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PARTICIPATION AGREEMENT
Among
FAIR, ISAAC AND COMPANY, INC.
And
LEASE PLAN NORTH AMERICA, INC.
And
THE PARTICIPANTS NAMED HEREIN
And
ABN AMRO BANK N.V.,
as Agent for the Participants
May 15, 1998
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TABLE OF CONTENTS
Page
SECTION 1. INTERPRETATION.............................................2
1.01. Definitions................................................2
1.02. Rules of Construction......................................2
SECTION 2. LEASE FACILITY.............................................2
2.01. Acquisition, Lease, Amount Limitations, Etc. ..............2
2.02. Participation Agreement....................................4
2.03. Advance Requests...........................................5
2.04. Fees.......................................................7
2.05. Funding of Advances........................................7
2.06. Sharing of Payments........................................8
2.07. Other Payment Terms.......................................11
2.08. Commitment Reductions.....................................12
2.09. Extensions................................................13
2.10. Nature of the Transactions................................14
2.11. Security..................................................15
2.12. Change of Circumstances...................................18
2.13. Taxes on Payments.........................................20
2.14. Funding Loss Indemnification..............................21
2.15. Replacement of Participants...............................22
SECTION 3. CONDITIONS PRECEDENT......................................22
3.01. Initial Acquisition Advance...............................22
3.02. Tract 2 Acquisition Advance...............................22
3.03. Improvement/Expense Advances..............................23
3.04. Other Conditions Precedent................................23
3.05. Covenant to Deliver.......................................23
SECTION 4. REPRESENTATIONS AND WARRANTIES............................23
4.01. Lessee's Representations and Warranties...................23
4.02. Lessor's Representations and Warranties...................29
4.03. Participants' Representations and Warranties..............30
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TABLE OF CONTENTS
(continued)
Page
SECTION 5. COVENANTS.................................................31
5.01. Lessee's Affirmative Covenants............................31
5.02. Lessee's Negative Covenants...............................34
5.03. Lessee's Financial Covenants..............................41
5.04. Lessor's Covenants........................................42
5.05. Participants' Covenants...................................43
SECTION 6. LESSOR, AGENT AND THEIR RELATIONS WITH PARTICIPANTS.......43
6.01. Appointment of Agent......................................43
6.02. Powers and Immunities.....................................43
6.03. Reliance..................................................44
6.04. Defaults..................................................44
6.05. Indemnification...........................................44
6.06. Non-Reliance..............................................44
6.07. Resignation or Removal of Agent...........................45
6.08. Authorization.............................................45
6.09. Lessor and Agent in their Individual Capacities...........45
SECTION 7. MISCELLANEOUS.............................................46
7.01. Notices...................................................46
7.02. Expenses..................................................48
7.03. Indemnification...........................................48
7.04. Waivers; Amendments.......................................49
7.05. Successors and Assigns....................................49
7.06. Setoff....................................................53
7.07. No Third Party Rights.....................................53
7.08. Partial Invalidity........................................53
7.09. JURY TRIAL................................................53
7.10. Counterparts..............................................54
7.11. No Joint Venture, Etc. ...................................54
7.12. Usury Savings Clause......................................54
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TABLE OF CONTENTS
(continued)
Page
7.13. Confidentiality...........................................54
7.14. Governing Law.............................................54
7.15. Consent to Jurisdiction...................................55
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TABLE OF CONTENTS
(continued)
Page
SCHEDULES
I Participants
II Pricing Grid
1.01 Definitions
1.02 Rules of Construction
3.01 Conditions Precedent to Initial Acquisition Advances
3.02 Conditions Precedent to Tract 2 Acquisition Advances
4.01(f) Environmental Reports
4.01(q) Subsidiaries
4.01(u) Property Representations
4.01(x) Budget
5.02(a) Existing Indebtedness
5.02(b) Existing Liens
5.02(d) Investment Policy
EXHIBITS
A Land
B Lease Agreement
C Purchase Agreement
D Construction Agency Agreement
E Acquisition Request
F Improvement/Expense Advance Request
G(1) 364-Day Commitment Extension Request
G(2) Lease Extension Request
H Assignment of Construction Agreements
I Cash Collateral Agreement
J Assignment of Lease
K Lessor Deed of Trust
L Lessor Security Agreement
M Assignment Agreement
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PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (this "Agreement" herein), dated as of May
15, 1998, is entered into by and among:
(1) FAIR, ISAAC AND COMPANY, INC., a Delaware corporation
("Lessee");
(2) LEASE PLAN NORTH AMERICA, INC., an Illinois corporation
("Lessor");
(3) Each of the financial institutions from time to time
listed in Schedule I hereto, as amended from time to time (such financial
institutions to be referred to collectively as the "Participants"); and
(4) ABN AMRO BANK N.V., acting through its San Francisco
International Branch, as agent for the Participants (in such capacity, "Agent").
RECITALS
A. Lessee has requested Lessor and the Participants to provide to
Lessee a lease facility pursuant to which:
(1) Lessor would (a) purchase the land described in Part 1 of
Exhibit A (as more fully defined in Schedule 1.01, the "Tract 1 Land"),
(b) purchase the land described in Part 2 of Exhibit A (as more fully
defined in Schedule 1.01, the "Tract 2 Land" and collectively with the
Tract 1 Land, or individually, as the case may be, the "Land"), (c)
lease to Lessee the Land, (c) appoint Lessee as Lessor's agent to make
certain improvements on the Land (which improvements will be owned by
Lessor), (d) make advances to finance such improvements and to pay
certain related expenses and (e) grant to Lessee the right to purchase
the Land and such improvements; and
(2) The Participants would participate in such lease facility
by (a) funding the purchase price and other advances to be made by
Lessor and (b) acquiring participation interests in the rental and
certain other payments to be made by Lessee.
B. Lessor and the Participants are willing to provide such lease
facility upon the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
EXHIBIT 10.38
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01, when used in
this Agreement or any other Operative Document, shall have the respective
meaning given to that term in Schedule 1.01 or in the provision of this
Agreement or other document, instrument or agreement referenced in Schedule
1.01.
1.02. Rules of Construction. Unless otherwise indicated in this
Agreement or any other Operative Document, the rules of construction set forth
in Schedule 1.02 shall apply to this Agreement and the other Operative
Documents.
SECTION 2. LEASE FACILITY.
2.01. Acquisition, Lease, Amount Limitations, Etc.
(a) Acquisition, Lease, Etc. Subject to the terms and
conditions of this Agreement (including the limitations set forth in
Subparagraph 2.01(b)):
(i) On a date specified by Lessee pursuant to
Subparagraph 2.03(a) for the acquisition of the Tract 1 Land
(the "Closing Date"):
(A) Lessor shall purchase (with funds provided by
the Participants) the Tract 1 Land, together with any
Appurtenant Rights thereto, all Improvements thereto and
other related property;
(B) Immediately upon the purchase by Lessor of such
property, Lessor and Lessee shall execute (i) a Lease
Agreement in the form of Exhibit B (the "Lease
Agreement"), pursuant to which Lessor will lease to
Lessee such property, (ii) a Purchase Agreement in the
form of Exhibit C (the "Purchase Agreement"), pursuant to
which Lessor grants to Lessee the right to purchase such
property and (iii) a Construction Agency Agreement in the
form of Exhibit D (the "Construction Agency Agreement"),
pursuant to which Lessee agrees to construct certain
improvements to such property;
(ii) On a date specified by Lessee pursuant to
Subparagraph 2.03(a) for the acquisition of the Tract 2 Land
(the "Tract 2 Acquisition Date"):
(A) Lessor shall purchase (with funds
provided by the Participants) the Tract 2 Land,
together with any Appurtenant Rights thereto, all
Improvements thereto and other related property; and
(B) Immediately upon the purchase and
acquisition by Lessor of such property, Lessor and
Lessee shall execute amendments to the Lease
Agreement, the Purchase Agreement and the
Construction Agency
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Agreement to the extent necessary to add such property to
the property covered thereby; and
(iii) During the period (the "Commitment Period")
beginning on the date of this Agreement and ending on the date
which is 30 months after the date hereof (the "Outside
Completion Date") or, if earlier, the first Business Day of
the first full calendar month immediately succeeding the
earlier of (A) the Completion Date and (B) the date on which
the Unused Total Commitment is $0 (the earlier of the Outside
Completion Date and such first Business Day to be referred to
as the "Commitment Termination Date"), Lessor shall, at the
request of Lessee, make additional advances to Lessee (with
funds provided by the Participants) to pay Permitted
Improvement Costs and Permitted Transaction Expenses
("Improvement/Expense Advances").
(b) Amount Limitations. The advances made by Lessor to
purchase the Land (the "Acquisition Advances") and the
Improvement/Expense Advances made by Lessor (the Acquisition Advances
and the Improvement/Expense Advances to be referred to collectively as
the "Advances") shall be subject to the following limitations:
(i) Until Lessee delivers to Lessor the Plans and
Specifications for all New Improvements to be constructed on
the Property pursuant to Subparagraph 5.01(h) and a revised
Expiration Date Appraisal for each Tract of Property (if
required by Subparagraph 5.01(h)), the aggregate amount of all
portions of all Advances made by Lessor which are allocated to
any Line Item in the Budget, as set forth in the Schedule to
the Acquisition Request or the Improvement/Expense Advance
Request for such Advance pursuant to clause (v) of
Subparagraph 2.03(a) or clause (i)(D) of Subparagraph 2.03(b),
as applicable, shall not exceed shall not exceed 110% of such
Line Item of the Budget:
(ii) Until Lessee delivers to Lessor the Plans and
Specifications for all New Improvements to be constructed on
the Property pursuant to Subparagraph 5.01(h) and a revised
Expiration Date Appraisal for each Tract of Property (if
required by Subparagraph 5.01(h)), the aggregate amount of all
Advances made by Lessor shall not exceed the lesser of (A)
aggregate amount of the Budget or (B) the Expiration Date
Appraisal as delivered on the Closing Date;
(iii) After Lessee delivers to Lessor the Plans and
Specifications for all New Improvements to be constructed on
the Property pursuant to Subparagraph 5.01(h) and a revised
Expiration Date Appraisal for each Tract of Property (if
required by Subparagraph 5.01(h)), the aggregate amount of all
Advances made by Lessor for such Tract of Property (including
the Acquisition Advance and all Improvement/Expense Advances
for such Tract of Property) shall not exceed the Expiration
Date Appraisal for such Tract of Property;
(iv) The aggregate amount of all Advances made during
the period commencing on the date of this Agreement and ending
on the date 364 days
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thereafter (the "364-Day Commitment Termination Date") shall
not exceed Sixteen Million Dollars ($16,000,000) (the "364-Day
Commitment"); and;
(v) The aggregate amount of all Advances made during
the period commencing on the date of this Agreement and ending
on the Commitment Termination Date (such period to be referred
to as the "Commitment Period") shall not exceed Fifty-Five
Million Dollars ($55,000,000) (the "Total Commitment").
Of the Total Commitment, Thirty-Nine Million Dollars
($39,000,000) (the "Thirty Month Commitment") is available at
any time during the entire Commitment Period. Unless otherwise
directed by Lessee, all Advances made by Lessor on or prior to
the 364-Day Commitment Termination Date shall be allocated
first to the 364-Day Commitment and, after the 364-Day
Commitment is reduced to zero, to the Thirty-Month Commitment.
All Advances made by Lessor after the 364-Day Commitment
Termination Date shall be allocated to the Thirty-Month
Commitment, whether or not the 364-Day Commitment has been
reduced to zero.
(c) Tranches. Each Advance shall consist of a Tranche A
Portion, a Tranche B Portion and a Tranche C Portion. For accounting
purposes, the Tranche A Portion and Tranche B Portion of each Advance
shall constitute debt and the Tranche C Portion shall constitute
equity.
2.02. Participation Agreement.
(a) Advances. Each Participant severally, unconditionally and
irrevocably agrees with Lessor to participate in each Advance made by
Lessor in an amount equal to such Participant's Proportionate Share of
such Advance; provided, however, that the aggregate amount of each
Participant's Proportionate Share of all Advances shall not exceed such
Participant's Commitment. Each Participant shall fund its Proportionate
Share of each Advance as provided in Subparagraph 2.05(a). Each
Participant's Proportionate Share of each Advance shall consist of such
Participant's Tranche A Portion, Tranche B Portion and Tranche C
Portion of such Advance.
(b) Payments. In consideration of each Participant's
participation in each Advance made by Lessor, such Participant shall
participate in the payments made by Lessee under this Agreement and the
other Operative Documents as provided in Paragraph 2.06.
(c) Other Rights of Participants and Agent.
(i) Until all amounts payable to Agent and
Participants under this Agreement and the other Operative
Documents are paid in full, Lessee shall deliver all notices
for Lessor under this Agreement and the other Operative
Documents to Agent at the office or facsimile number and
during the hours specified in Paragraph 7.01. Agent shall
promptly furnish to Lessor and each Participant copies of each
such notice and, in the case of each request for an
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Advance, shall notify each Participant of the amount of such
Participant's Proportionate Share of the Advance requested
thereby.
(ii) Lessor is not an agent for Participants or Agent
and may exercise or refrain from exercising its rights under
this Agreement and the other Operative Documents in its
discretion; provided, however that, until all amounts payable
to Agent and Participants under this Agreement and the other
Operative Documents are paid in full, (A) Lessor shall,
subject to the limitations set forth in Section VI, be
required to act or to refrain from acting upon instructions of
the Required Participants as provided in Paragraph 6.03 and
(B) Agent may exercise any or all of the rights and remedies
of Lessor, and shall be entitled to the other benefits
afforded Lessor, under this Agreement and the other Operative
Documents.
(iii) Neither Agent nor any Participant shall have
any right, title or interest in the Property except for the
Lien therein granted to Agent, for the benefit of the
Participants, in the Lessor Deed of Trust, the Assignment of
Lease and the Lessor Security Agreement.
2.03. Advance Requests.
(a) Acquisition Request. Lessee shall request Lessor to
purchase the Land by delivering to Agent an irrevocable written request
in the form of Exhibit E, appropriately completed (the "Acquisition
Request"), which specifies, among other things:
(i) The Tract of Land to be purchased;
(ii) The amount of such requested Acquisition
Advance, including the amount of the Acquisition Price and the
Permitted Transaction Expenses (which may include expenses
previously paid by Lessee) included in such Acquisition
Advance;
(iii) The date selected by Lessor as the Acquisition
Date for such purchase, which shall be, (A) in the case of the
Acquisition Advance to purchase the Tract 1 Land (the "Initial
Acquisition Advance"), on a Business Day on or prior to May
31, 1998 and (B) in the case of the Acquisition Advance to
purchase the Tract 2 Land (the "Tract 2 Acquisition Advance"),
on a date that is a Business Day on or prior to July 1, 1999;
(iv) The Portions into which such Advance(s) is (are)
to be divided and the Rental Period for each Portion; and
(v) If Lessee has not yet delivered the Plans and
Specifications as required by Subparagraph 5.01(h) and any
revised Expiration Date Appraisal required by Subparagraph
5.01(h), a Schedule to such Acquisition Request setting forth
by reference to Line Items in the Budget the purpose for which
each portion of such Advance will be utilized and a
reconciliation by Line Items in the Budget of all Advances
made prior to the date of such Advance.
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(b) Improvement/Expense Advance Requests. Lessee shall request
Lessor to make each Improvement/Expense Advance by delivering to
Lessor:
(i) An irrevocable written request in the form of
Exhibit F, appropriately completed (an "Improvement/Expense
Advance Request"), which specifies, among other things:
(A) The amount of such Advance, which shall
be in the amount of $500,000 or an integral multiple
of $100,000 in excess thereof;
(B) The date of such Advance, which shall be
the Closing Date or the first Business Day of a
month;
(C) The Permitted Improvement Costs and
Permitted Transaction Expenses to be paid by such
Advance and the Tract(s) of Land for which payable;
and
(D) If Lessee has not yet delivered the
Plans and Specifications as required by Subparagraph
5.01(h) and any revised Expiration Date Appraisal
required by Subparagraph 5.01(h), a Schedule to such
Improvement/Expense Advance Request setting forth by
reference to Line Items in the Budget the purpose for
which each portion of such Advance will be utilized
and a reconciliation by Line Items in the Budget of
all Advances made prior to the date of such Advance.
(ii) If the proceeds of such Advance are to be used
to purchase Related Goods:
(A) A Supplement to Exhibit B to the Lease
Agreement in the form of Exhibit B(1) to the Lease
Agreement (an "Exhibit B Supplement"), which contains
a description of such Related Goods; and
(B) Bills of sale for all such Related Goods
showing Lessor as the purchaser.
Lessee shall not request more than one (1) Improvement/Expense Advance
in any calendar month.
(c) Delivery of Advance Requests. Etc. Lessee shall deliver to
Lessor the Acquisition Request for the Initial Acquisition Advance at
least three (3) Business Days before the Closing Date and the
Acquisition Request for the Tract 2 Acquisition Advance at least three
(3) Business Day before the Tract 2 Acquisition Date. Lessee shall
deliver each Improvement/Expense Advance Request to Lessor at least
three (3) Business Days before the date of such Advance. The
Acquisition Requests and Improvement/Expense Advance Requests
(collectively, "Advance Requests") shall be delivered by first-class
mail or facsimile as required by Subparagraph 2.02(c) and Paragraph
7.01; provided, however, that Lessee shall promptly deliver to Lessor
the original of any Advance Request initially delivered by facsimile.
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(d) Capitalization of Base Rent During Commitment Period. On
each Scheduled Rent Payment Date occurring under the Lease Agreement
during the Commitment Period, the Base Rent due on such Scheduled Rent
Payment Date shall be capitalized by automatically treating the amount
of such Base Rent as an Improvement/Expense Advance made on such
Scheduled Rent Payment Date. Agent shall notify Lessee, Lessor and each
Participant of the amount of the Base Rent due on each such Scheduled
Rent Payment Date and so treated as an Improvement/Expense Advance.
2.04. Fees.
(a) Agent's Fees. Lessee shall pay to Agent, for its own
account, agent's fees in the amounts and at the times set forth in the
Agent's Fee Letter (the "Agent's Fees").
(b) Commitment Fees. Lessee shall pay to Agent, for the
ratable benefit of the Participants as provided in clause (ii) of
Subparagraph 2.06(c), commitment fees (the "Commitment Fees") as
follows:
(i) Lessee shall pay Commitment Fees of twenty one
hundredths of one percent (0.20%) per annum on the daily
average Unused 364-Day Commitment for the 364-Day Commitment
Period.
(ii) Lessee shall pay Commitment Fees of thirty
hundredths of one percent (0.30%) per annum on the daily
average Unused Thirty-Month Commitment for the entire
Commitment Period.
Lessee shall pay the Commitment Fees in arrears on the first Business
Day in each January, April, July and October (commencing July, 1998)
and on the Commitment Termination Date (or if the Total Commitment is
cancelled on a date prior to such day, on such prior date).
(c) 364-Day Commitment Extension Fee. If Lessor and the
Participants consent to any extension of the 364-Day Commitment
Termination Date requested by Lessee pursuant to Subparagraph 2.09(a),
Lessee shall pay to Agent, for the ratable benefit of Lessor and the
Participants as provided in clause (iii) of Subparagraph 2.06(c), an
extension fee (the "364-Day Commitment Extension Fee") equal to one
tenth of one percent (0.10%) of the Unused 364-Day Commitment on the
original 364-Day Commitment Termination Date. Lessee shall pay the
364-Day Commitment Extension Fee on or prior to the original 364-Day
Commitment Termination Date.
2.05. Funding of Advances.
(a) Participant Funding and Disbursement. Each Participant
shall, before 11:00 a.m. on the date of each Advance, make available to
Agent at its office specified in Paragraph 7.01, in same day or
immediately available funds, such Participant's Proportionate Share of
such Advance. After Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Section 3, Agent will
promptly disburse such funds on behalf of Lessor, in same day or
immediately available funds, as
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directed by Lessee in the Advance Request for such Advance. Each
Acquisition Advance shall be disbursed to an escrow or other account
established for payment of the Acquisition Price and any related
Permitted Transaction Expenses pursuant to the Acquisition Agreement or
otherwise as directed by Lessee in the Acquisition Advance Request.
Each Improvement/Expense Advance shall be disbursed as directed by
Lessee in the Advance Request for such Improvement/Expense Advance.
(b) Participant Failure to Fund. Unless Agent shall have
received notice from a Participant prior to the date of any Advance
that such Participant will not make available to Agent such
Participant's Proportionate Share of such Advance, Agent may assume
that such Participant has made such portion available to Agent on the
date of such Advance in accordance with Subparagraph 2.05(a), and Agent
may, in reliance upon such assumption, disburse the full amount of such
Advance on such date; provided, however, that neither Agent nor Lessor
shall have any obligation to make an Advance requested hereunder in an
amount which exceeds the aggregate amount of funds actually received by
Agent from the Participants on account of their respective
Proportionate Shares of such Advance. If any Participant does not make
the amount of its Proportionate Share of any Advance available to Agent
on or prior to the date such Advance is made, Agent promptly shall
notify such Participant of such failure and such Participant shall pay
to Agent, on demand, interest which shall accrue on such amount until
made available to Agent at rates equal to (i) the daily Federal Funds
Rate during the period from the date of such Advance through the third
Business Day thereafter and (ii) the Base Rate plus two percent (2.0%)
thereafter. A certificate of Agent submitted to any Participant with
respect to any amounts owing under this Subparagraph 2.05(b) shall be
conclusive absent manifest error. If any Participant's Proportionate
Share of any Advance is not in fact made available to Agent by such
Participant within three (3) Business Days after the date of such
Advance, Lessee shall pay to Agent, on demand, an amount equal to such
Proportionate Share together with interest thereon, for each day from
the date such amount was made available to Lessee until the date such
amount is repaid to Agent, at a per annum rate equal to the Base Rate.
(c) Participants' Obligations Several. The failure of any
Participant to fund its Proportionate Share of any Advance shall not
relieve any other Participant of its obligation hereunder to fund its
Proportionate Share of such Advance, and no Participant shall be
responsible for the failure of any other Participant to fund its
Proportionate Share of any Advance on the date of such Advance.
2.06. Sharing of Payments.
(a) Outstanding Lease Amount or any Portion thereof. Lessor
shall share payments applied to reduce the Outstanding Lease Amount or
any Portion thereof as follows:
(i) Each payment of the Outstanding Lease Amount or
any Portion thereof derived from the purchase price paid by
Lessee (or an Assignee Purchaser) to purchase the Property
pursuant to the Purchase Agreement shall be
8
shared by the Participants pro rata according to their
respective Outstanding Participation Amounts at the time of
such payment.
(ii) Each payment of the Outstanding Lease Amount or
any Portion thereof derived from the Residual Value Guaranty
Amount paid by Lessee pursuant to the Purchase Agreement shall
be shared first by the Tranche A Participants pro rata
according to their respective Outstanding Tranche A
Participation Amounts at the time of such payment; second, if
any amounts remain after all Outstanding Tranche A
Participation Amounts are paid in full, by the Tranche B
Participants pro rata according to their respective
Outstanding Tranche B Participation Amounts at the time of
such payment; and third, if any amounts remain after all
Outstanding Tranche A Participation Amounts and all
Outstanding Tranche B Participation Amounts are paid in full,
by the Tranche C Participants pro rata according to their
respective Outstanding Tranche C Participation Amounts at the
time of such payment.
(iii) Each payment of the Outstanding Lease Amount or
any Portion thereof derived from:
(A) the purchase price paid by a Designated
Purchaser to purchase the Property pursuant to the
Purchase Agreement;
(B) the Indemnity Amount paid by Lessee
pursuant to the Purchase Agreement; or
(C) Casualty Proceeds or Condemnation
Proceeds related to any of the Property;
Shall be shared first by the Tranche B Participants pro rata
according to their respective Outstanding Tranche B
Participation Amounts at the time of such payment; second, if
any amounts remain after all Outstanding Tranche B
Participation Amounts are paid in full, by the Tranche A
Participants pro rata according to their respective
Outstanding Tranche A Participation Amounts at the time of
such payment; and third, if any amounts remain after all
Outstanding Tranche B Participation Amounts and all
Outstanding Tranche A Participation Amounts are paid in full,
by the Tranche C Participants pro rata according to their
respective Outstanding Tranche C Participation Amounts at the
time of such payment.
(iv) Each payment of the Outstanding Lease Amount or
any Portion thereof derived from the purchase price paid by
any other Person to purchase the Property (whether after the
retention of such Property by Lessor following the Expiration
Date of the Lease Agreement, upon foreclosure or otherwise)
shall be shared first by the Tranche B Participants pro rata
according to their respective Outstanding Tranche B
Participation Amounts at the time of such payment; second, if
any amounts remain after all Outstanding Tranche B
Participation Amounts are paid in full, by the Tranche A
Participants pro rata according to their
9
respective Outstanding Tranche A Participation Amounts at the
time of such payment; and third, if any amounts remain after
all Outstanding Tranche B Participation Amounts and all
Outstanding Tranche A Participation Amounts are paid in full,
by the Tranche C Participants pro rata according to their
respective Outstanding Tranche C Participation Amounts at the
time of such payment.
(v) Each payment of the Outstanding Lease Amount or any
Portion thereof derived from Cash Collateral shall be shared
(i) by the Tranche A Participants alone pro rata according to
their respective Outstanding Tranche A Participation Amounts
at the time of such payment, if such payment is made after the
purchase of the Property by a Designated Purchaser pursuant to
the Marketing Option in the Purchase Agreement or (ii) by all
Participants pro rata according to their respective
Outstanding Participation Amounts at the time of such payment
if such payment is made in any other circumstance.
(b) Base Rent. Each payment applied to Base Rent shall be
shared by the Participants which funded the Outstanding Lease Amount or
any Portion thereof pro rata according to (i) the respective
Outstanding Participation Amounts so funded by such Participants, (ii)
the dates on which such Participants so funded such amounts and (iii)
for Base Rent accruing at a Fixed Rental Rate, the respective Fixed
Rate Quotes of such Participants. (If any Participant fails to provide
a Fixed Rate Quote for determining any Fixed Rate for any Rental
Period, such Participant shall, for the purposes of this Subparagraph
2.06(b), be deemed to have provided a Fixed Rate Quote equal to such
Fixed Rate.)
(c) Supplemental Rent. Lessor shall share each payment applied
to Supplemental Rent among the Lessor Parties as follows:
(i) Each payment applied to Agent's Fees shall be
solely for the account of Agent.
(ii) Each payment applied to Commitment Fees shall be
shared by the Participants pro rata according to (A) their
respective Proportionate Shares and (B) in the case of each
Participant which becomes a Participant hereunder after the
date hereof, the date upon which such Participant so became a
Participant.
(iii) Each payment applied to the 364-Day Commitment
Extension Fee shall be shared by the Participants pro rata
according to their respective Proportionate Shares on the date
of such payment.
(iv) Each payment applied to reimburse any Lessor
Party for any fees, costs and expenses incurred by such Lessor
Party shall be solely for the account of such Lessor Party.
(v) Each payment of interest (other than Base Rent)
shall be shared among the Lessor Parties owed the amount upon
which such interest accrues pro rata according to (A) the
respective amounts so owed such Lessor Parties and (B) the
dates on which such amounts became owing to such Lessor
Parties.
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(vi) All other payments under this Agreement and the
other Operative Documents shall be for the benefit of the
Person or Persons specified.
(d) Disproportionate Payments, Etc. If any Participant shall
obtain any payment (whether voluntary, involuntary, through the
exercise of any right of setoff, or otherwise) on account of amounts
owed to it in excess of its ratable share of payments on account of
such amounts obtained by all Participants entitled to such payments,
such Participant shall forthwith purchase from the other Participants
such participations in the payments to be made under the Operative
Documents as shall be necessary to cause such purchasing Participant to
share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter
recovered from such purchasing Participant, such purchase shall be
rescinded and each other Participant shall repay to the purchasing
Participant the purchase price to the extent of such recovery together
with an amount equal to such other Participant's ratable share
(according to the proportion of (i) the amount of such other
Participant's required repayment to (ii) the total amount so recovered
from the purchasing Participant) of any interest or other amount paid
or payable by the purchasing Participant in respect of the total amount
so recovered. Lessee agrees that any Participant so purchasing a
participation from another Participant pursuant to this Subparagraph
2.06(d) may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff) with respect to such
participation as fully as if such Participant were the direct creditor
of Lessee in the amount of such participation.
2.07. Other Payment Terms.
(a) Place and Manner of Payments by Lessee. Lessee shall make
all payments due to any Lessor Party under this Agreement and the other
Operative Documents by payments to Agent, for the account of such
Person, at Agent's office, located at the address specified in
Paragraph 7.01, with each payment due to a Participant to be for the
account of such Participant's Applicable Participating Office. Lessee
shall make all payments in lawful money of the United States and in
same day or immediately available funds not later than 11:00 a.m. New
York time on the date due. Agent shall promptly disburse to the
appropriate Person each such payment received by Agent for such Person.
(b) Date. Whenever any payment due under this Agreement or any
other Operative Document shall fall due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall be included in the computation of
Rent, interest or fees, as the case may be. Whenever this Agreement or
any other Operative Document requires a payment to be made by Lessee
but fails to specify a time for such payment to be made, such payment
shall be due and payable ten (10) days after demand for such payment is
made upon Lessee by the applicable party.
(c) Late Payments. If any amounts required to be paid by
Lessee under this Agreement or any other Operative Document (including
Rent, interest, fees or other amounts) remain unpaid after such amounts
are due, Lessee shall pay interest on the
11
aggregate, outstanding balance of such amounts from the date due until
those amounts are paid in full at a per annum rate equal to the Base
Rate plus two percent (2.0%), such rate to change from time to time as
the Base Rate shall change.
(d) Application of Payments. All payments under this Agreement
and the other Operative Documents shall be applied first to unpaid
fees, costs and expenses then due and payable under this Agreement or
any other Operative Document, second to the accrued Base Rent then due
and payable under this Agreement or any other Operative Document and
finally to reduce the Outstanding Lease Amount or any Portion thereof.
(e) Failure to Pay Agent. Unless Agent shall have received
notice from Lessee at least one (1) Business Day prior to the date on
which any payment is due to Lessor or the Participants under this
Agreement or the other Operative Documents that Lessee will not make
such payment in full, Agent may assume that Lessee has made such
payment in full to Agent on such date and Agent may, in reliance upon
such assumption, cause to be distributed to the appropriate Persons on
such due date an amount equal to the amount then due such Persons. If
and to the extent Lessee shall not have so made such payment in full to
Agent, each such Person shall repay to Agent forthwith on demand such
amount distributed to such Person together with interest thereon, for
each day from the date such amount is distributed to such Person until
the date such Person repays such amount to Agent, at (i) the Federal
Funds Rate for the first three (3) days and (ii) the Base Rate plus two
percent (2.0%) thereafter, such rate to change from time to time as the
Base Rate shall change. A certificate of Agent submitted to any Person
with respect to any amounts owing by such Person under this
Subparagraph 2.07(e) shall be conclusive absent manifest error.
2.08. Commitment Reductions.
(a) Reduction or Cancellation of Commitments. Lessee may, at
any time prior to the 364-Day Commitment Termination Date in the case
of the 364-Day Commitment or the Commitment Termination Date in the
case of the Thirty-Month Commitment, upon five (5) Business Days
written notice to Lessor, permanently reduce the 364-Day Commitment or
the Thirty-Month Commitment by the amount of One Million Dollars
($1,000,000) or an integral multiple of One Hundred Thousand Dollars
($100,000) in excess thereof or cancel the 364-Day Commitment or the
Thirty-Month Commitment in its entirety. Any reduction of the 364-Day
Commitment or the Thirty-Month Commitment shall result in a
corresponding reduction of the Total Commitment.
(b) Effect of Commitment Reductions. From the effective date
of any reduction of the 364-Day Commitment or the Thirty-Month
Commitment, the Commitment Fees shall be computed on the basis of the
364-Day Commitment or the Thirty-Month Commitment as so reduced. Once
reduced or cancelled, the 364-Day Commitment, the Thirty-Month
Commitment and the Total Commitment may not be increased or reinstated
without the prior written consent of Lessor and all Participants. Any
reduction of the 364-Day Commitment, the Thirty-Month Commitment or the
Total Commitment pursuant to this Paragraph 2.08 shall be applied
ratably to reduce each Participant's Commitment pro rata in accordance
with its Proportionate Share.
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2.09. Extensions.
(a) 364-Day Commitment Extension. Lessee may request Lessor to
extend the 364-Day Commitment Termination Date for an additional period
of six (6) months by appropriately completing, executing and delivering
to Agent a written request in the form of Exhibit G(1) (a "364-Day
Commitment Extension Request"). Lessee shall deliver the 364-Day
Commitment Extension Request to Agent not more than six (6) months and
not less than two (2) months before the original 364-Day Commitment
Termination Date. Agent shall promptly deliver to Lessor and each
Participant three (3) copies of each 364-Day Commitment Extension
Request received by Agent. If Lessor or a Participant, in its sole and
absolute discretion, consents to the 364-Day Commitment Extension
Request, such Person shall evidence such consent by executing and
returning two (2) copies of the 364-Day Commitment Extension Request to
Agent not later than the ten (10) Business Days after receipt of the
364-Day Commitment Extension Request. Any failure by Lessor or any
Participant so to execute and return a 364-Day Commitment Extension
Request shall be deemed a denial thereof. If Lessee shall deliver a
364-Day Commitment Extension Request to Lessor pursuant to the first
sentence of this Subparagraph 2.09(a), then not later than fifteen (15)
Business Days after receipt of the 364-Day Commitment Extension
Request, Agent shall notify Lessee, Lessor and the Participants in
writing whether (i) Agent has received a copy of the 364-Day Commitment
Extension Request executed by Lessor and each Participant, in which
case the definition of "364-Day Commitment Termination Date" set forth
in Subparagraph 2.01(a) shall be deemed extended to the date which is
six (6) months after the original 364-Day Commitment Termination Date
(subject to receipt by Agent of the 364-Day Commitment Extension Fee),
or (ii) Agent has not received a copy of the 364-Day Commitment
Extension Request executed by Lessor and each Participant, in which
case such 364-Day Commitment Extension Request shall be deemed denied.
Lessee acknowledges that neither Lessor nor any Participant has
promised (either expressly or implicitly), or has any obligation or
commitment, to extend or consent to the extension of the 364-Day
Commitment Termination Date at any time.
(b) Lease Extension. Lessee may, on the terms and conditions
provided herein, request Lessor to extend the Scheduled Expiration Date
for (i) three consecutive and sequential one year periods (each of
which is referred to herein as a "One Year Extension"), or (ii) one
three year period (the "Three Year Extension"), provided that after
giving effect to any such extension, the remaining scheduled term of
the Lease shall not exceed five (5) years. A request by Lessee for the
Three Year Extension shall preclude any request for a One Year
Extension and any request for a One Year Extension shall preclude any
request for the Three Year Extension. Each One Year Extension or the
Three Year Extension shall be requested by Lessee by appropriately
completing, executing and delivering to Agent a written request in the
form of Exhibit G(2), together with an attachment thereto setting forth
the terms upon which Lessee would propose for the requested extension
(a "Lease Extension Request"). Lessee shall deliver each Lease
Extension Request to Agent not less than six (6) months before the then
current Scheduled Expiration Date. Agent shall promptly deliver to
Lessor and each Participant three (3) copies of each Lease Extension
Request received by Agent. If Lessor or a Participant, in its sole and
absolute discretion, consents to a Lease Extension Request,
13
such Person shall evidence such consent by executing and returning two
(2) copies of such Lease Extension Request to Agent not later than the
earlier of (i) the last Business Day which is not less than five (5)
months prior to the then current Scheduled Expiration Date or (ii) two
(2) months after the date Agent receives the Lease Extension Request.
Any failure by Lessor or any Participant so to execute and return a
Lease Extension Request shall be deemed a denial thereof. Agent shall
promptly notify Lessee if any Participant has denied such extension
request, and Lessee may seek to obtain an Eligible Assignee to replace
such Participant pursuant to Paragraph 2.15. Lessee shall deliver a
Lease Extension Request to Lessor pursuant to the first sentence of
this Subparagraph 2.09(b), then not later than the last Business Day
which is not less than four (4) months prior to the then current
Scheduled Expiration Date, Agent shall notify Lessee, Lessor and the
Participants in writing whether (i) Agent has received a copy of the
Lease Extension Request executed by Lessor and each Participant
(including any Replacement Participant), in which case the definition
of "Scheduled Expiration Date" set forth in Subparagraph 2.02(a) of the
Lease Agreement shall be deemed extended to the date which is one (1)
year after the then current Scheduled Expiration Date in the case of a
One Year Extension, or three (3) years after the then current Scheduled
Expiration Date in the case of the Three Year Extension (subject to the
receipt by Agent of any amounts payable by Lessee in connection with
such extension), or (ii) Agent has not received a copy of the Lease
Extension Request executed by Lessor and each Participant, in which
case such Lease Extension Request shall be deemed denied. Lessee
acknowledges that neither Lessor nor any Participant has promised
(either expressly or implicitly), or has any obligation or commitment,
to extend or consent to the extension of the Scheduled Expiration Date
at any time and that any such extension shall be subject to then
applicable market, interest and credit conditions.
2.10. Nature of the Transactions. Lessee and the Lessor Parties intend
that the transactions evidenced by this Agreement and the other Operative
Documents constitute operating leases pursuant to FASB 13 for accounting
purposes and loans secured by the Property for federal, state and local income
tax purposes and bankruptcy law purposes. To the extent that this Agreement and
the other Operative Documents reflect the lease form alone, they do so for
convenience only. Lessee and the Lessor Parties intend that the Operative
Documents have the dual form referred to in the first sentence of this
paragraph, notwithstanding the use of the lease form alone.
(a) Tax Treatment. For purposes of all income, franchise and
other taxes imposed upon or measured by income, Lessee and Lessor
Parties intend that the transactions evidenced by the Operative
Documents shall be treated as loans by the Participants (through
Lessor) to Lessee secured by the Property, with Lessee as owner of the
Property. Lessee and the Lessor Parties may only take deductions,
credits, allowances and other reporting positions on their respective
returns, reports and statements which are consistent with such
treatment, unless required to do otherwise by an appropriate taxing
authority or after a clearly applicable change in applicable
Governmental Rules; provided, however, that if an appropriate taxing
authority or a clearly applicable change in applicable Governmental
Rules requires any Lessor Party to take such an inconsistent position,
such Lessor Party shall promptly notify Lessee.
14
(b) Other Legal Treatment. For purposes of bankruptcy law,
Lessee and Lessor Parties also intend that the transactions evidenced
by the Operative Documents shall be treated as loans by the
Participants (through Lessor) to Lessee secured by the Property, with
Lessee as owner of the Property. Consistent with such treatment, Lessee
and the Lessor Parties intend that, among other things for such
purposes, (i) the Advances be treated as loans to Lessee by the
Participants (through Lessor); (ii) the Advances be secured by the
Property and the Lessor Parties have the rights and remedies of secured
lenders; (iii) Base Rent be treated as interest on the Advances; (iv)
Lessee be required to pay on the Expiration Date only the Residual
Value Guaranty Amount, the Indemnity Amount and the other amounts
required by Subparagraph 4.06(b) of the Purchase Agreement (or
Subparagraph 4.06(c) if Lessor is retaining the Property) if Lessee
exercises the Marketing Option in accordance with the Purchase
Agreement; and (v) Lessee be required to pay on the Expiration Date the
Outstanding Lease Amount or any Portion thereof and all other amounts
outstanding under this Agreement and the other Operative Documents
(including amounts required by Subparagraph 4.06(a) of the Purchase
Agreement) if the Lease Agreement is terminated prior to its Scheduled
Expiration Date after an Event of Default occurs under the Lease
Agreement or if Lessee fails to or is otherwise not entitled to
exercise the Marketing Option in accordance with the Purchase
Agreement.
(c) No Reliance by Lessee. Lessee acknowledges and agrees that
no Lessor Party has made any representations or warranties to Lessee
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.
(d) Modification of Operative Documents. Lessee and
the Lessor Parties shall amend or modify this Agreement and the other
Operative Documents to the extent necessary for the transaction
evidenced by this Agreement and the other Operative Documents to
qualify as an operating lease pursuant to FASB 13 for accounting
purposes if, and only if, such amendments and modifications do not
adversely affect either Lessee or any Lessor Party in its sole and
absolute discretion .
2.11. Security.
(a) Lessee Obligations.
(i) To the extent that the transaction evidenced by
the Lease Agreement, Purchase Agreement and other Operative
Documents is treated as a loan by the Participants (through
Lessor) to Lessee secured by the Property, with Lessee as
owner of the Property pursuant to Paragraph 2.10, the Lessee
Obligations shall be secured by the Real Property Collateral
and the Personal Property Collateral (collectively, the
"Property Collateral") as provided in Subparagraphs 2.07(a)
and 2.07(b) of the Lease Agreement and in an Assignment of
Construction Agreements in the form of Exhibit H, duly
executed by Lessee (the "Assignment of Construction
Agreements").
15
(ii) In addition to the Property Collateral, the
Lessee Obligations may be secured, at Lessee's election, by a
Cash Collateral Agreement in the form of Exhibit I, duly
executed by Lessee (the "Cash Collateral Agreement"), and Cash
Collateral delivered to Agent or Participants pursuant to the
Cash Collateral Agreement. If Lessee elects to deliver any
Cash Collateral pursuant to the Cash Collateral Agreement to
decrease the Applicable Margin for the LIBOR Rental Rate or
the Fixed Rental Rate, Lessee shall deliver to Agent, five (5)
Business Days' prior to the delivery of such Cash Collateral,
notice of such election and an opinion of its counsel in form
and substance reasonably satisfactory to Lessor regarding the
Cash Collateral Agreement and such Cash Collateral and shall
deliver such Cash Collateral only on a Scheduled Rent Payment
Date. Lessee shall have the option to pledge and withdraw Cash
Collateral on any Scheduled Rent Payment Date; provided,
however, that in order to withdraw Cash Collateral Lessee
shall certify that no Default or Event of Default has occurred
and is continuing and that all other conditions of the Cash
Collateral Agreement have been complied with. Cash Collateral
shall consist of eurodollar deposits or U.S. treasury
securities with a maturity of less than two (2) years. In the
event that U.S. treasury securities are pledged, Lessee shall
be entitled to a credit for purposes of determining any
decrease in the Applicable Margin, in the amount of ninety
five percent (95%) of the market value of the U.S. treasury
securities pledged on the day such pledge is made. Lessee
shall bear all breakage or other related costs associated with
the Cash Collateral or any withdrawal thereof.
In the event that Cash Collateral is withdrawn from the Cash
Collateral Agreement after having been deposited thereunder,
at the time of such withdrawal, Lessee shall pay to Lessor a
withdrawal fee equal to the Applicable Withdrawal Percentage,
as defined below, multiplied by the amount of the Cash
Collateral withdrawn multiplied by a fraction the denominator
of which shall be 360 and the numerator of which shall be the
number of days (but not more that 180 days) that such Cash
Collateral had been on deposit pursuant to the Cash Collateral
Agreement. "Applicable Withdrawal Percentage" means 0.5%, in
the case Level 1 pricing (as set forth in the Pricing Grid) is
in effect of the date of withdrawal, and 0.75%, in the case
Level 2 pricing (as set forth in the Pricing Grid) is in
effect of the date of withdrawal. In the event that Cash
Collateral is deposited under the Cash Collateral Agreement in
different tranches, for purposes of computing the fee provided
for in the previous sentence, sums withdrawn from the Cash
Collateral Agreement shall be deemed to have been withdrawn on
a first in first out basis.
Lessor, Agent and the Participants shall have a full right of
offset against the Cash Collateral at all times in the amount
of the Tranche A Participation Amount, the Tranche B
Participation Amount and the Tranche C Participation Amount;
provided that there shall be no right or offset against the
Cash Collateral for the Tranche B Participation Amount and the
Tranche C Participation Amount if the Lessee elects and
completes the Marketing Option.
16
(iii) Lessee shall deliver to Lessor and Agent such
additional mortgages, deeds of trust, security agreements,
pledge agreements, lessor consents and estoppels (containing
appropriate mortgagee and lender protection language) and
other instruments, agreements, certificates, opinions and
documents (including Uniform Commercial Code financing
statements and fixture filings and landlord waivers) as Lessor
or Agent may reasonably request to (A) grant, perfect,
maintain, protect and evidence security interests in favor of
Lessor or Agent in the Property Collateral and Cash Collateral
prior to the Liens or other interests of any Person, except in
the case of the Property Collateral for Permitted Property
Liens; and (B) otherwise establish, maintain, protect and
evidence the rights provided to Lessor and Agent in the
Property Collateral and Cash Collateral. Lessee shall fully
cooperate with Lessor and Agent and perform all additional
acts reasonably requested by Lessor or Agent to effect the
purposes of this Subparagraph 2.11(a).
(b) Lessor Obligations.
(i) The Lessor Obligations shall be secured by the
following:
(A) An Assignment of Lease Agreement and
Purchase Agreement in the form of Exhibit J, duly
executed by Lessor (the "Assignment of Lease");
(B) A Construction Deed of Trust with
Assignment of Rents, Security Agreement and Fixture
Filing in the form of Exhibit K, duly executed by
Lessor (the "Lessor Deed of Trust"); and
(C) A Security Agreement in the form of
Exhibit L, duly executed by Lessor (the "Lessor
Security Agreement").
(ii) Lessor shall deliver to Agent such additional
mortgages, deeds of trust, security agreements, pledge
agreements, lessor consents and estoppels (containing
appropriate mortgagee and lender protection language) and
other instruments, agreements, certificates, opinions and
documents (including Uniform Commercial Code financing
statements and fixture filings and landlord waivers) as Agent
may reasonably request to (A) grant, perfect, maintain,
protect and evidence security interests in favor of Agent in
Lessor's rights in the Property Collateral and Cash
Collateral; and (B) otherwise establish, maintain, protect and
evidence the rights provided to Agent in the Property
Collateral and Cash Collateral. Lessor shall fully cooperate
with Agent and perform all additional acts reasonably
requested by Agent to effect the purposes of this Subparagraph
2.11(b).
(iii) Lessee hereby consents to the Assignment of
Lease, the Lessor Deed of Trust and the Lessor Security
Agreement; the Liens granted to Agent therein; and all other
Liens granted to Agent in any of the Operative Documents and
the Property to secure the Lessor Obligations.
17
2.12. Change of Circumstances.
(a) Inability to Determine Rates. If, on or before the first
day of any Rental Period for any Portion, (i) any Participant shall
advise Agent that the LIBOR Rental Rate for such Rental Period and
Portion cannot be adequately and reasonably determined due to the
unavailability of funds in or other circumstances affecting the London
interbank market, (ii) any Participant shall advise Agent that the
LIBOR Rental Rate for such Rental Period and Portion does not
adequately and fairly reflect the cost to such Participant of funding
its share of such Portion or (iii) if Lessee has requested a Fixed
Rental Rate for such Rental Period and Portion, any Participant shall
advise Agent that such Participant is unable to provide a Fixed Rate
Quote due to the unavailability of funds in or other circumstances
affecting the domestic interbank market, Agent shall immediately give
notice of such condition to Lessee, Lessor and the other Participants.
After the giving of any such notice (and until Agent shall otherwise
notify Lessee and Lessor that the circumstances giving rise to such
condition no longer exist), the LIBOR Rental Rate or Fixed Rental Rate,
as the case may be, shall be unavailable and the Rental Rate for each
Rental Period shall be one of the other rental rates then available.
(b) Illegality. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule
or the application or requirements thereof (whether such change occurs
in accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority,
or compliance by Lessor or any Participant with any request or
directive (whether or not having the force of law) of any Governmental
Authority (a "Change of Law") shall make it unlawful or impossible for
any Participant to fund or maintain its portion of the Outstanding
Lease Amount or any Portion thereof at the LIBOR Rental Rate or a Fixed
Rental Rate, such Participant shall immediately notify Agent and Agent
shall immediately notify Lessee, Lessor and the other Participants of
such Change of Law. After the giving of any such notice (and until
Agent shall otherwise notify Lessee and Lessor that such Change of Law
is no longer in effect), the LIBOR Rental Rate or Fixed Rental Rate, as
the case may be, shall be unavailable and the Rental Rate for each
Rental Period shall be one of the other rental rates then available.
(c) Increased Costs. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject Lessor or any Participant to any
tax, duty or other charge with respect to the Outstanding
Lease Amount or any Portion thereof thereof shall change the
basis of taxation of Base Rent payments by Lessee to Lessor or
any Participant under this Agreement or any other Operative
Document (except for changes in the rate of taxation on the
overall net income of Lessor or any Participant imposed by its
jurisdiction of incorporation or any jurisdiction in which it
maintains an office); or
(ii) Shall impose, modify or hold applicable any
reserve (excluding any Reserve Requirement or other reserve to
the extent included in the calculation of the LIBOR Rental
Rate), special deposit or similar requirement against assets
18
held by, deposits or other liabilities in or for the account
of, advances or loans by, or any other acquisition of funds by
Lessor or any Participant for its portion of the Outstanding
Lease Amount or any Portion thereof; or
(iii) Shall impose on Lessor or any Participant any
other condition related to the Outstanding Lease Amount or any
Portion thereof, Base Rent or Lessor's or such Participant's
commitments hereunder;
And the effect of any of the foregoing is to increase the cost to
Lessor or such Participant of funding or maintaining its portion of the
Outstanding Lease Amount or any Portion thereof or commitments or to
reduce any amount receivable by Lessor or such Participant hereunder;
then Lessee shall from time to time within thirty (30) days after
demand by Lessor or such Participant, pay to Lessor or such Participant
additional amounts sufficient to reimburse Lessor or such Participant
for such increased costs or to compensate Lessor or such Participant
for such reduced amounts; provided, however, that Lessee shall have no
obligation to make any payment to any demanding party under this
Subparagraph 2.12(c) on account of any such increased costs or reduced
amounts relating to any Rental Period that ended more than six (6)
months prior to such demanding party's first demand for payment (or, if
any increased costs or reduced amounts do not relate to a particular
Rental Period, on account of any such increased costs or reduced
amounts realized by the demanding party more than six (6) months prior
to its first demand for payment). A certificate setting forth in
reasonable detail the amount of such increased costs or reduced
amounts, submitted by Lessor or such Participant to Lessee shall
constitute prima facie evidence of such costs or amounts. The
obligations of Lessee under this Subparagraph 2.12(c) shall survive the
payment and performance of the Lessee Obligations and the termination
of this Agreement.
(d) Capital Requirements. If, after the date of this
Agreement, Lessor or any Participant determines that (i) any Change of
Law affects the amount of capital required to be maintained by such
Person or any other Person controlling such Person (a "Capital Adequacy
Requirement") and (ii) the amount of capital maintained by such Person
or such other Person which is attributable to or based upon the
Advances, the commitments or this Agreement must be increased as a
result of such Capital Adequacy Requirement (taking into account such
Person's or such other Person's policies with respect to capital
adequacy), Lessee shall pay to such Person or such other Person, within
thirty (30) Business Days after demand of such Person, such amounts as
such Person or such other Person reasonably shall determine are
necessary to compensate such Person or such other Person for the
increased costs to such Person or such other Person of such increased
capital; provided, however, that Lessee shall have no obligation to
make any payment to any demanding party under this Subparagraph 2.12(d)
on account of any such increased costs relating to any Rental Period
that ended more than six (6) months prior to such demanding party's
first demand for payment (or, if any increased costs or reduced amounts
do not relate to a particular Rental Period, on account of any such
increased costs or reduced amounts realized by the demanding party more
than six (6) months prior to its first demand for payment). A
certificate of Lessor or any Participant setting forth in reasonable
detail the computation of any such increased costs, delivered by such
Person to Lessee shall constitute prima facie evidence of such costs.
The obligations of Lessee
19
under this Subparagraph 2.12(d) shall survive the payment and
performance of the Lessee Obligations and the termination of this
Agreement.
(e) Mitigation. If Lessor or any Participant becomes aware of
(i) any Change of Law which will make it unlawful or impossible for
such Person to fund or maintain its portion of the Outstanding Lease
Amount or any Portion thereof at the LIBOR Rental Rate or (ii) any
Change of Law or other event or condition which will obligate Lessee to
pay any amount pursuant to Subparagraph 2.12(c) or Subparagraph
2.12(d), such Person shall notify Lessee and Agent thereof as promptly
as practical. If any Person has given notice of any such Change of Law
or other event or condition and thereafter becomes aware that such
Change of Law or other event or condition has ceased to exist, such
Person shall notify Lessee and Agent thereof as promptly as practical.
Each Person affected by any Change of Law which makes it unlawful or
impossible for such Person to fund or maintain its portion of the
Outstanding Lease Amount or any Portion thereof at the LIBOR Rental
Rate or to which Lessee is obligated to pay any amount pursuant to
Subparagraph 2.12(c) or Subparagraph 2.12(d) shall use reasonable
commercial efforts (including changing the jurisdiction of its
Applicable Participating Office) to avoid the effect of such Change of
Law or to avoid or materially reduce any amounts which Lessee is
obligated to pay pursuant to Subparagraph 2.12(c) or Subparagraph
2.12(d) if, in the reasonable opinion of such Person, such efforts
would not be disadvantageous to such Person.
2.13. Taxes on Payments.
(a) Payments Free of Taxes. All payments made by Lessee under
this Agreement and the other Operative Documents shall be made free and
clear of, and without deduction or withholding for or on account of,
any present or future Indemnified Taxes, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority.
If any Indemnified Taxes are required to be withheld from any amounts
payable to any Lessor Party hereunder or under the other Operative
Documents, the amounts so payable to such Lessor Party shall be
increased to the extent necessary to yield to such Lessor Party (after
payment of all Indemnified Taxes) the Base Rent or any such other
amounts payable hereunder at the rates or in the amounts specified in
this Agreement and the other Operative Documents. Whenever any
Indemnified Taxes are payable by Lessee, as promptly as possible
thereafter, Lessee shall send to Agent for its own account or for the
account of Lessor or such Participant, as the case may be, a certified
copy of an original official receipt received by Lessee showing payment
thereof. If Lessee fails to pay any Indemnified Taxes when due to the
appropriate taxing authority or fails to remit to Agent the required
receipts or other required documentary evidence, Lessee shall indemnify
the Lessor Parties for any incremental taxes, interest or penalties
that may become payable by the Lessor Parties as a result of any such
failure. The obligations of Lessee under this Subparagraph 2.13(a)
shall survive the payment and performance of the Lessee Obligations and
the termination of this Agreement.
(b) Withholding Exemption Certificates. On or prior to the
Closing Date or, if such date does not occur within thirty (30) days
after the date of this Agreement, by the end of such 30-day period,
Lessor, if it is not incorporated under the laws of the United
20
States of America or a state thereof, and each Participant which is not
incorporated under the laws of the United States of America or a state
thereof shall deliver to Lessee and Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224 (or successor
applicable form), as the case may be, certifying in each case that
Lessor or such Participant, as the case may be, is entitled to receive
payments under this Agreement and the other Operative Documents without
deduction or withholding of any United States federal income taxes.
Each Person which delivers to Lessee and Agent a Form 1001 or 4224
pursuant to the immediately preceding sentence further undertakes to
deliver to Lessee and Agent two further copies of Form 1001 or 4224 (or
successor applicable forms), or other manner of certification or
procedure, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by it
to Lessee and Agent, and such extensions or renewals thereof as may
reasonably be requested by Lessee or Agent, certifying in the case of a
Form 1001 or 4224 that such Person is entitled to receive payments
under this Agreement and the other Operative Documents without
deduction or withholding of any United States federal income taxes,
unless in any such cases an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent Lessor or a Participant
from duly completing and delivering any such form with respect to it
and Lessor or such Participant advises Lessee and Agent that it is not
capable of receiving payments without any deduction or withholding of
United States federal income tax.
(c) Mitigation. If any Lessor Party claims any additional
amounts to be payable to it pursuant to this Paragraph 2.13, such
Lessor Party shall use reasonable commercial efforts to file any
certificate or document requested in writing by Lessee (including
copies of Internal Revenue Service Form 1001 (or successor forms)
reflecting a reduced rate of withholding) or to change the jurisdiction
of its Applicable Participating Office if the making of such a filing
or such change in the jurisdiction of its Applicable Participating
Office would avoid the need for or materially reduce the amount of any
such additional amounts which may thereafter accrue and if, in the
reasonable opinion of a Participant, in the case of a change in the
jurisdiction of its Applicable Participating Office, such change would
not be disadvantageous to such Person.
(d) Tax Returns. Nothing contained in this Paragraph 2.13
shall require any Lessor Party to make available any of its tax returns
(or any other information relating to its taxes which it deems to be
confidential).
2.14. Funding Loss Indemnification. If Lessee shall (a) pay all or any
portion of the Outstanding Lease Amount or any Portion thereof on any day other
than the last day of a Rental Period therefor (whether an optional payment, a
mandatory payment or otherwise) or (b) cancel or otherwise fail to consummate
any Advance Request which has been delivered to Agent (whether as a result of
the failure to satisfy any applicable conditions or otherwise), Lessee shall,
upon demand by Lessor or any Participant, reimburse such Person for and hold
such Person harmless from all costs and losses incurred by such Person as a
result of such payment, cancellation or failure. Lessee understands that such
costs and losses may include, without limitation, losses incurred by Lessor or a
Participant as a result of funding and other contracts
21
entered into by such Person to fund its portion of the Outstanding Lease Amount
or any Portion thereof. Each Person demanding payment under this Paragraph 2.14
shall deliver to Lessee, with a copy to Agent, a certificate setting forth the
amount of costs and losses for which demand is made, which certificate shall set
forth in reasonable detail the calculation of the amount demanded. Such a
certificate so delivered to Lessee shall constitute prima facie evidence of such
costs and losses. The obligations of Lessee under this Paragraph 2.14 shall
survive the payment and performance of the Lessee Obligations and the
termination of this Agreement.
2.15. Replacement of Participants. If any Participant shall (a) become
a Defaulting Participant more than once, (b) continue as a Defaulting
Participant for more than five (5) Business Days at any time, (c) deliver,
pursuant to Subparagraph 2.12(b), a notice of a Change of Law which does not
affect Majority Participants, (d) demand any payment under Subparagraph 2.12(c),
2.12(d) or 2.13(a) for a reason which is not applicable to Majority
Participants, or (e) deny a Lease Extension Request made pursuant to
Subparagraph 2.09(b), then Agent may (or upon the written request of Lessee if
no Event of Default has occurred and is continuing, shall) replace such
Participant (the "affected Participant"), or cause such affected Participant to
be replaced, with another financial institution (the "replacement Participant")
satisfying the requirements of an Eligible Assignee under Subparagraph 7.05(b),
by having the affected Participant sell and assign all of its rights and
obligations under this Agreement and the other Operative Documents to the
replacement Participant pursuant to Subparagraph 7.05(b); provided, however,
that if Lessee seeks to exercise such right, it must do so within sixty (60)
days after it first receives notice of the event, condition or demand giving
rise to such right, or within thirty (30) days after such notice in the case a
denial of a Lease Extension Request, and no Lessor Party shall have any
obligation to identify or locate a replacement Participant for Lessee. Upon
receipt by any affected Participant of a written notice from Agent stating that
Agent is exercising the replacement right set forth in this Paragraph 2.15, such
affected Participant shall sell and assign all of its rights and obligations
under this Agreement and the other Operative Documents to the replacement
Participant pursuant to an Assignment Agreement and Subparagraph 7.05(b) for a
purchase price equal to the sum of its portion of the Outstanding Lease Amount
or any Portion thereof, the accrued and unpaid portion of the Base Rent relating
to such portion and its ratable share of all fees to which it is entitled.
SECTION 3. CONDITIONS PRECEDENT.
3.01. Initial Acquisition Advance. The obligation of Lessor to make the
Initial Acquisition Advance (and the obligations of the Participants to fund
their respective Proportionate Shares of the Initial Acquisition Advance) is
(are) subject to receipt by Agent, on or prior to the Closing Date, of each item
listed in Schedule 3.01, each in form and substance satisfactory to Lessor,
Agent and each Participant, and with sufficient copies for, Lessor, Agent and
each Participant.
3.02. Tract 2 Acquisition Advance. The obligation of Lessor to make the
Tract 2 Acquisition Advance (and the obligations of the Participants to fund
their respective Proportionate Shares of the Tract 2 Acquisition Advance) is
(are) subject to receipt by Agent, on or prior to the Tract 2 Acquisition Date,
of each item listed in Schedule 3.02, each in form and
22
substance satisfactory to Lessor, Agent and each Participant, and with
sufficient copies for, Lessor, Agent and each Participant.
3.03. Improvement/Expense Advances. The obligation of Lessor to make
each Improvement/Expense Advance (and the obligations of the Participants to
fund their respective Proportionate Shares of such Advance) is (are) subject to
(i) satisfaction of the conditions set forth in Paragraph 3.01, (ii) receipt by
Agent pursuant to Paragraph 2.03 of the Advance Request for such Advance,
appropriately completed and duly executed by Lessee, and (iii) receipt by Agent
of date-down endorsements to Agent's and Lessor's title insurance policies or
binders acceptable to Agent and Lessor.
3.04. Other Conditions Precedent. The occurrence of each Credit Event
(including the making of each Advance by Lessor and the funding of each Advance
by the Participants) is subject to the further conditions that, on the date such
Credit Event is to occur and after giving effect to such Credit Event, the
following shall be true and correct:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 and in the other Operative Documents are true and
correct in all material respects as if made on such date (except for
representations and warranties expressly made as of a specified date,
which shall be true as of such date);
(b) No Default has occurred and is continuing or will result
from such Credit Event; and
(c) All of the Operative Documents are in full force and
effect.
The submission by Lessee to Lessor and Agent of each Advance Request, each
Notice of Rental Period Selection and a Notice of Marketing Option Exercise
shall be deemed to be a representation and warranty by Lessee that each of the
statements set forth above in this Paragraph 3.03 is true and correct as of the
date of such request and notice.
3.05. Covenant to Deliver. Lessee agrees (not as a condition but as a
covenant) to deliver to Lessor and Agent each item required to be delivered to
Lessor and Agent as a condition to each Advance if such Advance is made. Lessee
expressly agrees that the making of any Advance prior to the receipt by Lessor
and Agent of any such item shall not constitute a waiver by Lessor, Agent or any
Participant of Lessee's obligation to deliver such item, unless expressly waived
in writing.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
4.01. Lessee's Representations and Warranties. In order to induce the
Lessor Parties to enter into this Agreement and the other Operative Documents to
which they are parties, Lessee hereby represents and warrants to the Lessor
Parties as follows:
(a) Due Incorporation, Qualification, etc. Each of Lessee and
Lessee's Subsidiaries (i) is a corporation duly organized, validly
existing and in good standing under the laws of its state of
incorporation; (ii) has the power and authority to own, lease
23
and operate its properties and carry on its business as now conducted;
and (iii) is duly qualified, licensed to do business and in good
standing as a foreign corporation in each jurisdiction where the
failure to be so qualified or licensed is reasonably likely to have a
Material Adverse Effect.
(b) Authority. The execution, delivery and performance by
Lessee of each Operative Document executed, or to be executed, by
Lessee and the consummation of the transactions contemplated thereby
(i) are within the power of Lessee and (ii) have been duly authorized
by all necessary actions on the part of Lessee.
(c) Enforceability. Each Operative Document executed, or to be
executed, by Lessee has been, or will be, duly executed and delivered
by Lessee and constitutes, or will constitute, a legal, valid and
binding obligation of Lessee, enforceable against Lessee in accordance
with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by Lessee of
the Operative Documents executed by Lessee and the performance and
consummation of the transactions contemplated thereby do not (i)
violate any Requirement of Law applicable to Lessee; (ii) violate any
provision of, or result in the breach or the acceleration of, or
entitle any other Person to accelerate (whether after the giving of
notice or lapse of time or both), any Contractual Obligation of Lessee;
or (iii) result in the creation or imposition of any Lien (or the
obligation to create or impose any Lien) upon any property, asset or
revenue of Lessee (except such Liens as may be created in favor of the
Lessor Parties pursuant to this Agreement or the other Operative
Documents).
(e) Approvals. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority or other Person (including, without limitation, the
shareholders of any Person) is required in connection with the
execution and delivery of the Operative Documents executed by Lessee
and the performance and consummation by Lessee of the transactions
contemplated thereby, except such as have been made or obtained and are
in full force and effect.
(f) No Violation or Default. Neither Lessee nor any of its
Subsidiaries is in violation of or in default with respect to (i) any
Requirement of Law applicable to such Person; (ii) any Contractual
Obligation of such Person (nor is there any waiver in effect which, if
not in effect, would result in such a violation or default), where, in
each case, such violation or default is reasonably likely to have a
Material Adverse Effect. Without limiting the generality of the
foregoing, except as disclosed in the reports and documents described
on Schedule 4.01(f) (the "Environmental Reports"), neither Lessee nor
any of its Subsidiaries (A) has violated any Environmental Laws, (B)
has any liability under any Environmental Laws or (C) has received
notice or other communication of an investigation or is under
investigation by any Governmental Authority having authority to enforce
Environmental Laws, where such violation, liability or investigation is
reasonably likely to have a Material Adverse Effect. No Default has
occurred and is continuing.
24
(g) Litigation. Except as set forth (with estimates of the
dollar amounts involved) in Schedule 4.01(g), no actions (including,
without limitation, derivative actions), suits, proceedings or
investigations are pending or, to the knowledge of Lessee, threatened
against Lessee or any of its Subsidiaries at law or in equity in any
court or before any other Governmental Authority which (i) is
reasonably likely (alone or in the aggregate) to have a Material
Adverse Effect or (ii) seeks to enjoin, either directly or indirectly,
the execution, delivery or performance by Lessee of the Operative
Documents or the transactions contemplated thereby.
(h) Title; Possession Under Leases. Lessee and its
Subsidiaries own and have good and marketable title, or a valid
leasehold interest in, all their respective properties and assets as
reflected in the most recent Financial Statements delivered to Agent
(except those assets and properties disposed of in the ordinary course
of business or otherwise in compliance with this Agreement since the
date of such Financial Statements) and all respective assets and
properties acquired by Lessee and its Subsidiaries since such date
(except those disposed of in the ordinary course of business or
otherwise in compliance with this Agreement). Such assets and
properties are subject to no Lien, except for Permitted Liens. Each of
Lessee and its Subsidiaries has complied with all material obligations
under all material leases to which it is a party and all such leases
are in full force and effect. Each of Lessee and its Subsidiaries
enjoys peaceful and undisturbed possession under such leases.
(i) Financial Statements. The Financial Statements of Lessee
and its Subsidiaries which have been delivered to Agent, (i) are in
accordance with the books and records of Lessee and its Subsidiaries,
which have been maintained in accordance with good business practice;
(ii) have been prepared in conformity with GAAP; and (iii) fairly
present the financial conditions and results of operations of Lessee
and its Subsidiaries as of the date thereof and for the period covered
thereby. Neither Lessee nor any of its Subsidiaries has any contingent
obligations, liability for taxes or other outstanding obligations which
are material in the aggregate, except as disclosed in the audited
Financial Statements dated September 30, 1997, furnished by Lessee to
Agent prior to the date hereof, or in the Financial Statements
delivered to Agent pursuant to clause (i) or (ii) of Subparagraph 5.01.
(j) Equity Securities. All outstanding Equity Securities of
Lessee are duly authorized, validly issued, fully paid and
non-assessable. All Equity Securities of Lessee have been offered and
sold in compliance with all federal and state securities laws and all
other Requirements of Law.
(k) No Agreements to Sell Assets; Etc. Except as otherwise
permitted by Subparagraph 5.02(c) or Subparagraph 5.02(d), neither
Lessee nor any of its Subsidiaries has any legal obligation, absolute
or contingent, to any Person to sell the assets of Lessee or any of its
Subsidiaries (other than sales in the ordinary course of business), or
to effect any merger, consolidation or other reorganization of Lessee
or any of its Subsidiaries or to enter into any agreement with respect
thereto.
25
(l) Employee Benefit Plans.
(i) Based upon the latest valuation of each Employee
Benefit Plan that either Lessee or any ERISA Affiliate
maintains or contributes to, or has any obligation under
(which occurred within twelve months of the date of this
representation), the current liabilities of such plan within
the meaning of ss.302(d)(7) of ERISA did not exceed the
aggregate value of the assets of such plan. Neither Lessee nor
any ERISA Affiliate has any liability with respect to any
post-retirement benefit under any Employee Benefit Plan which
is a welfare plan (as defined in section 3(1) of ERISA), other
than liability for health plan continuation coverage described
in Part 6 of Title I(B) of ERISA, which liability for health
plan contribution coverage is not reasonably likely to have a
Material Adverse Effect.
(ii) Each Employee Benefit Plan complies, in both
form and operation, in all material respects, with its terms,
ERISA and the IRC, and no condition exists or event has
occurred with respect to any such plan which would result in
the incurrence by either Lessee or any ERISA Affiliate of any
liability, fine or penalty that is reasonably likely to have a
Material Adverse Effect. Each Employee Benefit Plan, related
trust agreement, arrangement and commitment of Lessee or any
ERISA Affiliate is legally valid and binding and in full force
and effect. No Employee Benefit Plan is being audited or
investigated by any government agency or is subject to any
pending or threatened claim or suit that is reasonably likely
to have a Material Adverse Effect. Neither Lessee nor any
ERISA Affiliate nor any fiduciary of any Employee Benefit Plan
has engaged in a prohibited transaction under section 406 of
ERISA or section 4975 of the IRC.
(iii) Neither Lessee nor any ERISA Affiliate
contributes to or has any material contingent obligations to
any Multiemployer Plan. Neither Lessee nor any ERISA Affiliate
has incurred any liability (including secondary liability) to
any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under Section 4201 of
ERISA or as a result of a sale of assets described in Section
4204 of ERISA that is reasonably likely to have a Material
Adverse Effect. Neither Lessee nor any ERISA Affiliate has
been notified that any Multiemployer Plan is in reorganization
or insolvent under and within the meaning of Section 4241 or
Section 4245 of ERISA or that any Multiemployer Plan intends
to terminate or has been terminated under Section 4041A of
ERISA.
(m) Other Regulations. Lessee is not subject to regulation
under the Investment Company Act of 1940, the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce
Act, any state public utilities code or to any other Governmental Rule
limiting its ability to incur indebtedness.
(n) Patent and Other Rights. Lessee and its Subsidiaries own
or license under validly existing agreements all patents, licenses,
trademarks, trade names, trade secrets, service marks, copyrights and
all rights with respect thereto, which are required to conduct their
businesses as now conducted.
26
(o) Governmental Charges and Other Indebtedness. Lessee and
its Subsidiaries have filed or caused to be filed all tax returns which
are required to be filed by them where failure to file is reasonably
likely to have a Material Adverse Effect. Lessee and its Subsidiaries
have paid, or made provision for the payment of, all taxes and other
Governmental Charges which have or may have become due pursuant to said
returns or otherwise and all other indebtedness, except such
Governmental Charges or indebtedness, if any, which are being contested
in good faith and as to which adequate reserves (determined in
accordance with GAAP) have been provided or which are not reasonably
likely to have a Material Adverse Effect if unpaid.
(p) Margin Stock. Lessee owns no Margin Stock which, in the
aggregate, would constitute a substantial part of the assets of Lessee,
and no proceeds of any Loan will be used to purchase or carry, directly
or indirectly, any Margin Stock or to extend credit, directly or
indirectly, to any Person for the purpose of purchasing or carrying any
Margin Stock.
(q) Subsidiaries, etc. Set forth in Schedule 4.01(q) (as
supplemented by Lessee from time to time in a written notice to Agent)
is a complete list of all of Lessee's Subsidiaries, the jurisdiction of
incorporation of each, the classes of Equity Securities of each and the
number of shares and percentages of shares of each such class owned
directly or indirectly by Lessee. To the knowledge of Lessee after
reasonable investigation, set forth on Schedule 4.01(q) (as
supplemented by Lessee from time to time in a written notice to Agent)
is a description of each partnership or joint venture in which Lessee
is a partner or a venturer. Except as disclosed on Schedule 4.01(q),
Lessee has no Subsidiaries, and to the knowledge of Lessee after
reasonable investigation Lessee is not a partner in any partnership or
a joint venturer in a joint venture.
(r) Catastrophic Events. Neither Lessee nor any of its
Subsidiaries and none of their properties is or has been affected by
any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or other casualty
that is reasonably likely to have a Material Adverse Effect. There are
no disputes presently subject to grievance procedure, arbitration or
litigation under any of the collective bargaining agreements,
employment contracts or employee welfare or incentive plans to which
Lessee or any of its Subsidiaries is a party, and there are no strikes,
lockouts, work stoppages or slowdowns, or, to the best knowledge of
Lessee, jurisdictional disputes or organizing activities occurring or
threatened which alone or in the aggregate are reasonably likely to
have a Material Adverse Effect.
(s) Burdensome Contractual Obligations, Etc. Neither Lessee
nor any of its Subsidiaries and none of their properties is subject to
any Contractual Obligation or Requirement of Law which is reasonably
likely to have a Material Adverse Effect.
(t) No Material Adverse Effect. No event has occurred and no
condition exists which is reasonably likely to have a Material Adverse
Effect.
27
(u) The Property. The representations and warranties relating
to each Tract set forth in Parts 1 and 2 of Schedule 4.01(u) are true
and correct. The following representations and warranties apply to all
Tracts on the Acquisition Date thereof:
(i) All of the Property complies and will comply at
all times (whether before commencement of any construction,
during any construction or after completion of construction of
any New Improvements) with all applicable Governmental Rules
(including Title III of the Americans with Disabilities Act;
Environmental Laws; and zoning, land use, building, planning
and fire laws, rules, regulations and codes) and Insurance
Requirements, except for violations which are not reasonably
likely to have a Material Adverse Effect. Except as disclosed
in the Environmental Reports, (A) no Hazardous Materials have
been used, generated, manufactured, stored, treated, disposed
of, transported or present on or released or discharged from
the Property in any manner that is reasonably likely to have a
Material Adverse Effect and (B) there are no claims or actions
which are reasonably likely to have a Material Adverse Effect
pending or, to Lessee's knowledge, threatened against any of
the Property by any Governmental Authority or any other Person
relating to Hazardous Materials or pursuant to any
Environmental Laws.
(ii) None of the Improvements (whether before
commencement of any construction, during any construction or
after completion of construction of any New Improvements)
encroach or will at any time encroach in any manner onto any
adjoining land, except as permitted by express written and
recorded encroachment agreements approved by Agent or as
affirmatively insured against by appropriate title insurance.
(iii) All licenses, approvals, authorizations,
consents, permits, easements and rights-of-way required for
the use of any of the Property have been obtained or, if not
yet required, will be obtained before required.
(iv) After the Closing Date, Lessor will have good
and valid fee interest in the Property, subject to no Liens
except for Permitted Property Liens.
(v) Chief Executive Office. Lessee's chief executive office is
located at 120 North Redwood Drive, San Rafael, California.
(w) Accuracy of Information Furnished. None of the Operative
Documents and none of the other certificates, statements or information
furnished to any Lessor Party by or on behalf of Lessee or any of its
Subsidiaries in connection with the Operative Documents or the
transactions contemplated thereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(x) The Budget attached hereto as Schedule 4.01(x) is based on
reasonable assumptions as to all legal and factual matters material to
the estimates set forth therein
28
and is consistent with the provisions of the Construction Agreements
and the Operative Documents. To the best of Lessee's knowledge, the
Budget includes all costs necessary to complete the acquisition of the
Property and the construction of the New Improvements.
Lessee shall be deemed to have reaffirmed, for the benefit of the Lessor
Parties, each representation and warranty contained in this Paragraph 4.01 on
and as of the date of each Credit Event (except for representations and
warranties expressly made as of a specified date, which shall be true as of such
date).
4.02. Lessor's Representations and Warranties. In order to induce
Lessee, Agent and the Participants to enter into this Agreement and the other
Operative Documents to which they are parties, Lessor hereby represents and
warranties to Lessee, Agent and the Participants as follows:
(a) Due Incorporation, Qualification, etc. Lessor (i) is a
corporation duly organized, validly existing and in good standing under
the laws of Delaware and (ii) has the power and authority to own, lease
and operate its properties and carry on its business as now conducted.
(b) Authority. The execution, delivery and performance by
Lessor of each Operative Document executed, or to be executed, by
Lessor and the consummation of the transactions contemplated thereby
(i) are within the power of Lessor and (ii) have been duly authorized
by all necessary actions on the part of Lessor.
(c) Enforceability. Each Operative Document executed, or to be
executed, by Lessor has been, or will be, duly executed and delivered
by Lessor and constitutes, or will constitute, a legal, valid and
binding obligation of Lessor, enforceable against Lessor in accordance
with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by Lessor of
the Operative Documents executed by Lessor and the performance and
consummation of the transactions contemplated thereby do not (i)
violate any Requirement of Law applicable to Lessor; (ii) violate any
provision of, or result in the breach or the acceleration of, or
entitle any other Person to accelerate (whether after the giving of
notice or lapse of time or both), any Contractual Obligation of Lessor;
or (iii) result in the creation or imposition of any Lien (or the
obligation to create or impose any Lien) upon any property, asset or
revenue of Lessor (except such Liens as may be created in favor of
Agent pursuant to this Agreement or the other Operative Documents).
(e) Approvals. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority or other Person (including, without limitation, the
shareholders of any Person) is required in connection with the
execution and delivery of the Operative Documents executed by Lessor
and the
29
performance and consummation of the transactions contemplated thereby,
except such as have been made or obtained and are in full force and
effect.
(f) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending
or, to the knowledge of Lessor, threatened against Lessor at law or in
equity in any court or before any other Governmental Authority which
(i) is reasonably likely (alone or in the aggregate) to materially and
adversely affect the ability of Lessor to perform its obligations under
the Operative Documents to which it is a party or (ii) seeks to enjoin,
either directly or indirectly, the execution, delivery or performance
by Lessor of the Operative Documents or the transactions contemplated
thereby.
(g) Other Regulations. Lessor is not subject to regulation
under the Investment Company Act of 1940, the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce
Act, any state public utilities code or to any other Governmental Rule
limiting its ability to incur indebtedness.
(h) Chief Executive Office. Lessor's chief executive office is
located at 135 S. LaSalle Street, Suite 660, Chicago, Illinois, 60603.
4.03. Participants' Representations and Warranties. In order to induce
Lessee, Lessor and Agent to enter into this Agreement and the other Operative
Documents to which they are parties, each Participant hereby represents and
warranties to Lessee, Lessor and Agent as follows:
(a) Due Incorporation, Qualification, etc. Such Participant
(i) is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and (ii)
has the power and authority to own, lease and operate its properties
and carry on its business as now conducted.
(b) Authority. The execution, delivery and performance by such
Participant of each Operative Document executed, or to be executed, by
such Participant and the consummation of the transactions contemplated
thereby (i) are within the power of such Participant and (ii) have been
duly authorized by all necessary actions on the part of such
Participant.
(c) Enforceability. Each Operative Document executed, or to be
executed, by such Participant has been, or will be, duly executed and
delivered by such Participant and constitutes, or will constitute, a
legal, valid and binding obligation of such Participant, enforceable
against such Participant in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditors' rights generally
and general principles of equity.
(d) Non-Contravention. The execution and delivery by such
Participant of the Operative Documents executed by such Participant and
the performance and consummation of the transactions contemplated
thereby do not (i) violate any Requirement of Law applicable to such
Participant; (ii) violate any provision of, or result in the breach or
the acceleration of, or entitle any other Person to accelerate (whether
30
after the giving of notice or lapse of time or both), any Contractual
Obligation of such Participant; or (iii) result in the creation or
imposition of any Lien (or the obligation to create or impose any Lien)
upon any property, asset or revenue of such Participant (except such
Liens as may be created in favor of Lessor or Agent pursuant to this
Agreement or the other Operative Documents).
(e) Approvals. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority or other Person (including, without limitation, the
shareholders of any Person) is required in connection with the
execution and delivery of the Operative Documents executed by such
Participant and the performance and consummation of the transactions
contemplated thereby, except such as have been made or obtained and are
in full force and effect.
(f) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending
or, to the knowledge of such Participant, threatened against such
Participant at law or in equity in any court or before any other
Governmental Authority which (i) is reasonably likely (alone or in the
aggregate) to materially and adversely affect the ability of such
Participant to perform its obligations under the Operative Documents to
which it is a party or (ii) seeks to enjoin, either directly or
indirectly, the execution, delivery or performance by such Participant
of the Operative Documents or the transactions contemplated thereby.
(g) Own Account. Such Participant is acquiring its
participation interest hereunder 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 of 1933) thereof, and, if in the future it
should decide to dispose of its participation interest, it understands
that it may do so only in compliance with the Securities Act of 1933
and the rules and regulations of the Securities and Exchange Commission
thereunder and any applicable state securities laws.
SECTION 5. COVENANTS.
5.01. Lessee's Affirmative Covenants. Until the termination of this
Agreement and the satisfaction in full by Lessee of all Lessee Obligations,
Lessee will comply, and will cause compliance, with the following affirmative
covenants, unless Lessor and Required Participants shall otherwise consent in
writing:
(a) Financial Statements, Reports, etc. Lessee shall furnish
to Agent, with sufficient copies for Lessor and each Participant, the
following, each in such form and such detail as Agent, Lessor or the
Required Participants shall reasonably request:
(i) As soon as available and in no event later than
ninety (90) days after the last day of each fiscal quarter of
Lessee (other than the last quarter of each fiscal year), a
copy of the Financial Statements of Lessee and its
Subsidiaries (prepared on a consolidated basis) for such
quarter and for the fiscal year to date, certified by the
president or chief financial officer of Lessee to present
fairly the financial condition, results of operations and
other information reflected therein
31
and to have been prepared in accordance with GAAP (subject to
normal year-end audit adjustments);
(ii) As soon as available and in no event later than
one hundred, twenty (120) days after the close of each fiscal
year of Lessee, (A) copies of the audited Financial Statements
of Lessee and its Subsidiaries (prepared on a consolidated
basis) for such year, audited by independent certified public
accountants of recognized national standing acceptable to
Agent and Required Participants, (B) copies of the unqualified
opinions (or qualified opinions reasonably acceptable to Agent
and Required Participants) delivered by such accountants in
connection with all such Financial Statements and (C)
certificates of such accountants to Agent stating that in
making the examination necessary for their opinion they have
reviewed Paragraph 5.03 and have obtained no knowledge of any
violation by Lessee and its Subsidiaries of the covenants set
forth therein, or if, in the opinion of such accountants, any
such violation has occurred, a statement as to the nature
thereof;
(iii) Contemporaneously with the quarterly and
year-end Financial Statements required by the foregoing
clauses (i) and (ii), a compliance certificate of the
president or chief financial officer of Lessee (a "Compliance
Certificate") which (A) states that no Default has occurred
and is continuing, or, if any such Default has occurred and is
continuing, a statement as to the nature thereof and what
action Lessee proposes to take with respect thereto and (B)
sets forth, for the quarter or year covered by such Financial
Statements or as of the last day of such quarter or year (as
the case may be), the calculation of the financial ratios and
tests provided in Paragraph 5.03;
(iv) As soon as possible and in no event later than
five (5) Business Days after any officer of Lessee knows of
the occurrence or existence of (A) any Reportable Event under
any Employee Benefit Plan or Multiemployer Plan; (B) any
actual or threatened litigation, suits, claims or disputes
against Lessee or any of its Subsidiaries involving potential
monetary damages payable by Lessee or its Subsidiaries of
$20,000,000 or more (alone or in the aggregate), other than
any frivolous claim or litigation; (C) any other event or
condition which is reasonably likely to have a Material
Adverse Effect; or (D) any Default; the statement of the
president or chief financial officer of Lessee setting forth
details of such event, condition or Default and the action
which Lessee proposes to take with respect thereto;
(v) As soon as available and in no event later than
five (5) Business Days after they are sent, made available or
filed, copies of (A) all registration statements and reports
filed by Lessee or any of its Subsidiaries with any securities
exchange or the Securities and Exchange Commission (including,
without limitation, all 10-Q, 10-K and 8-Q reports); (B) all
reports, proxy statements and financial statements sent or
made available by Lessee or any of its Subsidiaries to its
security holders; and (C) all press releases and other similar
public concerning any material developments in the business of
Lessee or any of
32
its Subsidiaries made available by Lessee or any of its
Subsidiaries to the public generally;
(vi) As soon as available, the consolidated plan and
forecast of Lessee and its Subsidiaries for such fiscal year,
including quarterly cash flow projections; and
(vii) Such other instruments, agreements,
certificates, opinions, statements, documents and information
relating to the operations or condition (financial or
otherwise) of Lessee or its Subsidiaries, and compliance by
Lessee with the terms of this Agreement and the other
Operative Documents as Agent may from time to time reasonably
request.
(b) Books and Records. Lessee and its Subsidiaries shall at
all times keep proper books of record and account in which full, true
and correct entries will be made of their transactions in accordance
with GAAP.
(c) Inspections. Lessee and its Subsidiaries shall permit any
Person designated by any Participant, upon reasonable notice and during
normal business hours, to visit and inspect any of the properties and
offices of Lessee and its Subsidiaries, to examine the books and
records of Lessee and its Subsidiaries and make copies thereof and to
discuss the affairs, finances and business of Lessee and its
Subsidiaries with, and to be advised as to the same by, their officers,
auditors and accountants, all at such times and intervals as any
Participant may reasonably request; provided, however, that, if no
Default has occurred and is continuing, Lessee shall not be required to
permit more than four (4) such visits for inspection and examination in
any fiscal year.
(d) Insurance. In addition to the insurance requirements set
forth in the Lease Agreement with respect to the Property, Lessee and
its Subsidiaries shall:
(i) Carry and maintain insurance of the types and in
the amounts customarily carried from time to time during the
term of this Agreement by others engaged in substantially the
same business as such Person and operating in the same
geographic area as such Person, including, but not limited to,
fire, public liability, property damage and worker's
compensation;
(ii) Carry and maintain each policy for such
insurance with (A) a company which has a general policy holder
of A or better and a financial rating of at least 10 from A.M.
Best and Company at the time such policy is placed and at the
time of each annual renewal thereof or (B) any other insurer
which is reasonably satisfactory to Agent; and
(iii) Deliver to Agent from time to time, as Agent
may request, schedules setting forth all insurance then in
effect.
(e) Governmental Charges and Other Indebtedness. Lessee and
its Subsidiaries shall promptly pay and discharge when due (i) all
taxes and other Governmental Charges prior to the date upon which
penalties accrue thereon, (ii) all
33
Indebtedness which, if unpaid, could become a Lien upon the property of
Lessee or its Subsidiaries and (iii) all other indebtedness which, if
unpaid, is reasonably likely to have a Material Adverse Effect, except
such Indebtedness as may in good faith be contested or disputed, or for
which arrangements for deferred payment have been made, provided that
in each such case appropriate reserves are maintained to the reasonable
satisfaction of Agent.
(f) Use of Proceeds. Lessee shall not use any part of the
proceeds of any Advance, directly or indirectly, for the purpose of
purchasing or carrying any Margin Stock or for the purpose of
purchasing or carrying or trading in any securities under such
circumstances as to involve Lessee or any Lessor Party in a violation
of Regulations G, T, U or X issued by the Federal Reserve Board.
(g) General Business Operations. Each of Lessee and its
Subsidiaries shall (i) preserve and maintain its corporate existence
and all of its rights, privileges and franchises reasonably necessary
to the conduct of its business, (ii) conduct its business activities in
compliance with all Requirements of Law and Contractual Obligations
applicable to such Person, the violation of which is reasonably likely
to have a Material Adverse Effect and (iii) keep all property useful
and necessary in its business in good working order and condition,
ordinary wear and tear excepted. Lessee shall maintain its chief
executive office and principal place of business in the United States
and shall not relocate its chief executive office or principal place of
business outside of California except upon not less than ninety (90)
days prior written notice to Agent.
(h) Plans and Specifications. As soon as available, Lessee
shall deliver to Lessor and Agent a copy of the Plans and
Specifications for the New Improvements, together with a certificate of
each engineer or architect who drafted a material part of such plans
and specifications certifying that such plans and specifications are
complete and comply with all applicable laws, and either (i) a revised
Expiration Date Appraisal which conforms with such Plans and
Specifications or (ii) a certificate from the appraiser who prepared
the Expiration Date Appraisal to the effect that such Plans and
Specifications do not cause the value of any Sub-Tract to be less than
the value of such Sub-Tract as set forth in the Expiration Date
Appraisal delivered on the Closing Date.
5.02. Lessee's Negative Covenants. Until the termination of this
Agreement and the satisfaction in full by Lessee of all Lessee Obligations,
Lessee will comply, and will cause compliance, with the following negative
covenants, unless Lessor and Required Participants shall otherwise consent in
writing:
(a) Indebtedness. Neither Lessee nor any of its Subsidiaries
shall create, incur, assume or permit to exist any Indebtedness or any
Guaranty Obligations except for the following ("Permitted
Indebtedness"):
(i) The Lessee Obligations under the Operative
Documents;
(ii) Indebtedness of Lessee and its Subsidiaries
listed in Schedule 5.02(a) and existing on the date of
this Agreement;
34
(iii) Indebtedness of Lessee and its Subsidiaries
arising from the endorsement of instruments for collection in
the ordinary course of Lessee's or a Subsidiary's business;
(iv) Indebtedness of Lessee and its Subsidiaries for
trade accounts payable, provided that (A) such accounts arise
in the ordinary course of business and (B) no material part of
such account is more than ninety (90) days past due (unless
subject to a bona fide dispute and for which adequate reserves
have been established);
(v) Indebtedness of Lessee and its Subsidiaries under
Rate Contracts, provided that all such arrangements are
entered into in connection with bona fide hedging operations
and not for speculation;
(vi) Indebtedness of Lessee and its Subsidiaries
under purchase money loans and Capital Leases incurred by
Lessee or any of its Subsidiaries to finance the acquisition
by such Person of real property, fixtures or equipment
provided that in each case, (A) such Indebtedness is incurred
by such Person at the time of, or not later than ninety (90)
days after, the first functional use by such Person of the
property so financed and (B) such Indebtedness does not exceed
the purchase price of the property so financed;
(vii) Subordinated Indebtedness of Lessee and its
Subsidiaries;
(viii) Indebtedness of Lessee and its Subsidiaries
under initial or successive refinancings of any Indebtedness
permitted by clause (ii) above or under replacements of lines
of credit or other credit commitments permitted by clause (ii)
above, provided that (A) the principal amount of any such
refinancing or replacement does not exceed the principal
amount of the Indebtedness being refinanced or commitment
being replaced and (B) the material terms and provisions of
any such refinancing or replacement (including redemption,
prepayment, default and subordination provisions) are not
substantially less favorable than the comparable terms of the
Indebtedness being refinanced or commitment being replaced,
except that the maturity of the new Indebtedness or commitment
may be longer;
(ix) Indebtedness of Lessee and its Subsidiaries with
respect to Surety Instruments incurred in the ordinary course
of business (including surety bonds issued to secure
obligations of Lessee and its Subsidiaries in respect of
equipment ordered from Lessee and its Subsidiaries);
(x) Guaranty Obligations of Lessee in respect of
Permitted Indebtedness of its Subsidiaries and joint ventures
described on Schedule 4.01(q);
(xi) Indebtedness of Lessee to any of its
Subsidiaries, Indebtedness of any of Lessee's Subsidiaries to
Lessee or Indebtedness of any of Lessee's Subsidiaries to any
of Lessee's other Subsidiaries, provided that (A) any
Indebtedness of Lessee to any of its Subsidiaries and any
Indebtedness of any
35
of Lessee's Subsidiaries to Lessee shall be subject to
Subparagraph 5.02(j) and (B) any Indebtedness of Lessee to any
of its Subsidiaries is Subordinated Indebtedness;
(xiii) Other Indebtedness of Lessee and its
Subsidiaries, provided that the aggregate amount of such other
Indebtedness outstanding at any time does not exceed
twenty-five percent (25%) of Lessee's Tangible Net Worth on
the last day of the immediately preceding fiscal year.
(b) Liens. Neither Lessee nor any of its Subsidiaries shall
create, incur, assume or permit to exist any Lien on or with respect to
any of its assets or property of any character, whether now owned or
hereafter acquired, except for the following ("Permitted Liens"):
(i) Liens in favor of any Lessor Party securing the
Lessee Obligations;
(ii) Liens listed in Schedule 5.02(b) and existing on
the date of this Agreement;
(iii) Liens for taxes or other Governmental Charges
not at the time delinquent or thereafter payable without
penalty or being contested in good faith, provided that
adequate reserves for the payment thereof have been
established in accordance with GAAP;
(iv) Liens of carriers, warehousemen, mechanics,
materialmen, vendors, and landlords and other similar Liens
imposed by law incurred in the ordinary course of business for
sums not overdue or being contested in good faith, provided
that adequate reserves for the payment thereof have been
established in accordance with GAAP;
(v) Deposits under workers' compensation,
unemployment insurance and social security laws or to secure
the performance of bids, tenders, contracts (other than for
the repayment of borrowed money) or leases, or to secure
statutory obligations of surety or appeal bonds or to secure
indemnity, performance or other similar bonds in the ordinary
course of business;
(vi) Zoning restrictions, easements, rights-of-way,
title irregularities and other similar encumbrances, which
alone or in the aggregate are not substantial in amount and do
not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business
of Lessee or any of its Subsidiaries;
(vii) Banker's Liens and similar Liens (including
set-off rights) in respect of bank deposits;
(viii) Liens on any property or assets acquired, or
on the property or assets of any Persons acquired, by Lessee
or any of its Subsidiaries after the date of this Agreement
pursuant to Subparagraph 5.02(d), provided that (A) such Liens
36
exist at the time such property or assets or such Persons are
so acquired and (B) such Liens were not created in
contemplation of such acquisitions;
(ix) Judgement Liens, provided that such Liens do not
have a value in excess of twenty million dollars ($20,000,000)
or such Liens are released, stayed, vacated or otherwise
dismissed within thirty (30) days after issue or levy and, if
so stayed, such stay is not thereafter removed;
(x) Rights of (A) vendors or lessors under
conditional sale agreements, Capital Leases or other title
retention agreements, provided that, in each case, (1) such
rights secure or otherwise relate to Permitted Indebtedness,
(2) such rights do not extend to any property other than
property acquired with the proceeds of such Permitted
Indebtedness and (3) such rights do not secure any
Indebtedness other than such Permitted Indebtedness and (B)
lessors under operating leases;
(xi) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of
customs duties and in connection with the importation of goods
in the ordinary course of Lessee's and its Subsidiaries'
businesses;
(xii) Liens securing Indebtedness which constitutes
Permitted Indebtedness under clause (vi) of Subparagraph
5.02(a) provided that, in each case, such Lien (A) covers only
those assets, the acquisition of which was financed by such
Permitted Indebtedness, and (B) secures only such Permitted
Indebtedness;
(xiii) Liens on the property or assets of any
Subsidiary of Lessee in favor of Lessee or any other
Subsidiary of Lessee;
(xiv) Liens incurred in connection with the
extension, renewal or refinancing of the Indebtedness secured
by the Liens described in clause (ii) or (xii) above, provided
that any extension, renewal or replacement Lien (A) is limited
to the property covered by the existing Lien and (B) secures
Indebtedness which is no greater in amount and has material
terms no less favorable to the Participants than the
Indebtedness secured by the existing Lien;
(xv) Liens on insurance proceeds in favor of
insurance companies with respect to the financing of insurance
premiums;
(xvi) Liens in inventory of Lessee and its
Subsidiaries in favor of (A) customers of Lessee and its
Subsidiaries to secure the obligations of Lessee and its
Subsidiaries in respect of equipment ordered from Lessee and
its Subsidiaries by such customers or (B) sureties that have
issued surety bonds to such customers to secure such
obligations, provided that each such Lien (1) covers only (y)
the equipment ordered by a customer pursuant to a purchase
order which has been delivered to Lessee or one of its
Subsidiaries and (z) the parts and other inventory of Lessee
and its Subsidiaries which will be used to build such
equipment, (2) secures only the obligations of Lessee and its
Subsidiaries in respect of such
37
equipment and (3) terminates upon the delivery of such
equipment to such customer or the ultimate purchaser thereof
or the return to such customer of such deposit;
(xvii) Permitted Property Liens in the Property; and
(xviii) Other Liens, provided that the aggregate
amount of the Indebtedness outstanding at any time and secured
by such other Liens does not exceed fifteen percent (15%) of
Lessee's Tangible Net Worth on the last day of the immediately
preceding fiscal year;
Provided, however, that the foregoing exceptions shall not be construed
to permit any Liens, except for Permitted Property Liens, in any of the
Property.
(c) Asset Dispositions. Neither Lessee nor any of its
Subsidiaries shall sell, lease, transfer or otherwise dispose of all or
any part of its assets or property, whether now owned or hereafter
acquired, except for the following:
(i) Sales of inventory by Lessee and its Subsidiaries
in the ordinary course of their businesses;
(ii) Sales or other dispositions of surplus, damaged,
worn or obsolete equipment or inventory;
(iii) Sales or other dispositions of Investments
permitted by clause (i) of Subparagraph 5.02(e) for not less
than fair market value;
(iv) Sales or assignments of defaulted receivables to
a collection agency in the ordinary course of business;
(v) Licenses by Lessee or its Subsidiaries of its
patents, copyrights, trademarks, trade names and service marks
in the ordinary course of its business provided that, in each
case, the terms of the transaction are terms which then would
prevail in the market for similar transactions between
unaffiliated parties dealing at arm's length;
(vi) Sales or other dispositions of assets and
property by Lessee to any of Lessee's Subsidiaries or by any
of Lessee's Subsidiaries to Lessee or any of its other
Subsidiaries, provided that the terms of any such sales or
other dispositions by or to Lessee are terms which are no less
favorable to Lessee then would prevail in the market for
similar transactions between unaffiliated parties dealing at
arm's length;
(vii) Sales, for cash, in the ordinary course of
business of accounts receivable of Lessee and its Subsidiaries
and certain rights and property of Lessee and its Subsidiaries
related to the collection of or constituting proceeds of such
accounts receivable, with or without recourse, at a discount
rate not to exceed ten percent (10%), provided that the
aggregate amount of accounts receivable so sold
38
by Lessee in any fiscal quarter does not exceed twenty million
dollars ($20,000,000);
(viii) Other sales, leases, transfers and disposals
of assets and property, provided that the aggregate value of
all such assets and property (based upon the book value of
such assets and property) so sold, leased, transferred or
otherwise disposed for cash of in any fiscal year does not
exceed twenty percent (20%) of Lessee's Tangible Net Worth on
the last day of the immediately preceding fiscal year;
Provided, however, that the foregoing exceptions shall not be construed
to permit any sales, leases, transfers or other disposals of any of the
Property, except as expressly permitted by the Lease Agreement.
(d) Mergers, Acquisitions, Etc. Neither Lessee nor any of its
Subsidiaries shall acquire any other Person (whether through merger
with such Person, acquisition of such Person as a Subsidiary or
otherwise) or all or substantially all of the assets of any other
Person, except that Lessee and its Subsidiaries may make any such
acquisitions if (i) the aggregate consideration paid by Lessee and its
Subsidiaries in cash for all such acquisitions after the date of this
Agreement does not exceed $50,000,000; (ii) the aggregate consideration
paid by Lessee and its Subsidiaries in stock for all such acquisitions
after the date of this Agreement does not exceed $75,000,000 (such
stock to be valued at the market value thereof at the time paid as
consideration); (iii) in any merger involving Lessee, Lessee is the
surviving corporation; and (iv) both immediately before and after
giving effect to any such acquisition, no Default shall have occurred
and be continuing.
(e) Investments. Neither Lessee nor any of its Subsidiaries
shall make any Investment except for Investments in the following:
(i) Investments in Cash Equivalents;
(ii) Investments permitted by the investment policy
of Lessee set forth in Schedule 5.02(e) or, if any changes to
the investment policy of Lessee are hereafter duly approved by
the Board of Directors of Lessee, in any subsequent investment
policy which is the most recent investment policy delivered by
Lessee to Agent with a certificate of Lessee's chief financial
officer to the effect that such investment policy has been
duly approved by Lessee's Board of Directors and is then in
effect;
(iii) Loans and other extensions of credit by Lessee
and its Subsidiaries to each other to the extent permitted by
clause (xi) of Subparagraph 5.02(a) and other types of
Investments by Lessee and its Subsidiaries to each other;
(iv) Investments consisting of loans to employees,
officers and directors, provided that the aggregate principal
amount of such loans does not exceed $10,000,000 at any time;
39
(v) Investments of Lessee and its Subsidiaries in
Rate Contracts, provided that all such arrangements are
entered into in connection with bona fide hedging operations
and not for speculation;
(vi) Investments permitted by Subparagraph 5.02(d);
and
(vii) Money market mutual funds registered with the
Securities and Exchange Commission, meeting the requirement of
Rule 2a-7 promulgated under the Investment Company Act of 1940
(viii) Other Investments, provided that the aggregate
amount of such other Investments plus the aggregate cost of
all mergers and consolidations consummated, Subsidiaries
established and Subsidiaries and assets acquired by Lessee
pursuant to Subparagraph 5.02(d) does not exceed in any fiscal
year (A) $50,000,000 for any amounts paid in cash and (B)
$75,000,000 for any amounts paid with shares of common stock
of Lessee (as determined according to the stock price of such
shares on the date of transfer) and accounted for on a pooling
basis in accordance with GAAP.
(f) Dividends, Redemptions, Etc. Neither Lessee nor any of its
Subsidiaries shall pay any dividends or make any distributions on its
Equity Securities; purchase, redeem, retire, defease or otherwise
acquire for value any of its Equity Securities; return any capital to
any holder of its Equity Securities as such; make any distribution of
assets, Equity Securities, obligations or securities to any holder of
its Equity Securities as such; or set apart any sum for any such
purpose; except as follows:
(i) Either Lessee or any of its Subsidiaries may pay
dividends on its capital stock payable solely in such Person's
own capital stock;
(ii) Any Subsidiary of Lessee may pay dividends to
Lessee;
(iii) Lessee may repurchase its Equity Securities,
provided that the cost of any such repurchase, when added to
the aggregate cost of all other repurchases made pursuant to
this clause (iii) since the date of this Agreement, does not
exceed five percent (5%) of Lessee's Tangible Net Worth on the
last day of the immediately preceding fiscal year; and
(iv) Lessee may pay dividends in cash in any fiscal
year in an aggregate amount of not more than three percent of
Lessee's Tangible Net Worth on the last day of the immediately
preceding fiscal year.
(g) Change in Business. Neither Lessee nor any of its
Subsidiaries shall engage, either directly or indirectly through
Affiliates, in any business other than the business of providing
technology based services and solutions, data processing services, data
analysis services or related services.
(h) Indebtedness Payments, Etc. Neither Lessee nor any of its
Subsidiaries shall (i) prepay, redeem, purchase, defease or otherwise
satisfy in any manner prior to the
40
scheduled payment thereof any Subordinated Indebtedness or (ii) amend,
modify or otherwise change any of the subordination or other provisions
of any document, instrument or agreement evidencing Subordinated
Indebtedness in a manner which adversely affects the material rights of
the Lessor Parties.
(i) ERISA. Neither Lessee nor any ERISA Affiliate shall (i)
adopt or institute any Employee Benefit Plan that is an employee
pension benefit plan within the meaning of Section 3(2) of ERISA, (ii)
take any action which will result in the partial or complete
withdrawal, within the meanings of sections 4203 and 4205 of ERISA,
from a Multiemployer Plan, (iii) engage or permit any Person to engage
in any transaction prohibited by section 406 of ERISA or section 4975
of the IRC involving any Employee Benefit Plan or Multiemployer Plan
which would subject either Lessee or any ERISA Affiliate to any tax,
penalty or other liability including a liability to indemnify, (iv)
incur or allow to exist any accumulated funding deficiency (within the
meaning of section 412 of the IRC or section 302 of ERISA), (v) fail to
make full payment when due of all amounts due as contributions to any
Employee Benefit Plan or Multiemployer Plan, (vi) fail to comply with
the requirements of section 4980B of the IRC or Part 6 of Title I(B) of
ERISA, or (vii) adopt any amendment to any Employee Benefit Plan which
would require the posting of security pursuant to section 401(a)(29) of
the IRC, where singly or cumulatively, the above would have a Material
Adverse Effect.
(j) Transactions With Affiliates. Neither Lessee nor any of
its Subsidiaries shall enter into any Contractual Obligation with any
Affiliate or engage in any other transaction with any Affiliate except
upon terms at least as favorable to Lessee or such Subsidiary as an
arms-length transaction with unaffiliated Persons.
(k) Accounting Changes. Neither Lessee nor any of its
Subsidiaries shall (i) change its fiscal year (currently October 1
through September 30) or (ii) except as required by GAAP, change its
accounting practices in any manner which would affect Lessee's
compliance with Paragraph 5.03.
(l) Capital Expenditures. Lessee and its Subsidiaries shall
not pay or incur Capital Expenditures which exceed in aggregate in any
fiscal year $50,000,000.
5.03. Lessee's Financial Covenants. Until the termination of this
Agreement and the satisfaction in full by Lessee of all Lessee Obligations,
Lessee will comply, and will cause compliance, with the following financial
covenants, unless Lessor and Required Participants shall otherwise consent in
writing:
(a) Tangible Net Worth. Lessee shall not permit its Tangible
Net Worth on the last day of any fiscal quarter (such date to be
referred to herein as a "determination date") which occurs after
December 31, 1997 (such date to be referred to herein as the "base
date") to be less than the sum on such determination date of the
following:
(i) Eighty-five percent (85%) of the Tangible Net
Worth of Lessee and its Subsidiaries on the base date;
plus
41
(ii) Seventy-five percent (75%) of the sum of
Lessee's consolidated quarterly net income (ignoring any
quarterly losses, except as otherwise provided in clause (iii)
below) for each fiscal quarter after the base date through and
including the fiscal quarter ending on the determination date;
minus
(iii) the sum of Lessee's consolidated quarterly
"in-process R & D loss" for each fiscal quarter after the base
date through and including the fiscal quarter ending on the
determination date;
plus
(iv) One hundred percent (100%) of the Net Proceeds
of all Equity Securities issued by Lessee and its Subsidiaries
(to Persons other than Lessee or its Subsidiaries) during the
period commencing on the base date and ending on the
determination date; and
As used in this Subparagraph 5.03(a), "in-process R & D loss" shall
mean, with respect to any fiscal quarter in which Lessee experiences a
consolidated net loss, the lesser of (A) the amount of such net loss
and (B) the sum of all in-process research and development charges,
determined on a consolidated basis in accordance with GAAP, taken by
Lessee and its Subsidiaries during such quarter.
(b) Leverage Ratio. Lessee shall not permit its Leverage Ratio
to be greater than 1.15 to 1.00 at any time.
(c) Quick Ratio. Lessee shall not permit its Quick Ratio on
the last day of any fiscal quarter to be less than (i) 1.00 to 1.00 for
each fiscal quarter ending on June 30, 1998 and September 30, 1998 and
(ii) 1.25 to 1.00 for each fiscal quarter thereafter.
(d) Fixed Charge Coverage Ratio. Lessee shall not permit its
Fixed Charge Coverage Ratio for any consecutive four-quarter period to
be less than 2.00 to 1.00.
5.04. Lessor's Covenants. Until the termination of this Agreement and
the satisfaction in full by Lessor of all Lessor Obligations, Lessor will
comply, and will cause compliance, with the following covenants, unless Lessee
and Required Participants shall otherwise consent in writing:
(a) Use of Proceeds. Lessor shall use the proceeds of all
amounts delivered to Lessor by Participants pursuant to Subparagraph
2.05(a) solely to fund Advances.
(b) Lessor Liens. Lessor shall not create, incur, assume or
permit to exist any Lessor Lien (other than any Lien granted to Agent
or any Participant pursuant to the Operative Documents to secure the
Lessor Obligations) and shall promptly discharge, at its sole cost and
expense, any Lessor Lien on the Property (other than any Liens granted
to Agent or any Participant pursuant to the Operative Documents to
secure the Lessor Obligations); provided, however, that Lessor shall
not be required so to discharge any
42
such Lessor Lien if the same is being (or promptly will be) contested
in good faith by appropriate proceedings diligently prosecuted,
provided that any such contest is completed and all Lessor Liens are
discharged on or prior to the Expiration Date.
(c) Property Disposition. Lessor shall not sell, lease,
transfer or otherwise dispose of its right, title and interest in the
Property and the Operative Documents except as provided in Subparagraph
2.11(b) or Subparagraph 7.05(d) hereof or in the Purchase Agreement or
after retaining the Property following the Expiration Date.
(d) Chief Executive Office. Lessor shall not change its chief
executive office without giving Agent prompt written notice.
5.05. Participants' Covenants. Each Participant covenants that it will
not fund its portion of any Advance with the assets of any "employee benefit
plan" (as defined in Section 3(3) of ERISA) which is subject to Title I of ERISA
or any "plan" (as defined in Section 4975(e)(1) of the IRC.
SECTION 6. LESSOR, AGENT AND THEIR RELATIONS WITH PARTICIPANTS.
6.01. Appointment of Agent. Each Participant hereby appoints and
authorizes Agent to act as its agent hereunder and under the other Operative
Documents with such powers as are expressly delegated to Agent by the terms of
this Agreement and the other Operative Documents, together with such other
powers as are reasonably incidental thereto. Lessor is not an agent for the
Participants or Agent, and neither this Agreement nor any other Operative
Document shall be construed to constitute or evidence a partnership among the
Lessor Parties or otherwise to impose upon Lessor or Agent any fiduciary duty.
6.02. Powers and Immunities. Neither Lessor nor Agent shall have any
duties or responsibilities except those expressly set forth in this Agreement or
in any other Operative Document, be a trustee for any Participant or have any
fiduciary duty to any Participant. Notwithstanding anything to the contrary
contained herein, neither Lessor nor Agent shall be required to take any action
which is contrary to this Agreement or any other Operative Document or any
applicable Governmental Rule. Neither Lessor nor Agent nor any Participant shall
be responsible to any Participant for any recitals, statements, representations
or warranties made by Lessee or any of its Subsidiaries contained in this
Agreement or in any other Operative Document, for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Operative Document or for any failure by Lessee or any of its
Subsidiaries to perform their respective obligations hereunder or thereunder.
Lessor and Agent may employ agents and attorneys-in-fact and shall not be
responsible to any Participant for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care. Neither Lessor
nor Agent nor any of their respective directors, officers, employees, agents or
advisors shall be responsible to any Participant for any action taken or omitted
to be taken by it or them hereunder or under any other Operative Document or in
connection herewith or therewith, except for its or their own gross negligence
or willful misconduct. Except as otherwise provided under this Agreement, Lessor
and Agent shall take such action with respect to the Operative Documents as
shall be directed by the Required Participants.
43
6.03. Reliance. Lessor or Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram, facsimile
or telex) believed by it in good faith to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by Lessor or Agent with reasonable care. As to any other
matters not expressly provided for by this Agreement, neither Lessor nor Agent
shall be required to take any action or exercise any discretion, but shall be
required to act or to refrain from acting upon instructions of the Required
Participants and shall in all cases be fully protected by the Participants in
acting, or in refraining from acting, hereunder or under any other Operative
Document in accordance with the instructions of the Required Participants, and
such instructions of the Required Participants and any action taken or failure
to act pursuant thereto shall be binding on all of the Participants.
6.04. Defaults. Neither Lessor nor Agent shall be deemed to have
knowledge or notice of the occurrence of any Default unless Lessor and Agent
have received a written notice from a Participant or Lessee, referring to this
Agreement, describing such Default and stating that such notice is a "Notice of
Default". If Lessor and Agent receive such a notice of the occurrence of a
Default, Agent shall give prompt notice thereof to the Participants. Lessor and
Agent shall take such action with respect to such Default as shall be reasonably
directed by the Required Participants; provided, however, that until Lessor and
Agent shall have received such directions, Lessor or Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the
Participants.
6.05. Indemnification. Without limiting the Obligations of Lessee
hereunder, each Participant agrees to indemnify Lessor and Agent, ratably in
accordance with such Participant's Proportionate Share, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may at
any time be imposed on, incurred by or asserted against Lessor or Agent in any
way relating to or arising out of this Agreement or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby or the enforcement of any of the terms hereof or thereof; provided,
however, that no Participant shall be liable for any of the foregoing to the
extent they arise from Lessor's or Agent's gross negligence or willful
misconduct. Lessor or Agent shall be fully justified in refusing to take or in
continuing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Participants against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The obligations of each Participant under this Paragraph 6.05 shall
survive the payment and performance of the Lessee Obligations, the termination
of this Agreement and any Participant ceasing to be a party to this Agreement
(with respect to events which occurred prior to the time such Participant ceased
to be a Participant hereunder).
6.06. Non-Reliance. Each Participant represents that it has,
independently and without reliance on Lessor, Agent, or any other Participant,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of the business, prospects, management, financial condition
and affairs of Lessee and the Subsidiaries and its own decision to enter into
this Agreement and agrees that it will, independently and without reliance upon
Lessor, Agent or any other Participant, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
appraisals and decisions in taking or not
44
taking action under this Agreement or any other Operative Document. Neither
Lessor nor Agent nor any of their respective affiliates nor any of their
respective directors, officers, employees, agents or advisors shall (a) be
required to keep any Participant informed as to the performance or observance by
Lessee or any of its Subsidiaries of the obligations under this Agreement or any
other document referred to or provided for herein or to make inquiry of, or to
inspect the properties or books of Lessee or any of its Subsidiaries; (b) have
any duty or responsibility to provide any Participant with any credit or other
information concerning Lessee or any of its Subsidiaries which may come into the
possession of Lessor or Agent, except for notices, reports and other documents
and information expressly required to be furnished to the Participants by Lessor
or Agent hereunder; or (c) be responsible to any Participant for (i) any
recital, statement, representation or warranty made by Lessee or any officer,
employee or agent of Lessee in this Agreement or in any of the other Operative
Documents, (ii) the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any Operative Document, (iii) the value or
sufficiency of the Property or the validity or perfection of any of the liens or
security interests intended to be created by the Operative Documents, or (iv)
any failure by Lessee to perform its obligations under this Agreement or any
other Operative Document.
6.07. Resignation or Removal of Agent. Agent may resign at any time by
giving thirty (30) days prior written notice thereof to Lessee and the
Participants, and Agent may be removed at any time with or without cause by the
Required Participants. Upon any such resignation or removal, the Required
Participants shall have the right to appoint a successor Agent, which Agent, if
not a Participant, shall be reasonably acceptable to Lessee; provided, however,
that Lessee shall have no right to approve a successor Agent if a Default has
occurred and is continuing. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from the duties and
obligations thereafter arising hereunder. After any retiring Agent's resignation
or removal hereunder as Agent, the provisions of this Section VI and any other
provision of this Agreement or any other Operative Document which by its terms
survives the termination of this Agreement shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
6.08. Authorization. Agent is hereby authorized by the Participants to
execute, deliver and perform, each of the Operative Documents to which Agent is
or is intended to be a party and each Participant agrees to be bound by all of
the agreements of Agent contained in the Operative Documents.
6.09. Lessor and Agent in their Individual Capacities. Lessor, Agent
and their respective affiliates may make loans to, accept deposits from and
generally engage in any kind of banking or other business with Lessee and its
Subsidiaries and affiliates as though Lessor were not Lessor hereunder and Agent
were not Agent hereunder. With respect to Advances, if any, made by Agent in its
capacity as a Participant, Agent in its capacity as a Participant shall have the
same rights and powers under this Agreement and the other Operative Documents as
any other Participant and may exercise the same as though it were not Agent, and
the terms "Participant" or "Participants" shall include Agent in its capacity as
a Participant.
45
SECTION 7. MISCELLANEOUS
7.01. Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessor, Lessee, any Participant or Agent under this Agreement or the other
Operative Documents shall be in writing and faxed, mailed or delivered, if to
Lessor, Lessee or Agent, at its respective facsimile number or address set forth
below or, if to any Participant, at the address or facsimile number specified
beneath the heading "Address for Notices" under the name of such Participant in
Part B of Schedule I (or to such other facsimile number or address for any party
as indicated in any notice given by that party to the other parties). All such
notices and communications shall be effective (a) when sent by Federal Express
or other overnight service of recognized standing, on the Business Day following
the deposit with such service; (b) when mailed, first class postage prepaid and
addressed as aforesaid through the United States Postal Service, upon receipt;
(c) when delivered by hand, upon delivery; and (d) when faxed, upon confirmation
of receipt; provided, however, that any Advance Request, Notice of Rental Period
Selection, Extension Request, Notice of Term Purchase Option Exercise, Notice of
Marketing Option Exercise or Notice of Expiration Date Purchase Option Exercise
delivered to Lessor or Agent shall not be effective until received by Lessor or
Agent.
46
Lessee: Fair, Isaac and Company, Inc.
120 North Redwood Drive
San Rafael, CA 94903-1996
Attn: Peter L. McCorkell, General Counsel
Tel. No: (415) 472-2211
Fax. No: (415) 444-5029
With copies to:
Fair, Isaac and Company, Inc.
120 North Redwood Drive
San Rafael, CA 94903-1996
Attn: Chief Financial Officer
Tel. No: (415) 472-2211
Fax. No: (415) 444-5069
Fair, Isaac and Company, Inc.
120 North Redwood Drive
San Rafael, CA 94903-1996
Attn: Treasurer
Tel. No: (415) 472-2211
Fax. No: (415) 444-5069
Lessor: Lease Plan North America, Inc.
c/o ABN AMRO Bank N.V.
135 South LaSalle Street, Suite 660
Chicago, IL 60603
Attn: David M. Shipley
Tel. No: (312) 904-2183
Fax. No: (312) 904-6217
Agent: ABN AMRO Bank N.V.
Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
Tel. No: (212) 314-1724
Fax. No: (212) 314-1712
With a copy to:
ABN AMRO Bank N.V.
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attn: Jamie Dillon
Tel. No: (415) 984-3750
47
Fax. No: (415) 362-3524
Each Advance Request, Notice of Rental Period Selection, Extension Request,
Notice of Term Purchase Option Exercise, Notice of Marketing Option Exercise and
Notice of Expiration Date Purchase Option Exercise shall be given by Lessee to
Agent's office located at its address referred to above during its normal
business hours; provided, however, that any such notice received by Agent after
10:00 a.m. on any Business Day shall be deemed received by Agent on the next
Business Day. In any case where this Agreement authorizes notices, requests,
demands or other communications by Lessee to any Lessor Party to be made by
telephone or facsimile, any Lessor Party may conclusively presume that anyone
purporting to be a person designated in any incumbency certificate or other
similar document received by such Lessor Party is such a person.
7.02. Expenses. Lessee shall pay on demand, whether or not any Advance
is made hereunder, (a) all reasonable fees and expenses, including reasonable
attorneys' fees and expenses, incurred by Lessor and Agent in connection with
the preparation, negotiation, execution and delivery of, the consummation of the
transactions contemplated by and the exercise of their duties under, this
Agreement and the other Operative Documents, and the preparation, negotiation,
execution and delivery of amendments and waivers hereunder and thereunder and
(b) all reasonable fees and expenses, including reasonable attorneys' fees and
expenses, incurred by the Lessor Parties in the enforcement or attempted
enforcement of any of the Lessee Obligations or in preserving any of the Lessor
Parties' rights and remedies (including all such fees and expenses incurred in
connection with any "workout" or restructuring affecting the Operative Documents
or the Lessee Obligations or any bankruptcy or similar proceeding involving
Lessee or any of its Subsidiaries). As used herein, the term "reasonable
attorneys' fees and expenses" shall include, without limitation, allocable costs
and expenses of Agent's and Participants' in-house legal counsel and staff. The
obligations of Lessee under this Paragraph 7.02 shall survive the payment and
performance of the Lessee Obligations and the termination of this Agreement.
7.03. Indemnification. To the fullest extent permitted by law, Lessee
agrees to protect, indemnify, defend and hold harmless, on an after-tax basis,
the Lessor Parties and the other Indemnitees from and against any and all
liabilities, losses, damages or expenses of any kind or nature (including
Indemnified Taxes) and from any suits, claims or demands (including in respect
of or for reasonable attorney's fees and other expenses) arising on account of
or in connection with any matter or thing or action or failure to act by
Indemnitees, or any of them, arising out of or relating to the Operative
Documents, any transaction contemplated thereby or the Property, including any
use by Lessee of the Property or the Advances, except to the extent such
liability arises from the willful misconduct or gross negligence of such
Indemnitee. Upon receiving knowledge of any suit, claim or demand asserted by a
third party that any Lessor Party believes is covered by this indemnity, such
Lessor Party shall give Lessee notice of the matter and an opportunity to defend
it, at Lessee's sole cost and expense, with legal counsel reasonably
satisfactory to such Lessor Party. Such Lessor Parties may also require Lessee
to defend the matter. Any failure or delay of any Lessor Party to notify Lessee
of any such suit, claim or demand shall not relieve Lessee of its obligations
under this Paragraph 7.03 but shall reduce such obligations to the extent of any
increase in those obligations caused solely by any such failure or
48
delay that is unreasonable. The obligations of Lessee under this Paragraph 7.03
shall survive the payment and performance of the Lessee Obligations and the
termination of this Agreement.
7.04. Waivers; Amendments. Any term, covenant, agreement or condition
of this Agreement or any other Operative Document may be amended or waived if
such amendment or waiver is in writing and is signed by Lessor, Lessee and the
Required Participants; provided, however that:
(a) Any amendment, waiver or consent which (i) increases the
364-Day Commitment, Thirty-Month Commitment or Total Commitment, (ii)
extends the Scheduled Expiration Date, (iii) reduces the Rental Rate or
any fees or other amounts payable for the account of the Participants
hereunder, (iv) postpones any date scheduled for any payment of Base
Rent or any fees or other amounts payable for the account of the
Participants hereunder or thereunder, (v) amends Paragraph 2.06 or this
Paragraph 7.04, (vi) amends the definition of Required Participants or
(vii) releases Lessor's interest in any substantial part of the
Property, must be in writing and signed or approved in writing by all
Participants;
(b) Any amendment, waiver or consent which increases or
decreases the Proportionate Share of any Participant must be in writing
and signed by such Participant; and
(c) Any amendment, waiver or consent which affects the rights
or obligations of Agent must be in writing and signed by Agent.
No failure or delay by any Lessor Party in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right. Unless otherwise specified in such waiver or consent, a
waiver or consent given hereunder shall be effective only in the specific
instance and for the specific purpose for which given.
7.05. Successors and Assigns.
(a) Binding Effect. This Agreement and the other Operative
Documents shall be binding upon and inure to the benefit of Lessee,
Lessor, the Participants, Agent and their respective permitted
successors and assigns. All references in this Agreement to any Person
shall be deemed to include all successors and assigns of such Person.
(b) Participant Assignments.
(i) Any Participant may, at any time, sell and assign
to any other Participant or any Eligible Assignee
(individually, an "Assignee Participant") all or a portion of
its rights and obligations under this Agreement and the other
Operative Documents (such a sale and assignment to be referred
to herein as an "Assignment") pursuant to an assignment
agreement in the form of Exhibit M (an "Assignment
Agreement"), executed by each Assignee Participant and such
assignor Participant (an "Assignor Participant") and delivered
to Agent for its acceptance and recording in the Register;
provided, however, that:
49
(A) Without the written consent of Lessor,
Agent and, if no Default has occurred and is
continuing, Lessee (which consent of Lessor, Agent
and Lessee shall not be unreasonably withheld), no
Participant may make any Assignment to any Assignee
Participant which is not, immediately prior to such
Assignment, a Participant hereunder or an Affiliate
thereof; or
(B) Without the written consent of Lessor,
Agent and, if no Default has occurred and is
continuing, Lessee (which consent of Lessor, Agent
and Lessee shall not be unreasonably withheld), no
Participant may make any Assignment to any Assignee
Participant if, after giving effect to such
Assignment, the Commitment of such Participant or
such Assignee Participant would be less than Five
Million Dollars ($5,000,000) (except that a
Participant may make an Assignment which reduces its
Commitment to zero without the written consent of
Lessor, Agent or Lessee); or
(C) Without the written consent of Lessor,
Agent and, if no Default has occurred and is
continuing, Lessee (which consent of Lessor, Agent
and Lessee shall not be unreasonably withheld), no
Participant may make any Assignment of its
Outstanding Tranche A Participation Amount or its
Outstanding Tranche B Participation Amount which does
not assign and delegate an equal pro rata interest in
(1) such Participant's Outstanding Tranche A
Participation Amount and its Outstanding Tranche B
Participation Amount, (2) such Participant's Tranche
A Percentage and its Tranche B Percentage, and (3)
such Participant's other rights, duties and
obligations relating to the Tranche A Portion and the
Tranche B Portion under this Agreement and the other
Operative Documents.
(D) Without the written consent of Lessor,
Agent and, if no Default has occurred and is
continuing, Lessee (which consent of Lessor, Agent
and Lessee shall not be unreasonably withheld), no
Tranche C Participant may make any Assignment of its
Outstanding Tranche C Participation Amount which does
not assign and delegate an equal pro rata interest in
(1) such Participant's Outstanding Tranche C
Participation Amount, (2) such Participant's Tranche
C Percentage, and (3) such Participant's other
rights, duties and obligations relating to the
Tranche C Portion under this Agreement and the other
Operative Documents.
Upon such execution, delivery, acceptance and recording of
each Assignment Agreement, from and after the Assignment
Effective Date determined pursuant to such Assignment
Agreement, (y) each Assignee Participant thereunder shall be a
Participant hereunder with a Tranche A Percentage, Tranche B
Percentage, Tranche C Percentage and Proportionate Share as
set forth on Attachment 1 to such Assignment Agreement (under
the caption "Tranche Percentages and Proportionate Shares
After Assignment") and shall have the rights, duties and
obligations of such a Participant under this Agreement and the
other Operative
50
Documents, and (z) the Assignor Participant thereunder shall
be a Participant with a Tranche A Percentage, Tranche B
Percentage, Tranche C Percentage and Proportionate Share as
set forth on Attachment 1 to such Assignment Agreement (under
the caption "Tranche Percentages and Proportionate Shares
After Assignment"), or, if the Proportionate Share of the
Assignor Participant has been reduced to 0%, the Assignor
Participant shall cease to be a Participant and to have any
obligation to fund any portion of any Advance; provided,
however, that any such Assignor Participant which ceases to be
a Participant shall continue to be entitled to the benefits of
any provision of this Agreement which by its terms survives
the termination of this Agreement. Each Assignment Agreement
shall be deemed to amend Schedule I to the extent, and only to
the extent, necessary to reflect the addition of each Assignee
Participant, the deletion of each Assignor Participant which
reduces its Proportionate Share to 0% and the resulting
adjustment of Tranche A Percentages, Tranche B Percentages,
Tranche C Percentages and Proportionate Shares arising from
the purchase by each Assignee Participant of all or a portion
of the rights and obligations of an Assignor Participant under
this Agreement and the other Operative Documents. Each
Assignee Participant which was not previously a Participant
hereunder and which is not incorporated under the laws of the
United States of America or a state thereof shall, within
three (3) Business Days of becoming a Participant, deliver to
Lessee and Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 (or successor
applicable form), as the case may be, certifying in each case
that such Participant is entitled to receive payments under
this Agreement without deduction or withholding of any United
States federal income taxes.
(ii) Agent shall maintain at its address referred to
in Paragraph 7.01 a copy of each Assignment Agreement
delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Participants and
the Tranche A Percentage, Tranche B Percentage, Tranche C
Percentage and Proportionate Share of each Participant from
time to time. The entries in the Register shall be conclusive
in the absence of manifest error, and Lessee, Agent and the
Participants may treat each Person whose name is recorded in
the Register as the owner of the interests recorded therein
for all purposes of this Agreement. The Register shall be
available for inspection by Lessee or any Participant at any
reasonable time and from time to time upon reasonable prior
notice.
(iii) Upon its receipt of an Assignment Agreement
executed by an Assignor Participant and an Assignee
Participant (and, to the extent required by clause (i) of this
Subparagraph 7.05(b), by Lessor, Agent and Lessee), together
with payment to Agent by Assignor Participant of a
registration and processing fee of $2,500, Agent shall (A)
promptly accept such Assignment Agreement and (B) on the
Assignment Effective Date determined pursuant thereto record
the information contained therein in the Register and give
notice of such acceptance and recordation to Lessor, the
Participants and Lessee. Agent may, from time to time at its
election, prepare and deliver to Lessor, the Participants and
Lessee a
51
revised Schedule I reflecting the names, addresses and
respective Proportionate Shares of all Participants then
parties hereto.
(iv) Subject to Subparagraph 7.13(g), the Lessor
Parties may disclose the Operative Documents and any financial
or other information relating to Lessee or any Subsidiary to
each other or to any potential Assignee Participant.
(c) Participant Subparticipations. Any Participant may at any
time sell to one or more banks or other financial institutions
("Subparticipants") subparticipation interests in the rights and
interests of such Participant under this Agreement and the other
Operative Documents. In the event of any such sale by a Participant of
subparticipation interests, such Participant's obligations under this
Agreement and the other Operative Documents shall remain unchanged,
such Participant shall remain solely responsible for the performance
thereof and Lessee and the other Lessor Parties shall continue to deal
solely and directly with such Participant in connection with such
Participant's rights and obligations under this Agreement. Any
agreement pursuant to which any such sale is effected may require the
selling Participant to obtain the consent of the Subparticipant in
order for such Participant to agree in writing to any amendment, waiver
or consent of a type specified in clause (i), (ii), (iii) or (iv) of
Subparagraph 7.04(a) but may not otherwise require the selling
Participant to obtain the consent of such Subparticipant to any other
amendment, waiver or consent hereunder. Lessee agrees that any
Participant which has transferred any subparticipation interest shall,
notwithstanding any such transfer, be entitled to the full benefits
accorded such Participant under Paragraph 2.12, Paragraph 2.13, and
Paragraph 2.14, as if such Participant had not made such transfer.
(d) Lessor Assignments. Lessor may, upon one (1) month's prior
written notice to Lessee and Agent, sell and assign all of its right,
title and interest in the Property and its rights, powers, privileges,
duties and obligations under this Agreement and the other Operative
Documents, provided that:
(i) If such sale and assignment is effected after
either (A) the occurrence of a Change of Law which makes it
unlawful or unreasonably burdensome for Lessor to hold legal
or beneficial title to the Property or to perform its
obligations and duties under this Agreement and the other
Operative Documents or (B) the resignation or removal of the
Agent which was the Agent at the time Lessor became the
Lessor, the purchaser/assignee (the "successor Lessor") shall
be either (1) a Participant or an Eligible Assignee that will
not cause the transaction evidenced by this Agreement and the
other Operative Documents to lose its treatment as an
operating lease under FASB 13 or (2) a Person approved as
provided in clause (ii) below; or
(ii) If such sale and assignment is effected in any
other circumstance, the successor Lessor shall be a Person
that is (A) a financial institution or a Person controlled by
a financial institution and (B) approved in writing by Agent,
Required Participants and, if no Default has occurred and is
continuing, Lessee (which consents of Agent, Required
Participants and Lessee shall not be unreasonably withheld);
and
52
(iii) The successor Lessor executes such documents,
instruments and agreements as may reasonably be necessary to
evidence its agreement to assume all of the obligations and
duties of the Lessor under this Agreement and the other
Operative Documents.
Upon the consummation of any such sale and assignment, (A) the
successor Lessor shall become the "Lessor" and shall succeed to and
become vested with all the rights, powers, privileges, duties and
obligations of the Lessor under this Agreement and the other Operative
Documents and (B) the retiring Lessor shall be discharged from the
duties and obligations of the Lessor thereafter arising under this
Agreement and the other Operative Documents. After any retiring
Lessor's discharge as the Lessor, the provisions of Section VI and any
other provision of this Agreement or any other Operative Document which
by its terms survives the termination of this Agreement shall continue
in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Lessor.
7.06. Setoff. In addition to any rights and remedies of the
Participants provided by law, each Participant shall have the right, with the
prior written consent of Agent, but without prior notice to or consent of
Lessee, any such notice and consent being expressly waived by Lessee to the
extent permitted by applicable law, upon the occurrence and during the
continuance of an Event of Default, to set-off and apply against the Lessee
Obligations, whether matured or unmatured, any amount owing from such
Participant to Lessee, at or at any time after, the occurrence of such Event of
Default. The aforesaid right of set-off may be exercised by such Participant
against Lessee or against any trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver or execution, judgment or
attachment creditor of Lessee or against anyone else claiming through or against
Lessee or such trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Participant prior to the occurrence of an Event of Default.
Each Participant agrees promptly to notify Lessee after any such set-off and
application made by such Participant, provided that the failure to give such
notice shall not affect the validity of such set-off and application.
7.07. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the parties hereto and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
7.08. Partial Invalidity. If at any time any provision of this
Agreement or any other Operative Document is or becomes illegal, invalid or
unenforceable in any respect under the law or any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions of this
Agreement or the other Operative Documents nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
7.09. JURY TRIAL. EACH OF LESSEE AND THE LESSOR PARTIES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY
53
WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING TO THE OPERATIVE
DOCUMENTS IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO ANY OPERATIVE DOCUMENT.
7.10. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
7.11. No Joint Venture, Etc. Neither this Agreement nor any other
Operative Document nor any transaction contemplated hereby or thereby shall be
construed to (a) constitute a partnership or joint venture between Lessee and
any Lessor Party or (b) impose upon any Lessor Party any agency relationship
with or fiduciary duty to Lessee.
7.12. Usury Savings Clause. Nothing contained in this Agreement or any
other Operative Documents shall be deemed to require the payment of interest or
other charges by Lessee in excess of the amount the applicable Lessor Parties
may lawfully charge under applicable usury laws. In the event any Lessor Party
shall collect monies which are deemed to constitute interest which would
increase the effective interest rate to a rate in excess of that permitted to be
charged by applicable law, all such sums deemed to constitute excess interest
shall, upon such determination, at the option of Lessor, be returned to Lessee
or credited against other Lessee Obligations.
7.13. Confidentiality. No Lessor Party shall disclose to any Person any
information with respect to Lessee or any of its Subsidiaries which is furnished
pursuant to this Agreement or under the other Operative Documents, except that
any Lessor Party may disclose any such information (a) to its own directors,
officers, employees, auditors, counsel and other advisors and to its Affiliates
to the extent reasonably determined by such Lessor Party to be necessary for the
administration or enforcement of the Operative Documents; (b) to any other
Lessor Party; (c) which is otherwise available to the public; (d) if required or
appropriate in any report, statement or testimony submitted to any Governmental
Authority having or claiming to have jurisdiction over such Lessor Party; (e) if
required in response to any summons or subpoena; (f) in connection with any
litigation among the parties relating to the Operative Documents or the
transactions contemplated thereby; (g) to comply with any Requirement of Law
applicable to such Lessor Party; (h) to any Assignee Participant or
Subparticipant or any prospective Assignee Participant or Subparticipant,
provided that such Assignee Participant or Subparticipant or prospective
Assignee Participant or Subparticipant agrees to be bound by this Paragraph
7.13; or (i) otherwise with the prior consent of Lessee; provided, however, that
(i) any Lessor Party served with any summons or subpoena demanding the
disclosure of any such information shall use reasonable efforts to notify Lessee
promptly of such summons or subpoena and, if requested by Lessee and not
materially disadvantageous to such Lessor Party, to cooperate with Lessee in
obtaining a protective order restricting such disclosure, and (ii) any
disclosure made in violation of this Agreement shall not affect the obligations
of Lessee and its Subsidiaries under this Agreement and the other Operative
Documents.
7.14. Governing Law. This Agreement and the other Operative Documents
shall be governed by the laws of the State of California. Lessee hereby
unconditionally and irrevocably
54
waives, to the fullest extent permitted by law, any claim to assert that the law
of any jurisdiction other than California governs this Agreement and the other
Operative Documents.
7.15. Consent to Jurisdiction. Lessee irrevocably submits to the
jurisdiction of: any state or federal court sitting in the state of California
over any suit, action, or proceeding, brought by Lessee against Lessor Parties,
arising out of or relating to this Agreement or the other Operative Documents;
and (b) any state court sitting in Marin County over any suit, action, or
proceeding, brought by Lessor Parties to exercise their STATUTORY POWER OF SALE
under this Agreement or any action brought by Lessor Parties to enforce their
rights with respect to the Collateral. Lessee irrevocably waives, to the fullest
extent permitted by law, any objection that Lessee may now or hereafter have to
the laying of venue of any such suit, action, or proceeding brought in any such
court and any claim that any such suit, action, or proceeding brought in any
such court has been brought in an inconvenient forum.
[The first signature page follows.]
55
IN WITNESS WHEREOF, Lessee, Lessor, the Participants and Agent have
caused this Agreement to be executed as of the day and year first above written.
LESSEE: FAIR, ISAAC AND COMPANY, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
LESSOR: LEASE PLAN NORTH AMERICA, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
AGENT: ABN AMRO BANK N.V.
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
PARTICIPANTS: ABN AMRO BANK N.V.
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
KEYBANK NATIONAL ASSOCIATION
By:______________________________________
Name:_________________________________
Title:________________________________
56
BANQUE NATIONALE de PARIS
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
FLEET NATIONAL BANK
By:______________________________________
Name:_________________________________
Title:________________________________
THE DAI-ICHI KANGO BANK, LIMITED
Los Angeles Agency
By:______________________________________
Name:_________________________________
Title:________________________________
57
SCHEDULE I
PARTICIPANTS
PART A(1)
TRANCHE PERCENTAGES AND PROPORTIONATE SHARES
PRIOR TO COMMITMENT TERMINATION DATE
- ------------------------- --------------- ------------------ -------------------- ----------------- -------------------
Participant Tranche A Tranche B Tranche C Proportionate
Percentange Percentage Percentage Share
- ------------------------- --------------- ------------------ -------------------- ----------------- -------------------
ABN AMRO Bank N.V. 13,350,000 22.49606373% 1.77666354% 0.0% 24.27272727%
- ------------------------- --------------- ------------------ -------------------- ----------------- -------------------
KeyBank National 15,000,000 25.27647610% 1.99625117% 0.0% 27.27272727%
Association
- ------------------------- --------------- ------------------ -------------------- ----------------- -------------------
Banque National de Paris 10,000,000 16.85098407% 1.33083411% 0.0% 18.18181818%
- ------------------------- --------------- ------------------ -------------------- ----------------- -------------------
Fleet National Bank 10,000,000 16.85098407% 1.33083411% 0.0% 18.18181818%
- ------------------------- --------------- ------------------ -------------------- ----------------- -------------------
The Dai-Ichi Kangyo 5,000,000 8.42549203% 0.66541706% 0.0% 9.09090909%
Bank, Limited
- ------------------------- --------------- ------------------ -------------------- ----------------- -------------------
Lease Plan North 1,650,000 0.0% 0.0% 3.0% 3.0%
America, Inc.
- ------------------------- --------------- ------------------ -------------------- ----------------- -------------------
Total 55,000,000 89.9% 7.1% 3.0% 100.0%
- ------------------------- --------------- ------------------ -------------------- ----------------- -------------------
I-1
PART A(2)
TRANCHE PERCENTAGES AND PROPORTIONATE SHARES
ON AND AFTER COMMITMENT TERMINATION DATE
- ------------------------- -------------- ----------------- ------------------ ----------------- --------------------
Participant Tranche A Tranche B Tranche C Proportionate Share
Percentange Percentage Percentage
- ------------------------- -------------- ----------------- ------------------ ----------------- --------------------
ABN AMRO Bank N.V. 13,350,000 20.89456420% 3.37816307% 0.0% 24.27272727%
- ------------------------- -------------- ----------------- ------------------ ----------------- --------------------
KeyBank National 15,000,000 23.47703843% 3.79568885% 0.0% 27.27272727%
Association
- ------------------------- -------------- ----------------- ------------------ ----------------- --------------------
Banque National de Paris 10,000,000 15.65135895% 2.53045923% 0.0% 18.18181818%
- ------------------------- -------------- ----------------- ------------------ ----------------- --------------------
Fleet National Bank 10,000,000 15.65135895% 2.53045923% 0.0% 18.18181818%
- ------------------------- -------------- ----------------- ------------------ ----------------- --------------------
The Dai-Ichi Kangyo 5,000,000 7.82567948% 1.26522962% 0.0% 9.09090909%
Bank, Limited
- ------------------------- -------------- ----------------- ------------------ ----------------- --------------------
Lease Plan North 1,650,000 0.0% 0.0% 3.0% 3.0%
America, Inc.
- ------------------------- -------------- ----------------- ------------------ ----------------- --------------------
Total 55,000,000 83.5% 13.5% 3.0% 100.0%
- ------------------------- -------------- ----------------- ------------------ ----------------- --------------------
I-2
PART B - ADDRESSES, ETC.
ABN AMRO BANK N.V.
Applicable Participating Office:
ABN AMRO Bank N.V.
San Francisco International Branch
101 California Street, Suite 4550
San Francisco, CA 94111
Address for Notices:
ABN AMRO Bank N.V.
San Francisco International Branch
101 California Street, Suite 4550
San Francisco, CA 94111
Attention: Jamie Dillon
Telephone: (415) 984-3750
Fax: (415) 362-3524
ABN AMRO North America, Inc.
Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attention: Linda Boardman
Telephone: (212) 314-1724
Fax: (212) 314-1712
Wiring Instructions:
ABN AMRO Bank N.V.
New York, New York
ABA No.: 026009580
Account Name: ABN AMRO Bank - Chicago CPU
Account No.: 650-001-1789-41
Reference: Fair, Isaac and Company, Inc. Synthetic Lease
I-3
KEYBANK NATIONAL ASSOCIATION
Applicable Participating Office:
KeyBank National Association
700 Fifth Ave., 46th Floor
Seattle, Washington 98104
Address for Notices:
KeyBank National Association
700 Fifth Ave., 46th Floor
Seattle, Washington 98104
Telephone: 206-684-6085
Fax: 206-684-6035
KeyBank National Association
431 E. Parkcenter Blvd.
Boise, Idaho 83704
Telephone: 800-297-5518
Fax: 800-297-5495
Wiring Instructions:
KeyBank National Association
Seattle, Washington
Attn: Specialty Services
ABA No. 125000574
Account No.: 01500163
Reference: Fair Isaac
I-4
BANQUE NATIONAL de PARIS
Applicable Participating Office:
Banque National de Paris
180 Montgomery Street, 3rd floor
San Francisco, CA 94104
Address for Notices:
Banque National de Paris
180 Montgomery Street, 3rd floor
San Francisco, CA 94104
Attn: William LaHerran, Vice President
Telephone: 415-956-0707
Fax: 415-296-8954
Banque National de Paris
Treasury Department
180 Montgomery Street, 3rd floor
San Francisco, CA 94104
Attn: Don Hart, Vice President
Telephone: 415-956-2511
Fax: 415-989-9041
Wiring Instructions:
Federal Reserve Bank of New York
ABA 026007689
Account name: Banque National de Paris, San Francisco
Account No.: 14334000176
Reference: Fair Isaac and Company
Attn: Peggy T.
I-5
FLEET NATIONAL BANK
Applicable Participating Office:
Fleet National Bank
One Federal Street
Boston, MA 02110
Address for Notices:
Fleet National Bank
One Federal Street
Boston, MA 02110
Attn: Mathew M. Glauninger
Telephone: 617-346-0622
Fax: 617-346-0151
Fleet National Bank
One Federal Street
Boston, MA 02110
Attn: Pauline Kowalczyk
Telephone: 617-346-0622
Fax: 617-346-0151
Wiring Instructions:
Fleet National Bank
Boston, MA
ABA 011000138
Account No.: 1510351-03156
For further credit to: Commercial Loan Wire Suspense
Reference: Fair Isaac and Company, Inc.
I-6
THE DAI-ICHI KANGYO BANK, LIMITED
Los Angeles Agency
Applicable Participating Office:
The Dai-Ichi Kango Bank Limited
Los Angeles Agency
101 California Street, Suite 4000
San Francisco, CA 94111
Address for Notices:
The Dai-Ichi Kango Bank Limited
Los Angeles Agency
101 California Street, Suite 4000
San Francisco, CA 94111
Telephone: 415-393-1813
Fax: 415-788-7868
The Dai-Ichi Kango Bank Limited
Los Angeles Agency
555 West 5th Street
Los Angeles, CA 90013
Telephone: 213-243-4774
Fax: 213-243-4896
Wiring Instructions:
The Dai-Ichi Kango Bank Limited
New York Branch
New York, NY
ABA:
Account No.: 79740111195
Attn: Credit Administration
I-7
SCHEDULE II
PRICING GRID
(For LIBOR Rental Rate or Fixed Rental Rate, when not cash-secured)
LEVERAGE RATIO PRICING APPLICABLE MARGIN
PERIOD FOR TRANCHES A & B
RATIO LEVEL LIBOR RENTAL RATE
----- ----- -----------------
More than 0.85 1 0.75%
Less than or equal to 0.85 2 1.00%
EXPLANATION
1. During any period when Agent does not have, in accordance with the Cash
Collateral Agreement, a first priority perfected security interest in
Cash Collateral with a value equal to or greater than the aggregate
Outstanding Lease Amount or any Portion thereof, the Applicable Margin
with respect to the LIBOR Rental Rate will be set for each Pricing
Period and will vary depending upon whether such period is a Level 1
Period, or a Level 2 Period.
2. Each Pricing Period will be a Level 1 Period or a Level 2 Period
depending upon Lessee's Leverage Ratio for the most recent consecutive
four-fiscal quarters ending prior to the first day of such Pricing
Period.
II-1
SCHEDULE 1.01
DEFINITIONS
"364-Day Commitment" shall have the meaning given to that term in
Subparagraph 2.03(b) of the Participation Agreement.
"364-Day Commitment Extension Fee" shall have the meaning given to that
term in Subparagraph 2.04(c) of the Participation Agreement.
"364-Day Commitment Period" shall have the meaning given to that term
in Subparagraph 2.03(b) of the Participation Agreement.
"364-Day Commitment Termination Date" shall have the meaning given to
that term in Subparagraph 2.03(b) of the Participation Agreement.
"ABN AMRO" shall mean ABN AMRO Bank N.V.
"Acquisition Advances" shall have the meaning given to that term in
Subparagraph 2.01(b) of the Participation Agreement.
"Acquisition Agreement" shall mean, in the case of the Tract 1 Land,
that certain Asset Sale Agreement, dated as of June 25, 1996, between PG&E, as
seller, and Village Builders, L.P., as buyer, as amended by the First Amendment
to Asset Sale Agreement dated as of August 15, 1997 and assigned by the
Assignment of Asset Sale Agreement between Village Builders, L.P. and Lessee,
and in the case of the Tract 2 Land, that certain Owner Participation,
Disposition and Development Agreement, dated on or about May 19, 1998, between
the San Rafael Redevelopment Agency, as seller, and Lessee, as buyer.
"Acquisition Date" shall mean the date on which Lessor acquires a Tract
of Land pursuant to the applicable Acquisition Agreement.
"Acquisition Price" shall mean, with respect to each Tract of Land, the
total purchase price payable by Lessor for such property on the Acquisition Date
thereof.
"Acquisition Request" shall have the meaning given to that term in
Subparagraph 2.03(a) of the Participation Agreement.
"Adjusted Net Income" shall mean, with respect to Lessee for any
period, the sum, determined on a consolidated basis in accordance with GAAP, of
the following:
(a) The net income or net loss of Lessee and its Subsidiaries
for such period before provision for income taxes;
plus
1.01-1
(b) The sum (to the extent deducted in calculating net income
or loss in clause (a) above) of (i) all Interest Expenses of Lessee and
its Subsidiaries accruing during such period, (ii) all rental expenses
of Lessee and its Subsidiaries accruing during such period, (iii) all
income tax expense of Lessee and its Subsidiaries payable to any
governmental authority and accruing during such period, and (iv) all
payments of principal (or, in the case of Capital Leases, synthetic
leases or other off-balance sheet financings, amounts attributable to
principal) of Indebtedness paid or scheduled to be paid by Lessee and
its Subsidiaries during such period;
plus
(c) The sum of all charges taken by Lessee and its
Subsidiaries during such period in connection with the acquisition of
in-process research and development.
"Advances" shall have the meaning given to that term in Subparagraph
2.01(b) of the Participation Agreement.
"Advance Requests" shall have the meaning given to that term in
Subparagraph 2.03(c) of the Participation Agreement.
"Affiliate" shall mean, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially or as a
trustee, guardian or other fiduciary, twenty (20%) or more of any class of
Equity Securities of such Person, (b) each Person that controls, is controlled
by or is under common control with such Person or any Affiliate of such Person
or (c) each of such Person's officers, directors, joint venturers and partners;
provided, however, that in no case shall any Lessor Party be deemed to be an
Affiliate of Lessee or any of its Subsidiaries for purposes of the Operative
Documents. For the purpose of this definition, "control" of a Person shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall mean ABN AMRO, acting in its capacity as Agent for the
Participants under the Operative Documents.
"Agent's Fee Letter" shall mean the letter agreement dated as of April
6, 1998 between Lessee and Agent regarding certain fees payable by Lessee to
Agent.
"Agent's Fees" shall have the meaning given to that term in
Subparagraph 2.04(a) of the Participation Agreement.
"Alternate Rental Rate" shall mean, for any Rental Period (or portion
thereof), the per annum rate equal to the Base Rate in effect from time to time
during such period plus the Applicable Margin, such rate to change from time
during such period as the Base Rate or Applicable Margin shall change.
"Applicable Margin" shall mean:
1.01-2
(a) Tranche A and Tranche B. With respect to the Outstanding
Tranche A Amount and Outstanding Tranche B Amount:
(i) No Cash Collateral. During any period when Agent
does not have, in accordance with the Cash Collateral
Agreement, a first priority perfected security interest in any
Cash Collateral securing the Lessee Obligations:
(A) The per annum margin which is determined
pursuant to the Pricing Grid and added to the LIBO
Rate with respect to the LIBOR Rental Rate or the
Fixed Rate with respect to the Fixed Rental Rate ; or
(B) Zero percent (0%) per annum with respect
to the Alternate Rental Rate;
(ii) Full Cash Collateral. During any period when
Agent has, in accordance with the Cash Collateral Agreement, a
first priority perfected security interest in Cash Collateral
that secures the Lessee Obligations and has a value equal to
or greater than the full Outstanding Lease Amount or any
Portion thereof:
(A) Twenty-five hundredths of one percent
(0.25%) per annum with respect to the LIBOR Rental
Rate or the Fixed Rental Rate; or
(B) Zero percent (0%) per annum with respect
to the Alternate Rental Rate; or
(iii) Partial Cash Collateral. During any period when
Agent has, in accordance with the Cash Collateral Agreement, a
first priority perfected security interest in Cash Collateral
that secures the Lessee Obligations but has a value less than
the full Outstanding Lease Amount or any Portion thereof:
(A) The per annum margin equal to the sum of
the following with respect to the LIBOR Rental Rate
or the Fixed Rental Rate:
(1) The product of (y) the per annum
margin which is determined pursuant to the
Pricing Grid and added to the LIBO Rate or
the Fixed Rate as the case may be (z) a
fraction, the numerator of which is the
remainder of the Outstanding Lease Amount or
any Portion thereof minus the value of the
Cash Collateral and the denominator of which
is the Outstanding Lease Amount or any
Portion thereof; plus
(2) The product of (y) twenty-five
hundredths of one percent (0.25%) per annum
above times (z) a fraction, the numerator of
which is the value of the Cash Collateral
and the denominator of which is the
Outstanding Lease Amount or any Portion
thereof; or
1.01-3
(B) Zero percent (0%) per annum with respect
to the Alternate Rental Rate; and
(b) Tranche C. With respect to the Outstanding Tranche C
Amount:
(i) Two and one-half percent (2.5%) per annum with
respect to the LIBOR Rental Rate; or
(ii) Two and one-half percent (2.5%) per annum with
respect to the Alternate Rental Rate;
provided, however, that each Applicable Margin set forth in subparagraphs (a)
and (b) of this definition shall be increased by two percent (2.0%) per annum on
the date an Event of Default occurs and shall continue at such increased rate
unless and until such Event of Default is waived in accordance with the
Operative Documents.
"Applicable Participating Office" shall mean, with respect to any
Participant, (a) initially, its office designated as such in Part B of Schedule
I (or, in the case of any Participant which becomes a Participant by an
assignment pursuant to Subparagraph 7.05(b) of the Participation Agreement, its
office designated as such in the applicable Assignment Agreement) and (b)
subsequently, such other office or offices as such Participant may designate to
Agent as the office at which such Participant's interest in the Lease Agreement
will thereafter be maintained and for the account of which all payments of Rent
and other amounts payable to such Participant under the Operative Documents will
thereafter be made.
"Appraisal" shall mean an appraisal of the Property or a portion
thereof in a form satisfactory to Lessee, Lessor, Agent and the Required
Participants, prepared by an independent MAI appraiser that (a) complies with
the Financial Institutions Reform, Recovery and Enforcement Act of 1989 and all
other applicable Governmental Rules and (b) is approved by Lessor, Agent and the
Required Participants (at the time such appraiser is selected).
"Appurtenant Rights" shall mean all easements and rights-of-way, strips
and gores of land, streets, ways, alleys, passages, sewer rights, water, water
courses, water rights and powers, air rights and development rights, liberties,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way
belonging, relating or pertaining to any Land or the Improvements thereto and
the reversions, remainders, and all the estates, rights, titles, interests,
property, possession, claim and demand whatsoever, both in law and in equity,
of, in and to such Land and Improvements and every part and parcel thereof, with
the appurtenances thereto.
"Assignee Participant" shall have the meaning given to that term in
Subparagraph 7.05(b) of the Participation Agreement.
"Assignment" shall have the meaning given to that term in Subparagraph
7.05(b) of the Participation Agreement.
"Assignment Agreement" shall have the meaning given to that term in
Subparagraph 7.05(b) of the Participation Agreement.
1.01-4
"Assignment Effective Date" shall have, with respect to each Assignment
Agreement, the meaning set forth therein.
"Assignment of Construction Agreements" shall have the meaning given to
that term in Subparagraph 2.11(a) of the Participation Agreement.
"Assignment of Lease" shall have the meaning given to that term in
Subparagraph 2.11(b).
"Assignor Participant" shall have the meaning given to that term in
Subparagraph 7.05(b) of the Participation Agreement.
"Assumed Appraisal" shall have the meaning given to that term in
Subparagraph 3.02(h) of the Purchase Agreement.
"Base Rate" shall mean, on any day, the greater of (a) the Prime Rate
in effect on such date and (b) the Federal Funds Rate for such day plus one-half
percent (0.50%).
"Base Rent" shall have the meaning given to that term in Subparagraph
2.03(a) of the Lease Agreement.
"Budget" shall mean the budget for the acquisition of the Property and
the New Improvements set forth on Schedule 4.01(x).
"Business Day" shall mean any day on which (a) commercial banks are not
authorized or required to close in San Francisco, California, Chicago, Illinois
or New York, New York and (b) if such Business Day is related to a LIBOR Rental
Rate, dealings in Dollar deposits are carried out in the London interbank
market.
"Capital Adequacy Requirement" shall have the meaning given to that
term in Subparagraph 2.12(d) of the Participation Agreement.
"Capital Asset" shall mean, with respect to any Person, any tangible
fixed or capital asset owned or leased (in the case of a Capital Lease) by such
Person, or any expense incurred by such Person that is required by GAAP to be
reported as a non-current asset on such Person's balance sheet.
"Capital Expenditures" shall mean, with respect to Lessee and its
Subsidiaries for any period, the sum, determined on a consolidated basis in
accordance with GAAP, of all amounts expended and indebtedness incurred or
assumed by Lessee and its Subsidiaries during such period for the acquisition of
Capital Assets (including all amounts expended and indebtedness incurred or
assumed in connection with Capital Leases).
"Capital Leases" shall mean any and all lease obligations that, in
accordance with GAAP, are required to be capitalized on the books of a lessee.
"Cash Collateral" shall mean eurodollar deposits or United States
Treasury Securities and deposit accounts held or maintained by Agent and
Participants to the extent such securities and
1.01-5
accounts are held and maintained in accordance with the Cash Collateral
Agreement and Lessor has a first priority perfected security interest therein
securing the Lessee Obligations.
"Cash Collateral Agreement" shall have the meaning given to that term
in Subparagraph 2.11(a) of the Participation Agreement.
"Cash Equivalents" shall mean, on any date:
(a) Any debt investments that mature within one year from such
date if such investments are permitted by the investment policy of
Lessee set forth in Schedule 5.02(e) to the Participation Agreement; or
(b) If the investment policy of Lessee is changed after the
date of the Participation Agreement, any debt investments that mature
within one year from such date if (i) such investments are permitted by
the most recent investment policy of Lessee and (ii) such investment
policy has been approved by Lessee's Board of Directors and by Lessor
and Required Participants.
"Casualty" shall mean any damage to, destruction of or decrease in the
value of all or any portion of any of the Property as a result of fire, flood,
earthquake or other natural cause; the actions or inactions of any Person or
Persons (whether willful or unintentional and whether or not constituting
negligence); or any other cause.
"Casualty and Condemnation Proceeds" shall mean all awards, damages,
compensation, reimbursement and other payments made or to be made to Lessee,
Lessor or Agent from any insurer, Governmental Authority or other Person (other
than Lessee or any Lessor Party) on account of any Casualty or Condemnation.
"Change of Control" shall mean (a) with respect to Lessee, the
occurrence of any of the following events: (i) any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall (A) acquire beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) of twenty-five percent (25%) or more of the
outstanding Equity Securities of Lessee entitled to vote for members of the
board of directors, or (B) acquire all or substantially all of the assets of
Lessee and its Subsidiaries taken as a whole, or (ii) during any period of
twelve (12) consecutive calendar months, individuals who are directors of Lessee
on the first day of such period ("Initial Directors") and any directors of
Lessee who are specifically approved by two-thirds of the Initial Directors and
previously-approved Directors ("Approved Directors") shall cease to constitute a
majority of the Board of Directors of Lessee before the end of such period; and
(b) with respect to Lessee's Japanese Subsidiary, Lessee shall cease to own at
least fifty-one percent (51%) of the Equity Securities of such Subsidiary except
for nominal amounts of director stock necessary to do business in Japan.
"Change of Law" shall have the meaning given to that term in
Subparagraph 2.12(b) of the Participation Agreement.
"Closing Date" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
1.01-6
"Closing Date Appraisal" shall mean, with respect to any Tract of Land,
on or as of a recent date prior to its Acquisition Date, an Appraisal that
assesses at such time the Fair Market Value of such property on such date.
"Collateral" shall mean the Property Collateral, the Cash Collateral
and all other property in which any Lessor Party has a Lien to secure any of the
Lessee Obligations.
"Commencement Date" shall have the meaning given to that term in
Subparagraph 2.02(a) of the Lease Agreement.
"Commitment" shall mean, with respect to any Participant at any time,
such Participant's Proportionate Share of the Total Commitment at such time.
"Commitment Fees" shall have the meaning given to that term in
Subparagraph 2.04(b) of the Participation Agreement.
"Commitment Period" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Commitment Termination Date" shall have the meaning given to that term
in Subparagraph 2.01(a) of the Participation Agreement.
"Completion" shall have the meaning given to that term in Subparagraph
3.05(c) of the Construction Agency Agreement. "Complete", "Completed" and
"Completion" shall have comparable meanings.
"Completion Date" shall mean the first date on which all of the
conditions set forth in Subparagraph 3.05(c) of the Construction Agency
Agreement are satisfied.
"Compliance Certificate" shall have the meaning given to that term in
Subparagraph 5.01(a) of the Participation Agreement.
"Condemnation" shall mean any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, access, occupancy or other right in
or to all or any portion of any of the Property (whether wholly or partially,
temporarily or permanently), by or on account of any actual or threatened
eminent domain proceeding or other taking of action by any Governmental
Authority or other Person having the power of eminent domain, including an
action by any such Governmental Authority or Person to change the grade of, or
widen the streets adjacent to, such Property or alter the pedestrian or
vehicular traffic flow to such Property so as to result in change in access to
such Property, or by or on account of an eviction by paramount title or any
transfer made in lieu of any such proceeding or action. A "Condemnation" shall
be deemed to have occurred on the earliest of the dates that use, access,
occupancy or other right is taken.
"Conforming Bid" shall have the meaning given to that term in
Subparagraph 3.02(c) of the Purchase Agreement.
"Construction Agency Agreement" shall have the meaning given to that
term in Subparagraph 2.01(a) of the Participation Agreement.
1.01-7
"Construction Agreements" shall have the meaning given to that term in
Paragraph 3.02 of the Construction Agency Agreement.
"Contingent Obligation" shall mean, with respect to any Person, (a) any
Guaranty Obligation of that Person; and (b) any direct or indirect obligation or
liability, contingent or otherwise, of that Person (i) in respect of any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments, (ii) as a partner or
joint venturer in any partnership or joint venture, (iii) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (iv) in respect to any Rate Contract that is not
entered into in connection with a bona fide hedging operation that provides
offsetting benefits to such Person. The amount of any Contingent Obligation
shall (subject, in the case of Guaranty Obligations, to the last sentence of the
definition of "Guaranty Obligation") be deemed equal to the maximum reasonably
anticipated liability in respect thereof, and shall, with respect to item
(b)(iv) of this definition be marked to market on a current basis.
"Contractual Obligation" of any Person shall mean, any indenture, note,
lease, loan agreement, security, deed of trust, mortgage, security agreement,
guaranty, instrument; contract, agreement or other form of contractual
obligation or undertaking to which such Person is a party or by which such
Person or any of its property is bound.
"Credit Event" shall mean the making of each Advance, the selection of
a new Rental Period or the exercise of the Marketing Option under the Purchase
Agreement.
"Current Appraisal" shall have the meaning given to that term in
Subparagraph 3.02(h) of the Purchase Agreement.
"Default" shall mean any Event of Default under the Lease Agreement or
any event or circumstance not yet constituting an Event of Default under the
Lease Agreement which, with the giving of any notice or the lapse of any period
of time or both, would become an Event of Default under the Lease Agreement.
"Defaulting Participant" shall mean a Participant which has failed to
fund its portion of any Advance which it is required to fund under the
Participation Agreement and has continued in such failure for three (3) Business
Days after written notice from Agent.
"Deposit Accounts" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Cash Collateral Agreement.
"Depositary Bank" shall have the meaning given to that term in
Paragraph 2.02 of the Cash Collateral Agreement.
"Designated Purchaser" shall have the meaning given to that term in
Subparagraph 3.02(e) of the Purchase Agreement.
1.01-8
"Dollars" and "$" shall mean the lawful currency of the United States
of America and, in relation to any payment under the Operative Documents, same
day or immediately available funds.
"Eligible Assignee" shall mean (a) a commercial bank organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political subdivision of
any such country, and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or agency
located in the United States; or (c) a Person that is (i) a Subsidiary of a
Participant, (ii) a Subsidiary of a Person of which a Participant is a
Subsidiary, or (iii) a Person of which a Participant is a Subsidiary.
"Employee Benefit Plan" shall mean any employee benefit plan within the
meaning of section 3(3) of ERISA maintained or contributed to by Lessee or any
ERISA Affiliate, other than a Multiemployer Plan.
"Environmental Laws" shall mean the Clean Air Act, 42 U.S.C. Section
7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et
seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901
et seq.; the Comprehensive Environment Response, Compensation and Liability Act
of 1980 (including the Superfund Amendments and Reauthorization Act of 1986,
"CERCLA"), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C.
Section 651; the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, 30 U.S.C.
Section 801 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f et
seq.; and all other Governmental Rules relating to the protection of human
health and the environment, including all Governmental Rules pertaining to
reporting, licensing, permitting, transportation, storage, disposal,
investigation, and remediation of emissions, discharges, releases, or threatened
releases of Hazardous Materials into the air, surface water, groundwater, or
land, or relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of Hazardous Materials.
"Environmental Reports" shall have the meaning set forth in
Subparagraph 4.01(f) of the Participation Agreement.
"Equity Securities" of any Person shall mean (a) all common stock,
preferred stock, participations, shares, partnership interests or other equity
interests in and of such Person (regardless of how designated and whether or not
voting or non-voting) and (b) all warrants, options and other rights to acquire
any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may from time to time be amended or supplemented, including any
rules or regulations issued in connection therewith.
"ERISA Affiliate" shall mean any Person which is treated as a single
employer with Lessee under Section 414 of the IRC.
1.01-9
"Event of Default" shall have the meaning given to that term in
Paragraph 5.01 of the Lease Agreement.
"Exhibit B Supplement" shall have the meaning given to that term in
Subparagraph 2.03(b) of the Participation Agreement.
"Existing Improvements" shall mean, with respect to the Land, all
Improvements existing on the Land on the Closing Date.
"Expiration Date" shall mean the earlier of (a) the Scheduled
Expiration Date under the Lease Agreement, as such date may be extended pursuant
to this Agreement, and (b) the Termination Date for the Lease Agreement, if the
Lease Agreement is terminated prior to its Scheduled Expiration Date in
accordance with its terms.
"Expiration Date Appraisal" shall mean, with respect to any Tract of
Land at any time, an Appraisal that assesses at such time the Fair Market Value
of such property on the Scheduled Expiration Date and as improved in accordance
with the Budget for the New Improvements, as such Appraisal may be revised as
contemplated by Subparagraph 5.01(h) of the Participation Agreement. Until the
first Appraisal complying with this definition is delivered, the term
"Expiration Date Appraisal" shall include the preliminary market valuation
delivered pursuant to Item F(2) of Schedule 3.01 to the Participation Agreement.
"Expiration Date Purchase Option" shall have the meaning given to that
term in Subparagraph 3.01(b) of the Purchase Agreement.
"Fair Market Value" shall mean, with respect to any of the Property or
any portion thereof, the maximum reasonable amount (not less than zero) that
would be paid in cash in an arm's-length transaction between an informed and
willing purchaser and an informed and willing seller, neither of whom is under
any compulsion to purchase or sell, for the ownership of the Property or such
portion.
"FASB 13" shall mean Financial Accounting Standards Board Statement No.
13.
"Federal Funds Rate" shall mean, for any day, the rate per annum set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board (including any
such successor publication, "H.15 (519)") for such day opposite the caption
"Federal Funds (Effective)". If on any relevant day, such rate is not yet
published in H.15 (519), the rate for such day shall be the rate set forth in
the daily statistical release designated as the Composite 3:30 p.m. Quotations
for U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor publication, the
"Composite 3:30 p.m. Quotations") for such day under the caption "Federal Funds
Effective Rate". If on any relevant day, such rate is not yet published in
either H.15 (519) or the Composite 3:30 p.m. Quotations, the rate for such day
shall be the arithmetic means, as determined by Agent, of the rates quoted to
Agent for such day by three (3) Federal funds brokers of recognized standing
selected by Agent.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
1.01-10
"Financial Statements" shall mean, with respect to any accounting
period for any Person, statements of income, shareholders' equity and cash flows
of such Person for such period, and a balance sheet of such Person as of the end
of such period, setting forth in each case in comparative form figures for the
corresponding period in the preceding fiscal year if such period is less than a
full fiscal year or, if such period is a full fiscal year, corresponding figures
from the preceding annual audit, all prepared in reasonable detail and in
accordance with GAAP.
"Fixed Charge Coverage Ratio" shall mean, with respect to Lessee for
any period, the ratio, determined on a consolidated basis in accordance with
GAAP, of:
(a) The Adjusted Net Income of Lessee and its Subsidiaries for such
period;
divided by
(b) The sum of (i) all Interest Expenses of Lessee and its Subsidiaries
accruing during such period, (ii) all rental expenses of Lessee and its
Subsidiaries accruing during such period, (iii) all current maturities of long
term Indebtedness (including, in the case of Capital Leases, amounts
attributable to current maturities of principal) paid or scheduled to be paid by
Lessee and its Subsidiaries during such period and (iv) 20% of all Indebtedness
and all synthetic leases and other off balance sheet obligations.
"Fixed Rate" shall mean, with respect to any Rental Period and Portion
for which Lessee accepts a Fixed Rate Offer pursuant to clause (iv)(D) of
Subparagraph 2.03(a) of the Lease Agreement, the weighted average per annum rate
set forth in such Fixed Rate Offer.
"Fixed Rate Acceptance" shall have the meaning given to that term in
Subparagraph 2.03(a) of the Lease Agreement.
"Fixed Rate Offer" shall have the meaning given to that term in
Subparagraph 2.03(a) of the Lease Agreement.
"Fixed Rate Quote" shall have the meaning given to that term in
Subparagraph 2.03(a) of the Lease Agreement.
"Fixed Rate Rejection" shall have the meaning given to that term in
Subparagraph 2.03(a) of the Lease Agreement.
"Fixed Rate Request" shall have the meaning given to that term in
Subparagraph 2.03(a) of the Lease Agreement.
"Fixed Rental Rate" shall mean, for any Rental Period and Portion, the
per annum rate equal to the Fixed Rate for such Rental Period, plus the
Applicable Margin, such rate to change from time to time during such period as
the Applicable Margin shall change.
"Force Majeure Events" shall mean any Acts of God, riots, civil
commotions, insurrections, wars, strikes, lockouts or other events beyond the
control of Lessee, except for (a) any such events that are known to or should be
known to Lessee on the Closing Date; (b) any such events that are caused by the
financial condition of Lessee or the failure of Lessee to make
1.01-11
any payments under any Construction Agreements, any Operative Documents or any
related agreements or (c) any events that could be remedied through the payment
of money or the exercise of other commercially reasonable efforts.
"GAAP" shall mean generally accepted accounting principles and
practices as in effect in the United States of America from time to time,
consistently applied.
"Governmental Authority" shall mean any domestic or foreign national,
state or local government, any political subdivision thereof, any department,
agency, authority or bureau of any of the foregoing, or any other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including, without limitation, the
Federal Deposit Insurance Corporation, the Federal Reserve Board, the
Comptroller of the Currency, any central bank or any comparable authority.
"Governmental Charges" shall mean taxes, levies, assessments, fees,
imposts, duties, licenses, recording charges, claims or other charges imposed by
any Governmental Authority.
"Governmental Rule" shall mean any law, rule, regulation, ordinance,
order, code, interpretation, judgment, decree, directive, guidelines, policy or
similar form of decision of any Governmental Authority.
"Guaranty Obligation" shall mean, with respect to any Person, any
direct or indirect liability of that Person with respect to any indebtedness,
lease, dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligations or any property
constituting direct or indirect security therefor, or (b) to advance or provide
funds (i) for the payment or discharge of any such primary obligation, or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor, or (c) 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 (d) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect thereof. The
amount of any Guaranty Obligation shall be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof.
"Hazardous Materials" shall mean all materials, substances and wastes
which are classified or regulated as "hazardous," "toxic" or similar
descriptions under any Environmental Law.
"Improvement/Expense Advance Request" shall have the meaning given to
that term in Subparagraph 2.03(b) of the Participation Agreement.
"Improvement/Expense Advances" shall have the meaning given to that
term in Subparagraph 2.01(a) of the Participation Agreement.
1.01-12
"Improvements" shall mean all buildings, structures, facilities,
fixtures and other improvements of every kind and description now or hereafter
located on any of the Land, including (a) all parking areas, roads, driveways,
walks, fences, walls, drainage facilities and other site improvements; (b) all
water, sanitary and storm sewer, drainage, electricity, steam, gas, telephone
and other utility equipment and facilities, all plumbing, lighting, heating,
ventilating, air-conditioning, refrigerating, incinerating, compacting, fire
protection and sprinkler, surveillance and security, public address and
communications equipment and systems, partitions, elevators, escalators, motors,
machinery, pipes, fittings and other items of equipment of every kind and
description now or hereafter located on such Land or attached to the
Improvements thereto which by the nature of their location thereon or attachment
thereto are real property under applicable law; and (c) all Modifications to
such Land or its Improvements, except for any Modifications removed by Lessee
from the Property pursuant to Subparagraph 3.10 of the applicable Lease
Agreement.
"Indebtedness" of any Person shall mean, without duplication:
(a) All obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments and all other obligations of
such Person for borrowed money (including recourse obligations of such
Person in connection with receivables and other assets sold by such
Person);
(b) All obligations of such Person for the deferred purchase
price of property or services (including obligations under letters of
credit and other credit facilities which secure or finance such
purchase price and obligations under "synthetic" leases but excluding
trade payables incurred in the ordinary course of business on ordinary
terms which are not overdue);
(c) All obligations of such Person under conditional sale or
other title retention agreements with respect to property acquired by
such Person (to the extent of the value of such property if the rights
and remedies of the seller or lender under such agreement in the event
of default are limited solely to repossession or sale of such
property);
(d) All obligations of such Person as lessee under or with
respect to Capital Leases;
(e) All non-contingent payment or reimbursement obligations of
such Person, contingent or otherwise, under or with respect to Surety
Instruments;
(f) All net obligations of such Person, contingent or
otherwise, under or with respect to Rate Contracts;
(g) All Guaranty Obligations of such Person with respect to
the obligations of other Persons of the types described in clauses (a)
- (f) above; and
(h) All obligations of other Persons of the types described in
clauses (a) - (f) above to the extent secured by (or for which any
holder of such obligations has an existing right, contingent or
otherwise, to be secured by) any Lien in any property
1.01-13
(including accounts and contract rights) of such Person, even though
such Person has not assumed or become liable for the payment of such
obligations
"Indemnified Taxes" shall mean all income taxes, stamp taxes, sales
taxes, use taxes, rental taxes, gross receipts taxes, property (tangible and
intangible) taxes, franchise taxes, excise taxes, value added taxes, turnover
taxes, withholding taxes and other taxes and Governmental Charges, together with
any and all assessments, penalties, fines, additions and interest thereon,
except:
(a) Net income taxes and franchise taxes in lieu of net income
taxes imposed on any Lessor Party by its jurisdiction of incorporation
or a jurisdiction in which it maintains an office (provided, however,
that this definition shall not be construed to prevent a payment from
being made on an after-tax basis);
(b) Any tax or other Governmental Charge that has not become a
Lien on any of the Property and that Lessee is contesting pursuant to
Paragraph 3.12 of the Lease Agreement (but only while Lessee is so
contesting such tax or Governmental Charge); or
(c) Any tax or other Governmental Charge that is imposed upon
an Indemnitee primarily as a result of the gross negligence or willful
misconduct of such Indemnitee itself (as opposed to gross negligence or
willful misconduct imputed to such Indemnitee), but not taxes or other
Governmental Charges imposed as a result of ordinary negligence of such
Indemnitee.
"Indemnitees" shall mean the Lessor Parties and their Affiliates and
their respective directors, officers, employees, agents, attorneys and advisors.
"Indemnity Amount" shall have the meaning given to that term in
Subparagraph 3.02(g) of the Purchase Agreement.
"Initial Acquisition Advance" shall have the meaning given to the term
in Subparagraph 2.03(a) of the Participation Agreement.
"Initial Bid" shall have the meaning given to that term in Subparagraph
3.02(b) of the Purchase Agreement.
"Initial Marketing Period" shall have the meaning given to that term in
Subparagraph 3.02(b) of the Purchase Agreement.
"Insurance Requirements" shall mean all terms, conditions and
requirements imposed by the policies of insurance which Lessee is required to
maintain by the Operative Documents.
"Interest Expenses" shall mean, with respect to Lessee and its
Subsidiaries for any period, the sum, determined on a consolidated basis in
accordance with GAAP, of (a) all interest accrued on the Indebtedness of Lessee
and its Subsidiaries during such period (including interest attributable to
Capital Leases, synthetic leases and other off-balance sheet financings) and (b)
all letter of credit fees payable by Lessee and its Subsidiaries accrued during
such period.
1.01-14
"Investment" of any Person shall mean any loan or advance of funds by
such Person to any other Person (other than advances to employees of such Person
for moving and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business), any purchase or other acquisition of any Equity
Securities or Indebtedness of any other Person, any capital contribution by such
Person to or any other investment by such Person in any other Person (including
any Guaranty Obligations of such Person and any indebtedness of such Person of
the type described in clause (h) of the definition of "Indebtedness" on behalf
of any other Person); provided, however, that Investments shall not include (a)
accounts receivable or other indebtedness owed by customers of such Person which
are current assets and arose from sales of inventory in the ordinary course of
such Person's business or (b) prepaid expenses of such Person incurred and
prepaid in the ordinary course of business.
"IRC" shall mean the Internal Revenue Code of 1986.
"Issues and Profits" shall mean all present and future rents,
royalties, issues, profits, receipts, revenues, income, earnings and other
benefits accruing from any of the Land, Improvements or Appurtenant Rights
(whether in the form of accounts, chattel paper, instruments, documents,
investment property, general intangibles or otherwise) including all rents and
other amounts payable pursuant to any Subleases.
"Land" shall mean all lots, pieces, tracts or parcels of land described
in Exhibit A to the Lease Agreement and leased by Lessee pursuant to the Lease
Agreement.
"Lease Agreement" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Lease Extension Request" shall have the meaning given to that term in
Subparagraph 2.09(b) of the Participation Agreement.
"Lease Reduction Payments" shall mean each of the following to the
extent applied to reduce the Outstanding Lease Amount or any Portion thereof
pursuant to the Operative Documents:
(a) Casualty and Condemnation Proceeds;
(b) The purchase price paid for the Property (or any portion
thereof) by Lessee, an Assignee Purchaser or a Designated Purchaser
pursuant to the Purchase Agreement;
(c) The Residual Value Guaranty and Indemnity Amount paid by
Lessee pursuant to the Purchase Agreement;
(d) Any proceeds received by Lessee from any sale of the
Property after the Expiration Date if such Property is retained by
Lessor after such Expiration Date pursuant to the applicable Purchase
Agreement; and
1.01-15
(e) Any proceeds received by any Lessor Party from the
exercise of any of its remedies under the Operative Documents after the
occurrence of an Event of Default under the Lease Agreement.
"Lessee" shall mean Fair Isaac and Company, Inc., acting in its
capacity as Lessee under the Operative Documents.
"Lessee Obligations" shall mean and include all liabilities and
obligations owed by Lessee to any Lessor Party under any of the Operative
Documents of every kind and description and however arising (whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising), including the obligation of Lessee to pay Rent, to pay the
Residual Value Guaranty Amount, Indemnity Amount and/or Outstanding Lease Amount
or any Portion thereof and to pay all interest, fees, charges, expenses,
attorneys' fees and accountants' fees chargeable to Lessee or payable by Lessee
under the Operative Documents.
"Lessee Security Documents" shall mean and include the Lease Agreement,
the Cash Collateral Agreement, the Assignment of Construction Agreements, and
all other instruments, agreements, certificates, opinions and documents
(including Uniform Commercial Code financing statements and fixture filings and
landlord waivers) delivered to any Lessor Party in connection with any
Collateral or to secure the Lessee Obligations.
"Lessor" shall mean Lease Plan North America, Inc. , acting in its
capacity as Lessor under the Operative Documents.
"Lessor Deed of Trust" shall have the meaning given to that term in
Subparagraph 2.11(b) of the Participation Agreement.
"Lessor Liens" shall mean any Liens or other interests in any of the
Property of any Person other than Lessee or a Lessor Party arising as a result
of (a) any transfer or assignment by Lessor to such Person of any of Lessor's
interests in such Property in violation of any of the Operative Documents or (b)
any claim against Lessor by any such Person unrelated to any of the Operative
Documents or the transactions contemplated thereby. (Lessor Liens shall include
Liens granted by Lessor to Agent or any Participant to secure the Lessor
Obligations.)
"Lessor Obligations" shall mean and include all liabilities and
obligations owed by Lessor to Agent or any Participant under any of the
Operative Documents of every kind and description and however arising (whether
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising), including the obligation of Lessor to share payments made
by Lessee to Lessor under the Operative Documents as provided in Paragraph 2.06
of the Participation Agreement.
"Lessor Parties" shall mean Lessor, the Participants and Agent.
"Lessor Security Agreement" shall have the meaning given to that term
in Subparagraph 2.11(b) of the Participation Agreement.
"Leverage Ratio" shall mean, with respect to Lessee and its
Subsidiaries at any time, the ratio, determined on a consolidated basis in
accordance with GAAP, of (a) total liabilities,
1.01-16
including all Indebtedness of Lessee and its Subsidiaries at such time as
reflected on Lessee's balance sheet plus the total amount of all synthetic
leases and other off balance sheet obligations of Lessee and its Subsidiaries to
(b) the Tangible Net Worth of Lessee and its Subsidiaries at such time.
"LIBO Rate" shall mean, with respect to any Rental Period and Portion,
a rate per annum equal to the quotient (rounded upward if necessary to the
nearest 1/100 of one percent) of (a) the arithmetic mean (rounded up if
necessary to the nearest 1/16 of one percent) of the rates per annum appearing
on the Telerate Page 3750 (or any successor publication) on the second Business
Day prior to the first day of such Rental Period, at or about 11:00 A.M. (London
time) (for delivery on the first day of such Rental Period for a term comparable
to such Rental Period, (or for a term of one (1) month for any Rental Period
that is less than one (1) month but is at least seven (7 days), divided by (b)
one minus the Reserve Requirement in effect from time to time. If for any reason
rates are not available as provided in clause (a) of the preceding sentence, the
rate to be used in clause (a) shall be, the rate per annum at which Dollar
deposits are offered to ABN AMRO by prime banks in the London interbank market
on the second Business Day prior to the first day of such Rental Period at or
about 11:00 A.M. (London time) (for delivery on the first day of such Interest
Period) in an amount substantially equal to ABN AMRO's Proportionate Share of
the applicable Portion and for a term comparable to such Rental Period (or for a
term of one (1) month for any Rental Period that is less than one (1) month but
is at least seven (7) days. The LIBO Rate shall be adjusted automatically as of
the effective date of any change in the Reserve Requirement.
"LIBOR Rental Rate" shall mean, for any Rental Period and Portion, the
per annum rate equal to the LIBO Rate for such Rental Period and Portion, plus
the Applicable Margin, such rate to change from time to time during such period
as the Applicable Margin shall change.
"Lien" shall mean, with respect to any property, any security interest,
mortgage, pledge, lien, charge or other encumbrance in, of, or on such property
or the income therefrom, including the interest of a vendor or lessor under a
conditional sale agreement, Capital Lease, "synthetic" lease or other title
retention agreement, or any agreement to provide any of the foregoing, and the
filing of any financing statement or similar instrument under the Uniform
Commercial Code or comparable law of any jurisdiction.
"Line Item" shall mean each line item set forth in the Budget.
"Major Casualty" shall mean, with respect to the Property, any Casualty
affecting such Property where (a) the damage to such Property is treated by any
insurer of such Property as a total loss; (b) such Property cannot reasonably be
repaired and restored to the condition in which it existed immediately prior to
such Casualty; or (c) the reasonably anticipated cost to repair and restore such
Property to the condition in which it existed immediately prior to such Casualty
would exceed twenty-five percent (25%) of the Outstanding Lease Amount or any
Portion thereof.
"Major Condemnation" shall mean, with respect to the Property, any
Condemnation affecting such Property where (a) all or substantially all of such
Property is taken by such Condemnation; (b) such Property cannot reasonably be
repaired and restored to the condition in
1.01-17
which it existed immediately prior to such Condemnation; or (c) the reasonably
anticipated cost to repair and restore such Property to the condition in which
it existed immediately prior to such Condemnation would exceed twenty-five
percent (25%) of the Outstanding Lease Amount or any Portion thereof.
"Majority Participants" shall mean (a) at any time the aggregate
Outstanding Lease Amount or any Portion thereof is greater than $0, Participants
whose aggregate Outstanding Participation Amounts equal or exceed fifty percent
(50%) of the aggregate Outstanding Lease Amount or any Portion thereof at such
time and (b) at any time the aggregate Outstanding Lease Amount or any Portion
thereof is $0, Participants whose Proportionate Shares equal or exceed fifty
percent (50%).
"Margin Stock" shall have the meaning given to that term in Regulation
U issued by the Federal Reserve Board, as amended from time to time, and any
successor regulation thereto.
"Marketing Option" shall have the meaning given to that term in
Subparagraph 3.01(a) of the Purchase Agreement.
"Marketing Option Event of Default" shall mean any Event of Default
other than a Non-Marketing Option Event of Default.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, assets, operations or financial or other condition of Lessee and
its Subsidiaries, taken as a whole; (b) the ability of Lessee to pay or perform
the Lessee Obligations when due in accordance with the terms of the Operative
Documents; (c) the rights and remedies of any Lessor Party under the Operative
Documents or any related document, instrument or agreement; or (d) the value of
the Property and the Collateral, any Lessor Party's security interests, Liens or
other rights in the Property and the Collateral or the perfection or priority of
such security interests, Liens or rights.
"Material Casualty" shall mean any Casualty to the Property that alone,
or in combination with any prior Casualties to the Property for which repairs to
restore the Property to its prior condition have not been completed, will
require repairs costing $1,000,000 or more to restore the Property to its prior
condition.
"Maturity" shall mean, with respect to any Rent, interest, fee or other
amount payable by Lessee under the Operative Documents, the date such Rent,
interest, fee or other amount becomes due, whether upon the stated maturity or
due date, upon acceleration or otherwise.
"Modifications" shall have the meaning given to that term in
Subparagraph 3.01(c) of the Lease Agreement.
"Multiemployer Plan" shall mean any multiemployer plan within the
meaning of section 3(37) of ERISA maintained or contributed to by Lessee or any
ERISA Affiliate.
"Net Proceeds" shall mean, with respect to any issuance of Equity
Securities by Lessee or any of its Subsidiaries, the aggregate consideration
received by Lessee or such Subsidiary from such issuance less the sum of the
actual amount of the reasonable fees and commissions payable to Persons other
than Lessee or any Affiliate of Lessee and the other reasonable costs and
1.01-18
expenses (including reasonable legal expenses) directly related to such issuance
that are to be paid by Lessee or any of its Subsidiaries.
"New Improvements" shall mean, with respect to the Land, all new
Improvements to the Land contemplated by the Plans and Specifications.
"Non-Marketing Option Event of Default" shall mean:
(a) An Event of Default under Subparagraph 5.01(m) of the
Lease Agreement; or
(b) An Event of Default under Subparagraph 5.01(c) of the
Lease Agreement resulting from Lessee's failure to start and complete
the construction of the New Improvements in accordance with the
Construction Agency Agreement where such failure is caused solely by a
Force Majeure Event.
"Notice of Expiration Date Purchase Option Exercise" shall have the
meaning given to that term in Paragraph 3.01 of the Purchase Agreement.
"Notice of Marketing Option Exercise" shall have the meaning given to
that term in Paragraph 3.01 of the Purchase Agreement.
"Notice of Rental Period Selection" shall have the meaning given to
that term in Subparagraph 2.03(a) of the Lease Agreement.
"Notice of Term Purchase Option Exercise" shall have the meaning given
to that term in Subparagraph 2.01(a) of the Purchase Agreement.
"Operative Documents" shall mean and include the Participation
Agreement, the Lease Agreement, the Construction Agency Agreement, the Purchase
Agreement, the Lessee Security Documents, the Lessor Deed of Trust, the Lessor
Security Agreement, the Assignment of Lease, the Acquisition Agreements, the
PG&E Agreements and the Agent's Fee Letter; all other notices, requests,
certificates, documents, instruments and agreements delivered to any Lessor
Party pursuant to Paragraph 3.01 or 3.02 of the Participation Agreement; and all
notices, requests, certificates, documents, instruments and agreements delivered
to any Lessor Party in connection with any of the foregoing on or after the date
of the Participation Agreement. (Without limiting the generality of the
preceding definition, the term "Operative Documents" shall include all written
waivers, amendments and modifications to any of the notices, requests,
certificates, documents, instruments and agreements referred to therein.)
"Outside Completion Date" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Outstanding Lease Amount or any Portion thereof" shall mean, on any
date, the remainder of (a) the sum of all Advances made by Lessor on or prior to
such date, minus (b) the sum of all Lease Reduction Payments applied by Lessor
on or prior to such date.
1.01-19
"Outstanding Participation Amount" shall mean, with respect to any
Participant on any date, the remainder of (a) the sum of the portions of all
Advances funded by such Participant on or prior to such date, minus (b) the sum
of such Participant's share of all Lease Reduction Payments applied to the
Outstanding Lease Amount or any Portion thereof on or prior to such date.
"Outstanding Tranche A Participation Amount" shall mean, with respect
to any Tranche A Participant on any date, the remainder of (a) such
Participant's Tranche A Portion of all Advances made by Lessor on or prior to
such date, minus (b) such Participant's share of all Lease Reduction Payments
applied to the Tranche A Portion of the Advances on or prior to such date.
"Outstanding Tranche B Participation Amount" shall mean, with respect
to any Tranche B Participant on any date, the remainder of (a) such
Participant's Tranche B Portion of all Advances made by Lessor on or prior to
such date, minus (b) such Participant's share of all Lease Reduction Payments
applied to the Tranche B Portion of the Advances on or prior to such date.
"Outstanding Tranche C Participation Amount" shall mean, with respect
to any Tranche C Participant on any date, the remainder of (a) such
Participant's Tranche C Portion of all Advances made by Lessor on or prior to
such date, minus (b) such Participant's share of all Lease Reduction Payments
applied to the Tranche C Portion of the Advances on or prior to such date.
"Participants" shall mean the financial institutions from time to time
listed in Schedule I to the Participation Agreement (as amended from time to
time pursuant to Subparagraph 7.05(b) of the Participation Agreement or
otherwise), acting in their capacities as Participants under the Operative
Documents.
"Participation Agreement" shall mean the Participation Agreement, dated
as of May __, 1998 among Lessee and the Lessor Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Improvement Costs" shall mean all reasonable costs and
expenses necessary for the construction of the New Improvements to the Land (not
including the costs of the Land, the Existing Improvements and the other
Property to be acquired for the Acquisition Price paid by Lessor for the Land
and the other initial Property on the Closing Date), including:
(a) All reasonable costs and expenses of building supplies and
materials necessary for the construction of the New Improvements;
(b) All reasonable costs and expenses of architects,
engineers, contractors and other Persons providing labor and services
necessary for the construction of the New Improvements;
(c) All reasonable costs and expenses of performance and other
bonds and other insurance necessary for the construction of the New
Improvements; and
(d) All Base Rent accruing during the Commitment Period.
1.01-20
"Permitted Indebtedness" shall have the meaning given to that term in
Subparagraph 5.02(a) of the Participation Agreement.
"Permitted Liens" shall have the meaning given to that term in
Subparagraph 5.02(b) of the Participation Agreement.
"Permitted Property Liens" shall have the meaning given to that term in
Subparagraph 3.07(a) of the Lease Agreement.
"Permitted Transaction Expenses" shall mean the following costs and
expenses to the extent payable by Lessee in connection with and directly related
to the preparation, execution and delivery of the Operative Documents and the
transactions contemplated thereby:
(a) The reasonable fees and expenses of counsel for Lessee
incurred in connection with the preparation, negotiation, execution and
delivery of the Operative Documents;
(b) The reasonable fees and expenses of counsel for each of
Lessor and Agent incurred in connection with the preparation,
negotiation, execution and delivery of the Operative Documents;
(c) The reasonable fees and expenses incurred in recording,
registering or filing any of the Operative Documents;
(d) The title fees, premiums and escrow costs and other
expenses relating to title insurance and the closing of the
transactions contemplated by the Operative Documents;
(e) The reasonable fees and expenses of required environmental
audits and appraisals;
(f) The reasonable fees and expenses of consultants and
accountants for Lessee;
(g) The reasonable fees and expenses for surveys; and
(h) Other related reasonable fees and expenses.
"Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, an
unincorporated association, a limited liability company, a joint venture, a
trust or other entity or a Governmental Authority.
"Personal Property Collateral" shall have the meaning given to that
term in Subparagraph 2.07(b) of the Lease Agreement.
"PG&E" shall mean Pacific Gas and Electric Company, a California
corporation.
1.01-21
"PG&E Agreements" shall mean each of (i) the Acquisition Agreement
relating to the Tract 1 Land, (ii) Grant Deed between PG&E, as grantor, and
Lessor, as grantee, conveying fee title to the Tract 1 Land, (iii) the Amended
and Restated Environmental Agreement between PG&E and Lessor, which also shall
be executed by Lessee, (iv) the License Agreement between PG&E and Lessor; and
(v) the Agreement Regarding Development Within Nonexclusive Easements between
PG&E and Lessor and any other agreements relating to such agreements or
delivered in connection with such agreements..
"Plans and Specifications" shall mean the final architectural,
engineering and construction plans, specifications and drawings for the New
Improvements to be constructed on the Land delivered to Lessor pursuant to
Subparagraph 5.01(h) of the Participation Agreement, including, if applicable,
all civil plans, landscaping plans, and plans for the exterior and interior of
structures, as such plans, specifications and drawings may thereafter be
revised, amended, supplemented or modified pursuant to Paragraph 3.01 of the
Construction Agency Agreement.
"Portion" shall mean a portion of the Outstanding Lease Amount. If, at
any time, Lessee has not elected to divide the Outstanding Lease Amount into two
or more portions, any reference to a Portion shall mean the total Outstanding
Lease Amount at such time.
"Pricing Grid" shall mean the Pricing Grid as set forth on Schedule II
to the Participation Agreement.
"Prime Rate" shall mean the per annum rate publicly announced by ABN
AMRO from time to time at its Chicago Office. The Prime Rate is determined by
ABN AMRO from time to time as a means of pricing credit extensions to some
customers and is neither directly tied to any external rate of interest or index
nor necessarily the lowest rate of interest charged by ABN AMRO at any given
time for any particular class of customers or credit extensions. Any change in
the Base Rate resulting from a change in the Prime Rate shall become effective
on the Business Day on which each change in the Prime Rate occurs.
"Property" shall have the meaning given to that term in Paragraph 2.01
of the Lease Agreement.
"Property Collateral" shall have the meaning given to that term in
Subparagraph 2.11(a) of the Participation Agreement.
"Proportionate Share" shall mean, with respect to each Participant, the
percentage set forth under the caption "Proportionate Share" opposite such
Participant's name on Part A of Schedule I, or, if changed, such percentage as
may be set forth for such Participant in the Register. The Proportionate Share
of each Participant shall equal the sum of such Participant's Tranche A
Proportionate Share, Tranche B Proportionate Share and Tranche C Proportionate
Share.
"Purchase Agreement" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Purchase Documents" shall have the meaning given to that term in
Subparagraph 4.01(a) of the Purchase Agreement.
1.01-22
"Purchaser" shall have the meaning given to that term in Subparagraph
4.01(a) of the Purchase Agreement.
"Quick Ratio" shall mean, with respect to Lessee at any time, the
ratio, determined on a consolidated basis in accordance with GAAP, of:
(a) The remainder of (i) the sum (without duplication) of all
cash, Cash Equivalents and net accounts receivable of Lessee and its
Subsidiaries at such time, minus (ii) the sum (without duplication) of
all such cash, Cash Equivalents and net accounts receivable that are
subject to a Lien or are otherwise restricted, provided that unless an
Event of Default has occurred and is continuing, Cash Equivalents held
pursuant to the Cash Collateral Agreement shall not be deemed to be
subject to a Lien or otherwise restricted;
to
(b) Current liabilities of Lessee and its Subsidiaries,
determined in accordance with GAAP, plus to the extent not included in
current liabilities, the principal amount of all Indebtedness
outstanding under revolving credit facilities and 20% of all synthetic
lease obligations and other off balance sheet obligations due within
one year.
"Rate Contracts" shall mean swap agreements (as that term is defined in
Section 101 of the Federal Bankruptcy Reform Act of 1978, as amended) and any
other agreements or arrangements designed to provide protection against
fluctuations in interest or currency exchange rates.
"Real Property Collateral" shall have the meaning given to that term in
Subparagraph 2.07(a) of the Lease Agreement.
"Register" shall have the meaning given to that term in Subparagraph
7.05(b) of the Participation Agreement.
"Related Agreements" shall mean all chattel paper, accounts,
instruments, documents, investment property and general intangibles relating to
any of the Land, Improvements or Appurtenant Rights or to the present or future
development, construction, operation or use of any of the Land, Improvements or
Appurtenant Rights, including (a) all plans, specifications, construction
agreements, maps, surveys, studies, books of account, records, files, insurance
policies, guarantees and warranties relating to such Land or Improvements or to
the present or future development, construction, operation or use of such Land,
Improvements or Appurtenant Rights (including the Construction Agreements and
the Plans and Specifications); (b) all architectural, engineering, construction
and management contracts, all supply and service contracts for water, sanitary
and storm sewer, drainage, electricity, steam, gas, telephone and other
utilities relating to such Land, Improvements or Appurtenant Rights or to the
present or future development, construction, operation or use of such Land,
Improvements or Appurtenant Rights; and (c) all computer software and
intellectual property, guaranties and warranties, letters of credit, and
documents relating to such Land, Improvements or Appurtenant Rights or to the
present or future development, construction, operation or use of such Land,
Improvements or Appurtenant Rights.
1.01-23
"Related Goods" shall mean:
(a) All machinery, furniture, equipment, fixtures and other
goods and tangible personal property (including construction materials
and supplies) financed by any Advance, including all such property
described in Exhibit B to the Lease Agreement and in each Exhibit B
Supplement delivered by Lessee; and
(b) All machinery, equipment, fixtures and other goods and
tangible personal property (including construction materials and
supplies) now or hereafter intended for the construction,
reconstruction, repair, replacement, alteration, addition or
improvement of or to any of the Improvements or any other Related
Goods.
"Related Permits" shall mean all licenses, authorizations,
certificates, variances, consents, approvals and other permits, now or hereafter
pertaining to any of the Land, Improvements or Appurtenant Rights and all
tradenames or business names relating to any of the Land, Improvements or
Appurtenant Rights or the present or future development, construction, operation
or use of any of the Land, Improvements or Appurtenant Rights.
"Rent" shall mean collectively Base Rent and Supplemental Rent.
"Rental Period" shall have the meaning given to that term in
Subparagraph 2.03(a) of the Lease Agreement.
"Rental Rate" shall have the meaning given to that term in Subparagraph
2.03(a) of the Lease Agreement.
"Repair and Restoration Account" shall have the meaning given to that
term in Subparagraph 3.04(c) of the Lease Agreement.
"Reportable Event" shall have the meaning given to that term in ERISA
and applicable regulations thereunder.
"Required Participants" shall mean (a) at any time the aggregate
Outstanding Lease Amount or any Portion thereof is greater than $0, Participants
whose aggregate Outstanding Participation Amounts equal or exceed sixty-six and
two-thirds percent (66-2/3%) or more of the aggregate Outstanding Lease Amount
or any Portion thereof at such time and (b) at any time the aggregate
Outstanding Lease Amount or any Portion thereof is $0, Participants whose
Proportionate Shares equal or exceed sixty-six and two-thirds percent (66-2/3%).
"Requirement of Law" applicable to any Person shall mean (a) the
Articles or Certificate of Incorporation and By-laws, Partnership Agreement or
other organizational or governing documents of such Person, (b) any Governmental
Rule applicable to such Person, (c) any license, permit, approval or other
authorization granted by any Governmental Authority to or for the benefit of
such Person or (d) any judgment, decision or determination of any Governmental
Authority or arbitrator, 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.
1.01-24
"Reserve Requirement" shall mean, with respect to any day in any Rental
Period, the aggregate of the reserve requirement rates (expressed as a decimal)
in effect on such day for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Federal Reserve Board)
maintained by a member bank of the Federal Reserve System. As used herein, the
term "reserve requirement" shall include, without limitation, any basic,
supplemental or emergency reserve requirements imposed on any Participant by any
Governmental Authority.
"Residual Value Guaranty Amount" shall have the meaning given to that
term in Subparagraph 3.02(g) of the Purchase Agreement.
"Scheduled Expiration Date" shall have the meaning given to that term
in Subparagraph 2.02(a) of the Lease Agreement.
"Scheduled Rent Payment Date" shall have the meaning given to that term
in Subparagraph 2.03(a) of the Lease Agreement.
"Secondary Marketing Period" shall have the meaning given to that term
in Subparagraph 3.02(b) of the Purchase Agreement.
"Seller" shall mean, respect to the Tract 1 Land, PG&E, and with
respect to the Tract 2 Land, the City of San Rafael, California.
"Solvent" shall mean, with respect to any Person on any date, that on
such date (a) the fair value of the property of such Person is greater than the
fair value of the liabilities (including, without limitation, contingent
liabilities) of such Person, (b) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute an unreasonably small capital.
"Subleases" shall mean all leases and subleases of any of the Land,
Improvements and/or Appurtenant Rights by Lessee as lessor or sublessor, now or
hereafter in effect, whether or not of record, including all guaranties and
security therefor and the right to bring actions and proceedings thereunder or
for the enforcement thereof and to do anything which Lessee is or may become
entitled to do thereunder.
"Subordinated Indebtedness" shall mean Indebtedness which is unsecured
and subordinated to the Lessee Obligations on terms acceptable to Lessor and the
Required Participants.
"Subparticipants" shall have the meaning given to that term in
Subparagraph 7.05(c) of the Participation Agreement.
"Subsidiary" of any Person shall mean (a) any corporation of which more
than 50% of the issued and outstanding Equity Securities having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of
1.01-25
any other class or classes of such corporation shall or might have voting power
upon the occurrence of any contingency) is at the time directly or indirectly
owned or controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries, (b) any
partnership, joint venture, or other Person of which more than 50% of the equity
interest having the power to vote, direct or control the management of such
partnership, joint venture, business trust or other Person is at the time owned
and controlled by such Person, by such Person and one or more of the other
Subsidiaries or by one or more of such Person's other Subsidiaries or (c) any
other Person included in the Financial Statements of such Person on a
consolidated basis.
"Sub-Tract Parcel" shall have the meaning set forth ine Paragraph 2.02
of the Purchase Agreement.
"Supplemental Rent" shall have the meaning given to such term in
Subparagraph 2.03(b) of the Lease Agreement.
"Surety Instruments" shall mean all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"Tangible Net Worth" shall mean, with respect to Lessee and its
Subsidiaries at any time, the remainder at such time, determined on a
consolidated basis in accordance with GAAP, of (a) the total assets of Lessee
and its Subsidiaries minus (b) the sum (without limitation and without
duplication of deductions) of (i) the total liabilities of Lessee and its
Subsidiaries, (ii) all reserves established by Lessee and its Subsidiaries for
anticipated losses and expenses (to the extent not deducted in calculating total
assets in clause (a) above), and (iii) all intangible assets of Lessee and its
Subsidiaries (to the extent included in calculating total assets in clause (a)
above), including, without limitation, goodwill (including any amounts, however
designated on the balance sheet, representing the cost of acquisition of
businesses and investments in excess of underlying tangible assets), trademarks,
trademark rights, trade name rights, copyrights, patents, patent rights,
licenses, unamortized debt discount, marketing expenses, organizational
expenses, non-compete agreements and deferred research and development.
"Term" shall mean the period beginning on the Commencement Date of the
Lease Agreement and ending on the Expiration Date of the Lease Agreement.
"Termination Date" shall mean (a) the date set forth in a Notice of
Term Purchase Option as the Scheduled Rent Payment Date on which the Lease
Agreement will be terminated by Lessee pursuant to Paragraph 4.01 of the Lease
Agreement and the Property will be purchased by Lessee pursuant to Section II of
the Purchase Agreement or (b) the date set forth in a written notice delivered
by Lessor to Lessee pursuant to Subparagraph 5.03(a) or 5.04(a) of the Lease
Agreement after the occurrence of an Event of Default thereunder as the date on
which the Lease Agreement will be terminated.
"Term Purchase Option" shall have the meaning given to that term in
Paragraph 2.01 of the Purchase Agreement.
"Thirty-Month Commitment" shall have the meaning given to that term in
Subparagraph 2.01(b) of the Participation Agreement.
1.01-26
"Total Commitment" shall mean the amount set forth as such in
Subparagraph 2.01(b) of the Participation Agreement or, if such amount is
reduced pursuant to Subparagraph 2.08(a) of the Participation Agreement, the
amount to which so reduced.
"Tract" shall mean:
(a) With respect to any land, the lots, pieces, parcels and
tracts of land described in each Part of Exhibit A to the Lease
Agreement or Exhibit A to the Participation Agreement, as the case may
be; and
(b) With respect to any Property, a tract of land, together
with all Property related to such tract of land.
"Tract 1 Land" and "Tract 2 Land" shall mean the lots, pieces, parcels
and tracts of land described in Part 1 and Part 2, respectively, of Exhibit A to
the Participation Agreement.
"Tract 2 Acquisition Advance" shall have the meaning given to that term
in Subparagraph 2.03(a) of the Participation Agreement.
"Tract 2 Acquisition Date" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement. "Tranche A Participant"
shall mean, at any time, any Participant having an Outstanding Tranche A
Participation Amount at such time.
"Tranche A Percentage" shall mean (a) with respect to each Participant
at any time prior to the Commitment Termination Date, the percentage set forth
under the caption "Tranche A Percentage" opposite such Participant's name in
Part A(1) of Schedule I and (b) with respect to each Participant at any time on
or after the Commitment Termination Date, the percentage set forth under the
caption "Tranche A Percentage" opposite such Participant's name in Part A(2) of
Schedule I; or in the case of either such percentage, if changed, such
percentage as may be set forth for such Participant in the Register.
"Tranche A Portion" shall mean, (a) with respect to any Advance without
reference to any Participant, the portion of such Advance equal to the Tranche A
Proportionate Share of such Advance and (b) with respect to any Advance with
reference to any Participant, the portion of such Advance equal to such
Participant's Tranche A Percentage of such Advance.
"Tranche A Proportionate Share" shall mean (a) at any time prior to the
Commitment Termination Date, eighty-nine and nine-tenths percent (89.9%) and (b)
at any time on or after the Commitment Termination Date, eighty-three and five
tenths percent (83.5%).
"Tranche B Participant" shall mean, at any time, any Participant having
an Outstanding Tranche B Participation Amount at such time.
"Tranche B Percentage" shall mean (a) with respect to each Participant
at any time prior to the Commitment Termination Date, the percentage set forth
under the caption "Tranche B Percentage" opposite such Participant's name in
Part A(1) of Schedule I and (b) with respect to
1.01-27
each Participant at any time on or after the Commitment Termination Date, the
percentage set forth under the caption "Tranche B Percentage" opposite such
Participant's name in Part A(2) of Schedule I; or in the case of either such
percentage, if changed, such percentage as may be set forth for such Participant
in the Register.
"Tranche B Portion" shall mean, (a) with respect to any Advance without
reference to any Participant, the portion of such Advance equal to the Tranche B
Proportionate Share of such Advance and (b) with respect to any Advance with
reference to any Participant, the portion of such Advance equal to such
Participant's Tranche B Percentage of such Advance.
"Tranche B Proportionate Share" shall mean (a) at any time prior to the
Commitment Termination Date, seven and one-tenth percent (7.1% and (b) at any
time on or after the Commitment Termination Date, thirteen and five-tenths
percent (13.5%).
"Tranche C Participant" shall mean, at any time, any Participant having
an Outstanding Tranche C Participation Amount at such time.
"Tranche C Percentage" shall mean (a) with respect to each Participant
at any time prior to the Commitment Termination Date, the percentage set forth
under the caption "Tranche C Percentage" opposite such Participant's name in
Part A(1) of Schedule I and (b) with respect to each Participant at any time on
or after the Commitment Termination Date, the percentage set forth under the
caption "Tranche C Percentage" opposite such Participant's name in Part A(2) of
Schedule I; or in the case of either such percentage, if changed, such
percentage as may be set forth for such Participant in the Register.
"Tranche C Portion" shall mean, (a) with respect to any Advance without
reference to any Participant, the portion of such Advance equal to the Tranche C
Proportionate Share of such Advance and (b) with respect to any Advance with
reference to any Participant, the portion of such Advance equal to such
Participant's Tranche C Percentage of such Advance.
"Tranche C Proportionate Share" shall mean, at all times (whether
before, on or after the Commitment Termination Date), three percent (3.0%).
"Trustee" shall have the meaning given to that term in the introductory
paragraph of the Lease Agreement.
"Unused" shall mean (a) with respect to the 364-Day Commitment at any
time, the remainder of (i) the 364-Day Commitment at such time minus (ii) the
aggregate amount of all Advances made prior to such time and allocated to the
364-Day Commitment; (b) with respect to the Thirty-Month Commitment at any time,
the remainder of (i) the Thirty-Month Commitment at such time minus (ii) the
aggregate amount of all Advances made prior to such time and allocated to the
Thirty-Month Commitment; and (b) with respect to the Total Commitment at any
time, the remainder of (i) the Total Commitment at such time minus (b) the
aggregate amount of all Advances made prior to such time.
1.01-28
SCHEDULE 1.02
RULES OF CONSTRUCTION
(a) GAAP. Unless otherwise indicated in any Operative Document, all
accounting terms used in the Operative Documents shall be construed, and all
accounting and financial computations thereunder shall be computed, in
accordance with GAAP. If GAAP changes after the date of the Participation
Agreement such that any covenants contained in the Operative Documents would
then be calculated in a different manner or with different components, Lessee
and the Lessor Parties agree to negotiate in good faith to amend the applicable
Operative Documents in such respects as are necessary to conform those covenants
as criteria for evaluating Lessee's financial condition to substantially the
same criteria as were effective prior to such change in GAAP; provided, however,
that, until Lessee and the Lessor Parities so amend the Operative Documents, all
such covenants shall be calculated in accordance with GAAP as in effect
immediately prior to such change.
(b) Headings. Headings in each of the Operative Documents are for
convenience of reference only and are not part of the substance thereof.
(c) Plural Terms. All terms defined in any Operative Document in the
singular form shall have comparable meanings when used in the plural form and
vice versa.
(d) Time. All references in each of the Operative Documents to a time
of day shall mean San Francisco, California time, unless otherwise indicated.
All references in each of the Operative Documents to a date (the "action date")
which is one month prior to or after another date (the "reference date") shall
mean the date in the immediately preceding or succeeding calendar month (as the
case may be) which numerically corresponds to the reference date; provided,
however, that (i) if such corresponding date in the immediately preceding or
succeeding calendar month (as the case may be) is not a Business Day, the action
date shall be the next succeeding Business Day after such corresponding date
(unless, in the case of a Rental Period, such next Business Day falls in another
calendar month, in which case the action date shall be the immediately preceding
Business Day) and (ii) if the reference date is the last Business Day of a
calendar month (or a day for which there is no numerically corresponding day in
the immediately preceding calendar month) the action date shall be the last
Business Day of the immediately preceding or succeeding calendar month (as the
case may be). All references in each of the Operative Documents to an earlier
date which is two or more months prior to a reference date or to a later date
which is two or more months after a reference date shall be determined in a
comparable manner.
(e) Construction. The Operative Documents are the result of
negotiations among, and have been reviewed by Lessee and each Lessor Party and
their respective counsel. Accordingly, the Operative Documents shall be deemed
to be the product of all parties hereto, and no ambiguity shall be construed in
favor of or against Lessee or any Lessor Party.
(f) Entire Agreement. The Operative Documents, taken together,
constitute and contain the entire agreement of Lessee and the Lessor Parties and
supersede any and all prior
1.02-1
agreements, negotiations, correspondence, understandings and communications
among the parties, whether written or oral, respecting the subject matter
thereof.
(g) Calculation of Base Rent, Interest and Fees. All calculations of
Base Rent, interest and fees under the Operative Documents for any period (i)
shall include the first day of such period and exclude the last day of such
period and (ii) shall be calculated on the basis of a year of 360 days for
actual days elapsed, except that during any period that Base Rent or any
interest is to be calculated based upon the Base Rate, such Base Rent or
interest shall be calculated on the basis of a year of 365 or 366 days, as
appropriate, for actual days elapsed.
(h) References.
(i) References in any Operative Document to "Recitals,"
"Sections," "Paragraphs," "Subparagraphs," "Articles," "Exhibits" and
"Schedules" are to recitals, sections, paragraphs, subparagraphs,
articles, exhibits and schedules therein and thereto unless otherwise
indicated.
(ii) References in any Operative Document to any document,
instrument or agreement (A) shall include all exhibits, schedules and
other attachments thereto, (B) shall include all documents, instruments
or agreements issued or executed in replacement thereof, and (C) shall
mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified and supplemented from time to
time and in effect at any given time.
(iii) References in any Operative Document to any Governmental
Rule (A) shall include any successor Governmental Rule, (B) shall
include all rules and regulations promulgated under such Governmental
Rule (or any successor Governmental Rule), and (C) shall mean such
Governmental Rule (or successor Governmental Rule) and such rules and
regulations, as amended, modified, codified or reenacted from time to
time and in effect at any given time.
(iv) References in any Operative Document to any Person in a
particular capacity (A) shall include any permitted successors to and
assigns of such Person in that capacity and (B) shall exclude such
Person individually or in any other capacity.
(i) Other Interpretive Provisions. The words "hereof," "herein" and
"hereunder" and words of similar import when used in any Operative Document
shall refer to such Operative Document as a whole and not to any particular
provision of such Operative Document. The words "include" and "including" and
words of similar import when used in any Operative Document shall not be
construed to be limiting or exclusive. In the event of any inconsistency between
the terms of the Participation Agreement and the terms of any other Operative
Document, the terms of the Participation Agreement shall govern.
(j) Governing Law. Unless otherwise provided in any Operative Document,
each of the Operative Documents shall be governed by and construed in accordance
with the laws of the State of California without reference to conflicts of law
rules.
1.02-2
SCHEDULE 3.01
CONDITIONS PRECEDENT TO INITIAL ACQUISITION ADVANCE
A. Principal Operative Documents.
(1) The Participation Agreement, duly executed by Lessee,
Lessor, each Participant and Agent;
(2) The Lease Agreement, duly executed by Lessee and Lessor
and appropriately notarized for recording;
(3) The Purchase Agreement, duly executed by Lessee and
Lessor;
(4) The Construction Agency Agreement, duly executed by Lessee
and Lessor;
(5) The Assignment of Construction Agreements, duly executed
by Lessee;
(6) The Cash Collateral Agreement, duly executed by Lessee;
(7) The Assignment of Lease, duly executed by Lessor and
appropriately notarized for recording;
(8) The Lessor Deed of Trust, duly executed by Lessor and
appropriately notarized for recording; and
(9) The Lessor Security Agreement, duly executed by Lessor.
B. Lessee Corporate Documents.
(1) The Certificate or Articles of Incorporation of Lessee,
certified as of a recent date prior to the Closing Date by the
Secretary of State (or comparable official) of its jurisdiction of
incorporation;
(2) A Certificate of Good Standing (or comparable certificate)
for Lessee, certified as of a recent date prior to the Closing Date by
the Secretary of State (or comparable official) of its jurisdiction of
incorporation;
(3) A certificate of the Secretary or an Assistant Secretary
of Lessee, dated the Closing Date, certifying (a) that attached thereto
is a true and correct copy of the Bylaws of Lessee as in effect on the
Closing Date; (b) that attached thereto are true and correct copies of
resolutions duly adopted by the Board of Directors of Lessee and
continuing in effect, which authorize the execution, delivery and
performance by Lessee of the Operative Documents executed or to be
executed by Lessee and the consummation of the
3.01-1
transactions contemplated thereby; and (c) that there are no proceedings for the
dissolution or liquidation of Lessee;
(4) A certificate of the Secretary or an Assistant Secretary
of Lessee, dated the Closing Date, certifying the incumbency,
signatures and authority of the officers of Lessee authorized to
execute, deliver and perform the Operative Documents and all other
documents, instruments or agreements related thereto executed or to be
executed by Lessee; and
(5) A Certificates of Good Standing (or comparable
certificates) for Lessee, certified as of a recent date prior to the
Closing Date by the Secretary of State of California.
C. Financial Statements, Financial Condition, Etc.
(1) A copy of the audited consolidated Financial Statements of Lessee
for the fiscal year ended September 30, 1997, audited by KPMG Peat
Marwick and a copy of the unqualified opinion delivered by such
accountants in connection with such Financial Statements;
(2) A copy of the 10-Q report filed by Lessee with the Securities and
Exchange Commission for the quarter ended December 31, 1997;
(3) A copy of the 10-K report filed by Lessee with the Securities and
Exchange Commission for the fiscal year ended September 30, 1997;
(4) A copy of the most recently completed annual report (Form 5500
Series) filed with the Internal Revenue Service with respect to each
Employee Benefit Plan of Lessee and its Subsidiaries, certified by the
Lessee;
(5) The consolidated plan and forecast of Lessee and its Subsidiaries
for the fiscal year to end September 30, 1998 including quarterly cash
flow projections and quarterly projections of Lessee's compliance with
each of the covenants set forth in Paragraph 5.03 of the Participation
Agreement; and
(6) Such other financial, business and other information regarding
Lessee, or any of its Subsidiaries as Agent or any Participant may
reasonably request, including information as to possible contingent
liabilities, tax matters, environmental matters and obligations for
employee benefits and compensation.
D. Collateral Documents.
(1) Evidence that the Lease Agreement, the Assignment of
Lease, and the Lessor Deed of Trust, delivered pursuant to items A(2),
A(7) and A(8) and the Memorandum of Purchase Agreement relating to the
Purchase Agreement delivered
3.01-2
pursuant to item A(3) with respect to the Tract 1 Land have been properly
recorded in the Official Records of Marin County;
(2) An extended coverage owner's policy or binder of title
insurance (or a commitment therefor) for the Property insuring Lessor's
fee simple estate to the Tract 1 Land (subject to such exceptions as
Agent may approve), in such amounts and with such endorsements as Agent
may reasonably require, issued by a title insurer acceptable to Agent,
together with such policies of co-insurance or re-insurance (or
commitments therefor) as Agent may require;
(3) An extended coverage lender's policy of title insurance
(or a commitment therefor) for the Tract 1 Land insuring the validity
and priority of the Lease Agreement (subject to such exceptions as
Agent may approve), in such amounts and with such endorsements as Agent
may reasonably require, issued by a title insurer acceptable to Agent,
together with such policies of co-insurance or re-insurance (or
commitments therefor) as Agent may require;
(4) An extended coverage lender's policy of title insurance
(or a commitment therefor) for the Tract 1 Land insuring the validity
and priority of the Lessor Deed of Trust (subject to such exceptions as
Agent may approve), in such amounts and with such endorsements as Agent
may reasonably require, issued by a title insurer acceptable to Agent,
together with such policies of co-insurance or re-insurance (or
commitments therefor) as Agent may require;
(5) Copies of all leases for the Tract 1 Land and all other
documents, instruments and agreements recorded against or otherwise
affecting the Property, including all amendments, extensions and other
modifications thereof;
(6) Subordination, non-disturbance and attornment agreements
from the lessee under each of the leases for the Tract 1 Land;
(7) Such consents and estoppels, with appropriate mortgagee
protection language, as are requested by Agent, each duly executed by
the appropriate Person;
(8) Such Uniform Commercial Code financing statements and
fixture filings (appropriately completed and executed) for filing in
such jurisdictions as Agent may request to perfect the Liens granted to
Lessor and Agent in the Lessee Security Documents, the Lessor Security
Agreement and the other Operative Documents;
(9) Such Uniform Commercial Code termination statements
(appropriately completed and executed) for filing in such jurisdictions
as Agent may request to terminate any financing statement evidencing
Liens of other Persons in the Collateral which are prior to the Liens
granted to Lessor and Agent in the Lessee Security Documents, the
Lessor Security Agreement and the other Operative Documents, except for
any such prior Liens which are expressly permitted by the Operative
Documents to be prior;
3.01-3
(10) Uniform Commercial Code search certificates from the
jurisdictions in which Uniform Commercial Code financing statements are
to be filed pursuant to item B(8) above reflecting no other financing
statements or filings which evidence Liens of other Persons in the
Collateral which are prior to the Liens granted to Lessor and Agent in
the Lessee Security Documents, the Lessor Security Agreement and the
other Operative Documents, except for any such prior Liens (a) which
are expressly permitted by the Operative Documents to be prior or (b)
for which Agent has received a termination statement pursuant to item
B(9) above;
(11) Such other documents, instruments and agreements as
Agents may reasonably request to establish and perfect the Liens
granted to any Lessor Party in the Lessee Security Documents, the
Lessor Deed of Trust, the Lessor Security Agreement and the other
Operative Documents;
(12) Such other evidence as Agent may request to establish
that the Liens granted to Agent or any Participant in the Lessee
Security Documents, the Lessor Deed of Trust, the Lessor Security
Agreement and the other Operative Documents are perfected and prior to
the Liens of other Persons in the Collateral, except for any such Liens
which are expressly permitted by the Operative Documents to be prior;
and
E. Opinions.
(1) A favorable written opinion of Pillsbury, Madison & Sutro
LLP, counsel to Lessee, dated the Closing Date, addressed to Lessor and
Agent, for the benefit of Lessor, Agent and the Participants, and
covering such legal matters as Agent may reasonably request and
otherwise in form and substance satisfactory to Agent.
F. Other Items.
(1) A duly completed and timely delivered Acquisition Request,
duly executed by Lessee;
(2) A preliminary market valuation for the Property,
satisfactory to Lessor, dated as of a recent date prior to the Closing
Date;
(3) Bills of sale for all Related Goods to be acquired with
the Initial Acquisition Advances to be made on the Closing Date, each
reflecting Lessor as the purchaser of such Related Goods;
(4) An as-built survey of the Property (i) prepared by a
registered surveyor reasonably satisfactory to Agent, (ii) certified as
correct and as (A) having been made in accordance with the most recent
standards for "Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys," jointly established and adopted by ALTA and ACSM, and
(B) meeting the accuracy requirements of a Class A survey (as defined
therein) and including items 1-5, 7-13 and 15 of Table 3 thereof, and
(iii) disclosing, among other things, (A) the location of the perimeter
of the Property by courses and distances, (B) all easements and
rights-of-way, whether above or underground, (C) the
3.01-4
lines of the street abutting the Property and the width thereof, (D)
encroachments, if any, and the extent thereof in feet and inches upon
the Property, and (E) all boundary and lot lines, and all other matters
that would be disclosed by inspection of the Property and the public
records;
(5) If requested by Lessor, Agent or any Participant, a list
of and copies of all Construction Agreements;
(6) Each of the Environmental Reports;
(7) Certificates of insurance evidencing the insurance Lessee
is required to maintain pursuant to Paragraph 3.03 of the Lease
Agreements;
(8) A certificate of an Authorized Officer of Lessee,
addressed to Lessor and Agent and dated the Closing Date, certifying
that:
(a) The representations and warranties set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material
respects as of such date (except for such representations and
warranties made as of a specified date, which shall be true as
of such date);
(b) No Default has occurred and is continuing as of
such date;
(c) All of the Operative Documents are in full force
and effect on such date.
(9) The Acquisition Agreement for the Tract 1 Land and an
assignment of such Acquisition Agreement to Lessor.
(10) All fees and expenses payable to the Lessor Parties on or
prior to the Closing Date (including all Agent's Fees);
(11) All fees and expenses of Lessor's and Agent's counsels
through the Closing Date;
(12) Each of the PG&E Agreements, which shall have been duly
executed and delivered and be binding on PG&E and an appropriate
officer's certificates of PG&E as to the due authorization and
execution of such Agreements; and
(13) The agreements between Lessee and Village Builders, L.P.
relating to leasing the Property and making leasehold improvements to
the Property shall have been terminated and Phase II of the Purchase
Agreement between Lessee and Village Builders LP shall have been
terminated as no longer in effect.
Such other evidence as Agent may reasonably request to
establish the accuracy and completeness of the representations and
warranties and the compliance with the terms and conditions contained
in the Operative Documents.
3.01-5
SCHEDULE 3.02
CONDITIONS PRECEDENT TO TRACT 2 ACQUISITION ADVANCE
A. Principal Operative Documents.
(1) An amendment to the Lease Agreement adding the Tract 2
Land to the Property covered thereby, duly executed by Lessee and
Lessor and appropriately notarized;
(2) An amendment to the Purchase Agreement adding the Tract 2
Land to the Property covered thereby, duly executed by Lessee and
Lessor;
(3) An amendment to the Construction Agency Agreement adding
the Tract 2 Land to the Property covered thereby, duly executed by
Lessee and Lessor;
(4) An amendment to the Assignment of Lease adding the Tract 2
Land to the Property covered thereby, duly executed by Lessee and
Lessor and appropriately notarized; and
(5) An amendment to the Lessor Deed of Trust adding the Tract
2 Land to the Property covered thereby, duly executed by Lessee and
Lessor and, appropriately notarized.
B. Collateral Documents.
(1) An amendment to the Memorandum of Purchase Agreement
adding the Tract 2 Land to the Property covered thereby, duly executed
by Lessee and Lessor and appropriately notarized for recording, and
evidence that such amendment has been properly recorded in the Official
Records of the County of Marin, California;
(2) Evidence that the Lease Agreement, the Assignment of Lease
and the Lessor Deed of Trust, or amendments thereto, have been properly
recorded in the Official Records of the County of Marin, California;
(3) An extended coverage owner's policy or binder of title
insurance (or a commitment therefor) for the Tract 2 Land insuring
Lessor's fee simple title to such Property (subject to such exceptions
as Agent may approve), in such amounts and with such endorsements as
Agent may reasonably require, issued by a title insurer acceptable to
Agent, together with such policies of co-insurance or re-insurance (or
commitments therefor) as Agent may require;
(4) An extended coverage lender's policy of title insurance
(or a commitment therefor) for the Tract 2 Land insuring the validity
and priority of the Lease Agreement
3.02-1
(subject to such exceptions as Agent may approve), in such amounts and
with such endorsements as Agent may reasonably require, issued by a
title insurer acceptable to Agent, together with such policies of
co-insurance or re-insurance (or commitments therefor) as Agent may
require;
(5) An extended coverage lender's policy of title insurance
(or a commitment therefor) for the Tract 2 Land insuring the validity
and priority of the Lessor Deed of Trust (subject to such exceptions as
Agent may approve), in such amounts and with such endorsements as Agent
may reasonably require, issued by a title insurer acceptable to Agent,
together with such policies of co-insurance or re-insurance (or
commitments therefor) as Agent may require;
(6) Copies of all leases for the Tract 2 Land and all other
documents, instruments and agreements recorded against or otherwise
affecting such Property, including all amendments, extensions and other
modifications thereof;
(7) Subordination, non-disturbance and attornment agreements
from the lessee under each of the leases for the Tract 2 Land;
(8) Such consents and estoppels, with appropriate mortgagee
protection language, as are requested by Agent, each duly executed by
the appropriate Person;
(9) Such Uniform Commercial Code financing statements and
fixture filings (appropriately completed and executed) for filing in
such jurisdictions as Agent may request to perfect the Liens granted to
Lessor and Agent in the Lessee Security Documents, the Lessor Security
Agreement and the other Operative Documents;
(10) Such Uniform Commercial Code termination statements
(appropriately completed and executed) for filing in such jurisdictions
as Agent may request to terminate any financing statement evidencing
Liens of other Persons in the Collateral which are prior to the Liens
granted to Lessor and Agent in the Lessee Security Documents, the
Lessor Security Agreement and the other Operative Documents, except for
any such prior Liens which are expressly permitted by the Operative
Documents to be prior;
(11) Uniform Commercial Code search certificates from the
jurisdictions in which Uniform Commercial Code financing statements are
to be filed pursuant to item B.(9) above reflecting no other financing
statements or filings which evidence Liens of other Persons in the
Collateral which are prior to the Liens granted to Lessor and Agent in
the Lessee Security Documents, the Lessor Security Agreement and the
other Operative Documents, except for any such prior Liens (a) which
are expressly permitted by the Operative Documents to be prior or (b)
for which Agent has received a termination statement pursuant to item
B.(10) above;
(12) Such other documents, instruments and agreements as
Agents may reasonably request to establish and perfect the Liens
granted to any Lessor Party in the Lessee Security Documents, the
Lessor Deed of Trust, the Lessor Security Agreement and the other
Operative Documents; and
3.02-2
(13) Such other evidence as Agent may request to establish
that the Liens granted to Agent or any Participant in the Lessee
Security Documents, the Lessor Deed of Trust, the Lessor Security
Agreement and the other Operative Documents are perfected and prior to
the Liens of other Persons in the Collateral, except for any such Liens
which are expressly permitted by the Operative Documents to be prior.
C. Opinions.
(1) A favorable written opinion of Pillsbury, Madison & Sutro
LLP, counsel to Lessee, dated the Tract 2 Acquisition Date, addressed
to Lessor and Agent, for the benefit of Lessor, Agent and the
Participants, and covering such legal matters as Agent may reasonably
request and otherwise in form and substance satisfactory to Agent.
D. Other Items.
(1) A duly completed and timely delivered Acquisition Request
for the Tract 2 Advance, duly executed by Lessee;
(2) A letter updating the Expiration Date Appraisal or other
evidence satisfactory to Lessor as to appraised value of the Tract 2
Land as of the Tract 2 Acquisition Date;
(3) Bills of sale for all Related Goods to be acquired for the
Acquisition Advance to be made on the Tract 2 Acquisition Date, each
reflecting Lessor as the purchaser of such Related Goods;
(4) An as-built survey of the Property (i) prepared by a
registered surveyor reasonably satisfactory to Agent, (ii) certified as
correct and as (A) having been made in accordance with the most recent
standards for "Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys," jointly established and adopted by ALTA and ACSM, and
(B) meeting the accuracy requirements of a Class A survey (as defined
therein) and including items 1-5, 7-13 and 15 of Table 3 thereof, and
(iii) disclosing, among other things, (A) the location of the perimeter
of the Property by courses and distances, (B) all easements and
rights-of-way, whether above or underground, (C) the lines of the
street abutting the Property and the width thereof, (D) encroachments,
if any, and the extent thereof in feet and inches upon the Property,
and (E) all boundary and lot lines, and all other matters that would be
disclosed by inspection of the Property and the public records;
(5) If requested by Lessor, Agent or any Participant, a list
of and copies of all Construction Agreements;
(6) Each of the Environmental Reports to the extent not
previously delivered;
3.02-3
(7) Certificates of insurance evidencing the insurance Lessee
is required to maintain pursuant to Paragraph 3.03 of the Lease
Agreement;
(8) The Acquisition Agreement for the Tract 2 Land and an
assignment of such Acquisition Agreement by Lessee to Lessor;
(9) All fees and expenses payable to the Lessor Parties on or
prior to the Acquisition Date for the Tract 2 Land (including all
Agent's Fees);
(10) All fees and expenses of Lessor's and Agent's counsels
through the Acquisition Date for the Tract 2 Land; and
(11) Such other evidence as Agent, Lessor or any Participant
may reasonably request to establish the accuracy and completeness of
the representations and warranties and the compliance with the terms
and conditions contained in the Operative Documents.
3.02-4
SCHEDULE 4.01(q)
SUBSIDIARIES
Shares
Jurisdiction of Class of Owned by Percentage Owned
Subsidiary Corporation Equity Lessee by Lessee
- --------------------------------------------------------------------------------------------------------------------------------
4.01(q)-1
Schedule 4.01(f)
Environmental Reports
California Regional Water Quality Control Board, San Francisco Bay Region, Order
No. 85-80, Waste Discharge Requirements for: Pacific Gas and Electric Company,
Redwood Regional Office, San Rafael, Marin County, Adopted June 19, 1985
California Department of Health Services, Toxic Substances Control Division,
Consent Order, Docket No. HAS 89-/90-002 - Covenant of Deed Restriction,
Covenant and Agreement to Restrict Use of Property, Pacific Gas and Electric
Company, San Rafael, California, July 14, 1989
Phase I Environmental Site Assessment for the Former PG&E San Rafael Service
Center Site, City of San Rafael Corporation Yard, and Shell Station, San Rafael,
California, August 14, 1996, Levine-Fricke (Prepared for Fair, Isaac & Company)
Final Risk Appraisal, San Rafael Retail Project, San Rafael, California, June
21, 1989, Harding Lawson Associates
1995 Annual Groundwater Monitoring Report for the Pacific Gas and Electric
Company's Former San Rafael Manufactured Gas Plant Site, June, 1996, Tetra Tech,
Inc.
Review of 1989 Risk Appraisal, Second and Lindaro Streets, San Rafael,
California, July 3, 1996, Harding Lawson Associates
Soil and Groundwater Investigation, Second and Lindaro Streets, San Rafael,
California, October 28, 1996, Harding Lawson Associates
Evaluation of Existing Groundwater Extraction System and Revised Proposed
Extraction and Monitoring System Modifications, Village Properties/Fair, Isaac
Development, Second and Lindaro Property, San Rafael, California, May 7, 1997,
Harding Lawson Associates
1996 Annual Groundwater Monitoring Report for the Pacific Gas and Electric
Company's Former San Rafael Manufactured Gas Plan Site, June, 1997, Tetra Tech,
Inc.
Risk Assessment of Groundwater and Soil, PG&E Parcel, San Rafael, California,
July 8, 1997, Harding Lawson Associates
Revised Risk Assessment of Groundwater and Soil, PG&E Parcel, San Rafael,
California, July 18, 1997, Harding Lawson Associates
Health and Safety Plan, Fair, Isaac Office Park, 250 Lindaro Avenue, San Rafael,
California, June 11, 1997, Harding Lawson Associates
(Revised) Soil Management Work Plan, Fair, Isaac Office Park, Second and Lindaro
Streets, San Rafael, California, June 12, 1997, Revision 1, September 30, 1997,
Revision 2, February 1998, Harding Lawson Associates
4.01(f)-1
(Revised) Health and Safety Plan, Fair, Isaac Office Park, 250 Lindaro Avenue,
San Rafael, California, Revised September 30, 1997, Harding Lawson Associates
Draft Environmental Impact Report for the Fair, Isaac Office Park Project,
Volume I - EIR Text & Appendices, August 18, 1997, Robert Bein, William Frost &
Associates
San Rafael Downtown Retail Center, Draft Environmental Impact Report, EIP
Associates, December, 1987
Limited Phase I and Phase II Environmental Site Assessment Report, Shell Station
and San Rafael Corporation Yard, 755 Second Street, 790 Lincoln Avenue, San
Rafael, California, September 25, 1995, McCulley, Frick & Gilman, Inc. (Prepared
for The City of San Rafael Redevelopment Agency)
1997 Annual Ground Water Monitoring Report, for PG&E's former San Rafael Plant
Site, April 1998, Tetra Tech, Inc.
4.01(f)-2
SCHEDULE 4.01(u) -PART 1
TRACT 1 PROPERTY
(i) The Tract 1 Land consists of approximately 10.47 acres located in
the City of San Rafael, Marin County, California, more particularly described in
Part 1 to Exhibit A.
(ii) Upon the completion of the New Improvements on the Tract 1 Land,
the Improvements on the Land will consist of two office buildings containing
approximately 150,000 rentable square feet (including parking, landscaping,
recreational and related facilities, amenities and improvements).
(iii) Access to the Tract 1 Land for pedestrians and motor vehicles
from publicly dedicated streets and public highways is available.
(iv) No portion of the Tract 1 Land is located in an area identified as
a special flood hazard area by the Federal Emergency Management Agency or other
applicable Governmental Authority, or if any portion of the Property is located
in such an area, flood insurance has been obtained for the Property or such
portion thereof in accordance with Paragraph 3.03 of the Lease Agreement and the
National Flood Insurance Act of 1968.
4.01(u)-1
SCHEDULE 4.01(u) - PART 2
TRACT 2 PROPERTY
(i) The Tract 2 Land consists of approximately 2.25 acres located in
the City of San Rafael, Marin County, California, more particularly described in
Part 2 to Exhibit A.
(ii) No New Improvements will be built on the Tract 2 Land prior to the
Scheduled Expiration Date.
(iii) Access to the Tract 2 Land for pedestrians and motor vehicles
from publicly dedicated streets and public highways is available.
(iv) No portion of the Tract 2 Land is located in an area identified as
a special flood hazard area by the Federal Emergency Management Agency or other
applicable Governmental Authority, or if any portion of the Property is located
in such an area, flood insurance has been obtained for the Property or such
portion thereof in accordance with Paragraph 3.03 of the Lease Agreement and the
National Flood Insurance Act of 1968.
4.01(u)-2
SCHEDULE 4.01(x)
BUDGET
4.01(x)
SCHEDULE 5.02(a)
EXISTING INDEBTEDNESS
None.
5.02(a)-1
SCHEDULE 5.02(b)
EXISTING LIENS
None.
5.02(b)-1
SCHEDULE 5.02(e)
INVESTMENT POLICY
5.02(E)-1
EXHIBIT A
LAND
Part 1
Property to be acquired from PG&E.
A-1
EXHIBIT A
LAND
Part 2
Property to be acquired from City of San Rafael.
A-2
EXHIBIT B
LEASE AGREEMENT
B-1
EXHIBIT C
PURCHASE AGREEMENT
C-1
EXHIBIT D
CONSTRUCTION AGENCY AGREEMENT
D-1
EXHIBIT E
ACQUISITION REQUEST
[Date]
Lease Plan North America, Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Participation Agreement, dated as
of May 15, 1998, (the "Participation Agreement"), among Fair, Isaac and Company,
Inc. ("Lessee"), Lease Plan North America, Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Participation Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.03(a) of the Participation Agreement,
Lessee hereby irrevocably requests Lessor to acquire [the Tract1/Tract2 Land]
and to make the Acquisition Advance as follows:
(a) The Acquisition Advances shall be made on ___________, 1998; and
(b) The Acquisition Advance shall be in the amount of $____________
which shall be used to pay (i) $___________ on account of the purchase
price to be paid for the [Tract 1/ Tract 2 Land] pursuant to the
applicable Acquisition Agreement, and (ii) $___________ on account of
Permitted Transaction Expenses.
3. Lessee desires that the Rental Rate on such Advance be calculated as
follows: (select one)
(a) At the LIBOR Rental Rate with a Rental Period of __
months, or
(b) At the Alternate Base Rate.
4. [For Advances requested prior to delivery of the Plans and
Specifications pursuant to Subparagraph 5.01(h) of the Participation
Agreement.] [Set forth on Schedule 1 hereto is an allocation of such
Advance to each applicable Line Item of the Budget and a reconciliation
of Advances made prior to the date hereof to the applicable Line Items
of the Budget.]
5. Lessee hereby certifies to the Lessor Parties that, on the date of
this Acquisition Request and after giving effect to the use of the requested
Acquisition Advance[s] as described above:
E-1
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as if
made on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing;
(c) All of the Operative Documents are in full force and
effect;
(d) No action, suit or other proceeding affecting the title
to, or the use, operation or value of, the applicable Property
(including any proceeding for Condemnation or under any Environmental
Law) is pending or, to the best of Lessee's knowledge, threatened; and
(e) No Casualty affecting the applicable Property has
occurred.
6. Please disburse the proceeds of the Acquisition Advance to
__________________________________________________________.
IN WITNESS WHEREOF, Lessee has executed this Acquisition Request on the
date set forth above.
FAIR, ISAAC AND COMPANY, INC.
By: _____________________________
Name: _______________________
Title: ______________________
E-2
SCHEDULE 1
TO
ACQUISITION REQUEST
E-3
EXHIBIT F
IMPROVEMENT/EXPENSE ADVANCE REQUEST
[Date]
Lease Plan North America, Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Participation Agreement, dated as
of May 15, 1998 (the "Participation Agreement"), among Fair, Isaac and Company,
Inc. ("Lessee"), Lease Plan North America, Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Participation Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.03(b) of the Participation Agreement,
Lessee hereby irrevocably requests Lessor to make an Improvement/Expense Advance
as follows:
(a) Such Improvement/Expense Advance shall be in the aggregate
amount of $________; and
(b) The date of such Improvement/Expense Advance shall be
____________, ____ (the "Advance Date").
3. Lessee desires that the Rental Rate on such Advance be calculated as
follows: (select one)
(a) At the LIBOR Rental Rate with a Rental Period of __
months, or
(b) At the Alternate Base Rate.
4. [For Advances requested prior to delivery of the Plans and
Specifications pursuant to Subparagraph 5.01(h) of the Participation Agreement.]
[Set forth on Schedule 1 hereto is an allocation of such Advance to each
applicable Line Item of the Budget and a reconciliation of Advances made prior
to the date hereof to the applicable Line Items of the Budget.]
F-1
5. [Lessee will use $________ of the proceeds of the requested
Improvement/Expense Advance to pay the costs for the Related Goods described in
the Supplement to Exhibit B to the Lease Agreement which is attached hereto.
Bills of sale for all such Related Goods, each showing Lessor as the purchaser,
also are attached hereto.][Whenever the requested Improvement/Expense Advance is
to be used to pay for Related Goods, include the preceding two sentences,
complete and attach an Exhibit B Supplement describing the Related Goods and
attach the applicable bills of sale.] Lessee will use the [remaining] proceeds
of such Improvement/Expense Advance to pay the costs and expenses set forth in
Schedule 1 hereto. All such costs and expenses are Permitted Improvement Costs
and/or Permitted Transaction Expenses which are now due and payable. No prior
Advance has been requested to pay any such costs and expenses.
6. Lessee hereby certifies to the Lessor Parties that, on the date of
this Improvement/Expense Advance Request and after giving effect to the
requested Improvement/Expense Advance:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as if
made on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and
effect.
7. Please disburse the proceeds of the Improvement/Expense Advance to
___________________________________________________.
IN WITNESS WHEREOF, Lessee has executed this Improvement/Expense
Advance Request on the date set forth above.
FAIR, ISAAC AND COMPANY, INC.
By: _____________________________
Name: _______________________
Title: ______________________
F-2
SCHEDULE 1
TO
IMPROVEMENT/EXPENSE ADVANCE REQUEST
F-3
EXHIBIT G(1)
364-DAY COMMITMENT EXTENSION REQUEST
[Date]
Lease Plan North America, Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Participation Agreement, dated as
of May 15, 1998 (the "Participation Agreement"), among Fair, Isaac and Company,
Inc. ("Lessee"), Lease Plan North America, Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Participation Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.09(a) of the Participation Agreement,
Lessee hereby irrevocably requests Lessor to extend (and the Participants to
consent to such extension) the Unused 364-Day Commitment ($___________) for an
additional six (6) months by extending the current 364-Day Commitment
Termination Date from [__________] to [__________].
3. Lessee hereby certifies to the Lessor Parties that, on the date of
this 364-Day Commitment Extension Request and after giving effect to the
extension requested hereby:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as if
made on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and
effect.
G(1)-1
IN WITNESS WHEREOF, Lessee has executed this 364-Day Commitment
Extension Request on the date set forth above.
FAIR, ISAAC AND COMPANY, INC.
By: _____________________________
Name: _______________________
Title: ______________________
CONSENT
The undersigned hereby consents to the extension of the 364-Day
Commitment Termination Date requested above.
_________________________________
By: _____________________________
Name: _______________________
Title: ______________________
Date: ________________________
G(1)-2
EXHIBIT G(2)
LEASE EXTENSION REQUEST
[Date]
Lease Plan North America, Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Participation Agreement, dated as
of May 15, 1998 (the "Participation Agreement"), among Fair, Isaac and Company,
Inc. ("Lessee"), Lease Plan North America, Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Participation Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.09(b) of the Participation Agreement,
Lessee hereby irrevocably requests Lessor to extend (and the Participants to
consent to such extension) the Term of the Lease Agreement for an additional
__________ by extending the current Scheduled Expiration Date from [__________]
to [__________].
3. Lessee hereby certifies to the Lessor Parties that, on the date of
this Lease Extension Request and after giving effect to the extension requested
hereby:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as if
made on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and
effect.
G(2)-1
IN WITNESS WHEREOF, Lessee has executed this Lease Extension Request on
the date set forth above.
FAIR, ISAAC AND COMPANY, INC.
By: __________________________________
Name: ____________________________
Title: ___________________________
CONSENT
The undersigned hereby consents to the extension of the Scheduled
Expiration Date requested above upon the terms set forth in the attachment
hereto.
______________________________________
By: __________________________________
Name: ____________________________
Title: ___________________________
Date: ________________________________
G(2)-2
EXHIBIT H
ASSIGNMENT OF CONSTRUCTION AGREEMENTS
H-1
EXHIBIT I
CASH COLLATERAL AGREEMENT
I-1
EXHIBIT J
ASSIGNMENT OF LEASE
J-1
EXHIBIT K
LESSOR DEED OF TRUST
K-1
EXHIBIT L
LESSOR SECURITY AGREEMENT
L-1
EXHIBIT M
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, dated as of the date set forth at the top of
Attachment 1 hereto, by and among:
(1) The party designated under item A of Attachment I hereto
as the Assignor Participant ("Assignor Participant"); and
(2) Each party designated under item B of Attachment I hereto
as an Assignee Participant (individually, an "Assignee Participant").
RECITALS
A. Assignor Participant is one of the "Participants" in a Participation
Agreement dated as of May 15, 1998, among Fair, Isaac and Company, Inc.
("Lessee"), Lease Plan North America, Inc. ("Lessor"), Assignor Participant and
the other institutions parties thereto as "Participants" (collectively, the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). (Such Participation Agreement, as amended, supplemented or
otherwise modified in accordance with its terms from time to time to be referred
to herein as the "Participation Agreement").
B. Assignor Participant wishes to sell, and each Assignee Participant
wishes to purchase, all or a portion of Assignor Participant's rights under the
Participation Agreement pursuant to Subparagraph 7.05(b) of the Participation
Agreement.
AGREEMENT
Now, therefore, the parties hereto hereby agree as follows:
1. Definitions. Except as otherwise defined in this Assignment
Agreement, all capitalized terms used herein and defined in the Participation
Agreement have the respective meanings given to those terms in the Participation
Agreement.
2. Sale and Assignment. Subject to the terms and conditions of this
Assignment Agreement, Assignor Participant hereby agrees to sell, assign and
delegate to each Assignee Participant and each Assignee Participant hereby
agrees to purchase, accept and assume the rights, obligations and duties of a
Participant under the Participation Agreement and the other Operative Documents
equal to the Tranche A Percentage, Tranche B Percentage, Tranche C Percentage
and Proportionate Share set forth under the captions "Tranche Percentages and
Proportionate Shares Assigned" opposite such Assignee Participant's name on Part
A of
M-1
Attachment I hereto. Such sale, assignment and delegation shall become effective
on the date designated in Part C of Attachment I hereto (the "Assignment
Effective Date"), which date shall be, unless Agent shall otherwise consent, at
least five (5) Business Days after the date following the date counterparts of
this Assignment Agreement are delivered to Agent in accordance with Paragraph 3
hereof.
3. Assignment Effective Notice. Upon (a) receipt by Agent of five (5)
counterparts of this Assignment Agreement (to each of which is attached a fully
completed Attachment 1), each of which has been executed by Assignor Participant
and each Assignee Participant (and, to the extent required by clause (i) of
Subparagraph 7.05(b) of the Participation Agreement, by Lessor, Lessee and
Agent) and (b) payment to Agent of the registration and processing fee specified
in clause (iii) of Subparagraph 7.05(b) of the Participation Agreement, Agent
will transmit to Lessor, Lessee, Assignor Participant and each Assignee
Participant an Assignment Effective Notice substantially in the form of
Attachment 2 hereto, fully completed (an "Assignment Effective Notice").
4. Assignment Effective Date. At or before 12:00 noon (local time of
Assignor Participant) on the Assignment Effective Date, each Assignee
Participant shall pay to Assignor Participant, in immediately available or same
day funds, an amount equal to the purchase price, as agreed between Assignor
Participant and such Assignee Participant (the "Assignment Purchase Price"), for
the respective Tranche A Percentage, Tranche B Percentage, Tranche C Percentage
and Proportionate Share purchased by such Assignee Participant hereunder.
Effective upon receipt by Assignor Participant of the Assignment Purchase Price
payable by each Assignee Participant, the sale, assignment and delegation to
such Assignee Participant of such Proportionate Share as described in Paragraph
2 hereof shall become effective.
5. Payments After the Assignment Effective Date. Assignor Participant
and each Assignee Participant hereby agree that Agent shall, and hereby
authorize and direct Agent to, allocate amounts payable under the Participation
Agreement and the other Operative Documents as follows:
(a) All payments applied to reduce the Outstanding Lease
Amount or any Portion thereof after the Assignment Effective Date with
respect to each Tranche A Percentage, Tranche B Percentage, Tranche C
Percentage and Proportionate Share assigned to an Assignee Participant
pursuant to this Assignment Agreement shall be payable to such Assignee
Participant.
(b) All Base Rent, interest, fees and other amounts accrued
after the Assignment Effective Date with respect to each Tranche A
Percentage, Tranche B Percentage, Tranche C Percentage and
Proportionate Share assigned to an Assignee Participant pursuant to
this Assignment Agreement shall be payable to such Assignee
Participant.
Assignor Participant and each Assignee Participant shall make any separate
arrangements between themselves which they deem appropriate with respect to
payments between them of amounts paid under the Operative Documents on account
of the Tranche A Percentage, Tranche B Percentage, Tranche C Percentage and
Proportionate Share assigned to such Assignee
M-2
Participant, and neither Agent nor Lessee shall have any responsibility to
effect or carry out such separate arrangements.
6. Delivery of Copies of Operative Documents. Concurrently with the
execution and delivery hereof, Assignor Participant will provide to each
Assignee Participant (if it is not already a party to the Participation
Agreement) conformed copies of all documents delivered to Assignor Participant
on or prior to the Closing Date in satisfaction of the conditions precedent set
forth in the Participation Agreement.
7. Further Assurances. Each of the parties to this Assignment Agreement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Assignment Agreement.
8. Further Representations, Warranties and Covenants. Assignor
Participant and each Assignee Participant further represent and warrant to and
covenant with each other, Lessor, Agent and the other Participants as follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, Assignor Participant makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with the Participation Agreement or the other Operative
Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Participation Agreement or the
other Operative Documents furnished or the Collateral or any security
interest therein.
(b) Assignor Participant makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of Lessee or any of its obligations under the Participation Agreement
or any other Operative Documents.
(c) Each Assignee Participant confirms that it has received a
copy of the Participation Agreement and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement.
(d) Each Assignee Participant will, independently and without
reliance upon Lessor, Agent, Assignor Participant or any other
Participant and based upon such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Participation Agreement and
the other Operative Documents.
(e) Each Assignee Participant appoints and authorizes Agent to
take such action as Agent on its behalf and to exercise such powers
under the Participation Agreement and the other Operative Documents as
Agent is authorized to exercise by the terms thereof, together with
such powers as are reasonably incidental thereto, all in accordance
with Section VI of the Participation Agreement.
M-3
(f) Each Assignee Participant (i) affirms that each of the
representations and warranties set forth in Paragraph 4.03 of the
Participation Agreement is true and correct with respect to such
Participant and (ii) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the
Participation Agreement and the other Operative Documents are required
to be performed by it as a Participant.
(g) Each Assignee Participant represents and warrants that, as
of the date hereof, it would not have any basis for demanding any
payment under Subparagraph 2.12(c) or Subparagraph 2.12(d) of the
Participation Agreement or, to its knowledge, under Subparagraph
2.13(a) of the Participation Agreement.
(h) Part B of Attachment 1 hereto sets forth administrative
information with respect to each Assignee Participant.
9. Effect of this Assignment Agreement. On and after the Assignment
Effective Date, (a) each Assignee Participant shall be a Participant with a
Tranche A Percentage, Tranche B Percentage, Tranche C Percentage and
Proportionate Share as set forth under the caption "Tranche Percentages and
Proportionate Share After Assignment" opposite such Assignee Participant's name
in Part A of Attachment 1 hereto and shall have the rights, duties and
obligations of such a Participant under the Participation Agreement and the
other Operative Documents and (b) Assignor Participant shall be a Participant
with a Tranche A Percentage, Tranche B Percentage, Tranche C Percentage and
Proportionate Share as set forth under the caption "Tranche Percentages and
Proportionate Share After Assignment" opposite Assignor Participant's name in
Part A of Attachment 1 hereto and shall have the rights, duties and obligations
of such a Participant under the Participation Agreement and the other Operative
Documents, or, if the Proportionate Share of Assignor Participant has been
reduced to zero, Assignor Participant shall cease to be a Participant and shall
have no further obligation to fund any portion of any Advance.
10. Miscellaneous. This Assignment Agreement shall be governed by, and
construed in accordance with, the laws of the State of California. Paragraph
headings in this Assignment Agreement are for convenience of reference only and
are not part of the substance hereof.
M-4
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers as of the
date set forth in Attachment 1 hereto.
__________________________________, as
Assignor Participant
By: __________________________________
Name: ____________________________
Title: ___________________________
__________________________________, as
Assignee Participant
By: __________________________________
Name: ____________________________
Title: ___________________________
__________________________________, as
Assignee Participant
By: __________________________________
Name: ____________________________
Title: ___________________________
__________________________________, as
Assignee Participant
By: __________________________________
Name: ____________________________
Title: ___________________________
M-5
CONSENTED TO AND ACKNOWLEDGED BY:
______________________________________
as Lessee
By: __________________________________
Name: ____________________________
Title: ___________________________
______________________________________,
as Agent
By: __________________________________
Name: ____________________________
Title: ___________________________
______________________________________,
As Lessor
By: __________________________________
Name: ____________________________
Title: ___________________________
ACCEPTED FOR RECORDATION IN REGISTER:
______________________________________,
As Agent
By: __________________________________
Name: ____________________________
Title: ___________________________
M-6
ATTACHMENT 1
TO ASSIGNMENT AGREEMENT
PART A(1) TRANCHE PERECENTAGES PRIOR TO COMMITMENT TERMINATION DATE
Tranche Percentages and
Proportionate Shares Assigned
----------------- ---------------- ----------------- -----------------
Tranche A Tranche B Tranche C Proportionate
Percentage Percentage Percentage Share
---------- ---------- ---------- -----
Assignor Participant:
- --------- --. -------% --. -------% --. -------% --. -------%
- --------- --. -------% --. -------% --. -------% --. -------%
- --------- --. -------% --. -------% --. -------% --. -------%
Assignee Participants:
- --------- --. -------% --. -------% --. -------% --. -------%
- --------- --. -------% --. -------% --. -------% --. -------%
- --------- --. -------% --. -------% --. -------% --. -------%
- --------- --. -------% --. -------% --. -------% --. -------%
Tranche Percentages and
Proportionate Shares After Assignment
------------------- ---------------- -------------------- -------------------
Tranche A Tranche B Tranche C Proportionate
Percentage Percentage Percentage Share
---------- ---------- ---------- -----
Assignor Participant:
- --------- --. -------% --. -------% --. --------% --. --------%
- --------- --. -------% --. -------% --. --------% --. --------%
- --------- --. -------% --. -------% --. --------% --. --------%
Assignee Participants:
- --------- --. -------% --. -------% --. --------% --. --------%
- --------- --. -------% --. -------% --. --------% --. --------%
- --------- --. -------% --. -------% --. --------% --. --------%
- --------- --. -------% --. -------% --. --------% --. --------%
M(1)-1
ATTACHMENT 1
TO ASSIGNMENT AGREEMENT
PART A(1) TRANCHE PERECENTAGES PRIOR TO COMMITMENT TERMINATION DATE
Tranche Percentages and
Proportionate Shares Assigned
----------------- ---------------- ----------------- -----------------
Tranche A Tranche B Tranche C Proportionate
Percentage Percentage Percentage Share
---------- ---------- ---------- -----
Assignor Participant:
- --------- --. -------% --. -------% --. -------% --. -------%
- --------- --. -------% --. -------% --. -------% --. -------%
- --------- --. -------% --. -------% --. -------% --. -------%
Assignee Participants:
- --------- --. -------% --. -------% --. -------% --. -------%
- --------- --. -------% --. -------% --. -------% --. -------%
- --------- --. -------% --. -------% --. -------% --. -------%
- --------- --. -------% --. -------% --. -------% --. -------%
Tranche Percentages and
Proportionate Shares After Assignment
------------------- ---------------- -------------------- -------------------
Tranche A Tranche B Tranche C Proportionate
Percentage Percentage Percentage Share
---------- ---------- ---------- -----
Assignor Participant:
- --------- --. -------% --. -------% --. --------% --. --------%
- --------- --. -------% --. -------% --. --------% --. --------%
- --------- --. -------% --. -------% --. --------% --. --------%
Assignee Participants:
- --------- --. -------% --. -------% --. --------% --. --------%
- --------- --. -------% --. -------% --. --------% --. --------%
- --------- --. -------% --. -------% --. --------% --. --------%
- --------- --. -------% --. -------% --. --------% --. --------%
M(1)-2
PART B
[Assignee Participant]
Applicable Participating Office:
_________________________
Address for notices:
Telephone No:
Telecopier No:
Wiring Instructions:
[Assignee Participant]
Applicable Participating Office:
_________________________
Address for notices:
Telephone No:
Telecopier No:
Wiring Instructions:
M(1)-3
PART C
ASSIGNMENT EFFECTIVE DATE ________, ____
M(1)-4
ATTACHMENT 2
TO ASSIGNMENT AGREEMENT
FORM OF
ASSIGNMENT EFFECTIVE NOTICE
Reference is made to the Participation Agreement, dated as of May 15,
1998, among Fair, Isaac and Company, Inc., Inc. ("Lessee"), Lease Plan North
America, Inc. ("Lessor"), the financial institutions parties thereto as
"Participants" (the "Participants") and ABN AMRO Bank N.V., as agent for the
Participants (in such capacity, "Agent"). Agent hereby acknowledges receipt of
five executed counterparts of a completed Assignment Agreement, a copy of which
is attached hereto. [Note: Attach copy of Assignment Agreement.] Terms defined
in such Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Assignment Effective Date will be __________.
2. Pursuant to such Assignment Agreement, each Assignee Participant is
required to pay its Purchase Price to Assignor Participant at or before 12:00
Noon on the Assignment Effective Date in immediately available funds.
Very truly yours,
ABN AMRO Bank N.V.,
as Agent
By: _____________________________
Name: _______________________
Title: ______________________
M(2)-1
N-1