Exhibit 10.17
APPENDIX A
TO
PARTICIPATION AGREEMENT
I. Interpretation. In each Operative Document, unless a clear
contrary intention appears:
(a) any term defined below by reference to another instrument or
document shall continue to have the meaning ascribed thereto whether or not such
other instrument or document remains in effect;
(b) words importing the singular, where appropriate, include the
plural and vice versa;
(c) words importing a gender include any gender;
(d) a reference in any Operative Document to a part, clause,
section, exhibit or schedule without further description is a reference to a
part, clause and section of, and exhibit and schedule to, such Operative
Document;
(e) a reference to any statute, regulation, proclamation, ordinance
or law includes all statutes, regulations, proclamations, ordinances or laws
amending, supplementing, supplanting, varying, consolidating or replacing it,
and a reference to a statute includes all regulations, proclamations and
ordinances issued or otherwise applicable under that statute;
(f) a reference to a document includes, unless the context thereof
otherwise requires, any amendment or supplement to, or replacement or novation
of, that document;
(g) a reference to a party to a document includes that party's
successors and permitted assigns;
(h) a reference to "including" means including without limiting the
generality of any description preceding such term and for purposes hereof a
general statement followed by or referable to an enumeration of specific matters
shall not be limited to matters similar to those specifically mentioned; and
(i) the word "until," when used in the context of a date for
payment, means until (but excluding) such date for payment.
II. Legal Representation of the Parties. The Operative Documents
were negotiated by the parties with the benefit of legal representation and any
rule of construction or interpretation otherwise requiring the Operative
Documents to be construed or interpreted against any party shall not apply to
any construction or interpretation hereof or thereof.
III. Accounting Terms. All accounting terms not specifically defined
otherwise herein shall have the meaning customarily given in accordance with
GAAP, and all financial
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
computations hereunder shall be computed, unless specifically provided otherwise
herein, in accordance with GAAP.
IV. Defined Terms. Terms defined herein have the respective
meanings indicated below when used in each Operative Document.
"A Loan" means a Loan made by a Lender as part of an Advance, comprising
of such Lender's Conduit Share of the A Percentage of such Advance.
"A Loan Agreement" means the A Loan Agreement, dated as of the
Documentation Date, among Lessor, Eagle, the Administrator and the Liquidity
Providers.
"A Loan Maturity Date" means November 7, 2006 or such earlier date on
which the A Loans become due pursuant to the A Loan Agreement.
"A Notes" is defined in Section 2.3 of the A Loan Agreement.
"A Notes Margin" means (a) 0.45% per annum whenever the Liquid
Collateral has Properly Margined Collateral Coverage, and (b) 0.55% per annum
otherwise.
"A Percentage" means 84.0%.
"A Loan Termination Date" is defined in Section 2.1(b) of the Loan
Agreement.
"ABR" means, for any period, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100th of 1%) equal to the lesser of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect one day prior to such day plus 1/2 of 1%. For purposes hereof: "Prime
Rate" means the rate of interest per annum publicly announced from time to time
by Fleet National Bank as its prime rate in effect at its principal office at
100 Federal Street, Boston, Massachusetts 02110 (the Prime Rate not being
intended to be the lowest rate of interest charged by Fleet National Bank in
connection with extensions of credit to debtors); and "Federal Funds Effective
Rate" means, for any day, the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on such day or, if such day is not a
Business Day, on the next preceding Business Day, by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a Business
Day, the average of the quotations for the day of such transactions received by
the Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the ABR shall be determined
without regard to clause (b) of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the ABR due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
2
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"ABR Investor Contribution" means an Investor Contribution accruing held
at a rate determined by reference to the ABR.
"ABR Loan" means a Loan which is bearing interest at a rate of interest
determined by reference to the ABR.
"Account" means the Account (Fleet National Bank) or the Account (First
Union) or both.
"Account Agreements" means with respect to the Account (Fleet National
Bank), the Capital Focus Investment Account Agreement, dated November 7, 2001
between Fleet National Bank and HGSI, and with respect to the Account (First
Union), the Institutional Investment Management Agreement, dated November 7,
2001 between HGSI and First Union.
"Account (First Union)" means the special purpose, segregated account
(Account No. 8025494048, ABA No. 053000219) established by First Union and
maintained by the First Union Collateral Agent for the benefit of First Union,
and the Participants; the operation of the Account (First Union) shall be
governed by the First Union Liquid Collateral Agreement and the Account
Agreement.
"Account (Fleet National Bank)"means the special purpose, segregated
account (Account No. 0006529470, ABA No.011500010) established by Fleet National
Bank and maintained by the Fleet National Bank Collateral Agent for the benefit
of Fleet National Bank, and the Participants; the operation of the Account
(Fleet National Bank) shall be governed by the Fleet National Bank Liquid
Collateral Agreement.
"Additional Collateral Delivery Date" is defined in Section 2.1 of the
Liquid Collateral Agreements.
"Address" means, subject to the right of the party in question to change
its Address in accordance with the terms of the Operative Documents:
(a) with respect to Lessor Wells Fargo Bank Northwest, N.A.,
with a copy to Mayer, Brown & Platt, 1675 Broadway, New York, New York
10019, Attention: Barry K. Gassman, Esq.
(b) with respect to Lessee, Steven C. Mayer, Senior Vice
President and CFO, HGSI, 9410 Key West Avenue, Rockville, MD 20850, with
copy to James H. Davis, Esq., Senior Vice President and General Counsel,
HGSI.
with respect to the Agents, the address provided by the applicable Agent
to the other parties to any Operative Document as its address for notices.
"Adjacent Site" means the land described on Schedule VIII to the
Participation Agreement.
"Adjusted Market Value (Item)" means with respect to each Permitted
Investment that constitutes Liquid Collateral on any date that the securities in
an Account are marked-to-market,
3
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
the product of the Fair Market Value of the Permitted Investment on such date
multiplied by the percentage in the table below under the column marked "Advance
Rate to Maintain Properly Margined Liquid Collateral" opposite the type of
investment into which such Permitted Investment falls.
- ----------------------------------------------------------------------------------
Types of Permitted Investments Advance Rate to Maintain Properly
Margined Liquid Collateral
- ----------------------------------------------------------------------------------
U.S. Treasury Obligations 90%
- ----------------------------------------------------------------------------------
Money Market Funds 90%
- ----------------------------------------------------------------------------------
Repurchase Obligations 90%
- ----------------------------------------------------------------------------------
Mortgage Backed Securities 80%
- ----------------------------------------------------------------------------------
Asset Backed Securities 80%
- ----------------------------------------------------------------------------------
Negotiable Certificates of Deposit 80%
- ----------------------------------------------------------------------------------
Commercial Paper rated A-1, P-1 or better 80%
- ----------------------------------------------------------------------------------
U.S. Agency Obligations 80%
- ----------------------------------------------------------------------------------
Taxable Municipal Bonds (Moody's Aaa down
through A3; S & P AAA down through A-) 80%
- ----------------------------------------------------------------------------------
Bonds (Moody's Aaa down through A3; S & P
AAA down through A-) 70%
- ----------------------------------------------------------------------------------
Bank Obligations 80%
- ----------------------------------------------------------------------------------
"Adjusted Market Value" means, with respect to Properly Margined Liquid
Collateral, the sum of the Adjusted Market Value (Item) of each Permitted
Investment constituting Properly Margined Liquid Collateral in respect of an
Account on each date such Liquid Collateral is marked-to-market in accordance
with the Participation Agreement.
"Administrative Agent" means Fleet National Bank, in its capacity as
administrative agent under the Operative Documents.
"Administrative Agent Fee Letter" means the fee letter dated the
Documentation Date between HGSI and the Administrative Agent.
"Administrator" means Fleet Securities, Inc., in its capacity as
administrator of Eagle.
"Advance" means (i) an advance of funds by the Lenders and the Investors
to Lessor pursuant to Section 2.2 of the Participation Agreement, and (ii) an
advance of funds by Lessor to Construction Agent pursuant to Section 2.2 of the
Participation Agreement, as applicable.
"Advance Date" means the date on which any Advance is made.
4
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Advance Request" means any request for an Advance made by Lessee as
Construction Agent for Lessor to the Investors and the Lenders, substantially in
the form of Exhibit A to the Participation Agreement.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with, such Person. For
purposes of this definition, the term "control" (including the correlative
meanings of the terms "controlling," "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise, provided (but without limiting the foregoing) that no
pledge of voting securities of any Person without the current right to exercise
voting rights with respect thereto shall by itself be deemed to constitute
control over such Person.
"Agent" means any of the Administrative Agent, the Administrator, the
Liquidity Agent, and the Collateral Agents, and "Agents" means, collectively,
the Administrative Agent, the Administrator, the Liquidity Agent and the
Collateral Agents.
"Aggregate Available Commitments" means, as of any date of
determination, the sum of (i) without duplication, the Available Commitments of
the Liquidity Providers under the Loan Agreement, and (ii) the Available
Commitments of the Investors.
"Aggregate Commitments" means the sum of (i) without duplication, the
Commitment Amounts of the Liquidity Providers under the Loan Agreement, and (ii)
the Commitment Amount of the Investors.
"Allocable Portion" means, with respect to the calculation of the
amounts distributable by Administrative Agent pursuant to:
(a) Section 10.3(b) of the Participation Agreement, a
fraction (i) the numerator of which equals (A) in the event that Lessee
exercises its Purchase Option with respect to only the Traville
Facility, the Traville Lease Balance, or (B) in the event that Lessee
exercises its Purchase Option with respect to only the Manufacturing
Facility, the Manufacturing Lease Balance, and (ii) the denominator of
which equals the Lease Balance;
(b) Section 10.4(b) of the Participation Agreement, a
fraction (i) the numerator of which equals (A) in the event that either
the Traville Construction Period Maximum Guaranty Amount, the Traville
Residual Value Guaranty Amount or the Traville Lease Balance is being
distributed pursuant thereto, the Traville Lease Balance, or (B) in the
event that either the Manufacturing Construction Period Maximum Guaranty
Amount, the Manufacturing Residual Value Guaranty Amount or the
Manufacturing Lease Balance is being distributed pursuant thereto, the
Manufacturing Lease Balance, and (ii) the denominator of which equals
the Lease Balance; or
(c) Section 10.5(b) of the Participation Agreement, a
fraction (i) the numerator of which equals (A) in the event that only
the Traville Facility is sold under Section 7.1 of the Lease, the
Traville Lease Balance, or (B) in the event that only the Manufacturing
5
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
Facility is sold under Section 7.1 of the Lease, the Manufacturing Lease
Balance, and (ii) the denominator of which equals the Lease Balance.
"Alterations" means, with respect to the Properties, alterations,
additions, improvements, modifications and additions to the Properties.
"Applicable Laws" means all existing and future applicable laws, rules,
regulations, statutes, treaties, codes, ordinances, permits, certificates,
orders and licenses of and interpretations by, any Governmental Authority, and
applicable judgments, decrees, injunctions, writs, orders or like action of any
court, arbitrator or other administrative, judicial or quasi-judicial tribunal
or agency of competent jurisdiction (including Environmental Laws and other laws
pertaining to health, safety or the environment and those pertaining to the
construction, use or occupancy of the Properties) and any restrictive covenant
or deed restriction or easement of record affecting the Properties, and any
requirements of applicable insurance companies or insurance regulatory agencies.
To the extent Lessee or any other party obtains an exemption, variance or
similar exception to any Applicable Laws for or in connection with the
Properties, including any zoning or building ordinances or regulations, then
Applicable Laws shall be construed to mean Applicable Laws as so applicable to
the Properties.
"Appraisal" means an appraisals, prepared by the Appraiser, of the Land
and Improvements on an as-built basis, to be delivered pursuant to Section
4.1(s) and 4.3(q) of the Participation Agreement.
"Appraised Value" is defined in Section 23(b) of the Ground Lease.
"Appraiser" means Integra Realty Resources, Inc. or such other Person as
may be selected by Lessor and is reasonably acceptable to Lessee.
"Approved Construction Budget" means, as applicable, the Approved
Manufacturing Construction Budget and/or the Approved Traville Construction
Budget.
"Approved Manufacturing Construction Budget" is defined in Section
2.4(a)(i) of the Construction Agency Agreement.
"Approved Manufacturing Construction Schedule" is defined in Section
2.4(a)(i) of the Construction Agency Agreement.
"Approved Manufacturing Plans and Specifications" is defined in Section
2.4(a)(i) of the Construction Agency Agreement.
"Approved Traville Construction Budget" is defined in Section 2.4(b)(i)
of the Construction Agency Agreement.
"Approved Traville Construction Schedule" is defined in Section
2.4(b)(i) of the Construction Agency Agreement.
"Approved Traville Plans and Specifications" is defined in Section
2.4(b)(i) of the Construction Agency Agreement.
6
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Appurtenant Rights" means (i) all agreements, easements, rights of way
or use, rights of ingress or egress, privileges, appurtenances, tenements,
hereditaments and other rights and benefits at any time belonging or pertaining
to the Land or the Improvements, including the use of any streets, ways, alleys,
vaults or strips of land adjoining, abutting, adjacent or contiguous to the Land
and (ii) all permits, licenses and rights, whether or not of record, appurtenant
to the Land.
"Arranger" means BancBoston Leasing Investments Inc.
"As-Built Appraisal" means, as applicable, the Traville As-Built
Appraisal and/or the Manufacturing As-Built Appraisal.
"Asset Backed Securities" means asset backed securities rated AAA by S&P
and Aaa by Moody's.
"Assignee Bank" has the meaning assigned to such term in each Liquidity
Agreement.
"Assignment and Acceptance" means any assignment and acceptance
delivered pursuant to Section 8.1.1(a) of the Participation Agreement.
"Assignment of Lease" means the Lessor Assignment of Lease.
"Authority" means any applicable foreign, federal, state, county,
municipal or other government, quasi-government or regulatory authority, agency,
board, body, commission, instrumentality, court or tribunal, or any political
subdivision of any thereof, or arbitrator or panel of arbitrators.
"Authorized Officer" means with respect to HGSI in any capacity, any of
HGSI's Chief Executive Officer, Chief Financial Officer or General Counsel.
"Available Commitment" means (a) as to each Liquidity Provider, such
Liquidity Provider's daily average Liquidity Commitment (as defined in the
Liquidity Agreement) reduced by the sum of the amount of (i) the aggregate daily
average principal amount of all outstanding Facility Loans made by such
Liquidity Provider and (ii) the daily average aggregate principal amount of all
outstanding Conduit Loans, and (b) as to each Investor, such Investor's daily
average Commitment Amount reduced by its then daily average Investor Amount.
"B Loan" means a Loan made by a Lender as part of an Advance, comprising
such Lender's Conduit Share of the B Percentage of such Advance.
"B Loan Agreement" means the B Loan Agreement, dated as of the
Documentation Date, among Lessor, Eagle, the Administrator and the Liquidity
Providers.
"B Loan Maturity Date" means November 7, 2008 or such earlier date on
which the B Loans becomes due pursuant to the B Loan Agreement.
"B Notes" is defined in Section 2.3 of the B Loan Agreement.
7
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"B Notes Margin" means (a) 0.45% per annum whenever the Liquid
Collateral has Properly Margined Collateral Coverage, and (b) 0.55% per annum
otherwise.
"B Loan Termination Date" is defined in Section 2.1(b) of the Loan
Agreement.
"B Percentage" means 12%.
"Balancing Deposit" is defined in Section 5.6(c) of the Construction
Agency Agreement.
"Bank Obligations" means bank notes and banker's acceptances the obligor
of which has an unsecured long-term debt rating of at least A by S&P and A2 by
Moody's and has a commercial paper rating of at least A-1 by S&P and P-1 by
Moody's.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978.
"Bankruptcy Default" means, with respect to Lessee, an Insolvency Event
without regard to the cure or grace periods provided therein.
"Base Rent" means the rent payable pursuant to Section 3.1 of the Lease.
"Beneficial Owner" means the Trust, as beneficial owner of the Ground
Lessee.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Board of Directors" means, with respect to a corporation, either the
board of directors or any duly authorized committee of that board of directors
which, pursuant to the by-laws of such corporation, has the same authority as
that board of directors as to the matter at issue.
"Borrower" means, with respect to each Loan Agreement, Lessor.
"Borrowing" is defined in the Liquidity Agreement.
"Break Costs" means an amount equal to the amount, if any, required to
compensate any Lessor Hedging Agreement Counterparty for any additional losses
(including, without limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or funds acquired by such Lessor
Hedging Agreement Counterparty to fund its obligations under the Lessor Hedging
Agreements) it may reasonably incur under a Lessor Hedging Agreement or any
other interest rate swap, cap, collar or lock agreement or similar agreement to
which Lessor and such Lessor Hedging Agreement Counterparty is a party; such
amount shall include any amounts payable in connection with an "Early
Termination Date" (as defined in the ISDA Form multi-currency cross-border)
under any Lessor Hedging Agreement. A statement as to the amount of such loss,
cost or expense, prepared in good faith and in reasonable detail and submitted
by such Lessor Hedging Agreement Counterparty, as the case may be, to the
Lessee, shall be presumed correct and binding on Lessee absent demonstrable
error.
8
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which commercial banks in Boston, Massachusetts, Charlotte, North
Carolina, New York, New York or Baltimore, Maryland are authorized or required
by law to close, and (b) in the case of a Eurodollar Loan, any day on which
dealings in U.S. dollar deposits are carried on in the interbank Eurodollar
market and on which commercial banks are open for domestic and international
business in Boston, Massachusetts, Charlotte, North Carolina and London.
"Capitalizable Transaction Costs" means all Transaction Costs other than
Non-Capitalizable Transaction Costs.
"Capitalized Lease Obligation" means, with respect to any Person, at the
time any determination thereof is to be made, the amount of the liability in
respect of a lease that would at such time be so required to be capitalized on
the balance sheet of such Person as lessee thereof in accordance with GAAP.
"Cash Burn Amount" means for any period, the amount by which the sum
(without duplication) for HGSI and its Subsidiaries on a consolidated basis of
the following amounts is less than $0:
(i) Consolidated Net Income for such period; plus
(ii) the amount which, in the determination of Consolidated Net
Income for such period, has been deducted for depreciation and amortization
(including, without limitation, amortization of goodwill and other intangibles);
plus
(iii) the non-cash charges which, in the determination of Consolidated
Net Income for such period, have been deducted in calculating "purchased
in-process research and development expenses"; plus
(iv) the non-cash charges which, in the determination of Consolidated
Net Income for such period, has been deducted as debt conversion expense or
other similar non-cash charges; plus
(v) other similar non-cash charges described in clauses (iii) and
(iv)
all as determined in accordance with GAAP.
"Cash Collateral Test Date" means the last day of each Fiscal Quarter;
provided, however, that if at the end of any Fiscal Quarter the aggregate amount
of all Unrestricted Cash and Marketable Securities of HGSI and its Subsidiaries
on a consolidated basis is less than three hundred million dollars
($300,000,000) for the period of four consecutive Fiscal Quarters then ended,
then at all times thereafter, "Cash Collateral Test Date" shall mean the last
day of each calendar month.
"Cash Equivalents" means (a) Government Obligations having maturities of
not more than one year from the date of acquisition, (b) certificates of deposit
of any commercial bank
9
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
incorporated under the laws of the United States, or any state, territory or
commonwealth thereof, of recognized standing having capital and unimpaired
surplus in excess of $500,000,000 and whose short-term commercial paper rating
at the time of acquisition is at least A-1 or the equivalent by Standard &
Poor's Corporation or at least P-1 or the equivalent by Moody's Investors
Services, Inc. (any such bank, an "Approved Bank"), which certificates of
deposit have maturities of not more than one year from the date of acquisition,
(c) repurchase obligations with a term of not more than 31 days for underlying
securities of the types described in clauses (a), (b) and (d) of this definition
entered into with any Approved Bank which (i) is secured by a fully perfected
security interest in any obligation of the type described in any of clauses (a),
(b) and (d), and (ii) has a market value at the time such repurchase agreement
is entered into of not less than 100% of the repurchase obligation of such
Lender (or other commercial banking institution) thereunder, (d) commercial
paper or financial company paper issued by any person incorporated under the
laws of the United States, or any state thereof, and rated at least A-1 or the
equivalent by Standard & Poor's Corporation or at least P-1 or the equivalent by
Moody's Investors Services, Inc., and in each case maturing not more than 9
months from the date of acquisition and not issued by HGSI or any Affiliate, and
(e) investments in money market funds that are registered under the Investment
Company Act of 1940, which have assets of at least $100,000,000 and at least 95%
of whose assets consist of investments or other obligations of the type
described in clauses (a) through (d) above and as to which withdrawals are
permitted at least every 30 days.
"Casualty" means an event of damage or casualty relating to all or part
of the Properties that does not constitute an Event of Loss.
"Claims" means liabilities, obligations, damages, losses, demands,
penalties, interest, fines, claims, actions, suits, judgments, settlements,
utility charges, costs, fees, expenses and disbursements (including, without
limitation, reasonable, actually-incurred legal fees and expenses and costs of
investigation) of any kind and nature whatsoever.
"Code" means the Internal Revenue Code of 1986.
"Collateral" is defined in the Granting Clause Second of the Security
Agreement.
"Collateral Agent" means the Fleet National Bank Collateral Agent and
the First Union Collateral Agent.
"Commercial Paper Account" means the special purpose segregated trust
account established at the corporate trust office of Eagle, and which at all
times shall be maintained in Eagle's corporate trust department and which shall
never be considered a general deposit account and as such shall not be available
for set-off or garnishment by the creditors of Eagle; such account entitled
"EagleFunding Corporation Commercial Paper Account."
"Commercial Paper Documents" means, collectively, the commercial paper
notes issued by Eagle and the agreements entered into by Eagle in connection
with its commercial paper program.
10
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Commercial Paper Notes" means the short-term promissory notes issued by
the Conduit as the source of funding for the funding and maintenance by the
Conduit of the Loans made under the Loan Agreement.
"Commitment" means (a) with respect to each Liquidity Provider its
obligation (i) to make loans under the Liquidity Agreement to Eagle or (ii) to
make Facility Loans under the Loan Agreement to the Lessor, and (b) with respect
to each Investor, its obligation to make Investor Contributions to the Lessor
under Section 2.2.2 of the Participation Agreement.
"Commitment Amount" means (a) with respect to each Liquidity Provider's
Commitment to make advances under the related Liquidity Agreement, the amount
such Liquidity Provider is committed to fund under the Liquidity Agreement; (b)
with respect to each Liquidity Provider's Commitment to make Facility Loans
under the Loan Agreement, the amount set forth opposite such Liquidity
Provider's name on Schedule II to the Participation Agreement; and (c) with
respect to each Investor, the amount set forth opposite its name on Schedule II
to the Participation Agreement.
"Commitment Period" means the period from and including the
Documentation Date to the date immediately preceding the Construction Period
Termination Date or such earlier date on which the Commitments of all
Participants shall terminate as provided in the Operative Documents.
"Completion Date" means, with respect to a Property, the date
Substantial Completion occurs for such Property.
"Compliance Certificate" means a certificate executed by an authorized
officer of HGSI substantially in the form of Exhibit E to the Participation
Agreement.
"Concentration Limits" means
(a) there are no limits as to U.S. Treasury Obligations or
U.S. Agency Obligations.
(b) no Permitted Investment may be transferred to an Account
if at the time of transfer and at all times thereafter the aggregate
amount of Liquid Collateral issued by the same issuer or Issuer Group
exceeds or would exceed, after such transfer, 5% of the Adjusted Fair
Market Value or Fair Market Value, as applicable, of the Liquid
Collateral (including the Permitted Investments to be transferred) in
respect of an Account, excepting U.S. Government Obligations that may
constitute Liquid Collateral.
(c) no securities issued by a United States bank, other
United States regulated depository institution and United States
insurance company may be transferred to an Account if at the time of
transfer and at all times thereafter the aggregate amount of bank and
insurance company securities, including, for example, negotiable
certificates of deposit, commercial paper, bankers acceptances or medium
or long-term securities, exceeds or would exceed, after such transfer,
80% of the Adjusted Market Value or Fair Market Value of the Liquid
Collateral (including the Permitted Investments to be
11
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
transferred) in respect of an Account at the time the additional Liquid
Collateral is to be transferred thereto and at all times thereafter;
provided that with respect to each Account, the respective Collateral Agent and
HGSI may agree in writing to other or no "Concentration Limits"
"Condemnation" means any condemnation, requisition or other taking or
sale of the use, occupancy or title to the Properties or any part thereof in, by
or on account of any eminent domain proceeding or other action by any
Governmental Authority or other Person under the power of eminent domain or
otherwise or any transfer in lieu of or in anticipation thereof, that does not
constitute an Event of Loss.
"Conduit" means Eagle.
"Conduit A Loan" is defined in Section 2.1(a) of the A Loan Agreement.
"Conduit A Note" is defined in Section 2.3(a) of the A Loan Agreement.
"Conduit B Loan" is defined in Section 2.1(a) of the B Loan Agreement.
"Conduit B Note" is defined in Section 2.3(a) of the B Loan Agreement.
"Conduit Fee Letter" means the letter dated the Documentation Date
between Administrative Agent and the Conduit.
"Conduit Loan" means a Conduit A Loan and/or a Conduit B Loan, as
applicable.
"Conduit Loan Documents" means, collectively, the Loan Agreement, the
Notes and the Security Documents.
"Conduit Loan Event of Default" is defined in Section 6.1 of the Loan
Agreement.
"Conduit to Liquidity Provider Fee Letter" means the letter dated the
Documentation Date between the Conduit and the Liquidity Provider(s).
"Connecticut Statutory Trust Act" means the Connecticut Statutory Trust
Act, Conn. Gen. Stat Sections 34-500 to 34-547 (2001).
"Connecticut Certificate of Trust" means the certificate of trust with
respect to the Trust, filed with the Office of the Secretary of State of
Connecticut in accordance with Section 34-503(a) of the Connecticut Statutory
Trust Act.
"Consolidated Net Income" means with respect to any specified Person for
any period, the aggregate of the Net Income of such specified Person and its
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP. "Net Income" of any Person shall mean the net income (loss) of such
Person, determined in accordance with GAAP.
"Construction" means the construction and installation of all
Improvements contemplated by the Plans and Specifications.
12
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Construction Agency Agreement" means the Construction Agency Agreement,
dated as of the Documentation Date, between Lessor and Construction Agent.
"Construction Agency Default" means any condition, event or act which,
with notice or lapse of time or both, would become a Construction Agency Event
of Default.
"Construction Agency Event of Default" is defined in Section 5.1.1 of
the Construction Agency Agreement.
"Construction Agency Person" means Lessee, Construction Agent, the Prime
Contractor, the Architect, the General Contractor, any other contractor or
subcontractor or other Person directly or indirectly performing work or
providing services or materials on the Property, or relating to the Construction
or the Properties, through and including the period ending on the Completion
Date (regardless of when such Person commenced performing such work or providing
such services or materials, including any period prior to the Documentation
Date), and all of their respective officers, directors, shareholders, partners,
employees, agents, consultants (on the Properties), service-providers (on the
Properties), successors and assigns, and any Person controlled by any of the
foregoing.
"Construction Agent" means Lessee, as construction agent under the
Construction Agency Agreement.
"Construction Breakage Costs" means any costs or expenses incurred by
Lessor, the Administrator, the Administrative Agent or any Participant in
connection with the termination of any of the Construction Documents following
the occurrence of a Construction Agency Agreement Event of Default.
"Construction Budget" means, as applicable, the Approved Traville
Construction Budget and/or the Approved Manufacturing Construction Budget, as
each may be amended from time to time in accordance with the Construction Agency
Agreement.
"Construction Consultant" means Inspection And Valuation International,
Inc. appointed by the lessor or such other Person as may be selected by Lessor
and reasonably acceptable to Lessee.
"Construction Documents" is defined in Section 2.4(c) of the
Construction Agency Agreement.
"Construction Materials" means, as applicable, the Traville Construction
Materials and/or the Manufacturing Construction Materials, as each may be
amended from time to time in accordance with the Construction Agency Agreement.
"Construction Period" means, with respect to a Property, the period
commencing on the Initial Advance Date and ending on the Construction Period
Termination Date applicable to such Property.
"Construction Period Accrued Interest" means all interest, including any
interest at the Overdue Rate, accrued but unpaid under the Loan Agreement prior
to the last day of the
13
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
Construction Period; provided that interest accruing with respect to any portion
of the Lease Balance attributable to a Property that has become subject to the
Lease before termination of the Construction Period shall not constitute
"Construction Period Accrued Interest". Construction Period Accrued Interest is
not overdue to the extent that there exist Available Commitments of the
Liquidity Providers.
"Construction Period Accrued Yield" means, with respect to the Investor
Amount, all Yield accruing on such Investor Amount during and for any Interest
Period ending prior to the last day of the Construction Period; provided that
Yield accruing with respect to any portion of the Lease Balance attributable to
a Property that has become subject to the Lease before termination of the
Construction Period shall not constitute "Construction Period Accrued Yield".
"Construction Period Fees" means any Fees payable out of proceeds of
Advances prior to the Lease Commencement Date.
"Construction Period Indemnitee" means each Agent in its capacity as
agent under the Operative Documents, each Participant, the Trustee, the
Administrator, each Program Support Provider, the Arranger and each of their
respective employees, officers, directors, agents, successors, and assigns;
provided, however, that in no event shall any Lessee Person be a Construction
Period Indemnitee.
"Construction Period Maximum Guaranty Amount" means, at any date of
determination, the sum of (i) 89.9% of the then Eligible Accrued Project Costs,
plus (ii) 100% of all Land Costs minus (iii) the Present Value, as of such date
of determination, of any unconditional obligations of Construction Agent payable
during the Construction Period that are not reimbursable by Lessor under the
Operative Documents.
"Construction Period Termination Date" means (a) with respect to the
Traville Facility, the earlier of (i) the Lease Commencement Date applicable to
such Property and (ii) December 31, 2003; and (b) with respect to the
Manufacturing Facility, the earlier of (i) the Lease Commencement Date
applicable to such Property and (ii) March 30, 2004.
"Construction Schedule" means, as applicable the Approved Traville
Construction Schedule and/or the Approved Manufacturing Construction Schedule,
as each may be amended from time to time in accordance with the Construction
Agency Agreement.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount of the debt, obligation or other liability guaranteed thereby.
"Contract Rents" is defined in Section 2(c) of the Assignment of Lease
and Rents.
14
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Contractor" means Gilbane Building Company.
"Contracts" is defined in Section 2(c) of the Assignment of Lease and
Rents.
"Control" means (including the correlative meanings of the terms
"controlled by" and "under common control with"), as used with respect to any
Person, the possession directly or indirectly, of the power to direct or cause
the direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise, provided (but
without limiting the foregoing) that no pledge of voting securities of any
Person without the current right to exercise voting rights with respect thereto
shall by itself be deemed to constitute control over such Person.
"Corporate Trust Department" is defined in Section 2.5 of the Trust
Agreement.
"Covered Amount" means all costs, expenses or other losses incurred by
Lessor in connection with Lessor's obligation to indemnify each Construction
Period Indemnitee under Section 9.1.3 of the Participation Agreement without
regard to amounts not paid pursuant to the agreement of each Construction Period
Indemnitee to limit the recourse of each such Person for payment or discharge of
the indemnification obligations created under Section 9.1.3(iii) of the
Participation Agreement, such Covered Amounts to be paid by Lessee pursuant to
its indemnification obligations.
"Covered Assets" means the Eagle Covered Assets.
"CP Rate" for any Interest Period for any Conduit Loans means, to the
extent such Conduit funds such Conduit Loans for such Interest Period by issuing
Commercial Paper Notes, the per annum rate equivalent to the "weighted average
cost" (as defined below) related to the issuances of Commercial Paper Notes that
are allocated, in whole or in part, by Conduit or the Administrator to fund or
maintain such Conduit Loans (and which may also be allocated in part to the
funding of other Conduit Loans hereunder or of other assets of the Conduit);
provided, however, that if any component of such rate is a discount rate, in
calculating the "CP Rate" for such Conduit Loans for such Interest Period, such
Conduit shall for such component use the rate resulting from converting such
discount rate to an interest bearing equivalent rate per annum. As used in this
definition, Conduit's "weighted average cost" shall consist of (w) the actual
interest rate (or discount) paid to purchasers of Conduit's Commercial Paper
Notes, together with the Dealer Fee, to the extent allocated, in whole or in
part, to Conduit's Commercial Paper Notes by Conduit or Administrator, (x)
certain documentation and transaction costs associated with the issuance of such
Commercial Paper Notes in an amount not to exceed 0.005% per annum, (y) any
incremental carrying costs incurred with respect to Commercial Paper Notes
maturing on dates other than those on which corresponding funds are received by
the Conduit and (z) other borrowings by the Conduit, including borrowings to
fund small or odd dollar amounts that are not easily accommodated in the
commercial paper market.
"Curable Defaults" is defined in Section 16(B) of the Ground Lease.
"Custodian" is defined in the Preamble to the Custody Agreement.
15
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Custody Agreements" means, collectively, the Fleet National Bank
Custody Agreement and the First Union Custody Agreement.
"Dealer Fee" means with respect to Eagle, the dealer or placement agent
fees or commissions incurred by Eagle in connection with its issuance of
Commercial Paper Notes.
"Deeds of Trust" means, collectively, the Lessee Deed of Trust and
Lessor Deed of Trust.
"Deeds of Trust Amendment" means the amendment to the Deeds of Trust
necessary to included the Manufacturing Facility Site in the Deeds of Trust.
"Deed of Trust Property" is defined in the Granting Clause of each Deed
of Trust.
"Default Completion Costs" means any and all costs of any kind or
description incurred by any Participant or Lessor in completing the construction
of the Improvements following a Construction Agency Event of Default in excess
of those set forth in the applicable Approved Construction Budget, including,
without limitation, costs of removal and restoration of defective work, shut
down and startup costs for any party under any of the Construction Documents,
redesign, rebidding, repermitting and other costs incurred in connection with
any revision of the Approved Plans and Specifications, construction supervision
costs, carry during any period of delay in the completion of the Improvements
beyond the Outside Completion Date, legal fees incurred in connection with the
negotiation, enforcement, termination or any other action or proceeding in
connection with any of the Construction Documents or any of the foregoing.
"Default Notice" is defined in Section 15 of the Ground Lease.
"Determination Date" is defined in Section 3 of the Ground Lease.
"Directing Party" means in connection with (i) the declaration of an
Event of Default, and acceleration or termination of either the Construction
Agency Agreement, Loan Agreement or the Lease, as applicable, any Liquidity
Provider or any Investor or combination of any of the foregoing acting
separately or jointly (it being understood that no Participant or Participants
may rescind an instruction to declare an Event of Default and accelerate or
terminate either the Construction Agency Agreement, Loan Agreement or the
Lease); (ii) each Collateral Agent may independently exercise remedies with
respect to its related Liquid Collateral, regardless of a contrary determination
by the other Collateral Agent; (iii) the exercise of all other remedies under
either the Construction Agency Agreement, Loan Agreement, the Lease, or any
Security Document, the affirmative vote of the Majority Banks; (iv) the
amendment or modification of any Operative Document, the Majority Banks, except
any amendment or modification that only affects Fleet National Bank or First
Union and each of their respective Affiliates, Fleet National Bank, with respect
to matters affecting Fleet National Bank and its Affiliates only, and First
Union, with respect to matters affecting First Union and its Affiliates only;
and (v) all other matters requiring the consent, approval or decision of Lessor
or the Participants, in accordance with Section 12.5 of the Participation
Agreement.
"Documentation Date" is defined in Section 2.1(a) of the Participation
Agreement.
"Dollars" and "$" means dollars in lawful currency of the United States
of America.
16
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Drawn Rate" means the Eurodollar Rate plus if the Lessee Obligations
are secured on a Properly Margined Collateral Coverage basis, 45 basis points
per annum, and in all other circumstances, 55 basis points per annum.
"DTC" means The Depository Trust Company.
"Eagle" means EagleFunding Capital Corporation, a Delaware corporation.
"Eagle Covered Assets" is defined in Schedule 1 to the Liquidity
Agreement.
"Eligible Accrued Project Costs" means, as of any date of determination,
the aggregate amount of Improvement Costs accrued, including Construction Period
Accrued Interest and following a Construction Agency Event of Default and any
net periodic payments payable or paid under a Lessor Hedging Agreement; any
Default Completion Costs which may become payable, or which are incurred, at any
time prior to the Completion Date, as well as costs incurred subsequent thereto
for Final Completion Work, whether or not paid, but excluding (i) all Yield
which is capitalized during the Commitment Period pursuant to the Operative
Documents and (ii) Non-Capitalizable Transaction Costs.
"Eligible Assignee" means a bank or other financial institution or other
entity with a combined capital, surplus and undivided profits of at least
$100,000,000 and whose commercial paper is rated A-1 by S&P and P-1 by Moody's.
"Environmental Audit" means a Phase One Environmental Site Assessment
(the scope and performance of which meets or exceeds ASTM Standard Practice
E1527-93 Standard Practice for Environmental Site Assessments: Phase One
Environmental Site Assessment Process (or the most recent version thereof)) of
the Properties.
"Environmental Damages" has the meaning specified in Section 9.6(d) of
the Lease.
"Environmental Laws" means and include the Resource Conservation and
Recovery Act of 1976, (RCRA) 42 U.S.C. Sections 6901-6987, as amended by the
Hazardous and Solid Waste Amendments of 1984, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. Sections 9601- 9657, (CERCLA), the
Hazardous Materials Transportation Act of 1975, 49 U.S.C. Sections 1801-1812,
the Toxic Substances Control Act, 15 U.S.C. Sections 2601-2671, the Clean Air
Act, 42 U.S.C. Sections 7401 et seq., the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. Sections 136 et seq. and all similar federal, state
and local environmental laws, ordinances, rules, orders, statutes, decrees,
judgments, injunctions, codes and regulations or sources of legal liabilities,
and any other federal, state or local laws, ordinances, rules, codes and
regulations or sources of legal liabilities relating to the environment, the
impact or affect of Hazardous Materials on natural resources or the regulation
or control of or imposing liability or standards of conduct concerning Hazardous
Materials or the investigation, clean-up or other remediation of the Properties
(including any requirements imposed by common law), or regulating or restricting
the transfer of real property because of the presence of Hazardous Materials, as
any of the foregoing are from time to time amended, supplemented or supplanted.
"Environmental Report" is defined in Section 12.2 of the Lease.
17
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Environmental Requirements" means all Environmental Laws that are
applicable to the Site, the Construction and any Person connected therewith.
"Equipment" means the equipment listed on Schedule VII to the
Participation Agreement.
"Equity Percentage" means 4.0%.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time or any successor Federal statute.
"ERISA Affiliates" means any trade or business (whether or not
incorporated) under common control with HGSI within the meaning of Section
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).
"ERISA Group" means HGSI, and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with HGSI, are treated as a single employer under
Section 414 of the Code.
"Eurodollar Investor Contribution" means an Investor Contribution
accruing yield, at all times during an Interest Period applicable to such
Investor Contribution, at a fixed rate determined by reference to the Eurodollar
Rate.
"Eurodollar Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the Eurodollar Rate or an Investor Amount bearing Yield, at all
times during the Interest Period applicable thereto, by reference to the
Eurodollar Rate.
"Eurodollar Rate" means, for any Interest Period, the rate per annum
equal to (a) the London interbank offered rate (rounded upwards, if necessary,
to the next higher 1/100th of 1%) which appears on the Dow Jones & Company, Inc.
Telerate Page 3750, British Bankers Association Interest Settlement Rates as of
11:00 a.m. (London time) for deposits in Dollars on the day two (2) Business
Days prior to the first day of such Interest Period in an amount approximately
equal to the principal amount of the Loan or Investor Amount, as applicable, to
which such Interest Period is to apply and for a period corresponding as nearly
as possible to such Interest Period, (b) if no such rate appears on Telerate
Page 3750, the rate per annum equal to the arithmetic mean (rounded upwards, if
necessary, to the next higher 1/32nd of 1%) of the London interbank offered
rates which appears on the Reuters screen LIBO page on such day for deposits in
Dollars in an amount approximately equal to the principal amount of the Loan or
Investor Amount, as applicable, to which such Interest Period is to apply and
for a period corresponding as nearly as possible to such Interest Period, (c) if
neither clause (a) or clause (b) above is applicable, the rate per annum as
agreed to by the parties to the Loan, or (d) if such rate is not agreed to by
the parties pursuant to clause (c) two (2) Business Days prior to the first day
of such Interest Period, the average rate per annum then being paid by Fleet
National Bank and First Union in the London interbank market for deposits in
Dollars in an amount approximately equal to the principal amount of the Loan or
Investor Amount, as applicable.
18
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Event of Default" means (a) a Lease Event of Default under the Lease,
(b) a Conduit Loan Event of Default or (c) a Construction Agency Agreement Event
of Default.
"Event of Loss" means with respect to a Property (x) the actual or
constructive loss of all or substantially all of either or both of the Traville
Facility and the Manufacturing Facility or damage thereto which is uneconomical
or impractical to repair, (y) the taking by condemnation of title to all or
substantially all of either or both of the Traville Facility and the
Manufacturing Facility, or such portion thereof that makes use of the balance
uneconomic or impractical for Lessee, or (z) the taking by condemnation of the
use of all or substantially all of either or both the Traville Facility and the
Manufacturing Facility, or such portion thereof that makes use of the balance
uneconomic or impractical for Lessee, for a continuous period equal to or in
excess of one (1) year or the remaining Lease Term (if the remaining Lease Term
is less than one year).
"Excepted Rights" means, as to any Participant, the exclusive right of
such Participant to (i) retain all Excluded Amounts owing to it and (ii) to
demand, collect or commence any action in equity or at law to obtain such
payments and to enforce any judgment with respect thereto.
"Excess Funds" means with respect to Eagle, (i) prior to an Event of
Default, all funds not required after giving effect to all amounts on deposit in
the Commercial Paper Account, to pay or provide for the payment of all
Commercial Paper Notes of such Conduit maturing on the date of such
determination or that have previously matured but remain unpaid and (ii) after
the occurrence of an Event of Default, means all funds not required to pay or
provide for the payment of all outstanding Commercial Paper Notes of Eagle or
Commercial Paper Notes of Eagle that have previously matured but remain unpaid.
"Excluded Amounts" means:
(a) all indemnity payments and expenses to which any
Indemnitee is entitled pursuant to the Operative Documents;
(b) any amounts payable under any Operative Document to
reimburse Lessor, any Agent or any other Participant (including the
reasonable expenses of any such Person incurred in connection with any
such payment) for performing any of the obligations of Lessee under and
as permitted by any Operative Document;
(c) any insurance proceeds (or payments with respect to
risks self-insured or policy deductibles) under liability policies
payable to Lessor, any Agent or any other Participant (or any such
Person's successors, assigns, agents, trustees, officers, directors or
employees);
(d) any insurance proceeds under policies maintained by
Lessor, any Agent or any other Participant and not required to be
maintained by Lessee under the Lease;
(e) any amount payable by Lessee pursuant to Section 4.2(b)
of the Participation Agreement, whether or not such amounts are or can
be characterized as a Supplemental Rent;
19
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
(f) any right, title or interest of Lessor as counterparty
under any Lessor Hedging Agreement; and
(g) any payments of interest or Yield on payments referred
to in clauses (a) through (e) above.
"Facility A Loan" is defined in Section 2.1(b) of the A Loan Agreement.
"Facility A Note" is defined in Section 2.3(b) of the A Loan Agreement.
"Facility B Loan" is defined in Section 2.1(b) of the B Loan Agreement.
"Facility B Note" is defined in Section 2.3(b) of the B Loan Agreement.
"Facility Loan" means a Facility A Loan and/or a Facility B Loan.
"Fair Market Rent" is defined in Section 3 of the Ground Lease.
"Fair Market Value" means, (a) with respect to any Property, the amount,
which in any event shall not be less than zero, that would be paid in cash in an
arm's-length transaction between an informed and willing purchaser and an
informed and willing seller, neither of whom is under any compulsion to purchase
or sell, respectively, for the ownership of such Property, as set forth in an
applicable Appraisal and (b) with respect to any Liquid Collateral, the closing
bid price of each item of Liquid Collateral on the day the Liquid Collateral is
marked-to-market, plus in the case of Liquid Collateral issued on a coupon
basis, accrued and unpaid interest and yield thereon until such date, except
that with respect to items of Liquid Collateral that will mature within 90 days
of the determination date, the amortized amount of such item on such date. The
Fair Market Value of any Property shall be determined based on the assumption
that, except for purposes of Sections 7.1, 14.1(b) and 18.2(h) of the Lease or
otherwise expressly set forth in the Operative Documents, such Property is in
the condition and state of repair required under Section 9 of the Lease and
Lessee is in compliance with the other requirements of the Operative Documents
applicable to such Property and that the Property is free and clear of all
Liens.
"Fee Letters" means collectively, the Administrative Agent Fee Letter,
the Conduit Fee Letter, the First Union Fee Letter and the Conduit to Liquidity
Provider Fee Letter.
"Fees" means any amounts payable to any Agent or Eagle pursuant to
Section 9.10 of the Participation Agreement.
"Final Completion Work" means any work that, subsequent to Substantial
Completion of a Property, needs to be performed to achieve completion of the
Improvements on such Property in accordance with the applicable Plans and
Specifications.
"Final Payment Date" is defined in Section 18.2(e) of the Lease.
"Financing Statements" means, collectively, the Ground Lessor Financing
Statements, the Lessee Financing Statements, the Lessor Financing Statements and
the Ground Lessee Financing Statements.
20
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"First Union" means First Union National Bank.
"First Union Collateral Agent" means First Union National Bank.
"First Union Custodian" is defined in the preamble of the First Union
Custody Agreement.
"First Union Custody Agreement" means the First Union Custody Agreement,
dated as of the Documentation Date, among Lessee, Lessor, the First Union
Collateral Agent, the First Union Custodian and the Beneficiaries listed on
Schedule I thereto.
"First Union Fee Letter" means a letter dated the Documentation Date
between Administrative Agent and First Union.
"First Union Investor" is defined in the preamble of the Participation
Agreement.
"First Union Liquid Collateral" is defined in Section 2.1(a)(i) of the
First Union Liquid Collateral Agreement.
"First Union Liquid Collateral Agreement" means the First Union Liquid
Collateral Agreement, dated as of the Documentation Date, among Lessee, Lessor
and the First Union Collateral Agent.
"First Union Liquidity Provider" is defined in the preamble of the
Participation Agreement.
"Fiscal Quarter" means each of Lessee's four fiscal reporting periods
ending, respectively, on March 31, June 30, September 30 and December 31 of each
year or such other fiscal quarters as then correspond to HGSI's fiscal year.
"Fixtures" is defined in the Granting Clause of each Deed of Trust.
"Fleet Investor" is defined in the preamble of the Participation
Agreement.
"Fleet Liquidity Provider" is defined in the preamble of the
Participation Agreement.
"Fleet National Bank Collateral Agent" means Fleet National Bank.
"Fleet National Bank Custodian" is defined in the preamble of the Fleet
National Bank Custody Agreement.
"Fleet National Bank Custody Agreement" means the Fleet National Bank
Custody Agreement, dated as of the Documentation Date, among Lessee, Lessor, the
Fleet National Bank Collateral Agent, the Fleet National Bank Custodian and the
Beneficiaries listed on Schedule I thereto.
"Fleet National Bank Liquid Collateral" is defined in Section 2.1(a)(i)
of the Fleet National Bank Liquid Collateral Agreement.
21
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Fleet National Bank Liquid Collateral Agreement" means the Fleet
National Bank Liquid Collateral Agreement, dated as of the Documentation Date,
among Lessee, Lessor and the Fleet National Bank Collateral Agent.
"Fleet National Bank Security Documents" means the Fleet National Bank
Liquid Collateral Agreement and the Security Documents.
"Force Majeure Event" means, with respect to Construction, any event
(the existence of which at the construction commencement date was not known, or
would not reasonably have been expected to be discovered through the exercise of
commercially reasonable due diligence, by Lessee or Construction Agent, as
applicable, taking into account the contemplated use of the Land and the
Construction) beyond the control of any such Person, including, but not limited
to, general strikes (but not any strike or other job action involving employees
of Construction Agent or any Construction Agency Person or Lessee), acts of God,
government activities directly interfering with the work of construction of the
Improvements, any general inability to obtain labor or materials, civil
commotion and enemy action; but excluding in all cases any event, cause or
condition that results from a breach by Lessee, Construction Agent or any
Construction Agency Person of its obligations, representations or warranties
under the Operative Documents or any other agreements to which it is a party,
from any Construction Agency Person's financial condition or failure to pay or
any event, cause or condition which could have been avoided or which could be
remedied or mitigated through the exercise of commercially reasonable efforts or
the commercially reasonable expenditure of funds (which expenditure of funds, in
the case of such an event, cause or condition arising on or after the Initial
Advance Date, would have been covered by funds available under the applicable
Construction Budget or Other Available Amounts) or other commercially reasonable
action, election or arrangement which would correct or resolve the impact of
such event on the Construction.
"Full Recourse Event of Default" means any of the following:
(i) a Construction Agency Event of Default arising in whole
or in part as a consequence of any fraudulent act or omission of any
Construction Agency Person in connection with the negotiation,
execution, delivery, consummation and/or performance of any Operative
Document or the Construction Documents;
(ii) a Construction Agency Event of Default arising in whole
or in part as a consequence of the misapplication of any Advance or any
portion thereof or any other funds made available to, or on behalf of,
Construction Agent or any other Construction Agency Person under any
Operative Document;
(iii) a Construction Agency Event of Default arising as a
consequence of an Insolvency Event with respect to Construction Agent;
or
(iv) any Construction Agency Person shall willfully breach
any of its respective obligations, covenants, representations or
warranties under any Operative Document, the Construction Documents or
any other contractual agreement or Governmental Approval relating to any
Site or the Construction thereon.
22
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"GAAP" means United States generally accepted accounting principles in
effect from time to time consistently applied.
"General Contractor" means a general contractor, developer or
construction manager engaged by Construction Agent for the construction of
Improvements.
"General Cost Balance" means, as of any time of determination, the
aggregate of all amounts advanced to Lessee on or before such time of
determination pursuant to Section 2.2 of the Participation Agreement which (i)
were allocated under the heading "General Costs" on Schedule 1 to the applicable
Advance Requests and (ii) as of such time of determination, have not yet been
repaid by Lessee in accordance with the terms of the Operative Documents.
"General Counsel" is defined in section 4.1(w) of the Participation
Agreement.
"Government Obligations" means readily marketable direct full faith and
credit obligations of the United States of America or obligations
unconditionally guaranteed by the full faith and credit of the United States of
America.
"Governmental Action" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, decrees,
licenses, exemptions, publications, filings, notices to and declarations of or
with, or required by, any Governmental Authority, or required by any Applicable
Laws, and shall include, without limitation, all citings, environmental and
operating permits and licenses that are required for the use, occupancy, zoning
and operation of the Properties.
"Governmental Authority" means any federal, state, county, municipal or
other governmental or regulatory authority, agency, board, body, commission,
instrumentality, court or quasi-governmental authority.
"Gross Sales Proceeds" means Net Sales Proceeds plus all Remarketing
Sale Expenses.
"Ground Lease" means that certain Ground Lease, dated as of the
Documentation Date, between HGSI, as Landlord, and the Trust, as Tenant, in
respect of the Land, as the same may be amended in accordance with the terms
thereof.
"Ground Lease Event of Default" is defined in Section 15(a) of the
Ground Lease.
"Ground Lease Purchase Option" is defined in Section 23(b) of the Ground
Lease.
"Ground Lease Rent" is defined in Section 3 of the Ground Lease.
"Ground Lessee" means the Trust.
"Ground Lessor" means Traville LLC as the Landlord under the Ground
Lease.
"Ground Lessor Financing Statements" means UCC-1 financing statements
made by Ground Lessor, as debtor, in favor of Lessor, as secured party,
appropriately completed and
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APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
executed for filing with the offices listed in Part D of Schedule III to the
Participation Agreement in order to protect Lessor's interest under the Security
Agreement.
"Hazardous Condition" means any condition that violates or threatens to
violate, or that results in or threatens noncompliance with, any Environmental
Law.
"Hazardous Material" means any substance, waste or material which is
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous, including petroleum, its derivatives,
by-products and other hydrocarbons and friable asbestos and is or becomes
regulated by any Governmental Authority, including any agency, department,
commission, board or instrumentality of the United States, the State of Maryland
or any political subdivision thereof.
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under interest rate or currency swap agreements, interest or
exchange rate cap agreements and interest or exchange rate collar agreements,
and all other agreements or arrangements designed to protect such Person against
fluctuations in interest rates, currency exchange rates or commodity prices.
"HGSI" means Human Genome Sciences, Inc., a Delaware corporation.
"Improvement Costs" means the costs incurred in the construction and
development of the Improvements including Soft Costs.
"Improvements" means the Traville Improvements, the Manufacturing
Facility Improvements, the Traville Land Improvements and the Manufacturing
Facility Land Improvements.
"In Balance" means, with respect to any Site at any time of
determination thereof: (1) the undisbursed portions of the applicable Approved
Construction Budget with respect to such Property, together with Other Available
Amounts related to such Property, shall be sufficient to complete construction
of the Improvements in accordance with the terms and conditions of the
Construction Agency Agreement prior to the applicable Outside Completion Date,
and (2) the undisbursed portion of each item described in the applicable
Approved Construction Budget, as such amounts may be adjusted pursuant to the
Construction Agency Agreement (including the contingency reserve in the
applicable Approved Construction Budget, to the extent such contingency funds
have not theretofore been set aside by Construction Agent for the payment of
overruns in other cost categories and Other Available Amounts) shall be
sufficient to complete the Construction of each such item in accordance with the
terms and conditions of the Construction Agency Agreement prior to the Outside
Completion Date.
"Increased Costs" is defined in Section 9.7 of the Participation
Agreement.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
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APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person other than
letters of credit or banker's acceptances that support obligations of
such Person in respect of accounts payable, trade payments and other
short-term trade related obligations;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Obligations; and
(d) all Contingent Liabilities of such Person recorded in
the financial statements (including the notes thereto) of such person
and its consolidated subsidiaries in respect of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture characterized as a
partnership for commercial law purposes in which such Person is a general
partner or a joint venturer. The amount of Indebtedness of any Person at any
date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability of any such Contingent
Liabilities at such date.
"Indemnitee" means Lessor, each Investor, Eagle, each Liquidity
Provider, each Agent, Securities Intermediary, the Administrator, each Program
Support Provider, Arranger, each Lessor Hedging Agreement Counterparty and the
respective successors, permitted assigns, permitted transferees, invitees,
trustees, contractors, servants, employees, officers, directors, shareholders,
partners, participants, representatives and agents of the foregoing Persons;
provided, however, that in no event shall Lessee or any Affiliate of Lessee be
an Indemnitee.
"Initial Advance Date" is defined in Section 2.1(b) of the Participation
Agreement.
"Insolvency Event" means, with respect to any Person, any event pursuant
to which such Person makes an assignment of or for the benefit of creditors,
files a case or petition in bankruptcy, petitions or applies to any tribunal for
the appointment of a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) for it or for a substantial part of its
property, commences any case or proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect, consents or acquiesces in
the filing of any such petition, application, proceeding or appointment of or
taking possession by the custodian, receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of such Person or any substantial part
of its property, or admits its inability to pay its debts generally as they
become due, or authorizes any of the foregoing to be done or taken on behalf of
such Person, or any case or petition in bankruptcy or under any other insolvency
law is commenced against such Person and results in an order for relief or is
not dismissed within 90 days after such commencement.
"Instituting Party" is defined in Section 6.4 of the Participation
Agreement.
"Insurance Consultant" means Robert M. Currey & Associates or such other
Person as may be selected by Lessor and reasonably acceptable to Lessee.
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APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Insurance Requirements" means all terms and conditions of any insurance
policy either required by the Lease to be maintained by Lessee or required by
the Construction Agency Agreement to be maintained by Construction Agent, and
all requirements of the issuer of any such policy.
"Interest Period" means, (a) with respect to any Loan or any Investor
Amount bearing interest or Yield by reference to either the Eurodollar Rate or
the ABR, all or any portion of the period from and including the Initial Advance
Date to but excluding the next succeeding Scheduled Payment Date and thereafter
from and including a Scheduled Payment Date to but excluding the next succeeding
Scheduled Payment Date during which such Loan or Investor Amount bears interest
by reference to such rate; and (b) with respect to any Loan bearing interest at
the CP Rate, all or a portion of the period from and including the Initial
Advance Date to but excluding the 1st day of the next succeeding calendar month
and thereafter from and including the 1st day of each calendar month to but
excluding the 1st day of the next succeeding calendar month, provided that with
respect to the final Scheduled Payment Date, the Interest Period for Loans
bearing interest at the CP Rate shall commence on the first day of the Interest
Period for which interest has not been paid and end on, but exclude the final
Scheduled Payment Date.
"Inventory" is defined in the Granting Clause Second of the Security
Agreement.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, together with the rules and regulations promulgated thereunder.
"Investment Grade" means a rating of "BBB-" (or higher) by S&P and a
rating of "Baa3" (or higher) by Moody's.
"Investor Amount" means at any time the amount of the Investor
Contributions owed to an Investor as evidenced by an Investor Certificate, less
any repayments thereon.
"Investor Base Rent" means, for each Scheduled Payment Date, an amount
equal to the Yield accrued on the Investor Amount at the Yield Rate during the
Interest Period ending on such date.
"Investor Certificate" means, for each Investor, a certificate
substantially in the form of Exhibit A to the Trust Agreement, evidencing the
equity interest of such Investor in the Trust.
"Investor Certificate Participant" is defined in Section 3.8(g) of the
Trust Agreement.
"Investor Certificate Register" is defined in Section 3.8(a) of the
Trust Agreement.
"Investor Contribution" is defined in Section 2.2.2 of the Participation
Agreement.
"Investor Maturity Date" means November 7, 2008.
"Investors" means, collectively, the Persons named as Investors in the
Participation Agreement and each other assignee or successor thereof.
"Issuer" means Eagle.
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APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Issuer Group" means any member of the same affiliated group for
purposes of GAAP.
"Land" means, collectively, each of the Sites.
"Land Agreement" is defined in Section 9.8 of the Lease.
"Land Costs" means all costs of acquisition of the Manufacturing
Facility Site. "Land Improvement Costs" means the aggregate amounts
advanced by Lessor to fund the costs of the
Manufacturing Facility Land Improvements.
"Land Improvements" means, as applicable the Traville Land Improvements
and/or the Manufacturing Facility Land Improvements.
"Landlord" means Traville LLC, as Ground Lessor under the Ground Lease.
"Lease" means the Lease Agreement, dated as of the Documentation Date,
between Lessor, as lessor, and Lessee, as lessee, in respect of the Properties.
"Lease Balance" means, at any time of determination, the sum of (a) the
Traville Lease Balance plus (b) the Manufacturing Lease Balance. For the
avoidance of doubt the Lease Balance shall at all times equal the sum of (a) the
then outstanding principal balance of all Notes plus (b) the then outstanding
total Investor Amounts.
"Lease Commencement Date" means, with respect to a Property, the date on
which Substantial Completion has occurred as to such Property.
"Lease Default" means any condition, event or act which, with notice or
lapse of time or both, would become a Lease Event of Default.
"Lease Event of Default" has the meaning specified in Section 18.1 of
the Lease.
"Lease Term" means, with respect to each Property, the period commencing
on and including the Lease Commencement Date and ending on the Lease Term
Expiration Date.
"Lease Term Expiration Date" means the fifth (5th) anniversary of the
last Lease Commencement Date with respect to the Properties, but not to extend
beyond seven (7) years from the Documentation Date, or such earlier date if the
Lease is so terminated pursuant thereto.
"Leasehold Deed of Trust" is defined in Section 16 of the Ground Lease.
"Leasehold Deed of Trust" is defined in Section 16 of the Ground Lease.
"Lease Rents" is defined in Section 2(a) of the Assignment of Lease and
Rents.
"Legal Requirements" means all Federal, state, county, municipal and
other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting the Property or any portion thereof
or the use or alteration thereof, whether now or hereafter enacted and in force,
including any that require repairs, modifications or
27
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
alterations in or to the Property or any portion thereof or in any way limit the
use and enjoyment thereof and any that may relate to Environmental Laws, and all
permits, certificates of occupancy, licenses, authorizations and regulations
relating thereto, and all covenants, agreements, restrictions and encumbrances
contained in any instruments which are either of record or known to Lessee
affecting the Property or any portion thereof.
"Lender" means Eagle or any Liquidity Provider and "Lenders" refers to
all of the foregoing persons.
"Lessee" means HGSI.
"Lessee Assignment of Lease" means the Assignment of Lease, dated the
Documentation Date, from Lessee, as assignor, to Lessor, as assignee.
"Lessee Collateral" means all of Lessee's right, title and interest in
and to each of the following, however arising and whether now existing or
hereafter acquired or arising:
(a) Pledged Liquid Collateral;
(b) the Properties and Related Equipment; and
(c) all products (other than products produced in the
Improvement), excess successions, subleases, rents, issues, profits, returns,
income and proceeds of and from any or all of such Lessee Collateral (including
proceeds which constitute property of the type described in clause (a) above,
and to the extent not otherwise included, all payments under insurance (whether
or not Lessor is the loss payee hereof) or any indemnity, warranty or guarantee
payable by reason of loss or damage to or otherwise with respect to any of the
foregoing.
"Lessee Deed of Trust" means the Deed of Trust and Security Agreement,
dated the Documentation Date, made by Lessee as mortgagor, in favor of Lessor,
as mortgagee.
"Lessee Financing Statements" means UCC-1 financing statements made by
Lessee, as debtor, in favor of Lessor, as secured party, appropriately completed
and executed for filing with the offices listed in Part A of Schedule III to the
Participation Agreement in order to protect Lessor's interest under the Security
Agreement.
"Lessee Obligations" means all obligations of the Lessee under the
Operative Documents.
"Lessee Operative Document" means the Participation Agreement and each
other Operative Document to which HGSI in any capacity is a party.
"Lessee Person" means Lessee or any affiliate in its capacity as owner,
Construction Agent, or any Affiliate or successors and assigns of the foregoing,
and all of their respective officers, directors, shareholders, partners,
employees, agents, consultants (on the Property), service-providers (on the
Property), and any other Person under the supervision of any of the foregoing
pursuant to a written contract or otherwise.
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APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Lessee's Incremental Borrowing Rate" means the rate used by Lessee in
calculating the 90% cost recovery test under FASB 13.
"Lessee's Property" has the meaning given such term in Section 8.3 of
the Lease.
"Lessor" means the Trust.
"Lessor Assignment of Lease" means the Assignment of Lease, dated the
Documentation Date, from Lessor, as assignor, to the Administrative Agent, as
assignee.
"Lessor Deed of Trust" means the Deed of Trust and Security Agreement,
dated the Documentation Date, made by Lessor as mortgagor, in favor of
Administrative Agent, as mortgagee.
"Lessor Financing Statements" means UCC-1 financing statements made by
Lessor, as debtor, in favor of the Administrative Agent, as secured party,
appropriately completed and executed for filing with the offices listed in Part
B of Schedule III to the Participation Agreement in order to protect the Ground
Lessee's interest under the Security Agreement.
"Lessor Hedging Agreement" is defined in Section 6.12 of the
Participation Agreement.
"Lessor Hedging Agreement Counterparty" means the counterparty (other
than Lessor) under any Lessor Hedging Agreement.
"Lessor Insurance Consultant" means RM Currey & Associates.
"Lessor Liens" means Liens on or against the Properties or the Lease or
any payment of Rent (a) which result from any act of, or any Claim against,
Lessor, any owner of a direct or indirect interest in Lessor, unrelated to its
interest in the Properties or the transaction, or which result from any
violation by Lessor of any of the terms of the Operative Documents or (b) which
result from Liens in favor of any taxing authority by reason of any Tax owed by
Lessor, any owner of a direct or indirect interest in Lessor, except that Lessor
Liens shall not include any Lien resulting from any Tax for which Lessee is
obligated to indemnify Lessor.
"Lessor's Interests" means all of the rights and interests in and to the
Properties including the estate demised to Ground Lessee pursuant to or under
the Ground Lease.
"Lien" means any Deed of Trust, deed of trust, pledge, security
interest, encumbrance, lien, easement, servitude or charge of any kind,
including any irrevocable license, conditional sale or other title retention
agreement, any lease in the nature thereof, or any other right of or arrangement
with any creditor to have its claim satisfied out of any specified property or
asset with the proceeds therefrom prior to the satisfaction of the claims of the
general creditors of the owner thereof, whether or not filed or recorded, or the
filing of, or agreement to execute as "debtor", any financing or continuation
statement under the UCC of any jurisdiction or any federal, state or local lien
imposed pursuant to any Environmental Law.
"Liquid Collateral" means Permitted Investments with a scheduled
maturity date of not more than seven (7) years from the date of purchase, except
for corporate bonds rated lower than
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APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
A by S&P or A2 by Moody's which must have a scheduled maturity date not to
exceed five (5) years from the date of purchase.
"Liquid Collateral Agreements" means the Fleet National Bank Liquid
Collateral Agreement and the First Union Liquid Collateral Agreement.
"Liquidity Agent" means Fleet National Bank.
"Liquidity Agreement" means the Liquidity Agreement, dated as of the
Documentation Date, among Eagle, the Liquidity Providers, Fleet National Bank,
as Liquidity Agent, and the Liquidity Agreement Collateral Agent.
"Liquidity Agreement Collateral Agent" means Bankers Trust Company.
"Liquidity Fee" means a fully earned fee when and as paid, payable in
arrears on each Scheduled Payment Date on or prior to the Termination Date (as
defined in the Liquidity Agreement) in an amount equal to either (a) 0.20% per
annum of the excess of (i) the sum of the daily average outstanding principal
balance of each of the Conduit Loans over (ii) the sum of the daily average
outstanding principal balance of the fundings made by each of the Liquidity
Providers to the Conduit in the event that and so long as the Liquid Collateral
in such Liquidity Provider's related Account constitutes Properly Margined
Liquid Collateral, or (b) 0.25% per annum of the excess of (i) the sum of the
daily average outstanding principal balance of each of the Conduit Loans over
(ii) the sum of the daily average outstanding principal balance of the fundings
made by each of the Liquidity Providers to the Conduit in the event that and so
long as the Liquid Collateral in such Liquidity Provider's related Account
constitutes Non-Properly Margined Liquid Collateral.
"Liquidity Provider" means each financial institution party to the
Liquidity Agreement as a Liquidity Provider; the initial Liquidity Providers are
Fleet National Bank and First Union.
"Liquidity Provider Share" means with respect to Fleet National Bank,
55.787%, and with respect to First Union, 44.213%. In the event that any
Liquidity Provider transfers any of its interests in the Facility Loans, such
Liquidity Provider's Liquidity Provider Share shall be reduced by the same
percentage as the percentage of such Liquidity Provider's interest transferred
thereby, and the transfee's Liquidity Provider Share shall be increased by the
same percent.
"Loan Agreement" means, collectively, the A Loan Agreement and the B
Loan Agreement.
"Loan Base Rent" means on each Scheduled Payment Date, an amount equal
to the aggregate interest due and payable on such date on Loans pursuant to the
Loan Agreement.
"Loan Documents" means the Loan Agreement, the Notes and the Security
Documents.
"Loan Percentage" means 96.0%.
"Loans" means the Conduit Loans and/or the Facility Loans, as
applicable.
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APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Majority Banks" means one or more Liquidity Providers and Investors
whose aggregate Commitment(s) comprise at least 66-2/3% of the Total Commitment,
or, if the Commitments of the Liquidity Providers and Investors are terminated,
of the outstanding Facility Loans and Investor Amounts.
"Manufacturing As-Built Appraisal" is defined in Section 4.3(q) of the
Participation Agreement.
"Manufacturing Construction Materials" is defined in the Recital D of
the Construction Agency Agreement.
"Manufacturing Construction Period Maximum Guaranty Amount" means an
amount equal to the product of (a) a fraction (i) the numerator of which equals
the Manufacturing Lease Balance, and (ii) the denominator of which equals the
Lease Balance, and (b) the Construction Period Maximum Guaranty Amount.
"Manufacturing Facility" means the Manufacturing Facility Improvements
and the Manufacturing Facility Site.
"Manufacturing Facility Improvements" means the buildings, structures,
improvements and fixtures and Related Equipment now or hereafter situated or
located on the Manufacturing Facility Site, including the roads, parking lots
and structures, electrical equipment, power plants, storage tanks, air
conditioning systems, emergency systems, access ways, sidewalks, recreational
areas, vehicle control facilities, landscaping, and utility and service systems
used or procured for use in connection with the operation and maintenance of
such buildings and structures, but excluding Lessee's Property.
"Manufacturing Facility Land Improvements" means all work necessary in
connection with the development of the Manufacturing Facility Site, including
excavation; roads and roadways; curbs; gutters; storm drains; flood control
ditches and causeways; sidewalks; joint trenches for power, gas, sewer, domestic
water and irrigation; sanitary tie-ins; reparcelization and subdivisions;
traffic mitigation improvements; grading (including obtaining any necessary
slope easement rights from adjacent land owners and installation and proper
compaction, reinforcement, and seeding of such slopes); and other land
improvements, in each case to the extent the costs of construction of which are
allocable to the Manufacturing Facility Site under generally accepted accounting
principles, consistently applied by Lessee.
"Manufacturing Facility Site" means the land described in Exhibit A-2 to
the Lease, and all Appurtenant Rights relating to the foregoing.
"Manufacturing Facility Site Purchase Advance" means the Advance to fund
the Land Costs.
"Manufacturing Facility Site Purchase Date" is defined in Section 2.1(d)
of the Participation Agreement.
"Manufacturing Facility Supplement" is defined in Section 2.3 of the
Construction Agency Agreement.
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APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Manufacturing Lease Balance" means, at any time of determination, the
aggregate of all amounts advanced to Lessee prior to such time of determination
pursuant to Section 2.2 of the Participation Agreement which (i) are
appropriately allocable to the Manufacturing Facility in accordance with Section
2.2.6(b) and (c) of the Participation Agreement and (ii) as of such time of
determination, have not yet been repaid by Lessee in accordance with the terms
of the Operative Documents.
"Manufacturing Residual Value Guaranty Amount" means 87.743% of the then
outstanding Manufacturing Lease Balance.
"Marketable Securities" means all securities regularly traded on a
national securities exchange that are reflected on the balance sheet of HGSI and
its consolidated subsidiaries in accordance with GAAP.
"Material Adverse Effect" means any change or changes, effect or effects
or condition or conditions that individually or in the aggregate are materially
adverse to (i) the ability of Lessee or Construction Agent to perform its
obligations under the Operative Documents to which it is a party or to lease the
Properties under the Lease, (ii) the validity or enforceability of any of the
Operative Documents or any rights or remedies under any thereof, (iii) the
status, priority or perfection of the Administrative Agent's or any Collateral
Agent's Lien on any collateral or (iv) the value or condition of any Property.
"Material Construction Documents" means the contracts identified on
Schedule I to the Participation Agreement.
"Material Lease Default" means any Lease Default described in Section
18.1(d) of the Lease.
"Maturity Date" means, if the Construction Agency Agreement is
terminated pursuant to Article V thereof, the day of termination of the
Construction Agency Agreement; otherwise, the last day of the Lease Term.
"Mediation Cost" is defined in Section 9.2(d) of the Lease.
"Memorandum of Ground Lease" means the Memorandum of Ground Lease, dated
the Documentation Date, between the Ground Lessee and Lessor.
"Memorandum of Lease" means the Memorandum of Lease dated the
Documentation Date between Lessor and Lessee.
"Money Market Funds" means any regulated investment company of
recognized standing shares of which are marketable with more than one billion
dollars in assets that has had a historically constant dollar net asset value
and has been in business more than five years, and whose performance is easily
tracked.
"Monthly Report" means the Monthly Report delivered pursuant to Section
6.1(b)(i) of the Participation Agreement.
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APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Moody's" means Moody's Investors Service, Inc., or any successor
thereto.
"Mortgage Affidavit" is defined in section 4.1(w) of the Participation
Agreement.
"Mortgage Backed Securities" means any sequential, targeted or planned
amortization mortgage-backed U.S. Agency Obligation rated at the time when
pledged to the applicable Account and at all times thereafter Aaa by Moody's and
AAA by S&P.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Negotiable Certificates of Deposit" means negotiable certificates of
deposit traded on the secondary market of any commercial bank incorporated under
the laws of the United States, or any state thereof, of recognized standing
whose short-term commercial paper rating at the time the securities are pledged
to the applicable Account and at all times thereafter is at least A-1 by S&P and
at least P-1 by Moody's and whose long-term unsecured debt rating at the time
the negotiable certificates of deposit are pledged to the Account and at all
times thereafter is at least A by S&P and A2 by Moody's.
"Net Casualty Proceeds" means the compensation and/or insurance payments
net of the expenses of collecting such amounts received by Administrative Agent,
Lessor or Lessee in respect of the Properties by reason of and on account of an
Event of Loss described in clause (x) of the definition thereof or a Casualty.
"Net Condemnation Proceeds" means any award or compensation net of the
expenses of collecting such amounts received by Administrative Agent, Lessor or
Lessee in respect of the Properties by reason of and on account of an Event of
Loss described in clause (y) or (z) of the definition thereof or a Condemnation.
"Net Proceeds" means Net Casualty Proceeds and Net Condemnation
Proceeds.
"Net Sales Proceeds" means Gross Sale Proceeds less costs and expenses
to be paid pursuant to Section 10.5, clause first of the Participation
Agreement.
"Non-Capitalizable Transaction Costs" means the Transaction Costs listed
on Schedule VI of the Participation Agreement.
"Non-Consenting Liquidity Provider" is defined in Section 8.5 of the
Participation Agreement.
"Non-Consenting Participant" is defined in Section 8.5(a) of the
Participation Agreement.
"Non-Curable Defaults" is defined in Section 16(B) of the Ground Lease.
33
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Noneligible Accrued Amounts" means the Yield, Fees and Transaction
Costs which, are payable directly to any Participant if such Participant or an
Affiliate of such Participant is also an Investor; provided, however, that in no
event shall "Noneligible Accrued Amounts" include (x) Transaction Costs payable
to any agent, representative or outside counsel of any Participant if such
Person is not considered an Affiliate of an Investor, (y) any Program Fees or
(z) premiums or proceeds from residual value insurance.
"Non-Properly Margined Liquid Collateral" means Liquid Collateral
credited to an Account that (i) satisfies the Concentration Limits but (ii) is
not otherwise Properly Margined Liquid Collateral.
"Non-Public Company" means a Person that at the time of determination is
not obligated to register any class of securities pursuant to Section 12 or
Section 15 of the Securities and Exchange Act of 1934, as amended.
"Nonrelated Construction Event" means any act or omission occurring
prior to the Lease Commencement Date (i) to the extent such act or omission is
attributable to a Person who is not a Construction Agency Person, or (ii) that
would not constitute a breach by Lessee or Construction Agent, of any of their
respective obligations under any of the Operative Documents and for which
Construction Agent does not otherwise have responsibility under the Construction
Agency Agreement.
"Nonseverable" shall describe an Alteration or part of an Alteration
which cannot be readily removed from a Property without causing damage (other
than that of a de minimis nature) to the Property.
"Non-U.S. Person" means any Person which is, or under United States tax
law is treated as, other than (i) a citizen or resident of the United States or
(ii) a corporation, partnership or limited liability company created or
organized in the United States or under the law of the United States or of any
state in the United States or the District of Columbia.
"Notes" means A Notes and the B Notes.
"Notice of Alteration" is defined in Section 9.2(d) of the Lease.
"Notice of Objection" is defined in Section 9.2(d) of the Lease.
"Obligor" means Lessee or any of its respective Affiliates.
"Officer's Certificate" (i) of a Person (other than Lessee) means a
certificate signed by the Chairman of the Board of Directors or the President or
any Executive Vice President or any Senior Vice President or any other Vice
President of such Person signing with the Treasurer or any Assistant Treasurer
or the Controller or any Assistant Controller, Cashier, Assistant Cashier or the
Secretary or any Assistant Secretary (or in the case of the Trustee, any
Financial Services Officer) of such Person, or by any Vice President who is also
Controller, Treasurer or Cashier signing alone and (ii) in respect of Lessee
means a certificate signed by any officer of Lessee or HGSI.
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APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Operative Documents" means, collectively, the following: (a) the
Participation Agreement, (b) the Construction Agency Agreement, (c) the Lease,
(d) the Ground Lease, (e) the Memorandum of Lease, (f) the Memorandum of Ground
Lease, (g) the Loan Agreement, (h) the Notes, (i) the Investor Certificates, (j)
the Security Documents, (k) the Trust Agreement, and (l) the Fee Letters, (m)
the Liquidity Agreement, (n) the Account Agreements and (o) any Lessor Hedging
Agreements.
"Original Payment" is defined in Section 9.4(b) of the Participation
Agreement.
"Other Available Amounts" means any insurance proceeds available under
related insurance policies maintained by or on behalf of Lessee, Lessor or
Construction Agent, letter of credit proceeds, proceeds under surety bonds, and
similar proceeds consisting of available cash which are payable to Lessee,
Lessor or Construction Agent in settlement of a Claim or for use in the
Construction of the Improvements.
"Other Lease Rents" is defined in Section 2(b) of the Assignment of
Lease and Rents.
"Other Leases" is defined in Section 2(b) of the Assignment of Lease and
Rents.
"Outside Completion Date" means in respect to the Traville Facility
December 31, 2003 and in respect to the Manufacturing Facility March 31, 2004.
"Overall Transaction" means the transactions contemplated by the
Operative Documents.
"Overdue Rate" means, with respect to any Loan or Investor Amount then
outstanding, the lesser of (a) the highest interest rate permitted by Applicable
Law and (b) the sum of (i) 2% plus (ii) the interest rate applicable to such
Loan or the Yield Rate applicable to such Investor Contribution, as the case may
be.
"Participant Collateral" is defined in Granting Clause Second of the
Security Agreement.
"Participants" means collectively, the Liquidity Providers, the
Investors and Eagle.
"Participation Agreement" means the Participation Agreement dated as of
the Documentation Date, among the Trust, the Trustee, Human Genome Sciences,
Inc. as Lessee and Construction Agent, Traville LLC, as Ground Lessor,
BancBoston Leasing Investments Inc. and First Union as Investors, Eagle, the
Administrator, Fleet National Bank and First Union as Liquidity Providers, Fleet
National Bank and First Union as Collateral Agents, the Administrative Agent and
the Liquidity Agent.
"Payment Office" means the offices of the Administrative Agent as set
forth on Schedule II to the Participation Agreement or such other office as the
Administrative Agent may designate in writing to Lessee, Lessor, the other
Agents, the Conduit and the Liquidity Providers.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
35
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Percentage Share" or "Investor's Percentage Share" for each Investor
means (a) prior to the second Lease Commencement Date, the Commitment of any
Investor as a percentage of the aggregate Commitments of all the Investors; and
(b) on or after the second Lease Commencement Date, the Investor Contribution of
an Investor as a percentage of the aggregate Investor Contributions of all the
Investors.
"Permitted Contest" means actions taken by a Person to test, challenge,
contest, appeal or request of a proceeding for review in good faith, by
appropriate proceedings timely initiated and diligently prosecuted, the
legality, validity or applicability to the Property or any interest therein of
any Person of: (a) any Applicable Law; (b) any provision of a Land Agreement;
(c) any term or condition of, or any revocation or amendment of, or other
proceeding relating to, any authorization or other consent, approval or other
action by any Governmental Authority; or (d) any Lien or Tax; provided that the
initiation and prosecution of such contest would not result in (i) an imminent
risk of sale, forfeiture or loss of the Lien created by the Operative Documents
or the right, title or interest of Lessor in or to the Property or any portion
thereof or interruption of all or any portion of the Rent, Lease Balance, or any
other amount payable under the Operative Documents by reason of attachment or
other Lien, (ii) a risk of criminal liability being imposed upon any
Participant, (iii) the enjoinment of or interference with the use, possession or
disposition of the Properties in a material respect ,or (iv) materially and
adversely affect the Fair Market Value, use or remaining useful life of the
Property or any portion thereof or the continued economic operation thereof; and
provided, further, that in any event adequate reserves in accordance with GAAP
are maintained by such Person against any adverse determination of such contest.
"Permitted Investments" means,
the following investments, in each case payable in Dollars and
payable in the United States of America: (a) U.S. Treasury Obligations
and U.S. Agency Obligations, (b) commercial paper notes with a rating of
P-1 or higher by Moody's and a rating of A-1 or higher by S&P, (c) notes
or debentures issued or guaranteed by a state or political subdivision
of a state rated at the time when pledged to the applicable Account and
at all times thereafter at least A3 or higher by Moody's and A- or
higher by S&P (separately or collectively, "Municipal Bonds"), (d) any
unsecured long-term debt obligations (other than Municipal Bonds) rated
at the time when pledged to the applicable Account and at all times
thereafter at least A3 or higher by Moody's and A- or higher by S&P
(separately or collectively, "Bonds"), (e) any asset-backed securities
rated at the time when pledged to the applicable Account and at all
times thereafter Aaa by Moody's and AAA by S&P, (separately or
collectively, "Asset Backed Securities") (f) Money Market Funds, (g)
Repurchase Obligations, (h) Mortgage Backed Securities, (i) Negotiable
Certificates of Deposit, and (j) Bank Obligations. Permitted Investments
shall include those investments for which the Collateral Agent or an
Affiliate of the Collateral Agent provides services, provided that such
investments meet the criteria of any of (a)-(j) above. If a Permitted
Investment is rated only by S&P or Moody's, such single rating shall be
applicable.
"Permitted Liens" means:
36
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
(a) Liens created pursuant to the Operative Documents and
the respective rights and interests of Lessee, Lessor, the Ground Lessor
and any Participant and their respective permitted transferees and
assignees, as provided in the Operative Documents,
(b) Lessor Liens,
(c) Liens for Taxes either not yet due or being contested in
compliance with Section 9.5 of the Lease,
(d) materialmen's, mechanics', workers', repairmen's,
employees' or other like Liens on Lessee's interest in the Properties
for amounts either not yet due or being contested in compliance with
Section 9.5 of the Lease,
(e) Liens arising out of judgments or awards with respect to
which at the time an appeal or proceeding for review is being prosecuted
in good faith and either which have been bonded or for the payment of
which adequate reserves shall have been provided as required by GAAP or
other appropriate provisions have been made, so long as such proceedings
have the effect of staying the execution of such judgments or awards and
are being contested pursuant to Section 9.5 of the Lease,
(f) easements, rights of way, reservations, servitudes and
rights of others against the Properties which (x) are listed on Schedule
B to the Title Policy or (y) are granted pursuant to Section 8.4 of the
Lease, and
(g) the rights of any assignee, lessee, or sublessee under
assignments, leases and subleases expressly permitted by the Lease.
"Person" means an individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association,
joint-stock company, trust (including any beneficial owner thereof),
unincorporated organization, Authority or other legal entity.
"Personality" is defined in Section 4 of the Ground Lease.
"Petitioned Party" is defined in Section 6.4 of the Participation
Agreement.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Plans and Specifications" means, as applicable, the Approved Traville
Plans and Specifications and/or the Approved Manufacturing Plans and
Specifications, as each may be amended from time to time in accordance with the
Construction Agency Agreement.
37
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Pledged Liquid Collateral" means collectively the First Union Liquid
Collateral and the Fleet National Bank Liquid Collateral.
"Prescribed Forms" means duly executed and filed form(s) or
statement(s), and in such number of copies, which may, from time to time, be
prescribed by law and which, pursuant to applicable provisions of (a) an income
tax treaty between the United States and the country of residence of the
Participant providing the form(s) or statement(s), (b) the Code, or (c) any
applicable rule or regulation under the Code, permit Lessee to make payments
under any Operative Document free of deduction or withholding of United States
Tax.
"Present Value" means the value at the date of determination of a
specified amount payable in the future discounted at Lessee's Incremental
Borrowing Rate.
"Prime Contractor" means one or more Persons who shall, with the prior
written consent of Lessor, have been designated by Lessee to act as a prime
contractor for purposes of the Construction.
"Principal Component" means with respect to any Commercial Paper Note
(a) in the case of a Commercial Paper Note issued on a discount basis, the
amount of proceeds received by the Conduit upon the sale thereof prior to the
payment of any dealer fee or other fees or expenses paid with respect thereto
and (b) in the case of a Commercial Paper Note issued on an interest-bearing
basis, the principal amount thereof.
"Pro Rata Portion" with respect to any Liquidity Provider means the
ratio, expressed as a percentage, of (i) such Liquidity Provider's Commitment
Amount divided by (ii) the aggregate Commitment Amounts of all of the Liquidity
Providers related to the same Conduit.
"Proceeding" is defined in Section 6.4 of the Participation Agreement.
"Program Fee" means 15 basis points per annum.
"Program Support Provider" with respect to any Conduit means each Person
providing liquidity or credit enhancement to such Conduit (including the
Liquidity Providers), whether in the form of a liquidity asset purchase
agreement, loan agreement, letter of credit, surety bond, cash collateral
deposit or otherwise, and each administrator, servicing agent, collateral agent
or sub-administrator for such Conduit.
"Properly Margined Collateral Coverage" means Liquid Collateral the Fair
Market Value of which is adjusted in accordance with the definition of Adjusted
Market Value (Item), and maintained in accordance with the Concentration Limits
and other terms set forth in the Operative Documents.
"Properly Margined Liquid Collateral" means Liquid Collateral the amount
of which is determined on the basis of Properly Margined Collateral Coverage.
"Property" means either the Traville Facility or the Manufacturing
Facility, and "Properties" means the Traville Facility and the Manufacturing
Facility, collectively.
38
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Property Costs" means Land Costs (excluding the cost of acquiring the
Traville Site), Land Improvement Costs, Improvement Costs, Transaction Costs and
all other fees and expenses during the Construction Period which the Trust
expressly agrees to pay under the Operative Documents.
"Purchase Date" is defined in Section 5.1(a) of the Lease.
"Purchase Option" is defined in Section 5.1(a) of the Lease.
"Purchase Period" is defined in Section 23(b) of the Ground Lease.
"Rating Agencies" means S&P and/or Moody's.
"Receivables" is defined in the Granting Clause Second of the Security
Agreement.
"Related Contracts" is defined in the Granting Clause Second of the
Security Agreement.
"Related Equipment" is defined in the Granting Clause of the Deed of
Trust.
"Release" means the release, deposit, disposal or leak of any Hazardous
Material into or upon or under any land or water or air, or otherwise into the
environment, including by means of burial, disposal, discharge, emission,
injection, spillage, leakage, seepage, leaching, dumping, pumping, pouring,
escaping, emptying, placement and the like.
"Release Portion" is defined in Section 13.1 of the Lease.
"Release Request" is defined in Section 13.1 of the Lease.
"Remarketing Option" is defined in Section 7.1 of the Lease.
"Remarketing Sales Expense" means all charges, costs and expenses of
Lessor, Lessee and the Participants in connection with each sale pursuant to the
Remarketing Option.
"Remedial Work" is defined in Section 9.6(b) of the Lease.
"Renewal Date" is defined in Schedule 2 of each Liquidity Agreement.
"Renewal Option" is defined in Section 8.5(a) of the Participation
Agreement.
"Renewal Option Effective Date" is defined in Section 8.5(a) of the
Participation Agreement.
"Renewal Option Request" is defined in Section 8.5(a) of the
Participation Agreement.
"Renewal Option Response Date" is defined in Section 8.5(a) of the
Participation Agreement.
"Renewal Term" is defined in Section 8.5 (a)(i) of the Participation
Agreement.
39
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Rent" means Base Rent and Supplemental Rent, collectively.
"Replacement Participant" is defined in Section 8.5(b) of the
Participation Agreement.
"Repurchase Obligations" means repurchase obligations with a term of not
more than 31 days for underlying debt securities that are rated AAA by S&P and
Aaa by Moody's, and/or that are U.S. Treasury Obligations and/or U.S. Agency
Obligations which in each case are secured by a fully perfected security
interest in 102% of such underlying securities.
"Required Liquid Collateral Amount" means, on any determination date
with respect to the Fleet National Bank Liquid Collateral or the First Union
Liquid Collateral, an amount equal to the sum of (a) the product of (i) one
hundred two percent (102%) and (ii) the product of (A) the applicable Liquidity
Provider Share determined as of the Documentation Date, (B) the Loan Percentage
and (C) the Lease Balance, including without duplication, capitalized interest
and Yield and (b) the product of (i) the applicable Investor's Percentage Share
determined as of the Documentation Date, (ii) the Equity Percentage and (iii)
the Lease Balance, including without duplication, capitalized interest and
Yield.
"Residual Value Guaranty Amount" means the aggregate of Traville
Residual Value Guaranty Amount and the Manufacturing Residual Value Guaranty
Amount.
"Responsible Officer" means, with respect to the subject matter of any
covenant, agreement or obligation of any party contained in any Operative
Agreement, the President, or any Vice President, Assistant Vice President, Trust
Officer or other officer, who in the normal performance of his or her
operational responsibility would have knowledge of such matters and the
requirements with respect thereto.
"S&P" means Standard & Poor's, a division of The McGraw-Hill Companies,
Inc., or any successor thereto.
"Sale Date" is defined in Section 7.1(b) of the Lease.
"Scheduled Payment Date" means, as to any Loan or Investor Amount, the
twenty-first (21st) day of each month or if such twenty-first day is not a
Business Day, the immediately succeeding Business Day and the Maturity Date and
the Lease Term Expiration Date.
"SEC" means the United States Securities and Exchange Commission.
"Secured Lessee Obligations" is defined in Granting Clause First of the
Security Agreement.
"Secured Lessor Obligations" is defined in Granting Clause Second of the
Security Agreement.
"Secured Parties" means each party to the Security Agreement other than
Lessee.
40
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Secured Parties (Eagle)" means each Eagle Liquidity Provider, the
holders from time to time of the Commercial Paper Notes of Eagle, the Liquidity
Agreement Collateral Agent, the Administrator and each Program Support Provider
for Eagle.
"Securities Act" means the Securities Act of 1933.
"Securities Exchange Act" means the Securities Exchange Act of 1934.
"Security Agreement" means that certain Security Agreement, dated as of
the Documentation Date, pursuant to which Eagle assigns to the Liquidity
Agreement Collateral Agent for the benefit of the Liquidity Providers all of
Eagle's interest in the Operative Documents.
"Security Agreement (Eagle)" means the Security Agreement, dated as of
the Documentation Date, among Lessee, Lessor, the Participants and the
Administrative Agent, pursuant to which (a) Lessee assigns to the Administrative
Agent for the benefit of Lessor, the Lessee Collateral and (b) Lessor assigns to
the Administrative Agent for the benefit of the Participants, the Participant
Collateral.
"Security Documents" means, collectively, the Deeds of Trust, the
Assignment of Lease, the Security Agreement and the Financing Statements, the
Liquid Collateral Agreements, and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any asset or assets of
any Person (i) to secure the obligations and liabilities of Lessee under the
Lease and other Operative Documents or (ii) to secure the obligations and
liabilities of Lessor under the Loan Agreement and/or under any of the other
Operative Documents.
"Sell Date" is defined in Section 23(a) of the Ground Lease.
"Senior Debt" means of any Person and its consolidated Subsidiaries as
of the determination date the outstanding principal amount of Indebtedness less
Indebtedness that is expressly subordinated in right of payment.
"Senior Debt Ratio" means, at the end of any Fiscal Quarter, subject to
Article III of Appendix A, the ratio of
(a) the aggregate amount of cash, Cash Equivalents and
Marketable Securities of HGSI and its Subsidiaries on a consolidated
basis at such time;
to
(b) the sum of total Senior Debt and Synthetic Lease
Obligations of HGSI and its Subsidiaries on a consolidated basis
outstanding at such time.
"Significant Condemnation" is defined in Section 14 of the Ground Lease.
"Site" means either the Traville Site or the Manufacturing Facility
Site, as the context may require.
41
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Site Assessment" is defined in Section 12.2 of the Lease.
"Soft Costs" means all costs of whatever kind or nature, of performing
the Improvements (other than the purchase price for the Land and Lessee's costs
in connection with the acquisition of the Land, such as the cost of title
insurance), Capitalizable Transaction Costs, engineering costs for Improvements,
costs of architects, engineers and other consultants and experts with respect to
the Construction and fees and expenses incurred in obtaining Governmental
Actions, and sums expended by Lessee prior to the date hereof properly allocated
to or otherwise included in the foregoing.
"Structuring Fee" means a fully-earned and non-refundable fee paid in
consideration of structuring the transactions contemplated in the Participation
Agreement, as follows: (a) with respect to the Fleet Investor and the Fleet
Liquidity Provider, as set forth in the Administrative Agent Fee Letter, and (b)
with respect to First Union National Bank, as set forth in the First Union Fee
Letter.
"Sublease" is defined in Section 16.1 of the Lease.
"Subsidiary" means of any specified Person, (i) a corporation, a
majority of whose Capital Stock with voting power, under ordinary circumstances,
to elect directors is, directly or indirectly, at the date of determination
thereof owned by such Person or by such Person and a Subsidiary or Subsidiaries
of such Person or by a Subsidiary or Subsidiaries of such Person or (ii) any
other Person (other than a corporation) in which such Person or such Person and
a Subsidiary or Subsidiaries of such Person has, directly or indirectly, at the
date of determination thereof, at least majority ownership interest.
"Substantial Completion" means, with respect to the Improvements to be
constructed on the Traville Site and the Manufacturing Facility Site, as the
context may require substantial completion of the Traville Facility Improvements
or the Manufacturing Facility Improvements, as applicable, in accordance with
the applicable Plans and Specifications and the issuance by the appropriate
Governmental Authority of a certificate of occupancy.
"Supplemental Rent" means all legal, accounting, administrative and
other operating expenses and taxes incurred by Lessor or Ground Lessee (other
than Base Rent), any and all amounts, liabilities and obligations other than
Base Rent which Lessee assumes or agrees or is otherwise obligated to pay under
the Lease or any other Operative Document or any Lessor Hedging Agreement
(whether or not designated as Supplemental Rent) to, or for the benefit of,
Lessor, the Administrative Agent, any Lessor Hedging Agreement Counterparty or
any other party, including, without limitation, rent, including interest
measured by the Overdue Rate, and all other amounts payable under the Ground
Lease, the Lease Balance, Fees, Break Costs and indemnities and damages for
breach of any covenants, representations, warranties or agreements, and all
other costs associated with the condition, use or operation, maintenance,
management and utilities relating to the Properties.
"Synthetic Lease Obligation" means, with respect to any Person that is a
lessee under a lease of the type referred to as a synthetic lease that is
characterized as an operating lease in accordance with GAAP, the outstanding
"lease balance" or other similar amount; i.e., the
42
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
outstanding principal amount of any notes of the lessor outstanding with respect
to the property under lease plus the equity investment made with respect to such
lease, plus, without duplication, the "lease balance", subject to the
limitations set fort in Schedule IX of the Participation Agreement, with respect
to the synthetic leases described in Schedule IX to the Participation Agreement.
"Taxes" means any and all present or future liabilities, losses,
expenses and costs of any kind whatsoever that are fees (including without
limitation, license fees, documentation fees and registration fees), taxes
(including without limitation, property, ad valorem, real estate, income, gross
or net income, gross or net receipts, sales, use, value added, franchise,
business, transfer, capital property (tangible and intangible), municipal
assessments, excise and stamp taxes and sewer and water rents), levies, imposts,
duties, charges, assessments or withholdings, together with any penalties, fines
or interest thereon or addition thereto (any of the foregoing being referred to
herein individually as a "Tax").
"Tax Indemnitee" means each of Lessor, any Agent, any Participant,
employees, officers, directors, shareholders, members, partners, participants,
and agents of the foregoing Persons and each of their respective successors,
transferees and assigns permitted under the terms of the Operative Documents.
"Tenant" means the Trust as Ground Lessee under the Ground Lease.
"Title Policy" means the title insurance commitment issued by
Commonwealth Land Title Insurance Company in respect of the Properties within
the five (5) Business Day period prior to the Documentation Date.
"Total Commitment" means, at any time, the aggregate amount of the
Commitments of all Liquidity Providers under the Liquidity Agreement at such
time and of all Investors under the Participation Agreement at such time.
"Transaction Costs" means
(a) the fees and expenses of the Appraiser;
(b) the reasonable fees and expenses of (i) Mayer, Brown &
Platt, (ii) Moore & Van Allen and (iii) Day, Berry & Howard, special
Connecticut counsel to the Trust and the Trust Company, incurred in
connection with the negotiation, documentation and consummation of the
Overall Transaction;
(c) the upfront fees and expenses of the Trust Company;
(d) any and all Taxes and fees incurred in recording,
registering or filing any Operative Document or any other transaction
document, any deed, declaration, Deed of Trust, security agreement,
notice or financing statement with any public office, registry or
governmental agency in connection with the transactions contemplated by
the Operative Documents, unless the Operative Documents expressly
provide that such Taxes or fees are required to be paid by a Person
other than Lessee;
43
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
(e) any title fees, premiums and escrow costs and other
expenses relating to title insurance incurred in connection with the
closings contemplated by the Operative Documents, and any expenses
incurred by any Agent for analysis of the Improvement Costs and
inspection of the Property in connection with the Advances;
(f) all expenses relating to all Environmental Audits and
appraisals prepared from time to time under the Operative Documents;
(g) all fees relating to the Lessor Insurance Consultant and
the Construction Consultant;
(h) the fees and expenses of Administrative Agent described
in Section 9.10(a) of the Participation Agreement;
(i) [intentionally omitted];
(j) all lien search fees, recording taxes, charges or other
expenses incurred in connection with the perfection of Liens and the
consummation of each of the filings and recordings described in Section
4.1(c) of the Participation Agreement;
(k) the Structuring Fee described in Section 9.10(b) of the
Participation Agreement; and
(l) the fees and expenses payable to the Arranger and First
Union National Bank in accordance with the Administrative Agent Fee
Letter, and the First Union Fee Letter.
"Traville As-Built Appraisal" is defined in Section 4.1(s) of the
Participation Agreement.
"Traville Construction Materials" is defined in the Recital C of the
Construction Agency Agreement.
"Traville Construction Period Maximum Guaranty Amount" means an amount
equal to the product of (a) a fraction (i) the numerator of which equals the
Traville Lease Balance, and (ii) the denominator of which equals the Lease
Balance, and (b) the Construction Period Maximum Guaranty Amount.
"Traville Facility" means the Traville Improvements and the Traville
Site.
"Traville Improvements" means the buildings, structures, improvements
and fixtures now or hereafter situated or located on the Traville Site,
including the roads, parking lots and structures, electrical equipment, power
plants, storage tanks, air conditioning systems, emergency systems, access ways,
sidewalks, recreational areas, vehicle control facilities, landscaping, and
utility and service systems used or procured for use in connection with the
operation and maintenance of such buildings and structures, but excluding
Lessee's Property.
"Traville Land Improvements" means all work necessary in connection with
the development of the Traville Site, including excavation; roads and roadways;
curbs; gutters;
44
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
storm drains; flood control ditches and causeways; sidewalks; joint trenches for
power, gas, sewer, domestic water and irrigation; sanitary tie-ins;
reparcelization and subdivisions; traffic mitigation improvements; grading
(including obtaining any necessary slope easement rights from adjacent land
owners and installation and proper compaction, reinforcement, and seeding of
such slopes); and other land improvements, in each case to the extent the costs
of construction of which are allocable to the Traville Site under generally
accepted accounting principles, consistently applied by Lessee.
"Traville Lease Balance" means, at any time of determination, the
aggregate of all amounts advanced to Lessee prior to such time of determination
pursuant to Section 2.2 of the Participation Agreement which (i) are
appropriately allocable to the Traville Facility in accordance with Section
2.2.6(a) and (c) of the Participation Agreement and (ii) as of such time of
determination, have not yet been repaid by Lessee in accordance with the terms
of the Operative Documents, plus, without duplication, in the event that as of
such time of determination, Lessor shall not hold title to the Manufacturing
Facility Site (other than if Lessor shall not hold title to the Manufacturing
Facility Site as a result of Lessee's exercise of the Purchase Option or
Remarketing Option with respect to the Manufacturing Facility in accordance with
the terms of the Operative Documents), the Manufacturing Lease Balance.
"Traville Residual Value Guaranty Amount" means 87.743% of the then
outstanding Traville Lease Balance.
"Traville Site" means the land described in Exhibit A-1 to the Lease,
and all of the appurtenances, easements, restrictions, and rights of way
relating to the foregoing.
"Trust" means Genome Statutory Trust 2001A, the Trust created by the
Trust Agreement.
"Trust Agreement" means the Trust Agreement, dated as of the
Documentation Date between the Investors and Wells Fargo Bank Northwest, N.A.,
as the Trustee.
"Trust Company" means Wells Fargo Bank Northwest, N.A., a national
banking association, in its individual capacity.
"Trust Company Fee Letter" means the fee letter dated the Documentation
Date, between Trust Company and Lessee.
"Trust Estate" means all estate, right, title and interest of the Trust
in, to and under the Trust Agreement and all of the other Operative Documents to
which it is a party, including any or all payments or proceeds received by the
Trust under Article X of the Participation Agreement, together with any other
moneys, proceeds or property at any time received by the Trust under or in
connection with the Operative Documents.
"Trustee" means Wells Fargo Bank Northwest, N.A., not in its individual
capacity but solely in its trust capacity under the Trust Agreement, and any
co-trustee or successor appointed pursuant to the Trust Agreement.
"UCC" means the Uniform Commercial Code of New York or any other
applicable jurisdiction.
45
APPENDIX A TO THE
PARTICIPATION AGREEMENT (HGSI)
"Unguaranteed Residual Lease Balance" means at the date of
determination, the excess of the Lease Balance over the Residual Value Guaranty
Amount.
"Unrestricted Cash, Cash Equivalents and Marketable Securities" means of
any Person, as of the date of determination, all cash, Cash Equivalents and
Marketable Securities of such Person and its consolidated Subsidiaries as of
such date which are not encumbered by any Lien or subject to any defeasance,
sinking fund, escrow or similar deposit arrangement pursuant to which such funds
are not subject to voluntary withdrawal by such Person and its consolidated
Subsidiaries or are set aside for a purpose other than use in such Person's or
its consolidated Subsidiary's current operation and which are not otherwise
required to be designated as restricted funds on such Person's consolidated
balance sheet in accordance with GAAP.
"Unused Fee" means, with respect to each Investor and Conduit for the
benefit of the Liquidity Providers, a fully earned and non-refundable fee
payable in arrears on each Scheduled Payment Date on or prior to the
Construction Period Termination Dates for both Properties at a rate of 0.15% per
annum on the sum of the average daily amount of (x) with respect to each
Investor, each Investor's Available Commitment, and (y) with respect to the
Conduit, the aggregate Available Commitments of the Liquidity Providers.
"U.S. Agency Obligations" means bonds, notes, debentures, obligations or
other evidence of indebtedness issued and/or guaranteed by Federal National Deed
of Trust Association, Federal Home Loan Deed of Trust Corporation, Government
National Deed of Trust Association or any other agency or instrumentality of the
U.S. of America, in each case supported by the direct or indirect full faith and
credit of the U.S. Government, as well as mortgaged backed securities issued by
any of the foregoing agencies.
"U.S. Treasury Obligations" means securities issued or guaranteed by the
U.S. Government, including U.S. Treasury obligations and any other obligations
the timely payment of principal and interest of which are guaranteed by the U.S.
Government.
"Yield" means, for each Interest Period, the amount accrued on the
Investor Amount outstanding from time to time at the Yield Rate.
"Yield Rate" means for each Interest Period, the rate per annum equal to
the Eurodollar Rate for such Interest Period plus a margin of two hundred basis
points (2%) per annum; provided, however, that in the event (and for so long as)
Base Rent is determined by reference to the ABR as required pursuant to Section
9.8 of the Participation Agreement, then the Yield Rate shall be equal to the
ABR from time to time.
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