative Agent, which shall not be unreasonably
withheld, and, provided a Lease Event of Default does
not exist, the Lessee (which consent shall not be unreasonably
withheld), any Lender may transfer any or all of such right,
title and interest upon the satisfaction of each of the following
conditions:
(a) Required Notice and Documentation Date. Any
Lender desiring to effect a transfer of its interest shall give
written notice of each such proposed transfer to the Lessee and
Administrative Agent at least ten (10) days prior to such
proposed transfer (other than with respect to transfers of a
Lender's interest on the Documentation Date, notice of which may
be given on the Documentation Date), setting forth the name of
such proposed transferee, the percentage or interest to be
retained by such Lender, if any, and the date on which such
transfer is proposed to become effective. All reasonable
out-of-pocket costs incurred by Administrative Agent in
connection with any such disposition by a Lender under this
Section 6.3 shall be borne by such Lender. In the event of a
transfer under this Section 6.3, any expenses incurred by the
transferee in connection with its review of the Operative
Documents and its investigation of the transactions contemplated
thereby shall be borne by such transferee or the relevant Lender,
as they may determine, but shall not be considered costs and
expenses which the Lessee is obligated to pay or reimburse under
Section 8.9. The applicable Lender or transferee shall pay to
Administrative Agent for each transfer a fee of $3,500.
(b) Assumption of Obligations. Any transferee
pursuant to this Section 6.3 shall have executed and delivered to
Administrative Agent and Lessor a letter in substantially the
form of the Investor's Letter attached hereto as Exhibit I (the
"Investor's Letter"), and thereupon the obligations of the
transferring Lender under the Operative Documents shall be
proportionately released and reduced to the extent of such
transfer. Upon any such transfer as above provided, the
transferee shall be deemed to be bound by all obligations
(whether or not yet accrued) under, and to have become a party
to, all Operative Documents to which its transferor was a party,
shall be deemed the pertinent "Lender" for all purposes of the
Operative Documents and shall be deemed to have made that portion
of the payments pursuant to this Agreement previously made or
deemed to have been made by the transferor represented by the
interest being conveyed; and each reference herein and in the
other Operative Documents to the pertinent "Lender" shall
thereafter be deemed a reference to the transferee, to the extent
of such transfer, for all purposes.
Upon any transfer pursuant to this Section 6.3, Administrative
Agent shall deliver to Lessor and Lessee, a copy of the
Investor's Letter. The information contained therein shall be
deemed to reflect the relevant information for such new Lender
and the Commitment of such new Lender (and the revised Commitment
of the transferor Lender if it shall not have transferred its
entire interest). Notwithstanding any transfer as provided in
this Section 6.3, the transferor shall be entitled to all
benefits accrued and all rights vested prior to such transfer,
including rights to indemnification under this Agreement or any
other Operative Document.
(c) Representations and Warranties. Notwithstanding
anything to the contrary set forth above, no Lender may assign,
convey or transfer its interest to any Person, unless such Person
shall have delivered to Administrative Agent, Lessor and the
Lessee a certificate confirming the accuracy of the
representations and warranties set forth in Section 4.2(b) with
respect to such Person (other than as such representation or
warranty relates to the execution and delivery of Operative
Documents).
(d) Amounts. Any transfer of Notes shall be in a face
principal amount which is equal to or greater than $5,000,000
and an integral multiple of $1,000,000, or the entire amount of
the Note.
SECTION 6.4. Covenants and Agreements of Lenders.
(a) Participations. Each Lender covenants and agrees
that it will not grant participations in its Notes to any Person
(a "Loan Participant") unless such Person (i) is a bank or other
financial institution (provided that any foreign transferee must
comply with Section 7.3) and (ii) represents and warrants, in
writing, to such Lender for the benefit of the Lenders,
Lessor and Lessee as set forth in Section 4.2(b). Any such
Person shall require any transferee of its interest in the Notes
to make the representations and warranties set forth in the
preceding sentence, in writing, to such Person for its benefit
and the benefit of the Participants and Lessee. In the event of
any such sale by a Lender of a participating interest to a Loan
Participant, such Lender's obligations under this Agreement and
under the other Operative Documents shall remain unchanged, such
Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of its Note for all
purposes under this Agreement and under the other Operative
Documents, and Lessor, Administrative Agent and, except as set
forth in Section 6.4(b), Lessee shall continue to deal solely and
directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and under the other
Operative Documents. In the case of any such participation, each
Loan Participant shall be deemed to have the right of set-off in
respect of its participation to the same extent as if the amount
of its participation were owing directly to a Lender under the
Operative Documents. In the event of any such sale by a Lender
of a participatory interest to a Loan Participant, the selling
Lender shall not grant any such Loan Participant any voting
rights or veto power over any action by the selling Lender
under this Agreement or any other Operative Document, except that
the selling Lender may agree not to take any action which would
require the consent of such selling Lender under Section
8.5 without the consent of such Loan Participant.
(b) Transferee Indemnities. Each purchasing
Participant and Loan Participant shall be entitled to the
benefits of Sections 2.11 and 2.12 of the Loan Agreement with
respect to its Notes or participation in the Loans outstanding
from time to time; provided, that no Loan Participant shall be
entitled to receive any greater amount pursuant to such Sections
than the transferor Lender would have been entitled to receive in
respect of the amount of the Notes or participation transferred
by such transferor Lender to such Loan Participant had no such
transfer or participation occurred.
(c) Prepayment by Lessor of Notes. Except as
expressly permitted by the Operative Documents, Lessor shall not
voluntarily prepay the Notes, or any part thereof, without the
written consent of the Lessee; provided, however, that Lessor
shall prepay, all or any portion of the Notes at any time upon
written instructions from Lessee and receipt of Supplemental Rent
equal to the amount of the prepayment.
(d) Non-Interference. The Lenders and Administrative
Agent each covenant that it will not take or cause to be taken
any affirmative act that interferes in Lessee's use of the
Property in accordance with the Lease during the Lease Term, so
long as no Lease Event of Default has occurred and is continuing;
it being agreed that Lessee's remedies for breach of the
foregoing covenant shall be limited to a claim for damages or the
commencement of proceedings to enjoin such breach. Such right is
independent of, and shall not affect, Lessor's rights otherwise
to initiate legal action to enforce the obligations of Lessee
under the Lease.
SECTION 6.5. Future Lenders. Each Lender, by its
acceptance of its Note or Notes, shall be deemed to be bound by
and, upon compliance with the requirements of Section 6.3 or 6.4,
as applicable, will be entitled to all of the benefits of the
provisions of, this Agreement.
SECTION 6.6. Administrative Agent under Participation
Agreement and Mortgage. For purposes of this Agreement and the
Mortgage, the parties hereto agree that Administrative Agent
shall be the administrative agent of the Lenders and the Lessor,
with Administrative Agent's duties and obligations hereunder
being subject to the limitations, and Administrative Agent being
entitled to the rights, set forth in Article VII of the Loan
Agreement.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. General Indemnification. Lessee agrees,
whether or not any of the transactions contemplated hereby shall
be consummated, to assume liability for, and to indemnify,
protect, defend, save and keep harmless each Indemnitee (on
an after-tax basis in accordance with Section 7.5) from and
against any and all Claims that may be imposed on, incurred by or
asserted against such Indemnitee (including Claims arising out of
such Indemnitee's negligence), whether or not such Indemnitee
shall also be indemnified as to any such Claim by any other
Person and whether or not such Claim arises or accrues prior to
the initial Advance Date, during the Lease Term or after the
Termination Date, in any way relating to or arising out of (a)
any of the Operative Documents or any of the transactions
contemplated thereby or any investigation, litigation or
proceeding in connection therewith, and any amendment,
modification or waiver in respect thereof; or (b) the
Property or any part thereof or interest therein; or (c) the
acquisition, mortgaging, design, construction, preparation,
installation, inspection, delivery, non-delivery, acceptance,
rejection, purchase, ownership, possession, occupancy, rental,
lease, sublease, repossession, maintenance, repair, alteration,
modification, addition or substitution, storage, transfer or
title, redelivery, use, financing, refinancing, operation,
condition, sale (including any sale pursuant to Section 6.3 of
the Lease or any sale pursuant to Article XVIII of the Lease),
return or other disposition of all or any part of the Property or
any interest therein or the imposition of any Lien (or incurrence
of any liability to refund or pay over any amount as a result of
any Lien) thereon, including: (i) Claims or penalties arising
from any violation of law, including Applicable Law, or in tort
(strict liability or otherwise), (ii) loss of or damage to the
environment (including investigation costs, clean-up costs,
response costs, remediation and removal costs, costs of
corrective action, costs of financial assurance, and all other
damages, costs, fees and expenses, fines and penalties, including
natural resource damages), or death or injury to any Person, and
all expenses associated with the protection of wildlife, aquatic
species, vegetation, flora and fauna, and any mitigative action
required by or under Environmental Laws, (iii) latent or other
defects, whether or not discoverable by Lessee or any Indemnitee,
(iv) any Claims resulting from the existence or Release of any
Hazardous Materials at, under, above or from the Property and (v)
any Claim for patent, trademark, tradename or copyright
infringement; (d) the offer, issuance, sale or delivery of the
Notes; (e) the breach by Lessee of any representation or warranty
made by it or deemed made by it in any Operative Document; (f)
the transactions contemplated hereby or by any other Operative
Document, in respect of the application of Parts 4 and 5 of
Subtitle B of Title I of ERISA and any prohibited transaction
described in Section 4975(c) of the Code; (g) any other
agreement entered into or assumed by Lessee in connection
with the Property (including, in each case, matters based on or
arising from the negligence of any Indemnitee); (h) the
imposition of any Lien on the Property other than Lessor Liens;
(i) enforcing the Operative Documents or exercising remedies
thereunder; (j) any violation of any Applicable Law by Lessee or
its directors, officers, employees, administrative agents or
servants; or (k) any amount for which an indemnification payment
would be payable to any of the Agents under Section 7.7 of the
Loan Agreement.
Lessee shall not be required to indemnify under this Section
7.1 for (1) as to an Indemnitee, any Claim to the extent
resulting from the willful misconduct or gross negligence of such
Indemnitee (other than any gross negligence or willful misconduct
imputed as a matter of law to such Indemnitee solely by reason of
its participation in the Transactions and entering into the
Operative Documents, its interest in the Property or the acts or
omissions of the Lessee), (2)as to any Indemnitee, any Claim for
bodily injury or property damage to the extent resulting from the
negligence or willful misconduct of such Indemnitee where such
negligence or willful misconduct occurs on the Land or in the
Facility; (3) any Claims in respect of Taxes (such Claims to be
subject to Section 7.2), other than a payment necessary and
sufficient to cover any Taxes which may be imposed as a result of
such indemnity payment under this Section 7.1 on an after-tax
basis, provided, that this clause (3) does not apply to any taxes
or penalties included in Claims against which the Indemnitee is
provided an indemnification under clause (f) of this Section 7.1,
(4) as to an Indemnitee, any Claim resulting from Lessor Liens
which such Indemnitee is responsible for discharging under the
Operative Documents, (5) voluntary transfers by Lessor of the
Property, except for transfers of the Property required by the
Lessee or arising as a result of the exercise of remedies under
the Lease; and (6) as to any Indemnitee, any Claim arising from
legal proceedings commenced against such Indemnitee by any Loan
Participant (other than legal proceedings arising from or
relating to any act or omission of Lessee or Guarantor). In the
event that the indemnification provided for herein is prohibited
by Applicable Law, Lessee will contribute to a Claim to the
maximum extent permitted by law, and indemnification by Lessee
for events which occur during the term of the Lease or while
Lessee is in possession of the Property, will not be affected by
a termination of the Lease.
SECTION 7.2. General Tax Indemnity.
(a) Tax Indemnity. Lessee shall indemnify and hold
each Indemnitee harmless (on an after-tax basis in accordance
with Section 7.5) from and against, any and all Taxes, howsoever
imposed, on or with respect to any Indemnitee, the Property or
any portion thereof, any Operative Document or Lessee or any
sublessee or user of the Property by any Authority in connection
with or in any way relating to (i) the acquisition, mortgaging,
design, construction, preparation, installation, inspection,
delivery, non-delivery, acceptance, rejection, purchase,
ownership, possession, rental, lease, sublease, repossession,
maintenance, repair, alteration, modification, addition or
substitution, storage, transfer of title, redelivery, use,
financing, refinancing, operation, condition, sale, return or
other application or disposition of all or any part of the
Properties or the imposition of any Lien (or incurrence of any
liability to refund or pay over any amount as a result of any
Lien) thereon, (ii) Basic Rent or Supplemental Rent or the
receipts or earnings arising from or received with respect to the
Property or any part thereof, or any interest therein or any
applications or dispositions thereof, (iii) any other amount paid
or payable pursuant to the Notes or any other Operative
Documents, (iv) the Property or any part thereof or any
interest therein, (v) all or any of the Operative Documents, any
other documents contemplated thereby and any amendments and
supplements thereto, and (vi) otherwise with respect to or in
connection with the transactions contemplated by the Operative
Documents; provided, however, that the indemnification obligation
of this Section 7.2(a) shall not apply to Taxes (i) based upon or
measured by the Indemnitee's net income; (ii) characterized under
local law as franchise, net worth, or shareholder's capital
(excluding, however, any value-added, license, property or
similar Taxes); (iii) Taxes based upon the voluntary transfer,
assignment or disposition by Administrative Agent, Lessor or any
Participant of any interest in the Property (other than a
transfer pursuant to the exercise of remedies under the Operative
Documents, transfers pursuant to the exercise of the Remarketing
Option or Purchase Option, a transfer to Lessee or otherwise
pursuant to the Lease); (iv) which are Federal net income taxes
(except to the extent covered to make payments, where required,
on an after-tax basis); (v) imposed by state and local
governments as net income Taxes, except incremental Taxes imposed
on the Lessor by the Commonwealth of Massachusetts; and (vi)
attributable to gross negligence or willful misconduct of the
Indemnitee. Notwithstanding the proviso of the preceding
sentence, Lessee shall pay or reimburse, and indemnify and hold
harmless, any Indemnitee which is not a United States Person as
defined in Section 7701(a)(30) of the Code, and which has
complied with Section 7.3, from any deduction or withholding of
any United States Federal, state or local income tax. All
indemnities contained in this Section 7.2(a) are expressly made
for the benefit of, and shall be enforceable by, each Indemnitee.
(b) Contests. Lessee shall pay at the time and in the
manner set out in Section 7.2(c) any Taxes subject to
indemnification pursuant to Section 7.2(a); provided, however,
that Lessee shall be under no obligation to pay any such Tax so
long as the payment of such Tax is not delinquent or is being
contested by a Permitted Contest. If any claim is made against
any Indemnitee solely for any Tax which is subject to
indemnification as provided in Section 7.2(a), Indemnitee shall
as soon as practicable, but in no event more than 20 days after
receipt of written notice, notify the Lessee and if, in the
reasonable opinion of tax counsel to the Indemnitee in the case
of any Tax that may reasonably be expected to exceed $5,000,000
in the aggregate, there exists a basis to contest such Tax which
satisfies the requirements of ABA Formal Opinion 85-352 (and if
the provisos of the definition of "Permitted Contest" continue to
be satisfied and so long as no Event of Default exists), the
Lessee at its expense may, to the extent permitted by Applicable
Law, contest such Tax; provided that in all other circumstances,
upon notice from the Lessee to such Indemnitee that there exists
a basis to contest any such Tax which satisfies the requirements
of ABA Formal Opinion 85-352 (as supported by an opinion of tax
counsel to the Indemnitee), the Indemnitee, at the Lessee's
expense, shall contest any such Tax. The Lessee shall pay
all expenses incurred by the Indemnitee in contesting any such
Tax (including all reasonable attorneys' and accountants' fees),
upon written demand by the Indemnitee. The Indemnitee shall have
the right to participate in the conduct of any proceedings
controlled by the Lessee and the Indemnitee shall in all events
be kept informed of material developments relative to such
proceedings. The Lessee shall have the right to participate in
the conduct of any proceedings controlled by the Indemnitee to
the extent that such participation by such Person does not
interfere with the Indemnitee's control of such contest and the
Lessee shall in all events be kept informed, to the extent
practicable, of material developments relative to such
proceedings. The Indemnitees agree that a contested claim will
not be settled or compromised without the Lessee's prior written
consent (which consent shall neither be unreasonably delayed nor
withheld), unless the provisos of the definition of a "Permitted
Contest" would not continue to be satisfied. Each Indemnitee
shall endeavor to settle or compromise any such contested claim
in accordance with written instructions from the Lessee. The
failure of an Indemnitee to timely contest a claim against it for
any Tax for which it has an obligation to contest under this
Section 7.2(b) shall relieve the Lessee of its obligations to
such Indemnitee under Section 7.2(a) only to the extent such
failure results in the loss of an effective contest. If
Applicable Law requires the payment of a contested Tax as a
condition to its being contested, and the Lessee chooses to
contest such Tax or to direct the Indemnitee to contest such Tax,
then the Lessee shall provide the Indemnitee with the funds to
pay such Tax, as a non-interest bearing loan by the Lessee to the
Indemnitee to be repaid by any recovery of such Tax and any
remaining unpaid amount to reduce the obligations to indemnify
for such Tax. Lessee shall indemnify the Indemnitee on a
grossed-up basis (in accordance with Section 7.5) for and against
any adverse tax consequences of such interest-free loan. In the
event that the Indemnitee receives a refund (or other like
adjustment) in respect of any Tax for which the Indemnitee has
been reimbursed by Lessee, the Indemnitee shall immediately remit
the amount of such refund to Lessee, net of all costs and
expenses incurred by such Indemnitee, together with any interest
actually received thereon.
(c) Payments. Any Tax indemnifiable under Section
7.2(a) shall be paid directly when due to the applicable taxing
authority if direct payment is practicable and permitted. If
direct payment to the applicable taxing authority is not
permitted or is otherwise not made, any amount payable to an
Indemnitee pursuant to Section 7.2(a) shall be paid within thirty
(30) days after receipt of a written demand therefor from such
Indemnitee accompanied by a written statement describing in
reasonable detail the amount so payable, but not before the date
that the relevant Taxes are due. Any payments made pursuant to
Section 7.2(a) directly to the Indemnitee entitled thereto or the
Lessee, as the case may be, shall be made in immediately
available funds at such bank or to such account as specified by
the payee in written directions to the payor, or, if no such
direction shall have been given, by check of the payor payable to
the order of the payee by certified mail, postage prepaid at its
address as set forth in this Participation Agreement. Upon the
request of any Indemnitee with respect to a Tax that Lessee is
required to pay, Lessee shall furnish to such Indemnitee the
original or a certified copy of a receipt for Lessee's payment of
such Tax or such other evidence of payment as is reasonably
acceptable to such Indemnitee.
(d) Reports. If any report, return or statement is
required to be filed with respect to any Taxes that are subject
to indemnification under Section 7.2(a), the Lessee shall, if
Lessee is permitted by Applicable Law, timely prepare and file
such report, return or statement; provided, however, that if
Lessee is not permitted by Applicable Law to file any such
report, Lessee will promptly so notify the appropriate
Indemnitee, in which case the Indemnitee will file any such
report after preparation thereof by Lessee. Lessee will deliver
any such return, together with immediately available funds for
payment of any Tax due, to such Indemnitee at least five (5) days
in advance of the date such return or payment is due.
SECTION 7.3. Withholding Tax Exemption. Each Lender that
is not a United States Person (as defined in Section 7701(a)(30)
of the Code) for federal income tax purposes (i) represents to
the Lessee, the Lessor and the Administrative Agent that under
applicable law and treaties in effect on the date hereof or on
the date it becomes a Lender pursuant to Section 6.3, as the case
may be, no taxes are required to be withheld with respect to any
payments to be made to such Participant under the Operative
Documents, (ii) (a) agrees to furnish to the Lessee, the Lessor
and the Administrative Agent, on or before the first Payment Date
occurring after it has become a "Lender" either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 (wherein such Lender claims entitlement to complete
exemption from U.S. federal withholding tax on all interest
payments hereunder), or (b) in the case of a Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of "portfolio
interest," a U.S. Internal Revenue Service Form W-8 (and, if a
Lender delivers a Form W-8, a statement under the penalties of
perjury that such Lender is not a "Bank" under Section
881(c)(3)(A) of the Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and has not
been treated as a bank for purposes of any tax, securities law or
other filing or submission made to any Authority, any application
made to a rating agency or qualification for any exemption from
tax, securities law or other legal requirements as of the
Documentation Date), (iii) agrees (for the benefit of the Lessee,
the Lessor and the Administrative Agent), to the extent it may
lawfully do so at such time, to provide the Lessee, the Lessor
and the Administrative Agent, a new Form 4224, Form 1001 or Form
W-8 upon the expiration or obsolescence of any previously
delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed
and completed by such Lender, and to comply from time to time
with all applicable U.S. laws and regulations with regard to
such withholding tax exemption and (iv) agrees to obtain such
extensions of time for filing and complete such forms or
certifications as may reasonably be requested by Lessee or the
Administrative Agent. Notwithstanding any provision in this
Section 7.3 to the contrary, the Lessee shall have no obligation
to pay any amount to or for the account of any Lender on account
of any taxes pursuant to this Section 7.3 to the extent that such
amount results from (x) the failure of any Lender to comply with
its obligations pursuant to this Section 7.3 or (y) any
representation or warranty made or deemed to be made by any
Lender pursuant to this Section 7.3 proving to have been
incorrect, false or misleading in any material respect when so
made or deemed to be made.
SECTION 7.4. Excessive Use Indemnity. In the event that at
the end of the Lease Term: (a) Lessee elects the Remarketing
Option; and (b) after paying to Lessor all amounts due under
Sections 6.2 and 6.3 of the Lease, including Proceeds and the
aggregate Guaranteed Residual Amount, Lessor does not have
sufficient funds to reduce the Lease Balance to zero, then Lessee
shall promptly pay over to Lessor the shortfall unless Lessee
delivers a report from an independent appraiser in form and
substance satisfactory to the Required Entities which establishes
that the decline in value in the Property from the aggregate
amount anticipated for such date in the Appraiser's report
delivered with respect to such Property on or about the
Acquisition Date was not due to the excessive use of the
Property, failure to maintain the Property, modifications or
restorations which reduce the value of the Property, any adverse
change in the environmental condition of the Property, any
easements granted pursuant to Section 8.3 of the Lease or Section
3.4 of the Construction Agency Agreement which reduce the value
of the Property, or any defect or exception to title of the
Property or any other cause or condition within the power of
Lessee to control or affect differing from ordinary wear
and tear.
SECTION 7.5. Gross Up. If an Indemnitee shall not be
entitled to a corresponding and equal deduction with respect to
any payment or Tax which Lessee is required to pay or reimburse
under any other provision of this Article VII (each such payment
or reimbursement under this Article VII, an "original payment")
and which original payment constitutes income to such Indemnitee,
then Lessee shall pay to such Indemnitee on demand the amount of
such original payment on a grossed-up basis such that, after
subtracting all Taxes imposed on such Indemnitee with respect to
such original payment by Lessee (including any Taxes otherwise
excluded by Section 7.2(b) and assuming for this purpose that
such Indemnitee was subject to taxation at the highest Federal
marginal rates applicable to widely held corporations for the
year in which such income is taxable and at an assumed state and
local income tax rate of 8.5%), such payments shall be equal to
the original payment to be received or paid; provided, however,
that Lessee shall not be required to make any grossed-up payment
to any Indemnitee that is not organized under the laws of the
United States or a state thereof if such Indemnitee fails to
comply with the requirements of Section 7.3.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Survival of Agreements. The representations,
warranties, covenants, indemnities and agreements of the parties
provided for in the Operative Documents, and the parties'
obligations under any and all thereof, shall survive the
execution and delivery and the termination or expiration of this
Agreement and any of the Operative Documents, including the
termination of the Lease with respect to the Property, the
transfer of the interest in the Property by Lessee as provided in
any other Operative Document, any disposition of any interest of
Lessor in the Property, the purchase and sale of the Notes,
payment therefor and any disposition thereof and shall be and
continue in effect notwithstanding any investigation made by any
party hereto or to any of the other Operative Documents and the
fact that any such party may waive compliance with any of the
other terms, provisions or conditions of any of the Operative
Documents.
SECTION 8.2. No Broker, etc. Except for the Arranger (the
fees and expenses of which shall be payable by the Lessee in
accordance with the provisions of the Operative Documents), each
of the parties hereto represents to the others that it has not
retained or employed any broker, finder or financial advisor to
act on its behalf in connection with this Agreement, nor has it
authorized any broker, finder or financial adviser retained or
employed by any other Person so to act, nor has it incurred any
fees or commissions to which Lessor might be subjected by virtue
of their entering into the transactions contemplated by this
Agreement. Any party who is in breach of this representation
shall indemnify and hold the other parties harmless from and
against any liability arising out of such breach of this
representation.
SECTION 8.3. Notices. Unless otherwise specified herein,
all notices, requests, demands or other communications to or upon
the respective parties hereto shall be made in writing and shall
be deemed to have been given (i) in the case of notice by letter,
the earlier of when delivered to the addressee by hand or courier
if delivered on a Business Day and, if not delivered on a
Business Day, the first Business Day thereafter or on the third
Business Day after depositing the same in the mails, registered
or certified mail, postage prepaid, return receipt requested,
addressed as provided on Schedule III hereto, and (ii) in the
case of notice by facsimile or bank wire, when receipt is
confirmed if delivered on a Business Day and, if not delivered on
a Business Day, the first Business Day thereafter, addressed as
provided on Schedule III hereto, or to such other address as any
of the parties hereto may designate by written notice. Copies of
all notices given by facsimile or bank wire shall be
contemporaneously sent by overnight courier.
SECTION 8.4. Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
agreement.
SECTION 8.5. Amendments. Except as otherwise specifically
provided in any Operative Document, neither this Agreement nor
any of the other Operative Documents nor any of the terms hereof
or thereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by
the party against which the enforcement of the termination,
amendment, supplement, waiver or modification shall be sought;
and no such termination, amendment, supplement, waiver or
modification shall be effective unless a signed copy thereof
shall have been delivered to Lessor, the Lessee and
Administrative Agent. Lessor and Lessee shall not be permitted
to amend, modify, supplement or waive any provision of the Lease
or other Operative Document without the written consent of the
Required Entities or (after the Loans shall have been paid in
full, or with respect to Excluded Amounts) the Lessor, as
applicable; provided, that without the prior written consent of
all of the Participants, Lessor shall not:
(a) modify any of the provisions of this Section 8.5,
change the definition of "Required Entities", "Applicable
Margin", "Termination Value", "Event of Loss" or "Guaranteed
Residual Amount" or modify or waive any provision of any
Operative Document requiring action by any of the foregoing;
(b) reduce the amount or change the time of payment of
any amount of principal owing or payable under any Note, of
interest or Yield owing or payable on any Note or on the
Investment Balance, respectively, or of the Commitment Fee,
modify any of the provisions of Article III of the Loan Agreement
or increase any of the Commitments;
(c) modify, amend, waive or supplement any of the
provisions of Articles II, V, VI, VII, IX, X, XI, XIII, XVI, XVII
and XVIII of the Lease or Sections 5.2, 5.17 and 5.18;
(d) reduce, modify, amend or waive any indemnities in
favor of any Participant;
(e) reduce the amount or change the time of payment of
Basic Rent or the Lease Balance;
(f) consent to any assignment of the Lease releasing
Lessee from its obligations to pay Rent or the Lease Balance or
changing the absolute and unconditional character of such
obligations;
(g) release all or substantially all of the
Collateral (except as otherwise specifically provided in any
Operative Document); or
(h) release the Guaranty.
provided, that no amendment, modification, supplement or waiver
of any Operative Document that affects adversely the interests,
rights or obligations of Administrative Agent qua Administrative
Agent shall be made without the consent of Administrative Agent.
SECTION 8.6. Headings, etc. The Table of Contents and
headings of the various Articles and Sections of this Agreement
are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof.
SECTION 8.7. Parties in Interest. Except as expressly
provided herein, none of the provisions of this Agreement is
intended for the benefit of any Person except the parties hereto,
their successors and permitted assigns.
SECTION 8.8. GOVERNING LAW. THIS AGREEMENT HAS BEEN
DELIVERED IN ACCORDANCE WITH, AND SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS
PRINCIPLES OF SUCH STATE, EXCEPT SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
SECTION 8.9. Payment of Transaction Costs and Other Costs.
(a) Transaction Costs. If the transactions
contemplated by this Agreement are consummated, as and when any
portion of Transaction Costs becomes due and payable, Lessee
shall promptly (and in any event, on or prior to the next Advance
Date) pay such costs directly or furnish Lessor funds sufficient
to, and Lessor shall promptly make payment of such portion to the
Person or Persons entitled to payment upon presentation to Lessor
of bills or invoices for the amount of such payment. If such
transactions are not so consummated, Lessee promptly shall pay
the Transaction Costs.
(b) Continuing Expenses. Subject to Lessee's approval
prior to incurrence (not to be unreasonably withheld) unless a
Default or Event of Default exists, the continuing fees,
expenses and disbursements (including reasonable counsel fees and
expenses) of Lessor, and the expenses of Administrative Agent,
shall be paid by Lessee as Supplemental Rent.
(c) Amendments, Supplements and Appraisal. Without
limitation of the foregoing, Lessee agrees to pay to the Lessor,
Administrative Agent: (i) all costs and expenses (including
reasonable legal fees and expenses) incurred by the
Administrative Agent and the Lessor in connection with the
considering, evaluating, investigating, negotiating and entering
into or giving or withholding of any amendments or supplements or
waivers or consents with respect to any Operative Document; (ii)
all reasonable costs and expenses (including legal fees and
expenses) incurred by the Administrative Agent, the Lessor and
the Lenders in connection with termination of the Lease or any
other Operative Document; (iii) all reasonable costs and expenses
(including legal fees and expenses) incurred by the
Administrative Agent, the Lessor and the Lenders in connection
with the negotiation and documentation of any restructuring or
"workout," whether or not consummated, of any Operative Document;
(iv) all costs and expenses (including legal fees and expenses)
incurred by any of them in connection with the enforcement of the
rights or remedies under the Operative Documents; or (v) all
costs and expenses (including reasonable fees and expenses)
incurred by the Administrative Agent and the Lessor in connection
with any Advance Date or the Acquisition Date.
SECTION 8.10. Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 8.11. Limited Liability of Lessor. The parties
hereto agree that Lessor shall have no personal liability
whatsoever to the Lessee, the Lenders, the Administrative Agent
or any of their respective successors and assigns for any Claim
based on or in respect of this Agreement or any of the other
Operative Documents or arising in any way from the transactions
contemplated hereby or thereby; provided, however, that Lessor
shall be liable: (a) for its own willful misconduct or gross
negligence (or negligence in the handling of funds), (b) for
liabilities that may result from the incorrectness of any
representation or warranty expressly made by it in Section
4.2(a), or (c) for any Tax based on or measured by any fees,
commission or compensation received by it for actions
contemplated by the Operative Documents. It is understood and
agreed that, except as provided in the preceding proviso: (i)
Lessor shall have no personal liability under any of the
Operative Documents as a result of acting pursuant to and
consistent with any of the Operative Documents; (ii) all
obligations of Lessor to the Lessee, the Lenders, the
Administrative Agent or any of their respective successors and
assigns are solely nonrecourse obligations (with liability
payable solely out of the Collateral) except to the extent that
it has received payment from others; (iii) all such personal
liability of Lessor is expressly waived and released as a
condition of, and as consideration for, the execution and
delivery of the Operative Documents by Lessor.
SECTION 8.12. Liabilities of the Participants. No
Participant shall have any obligation to any other Participant or
to Lessee or Administrative Agent with respect to the
transactions contemplated by the Operative Documents except those
obligations of such Participant expressly set forth in the
Operative Documents or except as set forth in the instruments
delivered in connection therewith, and no Participant shall be
liable for performance by any other party hereto of such other
party's obligations under the Operative Documents except as
otherwise so set forth.
SECTION 8.13. Liabilities of Administrative Agent.
Administrative Agent shall not have any duty, liability or
obligation to any party to this Agreement or any other Operative
Document with respect to the transactions contemplated hereby
except those duties, liabilities, or obligations expressly set
forth in this Agreement or the Loan Agreement, and any such duty,
liability or obligation of Administrative Agent shall be as
expressly limited by this Agreement or the Loan Agreement, as the
case may be.
SECTION 8.14. Reproduction of Documents. This Agreement,
all documents constituting Schedules or Exhibits hereto, and all
documents relating hereto received by a party hereto, including,
without limitation: (a) consents, waivers and modifications that
may hereafter be executed; (b) documents received by the
Participants or Administrative Agent in connection with the
receipt and/or acquisition of the Property; and (c) financial
statements, certificates, and other information previously or
hereafter furnished to any Administrative Agent or any
Participant may be reproduced by the party receiving the same by
any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. Each of the parties
hereto agrees and stipulates that, to the extent permitted by
law, any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not
such reproduction was made by such party in the regular course of
business) and that, to the extent permitted by law, any
enlargement, facsimile, or further reproduction of such
reproduction shall likewise be admissible in evidence.
SECTION 8.15. Estoppel Certificates. Each Participant and
Administrative Agent acknowledges and agrees that pursuant to
Section 20.10 of the Lease, the parties thereto may execute,
acknowledge and deliver the certificates described therein.
SECTION 8.16. Notices to Lessor under Loan Agreement.
Notwithstanding anything to the contrary in the Loan Agreement,
the Lenders, Lessor and Lessee hereby agree that any notice or
demand to be delivered to or made on Lessor pursuant to Sections
2.7 and 2.11 of the Loan Agreement shall, so long as no Lease
Event of Default is continuing, be delivered directly to or made
on the Lessee, with a copy to Lessor, and the Lessee shall be
entitled to any rights inuring to Lessor in respect thereof.
SECTION 8.17. Confidentiality. (a) Each Participant
hereby agrees to maintain the confidentiality of all
"Confidential Information" and agrees that it shall not disclose
such "Confidential Information" to third parties without the
prior consent of the Company, other than disclosure (i) on a
confidential basis to directors, officers, employees, legal
counsel, accountants and other professional advisors of such
Participant, (ii) to other Participants and any assignee of such
Participant, (iii) to regulatory officers having jurisdiction
over such Participant, (iv) as required by law or legal process
or in connection with any legal proceeding to which such
Participant is a party or is otherwise subject, (v) to any
Transferee or prospective Transferee of such Participant
(provided that such Transferee or prospective Transferee shall
have agreed, in writing, to be subject to the provisions of this
Section 8.17) or (vi) on a confidential basis to Affiliates of
such Participant who reasonably could be expected to have a need
to know such information in connection with the administration by
such Participant of this Agreement and its extensions of credit
hereunder.
(b) For purposes of this Section 8.17, the term
"Confidential Information" shall mean all material, non-public
information which is received by such Participant from the
Company or any of its Subsidiaries and is conspicuously
identified as being "Confidential," other than (i) any such
information which, at the time of delivery or thereafter, becomes
generally available to the public other than as a result of a
disclosure by such Participant, (ii) any such information which
was available to such Participant prior to its disclosure to such
Participant by the Company and its Subsidiaries and (iii) any
such information which becomes available to such Participant from
a source other than the Company and its Subsidiaries (provided
that such source is not known to such Participant to be (x) bound
by a confidentiality agreement with the Company and its
Subsidiaries or (y) otherwise prohibited from transmitting the
information to such Participant by a contractual, legal or
fiduciary obligation).
SECTION 8.18. SUBMISSION TO JURISDICTION; WAIVERS. (i)
EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
OPERATIVE DOCUMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS
OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDINGS MAY
BE BROUGHT TO SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING
WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR
CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION
OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM
OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH
ON SCHEDULE III OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER
PARTIES HERETO SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 8.3;
AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT
TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
(ii) EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THE OPERATIVE DOCUMENTS AND FOR ANY
COUNTERCLAIM THEREIN.
SECTION 8.19. Final Agreement. THIS AGREEMENT, TOGETHER
WITH THE LEASE, LOAN DOCUMENTS, THE OTHER OPERATIVE DOCUMENTS AND
OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH OR THEREWITH
REPRESENT THE ENTIRE FINAL AGREEMENT BETWEEN THE PARTIES HERETO
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREIN AND CANNOT
BE MODIFIED, SUPPLEMENTED, AMENDED, RESCINDED OR CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES HERETO.
SECTION 8.20. Right of Set-Off. Upon the occurrence and
continuance of any Event of Default, the Administrative Agent and
each Lender are hereby irrevocably authorized by Lessee at any
time and from time to time without notice to Lessor, any such
notice being hereby waived by Lessor, to set-off and appropriate
and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Administrative Agent
or such Lender to or for the credit or the account of Lessor, or
any part thereof in such amounts as the Administrative Agent or
such Lender may elect, on account of the liabilities of Lessor
hereunder and claims of every nature and description of the
Administrative Agent or such Lender against Lessor, in any
currency, whether arising hereunder or under any other Operative
Document or otherwise, as the Administrative Agent or such Lender
may elect, whether or not the Administrative Agent or such Lender
has made any demand for payment although such liabilities and
claims may be contingent or unmatured. The Administrative Agent
and each Lender shall notify Lessor promptly of any such set-off
made by it and the application made by it of the proceeds
thereof; provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights
of the Administrative Agent and each Lender under this subsection
are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Administrative
Agent or such Lender may have.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this
Participation Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year first
above written.
REEBOK INTERNATIONAL LTD., as
Lessee and as Construction Agent
By:/s/ LEO S. VANNONI
Name Printed: Leo S. Vannoni
Title: Treasurer
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent,
as a Lender and as Arranger
By: /s/ JODI A. FATTO
Name Printed: Jodi A. Fatto
Title: Assistant Vice President
By: /s/ DARCY SLEDGE
Name Printed: Darcy Sledge
Title: VP
CREDIT SUISSE LEASING 92A, L.P.,
as Lessor
By: CREDIT SUISSE FIRST BOSTON,
as General Partner
By: /s/ DARCY SLEDGE
Name Printed: Darcy Sledge
Title: VP
By: /s/ CARL WEATHERLEY-WHITE
Name Printed: Carl Weatherley-
White
Title: VP
FLEET NATIONAL BANK,
as Documentation Agent and as a
Lender
By: /s/ ROGER C. BOUCHER
Name Printed: Roger C. Boucher
Title: Vice President
By:
Name Printed:
Title:
WACHOVIA BANK, N.A.,
as Syndication Agent and as a
Lender
By: /s/ KATHLEEN H. REEDY
Name Printed: Kathleen H. Reedy
Title: Vice President
By: /s/ TERENCE A. SNELLINGS
Name Printed: Terence A. Snellings
Title: Senior Vice President
ABN-AMRO BANK N.V.
as a Lender
By: /s/ CAROL A. LEVINE
Name Printed:
Title:
By: /s/ JOHN A. ROGERS
Name Printed:
Title:
BANQUE NATIONALE DE PARIS,
as a Lender
By: /s/ RICHARD PACE
Name Printed: Richard Pace
Title: Vice President
Corporate Banking Division
By: /s/ NANETTE BAUDON
Name Printed: Nanette Baudon
Title: Assistant Vice President
CITICORP USA, INC.,
as a Lender
By: /s/ JOHN F. HEUSS
Name Printed: John F. Heuss
Title: Vice President
By:_______________________________
Name Printed:
Title:
Appendix 1
to Participation Agreement
Definitions Appendix
APPENDIX 1
to
Participation Agreement
(Reebok International Ltd.)
In the Participation Agreement and each other Operative
Document, unless the context otherwise requires:
(a) any term defined below by reference to another
instrument or document shall continue to have the meaning
ascribed thereto whether or not such other instrument or document
remains in effect;
(b) words importing the singular include the plural and
vice versa;
(c) words importing a gender include any gender;
(d) a reference to a part, clause, section, article,
exhibit or schedule is a reference to a part, clause, section and
article of, and exhibit and schedule to, such Operative Document;
(e) a reference to any statute, regulation, proclamation,
ordinance or law includes all statutes, regulations,
proclamations, ordinances or laws amending, supplementing,
supplanting, varying, consolidating or replacing them, and a
reference to a statute includes all regulations, proclamations
and ordinances issued or otherwise applicable under that statute;
(f) a reference to a document includes any amendment or
supplement to, or replacement or novation of, that document;
(g) a reference to a party to a document includes that
party's successors and permitted assigns; and
(h) references to "including" means including without
limiting the generality of any description preceding such term
and for purposes hereof the rule of ejusdem generis shall not be
applicable to limit a general statement followed by or referable
to an enumeration of specific matters to matters similar to those
specifically mentioned.
Further, each of the parties to the Operative Documents and
its counsel has reviewed and revised the Operative Documents, and
the usual rule of construction that any ambiguities are to be
resolved against the drafting party shall be inapplicable in
construing and interpreting the Operative Documents.
"ABR" means, for any day, a rate per annum equal to the
higher of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. Any change in the ABR due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans" means Loans the rate of interest applicable to
which is based upon the ABR.
"Acquisition Date" has the meaning specified in Section 3.2.
"Additional Costs" mean the amounts payable pursuant to
Sections 2.11, 2.12 and 2.13 of the Loan Agreement and the other
amounts due and payable by the Borrower under any Loan Document
other than principal and interest on the Notes.
"Additional Parcel" has the meaning specified in Section
6.2(c).
"Adjusted Commitment Percentage" means, as to each Lender,
at any particular time, such Lender's percentage of the aggregate
Commitments in effect at such time of the Lenders as a group.
"Adjustment Date" means (a) the second Business Day
following receipt by the Administrative Agent of both (i) the
financial statements required to be delivered pursuant to
Sections 5.10(a) or 5.10(b) for the most recently completed
fiscal period and (ii) the compliance certificate required
pursuant to Section 5.10(d) with respect to such financial
statements or (b) if such compliance certificate and financial
statements have not been delivered in a timely manner, the latest
date upon which the compliance certificate required to be
delivered pursuant to Section 5.10(d) for the most recently
completed fiscal period was due; provided, however, that in the
event that the Adjustment Date is determined in accordance with
the provisions of clause (b) of this definition, then the date
which is two Business Days following the date of receipt of the
financial statements and compliance certificate referenced in
clause (a) of this definition also shall be deemed to constitute
an "Adjustment Date".
"Administrative Agent" means Credit Suisse First Boston, in
its capacity as Administrative Agent for the Lenders under the
Loan Agreement and the Participation Agreement.
"Advance" means each advance of funds by the Lenders to the
Lessor and by Lessor to the Construction Agent, in each case
pursuant to Article II of the Participation Agreement.
"Advance Date(s)" means the actual date on which an Advance
occurs.
"Advance Request" has the meaning set forth in Section 2.4
of the Participation Agreement.
"Affiliate" of any Person means (a) any Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with such Person. For
purposes of this definition, control of a Person shall mean the
power, directly or indirectly, (i) to vote 10% or more of the
securities having ordinary voting power for the election of
directors of such Person or (ii) to direct or cause the direction
of the management and policies of such Person, whether by
contract or otherwise.
"Agreement to Lease" has the meaning set forth in the
Recitals to the Participation Agreement.
"APB 16" means Accounting Principles Board Opinion No. 16 as
in effect on the date hereof.
"Applicable Law" means as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and all existing and future laws,
rules, regulations (including Environmental Laws), statutes,
treaties, codes, ordinances, permits, certificates, orders and
licenses of and interpretations by, any Authority, Insurance
Requirements and judgments, decrees, injunctions, writs, orders
or like action of any court, arbitrator or other administrative,
judicial or quasi-judicial tribunal or agency of competent
jurisdiction (including those pertaining to health, safety or the
environment and those pertaining to the construction, use or
occupancy of any Property) and any restrictive covenant or deed
restriction or easement of record, in each case applicable to or
binding upon such Person or any of its property or the Property
or to which such Person or any of its property or the Property is
subject.
"Applicable Margin" means for each Type of Loan for each
day, the rate per annum set forth below opposite the debt rating
then in effect:
||
Debt Rating Applicable Margin
ABR Loans Eurodollar Loans
AA- or better by S&P and Aa3 or
better by Moody's 0 bp 18.0 bp
A or better by S&P and A2 or
better by Moody's 0 bp 22.5 bp
A- or better by S&P and A3 or
better by Moody's 0 bp 25.0 bp
BBB+ or better by S&P and Baal or
better by Moody's 0 bp 30.0 bp
BBB or better by S&P and Baa2 or
better by Moody's 0 bp 32.5 bp
BBB- or better by S&P and Baa3 or
better by Moody's 0 bp 45.0 bp
Otherwise 0 bp 55.0 bp
||
"Appraisal" has the meaning set forth in Section 3.2(n) of
the Participation Agreement.
"Appraised Value" means each of the opinions rendered by the
Appraiser pursuant to Section 3.2(n) of the Participation
Agreement.
"Appraiser" means Lynch, Murphy & Walsh, or such other
appraisal firm as Administrative Agent may select from time to
time after consultation with the Lessee, provided that the
appraisal firm shall be selected in the sole discretion of the
Administrative Agent.
"Appraiser Engagement Letter" means the letter dated January
5, 1998, among the Appraiser and the Administrative Agent.
"Appurtenant Rights" means (i) all agreements, easements,
rights of way or use, rights of ingress or egress, privileges,
appurtenances, tenements, hereditaments and other rights and
benefits at any time belonging or pertaining to the Property,
including the use of any streets, ways, alleys, vaults or strips
of land adjoining, abutting, adjacent or contiguous to the
Property and (ii) all permits, licenses and rights, whether or
not of record, appurtenant to the Property.
"Architect" means a registered architect or certified
professional engineer for Construction Agent (which, unless
otherwise expressly provided, may be an employee of the Company).
"Arrangement Fee" means the arrangement fee as agreed to in
writing between the Company and the Arranger.
"Arranger" means Credit Suisse First Boston in its capacity
as "arranger" with respect to the transactions contemplated by
the Operative Documents.
"Assignment of Construction Documents" means the Assignment
of Construction Documents, dated as of March 27, 1998, between
Lessor and Construction Agent, substantially in the form of
Exhibit B to the Construction Agency Agreement.
"Assignment of Lease" means the Assignment of Lease in the
form of Exhibit J to the Participation Agreement from Lessor in
favor of Administrative Agent for the benefit of the Lenders.
"Assumed Interest Rate" means, with respect to any Advance
Date that does not occur as proposed in the related Advance
Request, the Eurodollar Rate that would have been applicable for
purposes of calculating Interest and Yield if the Advance Date to
which such Advance Request relates had occurred on the originally
proposed date.
"Authority" means any applicable foreign, federal, state,
county, municipal or other government or governmental, quasi-
governmental or regulatory authority, agency, board, body,
commission, instrumentality, court or tribunal, or any political
subdivision of any thereof, or arbitrator or panel of
arbitrators.
"Authorized Officer" means any officer of Lessor who shall
be duly authorized to execute the Operative Documents.
"Balance Sheet" is defined in Section 4.1(w)(i) of the
Participation Agreement.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978.
"Base Term" has the meaning set forth in Section 2.3 of the
Lease.
"Base Term Expiration Date" has the meaning set forth in
Section 2.3 of the Lease.
"Basic Rent" means an amount payable in installments on each
Rent Payment Date during the Base Term and a Renewal Term equal
to the sum of (A) the aggregate amount of Interest (other than
Capitalized Interest) payable on the Notes on the corresponding
Payment Date, plus (B) the aggregate amount of the Yield (other
than Capitalized Yield) payable to the Lessor on such Payment
Date plus (C) during the Special Period, an amount equal to the
Deemed Interest Component.
"Benefitted Lender" has the meaning set forth in Section 8.4
of the Loan Agreement.
"Board of Directors" means, with respect to a corporation,
either the board of directors or any duly authorized committee of
that board of directors which, pursuant to the by-laws of such
corporation, has the same authority as that board of directors as
to the matter at issue.
"Borrower" means Lessor as the borrower under the Loan
Agreement.
"Business Day" means any day of the year other than a
Saturday, Sunday or other day on which commercial banks in New
York City are required or authorized by law to close and, if the
applicable Business Day relates to any Eurodollar Loan, the term
"Business Day" shall mean a day other than a Saturday, Sunday or
other day on which commercial banks in New York City or London,
England are required or authorized by law to close.
"Capitalized Interest" means all accrued interest on a Note
for any Interest Period ending on or prior to the end of the
Construction Period.
"Capitalized Yield" means all accrued Yield for any Interest
Period ending on or prior to the end of the Construction Period.
"Casualty" means an event of damage or casualty relating to
the Property which does not constitute an Event of Loss.
"Certification Notice" has the meaning set forth in Section
6.3(a) of the Lease.
"Change in Law" means with respect to any Lender the
adoption of any law, rule, regulation, policy, guideline or
directive (whether or not having the force of law) or any change
therein or in the interpretation or application thereof by any
Authority having jurisdiction over such Lender, in each case
after the Documentation Date.
"Claim Notice" has the meaning specified in Section 3(a) of
the Environmental Indemnity.
"Claims" mean liabilities, obligations, damages, losses,
demands, penalties, fines, claims, actions, suits, judgments,
settlements, utility charges, costs, fees, expenses and
disbursements (including legal fees and expenses and costs of
investigation which, in the case of counsel or investigators
retained by an Indemnitee, shall be reasonable) of any kind and
nature whatsoever.
"Closing Date" means the date on which the conditions
precedent set forth in Section 3.1 shall be satisfied.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means (a) with respect to the Lenders, the
Property and all of the other property and rights now owned or
hereafter acquired by Lessor and proceeds therefrom in connection
with the transactions contemplated by the Operative Documents and
any proceeds therefrom upon which a Lien is purported to be
created pursuant to the Operative Documents and (b) with respect
to the Lessor, all of Lessee's rights, title and interest,
whether now or hereafter existing or acquired, in the Property,
any deposit account maintained by the Lessor or its designee for
itself and the benefit of the Lenders and any proceeds therefrom
upon which a lien is purported to be created pursuant to the
Operative Documents.
"Commitment" means as to any Participant, its obligation to
make amounts available, (Loans or Invested Amounts, as the case
may be) to the Borrower in an aggregate amount not to exceed at
any one time outstanding the amount set forth opposite such
Participant's name on Schedule I or II to the Participation
Agreement (as applicable) as adjusted pursuant to Section 2.4(i)
of the Participation Agreement.
"Commitment Fee" has the meaning specified in Section 2.5 of
the Participation Agreement.
"Commitment Percentage" means as to any Participant, at a
particular time, the percentage of the aggregate Commitments in
effect at such time represented by such Participant's Commitment,
as such percentage is shown on Schedule I or II to the
Participation Agreement, as applicable.
"Commitment Period" has the meaning set forth in Section 2.5
of the Participation Agreement.
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Company
within the meaning of Section 414(b) or (c) of the Code.
"Company" means Reebok International Ltd., a Massachusetts
corporation.
"Completion" means, with respect to the Facility, the
fulfillment of all of the conditions set forth in Section 3.4 of
the Participation Agreement.
"Completion Date" means the date on which construction of
the Facility is substantially completed and the Facility is ready
for occupancy and operation.
"Condemnation" means any condemnation, requisition,
confiscation, seizure or other taking or sale of the use,
occupancy or title to any Property or any part thereof in, by or
on account of any actual or threatened eminent domain proceeding
or other action by any Authority or other Person under the power
of eminent domain or otherwise or any transfer in lieu of or in
anticipation thereof, which in any case does not constitute an
Event of Taking. A Condemnation shall be deemed to have
"occurred" on the earliest of the dates that use, occupancy or
title is taken.
"Consolidated Net Income" or "Consolidated Net Loss" means,
for any fiscal period, the amount which, in conformity with GAAP,
would be set forth opposite the caption "net income" (or any like
caption) or "net loss" (or any like caption), as the case may be,
on a consolidated statement of earnings of the Company and its
Subsidiaries for such fiscal period.
"Construction Agency Agreement" means the Construction
Agency Agreement, dated as of March 27, 1998, between Lessor and
the Construction Agent, as supplemented from time to time by the
Construction Agency Agreement Supplements.
"Construction Agency Agreement Supplement" means a
supplement to the Construction Agency Agreement executed by the
Construction Agent and Lessor on the Acquisition Date.
"Construction Agency Event of Default" means a "Construction
Agency Event of Default" as defined in Section 5.1 of the
Construction Agency Agreement.
"Construction Agent" means the Company, as construction
agent under the Construction Agency Agreement.
"Construction Commencement Date" has the meaning set forth
in Section 2.3 of the Construction Agency Agreement.
"Construction Costs" means all costs including Soft Costs
incurred with respect to the development and construction of the
Land and Facility during the Construction Period, except that
Capitalized Interest, Capitalized Yield and Transaction Costs
shall not be treated as "Construction Costs".
"Construction Documents" has the meaning set forth in
Section 2.6 of the Construction Agency Agreement.
"Construction Period" means that period commencing on the
Closing Date and ending on the Construction Period Termination
Date.
"Construction Period Commencement Date" means the Closing
Date.
"Construction Period Termination Date" means the earlier of
(a) the third anniversary of the Closing Date subject to
extension for up to six months for an event of Force Majeure and
(b) the Completion Date.
"Continuing Directors" has the meaning specified in Section
17(j) of the Lease.
"Contractual Obligation" means as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a
party or by which it or any of the property owned by it is bound.
"Deed" means the deed from the seller of the Land which is a
fee estate to Lessor, conveying the Land on which the Facility is
to be built. Such deed will be in the form provided in the
contract of sale, which shall be the customary form of special
warranty deed, or equivalent, in the relevant jurisdiction.
"Deemed Interest Component" means for any period during the
Special Period an amount equal to the product of (a) the
applicable interest rate payable from time to time during such
period pursuant to the Loan Agreement multiplied by (b) $30,000.
"Default" means any Lease Default, any Loan Default or any
Construction Agency Default.
"Designated Agents" has the meaning set forth in Section 7.1
of the Loan Agreement.
"Disclosed Material" has the meaning specified in Section
8(f) of the Environmental Indemnity.
"Documentation Agent" means Fleet National Bank, in its
capacity as Documentation Agent for the Lenders under the Loan
Agreement and the Participation Agreement.
"Documentation Date" has the meaning set forth in Section
2.1 of the Participation Agreement.
"Dollar" and the symbol "$" shall mean lawful currency of
the United States of America.
"Domestic Subsidiary" means any Subsidiary of the Company
other than a Foreign Subsidiary.
"Early Termination Date" means a Rent Payment Date on which
Lessee purchases the Property from Lessor pursuant to Section 6.1
of the Lease.
"EBITDA" means, for any fiscal period, the Consolidated Net
Income or Consolidated Net Loss, as the case may be, for such
fiscal period, after restoring thereto amounts deducted for (a)
extraordinary losses (or deducting therefrom any amounts included
therein on account of extraordinary gains) and special charges,
(b) depreciation and amortization (including write-offs or
write-downs of amortizable and depreciable items), (c) the amount
of interest expense of the Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, for
such period on the aggregate principal amount of their
consolidated Indebtedness, (d) the amount of tax expense of the
Company and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP, for such period and (e) minority
interests.
"Environmental Audit" means a Phase One environmental site
assessment (the scope and performance of which meets or exceeds
ASTM Standard Practice E1527-93 Standard Practice for
Environmental Site Assessments: Phase One Environmental Site
Assessment Process) of the Property to be acquired by Lessor on
the Acquisition Date or of the Property as it is to be sold
pursuant to the Remarketing Option under the Lease and any
additional environmental assessments requested by the Agents in
good faith.
"Environmental Certificate" is defined in Section 3.2(e).
"Environmental Claim" has the meaning specified in Section
3(a) of the Environmental Indemnity.
"Environmental Engineer" means Vanasse Hangen Brustlin, Inc.
or such other environmental consulting firm as Construction Agent
may from time to time select, and reasonably satisfactory to the
Administrative Agent.
"Environmental Indemnity" means the Environmental Indemnity
dated as of March 27, 1998 executed by the Lessee for the benefit
of the Indemnitees.
"Environmental Laws" mean the Resource Conservation and
Recovery Act of 1976, (RCRA) 42 U.S.C. Section 6901-6987, as
amended by the Hazardous and Solid Waste Amendments of 1984, the
Comprehensive Environmental Response, Compensation and Liability
Act, as amended by the Superfund Amendments and Reauthorization
Act of 1986, 42 U.S.C. Section 9601-9657, (CERCLA), the Hazardous
Materials Transportation Act of 1975, 49 U.S.C. Section 1801-
1812, the Toxic Substances Control Act, 15 U.S.C. Section 2601-
2671, the Clean Air Act, 42 U.S.C. Section 7401 et seq., the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
Section 136 et seq. and all similar federal, state and local
environmental laws, ordinances, rules, orders, statutes, decrees,
judgments, injunctions, codes and regulations, and any other
federal, state or local laws, ordinances, rules, codes and
regulations, and any other federal, state or local laws,
ordinances, rules, codes and regulations relating to the
environment, human health or natural resources or the regulation
or control of or imposing liability or standards of conduct
concerning human health, the environment, Hazardous Materials or
the clean-up or other remediation of a Property, or any part
thereof.
"Environmental Permits" means all permits, licenses,
authorizations, registrations, certificates and approvals of
Authorities required by Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Escrow Account" is defined in Section 2.4(g).
"Eurocurrency Reserve Requirements" means, for any day as
applied to a Eurodollar Loan, the aggregate (without duplication)
of the rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves
under any regulations of the Board of Governors of the Federal
Reserve System or other Authority having jurisdiction with
respect thereto) dealing with reserve requirements prescribed for
Eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate" means the rate per annum determined
by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date which is two Business Days prior to the
beginning of the relevant Interest Period (as specified in the
applicable Notice of Borrowing) by reference to the British
Bankers' Association Interest Settlement Rates for deposits in
Dollars (as set forth by any service selected by the
Administrative Agent which has been nominated by the British
Bankers' Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such
Interest Period; provided that, to the extent that an interest
rate is not ascertainable pursuant to the foregoing provisions of
this definition, the "Eurodollar Base Rate" shall be the interest
rate per annum determined by the Administrative Agent to be the
average of the rates per annum at which deposits in Dollars are
offered for such relevant Interest Period to major banks in the
London interbank market in London, England by the Reference Banks
at approximately 11:00 a.m. (London time) on the date which is
two Business Days prior to the beginning of such Interest Period.
If any of the Reference Banks shall be unable or shall otherwise
fail to supply such rates to the Administrative Agent upon its
request, the rate of interest shall, subject to the provisions of
Section 2.7, be determined on the basis of the quotations of the
remaining Reference Banks or Reference Bank.
"Eurodollar Loans" means Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Office" means initially, the funding office of
each Participant designated as such in Schedule III; and
thereafter, such other office of such Participant, if any, which
shall be making or maintaining such Participant's investment in
Notes.
"Eurodollar Rate" means, with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, a rate per
annum determined for such day in accordance with the following
formula:
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default" means any Lease Event of Default, Loan
Event of Default or Construction Agency Event of Default.
"Event of Loss" means (w) any event or circumstance at the
Property which event or circumstance is reasonably expected by
Lessee to result in Environmental Claims (including costs of
cleanup and remediation) in excess of [$37,500,000] imposed on or
incurred by any Indemnitee, Construction Agent or Lessee, (x) the
actual or constructive total loss of the Property or damage to
the Property to an extent rendering repair impractical or
uneconomical, in any case as reasonably determined in good faith
by the Board of Directors of the Company, such determination to
be made promptly after the occurrence of such event and to be
evidenced by an Officer's Certificate of the Company delivered to
Lessor and Administrative Agent, (y) damage to the Property which
results in an insurance settlement on the basis of a total loss
or a constructive total loss (including title insurance proceeds)
in respect of a total loss of the Property, or (z) an Event of
Taking.
"Event of Taking" means (A) taking of title to the Property
or (B) any condemnation (other than a requisition of temporary
use) or requisition of use for a period scheduled to last beyond
the end of the Lease Term, in either case resulting in (i) the
loss of use or possession of all or substantially all of the
Property or (ii) the loss of use or possession of a portion of
the Property where the loss would have a material adverse effect
on the use, operation or value thereof, in either of clause (i)
or clause (ii), as reasonably determined in good faith by a
Responsible Officer of the Company, such determination to be made
promptly after the occurrence of such event and to be evidenced
by an Officer's Certificate of such Responsible Officer delivered
to Lessor and Administrative Agent.
"Exchange Date" has the meaning set forth in Section 6.2(c).
"Exchange Parcel" has the meaning set forth in Section
6.2(c).
"Excluded Amounts" means:
(a) all indemnity payments and expenses to which
Lessor (or the respective successors, assigns, agents,
officers, directors or employees of Lessor) is entitled
pursuant to the Operative Documents;
(b) any amounts payable under any Operative
Documents to reimburse Lessor (including the reasonable
expenses of Lessor incurred in connection with any such
payment) for performing any of the obligations of Lessee
under and as permitted by any Operative Document;
(c) any insurance proceeds (or payments with
respect to risks self-insured or policy deductibles) under
liability policies payable to Lessor (or the respective
successors, assigns, agents, officers, directors or
employees of Lessor);
(d) any insurance proceeds under policies
maintained by Lessor and not required to be maintained by
Lessee under the Lease;
(e) any amount payable to Lessor pursuant to
Section 8.9;
(f) prior to completion of any foreclosure of the
Mortgage or deed in lieu thereof, any expense reimbursements
to Lessor or Administrative Agent; and
(g) any payments of interest on payments referred
to in clauses (a) through (f) above.
"Facility" has the meaning set forth in the Recitals to the
Participation Agreement.
"Fair Market Sales Value" with respect to any Property or
any portion thereof means, as of the date of the determination,
the fair market sales value as determined by the Appraiser that
would be obtained in an arm's-length transaction between an
informed and willing buyer (other than a buyer currently in
possession) and an informed and willing seller, under no
compulsion to buy or sell, and neither of which is related to
Lessee, for the purchase of such Property. Such fair market
sales value shall be calculated as the value for the use of the
Property, assuming, in the determination of such fair market
sales value, that the Property is in the condition and repair
required to be maintained by the terms of the Lease or as
otherwise stated in the Participation Agreement.
"Federal Funds Effective Rate" means for any day, the
weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions
received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Final Maturity Date" means the date 6 years after the
Closing Date or, if the Operative Documents are extended for a
Renewal Term pursuant to Section 2.4 of the Lease, the Final
Maturity Date will be extended to the date that is two years
after the Final Maturity Date then in effect.
"Final Rent Payment Date" has the meaning set forth in
Section 18.1(h) of the Lease.
"Financing" has the meaning set forth in the Recitals to the
Participation Agreement.
"Financing Lease" means any lease or property, real or
personal, the obligations of the lessee in respect of which are
required in accordance with GAAP to be capitalized on a balance
sheet of lessee.
"FIRPTA" means the Foreign Investment in Real Property Tax
Act, as amended from time to time.
"Force Majeure" means as to any Person, any event or
condition beyond its reasonable control and without its fault or
negligence, such as acts of God, fire, windstorm, flood,
earthquake, explosion, collapse of structures, riot, war or labor
disputes which adversely affects such Person's ability to perform
its obligations under any Operative Document to which it is a
party.
"Foreign Subsidiary" means any Subsidiary of the Company
which is organized under the laws of any jurisdiction outside the
United States of America.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect on the Documentation Date.
"Government Action" means all applicable permits,
authorizations, registrations, consents, approvals, waivers,
exceptions, variances, orders, judgments, decrees, licenses,
exemptions, publications, filings, notices to and declarations of
or with, or required by, any Authority, or required by any
Applicable Law, and shall include, without limitation, all
citings, Environmental Permits and operating permits and licenses
that are required for the use, occupancy, zoning and operation of
the Property.
"Guarantee Obligation" means as to any Person (the
"guaranteeing person"), any obligation of (a) the guaranteeing
person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount
of the primary obligation or portion thereof in respect of which
such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated net liability in respect thereof as determined by the
Company in good faith.
"Guaranteed Residual Amount" is $130,659,000.
"Guarantor" means the Company.
"Guaranty" has the meaning set forth in the Recitals to the
Participation Agreement.
"Hazardous Activity" has the meaning specified in the first
recital to the Environmental Indemnity.
"Hazardous Material" means any substance, waste or material
which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous by
listing characteristic or definition under any Environmental Law,
including gasoline or petroleum, crude oil or any fraction
thereof, petroleum derivatives, by-products and other
hydrocarbons and is or becomes defined or regulated as such by
any Authority, including any agency, department, commission,
board or instrumentality of the United States, the State in which
the Property is located or any political subdivision thereof and
also including asbestos, urea formaldehyde foam insulation,
polychlorinated biphenyls ("PCBs") and radon gas.
"Indebtedness" means of any Person, at any date, (a) all
indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices), (b)
any other indebtedness of such Person which is evidenced by a
note, bond, debenture or similar instrument, (c) all obligations
of such Person under capital leases (as determined in accordance
with GAAP), (d) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (e)
all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise
become liable for the payment thereof and (f) all Indebtedness of
the types referred to in clauses (a) through (e) above which is
guaranteed directly or indirectly by such Person.
"Indemnitee" means each Lender, the Administrative Agent (in
its individual capacity) and Lessor, and the respective
Affiliates, successors, permitted assigns, permitted transferees,
invitees, contractors, servants, employees, officers, directors,
shareholders, partners, participants, representatives and Agents
of each of the foregoing Persons; provided, however, that in no
event shall Construction Agent or Lessee be an Indemnitee.
"Indemnitor" has the meaning specified in the introductory
paragraph to the Environmental Indemnity.
"Insolvency" means with respect to a Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such
term as used in Section 4245 of ERISA.
"Insolvency Event" means, with respect to any Person, any
event pursuant to which such Person makes an assignment for the
benefit of creditors, files a petition in bankruptcy, petitions
or applies to any tribunal for the appointment of a custodian,
receiver or any trustee for it or for a substantial part of its
property, commences any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect, consents or acquiesces in the filing of any
such petition, application, proceeding or appointment of or
taking possession by the custodian, receiver, liquidator,
assignee, trustee or sequestrator (or other similar official) of
such Person or any substantial part of its property, or admits
its inability to pay its debts generally as they become due, or
authorizes any of the foregoing to be done or taken on behalf of
such Person.
"Inspecting Parties" have the meaning specified in Section
15.1 of the Lease.
"Insurance Requirements" means all terms and conditions of
any insurance policy either required by the Lease to be
maintained by Lessee or required by the Construction Agency
Agreement to be maintained by the Construction Agent, and all
requirements of the issuer of any such policy.
"Intellectual Property" is defined in Section 4.1(cc).
"Interest" means interest, including Overdue Interest, due
and payable under the Loan Agreement from time to time.
"Interest Payment Date" means (a) as to any ABR Loan, the
last Business Day of each March, June, September and December,
(b) as to any Eurodollar Loan having an Interest Period of three
months or less, the last day of such Interest Period and (c) as
to any Eurodollar Loan having an Interest Period longer than
three months, the day which is three months (or a whole multiple
thereof) after the first day of such Interest Period and the last
day of such Interest Period.
"Interest Period" means with respect to any Eurodollar Loan:
(a) initially, the period commencing on, as the case
may be, the Advance Date or conversion date, as the case may
be, with respect to such Eurodollar Loan and ending one,
two, three or six months thereafter as selected by the
Company in its Advance Request as provided in Section 2.4 of
the Participation Agreement or its notice of conversion as
provided in Section 2.1; and
(b) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months
thereafter;
provided that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day which is not a Business
Day, that Interest Period shall be extended to the next
succeeding Business Day, unless the result of such extension
would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the
immediately preceding Business Day;
(B) any Interest Period that would otherwise extend
beyond the Termination Date or beyond the date final payment
is due on the Loan shall end on the Termination Date, or if
the Termination Date shall not be a Business Day, on the
next preceding Business Day or on such date of final
payment, as the case may be;
(C) if the Company shall fail to give notice as
provided above in clause (b), it shall be deemed to have
selected a conversion of a Eurodollar Loan into an ABR Loan
(which conversion shall occur automatically and without need
for compliance with the conditions for conversion set forth
in Section 2.10);
(D) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of a calendar month; and
(E) the Company shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar
Loan during an Interest Period for such Loan.
"Invested Amount" means an amount equal to the Commitment
Percentage of each Advance attributable to Lessor plus the
Preacquisition Amount and in the aggregate not more than Lessor's
Commitment set forth on Schedule I.
"Investor Balance" means the sum of all Invested Amounts on
any given date less any amounts applied in reduction thereof
pursuant to the Operative Documents.
"Investor's Letter" has the meaning set forth in Section
6.3(b).
"Land" has the meaning set forth in the Recitals to the
Participation Agreement.
"Lease" means the Lease, dated as of March 27, 1998, between
Lessor and Lessee, substantially in the form of Exhibit A.
"Lease Balance" means, as of any date of determination, the
sum of the aggregate outstanding principal amount of the Notes
plus the Investor Balance plus Capitalized Interest, Capitalized
Yield and any Commitment Fees payable pursuant to Section
2.4(h), less any amounts applied pursuant to the Operative
Documents in reduction of the Lease Balance on such date.
"Lease Commencement Date" means March 27, 1998.
"Lease Default" means any event, condition or failure which,
with notice or lapse of time or both, would become a Lease Event
of Default.
"Lease Event of Default" means any event, condition or
failure designated as a "Lease Event of Default" in Article XVII
of the Lease.
"Lease Obligations" means of the Company and its
Subsidiaries, as of the date of any determination thereof, the
rental commitments of the Company and its Subsidiaries determined
on a consolidated basis, if any, under leases for real and/or
personal property (net of rental commitments from sub-leases
thereof), excluding however, obligations under leases which are
classified as Indebtedness under clause (d) of the definition of
Indebtedness.
"Lease Term" has the meaning set forth in Section 2.3 of the
Lease.
"Lease Termination Date" means (i) the scheduled expiration
of the Lease Term, or (ii) if earlier, (a) the date of
termination of Lessee's right to possession due to the occurrence
of a Lease Event of Default pursuant to Section 18.1 of the
Lease, (b) the date of termination of the Lease resulting from
Lessee's exercise of its Purchase Option pursuant to Section 6.1
of the Lease or (c) the date of termination of the Lease pursuant
to Section 13.1(b) thereof.
"Lenders" means the holders of the Notes.
"Lessee" means the Company.
"Lessor" means Credit Suisse Leasing 92A, L.P.
"Lessor Liens" means Liens on or against the Property, the
Lease or any payment of Rent (a) which result from any act of, or
any Claim against, Lessor unrelated to the transactions
contemplated by the Operative Documents or (b) which result from
any tax owed by Lessor, except any Tax for which Lessee is
obligated to indemnify.
"Lessor's Cost" means the aggregate amount paid or advanced
by Lessor on each Advance Date with respect to the Property plus
all Capitalized Interest and Capitalized Yield plus all
Transaction Costs paid by Lessor.
"Liabilities" is defined in Section 1 of the Guaranty.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge or other security interest or preference, priority
or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any
Financing Lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement
under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing except for the
filing of financing statements in connection with Lease
Obligations incurred by the Company or its Subsidiaries to the
extent that such financing statements relate to the property
subject to such Lease Obligations).
"Limited Recourse Amount" means, with respect to the Lease,
the positive difference of the Termination Value less the
Guaranteed Residual Amount.
"Loans" has the meaning set forth in Section 2.1 of the Loan
Agreement.
"Loan Agreement" means the Loan Agreement, dated as of March
27, 1998, among Lessor and the Lenders, substantially in the form
of Exhibit C to the Participation Agreement.
"Loan Default" means any event, condition or failure which,
with notice or lapse of time or both, would become a Loan Event
of Default.
"Loan Documents" mean the Loan Agreement, the Notes, the
Mortgage, the Assignment of Lease and all documents and
instruments executed and delivered in connection with each of the
foregoing.
"Loan Event of Default" means any event, condition or
failure designated as a "Loan Event of Default" in Section 6.1 of
the Loan Agreement.
"Loan Participant" has the meaning specified in Section
6.4(a)of the Participation Agreement.
"Loan Policy" has the meaning set forth in Section 3.2(d) of
the Participation Agreement.
"Loss Proceeds" means all Net Condemnation Proceeds and
property insurance proceeds received at any time from any
Authority or other Person with respect to any Event of Loss.
"Major Construction Document" has the meaning specified in
Section 2.6 of the Construction Agency Agreement.
"Material Adverse Effect" means a material adverse effect on
(i) the business, operations, property, condition (financial or
otherwise) or prospects of the Company and its Subsidiaries,
taken as a whole, (ii) the transactions contemplated by the
Operative Documents, (iii) the validity or enforceability of any
of the Operative Documents or (iv) any rights or remedies of the
Administrative Agent or the Lenders under any thereof.
"Material Environmental Amount" means an amount payable by
the Lessee and/or its Subsidiaries in excess of $10,000,000 for
remedial costs, non-routine compliance costs, compensatory
damages, punitive damages, fines, penalties or any combination
thereof.
"Material Subsidiary" means each Domestic Subsidiary of the
Lessee which has either (a) assets having a fair market value (as
reasonably estimated by the Lessee) or book value in excess of
$10,000,000 in the aggregate or (b) revenues in excess of
$10,000,000 per annum, other than (x) Reebok Securities Holdings
Corp., during such time as its only material asset is capital
stock of RBK Holdings plc, (y) Avintco, Inc., during the period
prior to the first anniversary of the Documentation Date and (z)
Reebok Foundation, Inc.
"Modifications" has the meaning set forth in Section 9.2(a)
of the Lease.
"Moody's" means Moody's Investors Service, Inc., or any
successor thereto.
"Mortgage" means the mortgage between Lessor and
Administrative Agent, substantially in the form of Exhibit E-1 to
the Participation Agreement.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Net Condemnation Proceeds" means all payments received from
any Authority relating to an Event of Taking after deducting the
costs incurred by Lessee, Administrative Agent or any Participant
in respect of the receipt thereof.
"Non-Consenting Participant" has the meaning set forth in
Section 2.8(a).
"Nonseverable" shall describe a Modification or part of a
Modification of which cannot be readily removed from the Property
without causing material damage to or materially impairing the
value or utility of such Property.
"Notes" means the notes issued by the Borrower under the
Loan Agreement and denominated as such, substantially in the form
of Exhibit A to the Loan Agreement, and any and all Notes issued
in replacement or exchange therefor in accordance with the
provisions thereof.
"Officer's Certificate" of (a) a Person other than the
Company, means a certificate signed by the Chairman of the Board
of Directors or the President or any Executive Vice President or
any Senior Vice President or any other Vice President of such
Person signing with the Treasurer or any Assistant Treasurer or
the Controller or any Assistant Controller or the Secretary or
any Assistant Secretary of such Person, or by any Vice President
who is also Controller or Treasurer signing alone and (b) the
Company, means a certificate signed by a Responsible Officer of
the Company.
"Operative Documents" means the Participation Agreement, the
Lease, the Guaranty, the Construction Agency Agreement, the
Construction Agency Agreement Supplement, the Assignment of
Construction Documents, the Loan Agreement, the Notes, the
Mortgage, the Assignment of Lease, the Assignment of Lease
Supplement, the Purchase Agreement Assignment and the
Environmental Indemnity.
"Overall Transaction" means all the transactions and
activities referred to in or contemplated by the Operative
Documents.
"Overdue Rate" means the lesser of (i) in the case of
Eurodollar Loans, (A) until the end of the applicable Interest
Period at a rate per annum of 2.00% above the rate otherwise
applicable to such Loans, and (B) thereafter in accordance with
the following clause (ii); and (ii) in the case of any other
amount due from Lessee under any of the Operative Documents,
2.00% above the then current ABR plus the Applicable Margin.
"Participants" means the Lessor and the Lenders,
collectively.
"Participation Agreement" means the Participation Agreement,
dated as of March 27, 1998, among the Company, Lessor, the
Lenders and the Administrative Agent.
"Payment Date" means each Interest Payment Date, any date
all or any portion of the outstanding principal amount of the
Loans are paid and the Lease Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Permits" has the meaning set forth in Section 4.1(o) of the
Participation Agreement.
"Permitted Contest" means actions taken by a Person to
contest in good faith, by appropriate proceedings initiated
timely and diligently prosecuted, the legality, validity or
applicability of: (a) any law, regulation, rule, judgment,
order, or other legal provision or judicial or administrative
requirements; (b) any term or condition of, or any revocation or
amendment of, or other proceeding relating to, any authorization
or other consent, approval or other action by any Authority; or
(c) any Lien or Tax; provided that the initiation and prosecution
of such contest would not: (i) result in, or materially increase
the risk of, the imposition of any criminal liability on any
Indemnitee; (ii) materially and adversely affect the Lien created
by the Operative Documents or the right, title or interest of
Administrative Agent or Lessor in or to the Property or the right
of Administrative Agent or any Participant to receive payment of
the principal of or interest on any Note, Investor Balance or
Yield on any Investor Amount or Rent or the Lease Balance or any
interest therein; or (iii) materially and adversely affect the
fair market value, utility or remaining useful life of the
Property or any interest therein or the continued economic
operation thereof; and provided further that in any event
adequate reserves in accordance with GAAP are maintained against
any adverse determination of such contest (with the determination
of the adequacy of reserves taking into account the availability
of insurance from reputable insurers).
"Permitted Exceptions" mean the exceptions set forth in the
Title Policies.
"Permitted Investments" means (i) securities issued or
directly and fully guaranteed or insured by the United States
Government or any agency or instrumentality thereof having
maturities of not more than twelve months from the date of
acquisition, (ii) certificates of deposit and eurodollar time
deposits with maturities of twelve months or less from the date
of acquisition, bankers' acceptances with maturities not
exceeding twelve months and overnight bank deposits, in each case
with any Participant or with any domestic commercial bank having
capital and surplus in excess of $300,000,000, (iii) repurchase
obligations with a term of not more than seven days for
underlying securities of the types described in clauses (i) and
(ii) entered into with any financial institution meeting the
qualifications specified in clause (ii) above, (iv) commercial
paper (x) issued by any Participant or the parent corporation of
any Participant, or (y) rated A-1 or the equivalent thereof by
S&P or P-1 or the equivalent thereof by Moody's and in each case
maturing within twelve months after the date of acquisition and
(v) shares of money market mutual funds or similar funds which
invest exclusively in assets satisfying the requirements of
clauses (i) through (iv) of this definition.
"Permitted Liens" means (a) the respective rights and
interests of Lessee, Lessor, Administrative Agent and the
Lenders, as provided in the Operative Documents, (b) Lessor
Liens, (c) Liens for Taxes either not yet delinquent or being
contested by a Permitted Contest, (d) carriers', warehousemen's,
materialmen's, mechanics', workers', repairmen's, employees' or
other like Liens arising in the ordinary course of business for
amounts either not overdue for a period of more than 90 days or
being contested by a Permitted Contest, (e) Liens arising after
an Advance Date out of judgments or awards with respect to which
at the time an appeal or proceeding for review is being
prosecuted in good faith and either have been bonded to the
satisfaction of Administrative Agent or the enforcement of such
Lien has been stayed pending such appeal or review, (f) easements
(including reciprocal easement agreements), rights-of-way,
building, zoning and similar restrictions, utility agreements,
covenants, reservations, restrictions, encroachments, changes,
and other similar encumbrances or title defects incurred in the
ordinary course of business, which do not interfere with or
adversely affect, in any material respect the ordinary conduct of
the business of the Lessee of the Property and which do not
impair the perfection of the Lien of the Mortgage,(g) Permitted
Exceptions, (h) the rights of any sublessee under a sublease
permitted by the terms of the Lease, (i) Liens of any of the
types referred to in clause (d) above that have been bonded for
not less than the full amount of such dispute (or for which
security arrangements reasonably satisfactory to the
Administrative Agent have been made), which bonding (or
arrangements) shall comply with Applicable Laws, and has
effectively stayed any execution or enforcement of such Liens,
(j) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance
or self-insurance arrangements, and (k) deposits to secure the
performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred
in the ordinary course of business; provided that such
encumbrance is subordinate to the Mortgage or such developer,
landlord or other third party has executed and delivered a non-
disturbance agreement in form and substance satisfactory to the
Administrative Agent.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Authority or other entity of whatever
nature.
"Plan" means any pension plan which is covered by Title IV
of ERISA and in respect of which the Company or a Commonly
Controlled Entity is an "employer" as defined in Section 3(5) of
ERISA.
"Plans and Specifications" means, with respect to the
Property, the plans and specifications for the Facility to be
constructed on such Property, as amended or supplemented from
time to time.
"Preacquisition Amount" has the meaning set forth in the
Recitals to the Participation Agreement.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City.
"Proceeds" has the meaning specified in Section 6.3 of the
Lease.
"Prohibited Transaction" means a transaction that is
prohibited under Code Section 4975 or ERISA Section 406 and not
exempt under Code Section 4975 or ERISA Section 408.
"Property" means the Land, together with the Facility.
"Purchase Agreement" means the purchase agreement between
the seller of the Land and Lessee, in form and substance
reasonably acceptable to Administrative Agent and its counsel.
"Purchase Option" has the meaning set forth in Section 6.1
of the Lease.
"Purchase Option Price" has the meaning set forth in Section
6.1 of the Lease.
"Purchasing Participant" means a permitted transferee of a
Participant pursuant to Section 6.4.
"Qualified Facility Costs" has the meaning set forth in
Section 3.5(a).
"Real Estate Financing" means any financing or financings in
the nature of Indebtedness secured by the interest in real
property and/or equipment of the Company and its Subsidiaries
(other than any Indebtedness incurred hereunder) and any
refinancings of any of the foregoing. The Overall Transaction,
and liabilities and obligations incurred in connection therewith
and the Lease, shall be deemed not to be a Real Estate Financing
"Reference Banks" means Credit Suisse First Boston, Fleet
National Bank and Wachovia Bank, N.A.
"Regulated Activity" means the use, Release, generation,
treatment, storage, recycling, transportation or disposal of
Hazardous Material to the extent such activities are regulated by
any Authority.
"Regulations" mean the income tax regulations promulgated
from time to time under and pursuant to the Code.
"Related Sales Expenses" means all costs related to such
sale and delivery, including costs of sales agents, removal of
improvements, delivery of documents, filing and documentary
transfer fees, title insurance, certification and testing of the
Property, legal costs, costs of notices, any advertisement or any
other similar cost or other information shall be borne entirely
by Lessee without regard to whether such costs were incurred by
Lessor, the Administrative Agent or any Lender. Lessee shall not
pay Related Sales Expenses from any of the Proceeds. Neither
Lessor nor Administrative Agent shall have any responsibility for
procuring any buyer for the Property.
"Release" means the release, deposit, disposal or leak of
any Hazardous Material into or upon or under any land or water or
air, or otherwise into the environment, including by means of
burial, disposal, discharge, emission, injection, spillage,
leakage, seepage, leaching, dumping, pumping, pouring, escaping,
emptying, placement and the like.
"Remarketing Option" has the meaning specified in Section
6.2 of the Lease.
"Renewal Option" has the meaning set forth in Section 2.4 of
the Lease.
"Renewal Term" has the meaning set forth in Section 2.4 of
the Lease.
"Renewal Term Expiration Date" means March 27, 2006.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Rent Installment Period" means, with respect to the Lease,
a period that corresponds to each Interest Period.
"Rent Payment Date" means each Payment Date.
"Reorganization" means with respect to a Multiemployer Plan,
the condition that such Plan is in reorganization as such term is
used in Section 4241 of ERISA.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder.
"Required Entities" means, as of the date of the
determination, Lenders and the Lessor having aggregate
investments in the Overall Transaction (as measured by the
outstanding principal amount of the Loans then outstanding or the
Investor Balance, as applicable) equal to more than 50% of all
such investments.
"Requirement of Law" means, as to any Person, the
certificate of incorporation and by-laws or other organizational
or governing documents of such Person, and any law, treaty, role
or regulation or determination of an arbitrator or a court or
other Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of
its property is subject.
"Responsible Officer" means the chief executive officer,
president, executive vice president or the chief operating
officer of the Company or, with respect to financial matters, the
chief financial officer, treasurer or, solely for purposes of
signing Advance Requests, the manager of treasury services of the
Company.
"Revolving Credit Agreement" means the Amended and Restated
Credit and Guarantee Agreement dated as of July 1, 1997 among the
Company, Reebok International Limited, the several banks and
other financial institutions from time to time parties thereto,
several co-agents referenced therein, Citibank, N.A. as
documentation agent and Credit Suisse First Boston as
Administrative Agent.
"Sale Deposit" has the meaning set forth in Section 6.2(c)
of the Lease.
"Sale Deposit Escrow Agreement" has the meaning set forth in
Section 6.2(c) of the Lease.
"S&P" means Standard & Poor's Rating Services, a division of
The McGraw-Hill Companies, Inc. or any successor thereto.
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933.
"Securities Exchange Act" means the Securities Exchange Act
of 1934.
"Seller" has the meaning set forth in the Recitals of the
Lease.
"Single Employer Plan" means any Plan which is not a
Multiemployer Plan.
"Soft Costs" shall mean out-of-pocket costs incurred by
Lessor or Construction Agent and payable to unaffiliated third
parties in connection with the acquisition of, due diligence and
feasibility investigations relating to, and preparation for
development of the Land including production of plans and
specifications, architectural and engineering fees, legal and
accounting fees, permit and license fees and other such similar
costs.
"Special Period" means the period commencing on (and
including) the Special Prepayment Date on which Lessor prepays
$30,000 of the outstanding Loans and ending on (but excluding)
the Special Prepayment Anniversary Date on which the Lenders make
a Loan pursuant to Section 2.1 of the Loan Agreement.
"Special Prepayment Anniversary Date" means the first day on
or after the first anniversary of the Special Prepayment Date on
which Lenders make the Loan in accordance with Section 2.1 of the
Loan Agreement.
"Special Prepayment Date" means the first anniversary of the
initial Advance Date.
"Sublease" has the meaning specified in Article XII of the
Lease.
"Subsidiary" means as to any Person, a corporation,
partnership or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation,
partnership or other entity are at the time owned directly or
indirectly through one or more intermediaries, or both, by such
Person. A Subsidiary shall be deemed wholly owned by a Person if
such Person owns all of the shares of stock or other ownership
interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of
directors or other managers of such Subsidiary; provided that
(during such time as common stock of the Company constitutes its
only material asset) RBK Holdings plc shall be deemed not to
constitute a Subsidiary of the Company for any purpose hereunder,
other than for purposes of (a) calculation of financial covenants
and (b) presentation of financial statements. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Company.
"Subtenant" has the meaning set forth in Article XII of the
Lease.
"Supplemental Rent" means any and all amounts, liabilities
and obligations other than Basic Rent which Lessee assumes or
agrees or is otherwise obligated or designated to pay under the
Lease or any other Operative Document (whether or not designated
as Supplemental Rent) to any Agent, the Lenders, the Indemnitees
or any other Person, including Additional Costs (other than
Additional Costs and expenses incurred by the Lenders in
connection with a Loan Event of Default where no Lease Event of
Default then exists), amounts under Article XIX of the Lease and
indemnities and damages for breach of any covenants,
representations, warranties or agreements, but excluding payments
to Persons, other than any Agent, the Lenders and the Indemnitees
pursuant to leases, reciprocal easement agreements and other
agreements with respect to the Property for which Lessee is
obligated or designated to pay.
"Syndication Agent" means Wachovia Bank, N.A., in its
capacity as Syndication Agent for the Lenders under the Loan
Agreement and the Participation Agreement.
"Taxes" and "Tax" mean any and all fees (including
documentation, recording, license and registration fees), taxes
(including income (whether net, gross or adjusted gross),
financial institutions, franchise, gross receipts, sales, rental,
use, turnover, value-added, property, excise and stamp taxes),
levies, imposts, duties, charges, assessments or withholdings of
any nature whatsoever, together with any penalties, fines or
interest thereon or additions thereto.
"Termination Date" means the Base Term Expiration Date or
the last scheduled date of a Renewal Term then in effect, in each
case where no succeeding Renewal Term has been agreed upon
pursuant to Section 2.8.
"Termination Value" means, as of any date of determination,
the sum of (a) the Lease Balance as of the date of purchase, plus
(b) all accrued but unpaid Rent[, plus (c) all other sums then
due and payable under the Operative Documents by Lessee and any
of its Affiliates].
"Title Insurance Company" means Old Republic Title Insurance
and its successors and assigns.
"Title Policies" have the meaning specified in Section
3.2(d) of the Participation Agreement.
"Tranche A Loans" has the meaning set forth in Section 2.2
of the Loan Agreement.
"Tranche B Loans" has the meaning set forth in Section 2.2
of the Loan Agreement.
"Transaction Costs" means transaction costs and expenses
incurred by the Arranger, Lessee, with the consent of the
Administrative Agent, Lessor, Administrative Agent and the
Lenders in connection with the consummation of the transactions
contemplated by the Operative Documents, and the preparation,
negotiation, execution and delivery of the Operative Documents,
including (1) the reasonable fees and expenses of Mayer, Brown &
Platt, special counsel to the Lessor; (2) the reasonable fees and
expenses of local real estate counsel to Lessee; (3) all
appraisal fees and reasonable expenses, including the cost of an
appraisal obtained by Lessor with respect to the Property upon a
Lease Default or Lease Event of Default; (4) all recording and
filing fees incurred in connection with the filing of the Lease
and the Mortgage, including fees and expenses of the Title
Insurance Company; (5) all costs and expenses of the company
engaged to survey the Property; (6) all costs and expenses of the
preparation of the Environmental Audit; (7) all fees, costs and
expenses of Administrative Agent; (8) the fees incurred by Lessor
to purchase residual value insurance; and (9) the Arrangement
Fee.
"Type" means, as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"UCC" means the Uniform Commercial Code of New York or any
other applicable jurisdiction.
"Wholly-owned Subsidiary" of any Person means a Subsidiary
of such Person all of the outstanding capital stock or other
ownership interests of which shall at the time be owned by such
Person or by one or more Wholly-owned Subsidiaries of such Person
or any such Person and one or more Wholly-owned Subsidiaries of
such Person.
"Yield" means, with respect to each Interest Period, (a) the
Yield Rate for such Interest Period multiplied by (b) the
outstanding Investor Balance.
"Yield Rate" with respect to each Interest Period, the
applicable rate at which Yield shall accrue and be payable from
time to time on the Advances, which rate shall be the rate per
annum equal to the sum of (i) the Eurodollar Rate for such
Interest Period plus (ii) 200 basis points.
SCHEDULE I
Lessor Commitment
Commitment
Lessor Commitment Percentage
Credit Suisse
Leasing
92A, L.P. $4,500,000.00 3.0000%
It being understood that the Preacquisition Amount advanced by
Lessor to Lessee for Soft Costs prior to the Documentation Date
is deemed to have reduced the Commitment of Lessor set forth
above by such amount.
SCHEDULE II
Lenders Commitments
Commitment
Lender Commitment Percentage
ABN-AMRO Bank N.V. $15,000,000.00 10.0000%
Banque Nationale De
Paris $15,000,000.00 10.0000%
Citicorp USA, Inc. $15,000,000.00 10.0000%
Credit Suisse
First Boston $40,500,000.00 27.0000%
Fleet National Bank $30,000,000.00 20.0000%
Wachovia Bank, N.A. $30,000,000.00 20.0000%
EXHIBIT 10.2
______________________________________
LEASE
Dated as of March 27, 1998
between
CREDIT SUISSE LEASING 92A, L.P., as Lessor,
and
REEBOK INTERNATIONAL LTD., as Lessee
______________________________________
ALL RIGHT, TITLE AND INTEREST OF LESSOR UNDER THIS LEASE AND THE
PROPERTY SUBJECT HERETO HAVE BEEN AND WILL BE ASSIGNED BY CREDIT
SUISSE LEASING 92A, L.P., TO, AND ARE SUBJECT TO A LIEN IN FAVOR
OF CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS NEW YORK
BRANCH("ADMINISTRATIVE AGENT") UNDER THAT CERTAIN MORTGAGE,
ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE
FILING STATEMENT (AS SUCH AGREEMENTS AND INSTRUMENTS MAY BE
AMENDED AND/OR SUPPLEMENTED TO THE EXTENT PERMITTED THEREBY), FOR
THE BENEFIT OF THE PARTICIPANTS REFERRED TO IN SUCH SECURITY
INSTRUMENTS. THIS LEASE HAS BEEN EXECUTED IN SEVERAL
COUNTERPARTS. TO THE EXTENT, IF ANY, THAT THIS LEASE CONSTITUTES
CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY
INTEREST IN THIS LEASE MAY BE CREATED THROUGH THE TRANSFER OR
POSSESSION OF ANY COUNTERPART HEREOF OTHER THAN THE ORIGINAL
EXECUTED COUNTERPART NO. 1", WHICH SHALL BE IDENTIFIED AS THE
COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY LESSEE ON
OR FOLLOWING THE SIGNATURE PAGE THEREOF.
SEE SECTION 20.18 FOR THE NATURE OF THIS TRANSACTION AND
INTENTION OF THE PARTIES.
THIS COUNTERPART IS [NOT] THE ORIGINAL EXECUTED COUNTERPART
NO. 1.
TABLE OF CONTENTS
(Lease)
Page
||
ARTICLE I
DEFINITIONS; LESSEE LIABILITY. . . . . . . . . . . . . . 1
ARTICLE II
LEASE OF SITES; LEASE TERM . . . . . . . . . . . . . . . 2
SECTION 2.1. Acceptance and Lease of Property
and Facilities. . . . . . . . . . . . . . . . 2
SECTION 2.2. Acceptance Procedure . . . . . . . . . . . . . 2
SECTION 2.3. Lease Term . . . . . . . . . . . . . . . . . . 2
SECTION 2.4. Lease Extension. . . . . . . . . . . . . . . . 2
ARTICLE III
OTHER PROPERTY . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV
RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 4.1. Basic Rent . . . . . . . . . . . . . . . . . . 3
SECTION 4.2. Supplemental Rent. . . . . . . . . . . . . . . 3
SECTION 4.3. Manner of Payment. . . . . . . . . . . . . . . 4
SECTION 4.4. Late Payment . . . . . . . . . . . . . . . . . 4
SECTION 4.5. Net Lease; No Setoff; etc. . . . . . . . . . . 5
ARTICLE V
UTILITY CHARGES . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI
SALE, RETURN AND PURCHASE OPTIONS. . . . . . . . . . . . . 7
SECTION 6.1. Purchase Option. . . . . . . . . . . . . . . . 7
SECTION 6.2. Remarketing Option . . . . . . . . . . . . . . 7
SECTION 6.3. Procedures for Sale of the Property. . . . . . 9
SECTION 6.4. Exercise of Options; Failure to Elect. . . . . 11
SECTION 6.5. Return of Property . . . . . . . . . . . . . . 11
SECTION 6.6. Remarketing Failure to Sell Property . . . . . 12
ARTICLE VII CONDITION AND USE OF PROPERTY. . . . . . . . . . 13
SECTION 7.1. Waivers. . . . . . . . . . . . . . . . . . . . 13
ARTICLE VIII LIENS; EASEMENTS . . . . . . . . . . . . . . . . 15
SECTION 8.1. Liens. . . . . . . . . . . . . . . . . . . . . 15
SECTION 8.2. No Lessor Consent or Liability . . . . . . . . 15
SECTION 8.3. Easements; Amendments to Underlying Lease. . . 15
ARTICLE IX MAINTENANCE AND REPAIR; ALTERATIONS AND
ADDITIONS. . . . . . . . . . . . . . . . . . . 17
SECTION 9.1. Maintenance and Repair;
Compliance With Law . . . . . . . . . . . . . 17
SECTION 9.2. No Alteration or Construction. . . . . . . . . 18
SECTION 9.3. Financing of Modifications . . . . . . . . . . 20
SECTION 9.4. Permitted Contests . . . . . . . . . . . . . . 23
ARTICLE X USE . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE XI INSURANCE . . . . . . . . . . . . . . . . . . . . . 24
SECTION 11.1. Required Coverages . . . . . . . . . . . . . . 24
SECTION 11.2. Delivery of Insurance Certificates . . . . . . 25
ARTICLE XII ASSIGNMENT AND SUBLEASING . . . . . . . . . . . . 26
ARTICLE XIII LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE . . . . 27
SECTION 13.1. Event of Loss; Condemnation or Casualty. . . . 27
SECTION 13.2. Application of Payments Relating
to an Event of Loss . . . . . . . . . . . . . 28
SECTION 13.3. Application of Certain Payments
Relating to a Condemnation. . . . . . . . . . 28
SECTION 13.4. Casualty . . . . . . . . . . . . . . . . . . . 28
SECTION 13.5. Other Dispositions . . . . . . . . . . . . . . 28
SECTION 13.6. Negotiations . . . . . . . . . . . . . . . . . 29
SECTION 13.7. No Rent Abatement. . . . . . . . . . . . . . . 29
ARTICLE XIV NON-INTERFERENCE. . . . . . . . . . . . . . . . . 29
SECTION 14.1. Non-Interference . . . . . . . . . . . . . . . 29
SECTION 14.2. Certain Duties and Responsibilities of Lessor. 30
ARTICLE XV INSPECTION AND REPORTS . . . . . . . . . . . . . . 30
SECTION 15.1. Inspection . . . . . . . . . . . . . . . . . . 30
SECTION 15.2. Reports. . . . . . . . . . . . . . . . . . . . 31
ARTICLE XVI OWNERSHIP, GRANT OF SECURITY INTEREST
AND FURTHER ASSURANCES. . . . . . . . . . . . . . 31
SECTION 16.1. Grant of Security Interest . . . . . . . . . . 31
SECTION 16.2. Release of Liens; Transfer of Property . . . . 32
SECTION 16.3. Attorney-in-Fact . . . . . . . . . . . . . . . 32
ARTICLE XVII LEASE EVENTS OF DEFAULT. . . . . . . . . . . . . 33
ARTICLE XVIII ENFORCEMENT . . . . . . . . . . . . . . . . . . 37
SECTION 18.1. Remedies . . . . . . . . . . . . . . . . . . . 37
SECTION 18.2. Proceeds of Sale; Deficiency . . . . . . . . . 42
SECTION 18.3. Grant and Foreclosure on Lessee s Estate . . . 42
SECTION 18.4. Remedies Cumulative; No Waiver; Consents . . . 42
ARTICLE XIX RIGHT TO PERFORM FOR LESSEE . . . . . . . . . . . 43
ARTICLE XX MISCELLANEOUS . . . . . . . . . . . . . . . . . . 43
SECTION 20.1. Binding Effect; Successors and
Assigns; Survival . . . . . . . . . . . . . . 43
SECTION 20.2. Severability . . . . . . . . . . . . . . . . . 44
SECTION 20.3. Notices. . . . . . . . . . . . . . . . . . . . 44
SECTION 20.4. Amendment; Complete Agreements . . . . . . . . 44
SECTION 20.5. Headings . . . . . . . . . . . . . . . . . . . 44
SECTION 20.6. Original Lease . . . . . . . . . . . . . . . . 45
SECTION 20.7. GOVERNING LAW. . . . . . . . . . . . . . . . . 45
SECTION 20.8. Discharge of Lessee's Obligations by Its
Affiliates . . . . . . . . . . . . . . . . . . 45
SECTION 20.9. Liability of Lessor Limited. . . . . . . . . . 45
SECTION 20.10. Estoppel Certificates. . . . . . . . . . . . . 46
SECTION 20.11. No Joint Venture . . . . . . . . . . . . . . . 46
SECTION 20.12. No Accord and Satisfaction . . . . . . . . . . 47
SECTION 20.13. No Merger. . . . . . . . . . . . . . . . . . . 47
SECTION 20.14. Survival . . . . . . . . . . . . . . . . . . . 47
SECTION 20.15. Enforcement of Certain Warranties. . . . . . . 47
SECTION 20.16. Investment of Security Funds . . . . . . . . . 48
SECTION 20.17. Recording of Lease Supplements or Memoranda. . 48
SECTION 20.18. Nature of Transaction. . . . . . . . . . . . . 49
||
SCHEDULE I - Description of Property Delivered on Documentation
Date
THIS LEASE dated as of March 27, 1998 (as amended,
supplemented, or otherwise modified from time to time, this
"Lease"), between CREDIT SUISSE LEASING 92A, L.P., as Lessor
("Lessor") and REEBOK INTERNATIONAL LTD., as Lessee ("Lessee")
amends and restates in its entirety the Agreement to Lease dated
as of August 20, 1997 between Credit Suisse Leasing 92A, L.P., as
Lessor, and Reebok International Ltd., as Lessee.
R E C I T A L S
A. Lessee has previously entered into that certain
Purchase and Sale Agreement dated as of August 20, 1996 (the
"Purchase Agreement"), by and between Lessee, as purchaser, and
Instron Realty Trust, as seller ("Seller"), wherein Seller has
agreed to sell to Lessee, and Lessee has agreed to purchase from
Seller, that certain unimproved Property located in Canton,
Norfolk County, Massachusetts, more particularly described in
Exhibit A attached to the Agreement to Lease (the "Property"),
upon the terms and conditions set forth in the Purchase
Agreement.
B. Lessee desires to enter into the Overall Transaction
for the purpose of financing the acquisition of the Property and
construction of a facility thereon.
C. Subject to the terms and conditions of this Lease, on
the Documentation Date, Lessor will lease the Property to the
Lessee for the Lease Term pursuant to this Lease.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, hereby
agree as follows:
ARTICLE I
DEFINITIONS; LESSEE LIABILITY
For all purposes hereof, the capitalized terms used herein
and not otherwise defined shall have the meanings assigned
thereto in Appendix 1 to that certain Participation Agreement
dated as of March 27, 1998, among Lessee, Lessor, Administrative
Agent and Lenders identified therein (the "Participation
Agreement"). All obligations imposed on the Lessee in this Lease
shall be the full recourse liability of the Lessee.
ARTICLE II
LEASE OF SITES; LEASE TERM
SECTION 2.1. Acceptance and Lease of Property and
Facilities. On the Documentation Date, Lessor, subject to the
satisfaction or waiver of the conditions set forth in Article III
of the Participation Agreement, hereby agrees to purchase and
accept delivery on such Documentation Date of the Property to be
delivered on such Documentation Date pursuant to the terms of the
Participation Agreement and simultaneously to lease such Property
to Lessee hereunder, and Lessee, subject to the satisfaction or
waiver of the conditions set forth in Article III of the
Participation Agreement, hereby agrees, expressly for the direct
benefit of Lessor, to lease commencing on such Documentation Date
from Lessor for the Lease Term, such Property to be delivered on
such Documentation Date.
SECTION 2.2. Acceptance Procedure. Lessor hereby
authorizes one or more employees of Lessee, to be designated by
Lessee, as the authorized representative or representatives of
Lessor to accept delivery of the Property identified on the
Documentation Date. Lessee hereby agrees that such acceptance of
delivery by such authorized representative or representatives
shall, without further act, constitute the irrevocable acceptance
by Lessee of the Property and any improvement built or to be
built thereon for all purposes of this Lease and the other
Operative Documents on the terms set forth therein and herein.
SECTION 2.3. Lease Term. Unless earlier terminated, the
term of this Lease shall consist of (a) a base term (the "Base
Term"), commencing on and including the Documentation Date and
ending on the sixth anniversary of the Documentation Date (the
"Base Term Expiration Date") and (b) each Renewal Term, if agreed
upon (the Base Term and each Renewal Term, if any, collectively
the "Lease Term").
SECTION 2.4. Lease Extension. Lessee may elect to extend
this Lease(a "Renewal Option"), with the consent of Lessor, for
an additional two-year renewal term (the "Renewal Term"),
commencing immediately following expiration of the preceding
term, each such renewal option not to be exercised more than five
(5) times, and such renewals being further subject to the
coterminous extension of the maturity date of the Loan Agreement;
provided that Lessee's election to extend the Lease for a Renewal
Term shall be null and void and of no force or effect unless, as
of the last day of the Base Term, Lessee shall have
satisfactorily fulfilled each of the terms and conditions
respecting the Renewal Term set forth in Section 6.4 and Section
2.8 of the Participation Agreement.
ARTICLE III
OTHER PROPERTY
Lessee may from time to time own or hold under lease from
Persons other than Lessor and/or finance and secure under the
UCC, furniture, inventory, machinery, trade fixtures and
equipment located on or about the Property that is not subject to
this Lease. Lessor shall from time to time, upon the reasonable
request, and at the cost and expense of Lessee, which request
shall be accompanied by such supporting information and documents
as Lessor may reasonably require, promptly acknowledge in writing
to Lessee or other Persons that the particular items of
furniture, inventory, machinery, trade fixtures and equipment in
question are not part of the related Property and that, subject
to the rights of Lessor under any other Operative Documents,
Lessor does not own or have any other right or interest in or to
such furniture, inventory, machinery, trade fixtures and
equipment.
ARTICLE IV
RENT
SECTION 4.1. Basic Rent. Lessee shall pay to Lessor
installment payments of Basic Rent during the Base Term and, if
applicable, each Renewal Term then in effect, on each Rent
Payment Date. Each installment of Basic Rent shall be in an
amount equal to the sum of Interest and Yield due and payable to
the Participants on such date by the Lessor.
SECTION 4.2. Supplemental Rent. Lessee shall pay to
Lessor, or to whomever shall be entitled thereto as expressly
provided herein or in any other Operative Document (and Lessor
hereby directs Lessee, on behalf of Lessor, to so pay any such
other Person), any and all Supplemental Rent promptly as the same
shall become due and payable and, in the event of any failure on
the part of Lessee to pay any Supplemental Rent, Lessor shall
have all rights, powers and remedies provided for herein or by
law or in equity or otherwise in the case of nonpayment of Basic
Rent. Lessee hereby reaffirms its obligation to pay as
Supplemental Rent any and all Additional Costs (other than
Additional Costs incurred in connection with a Loan Event of
Default where no Lease Event of Default then exists).
SECTION 4.3. Manner of Payment. As long as any obligations
remain outstanding under the Loan Agreement, Basic Rent and
Supplemental Rent shall be paid on the due date therefor to
Lessor (or, in the case of Supplemental Rent, to such Person as
may be entitled thereto) at such place as Lessor (or such other
Person) shall specify in writing to Lessee at least two (2)
Business Days prior to the due date therefor. Lessor shall
notify Lessee of the applicable LIBO Rate or the ABR promptly
upon the determination thereof. Each payment of Rent shall be
made by Lessee prior to 11:00 a.m. Boston, Massachusetts time
(and payments made after such time shall be deemed to have been
made on the next day) at the place of payment in funds consisting
of lawful currency of the United States of America which (in the
case of any amount payable to Lessor) shall be immediately
available on the scheduled date when such payment shall be due,
unless (a) with respect to Basic Rent determined by reference to
the LIBO Rate, the definition of "Interest Period" requires
otherwise or (b) with respect to all other Rent, the scheduled
date shall not be a Business Day, in which case such payment
shall be made on the next succeeding Business Day (unless the
result of such extension would be to carry such payment into the
next calendar month, in which event such payment shall be made on
the next preceding Business Day). The provisions of the
foregoing sentence of this Section 4.3 shall be applicable only
to Basic Rent and to Supplemental Rent payable to, or on behalf
of, or for the account of, Lessor.
SECTION 4.4. Late Payment. If any Basic Rent shall not be
paid when due, Lessee shall pay to Lessor, or if any Supplemental
Rent payable to or on behalf of or for the account of Lessor is
not paid when due, Lessee shall pay to whomever shall be entitled
thereto, in each case as Supplemental Rent, interest at the
Overdue Rate (to the maximum extent permitted by law) on such
overdue amount from and including the due date thereof (not
including any applicable grace period) to but excluding the
Business Day of payment thereof at the Overdue Rate.
SECTION 4.5. Net Lease; No Setoff; etc. This Lease is a
net lease and, notwithstanding any other provision of this Lease,
it is intended that Basic Rent and Supplemental Rent shall be
paid without counterclaim, setoff, deduction or defense of any
kind and without abatement, suspension, deferment, diminution or
reduction of any kind, and Lessee's obligation to pay all such
amounts, throughout the Lease Term is absolute and unconditional.
The obligations and liabilities of Lessee hereunder shall in no
way be released, discharged or otherwise affected for any reason,
including, without limitation, to the maximum extent permitted by
law: (a) any defect in the condition, merchantability, design,
construction, quality or fitness for use of the Property, or any
failure of the Property to comply with all Applicable Law,
including any inability to occupy or use the Property by reason
of such non-compliance; (b) any damage to, abandonment, loss,
contamination of or Release from or destruction of or any
requisition or taking of the Property or any part thereof,
including eviction; (c) any restriction, prevention or
curtailment of or interference with any use of the
Property or any part thereof, including eviction; (d) any defect
in title to or rights to the Property or any Lien on such title
or rights or on the Property; (e) any change, waiver, extension,
indulgence or other action or omission or breach in respect of
any obligation or liability of or by Lessor, any Administrative
Agent or any Lender; (f) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation
or other like proceedings relating to Lessee, Lessor, any
Administrative Agent, any Lender or any other Person, or any
action taken with respect to this Lease by any trustee or
receiver of Lessee, Lessor, any Administrative Agent, any Lender
or any other Person, or by any court, in any such proceeding; (g)
any claim that Lessee has or might have against any Person,
including Lessor, or any Lender; (h) any failure on the part of
Lessor to perform or comply with any of the terms of this Lease,
any other Operative Document or of any other agreement whether or
not related to the Overall Transaction; (i) any invalidity or
unenforceability or disaffirmance against or by Lessee of this
Lease or any provision hereof or any of the other Operative
Documents or any provision of any thereof; (j) the impossibility
of performance by Lessee, Lessor or both; (k) any action by any
court, administrative agency or other Authority; (l) any
restriction, prevention or curtailment of or any interference
with the construction on or any use of the Property or any part
thereof; or (m) any other occurrence whatsoever, whether similar
or dissimilar to the foregoing, whether or not Lessee shall have
notice or knowledge of any of the foregoing. Except as
specifically set forth in Section 6.1 or Article XIII of this
Lease, this Lease shall be noncancellable by Lessee for any
reason whatsoever, and Lessee, to the extent permitted by
Applicable Laws, waives all rights now or hereafter conferred by
statute or otherwise to quit, terminate or surrender this Lease,
or to any diminution, abatement or reduction of Rent payable by
Lessee hereunder. If for any reason whatsoever this Lease shall
be terminated in whole or in part by operation of law or
otherwise, except as expressly provided in Section 6.1 or Article
XIII or XVIII of this Lease, Lessee shall, unless prohibited by
Applicable Law, nonetheless pay to Lessor (or, in the case of
Supplemental Rent, to whomever shall be entitled thereto) an
amount equal to each Rent payment at the time and in the manner
that such payment would have become due and payable under the
terms of this Lease if it had not been terminated in whole or in
part, and in such case, so long as such payments are made and no
Lease Event of Default shall have occurred and be continuing,
Lessor will deem this Lease to have remained in effect. Each
payment of Rent made by Lessee hereunder shall be final and,
absent manifest error in the computation of the amount thereof,
Lessee shall not seek or have any right to recover all or any
part of such payment from Lessor, Administrative Agent or
any party to any agreements related thereto for any reason
whatsoever. Lessee assumes the sole responsibility for the
condition, use, operation, maintenance, and management of the
Property and Lessor shall have no responsibility in respect
thereof and shall have no liability for damage to the property of
Lessee or any subtenant of Lessee on any account or for any
reason whatsoever other than by reason of Lessor's willful
misconduct or gross negligence or breach of any of its
obligations under this Lease.
ARTICLE V
UTILITY CHARGES
Lessee shall pay or cause to be paid all charges for
electricity, power, gas, oil, water, telephone, sanitary sewer
service and all other rents and utilities used in or on the
Property during the Lease Term. Lessee shall be entitled to
receive any credit or refund with respect to any utility charge
paid by Lessee and the amount of any credit or refund received by
Lessor on account of any utility charges paid by Lessee, net of
the costs and expenses reasonably incurred by Lessor in obtaining
such credit or refund, shall be promptly paid over to Lessee. All
charges for utilities imposed with respect to the Property for a
billing period during which this Lease expires or terminates
(except pursuant to Section 6.2, in which case Lessee shall be
solely responsible for all such charges) shall be adjusted and
prorated on a daily basis between Lessor and Lessee, and each
party shall pay or reimburse the other for each party's pro rata
share thereof.
ARTICLE VI
SALE, RETURN AND PURCHASE OPTIONS
SECTION 6.1. Purchase Option. At any time prior to the end
of the Lease Term, Lessee, at its option, will have the right
(its "Purchase Option") to purchase all (but not less than all)
of the Property at a price equal to the Lease Balance plus all
other amounts then due and payable by Lessee under the Operative
Documents (the "Purchase Option Price"). If Lessee shall have
elected the Purchase Option, Lessor shall, upon receipt of
payment in full from Lessee of the Purchase Option Price in
immediately available funds, transfer all of its right, title and
interest in and to the Property to Lessee or its designee, in
accordance with Section 16.2. Lessee, at its option, will have
the right to designate a third Person or Persons to take title to
the Property; provided that (i) Lessee shall continue to be bound
by the exercise of the Purchase Option and (ii) no such
assignment shall release Lessee from its obligations under this
Article VI and Lessee shall remain primarily liable to Lessor
for the payment of all amounts due under this Article VI in
respect of the Purchase Option. Lessee may revoke its notice
with respect to its election to exercise the Purchase Option at
any time prior to the beginning of the last year of the Lease
Term, upon three (3) days notice. Upon delivering such notice of
revocation, Lessee may continue the Lease for the Lease Term.
SECTION 6.2. Remarketing Option. If no Lease Default or
Lease Event of Default shall have occurred and be continuing,
then Lessee, at its own cost and expense, may elect to remarket
all (but not less than all) of the Property subject to the
Lease and, in accordance with Section 6.3, as nonexclusive agent
for Lessor, use best commercial efforts to cause the Property
to be sold on the last day of the Lease Term for cash to a
purchaser or purchasers not affiliated in any way with Lessee
(the "Remarketing Option") if the following conditions are
satisfied:
(a) no sooner than eighteen months and no later than
365 days prior to the Base Term Expiration Date or a Renewal
Term Expiration Date, Lessee gives written notice of its
election of the Remarketing Option;
(b) no Event of Loss exists;
(c) within five (5) Business Days after such notice of
its election of the Remarketing Option, Lessee executes and
delivers an escrow, pledge and security agreement (the "Sale
Deposit Escrow Agreement") with Administrative Agent and an
escrow holder selected by Administrative Agent and
reasonably acceptable to Lessee, which Sale Deposit Escrow
Agreement shall be in form and substance acceptable to
Administrative Agent and shall include provisions consistent
with the provisions of Section 6.3 and pursuant thereto,
Lessee shall contemporaneously make a security deposit
in an account maintained with the Administrative Agent or
its designee (the "Sale Deposit") in cash equal to the
Guaranteed Residual Amount for the Property;
(d) Lessor shall have received, at Lessee's sole cost
and expense, evidence satisfactory to Lessor and Lenders
that Lessor holds good title to the Property, free and clear
of all Liens other than Permitted Liens;
(e) Lessor shall have received, at Lessee's sole cost
and expense, a report in scope and content satisfactory to
Lessor and Lenders to the effect that the Property
has been maintained in all material respects throughout the
Lease Term in accordance with the standards of this Lease
and that the remaining useful life and utility of the
Property have not been compromised.
(f) Lessor shall have received evidence reasonably
satisfactory to Lessor and Lenders that all required
Authorizations in respect of the Property are valid and in
full force and effect and there are no violations of such
Authorizations that could have an adverse effect upon the
parties or upon the Property and no event of Force Majeure
exists that prevents, in any material respect, Lessee from
performing its obligations thereunder;
(g) on or before the Termination Date or the then
applicable Renewal Term Expiration Date, as applicable,
Lessee shall have vacated the Property and supplied to
Lessor an Environmental Audit reasonably satisfactory in
scope and content to Lessor and Lenders disclosing no
material or significant environmental conditions or damage
to the Property and conducted by an independent
environmental engineering firm selected by Lessor and
reasonably acceptable to Lessee; and
(h) on the Termination Date, Lessee shall have paid to
Lessor in immediately available funds all unpaid Basic Rent
and Supplemental Rent;
(i) on the Termination Date, no asbestos or
polychlorinated biphenyls (PCBs) shall be maintained on, or
used, stored or located on, above or under the Property;
and
(j) during the Remarketing Period, but in any event
not later than the Termination Date, Lessee shall pay on
demand therefor Related Sales Expenses to the Lessor, any
Lender or Administrative Agent, as applicable; and
any failure of Lessee to timely so elect the Remarketing
Option or any failure of Lessee to fulfill the obligations
specified in this Section 6.2 by the date set forth in the
applicable condition or, in the absence of an expressed
date, the last day of the Lease Term, shall terminate the
Remarketing Option, and Lessee shall purchase the Property
for the Purchase Option Price. Whether or not the Property
is sold by the last day of the Lease Term pursuant to the
Remarketing Option, Lessor shall withdraw the Sale Deposit
and any earnings thereon on the last day of the Lease Term
and apply such amounts in accordance with Section 2.4 of
the Loan Agreement.
SECTION 6.3. Procedures for Sale of the Property.
(a) If the Remarketing Option is timely elected, during
the period commencing on the date one year prior to the scheduled
end of the Lease Term (the "Remarketing Period") Lessee, on
behalf of Lessor, shall use best commercial efforts, as
nonexclusive agent for Lessor, to obtain the highest cash bids
for the purchase of the Property and, in the event it receives
any bid with respect to the Property, Lessee shall, within five
(5) Business Days after receipt thereof but at least thirty (30)
Business Days prior to the last day of the Lease Term, certify to
Lessor and Administrative Agent in writing (the "Certification
Notice") the amount and terms of such bid, including the proposed
sale date, and the name and address of the party or parties (who
shall not be Lessee or any Affiliate of Lessee or any Person with
whom Lessee has an understanding or arrangement regarding the
future use of the Property by Lessee or such Affiliate, but who
may be Lessor, any Affiliate thereof or any Person contacted by
Lessor) submitting such bid. Lessee shall bear its own expenses
and pay, as Supplemental Rent, the Related Sales Expenses of
Lessor, the Administrative Agent and each Lender in connection
with any such bidding and sale process pursuant to this Section
6.3, as well as all costs and expenses incurred by any party
(including a buyer or potential buyer) to place the Property
in the condition required by Sections 6.5 and 9.1. All amounts
from time to time held pursuant to Section 6.2(c) shall be
invested at the direction of Lessee (or upon the occurrence and
during the continuance of a Lease Event of Default or a Lease
Default, at the direction of the Administrative Agent) in
Permitted Investments. All net interest earned on such Permitted
Investments shall be held in escrow for the account of Lessor
pursuant to the Sale Deposit Escrow Agreement and shall
constitute part of the Sale Deposit. Upon termination of the
Sale Deposit Escrow Agreement, after payment by Lessee of all
amounts owed by Lessee under this Lease and the other Operative
Documents, any remaining amount of such interest shall be
remitted to Lessee.
(b) After the Lessee shall have certified to Lessor all
bids received with respect to the Property, Lessor or any
Affiliate of Lessor, or any Person contacted by Lessor may
submit a further binding bid or bids (subject to customary
conditions precedent to closing) to Lessee not later than thirty
(30) Business Days after the receipt of the last delivered
Certification Notice for such Property to Lessor. If Lessor,
Administrative Agent or any Affiliate of Lessor or any Person
contacted by any of the foregoing shall not have submitted
further bids to Lessee with respect to the Property, and provided
that no Lease Default or Lease Event of Default shall have
occurred and be continuing on the date of the proposed sale and
no Event of Loss shall have occurred with respect to such
Property, Lessee shall consummate the sale of the Property
to the highest all cash bidder therefor on the date specified by
Lessee in the related Certification Notice, which date shall be a
date not later than the last day of the Lease Term. Upon
consummation of the sale, Lessee shall cause buyer to pay all
gross proceeds from the sale to Lessor (the "Proceeds"). Upon
the receipt of such Proceeds by the Lessor and satisfaction of
each of the conditions set forth in Section 6.2, including
withdrawal of the Sale Deposit (i) Lessor shall remit to Lessee
the excess, if any, of (A) the sum of the Proceeds and the
Guaranteed Residual Amount (which amount shall be withdrawn from
the escrow account maintained pursuant to Section 6.2(c)) over
(B) the sum of the Lease Balance, all accrued and unpaid Interest
and Yield and all other amounts then due and payable by Lessee
under the Operative Documents. In such case, the sum of Proceeds
and the Guaranteed Residual Amount retained by Lessor shall be
applied in accordance with Section 3 of the Loan Agreement. If
the amount in Clause (A) above is less than the amount in Clause
(B) above, Lessee will not receive any such amount and the amount
in Clause (A) will be applied in accordance with Section 3 of the
Loan Agreement and (ii) Lessor shall transfer all of Lessor's
right, title and interest in such Property to the highest bidder
in accordance with Section 16.2.
(c) If Lessee exercises the Remarketing Option, Lessor may,
at its option, if the aggregate Proceeds and Guaranteed Residual
Amounts are not reasonably anticipated to exceed the Lease
Balance on the last day of the Lease Term, request Lessee to
engage an appraiser of nationally recognized standing, at
Lessee's expense, to determine (by appraisal methods reasonably
satisfactory to both Lessor and Lessee and complying with
generally accepted appraisal procedures for the type of property
being appraised) the Fair Market Sales Value of the Property sold
pursuant to the Remarketing Option. If the aggregate Proceeds
from sales of Property pursuant to the Remarketing Option are
less than the Fair Market Sales Value of such Property as
determined by the foregoing appraisal and such deficiency is
determined to be the result of one or more sales below the Fair
Market Sales Value of such Property, and Lessor has not received
aggregate Proceeds and Guaranteed Residual Amounts in an amount
at least equal to the Lease Balance, Lessee shall have the
absolute obligation to pay to Lessor, as Supplemental Rent, such
shortfall (i.e., the appraised Fair Market Sales Value less the
Proceeds, but not in excess of the outstanding Lease Balance
(after payment of Proceeds and the Guaranteed Residual Amounts to
Lessor)).
SECTION 6.4. Exercise of Options; Failure to Elect. Lessee
shall give irrevocable written notice to Lessor not less than 365
days prior to the Base Term Expiration Date or Renewal Term
Expiration Date, as the case may be, that Lessee intends to
exercise its Purchase Option, Remarketing Option or Renewal
Option (to the extent available). If Lessee shall fail to
deliver such written notice in the time required, Lessee shall be
deemed to have elected the Purchase Option under Section 6.1.
Lessee's election (or deemed election) of the Purchase Option
will be irrevocable at the time it is made (or deemed made). If
Lessee has elected the Remarketing Option under Section 6.2, such
option shall be automatically revoked and such election shall be
deemed of no effect if, on or after the date Lessee elects such
option, there exists or occurs a Lease Event of Default
or Lease Default or Lessee shall fail in any manner fully to
comply with this Article VI, including the conditions set forth
in Section 6.2, in which case Lessee shall be automatically
deemed to have elected the Purchase Option pursuant to Section
6.1.
SECTION 6.5. Return of Property. Lessee shall cooperate
with the independent buyer of the Property in order to facilitate
the ownership and operation by such buyer of the Property after
the Termination Date, including providing all books, reports and
records regarding the maintenance, repair and ownership of the
Property and all know-how, data and technical information
relating thereto, granting or assigning all licenses necessary
for the operation and maintenance of the Property and cooperating
in seeking and obtaining all necessary Governmental Action. The
obligations of Lessee under this Section 6.5 shall survive the
expiration or termination of this Lease. Unless Lessee shall
have exercised or been deemed to have exercised its Purchase
Option not less than 180 days prior to the Termination Date,
Lessor shall at Lessee's expense be entitled to perform an
investigation, including obtaining reports of engineers and other
experts as to the condition and state of repair and maintenance
required by this Section 6.5 and as to the compliance with
Environmental Laws applicable to the Property, as it deems
appropriate. Lessee, at its sole cost and expense, shall cause
the repair or other remediation of any discrepancies between the
actual condition of the Property and the condition required under
this Lease, such repair or remediation to be completed not later
than the earlier of the expiration of this Lease and the date the
Property is sold pursuant to the Remarketing Option.
SECTION 6.6. Remarketing Failure to Sell Property. If
Lessee shall exercise the Remarketing Option and neither Lessee
nor Lessor shall sell the Property on or before the last day of
the Lease Term in accordance with and subject to the provisions
of Sections 6.3 and 6.5, then Lessee and Lessor hereby agree as
follows:
(a) After the last day of the Lease Term, Lessor shall
have the right, but not the obligation, to sell the
Property for such purchase price and upon such terms as
Lessor shall determine in its sole discretion. If
Lessor shall elect to sell the Property after the
expiration of the Lease Term, Lessor shall notify Lessee,
and Lessee shall have the right to cause any Person to
submit a bid to Lessor not later than twenty (20) Business
Days prior to the date Lessor desires to sell the Property
(as set forth in the notice thereof to Lessee); provided,
however, that Lessor shall have the right, in its sole
discretion, from time to time, to defer such proposed sale
date, in which event, the right of Lessee to cause any
Person to submit a bid to Lessor shall be extended to the
date that is twenty (20) Business Days prior to the revised
proposed sale date. At no time shall Lessor be obligated to
accept any bid for the sale of the Property (whether such
bid was obtained by Lessee or otherwise) or to consummate
any proposed sale.
(b) Contemporaneously with the consummation of any
sale of the unsold Property by Lessor pursuant to this
Section 6.6, (i) Lessee will transfer all of Lessee's
right, title and interest in the Property to be transferred
to the buyer; (ii) Lessor shall exercise such rights as it
has to cause such Property to be released from the
Lien of the Mortgage and shall, without recourse or warranty
(except as to the absence of Lessor Liens), transfer by
quitclaim Lessor's right, title and interest in and to the
Property for cash to such purchaser; and (iii) Lessor shall
remit to Lessee the excess, if any, of (a) the Proceeds
received by Lessor from the sale of the Property over (b)
the sum of the then current Lease Balance plus all unpaid
Interest and Yield on the daily outstanding Lease Balance
from the last day of the Lease Term through the payment
date.
(c) To the greatest extent permitted by law,
Lessee hereby unconditionally and irrevocably waives, and
releases Lessor from, any right to require Lessor to sell
the Property at all or for any minimum purchase price or on
any particular terms and conditions. Lessee hereby agrees
that if Lessee shall elect the Remarketing Option, its
ability to sell the Property on or prior to the expiration
of the Lease Term and its right thereafter to cause the
Person to submit a bid to Lessor pursuant to this Section
6.6(c) in the event Lessor shall elect to sell the Property,
shall constitute full and complete protection of Lessee's
interest hereunder.
ARTICLE VII
CONDITION AND USE OF PROPERTY
SECTION 7.1. Waivers. LESSEE ACKNOWLEDGES AND AGREES THAT,
ALTHOUGH LESSOR WILL OWN AND HOLD TITLE TO THE PROPERTY, LESSEE
IS SOLELY RESPONSIBLE UNDER THE TERMS OF THE CONSTRUCTION AGENCY
AGREEMENT FOR THE DESIGN, DEVELOPMENT, BUDGETING AND CONSTRUCTION
OF THE FACILITY AND ANY MODIFICATIONS THERETO. The Property is
let by Lessor "AS IS" in its present or then condition, as the
case may be, subject to (a) any rights of any parties in
possession thereof, (b) the state of the title thereto existing
at the Documentation Date, (c) any state of facts which an
accurate survey or physical inspection might show (including any
survey delivered on the Documentation Date, any Advance Date or
the Completion Date), (d) all Applicable Law, and (e) any
violations of Applicable Law which may exist at the commencement
of the Lease Term. Lessee has examined the Property and (insofar
as Lessor is concerned) has found the same to be satisfactory.
NEITHER LESSOR, THE ADMINISTRATIVE AGENT NOR ANY LENDER HAS MADE
OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO HAVE ANY LIABILITY
WHATSOEVER AS TO THE TITLE TO THE PROPERTY OR THE FACILITY OR
TO THE VALUE, MERCHANTABILITY, HABITABILITY, CONDITION, OR
FITNESS FOR USE OF THE PROPERTY OR THE FACILITY, OR ANY PART
THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY OR THE FACILITY,
OR ANY PART THEREOF, AND NEITHER LESSOR, THE ADMINISTRATIVE AGENT
NOR ANY LENDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREIN OR THE FAILURE OF THE PROPERTY OR THE FACILITY,
OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS, except
that Lessor hereby represents and warrants that the
Property is and shall be free of Lessor Liens. Lessee initially
selected the Property. Lessee has been afforded full opportunity
to inspect the Property, is satisfied with the results of its
inspections and is entering into this Lease solely on the basis
of the results of its own inspections, and all risks incident to
the matters discussed in the preceding sentence, as between
Lessor, Administrative Agent and the Lenders, on the one hand,
and Lessee, on the other, are to be borne by Lessee. Except
to the extent otherwise expressly stated, the foregoing
provisions are intended to be a complete exclusion and negation
of any representations or warranties by Lessor, Administrative
Agent or any Lender, express or implied, with respect to the
Property or the Facility (or any interest therein), that may
arise pursuant to any law now or hereafter in effect or
otherwise. Lessor shall have no responsibility or liability to
Lessee or any other Person with respect to any of the following:
(w) any liability, loss or damage caused or alleged to be caused
directly or indirectly by the Property or by any inadequacy
thereof, deficiency or defect therein or by any other
circumstances in connection therewith; (x) the use, operation or
performance of the Property or any of the risks relating thereto;
(y) any interruption of service, business or anticipated profits
or consequential damages; or (z) the delivery, operation,
servicing, maintenance, repair, improvement or replacement of the
Property. The Property described herein is in good order and
condition, prepared to conform to specifications applicable
thereto and all government standards and requirements reasonably
interpreted as being applicable thereto and is in all respects
satisfactory to Lessee, and Lessee will not assert any claim of
any nature whatsoever against Lessor based on any of the
foregoing matters.
ARTICLE VIII
LIENS; EASEMENTS
SECTION 8.1. Liens. Subject to Section 9.4, Lessee shall
not directly or indirectly create, incur, assume or suffer to
exist any Lien, defect, attachment, levy, title retention
agreement or claim upon or with respect to the Property, any
Basic Rent or Supplemental Rent, title thereto, or any interest
therein, including all Liens which arise out of the possession,
use, occupancy or construction of a Facility on the Land or
by reason of labor or materials furnished or claimed to have been
furnished to Lessee, or any of its contractors or the
Administrative Agent or by reason of the financing of any
Alterations constructed by or for the benefit of Lessee, except
in all cases Permitted Liens. With respect to all Liens in or
with respect to the Property, other than Permitted Liens,
Lessee shall promptly, but not later than thirty (30)
days after the filing thereof, at its own expense, take such
action as may be necessary duly to discharge or eliminate or bond
in a manner reasonably satisfactory to Lessor any such Lien if
the same shall arise at any time.
SECTION 8.2. No Lessor Consent or Liability. Nothing
contained in this Lease shall be construed as constituting the
consent or request of the Lessor, expressed or implied, to or for
the performance by any contractor, mechanic, laborer,
materialman, supplier or vendor of any labor or services or for
the furnishing of any materials for any construction, alteration,
addition, repair or demolition of or to the Property or any part
thereof. NOTICE IS HEREBY GIVEN THAT NEITHER LESSOR NOR ANY
LENDER SHALL BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS
FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING THE
PROPERTY OR ANY PART THEREOF THROUGH OR UNDER LESSEE, AND THAT NO
MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR
IN AND TO THE PROPERTY OR ANY PART THEREOF.
SECTION 8.3. Easements; Amendments to Underlying Lease.
Subject to Section 3.4 of the Construction Agency Agreement
(which shall take precedence over these provisions during the
Construction Period), at the request of Lessee, Lessor shall,
from time to time during the Lease Term and upon at least thirty
(30) days' prior written notice from Lessee and receipt of the
materials specified in the next succeeding sentence, consent to
and join in any (i) grant of easements, licenses, rights of way,
party wall rights and other rights in the nature of easements,
with or without consideration, (ii) release, amendment or
termination of easements, licenses, rights of way, party wall
rights or other rights in the nature of easements which are for
the benefit of the Property or any portion thereof, with or
without consideration, (iii) dedication or transfer of portions
of the Property for road, highway or other public purposes, with
or without consideration, (iv) execution of petitions to have
the Property or any portion thereof annexed to any municipal
corporation or utility district, (v) execution of agreements for
the use and maintenance of common areas, for reciprocal rights of
parking, ingress and egress and amendments to any covenants and
restrictions affecting the Property or any portion thereof, with
or without consideration, (vi) request to any Authority for
platting or subdivision or replatting or resubdivision approval
with respect to the Property or any portion thereof or any parcel
of Property of which the Property or any portion thereof forms a
part or a request for any variance from zoning, (vii) creation of
a governmental special benefit district for public improvements
and collection of special assessments in connection therewith, in
lump sum or installments, and (viii) execution and delivery of
any instrument appropriate to confirm or effect such grant,
release, dedication, transfer request or such other matter,
document or proceeding. Lessor's obligations pursuant to the
preceding sentence shall be subject to the requirements that:
(a) any such action shall be at the sole cost and expense
of Lessee, and Lessee shall pay all reasonable out-of-pocket
costs of Lessor and Administrative Agent in connection therewith
(including the reasonable fees of attorneys, architects,
engineers, planners, appraisers and other professionals retained
by Lessor in connection with any such action);
(b) Lessee shall have delivered to Lessor a certificate of
a Responsible Officer of Lessee stating that:
(1) such action will not cause the Property or any
portion thereof to fail to comply in any respect with the
provisions of this Lease or any other Operative Documents
and in any material respect with all Applicable Law
(including all applicable zoning, planning, building and
subdivision ordinances, all applicable restrictive covenants
and all applicable architectural approval requirements);
(2) all governmental consents or approvals required to
be obtained prior to such action have been obtained, and all
filings required prior to such action have been made;
(3) this Lease and Lessee's obligations hereunder
shall continue in full force and effect, without abatement,
suspension, deferment, diminution, reduction, counterclaim,
setoff, defense or deduction;
(4) such action will not materially reduce the fair
market value, utility, remaining economic useful life or
residual value of the Property or of Lessor's interest
therein;
(5) such action will not impose or create any
liability or obligation on Lessor in connection therewith
which Lessee shall not have paid or performed or undertaken
to pay or perform;
(6) such action will not result in any material
down-zoning of the Property or any portion thereof or a
material reduction in the maximum density or development
rights available to the Property under all Applicable Law;
(7) all consideration received in connection with such
action shall be paid to Lessee; and
(8) no Lease Default or Lease Event of Default shall
have occurred and be continuing. Without limiting the
effectiveness of the foregoing, the Lessor shall, upon the
request of Lessee and at Lessee's sole cost and expense,
execute and deliver any instruments necessary or appropriate
to confirm any such grant, release, dedication, transfer,
annexation or amendment to any Person permitted under
this Section 8.3.
ARTICLE IX
MAINTENANCE AND REPAIR;
ALTERATIONS AND ADDITIONS
SECTION 9.1. Maintenance and Repair; Compliance With Law.
Lessee, at its own expense, shall at all times (a) maintain
the portion of the Facility used as office space as a Class A
office building and the other portions of the Property shall be
kept, in each case in good and safe repair and condition, subject
to ordinary wear and tear; (b) except to the extent that Section
9.4 shall apply, maintain, manage and monitor the Property in
accordance with all Applicable Law, whether or not such
maintenance requires structural modifications; (c) comply with
the standards imposed by any insurance policies required to be
maintained hereunder which are in effect at any time with respect
to the Property or any part thereof; (d) maintain, manage and
monitor the Property in accordance with all applicable contracts,
including service contracts and insurance contracts; and (e) make
all necessary or appropriate repairs and replacements to the
Property or any part thereof which may be required to keep
the Property in the condition required by the preceding clauses
(a) through (d), whether interior or exterior, structural or
nonstructural, ordinary or extraordinary, foreseen or unforeseen,
and including repairs, replacements and renewals that would
constitute capital expenditures under GAAP if incurred by an
owner of property. Lessee waives any right that it may now have
or hereafter acquire to (x) require Lessor to maintain, repair,
replace, alter, remove or rebuild all or any part of the
improvements on the Property or (y) make repairs at the expense
of Lessor pursuant to any Applicable Law or other agreements.
SECTION 9.2. No Alteration or Construction. (a) At
Lessee s own cost and expense, (i) Lessee shall make alterations,
renovations, improvements and additions to the Property or any
part thereof and substitutions and replacements therefor
(collectively, "Modifications") so long as such Modifications are
(A) made to repair or maintain the Property in the condition
required by Section 9.1; (B) necessary in order for the Property
to be in compliance with Applicable Law; or (C) necessary to
restore the Property to its condition existing prior to a
Casualty or Condemnation; and (ii) so long as no Lease Event of
Default or Lease Default has occurred and is continuing, Lessee
may undertake Modifications on the Property so long as such
Modifications comply with Applicable Law and with Section 9.1 and
subsection (b) of this Section 9.2.
(b) The making of any Modifications must be in compliance
with the following requirements:
(1) No such Modifications with a cost exceeding
$500,000 (other than nonstructural modifications) shall be
made or undertaken except upon not less than thirty days'
prior written notice to Lessor.
(2) Lessee shall not make any Modifications in
violation of the terms of any restriction, easement,
condition or covenant or other matter affecting title to the
Property.
(3) No Modifications shall be undertaken until Lessee
shall have procured and paid for, so far as the same may be
required from time to time, all permits and authorizations
relating to such Modifications of all municipal and other
Authorities having jurisdiction over the Property. Lessor,
at Lessee's expense, shall join in the application for any
such permit or authorization and execute and deliver any
document in connection therewith, whenever such joinder is
necessary or advisable.
(4) The Modifications shall be completed in a
commercially reasonable period in a good and workmanlike
manner and in compliance with all Applicable Law then in
effect and the standards imposed by any insurance policies
required to be maintained hereunder.
(5) All Modifications, whether structural or
nonstructural, (other than Modifications required by
Applicable Law) shall, when completed, be of such a
character as to not (i) materially adversely affect the fair
market value, utility, remaining economic useful life or
residual value of the Property from its fair market value,
utility, remaining economic useful life or residual value
immediately prior to the making thereof or, in the case of
Modifications being made by virtue of a Casualty or
Condemnation, immediately prior to the occurrence of such
Casualty or Condemnation or (ii) result in any loss or
modification of any manufacturer's or contractor's warranty.
(6) Lessee shall have made adequate arrangements for
payment of the cost of all Modifications when due so that
the Property shall at all times be free of Liens for labor
and materials supplied or claimed to have been supplied to
the Property, other than Permitted Liens; provided, that
Lessee shall have the right to contest the amount claimed by
any such supplier of labor or materials in accordance with
the applicable provisions of Section 9.5.
(c) Title to Modifications shall without further act vest
in Lessor and shall be deemed to constitute a part of the related
Property and be subject to this Lease in the following cases:
(1) such Modifications shall be in replacement of or in
substitution for a portion of the Facilities and/or the
Property;
(2) such Modifications shall be required to be made
pursuant to the terms of Section 9.2(a)(i); or
(3) such Modifications shall be Nonseverable.
Lessee, at Lessor's request, shall execute and deliver any deeds,
bills of sale, assignments or other documents of conveyance
reasonably necessary to evidence the vesting of title in and to
such Modifications to Lessor.
If such Modifications are not within any of the categories
set forth in clauses (a) through (c) of this Section 9.2,
then title to such Modifications shall vest in Lessee and such
Modifications shall not be deemed to be Modifications which are
part of the Property.
All Modifications to which Lessee shall have title may, so
long as removal thereof shall not result in the violation of any
Applicable Law and no Lease Event of Default or Lease Default is
continuing, be removed at any time by Lessee. Any such
Modifications shall be removed by Lessee at its expense if Lessor
shall so request prior to the return of the Property to Lessor or
sale of the Property in accordance with this Lease, and Lessee
shall at its expense repair any damage to the Property caused by
the removal of such Modifications. Lessor (or the purchaser of
the applicable Property) may purchase from Lessee Modifications
(if not already owned by Lessor) which Lessee notifies Lessor
that Lessee intends to remove from the Property prior to the
return of the Property to Lessor or sale of the Property, which
purchase shall be at the Fair Market Sales Value of such
Modifications. Title to any Lessee Modifications shall vest in
Lessor (or the purchaser of the applicable Property) if not
removed from the Property by Lessee prior to the return of the
Property to Lessor or sale of the Property.
SECTION 9.3. Financing of Modifications.
(a) Lessee may from time to time, so long as no Event of
Default or Default shall have occurred and be continuing, request
Lessor to arrange for construction or permanent financing of any
proposed Modifications to the Property or any part thereof,
provided that such Modifications shall not include Modifications
required under any provision of this Lease to replace the
Facility or any part existing on the Closing Date, including
those required under Section 13, and further provided, that
Lessee delivers an Officer's Certificate stating that (i) the
estimated costs and expenses of such proposed Modifications are
equal to or greater than $10,000,000, (ii) such proposed
Modifications benefit the Property and are of a consistent or
otherwise appropriate character and use as the Property, (iii)
the amount of the requested financing does not exceed the
estimated costs and expenses incurred or to be incurred in
connection with such proposed Modifications (which amount shall
not include any leasehold improvement costs), and (iv) such
proposed Modifications, if completed in accordance with the Plans
and Specifications therefor, will increase the Fair Market Sales
Value of the Property by an amount at least equal to the amount
of the proposed financing (such Fair Market Sales Value to be
determined by an appraisal to be provided by an appraiser
selected by Lessor, which appraisal and appraiser shall be
reasonably satisfactory to Lessee). Such request shall set forth
in reasonable detail a brief narrative of such proposed
Modifications and shall be accompanied by Plans and
Specifications therefor. As soon as reasonably practical and in
any event within thirty (30) days after receipt by Lessor of such
Officer's Certificate from Lessee, Lessor shall notify Lessee
either (x) that Lessor does not wish to arrange such construction
and/or permanent financing or (y) that Lessor does wish to
arrange such construction and/or permanent financing (and setting
forth the terms of Lessor's proposal therefor). In the latter
event, Lessor and Lessee shall (subject to the provisions of the
Loan Agreement if at the time in effect) (A) offer to the Lenders
the opportunity to participate in such construction and/or
permanent financing, and in the event that the Lenders agree to
participate in such financing, arrange for the issuance of
additional secured notes requested by Lessee, to be issued
pursuant to the Loan Agreement on terms satisfactory to Lessee,
Lessor, and the Lenders, (B) whether or not the Lenders agree to
participate in such financing, cooperate to arrange such
financing on mutually satisfactory terms (which terms shall
include at least the items set forth in Section 9.3(c) and shall
not provide for the indebtedness in connection with such
financing to be secured by a Lien on the Property, except in the
case of any such Indebtedness owed to the Lenders unless Lessee
and Lessor shall otherwise agree in writing) and (C) negotiate
appropriate amendments to this Lease and any of the other
Operative Documents as may be necessary or appropriate in
connection therewith. Neither Lessor nor Lessee shall incur any
liability if financing cannot for any reason whatsoever be
arranged in accordance with this Section 9.3.
(b) If Lessor does not deliver a proposal for such
construction and/or permanent financing to Lessee within 30 days
after receipt of Lessee's request therefor, or having done so, if
Lessor is unable to arrange such financing within 60 days after
Lessee's acceptance of Lessor's proposal, Lessee shall have the
option, exercisable at any time by irrevocable notice to Lessor
(an "Exercise Notice"), to:
(i) request the Lenders to arrange for or participate
in such financing, and in the event that the Lenders agree
to do so, Lessor shall issue additional secured notes
requested by Lessee, to be issued pursuant to the Loan
Agreement on terms satisfactory to Lessor and the Lenders;
or
(ii) (x) finance the construction of such
Modification with indebtedness not secured by a Lien on the
Property or (y) pay for the construction of such
Modification without incurring indebtedness; or
(iii) provided that the Lenders have not agreed to
finance such Modification pursuant to clause (i), purchase
the Property as provided in Section 6.1;
it being understood that any financing arranged or made by Lessee
and the Lenders pursuant to clause (i) above shall, at the option
of the Lessor, include equity financing involving the sale of an
equity portion in an amount not more than 5% of the cost or Fair
Market Sales Value of the Modification, whichever is less.
(c) Certain Conditions of Financing. If any Modification
is financed pursuant to this Section 9.3:
(i) the maturity date of such financing shall in no
event be later than the last day of the Base Term, or any
Renewal Term if Lessee shall have given Lessor irrevocable
notice of its intention to lease the Property during such
Renewal Term pursuant to Section 2.4; and
(ii) Basic Rent, the Purchase Option and the
Guaranteed Residual Amount shall be adjusted in a manner
mutually acceptable to Lessor, the Lenders and Lessee.
(d) Lessee's Certificate. Within 90 days after substantial
completion of any alteration financing pursuant to this Section
9.3, Lessee shall deliver to Lessor an Officer's Certificate
stating the actual cost of such Modification.
(e) Payment of Expenses. Lessee shall pay all costs and
expenses associated with any request for financing pursuant to
the provisions of this Section 9.3 and, within 30 days after
request therefor by Lessor, shall reimburse Lessor and the
Lenders for all reasonable out-of-pocket expenses incurred by
Lessor or the Lenders in connection with any such financing
pursuant to the provisions of this Section 9.3.
SECTION 9.4. Permitted Contests. Without limiting Lessee's
obligations under the second sentence of Section 8.1, Lessee
shall not be obligated to discharge any Lien under Section 8.1 or
comply with Applicable Law so long as it is engaged with respect
thereto in a Permitted Contest. Lessee shall provide Lessor with
notice of any Permitted Contest in detail sufficient to enable
Lessor to ascertain whether such contest may have an effect of
the type described in the definition of "Permitted Lien."
Lessor will not be required to join in any proceedings
pursuant to this Section 9.4 unless a provision of any Applicable
Law requires, or, in the good faith opinion of Lessee, it is
helpful to Lessee that such proceedings be brought by or in the
name of Lessor; and in that event Lessor will join in the
proceedings or permit them or any part thereof to be brought in
its name if and so long as no Lease Event of Default or Lease
Default has occurred and is continuing and Lessee pays all
related expenses.
ARTICLE X
USE
The Property shall be used during the Construction Period in
a manner consistent with the Construction Agency Agreement, and
thereafter, Lessee will use and operate various designated
portions of the Property for office space, fitness and recreation
facilities, cafeteria, multi-purpose auditorium, biomechanical
laboratories, model shop and showrooms or for any purpose related
or ancillary to the several aforementioned functions of the
Facility throughout the Lease Term, except for interruptions for
Modifications or due to Casualty, Condemnation or Force Majeure.
Notwithstanding the foregoing, Lessee shall not use the Property
or any part thereof for any purpose or in any manner that would
materially adversely affect the fair market value, utility,
remaining useful life or residual value of the Property or that
would create a materially increased risk of environmental
liability or that would violate or conflict with, or constitute
or result in a violation or default under (a) any Applicable Law
whether now existing or hereafter in effect, foreseen or
unforeseen, except to the extent permitted by Section 9.4,
(b) any insurance policies required by Article 11, or (c) any
Operative Document. Lessee shall pay, or cause to be paid, all
charges and costs required in connection with the use of the
Property as contemplated by this Lease and the Construction
Agency Agreement. Lessee shall not commit or permit any waste of
the Property or any part thereof.
ARTICLE XI
INSURANCE
SECTION 11.1. Required Coverages. Commencing immediately
after the expiration or termination of the Construction Period,
Lessee will cause to be carried and maintained with respect to
the Property insurance consistent and on a parity with Class A
office buildings of similar size, age, use and location. Lessee
shall also carry such other insurance as is usually carried by
such corporations in the same general area engaged in the same or
a similar business, provided that in any event Lessee will
maintain:
(a) Commercial General Liability Insurance. Combined
single limit insurance, with minimum limits of liability of not
less than One Million Dollars ($1,000,000) per occurrence, and
Nine Million Dollars ($9,000,000) excess of such coverage,
against claims for bodily injury, death or third-party property
damage occurring on, in or about the Property (contractual
liability exclusions deleted), personal injury (contractual
liability exclusions deleted), contractual liability specifically
insuring (to the extent permitted by law) the indemnifying
portions of this Lease, owner's protective liability, and broad
form property damage.
(b) Property Insurance. All risk property insurance
against loss or damage covering the Property or any portion
thereof (as defined below) in an amount that at no time, on a
replacement cost basis, is less than the replacement cost of the
improvements to the Property.
Such insurance shall be written by reputable insurance
companies that are financially sound and solvent and otherwise
reasonably appropriate considering the amount and type of
insurance being provided by such companies. Any insurance
company selected by Lessee shall be rated in A.M. Best's
Insurance Guide or any successor thereto and shall have an A.M.
Best rating consistent with Lessee's normal practice for similar
types of insurance (or if there be none, an organization having a
similar national reputation) or be otherwise reasonably
acceptable to Lessor. In the case of liability insurance
maintained by Lessee, it shall name Administrative Agent,
together with Lessor as additional insureds and, in the case of
property insurance maintained by Lessee, it shall name
Administrative Agent as sole loss payee with respect to payments
in excess of $5,000,000, it being understood that all payments of
$5,000,000 or less may be made payable to the Lessee. Each
policy referred to in this Section 11.1(b) shall provide that:
(i) it will not be canceled, materially modified insofar as it
relates to the Property or its limits reduced, or allowed to
lapse without renewal, except after not less than 30 days' prior
written notice to Lessor; (ii) the interests of Lessor shall not
be invalidated by any act or negligence of or breach of warranty
or representation by Lessee or any Person having an interest in
the Property; (iii) such insurance is primary with respect to any
other insurance carried by or available to Lessor; (iv) in
connection with insurance maintained under Section 11.1(b) only,
the insurer shall waive any right of subrogation, setoff,
counterclaim, or other deduction, whether by attachment or
otherwise, against Lessor; and (v) in connection with insurance
maintained under Section 11.1(a) only, such policy shall contain
a cross-liability clause providing for coverage of Lessor as if
separate policies had been issued to Lessor. Lessee will notify
Lessor promptly of any policy cancellation, reduction in policy
limits, material modification or amendment which adversely
affects the required coverages.
SECTION 11.2. Delivery of Insurance Certificates. On or
before the Documentation Date, Lessee shall deliver to Lessor
certificates of insurance reasonably satisfactory to Lessor
evidencing the existence of all insurance required to be
maintained hereunder and setting forth the respective coverages,
limits of liability, carrier, policy number and period of
coverage. Thereafter, throughout the Lease Term, at the time
each of Lessee's insurance policies is scheduled to expire (but
in no event less frequently than once each year), Lessee shall
deliver to Lessor certificates of insurance evidencing that all
insurance required by Section 11.1 to be maintained by Lessee
with respect to the Property is in effect.
ARTICLE XII
ASSIGNMENT AND SUBLEASING
(a) Subject to permitted mergers and consolidations under
Section 5.2 of the Participation Agreement and Section 12(b)
below, Lessee may not, without the prior written consent of
Lessor, assign, mortgage, pledge or sublease, in whole or in
part, any of its right, title or interest in, to or under this
Lease or any portion of the Property to any Person at any
time, and any such assignment, mortgage, pledge or sublease shall
be void. Lessee may, however, assign its right, title or
interest in, to or under this Lease with respect to the Property
to a Wholly-owned Domestic Subsidiary that becomes a Lessee
hereunder pursuant to a Lease amendment and in accordance with
Article VIII of the Participation Agreement. Any such
Wholly-owned Domestic Subsidiary that becomes a Lessee hereunder
shall remain a Wholly-owned Domestic Subsidiary of the Lessee for
so long as it is a Lessee.
(b) Lessee may not sublease any of its right, title or
interest in, to or under this Lease or any portion of the
Property to any Person at any time, and any such sublease shall
be void, unless Lessee shall obtain the prior written consent of
Administrative Agent and Participants, which consent shall not be
unreasonably withheld; provided, however, that their withholding
of such consent shall not be deemed unreasonable if, for purposes
of illustration and not in limitation, (a) the proposed subtenant
is engaged in a business or conducts activities which might be
hazardous to any Person or property, in each case in
Administrative Agent's sole judgment, or (b) the proposed
subtenant has requirements for which the Property is not suited
or which are contrary to, or might cause Lessor or the Property
to be in violation of, any Applicable Laws; provided further
that, without such consent of the Administrative Agent or
Participants, Lessee (i) may enter into a sublease or subleases
for all or any portion of the Property with a Wholly-owned
Domestic Subsidiary, and (ii) if no Lease Event of Default has
occurred and is continuing, may enter into a Sublease or
Subleases for any portion of the Property with any Person, in
each case provided that (A) all obligations of Lessee under this
Lease shall continue in full effect as obligations of a principal
and not of a guarantor or surety, as though no sublease had been
made; (B) such sublease (or any other sublease entered pursuant
to this Article XII) shall be expressly subject and subordinate
to this Lease, the Loan Agreement, the Mortgage and the other
Operative Documents, and the term of any such sublease shall not
extend beyond the scheduled term of this Lease; (C) such sublease
shall not affect the liability of Lessee as to the Lease or any
other Operative Documents; and (D) at any time after the end of
the Construction Period, no more than 20% of the aggregate gross
square footage of the Property subject to this Lease shall be
subject to Subleases with Persons who are not Affiliates of
Lessee. Any such permitted sublease is hereinafter referred to
as a "Sublease"). The sublessee under any Sublease described in
this Article XII shall hereinafter be referred to as a
"Subtenant."
Regardless of Lessor's consent, no subletting shall release
Lessee of Lessee's obligation or alter the primary liability of
Lessee to pay Rent hereunder (including Basic Rent and
Supplemental Rent) and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of Rent by Lessor
from any other Person shall not be deemed to be a waiver by
Lessor of any provision hereof. Lessor may proceed directly
against Lessee without the necessity of exhausting remedies
against said successor.
ARTICLE XIII
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
SECTION 13.1. Event of Loss; Condemnation or Casualty.
(a) If an Event of Loss shall occur, Lessee shall give
Lessor and Administrative Agent prompt written notice of such
occurrence and the date thereof and Lessee shall purchase the
Property from Lessor on the first to occur of (i) the first Rent
Payment Date occurring at least 30 days on or after the Event of
Loss and (ii) the Termination Date, at a purchase price equal to
the sum of (A) the then outstanding Lease Balance, plus (B) all
accrued but unpaid Rent, plus (C) all other sums due and payable
by Lessee to Lessor with respect to the Property under this Lease
or any of the other Operative Documents.
(b) Upon payment in full of all amounts payable pursuant to
Section 13.1(a), (i) the Lease Term shall end and (ii) the
obligations of Lessee hereunder with respect to the Property
(other than any obligations expressed herein as surviving
termination of this Lease) shall terminate as of the date of such
payment.
SECTION 13.2. Application of Payments Relating to an Event
of Loss. All Loss Proceeds received at any time for the Property
then held by Lessor, Lessee or Administrative Agent from any
Authority or other Person with respect to any Event of Loss shall
be promptly remitted to Lessor and, in the event Lessee purchases
the affected Property pursuant to Section 13.1(a), shall be
applied against the purchase price payable by Lessee pursuant to
Section 13.1(a), and any such Loss Proceeds remaining thereafter
shall be paid over to, or retained by, Lessee, or as Lessee may
direct.
SECTION 13.3. Application of Certain Payments Relating to a
Condemnation. In case of a requisition for temporary use of all
or a portion of the Property which is not an Event of Taking,
this Lease shall remain in full force and effect, without any
abatement or reduction of Rent, and the Net Condemnation Proceeds
for the Property shall, subject to Section 13.3, be paid to
Lessee, except that any portion of such Net Condemnation Proceeds
that was awarded with respect to the time period after the
expiration or termination of the Lease Term (unless Lessee
shall have exercised or be deemed to have exercised an option to
purchase the Property) shall be paid to Lessor.
SECTION 13.4. Casualty. As soon as practicable after a
Casualty, Lessee shall repair and rebuild the affected portions
of the Property suffering such Casualty (or cause such affected
portions to be repaired and rebuilt) to the condition required to
be maintained by Section 9.1; provided, that the value and
functional capability of such item as restored is at least
equivalent to the value and functional capability of such item as
in effect immediately prior to the occurrence of such Casualty.
Any Loss Proceeds in excess of $5,000,000 for the Property
received with respect to any Casualty shall be paid over to or
retained by Lessor until Lessee repairs and rebuilds (or causes
to be repaired and rebuilt) the affected portions of the
applicable Property in accordance with the conditions set forth
in this Section 13.4; such amounts shall be paid out by Lessor as
repair and rebuilding progresses, subject to delivery to Lessor
of receipted invoices, bills of sale and lien releases; any
proceeds less than such amounts shall be paid to or retained by
the Lessee to repair and rebuild the Property.
SECTION 13.5. Other Dispositions. Notwithstanding the
foregoing provisions of this Article XIII, as long as a Lease
Default or a Lease Event of Default shall have occurred and be
continuing, any amount that would otherwise be payable to or for
the account of, or that would otherwise be retained by, Lessee
pursuant to this Article XIII shall be paid to Lessor as security
for the obligations of Lessee under this Lease, shall be invested
by Lessor in accordance with Section 20.17 in Permitted
Investments and, if a Lease Default or a Lease Event of Default
is continuing, may be applied to the obligations of Lessee
hereunder, and, at such time thereafter as no Lease Default or
Lease Event of Default shall be continuing, such amount and gain
thereon shall be paid promptly to Lessee to the extent not
previously applied in accordance with the terms of this Lease.
SECTION 13.6. Negotiations. In the event any part of the
Property becomes subject to condemnation or requisition
proceedings, Lessee shall give notice thereof to Lessor
promptly after Lessee has knowledge thereof and, to the extent
permitted by any Applicable Law, Lessee shall control the
negotiations with the relevant Authority unless a Lease Default
or Lease Event of Default shall be continuing, in which case
Lessor shall control such negotiations; provided that in any
event Lessor may participate at Lessor's expense (or if a Lease
Default or Lease Event of Default shall be continuing, at
Lessee's expense) in such negotiations; and provided in all
cases, that no settlement will be made without Lessor's
prior written consent, not to be unreasonably withheld.
Lessee shall give to Lessor such information, and copies of such
documents, which relate to such proceedings, or which relate to
the settlement of amounts due under insurance policies required
by Article XI, and are in the possession of Lessee, as are
reasonably requested by Lessor or Administrative Agent. If the
proceedings relate to an Event of Taking, Lessee shall act
diligently in connection therewith.
SECTION 13.7. No Rent Abatement. Rent shall not abate
hereunder by reason of any Event of Loss, any Casualty, or any
Condemnation of the Property, and Lessee shall continue to
perform and fulfill all of Lessee's obligations, covenants and
agreements hereunder notwithstanding such Event of Loss,
Casualty, or Condemnation until the Termination Date.
ARTICLE XIV
NON-INTERFERENCE
SECTION 14.1. Non-Interference. Lessor covenants that it
will not take or cause to be taken any affirmative act that
interferes in Lessee's use of the Property in accordance with
this Lease during the Lease Term, so long as no Lease Event of
Default has occurred and is continuing; it being agreed that
Lessee's remedies for breach of the foregoing covenant shall be
limited to a claim for damages or the commencement of proceedings
to enjoin such breach. Such right is independent of, and shall
not affect, Lessor's rights otherwise to initiate legal action to
enforce the obligations of Lessee under this Lease.
SECTION 14.2. Certain Duties and Responsibilities of
Lessor. Except during the continuance of a Lease Event of
Default, Lessor undertakes to perform such duties and only such
duties as are specifically set forth herein and in the other
Operative Documents, and no implied covenants or obligations
shall be read into this Lease against Lessor, and Lessor agrees
that it shall not, nor shall it have a duty to, manage, control,
use, sell, maintain, insure, register, lease, operate, modify,
dispose of or otherwise deal with the Property in any manner
whatsoever, except as required by the terms of the Operative
Documents and as otherwise provided herein.
ARTICLE XV
INSPECTION AND REPORTS
SECTION 15.1. Inspection. Upon five (5) Business Days
prior notice to Lessee, by Lessor or Administrative Agent, Lessor
and/or Administrative Agent and their respective authorized
representatives (the "Inspecting Parties") may inspect (a) the
Property and (b) the books and records of Lessee relating
directly and primarily to the Property and make copies and
abstracts therefrom, but only after material related to matters
other than the Property shall have been redacted therefrom. All
such inspections shall be at the expense and risk of the
Inspecting Parties, except that if a Lease Event of Default
or Lease Default has occurred and is continuing, Lessee shall
reimburse the Inspecting Parties for the reasonable costs of such
inspections and such inspection shall be at Lessee's risk. Lessee
shall furnish to the Inspecting Parties statements accurate in
all material respects regarding the condition and state of repair
of the Property, all at such times and as often as may be
reasonably requested. No inspection shall unreasonably interfere
with Lessee's use of the Property. None of the Inspecting
Parties shall have any duty to make any such inspection or
inquiry, and none of the Inspecting Parties shall incur any
liability or obligation by reason of not making any such
inspection or inquiry. None of the Inspecting Parties
shall incur any liability or obligation by reason of making any
such inspection or inquiry unless and to the extent, so long as
no Lease Event of Default has occurred and is continuing at the
time of inspection, such Inspecting Party causes damage to the
Property or any interest therein of Lessee or any other Person
during the course of such inspection.
SECTION 15.2. Reports. To the extent permissible under
Applicable Law, Lessee shall prepare and file in timely fashion,
or, where Lessor shall be required to file, Lessee shall prepare
and make available to Lessor within a reasonable time prior to
the date for filing and Lessor shall file, any reports with
respect to the condition or operation of the Property that shall
be required to be filed with any Authority.
ARTICLE XVI
OWNERSHIP, GRANT OF SECURITY INTEREST
AND FURTHER ASSURANCES
SECTION 16.1. Grant of Security Interest. Title to the
Property shall remain in Lessor, as security for the obligations
of Lessee hereunder and under each of the other Operative
Documents to which it is a party until such time as
Lessee shall have fulfilled all of its obligations hereunder and
under such other Operative Documents. Lessee hereby assigns,
grants and pledges to Lessor for the benefit of Administrative
Agent a security interest in and Lien against all of Lessee's
right, title and interest, whether now or hereafter existing or
acquired, in the Property, any deposit account in the name of
Lessee maintained with the Administrative Agent or its designee
and proceeds therefrom, to secure the payment and performance of
all obligations of Lessee now or hereafter existing under this
Lease or any other Operative Document. Lessee shall, at its
expense, do any further act and execute, acknowledge, deliver,
file, register and record any further documents which Lessor
or Administrative Agent may reasonably request in order to
protect its title to and perfected Lien on the Property, subject
to no Liens other than Permitted Liens, and Lessor's rights and
benefits under this Lease. Lessee shall promptly and duly
execute and deliver to Lessor such documents and assurances and
take such further actions as Lessor may from time to time
reasonably request in order to carry out more effectively the
intent and purpose of this Lease and the other Operative
Documents, to establish and protect the rights and remedies
created or intended to be created in favor of Lessor hereunder
and thereunder, and to establish, perfect and maintain the right,
title and interest of Lessor in and to the Property, subject to
no Lien other than Permitted Liens, or of such financing
statements or fixture filings or other documents with respect
hereto as Lessor or Administrative Agent may from time to time
reasonably request, and Lessee agrees to execute and deliver
promptly such of the foregoing financing statement and fixture
filings or other documents as may require execution by Lessee. To
the extent permitted by Applicable Law, Lessee hereby authorizes
any such financing statement and fixture filings to be filed
without the necessity of the signature of Lessee.
SECTION 16.2. Release of Liens; Transfer of Property. Upon
Lessee's request, Lessor shall at such time as all of the
obligations of Lessee under this Lease or any other Operative
Documents have been indefeasibly paid or performed in full (other
than Lessee's contingent obligations, if any, under Article
VII of the Participation Agreement) execute and deliver
termination statements and other appropriate documentation
reasonably requested by Lessee, all at Lessee's expense, to
evidence Lessor's release of its Lien against the Property.
Whenever pursuant to any provision of this Lease Lessor is
required to transfer the Property to Lessee or to an independent
third party, such transfer shall be made at Lessee's expense by
the quitclaim transfer of all of Lessor's right, title and
interest in and to such Property on an "as is, where is, with all
faults" basis free and clear of all Lessor Liens and otherwise
without recourse, representation or warranty of any kind, and
together with the due assumption by Lessee (or such third party)
of, and due release of Lessor from, all obligations relating to
such Property or the Operative Documents. At the request of
Lessor, Lessee will transfer all of its right, title and interest
in the Property to the buyer. Any provision in this Lease or
other Operative Document to the contrary notwithstanding, Lessor
shall not be obligated to make any such transfer until Lessor
has received all Rent and other amounts due and owing hereunder.
SECTION 16.3. Attorney-in-Fact. Lessee hereby irrevocably
appoints Administrative Agent as Lessee's attorney-in-fact, with
full authority in the place and stead of Lessee and in the name
of Lessee or otherwise, from time to time in Lessor's discretion,
upon the occurrence and during the continuance of a Lease Event
of Default, to take any action (including any action that
Lessee is entitled to take) and to execute any instrument which
Lessor may deem necessary or advisable to accomplish the purposes
of this Lease (subject to any limitations set forth in the
Operative Documents), including, without limitation:
(a) to ask, demand, collect, sue for, recover,
compromise, receive and give acquittance and receipts for
money due and to become due under or in connection with the
Property;
(b) to receive, endorse and collect any drafts or
other instruments, documents and chattel paper in connection
with the foregoing clause (a);
(c) to file any claim or take any action or institute
any proceedings which Lessor may deem to be necessary or
advisable for the collection thereof or to enforce
compliance with the terms and conditions of the Lease; and
(d) to perform any affirmative obligations of
Lessee hereunder.
Lessee hereby acknowledges, consents and agrees that the power of
attorney granted pursuant to this Section 16.3 is irrevocable and
coupled with an interest.
ARTICLE XVII
LEASE EVENTS OF DEFAULT
The occurrence of any one or more of the following events,
whether any such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in
compliance with any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body, shall constitute "Lease Events of Default":
(a) Lessee shall fail to make any payment of: (i)
Basic Rent when due and such failure shall continue for a
period of five (5) days, (ii) amounts payable pursuant to
the exercise of the Purchase Option, the Remarketing Option
or Section 13.1(a), when due, or (iii) Supplemental Rent
(other than Supplemental Rent payable under clause
(ii)) when due and such failure shall continue for a period
of five days after receipt of written notice thereof from
Administrative Agent or Lessor;
(b) Lessee shall fail to maintain insurance as
required by Section 11.1 or shall default in the performance
or observance of any other term, covenant, condition or
agreement on its part to be performed or observed under
Article XI and such failure shall continue for ten (10)
days after written notice to Lessee thereof from
Administrative Agent or Lessor;
(c) any representation or warranty by Lessee in any
Operative Document or in any certificate, document or
financial or other statement delivered to Lessor pursuant
to any Operative Document shall have been incorrect in any
material respect when made, shall result in a Material
Adverse Effect, and, if curable, shall continue for a period
of 35 days after written notice to Lessee from any
Participant or the Administrative Agent;
(d) Lessee shall fail to perform or observe any
covenant, condition, or agreement (not included in any other
clause of this Article XVII) to be performed or observed by
it hereunder or in any other Operative Document and such
failure shall continue unremedied for 35 days if using due
diligence after the earlier of (i) the date upon which a
Responsible Officer of Lessee has actual knowledge thereof
and (ii) the date upon which written notice thereof is
delivered to Lessee from any Participant or Administrative
Agent; except that if the failure is capable of being
remedied, no such failure shall constitute a Lease Event of
Default so long as Lessee is diligently proceeding to cure
such failure, but in no event shall the failure continue
unremedied for a period of 180 days from the notice referred
to above;
(e) (i) Lessee or any Material Subsidiary shall
generally fail to pay, or admit in writing its inability to
pay, its debts as they become due, or shall voluntarily
commence any case or proceeding or file any petition under
any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, or similar law seeking to have an
order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent or seeking
dissolution, liquidation, reorganization, arrangement,
adjustment, winding-up, composition or other relief with
respect to it or its debts or the appointment of a receiver,
trustee, custodian or liquidator for itself or for all or
a substantial portion of its property, assets or business,
or to effect a plan or other arrangement with its creditors,
or shall file any answer admitting the jurisdiction of the
court and the material allegations of any involuntary
petition filed against it in any bankruptcy, insolvency or
similar case or proceeding, or shall be adjudicated
bankrupt, or shall make a general assignment for the benefit
or creditors, or shall consent to, or acquiesce in the
appointment of, a receiver, trustee, custodian or liquidator
for itself or a substantial portion of its property, assets
or business; (ii) corporate action shall be taken by
Lessee or any Material Subsidiary for the purpose of
effectuating any of the foregoing; (iii) involuntary
proceedings or an involuntary petition shall be commenced or
filed against Lessee or any Material Subsidiary under any
existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, or similar law or seeking the
dissolution, liquidation, reorganization, arrangement,
adjustment, winding-up, composition or other relief with
respect to it or its debts of Lessee or the appointment of a
receiver, trustee, custodian or liquidator for Lessee or for
a substantial part of the property, assets or business of
Lessee, or any writ, judgment, warrant of attachment,
execution or similar process shall be issued or levied
against all or a substantial part of the property, assets or
business of Lessee, and such proceedings or petition shall
not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be
released, vacated or fully bonded, within 60 days after
commencement, filing or levy, as the case may be;
or (iv) either Lessee or any Material Subsidiary shall take
any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth
in clauses (i), (ii) or (iii) above;
(f) One or more judgments or decrees, which shall
not have been vacated, discharged, paid in full, stayed
or bonded pending appeal within the time required by the
terms of such judgment, shall be entered against Lessee or
any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance where the
insurer has admitted liability under the policy or has
agreed in writing to pay in full the claim) of $10,000,000
or more;
(g) Lessee or any of its Affiliates shall directly or
indirectly contest the validity of any Operative Document in
any manner in any court of competent jurisdiction or the
Lien granted by this Lease or the Mortgage or the Guaranty
shall no longer be in full force or effect;
(h) Lessee or any of its Subsidiaries shall (i)
default in any payment of principal of or interest of any
Indebtedness (other than the Loans) or in the payment of any
Guarantee Obligation, beyond the period of grace (not to
exceed 60 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to
any such Indebtedness or Guarantee Obligation or contained
in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such
Guarantee Obligation (or Administrative Agent on behalf of
such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice or the passage of time if
required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become
payable; provided, however, that no Lease Event of Default
shall exist under this paragraph unless the aggregate amount
of Indebtedness and/or Guarantee Obligations in respect of
which any default or other event or condition referred to in
this paragraph shall have occurred shall be equal to at
least $10,000,000;
(i) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any "accumulated
funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan
or any Lien in favor of the PBGC or a Plan shall arise on
the assets of the Lessee or any Commonly Controlled Entity,
(iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Participants,
likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v)
Lessee or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Required Participants is
likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other adverse event or
condition shall occur or exist with respect to a Plan; and
in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or
conditions, if any, could reasonably be expected to involve
an aggregate amount of liability to the Company or any
Material Subsidiary in excess of
$10,000,000;
(j) (i) Any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended, but other than the Fireman Group) (A)
shall have acquired beneficial ownership of 20% or more of
any outstanding class of Capital Stock having ordinary
voting power in the election of directors of Lessee or (B)
shall obtain the power (whether or not exercised) to elect a
majority of the Lessee's directors or (ii) the Board of
Directors of the Lessee shall not consist of a majority of
Continuing Directors; "Continuing Directors" shall mean the
directors of the Lessee on the date hereof and each other
director, if such other director's nomination for election
to the Board of Directors of the Lessee is recommended by a
majority of the then Continuing Directors;
(k) A Construction Agency Event of Default has
occurred; or
(l) Lessee shall default in the observance or
performance of any Agreement contained in Sections 5.6, 5.18
or 5.19 of the Participation Agreement.
ARTICLE XVIII
ENFORCEMENT
SECTION 18.1. Remedies. Upon the occurrence of any Lease
Event of Default and at any time thereafter so long as the same
shall be continuing, Lessor may, at its option, by notice to
Lessee pursuant to Article XVI, declare this Lease to be in
default (except that no notice shall be required and this Lease
shall be deemed in default upon the occurrence of a Lease Event
of Default under Article XVII(e) or (g)), and at any time
thereafter Lessor may, so long as such Lease Event of Default is
continuing, do one or more of the following as Lessor in its sole
discretion from time to time shall determine, to the extent
permitted by Applicable Law:
(a) Lessor may terminate this Lease and Lessee's right
to possession of the Property as of the date specified in
such notice; however, (i) no judicial proceedings,
reletting, reentry or taking of possession of the Property
by Lessor will be construed as an election on Lessor's part
to terminate this Lease unless a written notice of such
intention is given to Lessee, (ii) notwithstanding any
judicial proceedings, reletting, reentry or taking of
possession, Lessor may at any time thereafter elect to
terminate this Agreement for a continuing Lease Event of
Default, and (iii) no act or thing done by Lessor or the
Administrative Agent, representatives or employees and no
agreement accepting a surrender of the Property shall be
valid unless the same shall be made in writing and executed
by Lessor;
(b) Lessor may (i) demand that Lessee, and Lessee
shall upon the written demand of Lessor, return the Property
promptly to Lessor in the manner and condition required by,
and otherwise in accordance with all of the provisions of,
Section 9.1 as if the Property were being returned at the
end of the Lease Term, and Lessor shall not be liable for
the reimbursement of Lessee for any costs and expenses
incurred by Lessee in connection therewith, or (ii) without
prejudice to any other remedy which Lessor may have for
possession of the Property, enter upon the Property and take
immediate possession of (to the exclusion of Lessee) the
Property or any part thereof and expel or remove Lessee and
any other Person who may be occupying the Property, with or
without judicial process, all without liability to Lessor
for or by reason of such entry or taking of possession,
whether for the restoration of damage to property caused by
such taking or otherwise and, in addition to Lessor's other
damages, Lessee shall be responsible for the reasonably
necessary costs and expenses of reletting, including
broker's fees attributable to the balance of the Lease Term
and for future reletting and the costs of any alterations or
repairs made by Lessor. The provisions of this Section
17.1(b) shall be deemed to satisfy all requirements or
provisions of Applicable Law, if any, which may require
Lessor to provide a notice to Lessee of Lessor's intention
to re-enter the Property and any such requirements or
provisions are hereby waived by Lessee;
(c) Lessor may sell all or any part of the Property at
public or private sale, as Lessor may determine, free and
clear of any rights of Lessee and without any duty to
account to Lessee with respect to such action or inaction
(except to the extent required by clause (f) below if Lessor
shall elect to exercise its rights thereunder) in which
event Lessee's obligation to pay Basic Rent hereunder for
periods commencing after the date of such sale shall be
terminated or proportionately reduced, as the case may be
(except to the extent that Basic Rent is to be included in
computations under clauses (e) or (f) below if Lessor shall
elect to exercise its rights thereunder);
(d) Lessor may, at its option, without terminating
this Agreement, terminate Lessee's right to possession only,
and continue to collect all Basic Rent, Supplemental Rent,
and all other amounts due Lessor (together with all costs of
collection) and enforce Lessee's obligations under this
Agreement as and when the same becomes due, or are to be
performed, and at the option of Lessor, Lessor may, in its
sole and absolute discretion, make such reasonable
alterations and necessary repairs in order to relet the
Property, and relet the Property or any part thereof for
such term or terms (which may be for a term extending beyond
the Lease Term) and at such rental or rentals and upon such
other terms and conditions as Lessor in its reasonable
discretion may deem advisable; and upon each such reletting
all rentals actually received by Lessor from such reletting
after deducting costs of alterations, brokerage and
attorneys' fees shall be applied to Lessee's obligations
(including the Lease Balance) in accordance with Article V
of the Participation Agreement. If such rent received from
such reletting during any Lease Term shall be less than the
Rent to be paid during that Lease Term by Lessee hereunder,
Lessee shall pay any deficiency, as calculated by Lessor, to
Lessor on the next Rent Payment Date in such Lease Term;
(e) Lessor may enforce the Lien given hereunder
pursuant to Section 16.1, the Uniform Commercial Code or any
other law;
(f) If Lessee has breached this Lease and abandoned
the Property, this Lease shall continue in effect for so
long as Lessor does not terminate Lessee's right to
possession, and Lessor may enforce all of Lessor's
rights and remedies under this Lease, including the right to
recover the Rent hereunder (including Basic Rent and
Supplemental Rent) as it becomes due under this Lease.
Lessee's right to possession shall not be deemed to have
been terminated by Lessor except pursuant to clause (i)
above. The following do not constitute a termination of
Lessee's right to possession:
(A) Acts of maintenance or preservation or
efforts to relet the Property;
(B) The appointment of a receiver upon the
initiative of Lessor to protect Lessor's interest under
this Lease;
(C) Reasonable withholding of consent to an
assignment or subletting, or terminating a subletting
or assignment by Lessee;
(g) In the event that Lessor elects to continue this
Lease in full force and effect, Lessor may enforce all its
rights and remedies under this Lease, including, but not
limited to, the right to recover Rent hereunder
(including Basic Rent and Supplemental Rent) as it becomes
due. During the continuance of a Lease Event of Default,
Lessor may enter the Property in accordance with applicable
law without terminating this Lease and sublet all or any
part of the Property for Lessee's account to any Person,
for such term (which may be a period beyond the remaining
Lease Term), at such rents and on such other terms and
conditions as are commercially reasonable. In the event of
any such subletting, rents received by Lessor from such
subletting shall be applied (i) first, to the payment of the
reasonable costs incurred by Lessor in maintaining,
preserving, altering and preparing the Property for
subletting and other costs of subletting, including, but not
limited to, brokers' commissions and attorneys' fees; (ii)
second, to the payment of Rent hereunder (including Basic
Rent and Supplemental Rent) then due and payable; (iii)
third, to the payment of future Rent hereunder (including
Basic Rent and Supplemental Rent) as the same may become due
and payable hereunder; (iv) fourth, to the payment of all
other obligations of Lessee hereunder and under the other
Operative Documents; and (v) fifth, the balance, if any,
shall be paid to Lessee upon (but not before) expiration of
the Lease Term. If the rents received by Lessor from such
subletting, after application as provided above, are
insufficient in any period to pay the Rent (including Basic
Rent and Supplemental Rent) due and payable hereunder for
such period, Lessee shall pay such deficiency to Lessor
upon demand. Notwithstanding any such subletting for
Lessee's account without termination, Lessor may at any time
thereafter, by written notice to Lessee, elect to terminate
this Lease by virtue of a previous Lease Event of Default;
(h) Lessor may, whether or not Lessor shall have
exercised or shall thereafter at any time exercise any of
its rights under clauses (b), (c) or (d) of this Section
17.1 with respect to the Property, demand, by written notice
to Lessee specifying a Rent Payment Date (the "Final Rent
Payment Date") not earlier than 10 days after the date of
such notice, that Lessee pay to Lessor, and Lessee shall pay
to Lessor, on the Final Rent Payment Date (in lieu of Basic
Rent due after the Final Rent Payment Date) an amount equal
to the sum of (A) all accrued and unpaid Rent due and unpaid
to and including the Final Rent Payment Date plus (B) the
Lease Balance computed as of the Final Rent Payment Date,
and upon payment of such amount, and the amount of any
unpaid Rent referred to above plus all other sums due and
payable by Lessee to Lessor (and interest at the Overdue
Rate on the amount payable under this clause (h) from the
Final Rent Payment Date to the date of actual payment),
Lessor shall transfer by quitclaim to Lessee all of Lessor's
right, title and interest in and to the Property without
recourse or warranty, but free and clear of Lessor's Liens;
(i) If Lessor shall have sold the Property pursuant to
clause (c) above, Lessor, in lieu of exercising its rights
under clause (h) above, may, if it shall so elect, demand
that Lessee pay to Lessor, and Lessee shall pay to Lessor,
on the date of such sale (in lieu of Basic Rent due for
periods commencing on or after the Rent Payment Date
coinciding with such date of sale (or, if the sale date is
not a Rent Payment Date, the Rent Payment Date next
preceding the date of such sale)), an amount equal to the
sum of (A) all Rent due and unpaid to and including such
Rent Payment Date, plus (B) the amount of any excess of the
Lease Balance, computed as of such date, over the net
proceeds of such sale (i.e., after deduction from gross
proceeds of all costs related to the sale incurred by
Lessor, and Lessee, all transfer and other taxes imposed in
connection with the sale and all other costs, charges, title
insurance premiums and fees paid to third Persons in
connection with such sale), together with interest at the
Overdue Rate on such excess from such Rent Payment Date to
the date of sale, plus (C) interest at the Overdue Rate on
all of the foregoing amounts from the date of such sale
until the date of payment;
(j) Lessor may exercise any other right or remedy that
may be available to it under Applicable Law or in equity, or
proceed by appropriate court action (legal or equitable) to
enforce the terms or to recover damages for the breach
hereof. Separate suits may be brought to collect any such
damages for any portion of the Lease Term, and such suits
shall not in any manner prejudice Lessor's right to collect
any such damages for any subsequent portion of the Lease
Term, or Lessor may defer any such suit until after the
expiration of the Lease Term or any Renewal Term, in which
event such suit shall be deemed not to have accrued until
the expiration of the Lease Term, or such Renewal Term;
or
(k) Lessor may retain and apply against Lessor's
damages all sums which Lessor would, absent such Lease Event
of Default, be required to pay to, or turn over to, Lessee
pursuant to the terms of this Lease.
SECTION 18.2. Proceeds of Sale. All payments received and
amounts held or realized by Lessor at any time when a Lease Event
of Default shall have occurred and be continuing and after the
Lease Balance shall have been accelerated pursuant to Article
XVIII as well as all payments or amounts then held or
thereafter received by Lessor, except for rents received by
Lessor from subletting pursuant to Section 18.1(d), shall be
distributed forthwith upon receipt by Lessor in accordance with
Section 2.6 of the Participation Agreement.
SECTION 18.3. Grant and Foreclosure on Lessee's Estate.
Notwithstanding any other remedies set forth in this Lease, the
following shall apply:
(a) Title to the Property shall remain in Lessor, as
security for the obligations of Lessee under the Lease and
under each of the other Operative Documents to which it is a
party until such time as Lessee shall have fulfilled all of
its obligations under the Lease and under such other
Operative Documents. Lessee hereby assigns, grants,
mortgages, warrants and pledges with mortgage covenants to
the Lessor a mortgage lien and security interest in and
against all of Lessee's right, title and interest, if any,
whether now or hereafter existing or acquired, in the
Property and the other Collateral to secure the payment and
performance of all obligations of Lessee now or hereafter
existing or acquired, in the Property and the other
Collateral to secure the payment and performance of all
obligations of Lessee now or hereafter existing under this
Lease or any other Operative Document. This grant of
mortgage is on the Statutory Condition. Lessee shall, at
its expense, do any further act and execute, acknowledge,
deliver, file, register and record any further documents
which any Participant may reasonably request in order to
protect its title to and perfected Lien in the Property and
the other Collateral, subject to no Liens other than
Permitted Liens, and Lessor's rights and benefits under the
Lease. Lessee shall promptly and duly execute and deliver
to Lessor such documents and assurances and take such
further actions as any Participant may from time to time
reasonably request in order to carry out more effectively
the intent and purpose of this Lease, the mortgage granted
hereunder and the other Operative Documents, to establish
and protect the rights and remedies created or intended to
be created in favor of Lessor hereunder and thereunder, and
to establish, perfect and maintain the right, title and
interest of Lessor in and to the Property and the other
Collateral, subject to no Lien other than Permitted Liens,
or of such mortgages, financing statements or fixture
filings or other documents with respect hereto as any
Participant may from time to time reasonably request, and
Lessee agrees to execute and deliver promptly such of the
foregoing mortgages, financing statements and fixture
filings or other documents as may require execution by
Lessee. To the extent permitted by Applicable Law, Lessee
hereby authorizes any such mortgages, financing statement
and fixture filings to be filed without the necessity of the
signature of Lessee. Upon Lessee's request, Lessor shall at
such time as all of the obligations of Lessee under the
Lease or any other Operative Documents have been
indefeasibly paid or performed in full (other than Lessee's
contingent obligations, if any, under Article VII of the
Participation Agreement) execute and deliver termination
statements and other appropriate documentation reasonably
requested by Lessee, all at Lessee's expense, to evidence
Lessor's release of its Lien against the Collateral.
(b) Lessee hereby irrevocably appoints Lessor as
Lessee's attorney-in-fact, with full authority in the place
and stead of Lessee and in the name of Lessee or otherwise,
from time to time in Lessor's discretion, to execute any
instrument which Lessor may deem necessary or advisable to
accomplish the purposes of the Lease (subject to any
limitations set forth in the Operative Documents), and upon
the occurrence and during the continuance of a Lease Event
of Default, to take any action (including any action that
Lessee is entitled to take), including, without limitation:
(i) to ask, demand, collect, sue for, recover,
compromise, receive and give acquittance and receipts
for money due and to become due under or in connection
with the Property and the other Collateral;
(ii) to receive, endorse and collect any drafts
or other instruments, documents and chattel paper in
connection with the foregoing clause (a);
(iii) to file any claim or take any action or
institute any proceedings which Lessor may deem to be
necessary or advisable for the collection thereof or to
enforce compliance with the terms and conditions of the
Lease; and
(iv) to perform any affirmative obligations of
Lessee under the Lease, including the execution of
mortgages, financing statements and other documents.
Lessee hereby acknowledges, consents and agrees that the
power of attorney granted pursuant to this Section 4 is
irrevocable and coupled with an interest.
(c) Lessor and the Lessee agree that upon the
occurrence of a Lease Event of Default, the Lessor may
exercise the Statutory Power of Sale, and may proceed by a
suit or suits in equity or at law, whether for a foreclosure
hereunder, or for the sale of the Property and the other
Collateral, or against the Lessee on a recourse basis for
the Lease Balance and all other amounts due from Lessee
under the Lease, or for the specific performance of any
covenant or agreement herein contained or in aid of the
execution of any power herein granted, or for the
appointment of a receiver pending any foreclosure hereunder
or the sale of the Property and the other Collateral, or for
the enforcement of any other appropriate legal or equitable
remedy, and at any foreclosure sale Lessor may become the
purchaser, and in such case for the purpose of making
settlement for or payment of the purchase price, shall be
entitled to offset any claims for the amounts due hereunder
and under the Operative Documents in order that they may be
credited as paid on the purchase price. Lessee hereby
grants to Lessor a Statutory Power of Sale, and hereby
assents to the passage of a decree for the sale of the
Property upon the occurrence of a Lease Event of Default.
Any sale made pursuant to the Statutory Power of Sale shall
be made in accordance with Massachusetts General Laws
Chapter 183, Section 21.
(d) Upon the occurrence of a Lease Event of Default,
Lessor, as a matter of right and without notice to Lessee or
anyone claiming under Lessee, and without regard to the then
value of the Property or the Collateral or the interest of
Lessee therein, shall have the right to apply to any court
having jurisdiction to appoint a receiver or receivers of
the Property and Collateral, and Lessee hereby irrevocably
consents to such appointment and waives notice of any
application therefor. Any such receiver or receivers shall
have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of Lessor in
case of entry as provided in the Lease and shall continue as
such and exercise all such powers until the latest to occur
of (i) the date of confirmation of sale of the Property and
Collateral; (ii) the disbursement of all proceeds of the
Property and Collateral collected by such receiver and the
payment of all expenses incurred in connection therewith; or
(iii) the termination of such receivership with the consent
of Lessor or pursuant to an order by a court of competent
jurisdiction.
(e) This instrument will be deemed given to secure not
only existing amounts due hereunder and under the Operative
Documents, but also future advances, whether such advances
are obligatory or to be made at the option of the
Participants or otherwise, to the same extent as if such
future advances were made on the date of execution of this
instrument. To the fullest extent permitted by law, the
Lien of this instrument shall be valid as to all such
indebtedness, including all future advances, from the time
this instrument is recorded. Notwithstanding anything in
this instrument to the contrary, the maximum principal
amount of Indebtedness secured by this instrument at any one
time shall not exceed One Hundred Fifty Million and No/100
Dollars ($150,000,000) in principal amount, plus all accrued
but unpaid Rent, plus all cost of enforcement and collection
of this instrument, the Notes and the other Operative
Documents, plus the total amount of any advances made
pursuant thereto to protect the collateral and the security
interest and Lien created hereby, together with interest and
yield on all of the foregoing as provided in the Operative
Documents.
(f) Without in any way limiting or restricting any of
Lessor's rights, remedies, powers and authorities under this
instrument, and in addition to all of such rights, remedies,
powers, and authorities, the Lessor shall also have and may
exercise any and all rights, remedies, powers and
authorities which the holder of a mortgage is permitted to
have or exercise under the Statutory Power of Sale.
(g) The Lessee, on behalf of itself and all Persons
now or hereafter interested in the Property and the other
Collateral, voluntarily and knowingly hereby waives, to the
fullest extent permitted by Applicable Law, any and all
rights to reinstatement or redemption and any and all other
rights under all present and future appraisement, homestead,
moratorium, valuation, exemption, stay, extension, and
redemption statutes, laws or equities now or hereafter
existing, and hereby further waives the pleading of any
statute of limitations as a defense to any and all
indebtedness secured by this instrument, and the Lessee
agrees that no defense, claim or right based on any thereof
will be asserted, or may be enforced, in any action
enforcing or relating to this instrument. Without limiting
the generality of the preceding sentence, the Lessee, on its
own behalf and on behalf of each and every Person acquiring
any interest in or title to the Property subsequent to the
date of this instrument, hereby irrevocably waives any and
all rights of reinstatement or redemption from sale under
any order, judgment or decree of foreclosure of this
instrument or under any power contained herein or under any
sale pursuant to any statute, order, judgment or decree of
foreclosure of any court.
SECTION 18.4. Remedies Cumulative; No Waiver; Consents. To
the extent permitted by, and subject to the mandatory
requirements of, Applicable Law, each and every right, power and
remedy herein specifically given to Lessor or otherwise in this
Lease shall be cumulative and shall be in addition to every other
right, power and remedy herein specifically given or now or
hereafter existing at law, in equity or by statute, and each and
every right, power and remedy whether specifically herein given
or otherwise existing may be exercised from time to time and as
often and in such order as may be deemed expedient by Lessor,
and the exercise or the beginning of the exercise of any power or
remedy shall not be construed to be a waiver of the right to
exercise at the same time or thereafter any right, power or
remedy. No delay or omission by Lessor in the exercise of any
right, power or remedy or in the pursuit of any remedy shall
impair any such right, power or remedy or be construed to be a
waiver of any default on the part of Lessee or be an acquiescence
therein. Lessor's consent to any request made by Lessee shall
not be deemed to constitute or preclude the necessity for
obtaining Lessor's consent, in the future, to all similar
requests. No express or implied waiver by Lessor of any Lease
Event of Default shall in any way be, or be construed to be, a
waiver of any future or subsequent Lease Default or Lease Event
of Default. To the extent permitted by Applicable Law, Lessee
hereby waives any rights now or hereafter conferred by statute or
otherwise that may require Lessor to sell, lease or otherwise use
the Property or any part thereof in mitigation of Lessor's
damages upon the occurrence of a Lease Event of Default or that
may otherwise limit or modify any of Lessor's rights or remedies
under this Article XVIII.
ARTICLE XIX
RIGHT TO PERFORM FOR LESSEE
If Lessee shall fail to perform or comply with any of
its agreements contained herein, Lessor may, but shall not be
obligated to, on five (5) Business Days' prior notice to
Lessee (except in the event of an emergency, in which case only
one Business Day's prior notice shall be required), perform or
comply with such agreement, and Lessor shall not thereby be
deemed to have waived any default caused by such failure, and the
amount of such payment and the amount of the expenses of
Lessor (including reasonable attorneys' fees and expenses)
incurred in connection with such payment or the performance of or
compliance with such agreement, as the case may be, together with
interest thereon at the Overdue Rate, shall be deemed
Supplemental Rent, payable by Lessee to Lessor upon demand;
provided that in the case of an emergency Lessee shall permit
Lessor so to perform or comply on less than one Business Day's
notice unless Lessee has a good faith reason not to permit Lessor
to do so.
ARTICLE XX
MISCELLANEOUS
SECTION 20.1. Binding Effect; Successors and Assigns;
Survival. The terms and provisions of this Lease, and the
respective rights and obligations hereunder of Lessor and
Lessee shall be binding upon them and their respective
successors, legal representatives and assigns (including, in the
case of Lessor, any Person to whom Lessor may transfer the
Property or any interest therein in accordance with the
provisions of this Lease or any of the other Operative
Documents), and inure to their benefit and the benefit of their
respective permitted successors, legal representatives and
assigns.
SECTION 20.2. Severability. Any provision of this
Lease that shall be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction, and Lessee shall remain liable to perform its
obligations hereunder except to the extent of such
unenforceability. To the extent permitted by Applicable Law,
Lessee hereby waives any provision of law that renders any
provision hereof prohibited or unenforceable in any respect.
SECTION 20.3. Notices. Unless otherwise specified herein,
all notices, requests, demands or other communications to or upon
the respective parties hereto shall be in writing and shall be
delivered and shall be deemed to have been given in accordance
with Section 9.3 of the Participation Agreement.
SECTION 20.4. Amendment; Complete Agreements. Neither this
Lease nor any of the terms hereof may be terminated, amended,
supplemented, waived or modified orally, but only by an
instrument in writing signed by the party against which the
enforcement of the termination, amendment, supplement, waiver or
modification shall be sought. This Lease, together with the
other Operative Documents, is intended by the parties as a final
expression of their agreement and as a complete and exclusive
statement of the terms thereof, all negotiations, considerations
and representations between the parties having been incorporated
herein and therein. No course of prior dealings between the
parties or their officers, employees, Administrative Agent
or Affiliates shall be relevant or admissible to supplement,
explain, or vary any of the terms of this Lease, the Fee Letter
or any other Operative Document. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior
agreement between the parties or their Affiliates shall not be
relevant or admissible to determine the meaning of any of the
terms of this Lease, the Fee Letter or any other Operative
Document. No representations, undertakings, or agreements have
been made or relied upon in the making of this Lease other than
those specifically set forth in the Operative Documents.
SECTION 20.5. Headings. The Table of Contents and headings
of the various Articles and Sections of this Lease are for
convenience of reference only and shall not modify, define or
limit any of the terms or provisions hereof.
SECTION 20.6. Original Lease. The single executed original
of this Lease containing the receipt of Lessor therefor on or
following the signature page thereof shall be the "original
executed counterpart" of this Lease. To the extent that this
Lease constitutes chattel paper, as such term is defined in the
Uniform Commercial Code as in effect in any applicable
jurisdiction, no security interest in this Lease may be created
through the transfer or possession of any counterpart other than
the "original executed counterpart".
SECTION 20.7. GOVERNING LAW. THIS LEASE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES EXCEPT
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
SECTION 20.8. Discharge of Lessee's Obligations by
Its Affiliates. Lessor agrees that performance of any of
Lessee's obligations hereunder by one or more of its Affiliates
or one or more sublessees of the Property or any part thereof
shall constitute performance by Lessee of such obligations to the
same extent and with the same effect hereunder as if such
obligations were performed by Lessee, but no such performance
shall excuse Lessee from any obligation not performed by it or on
its behalf under this Lease or any other Operative Document.
SECTION 20.9. Liability of Lessor Limited. All payments to
be made by Lessor in respect of the Loans, the Notes and the Loan
Agreement shall be made only from certain payments received under
the Lease and certain proceeds of the Property and only to the
extent that Lessor shall have received sufficient payments from
such sources to make payments in respect of the Loans. Each
Participant agrees that it will look solely to such sources of
payments to the extent available for distribution to such
Participant as herein provided and that neither Lessor nor
Administrative Agent is or shall be personally liable to any
other Participant for any amount payable hereunder or under any
Note. Nothing in the Loan Agreement, the Notes or any other
Operative Document shall be construed as creating any liability
(other than for willful misconduct or gross negligence) of Lessor
to pay any sum or to perform any covenant, either express or
implied, in the Lease, the Loan Agreement, the Notes or any other
Operative Documents (all such liability, if any, being expressly
waived by Lessee, Participants and Administrative Agent) and that
each Participant and each Administrative Agent, on behalf of
itself and its successors and assigns, agrees in the case of any
liability of Lessor hereunder or thereunder (except for such
liability attributable to its willful misconduct or gross
negligence) that it will look solely to those certain payments
received under the Lease and those certain proceeds of the
Property, provided, however, that Lessor shall in any event be
liable with respect to (i) the removal of Lessor's Liens
resulting from claims against or acts or breaches by Lessor or
involving its gross negligence or willful misconduct or (ii)
failure to turn over payments Lessor has received in respect of
Basic Rent; and provided further that the foregoing exculpation
of Lessor shall not be deemed to be exculpations of Lessee or any
other Person.
SECTION 20.10. Estoppel Certificates. Each party hereto
agrees that at any time and from time to time during the Lease
Term, it will promptly, but in no event later than fifteen (15)
days after request by the other party hereto, execute,
acknowledge and deliver to such other party or to any prospective
purchaser (if such prospective purchaser has signed a commitment
letter or letter of intent to purchase the
Property or any part thereof, assignee or mortgagee or third
party designated by such other party, a certificate stating
that this Lease is unmodified and in force and effect (or if
there have been modifications, that this Lease is in force and
effect as modified, and identifying the modification agreements);
the date to which Basic Rent has been paid; in the case of an
estoppel certificate to be given by Lessor, whether or not there
is any existing default by Lessee in the payment of Basic Rent
or any other sum of money hereunder, and whether or not there is
any other existing Lease Default or Lease Event of Default
with respect to which a notice of default has been served, and,
if there is any such default, specifying the nature and extent
thereof; in the case of an estoppel certificate to be given by
Lessee, whether or not, to the knowledge of Lessee after due
inquiry and investigation, there are any purported setoffs,
defenses or counterclaims against enforcement of the obligations
to be performed hereunder existing in favor of Lessee; and other
items that may be reasonably requested; provided that no such
certificate may be requested unless the requesting party has a
good faith reason for such request.
SECTION 20.11. No Joint Venture. Any intention to create a
joint venture or partnership relation between Lessor and Lessee
is hereby expressly disclaimed.
SECTION 20.12. No Accord and Satisfaction. The acceptance
by Lessor of any sums from Lessee (whether as Basic Rent or
otherwise) in amounts which are less than the amounts due and
payable by Lessee hereunder is not intended, nor shall be
construed, to constitute an accord and satisfaction of any
dispute between Lessor and Lessee regarding sums due and payable
by Lessee hereunder, unless Lessor specifically deems it as such
in writing.
SECTION 20.13. No Merger. In no event shall the leasehold
estate of Lessee hereunder, or the rights and interests of the
holder of any Notes secured by a Lien in this Lease, merge with
any interests, estates or rights of Lessor in or to the Property,
it being understood that such leasehold estate of Lessee
hereunder, and the rights and interests of the holder of any
Notes secured by a Lien in this Lease, shall be deemed to be
separate and distinct from Lessor's interests, estates and rights
in or to the Property, notwithstanding that any such interests,
estates or rights shall at any time or times be held by or vested
in the same Person.
SECTION 20.14. Survival. All claims pertaining to the
representations, warranties, and covenants of Lessee under
Articles II, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XV, XVII
and XVIII shall survive the expiration or termination of this
Lease. The extension of any applicable statute of limitations by
Lessor, Lessee or any other Indemnitee shall not affect such
survival.
SECTION 20.15. Enforcement of Certain Warranties.
(a) Unless a Lease Event of Default shall have occurred and
be continuing, Lessor authorizes Lessee (directly or through
Administrative Agents), at Lessee's expense, to assert, during
the Lease Term, all of Lessor's rights (if any) under any
applicable warranty and any other claim that Lessee or Lessor may
have under the warranties provided to Lessor in connection with
the purchase of the Property and Lessor agrees to cooperate, at
Lessee's expense, with Lessee and its Administrative Agents in
asserting such rights. Any amount recovered by Lessee under any
such warranties shall be paid to Lessee.
(b) Notwithstanding the foregoing provisions of this
Section 20.15, so long as a Lease Event of Default or Lease
Default shall have occurred and be continuing, any amount that
would otherwise be retained by Lessee pursuant to Section
20.15(a) shall be paid to Lessor as security for the obligations
of Lessee under this Lease, shall be invested by Lessor in
accordance with Section 20.16 in Permitted Investments and, if a
Lease Event of Default or Lease Default is continuing, may be
applied to the obligations of Lessee hereunder, and, at such time
thereafter as no Lease Event of Default or Lease Default shall be
continuing, such amount and gain thereon shall be paid promptly
to Lessee to the extent not previously applied in accordance with
the terms of this Lease.
SECTION 20.16. Investment of Security Funds. Any amounts
not payable to Lessee and paid to or retained by Lessor pursuant
to any provision hereof solely because a Lease Event of Default
or Lease Default shall have occurred and be continuing or because
Lessee shall not have performed in full its obligations under
Article XIII shall be held by Lessor as security for the
obligations of Lessee under this Lease and the other Operative
Documents. At such time as no Lease Event of Default or Lease
Default, or failure to perform shall be continuing, such amounts,
net of any amounts previously applied to Lessee's obligations
hereunder or under any other Operative Documents, shall be paid
to Lessee. Any such amounts which are held pending payment to
Lessee or application hereunder shall be invested by Lessor as
directed from time to time in writing by Lessee (provided,
however, if a Lease Event of Default or Lease Default has
occurred and is continuing, it will be directed by Lessor), and
at the expense and risk of Lessee, in Permitted Investments. Any
gain (including interest received) realized as the result of any
such investment (net of any fees, commissions and other expenses,
if any, incurred in connection with such investment) shall be
applied from time to time in the same manner as the principal
invested. Lessee will promptly pay to Lessor, on demand, the
amount of any loss realized as the result of any such investment
(together with any fees, commissions and other expenses, if any,
incurred in connection with such investment), such amount to be
held, paid and applied in the same manner as other amounts
subject to this Section 20.16.
SECTION 20.17. Recording of Lease. Lessor and Lessee shall
execute, acknowledge and cause to be recorded this Lease in the
official records of each County where the Property(s) +that are
the subject of this Lease are located.
SECTION 20.18. Nature of Transaction.
It is the intent of the parties hereto that: (i) the
transaction contemplated hereby preserves ownership in the
Property to Lessee for purposes of Federal and state income tax
and bankruptcy purposes, (ii) Lessee, pursuant to the Lease,
grants a security interest or lien, as the case may be, in the
Property and the other Collateral to the Lessor, (iii) for
purposes of Federal and state income tax and bankruptcy purposes,
among others, the payment by Lessee of Basic Rent shall be
treated as payments of interest, and the payment by Lessee of any
amounts in respect of the Lease Balance shall be treated as
repayments of principal, and (iv) the Assignment of Lease creates
a lien and security interest in the Lease, subject to certain
limited exceptions. Nevertheless, Lessee acknowledges and agrees
that neither Lessor nor Administrative Agent has provided or will
provide tax, accounting or legal advice to Lessee regarding the
Overall Transaction or made any representations or warranties
concerning the tax, accounting or legal characteristics of the
Operative Documents and that Lessee has obtained and relied upon
such tax, accounting and legal advice concerning the Operative
Documents as it deems appropriate.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have each caused this
Lease to be duly executed and delivered by their respective
officers thereunto duly authorized as of the day and year first
above written.
CREDIT SUISSE LEASING 92A, L.P.,
as Lessor
Attest:
By /s/ DARCY SLEDGE AND WHETHERLY-WHITE
Name Printed Darcy Sledge Whetherly-White
Name Printed:
Title: Title: VP
REEBOK INTERNATIONAL LTD.,
as Lessee
Attest:
By /s/ LEO S. VANNONI
Name Printed Name Printed Leo S. Vannoni
Title: Title: Treasurer
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
The foregoing Lease was acknowledged before me, the
undersigned Notary Public, in the County of NEW YORK,
State of New York, this 26th day of March, 1998, by
Darcy Sledge and C. Weatherly-White, as Vice Presidents* of
CREDIT SUISSE LEASING 92A, L.P. on behalf of the partnership.
[Notarial Seal]
/s/ LINDA HOYT
Notary Public
My commission expires:________________ LINDA HOYT
Notary Public, State of New York
No. 31-4768864
Qualified in New York County
Commission Expires March 30, 1998
*of CREDIT SUISSE FIRST BOSTON the General Partner
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
The foregoing Lease was acknowledged before me, the
undersigned Notary Public, in the County of New York, State of
New York, this 26th day of March, 1998, by
Leo S. Vannoni, as Treasurer of REEBOK INTERNATIONAL LTD.,
a Massachusetts corporation, on behalf of the corporation.
[Notarial Seal]
/s/ LINDA HOYT
Notary Public
My commission expires: LINDA HOYT
Notary Public, State of New York
No. 31-4768864
Qualified in New York County
Commission Expires March 30, 1998
SCHEDULE I
PARCEL 1:
A certain parcel of land located on Royall Street, in the
Town of Canton, Norfolk County, Massachusetts, being shown as Lot
A on a plan entitled "Subdivision Plan of Land in Canton
Massachusetts, Prepared for Instron Corporation". Said Plan is
dated August 7, 1997 and recorded in Norfolk County Registry
of Deeds as Plan No. 39 of 1998 in Plan Book 453.
PARCEL 2:
Non-Exclusive Vehicular Driveway Easement, Utility,
Drainage Line, Facility and Equipment Line, and Landscaping
Easement rights created pursuant to that Declaration of
Restrictions, Covenants and Easements dated as of March 27, 1998,
by and between Instron Realty Trust, Credit Suisse Leasing 92A,
L.P. and Reebok International Ltd. recorded in the Norfolk County
Registry of Deeds as Instrument No. 40850 and with the Norfolk
County Registry District of the Land Court as Document No.
787799, noted on Certificate of Title No. 65669.
EXHIBIT 10.3
GUARANTY
from
REEBOK INTERNATIONAL LTD.
Dated as of March 27, 1998
GUARANTY
THIS GUARANTY dated as of March 27, 1998, is made by REEBOK
INTERNATIONAL LTD. (the Company or the Guarantor ) in favor of
the Beneficiaries (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, contemporaneously herewith, the Company, as Lessee
and as Construction Agent, Credit Suisse Leasing 92A, L.P., as
Lessor ("Lessor"), the Banks identified therein, as Lenders
("Lenders"), and Credit Suisse First Boston, as Administrative
Agent, ("Administrative Agent") have entered into that certain
Participation Agreement, dated as of March 27, 1998, and Reebok
International Ltd., as a Lessee, and Lessor have entered into
that certain Lease Agreement, dated as of March 27, 1998. The
Participation Agreement and the Lease Agreement, as they each may
be modified, amended or restated from time to time as and to the
extent permitted thereby, are hereinafter referred to as the
"Participation Agreement" and "Lease" respectively. Unless
otherwise defined herein or the context hereof otherwise
requires, terms which are defined or defined by reference in the
Participation Agreement or Lease shall have the same meanings
when used herein as such terms have therein; and
WHEREAS, Lessor has entered into a Loan Agreement dated as
of even date herewith (as amended or otherwise modified from time
to time, the "Loan Agreement") by and among Lessor, Lenders and
Administrative Agent, pursuant to which the Lenders have agreed
to make loans to Lessor, as evidenced by those certain non-
recourse promissory notes (the "Notes") from Lessor, and the
Notes are secured by those certain Mortgage (the "Mortgage") made
by Lessor to Administrative Agent, as agent for the Lenders and
that certain Assignment of Lease from Lessor to Administrative
Agent, as agent for the Lenders (the "Assignment of Lease").
WHEREAS, it is condition to the effectiveness of the
Participation Agreement that the Company execute and deliver this
Guaranty; and
WHEREAS, it is in the best interests of Guarantor that the
Overall Transaction and the Documentation Date occur; and
WHEREAS, this Guaranty, and the execution, delivery and
performance hereof, have been duly authorized by all necessary
corporate action of Guarantor;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Guarantor,
Guarantor hereby agrees as follows:
SECTION 1. Guarantee. Guarantor hereby irrevocably and
unconditionally guarantees to the Beneficiaries and agrees to act
as surety to the Beneficiaries for (a) the full and prompt
payment when due, whether by acceleration or otherwise, and at
all times thereafter, and (b) the full and prompt performance of
all of the Liabilities (as hereinafter defined), including
Interest and Yield on any such Liabilities, whether accruing
before or after any bankruptcy or insolvency case or proceeding
involving Lessee or any other Person, and, if Interest or Yield
on any portion of such obligations ceases to accrue by operation
of law by reason of the commencement of such case or proceeding,
including such Interest and Yield as would have accrued on any
such portion of such obligations if such case or proceeding had
not commenced, and further agree to pay all expenses (including
attorneys fees and legal expenses) paid or incurred by Lessor,
the Administrative Agent or any of the Lenders (each a
"Beneficiary") in endeavoring to collect the Liabilities, or any
part thereof, and in enforcing this Guaranty. The term
"Liabilities", as used herein, shall mean all of the following,
in each case howsoever created, arising or evidenced, whether
direct or indirect, joint or several, absolute or contingent, or
now or hereafter existing, or due or to become due: (i) all
principal of the Notes and any Interest thereon; (ii) all other
sums at any time due and owing, and required to be paid, to a
Beneficiary under the terms of the Loan Agreement and any other
Operative Document and (iii) the unpaid Investor Balance of
Lessor and any Yield thereon (in each case whether or not Lessee
or any other Person shall be released or relieved from any or all
liability or obligation relating thereto); provided, however,
that if the Lessee duly and timely exercises and consummates the
Remarketing Option pursuant to the Lease (and does not become
obligated to purchase the Property pursuant to Section 6.1 of the
Lease), Liabilities shall not include that portion of the
outstanding principal amount of the Notes equal to the excess of
the then outstanding Lease Balance over the Guaranteed Residual
Amount.
In any action or proceeding involving any state corporate
law, or any state or federal bankruptcy, insolvency,
reorganization or any other law affecting the rights of creditors
generally, if the obligations of Guarantor under this Guaranty
would otherwise be held or determined by a final and
non-appealable order of a court of competent jurisdiction to be
void, invalid or unenforceable, or subordinated to the claims of
any other creditors, on account of the amount of its liability
under this Guaranty, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall,
without any further action by Guarantor or any other Person, be
automatically limited and reduced to the highest amount which is
valid and enforceable as determined in such action or proceeding
pursuant to such final and non-appealable order.
In an Event of Default, any Beneficiary may appropriate and
apply toward the payment of Liabilities, in such order of
application as the Administrative Agent may elect any and all
balances, credits, deposits, accounts or moneys of or in the name
of Guarantor now or hereafter, for any reason or purpose
whatsoever, in the possession or control of, or in transit to
Lessor or any Beneficiary or any agent or bailee for Lessor or
any Beneficiary. Each Beneficiary shall provide prompt written
notice to the Administrative Agent of the exercise by such
Beneficiary of its rights under this paragraph, which notice
shall set forth in reasonable detail the amount of such
application and shall remit such amount to Administrative Agent
or as Administrative Agent may direct.
This Agreement shall constitute an agreement of suretyship
as well as of guaranty and shall constitute an absolute and
unconditional guaranty of payment and performance (and not of
collection) and an absolute and unconditional undertaking by
Guarantor with respect to the payment and performance of the
Liabilities. This Guaranty shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of
Guarantor) and shall not be discharged until such time as all the
Liabilities shall be indefeasibly paid in full in cash, all the
agreements of Lessee under the Operative Documents shall have
been duly performed and the Commitments have been terminated.
The liability of Guarantor hereunder shall be direct and may be
enforced without the Beneficiaries being required to resort to
any other right, remedy or security.
Administrative Agent on behalf of itself and the other
Beneficiaries, may, from time to time at its discretion and
without notice to Guarantor, but subject to the provisions of the
Participation Agreement, take or cause any of the other
Beneficiaries to take, any or all of the following actions:
(a) retain or obtain a lien upon or a security interest in any
property to secure any of the Liabilities or any obligation
hereunder; (b) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to Guarantor,
with respect to any of the Liabilities; (c) extend or renew for
one or more periods (regardless of whether longer than the
original period), alter or exchange any of the Liabilities, or
release or compromise any obligation of Guarantor hereunder or
any obligation of any nature of any other obligor with respect to
any of the Liabilities; (d) release or fail to perfect its lien
upon or security interest in, or impair, surrender, release or
permit any substitution or exchange for, all or any part of any
property securing any of the Liabilities or any obligation
hereunder, or extend or renew for one or more periods (regardless
of whether longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of
any obligor with respect to any such property; and (e) resort to
Guarantor for payment of any of the Liabilities, regardless of
whether Administrative Agent or any other Beneficiary shall have
resorted to any other Person, any property securing any of the
Liabilities or any obligation hereunder or shall have proceeded
against any other obligor primarily or secondarily obligated with
respect to any of the Liabilities (all of the actions referred to
in this paragraph being hereby expressly waived by Guarantor).
SECTION 2. Guarantor's Obligations Unconditional.
Guarantor's obligations hereunder are independent in respect of
any other Person, and, subject to Section 7.5 of the Loan
Agreement, each Beneficiary may enforce any of its rights
hereunder independently of any other right or remedy that it may
at any time hold with respect to the Liabilities or any security
or other guaranty therefor; provided that no double recovery of
the same amount shall be permitted. Such obligations shall be
absolute and unconditional, shall not be subject to any
counterclaim, setoff, deduction, diminution, abatement,
recoupment, suspension, deferment, reduction or defense (other
than full and strict compliance by Guarantor with their
obligations hereunder), whether based upon any claim that Lessor,
Lessee, Administrative Agent, any Beneficiary or any other Person
may have against any Beneficiary or any other Person or
otherwise, and shall remain in full force and effect without
regard to, and shall not be released, discharged or in any way
affected by, any circumstance or condition whatsoever (whether or
not Guarantor or any other Person shall have any knowledge or
notice thereof) including:
A. any amendment, modification, addition, deletion,
supplement or renewal to or of or other change in the
Liabilities or any Operative Document or any of the
agreements referred to in any thereof, or any other
instrument or agreement applicable to any Operative
Document or any of the parties to such agreements, or
to the Property, or any assignment, mortgage or
transfer thereof or of any interest therein, or any
furnishing or acceptance of additional security for,
guaranty of or right of offset with respect to, any of
the Liabilities; or the failure of any security or the
failure of any Beneficiary to perfect or insure any
interest in any collateral;
B. any failure, omission or delay on the part of Lessor or
any Beneficiary to conform or comply with any term of
any instrument or agreement referred to in clause
A above;
C. any waiver, consent, extension, indulgence, compromise,
release or other action or inaction under or in respect
of any instrument, agreement, guaranty, right of offset
or security referred to in clause A above or any
obligation or liability of Lessor or any Beneficiary,
or any exercise or non-exercise by any Beneficiary of
any right, remedy, power or privilege under or in
respect of any such instrument, agreement, guaranty,
right of offset or security or any such obligation or
liability;
D. any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or
similar proceeding with respect to Lessor or any
Beneficiary or any other Person or any of their
respective properties or creditors, or any action taken
by any trustee, receiver or court in any such
proceeding;
E. any limitation on the liability or obligations of any
Person under any Operative Document, the Liabilities,
any collateral security for the Liabilities, any other
guaranty of the Liabilities or any discharge,
termination, cancellation, frustration, irregularity,
invalidity or unenforceability, in whole or in part, of
any of the foregoing or any other agreement,
instrument, guaranty or security referred to in
clause A above or any term of any thereof;
F. any defect in the title, compliance with
specifications, condition, design, operation or fitness
for use of, or any damage to or loss or destruction of,
or any interruption or cessation in the use of the
Property by Lessee or any other Person for any reason
whatsoever (including any governmental prohibition or
restriction, condemnation, requisition, seizure or any
other act on the part of any governmental or military
authority, or any act of God or of the public enemy)
regardless of the duration thereof (even though such
duration would otherwise constitute a frustration of a
lease), whether or not resulting from accident and
whether or not without fault on the part of any Lessee
or any other Person;
G. any merger or consolidation of Lessor, Lessee or
Guarantor into or with any other Person, or any sale,
lease or transfer of any of the assets of Lessor,
Lessee or Guarantor to any other Person;
H. any change in the ownership of any shares of capital
stock of Lessor, Lessee or Guarantor or any corporate
change in Lessor, Lessee or Guarantor;
I. any loan to or other transaction between the
Beneficiaries, or any of them, and Lessee or Lessor;
J. any other occurrence or circumstance whatsoever,
whether similar or dissimilar to the foregoing, and any
other circumstance that might otherwise constitute a
legal or equitable defense or discharge of the
liabilities of a guarantor or surety or that might
otherwise limit recourse against Guarantor.
The obligations of Guarantor set forth herein constitute the
full recourse obligations of Guarantor enforceable against it to
the full extent of all of its assets and properties,
notwithstanding any provision in the Lease or any other Operative
Document or any other document or agreement to the contrary.
Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Liabilities and
notice of or proof of reliance by any Beneficiary upon this
Guaranty or acceptance of this Guaranty, and the Liabilities, and
any of them, shall conclusively be deemed to have been created,
contracted or incurred in reliance upon this Guaranty. Guarantor
unconditionally waives, to the extent permitted by law:
(a) acceptance of this Guaranty and proof of reliance by any
Beneficiary hereon; (b) notice of any of the matters referred to
in clauses A through J above, or any right to consent or assent
to any thereof; (c) all notices that may be required by statute,
rule of law or otherwise, now or hereafter in effect, to preserve
intact any rights against Guarantor, including any demand,
presentment, protest, proof or notice of nonpayment under any
Operative Document, and notice of default or any failure on the
part of Lessor to perform and comply with any covenant,
agreement, term or condition of any Operative Document; (d) any
right to the enforcement, assertion or exercise against Lessor of
any right, power, privilege or remedy conferred in any Operative
Document or otherwise; (e) any requirement of diligence on the
part of any Person; (f) any requirement of any Beneficiary to
take any action whatsoever, to exhaust any remedies or to
mitigate the damages resulting from a default by any Person under
any Operative Document; (g) any notice of any sale, transfer or
other disposition by any Person of any right under, title to or
interest in any Operative Document or the Property; and (h) any
other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge, release or defense of a guarantor
or surety, or that might otherwise limit recourse against
Guarantor.
Guarantor agrees that this Guaranty shall be automatically
reinstated if and to the extent that for any reason any payment
by or on behalf of itself or Lessor is rescinded or must be
otherwise restored by any Beneficiary whether as a result of any
proceedings in bankruptcy or reorganization or otherwise.
Guarantor further agrees that, without limiting the
generality of this Guaranty, if a Lessee Event of Default shall
have occurred and be continuing and any Beneficiary is prevented
by Applicable Law from exercising its remedies under the
Operative Documents, such Beneficiary shall be entitled to
receive hereunder from Guarantor, upon demand therefor, the sums
which would have otherwise been due from Lessee had such remedies
been exercised.
Section 3. Reasonableness and Effect of Waivers. Guarantor
warrants and agrees that each of the waivers set forth in this
Guaranty is made with full knowledge of its significance and
consequences and that, under the circumstances, the waivers are
reasonable and not contrary to public policy or law. If any of
such waivers are determined to be contrary to any applicable law
or public policy, such waivers shall be effective only to the
maximum extent permitted by law.
Section 4. Transfers by Beneficiaries. Each Beneficiary
may, from time to time, whether before or after any
discontinuance of this Guaranty, subject to the requirements of
the Participation Agreement, at its sole discretion and without
notice to or consent of Guarantor, assign or transfer any or all
of its portion of the Liabilities or any interest therein; and,
notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Liabilities shall be and
remain Liabilities for the purposes of this Guaranty, and each
and every immediate and successive assignee or transferee of any
of the Liabilities or of any interest therein shall, to the
extent of such assignee's or transferee's interest in the
Liabilities, be entitled to the benefits of this Guaranty to the
same extent as if such assignee or transferee were such
Beneficiary.
Section 5. No Waiver by Beneficiaries. No delay in the
exercise of any right or remedy shall operate as a waiver
thereof, and no single or partial exercise of any right or remedy
shall preclude other or further exercise thereof or the exercise
of any other right or remedy; nor shall any modification or
waiver of any of the provisions of this Guaranty be binding upon
any Beneficiary except as expressly set forth in a writing duly
signed and delivered on its behalf. No action permitted
hereunder shall in any way affect or impair any Beneficiary's
rights or Guarantor's obligations under this Guaranty. For the
purposes of this Guaranty, Liabilities shall include all of the
obligations described in the definition thereof, notwithstanding
any right or power of Guarantor or anyone else to assert any
claim or defense as to the invalidity or unenforceability of any
such obligation, and no such claim or defense shall affect or
impair the obligations of Guarantor hereunder. Guarantor's
obligations under this Guaranty shall be absolute and
unconditional irrespective of any circumstance whatsoever which
might constitute a legal or equitable discharge or defense of
Guarantor. Guarantor hereby acknowledges that there are no
conditions to the effectiveness of this Guaranty.
Section 6. Joint and Several Obligations; Successors and
Assigns. All obligations under this Guaranty are joint and
several to Guarantor and any other party which hereafter
guarantees any portion of the Liabilities, and shall be binding
upon them and upon their successors and assigns. All references
herein to Guarantor shall be deemed to include any successor or
successors, whether immediate or remote, to such Person.
Section 7. Severability. Wherever possible, each provision
of this Guaranty shall be interpreted in such manner as to be
effective and valid under Applicable Laws, but if any provision
of this Guaranty shall be prohibited by or invalid thereunder,
such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.
Section 8. Notices. All notices, demands, declarations,
consents, directions, approvals, instructions, requests and other
communications required or permitted by this Guaranty shall be in
writing and shall be deemed to have been duly given when
addressed to the appropriate Person and delivered in the manner
specified in Section 8.3 of the Participation Agreement. The
initial address for notices to Guarantor is set forth on Schedule
1 hereto.
SECTION 9. GOVERNING LAW. THIS GUARANTY HAS BEEN DELIVERED
TO ADMINISTRATIVE AGENT AT NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES EXCEPT SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
REEBOK INTERNATIONAL LTD.
By: /s/ LEO S. VANNONI
Title: Vice President
Schedule 1
to Guaranty
SCHEDULE 1
Addresses for Notices
c/o
Reebok International Ltd.
100 Technology Center Drive
Stoughton, MA 02072
Attention:
Leo Vannoni, Treasurer
Telephone:
Facsimile:
Copy to: General Counsel
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
MARCH 31, 1998 CONDENSED CONSOLIDATED BALANCE SHEET AND CONDENSED
CONSOLIDATED STATEMENT OF OPERATIONS AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000770949
<NAME> REEBOK INTERNATIONAL LTD.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1998
<CASH> 143,748
<SECURITIES> 0
<RECEIVABLES> 736,667
<ALLOWANCES> 45,859
<INVENTORY> 531,859
<CURRENT-ASSETS> 1,507,057
<PP&E> 358,417
<DEPRECIATION> 202,983
<TOTAL-ASSETS> 1,796,017
<CURRENT-LIABILITIES> 632,922
<BONDS> 661,266
0
0
<COMMON> 930
<OTHER-SE> 484,340
<TOTAL-LIABILITY-AND-EQUITY> 1,796,017
<SALES> 880,123
<TOTAL-REVENUES> 879,927
<CGS> 566,072
<TOTAL-COSTS> 566,072
<OTHER-EXPENSES> 299,711
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 17,602
<INCOME-PRETAX> (3,458)
<INCOME-TAX> (100)
<INCOME-CONTINUING> (3,358)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,358)
<EPS-PRIMARY> (.06)
<EPS-DILUTED> (.06)
</TABLE>
EXHIBIT 99
ISSUES AND UNCERTAINTIES
The Company's Quarterly report on Form 10-Q filed herewith
includes, and other documents, information or statements released
or made from time to time by the Company may include,
forward-looking statements. These statements involve risks and
uncertainties. The Company's actual results may differ materially
from those discussed in such forward-looking statements.
Prospective information is based on management's then current
expectations or forecasts. Such information is subject to the
risk that such expectations or forecasts, or the assumptions
underlying such expectations or forecasts, become inaccurate.
The following discussion identifies certain important issues and
uncertainties that are among the factors that could affect the
Company's actual results and could cause such results to
differ materially from those contained in forward looking
statements made by or on behalf of the Company.
COMPETITION AND CONSUMER PREFERENCES
The footwear and apparel industry is intensely competitive
and subject to rapid changes in consumer preferences, as well as
technological innovations. A major technological breakthrough or
marketing or promotional success by one of the Company's
competitors could adversely affect the Company's competitive
position. A shift in consumer preferences could also negatively
impact the Company's sales and financial results.
Currently, the industry is experiencing some shift in
consumer preference away from athletic footwear to "brown shoe"
or "casual" product offerings. This change in preference
has adversely affected the Company's business, as well as that of
some of its competitors. The Company is taking steps to respond
to this shift by focusing on its products and technologies and
pursuing growth opportunities with its Rockport, Ralph Lauren
Footwear and Greg Norman brands. There is, however, substantial
uncertainty as to whether the Company's actions will be effective
and how significant the adverse impact of the shift in consumer
preference will be on the Company's business. The outcome will
be dependent on a number of factors, including the extent of the
change in consumer preference, consumer and retailer acceptance
of the Company's products, technologies and marketing, and the
ability of the Company to effectively respond to the shift in the
marketplace, as well as the other factors described in this
Section.
In addition, in countries where the athletic footwear market
is mature (including the U.S.), sales growth may be dependent in
part on the Company increasing its market share at the expense of
its competitors, which may be difficult to accomplish. The
Company also faces strong competition with respect to its other
product lines, such as the ROCKPORT product line and the GREG
NORMAN collection.
Competition in the markets for the Company's products occurs
in a variety of ways, including price, quality, product design,
brand image, marketing and promotion and ability to meet delivery
commitments to retailers. The intensity of the competition faced
by the various operating units of the Company and the rapid
changes in the consumer preference and technology that can occur
in the footwear and apparel markets constitute significant risk
factors in the Company's operations.
INVENTORY RISK
The footwear industry has relatively long lead times for
design and production of product and thus, the Company must
commit to production tooling and in some cases to production in
advance of orders. If the Company fails to accurately forecast
consumer demand or if there are changes in consumer preference or
market demand after the Company has made such production
commitments, the Company may encounter difficulty in filling
customer orders or in liquidating excess inventory, or may find
that retailers are canceling orders or returning product, all of
which may have an adverse effect on the Company's sales, its
margins and brand image. In addition, the Company may be
required to pay for certain tooling if it does not satisfy
minimum production quantities.
SALES FORECASTS
The Company's investment in advertising and marketing is
based on sales forecasts and is necessarily made in advance of
actual sales. The markets in which the Company does business are
highly competitive, and the Company's business is affected by a
variety of factors, including brand awareness, changing consumer
preferences, fashion trends, retailmarket conditions, currency
changes and economic and other factors. There can be no
assurance that sales forecasts will be achieved, and to the
extent sales forecasts are not achieved, these investments will
represent a higher percentage of revenues, and the Company
will experience higher inventory levels and associated carrying
costs, all of which would adversely impact the Company's
financial condition and results. See also discussion below
under "Advertising and Marketing Investment."
PRICING AND MARGINS
The prices that the Company is able to charge for its
products are dependent on the type of product offered and the
consumer and retailer response to such product, as well as
the prices charged by the Company's competitors. If, for
example, the Company's products provide enhanced performance
capabilities, the Company should be able to achieve relatively
higher prices for such products. The gross margins which the
Company earns are dependent on the prices which the Company can
charge for these goods and the costs incurred in acquiring the
products for sale. To the extent that the Company has higher
costs, such as the higher startup costs associated with
technological products, its margins will be lower unless it
can increase its prices. The Company has recently experienced
declining margins partially as a result of the higher cost
associated with its new technology products and its inability to
increase its sale prices sufficiently to cover such costs. In
order for the Company to increase its margins, it will need to
either reduce its costs, for example, by achieving production
efficiencies or economies of scale, or increase its selling
price. There can be no assurance that either of such results can
be achieved. In addition, because of the shift in the
marketplace and the resulting over-inventoried promotional retail
environment, the Company's full-margin at once business has
decreased and the Company has encountered increased returns and
cancellations from retailers, resulting in declining margins.
The ability of the Company to increase its full margin business
is dependent on a number of factors including the success of the
Company's products and marketing, the retail environment and
general industry conditions.
ADVERTISING AND MARKETING INVESTMENT
Because consumer demand for athletic footwear and apparel is
heavily influenced by brand image, the Company's business
requires substantial investments in marketing and advertising,
including television and other advertising, athlete endorsements
and athletic sponsorships, as well as investments in retail
presence. In the event that such investments do not achieve the
desired effect in terms of increased retailer acceptance and/or
consumer purchase of the Company's products, there could be an
adverse impact on the Company's financial results. Recently,
there has been some shift in the marketplace away from certain
"icon" athletes and the products they endorse. As a result, the
Company is re-evaluating its investment in
certain sports marketing deals and is in the process of
eliminating or restructuring certain of
its marketing contracts that no longer reflect Reebok's brand
positioning.
RETAIL OPERATIONS
The Company currently operates approximately 150 retail
stores in the U.S. and a significant number of retail stores
internationally which are operated either directly or through the
Company's distributors. The Company has made a significant
capital investment in opening these stores and incurs significant
expenditures in operating these stores. To the extent the
Company continues to expand its retail organization, the
Company's performance could be adversely affected by lower than
anticipated sales at its retail stores. The performance of the
Company's retail organization is also subject to general retail
market conditions.
TIMELINESS OF PRODUCT
Timely product deliveries are essential in the footwear and
apparel business since the Company's orders are cancelable by
customers if agreed delivery windows are not met. If as a result
of design, production or distribution problems, the Company is
late in delivering product, it could have an adverse impact on
its sales and/or profitability.
INTERNATIONAL SALES AND PRODUCTION
A substantial portion of the Company's products are
manufactured abroad and approximately 40% of the Company's sales
are made outside the U.S. The Company's footwear and apparel
production and sales operations are thus subject to the usual
risks of doing business abroad, such as currency fluctuations,
longer payment terms, potentially adverse tax consequences,
repatriation of earnings, import duties, tariffs, quotas and
other threats to free trade, labor unrest, political instability
and other problems linked to local production conditions and the
difficulty of managing multinational operations. If such factors
limited or prevented the Company from selling products in any
significant international market or prevented the Company from
acquiring products from its suppliers in China, Indonesia,
Thailand or the Philippines, or significantly increased the cost
to the Company of such products, the Company's operations could
be seriously disrupted until alternative suppliers were found or
alternative markets were developed, with a significant negative
impact. See also discussion below under "Economic Factors".
SOURCES OF SUPPLY
The Company depends upon independent manufacturers to
manufacture high-quality product in a timely and cost-efficient
manner and relies upon the availability of sufficient production
capacity at its existing manufacturers or the ability to utilize
alternative sources of supply. A failure by one or more of the
Company's significant manufacturers to meet established criteria
for pricing, product quality or timeliness could negatively
impact the Company's sales and profitability. In addition, if
the Company were to experience significant shortages in raw
materials or components used in its products, it could have a
negative effect on the Company's business, including increased
costs or difficulty in delivering product. Some of the
components used in the Company's technologies are obtained from
only one or two sources and thus a loss of supply could disrupt
production. See also discussion below under "Economic Factors".
RISK ASSOCIATED WITH INDEBTEDNESS
In connection with the Company's Dutch Auction share
repurchase, the Company incurred $640 million in additional debt
to finance the repurchase of shares (as of March 31, 1998, the
outstanding balance of such debt was approximately $487.4
million) and has a $400 million revolving credit line (as of
March 31, 1998, there were no borrowings outstanding under the
revolving credit line). As a result of this indebtedness, the
Company currently faces significantly increased interest expense
and debt amortization, as compared to the past. The credit
arrangement contains certain covenants (including restrictions on
liens and the requirements to maintain a minimum interest
coverage ratio and a minimum debt to cash flow ratio) which are
intended to limit the Company's future actions and which may also
limit the Company's financial, operating and strategic
flexibility. In addition, the Company's failure to make timely
payments of interest and principal on its debt, or to comply with
the material covenants applicable thereto, could result in
significant negative consequences.
The Company believes that its cash, short-term investments
and access to new credit facilities, together with its
anticipated cash flow from operations, are adequate for the
Company's current and planned needs in 1998. However, the
Company's actual experience may differ from the expectations set
forth in the preceding sentence. Factors that might lead to a
difference include, but are not limited to, the matters discussed
herein, as well as future events that might have the effect of
reducing the Company's available cash balances (such as
unexpected operating losses or increased capital or other
expenditures, as well as increases in the Company's inventory or
accounts receivable) or future events that might reduce or
eliminate the availability of external financial resources.
RISK OF CURRENCY FLUCTUATIONS
The Company conducts operations in various international
countries and a significant portion of its sales are transacted
in local currencies. As a result, the Company's revenues are
subject to foreign exchange rate fluctuations. The Company
enters into forward currency exchange contracts and options to
hedge its exposure for merchandise purchased in U.S. dollars that
will be sold to customers in other currencies. The Company also
uses foreign currency exchange contracts and options to hedge
significant inter-company assets and liabilities denominated in
other currencies. However, no assurance can be given that
fluctuation in foreign currency exchange rates will not have an
adverse impact on the Company's revenues, net profits or
financial condition. In 1997 and in the first quarter of 1998,
the Company's international sales, gross margins and profits were
negatively impacted by changes in foreign currency exchange
rates.
CUSTOMERS
Although the Company has no single customer that represents
10% or more of its sales, the Company has certain significant
customers, the loss of which could have an adverse effect on its
business. There could also be a negative effect on the Company's
business if any such significant customer became insolvent or
otherwise failed to pay its debts.
INTELLECTUAL PROPERTY
The Company believes that its trademarks, technologies and
designs are of great value. From time to time the Company has
been, and may in the future be, the subject of litigation
challenging its ownership of certain intellectual property. Loss
of the REEBOK, ROCKPORT or GREG NORMAN trademark rights could
have a serious impact on the Company's business. Because of the
importance of such intellectual property rights, the Company's
business is subject to the risk of counterfeiting, parallel trade
or intellectual property infringement. The Company is, however,
vigilant in protecting its intellectual property rights.
LITIGATION
The Company is subject to the normal risks of litigation
with respect to its business operations.
ECONOMIC FACTORS
The Company's business is subject to economic conditions in
the Company's major markets, including, without limitation,
recession, inflation, general weakness in retail markets and
changes in consumer purchasing power and preferences. Adverse
changes in such economic factors could have a negative effect on
the Company's business. For example, the recent slowdown in the
growth of the athletic footwear and branded apparel markets has
had negative effects on the Company's business. In addition, as
a result of current market conditions, a number of the Company's
competitors have excess inventory which they are attempting to
sell off. This over-inventoried, promotional environment has
made it more difficult for the Company to sell its products and
has negatively impacted the Company's gross margins.
The current financial crisis in the Far East has also had a
negative impact on the Company's business. The economic problems
in Asia have had an adverse effect on the Company's sales to that
region. In addition, most of the Company's products are
manufactured in the Far East by third party manufacturers. The
current economic conditions have made it more difficult for such
manufacturers to gain access to working capital and there is a
risk that such manufacturers could encounter financial problems
which could affect their ability to produce products for the
Company. Similar problems have also resulted from the financial
difficulties in Latin America.
TAX RATE CHANGES
If the Company was to encounter significant tax rate changes
in the major markets in which it operates, it could have an
adverse effect on its business or profitability.
GLOBAL RESTRUCTURING ACTIVITIES
The Company is currently undertaking various global
restructuring activities designed to enable the Company to
achieve operating efficiencies, improve logistics and reduce
expenses. There can be no assurance that the Company will be
able to effectively execute on its restructuring plans or that
such benefits will be achieved. In addition, in the short-term
the Company could experience difficulties in product delivery or
other logistical operations as a result of its restructuring
activities, which could have an adverse effect on the Company's
business. In the short-term, the Company could also be subject
to increased expenditures and charges from such restructuring
activities. The Company is also in the process of eliminating or
restructuring certain of its underperforming marketing contracts.
There can be no assurance that the Company will be able to
successfully restructure such agreements or achieve the cost
savings anticipated.
YEAR 2000
The Company has conducted a global review of its computer
systems to identify the systems that could be affected by the
technical problems associated with the year 2000 and has
developed an implementation plan to address the "year 2000"
issue. As part of its global restructuring, in 1997 the Company
began its global implementation of SAP software, which will
replace substantially all legacy systems. The Company presently
believes that, with modifications to existing software and
converting to SAP software, the year 2000 will not pose
significant operational problems for the Company's computer
systems. The Company expects its SAP programs to be
substantially implemented by 1999 and the implementation is
currently on schedule. However, if the modifications and
conversions are not implemented or completed in a timely or
effective manner, the year 2000 problem could have a material
impact on the operations of the Company. In addition, in
converting to SAP software, the Company is relying on its
software partner to develop new software applications and there
could be problems in successfully developing such new
applications. Finally, the Company is dependent on its
suppliers, joint venture partners and independent distributors to
implement appropriate changes to their computer systems to
address the "year 2000" issue. The failure of such third parties
to effectively address such issue could have an adverse effect on
the Company's business.
QUARTERLY REPORTS
The financial results reflected in the Company's quarterly
report on Form 10-Q are not necessarily indicative of the
financial results which may be achieved in future quarters or for
year-end, which results may vary.
