Exhibit 10.12(a)


 




 


 





PARTICIPATION AGREEMENT


 


Dated as of September 14,  1999


 


among


 


 


SABRE INC.,


as the Construction Agent and as the Lessee,


 


 


FIRST SECURITY BANK, NATIONAL ASSOCIATION,


not individually, except as expressly


stated herein, but solely as the Owner Trustee


under the TSG Trust 1999-1,


 


 


THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH ARE PARTIES
HERETO FROM

TIME TO TIME,


as the Holders,


 


 


THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH ARE PARTIES
HERETO FROM

TIME TO TIME,


as the Lenders,


 


and


 


BANK OF AMERICA, N.A.,


as the Agent for the Lenders


and respecting the Security Documents,


as the Agent for the Lenders and the Holders,


to the extent of their interests


 


 




 





 


BANC OF AMERICA SECURITIES LLC,


as Lead Arranger and Sole Book Manager


 

















 


TABLE OF CONTENTS


 


	
  SECTION 1.  THE LOANS.

  
	
  SECTION 2.  HOLDER ADVANCES.

  
	
  SECTION 3. 
  SUMMARY OF TRANSACTIONS.

  
	
  3.1. Operative Agreements.

  
	
  3.2. Property Purchase.

  
	
  3.3. Construction of Improvements;
  Commencement of Basic Rent.

  
	
  3.4. Ratable Interests of the Lenders.

  
	
  SECTION 4.  THE CLOSINGS.

  
	
  4.1. Initial Closing Date.

  
	
  4.2. Initial Closing Date; Property Closing
  Dates; Acquisition Advances; Construction Advances.

  
	
  SECTION 5. 
  FUNDING OF ADVANCES; CONDITIONS PRECEDENT; REPORTING REQUIREMENTS ON
  COMPLETION DATE;  THE LESSEE’S
  DELIVERY OF NOTICES; RESTRICTIONS ON LIENS.

  
	
  5.1.
  General.

  
	
  5.2. Procedures for Funding.

  
	
  5.3. Conditions Precedent for  the Lessor, the Agent, the Lenders and the
  Holders Relating to the Initial Closing Date and the Advance of Funds for the
  Acquisition of a Property.

  
	
  5.3A Conditions to the Obligations of the Lessee.

  
	
  5.4. Conditions Precedent for the Lessor,
  the Agent, the Lenders and the Holders Relating to the Advance of Funds after
  the Acquisition Advance.

  
	
  5.5. Additional Reporting and Delivery
  Requirements on Completion Date and on Construction Period Termination Date.

  
	
  5.6. The Construction Agent Delivery of
  Construction Budget Modifications.

  
	
  5.7. Restrictions on Liens.

  
	
  5.8.
  Payments.

  
	
  5.9. Unilateral Right to Increase the
  Holder Commitments and the Lender Commitments.

  
	
  5.10. Plans and Specifications.

  
	
  5.11. Amounts Received in Regard to
  Collateral.

  
	
  SECTION 6. 
  REPRESENTATIONS AND WARRANTIES.

  
	
  6.1. Representations and Warranties of the
  Borrower.

  
	
  6.2. Representations and Warranties of the
  Construction Agent and the Lessee.

  
	
  6.3. Representations of each Lender and
  Holder.

  
	
  SECTION 7. PAYMENT OF CERTAIN EXPENSES.

  
	
  7.1. Transaction Expenses.

  
	
  7.2.
  Brokers’ Fees.

  
	
  7.3. Certain Fees and Expenses.

  
	
  7.4.
  Unused Fee.

  
	
  7.5. Engagement Letter Fees.

  
	
  7.6.
  Upfront Fee.

  
	
  SECTION 8. 
  OTHER COVENANTS AND AGREEMENTS.

  
	
  8.1. Cooperation with the Construction
  Agent or the Lessee.

  
	
  8.2. Covenants of the Owner Trustee.

  
	
  8.2A. Covenants of the Holders.

  
	
  8.3
  The Lessee Covenants, Consent and Acknowledgment.

  
	
  8.3A. Additional Affirmative Covenants of the Lessee.

  
	
  8.3B. Additional Negative Covenants of the Lessee.

  
	
  8.4. Sharing of Certain Payments.

  
	
  8.5. Grant of Easements, etc.

  
	
  8.6. Appointment by the Agent, the Lenders,
  the Holders and the Owner Trustee.

  
	
  8.7. Collection and Allocation of Payments
  and Other Amounts.

  
	
  8.8.
  Release of Properties, etc.

  
	
  SECTION 9. 
  CREDIT AGREEMENT AND TRUST AGREEMENT.

  
	
  9.1. The Construction Agent’s and the
  Lessee’s Credit Agreement Rights.

  
	
  9.2. The Construction Agent’s and the Lessee’s Trust Agreement
  Rights.

  



 


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  SECTION
  10.  TRANSFER OF INTEREST.

  
	
  10.1. Restrictions on Transfer.

  
	
  10.2. Effect of Transfer.

  
	
  10.3 Replacement of Lenders and Holders
  Which Do Not Consent to Renewal Terms.

  
	
  SECTION
  11.  INDEMNIFICATION.

  
	
  11.1. General Indemnity.

  
	
  11.2. General Tax Indemnity.

  
	
  11.3.
  Increased Costs, Illegality, etc.

  
	
  11.4. Funding/Contribution Indemnity.

  
	
  11.5. EXPRESS INDEMNIFICATION FOR ORDINARY
  NEGLIGENCE,  STRICT LIABILITY, ETC.

  
	
  11.6. Additional Provisions Regarding Environmental Indemnification.

  
	
  11.7. Additional Provisions Regarding
  Indemnification.

  
	
  11.8. Indemnifications Provided by the
  Owner Trustee in Favor of the Other Indemnified Persons.

  
	
  SECTION
  12.  MISCELLANEOUS.

  
	
  12.1. Survival of Agreements.

  
	
  12.2.
  Notices.

  
	
  12.3.
  Counterparts.

  
	
  12.4. Terminations, Amendments, Waivers,
  Etc.; Unanimous Vote Matters.

  
	
  12.5.
  Headings, etc.

  
	
  12.6. Parties in Interest.

  
	
  12.7.
  GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; VENUE.

  
	
  12.8.
  Severability.

  
	
  12.9. Liability Limited.

  
	
  12.10. Rights of the Lessee.

  
	
  12.11. Further Assurances.

  
	
  12.12. Calculations Under Operative
  Agreements.

  
	
  12.13. Confidentiality.

  
	
  12.14. Financial Reporting/Tax
  Characterization.

  
	
  12.15.
  Set-off.

  
	
  12.16. Delivery of Documentation.

  
	
  12.17.
  Reliance by Agent.

  
	
  12.18. Usury Savings Provision.

  
	
  12.19.
  ENTIRE AGREEMENT.

  



 


SCHEDULES


 


Schedule 12.2 - Notices


 


EXHIBITS


 


A - Form of Requisition - Sections 4.2, 5.2,
5.3 and 5.4


 


B - Form of Outside Counsel Opinion for the
Lessee - Section 5.3(j)


 


C - Form of Officer’s Certificate - Section
5.3(z)


 


D- Form of Secretary’s Certificate - Section
5.3(aa)


 


E - Form of Officer’s Certificate - Section
5.3(bb)


 


F - Form of Secretary’s Certificate - Section
5.3(cc)


 


G - Form of Outside Counsel Opinion for the
Owner Trustee - Section 5.3(dd)


 


H - Form of Outside Counsel Opinion for the
Lessee - Section 5.3(ee)


 


ii

















 


I - Form of Officer’s Certificate - Section
5.5


 


J - Description of Material Litigation -
Section 6.2(d)


 


K - Form of Officer’s Compliance Certificate
- Section 8.3A(a)(iii)


 


Appendix A - Rules of Usage and Definitions


 


iii

















 


PARTICIPATION AGREEMENT


 


THIS
PARTICIPATION AGREEMENT dated as of September 14, 1999 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, this “Agreement”)
is by and among SABRE INC., a Delaware corporation (the “Lessee” or the
“Construction Agent”); FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, not individually (in its individual capacity, the
“Trust Company”), except as expressly stated herein, but solely as the
Owner Trustee under the TSG Trust 1999-1 (the “Owner Trustee”, the “Borrower”
or the “Lessor”); the various banks and other lending institutions which
are parties hereto from time to time as holders of certificates issued with respect
to the TSG Trust 1999-1 (subject to the definition of Holders in Appendix A
hereto, individually, a “Holder” and collectively, the “Holders”);
the various banks and other lending institutions which are parties hereto from
time to time as lenders (subject to the definition of Lenders in Appendix A
hereto, individually, a “Lender” and collectively, the “Lenders”);
and BANK OF AMERICA, N.A., a national banking association, as the agent for the
Lenders and respecting the Security Documents, as the agent for the Lenders and
the Holders, to the extent of their interests (in such capacity, the “Agent”).  Capitalized terms used but not otherwise
defined in this Agreement shall have the meanings set forth in Appendix A
hereto.


 


In
consideration of the mutual agreements herein contained and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:


 


SECTION 1.  THE LOANS.


 


Subject to the
terms and conditions of this Agreement and the other Operative Agreements and
in reliance on the representations and warranties of each of the parties hereto
contained herein or made pursuant hereto, the Lenders have agreed to make Loans
to the Lessor from time to time in an aggregate principal amount of up to the
aggregate amount of the Commitments of the Lenders in order for the Lessor to
acquire the Properties and certain Improvements, to develop and construct
certain Improvements in accordance with the Agency Agreement and the terms and
provisions hereof and for the other purposes described herein, and in
consideration of the receipt of proceeds of the Loans, the Lessor will issue
the Notes.  The Loans shall be made and
the Notes shall be issued pursuant to the Credit Agreement.  Pursuant to Section 5 of this Agreement and
Section 2 of the Credit Agreement, the Loans will be made to the Lessor from
time to time at the request of the Construction Agent in consideration for the
Construction Agent agreeing for the benefit of the Lessor, pursuant to the
Agency Agreement, to acquire the Properties, to acquire the Equipment, to
construct certain Improvements and to cause the Lessee to lease the Properties,
each in accordance with the Agency Agreement and the other Operative
Agreements.  The Loans and the
obligations of the Lessor under the Credit Agreement shall be secured by the
Collateral.


 


SECTION 2.  HOLDER ADVANCES.


 


Subject to the
terms and conditions of this Agreement and the other Operative Agreements and
in reliance on the representations and warranties of each of the parties hereto
contained herein or made pursuant hereto, on each date Advances are requested
to be made in accordance with Section 5 hereof, each Holder shall make a Holder
Advance on a pro rata basis to the Lessor with respect to the TSG Trust 1999-1
based on its Holder Commitment in an amount in immediately available funds such
that the aggregate of all Holder Advances on such date shall be three and three
tenths percent (3.3%) of the amount of the Requested Funds on such date; provided,
that no Holder shall be obligated for any Holder Advance in excess of its pro
rata share of the Available Holder Commitment. 
The aggregate amount of Holder Advances shall not exceed the aggregate
amount of the Holder Commitments.  No
prepayment or any other payment with respect to any Advance shall be permitted
such that the Holder Advance with respect to such Advance is less than three
and three tenths percent (3.3%) of the outstanding amount of such Advance,
except in connection with termination or expiration of the Term or in
connection with the exercise of remedies relating to the occurrence of a Lease
Event of Default.  The representations,
warranties, covenants and agreements of the Holders herein and in the other
Operative Agreements are several, and not joint or joint and several.


 

















 


SECTION
3.  SUMMARY OF TRANSACTIONS.


 


3.1.                            Operative Agreements.


 


On the date
hereof, each of the respective parties hereto and thereto shall execute and
deliver this Agreement, the Lease, the Agency Agreement, the Credit Agreement,
the Notes, the Trust Agreement, the Certificates, the Security Agreement,  each
applicable Mortgage Instrument  and such other documents, instruments,
certificates and opinions of counsel as agreed to by the parties hereto.


 


3.2.                            Property
Purchase.


 


On each
Property Closing Date and subject to the terms and conditions of this Agreement
(a) the Holders will each make a Holder Advance in accordance with Sections 2
and 5 of this Agreement and the terms and provisions of the Trust Agreement,
(b) the Lenders will each make Loans in accordance with Sections 1 and 5 of
this Agreement and the terms and provisions of the Credit Agreement, (c) the
Lessor will purchase and acquire good and indefeasible title to the applicable
Property, each to be within an Approved State, identified by the Construction
Agent, in each case pursuant to a Deed and Bill of Sale, as the case may be,
and grant the Agent a lien on such Property by execution of the required
Security Documents, (d) the Agent, the Lessee and the Lessor shall execute and
deliver a Lease Supplement relating to such Property and (e) the Basic Term
shall commence with respect to such Property.


 


3.3.                            Construction of Improvements;
Commencement of Basic Rent.


 


Construction
Advances from the Lenders and Holders to the Lessor at the request of the
Construction Agent pursuant to Section 5 hereof will be made with respect
to particular Improvements to be constructed and with respect to ongoing Work
regarding the Equipment and construction of particular Improvements, in each
case, pursuant to the terms and conditions of this Agreement and the Agency
Agreement.  The Construction Agent will
act as a construction agent on behalf of the Lessor respecting the Work
regarding the Equipment, the construction of such Improvements and the
expenditures of the Construction Advances related to the foregoing.  The Construction Agent shall promptly notify
the Lessor upon Completion of the Improvements and the Lessee shall commence to
pay Basic Rent as of the Rent Commencement Date.


 


3.4.                            Ratable Interests of the Lenders.


 


Each Lender
agrees at all times (a) to hold and maintain (either for itself or through an
Affiliate of such entity) its respective ratable portion of the aggregate
Lender Commitment for Tranche A Loans and the aggregate Lender Commitment for
Tranche B Loans and (b) to make advances consistent with such committed amounts
referenced in Section 3.4(a) in accordance with the requirements of the
Operative Agreements.


 


SECTION 4.  THE CLOSINGS.


 


4.1.                            Initial Closing Date.


 


All documents
and instruments required to be delivered on the Initial Closing Date shall be
delivered at the offices of Moore & Van Allen, PLLC, Charlotte, North
Carolina, or at such other location as may be determined by the Lessor, the
Agent and the Lessee.


 


4.2.                            Initial Closing Date; Property
Closing Dates; Acquisition Advances; Construction Advances.


 


The
Construction Agent shall deliver to the Agent a requisition (a “Requisition”),
in substantially the form attached hereto as Exhibit A or in such other
form as is reasonably satisfactory to the Agent in connection with (a) the
Transaction Expenses and other fees, expenses and disbursements payable,
pursuant to Sections 7.1 and 7.2, by the Lessor and (b) each Acquisition
Advance pursuant to


 


2

















 


Section 5.3 and (c) each
Construction Advance pursuant to Section 5.4. 
No Requisition shall be required for the Lenders and the Holders to make
Advances pursuant to or in connection with Sections 7.1(a), 7.1(b), 7.2 and
11.8.


 


SECTION 5.  FUNDING OF ADVANCES; CONDITIONS PRECEDENT;

REPORTING REQUIREMENTS ON COMPLETION DATE; 

THE LESSEE’S DELIVERY OF NOTICES; RESTRICTIONS ON LIENS.


 


5.1.                            General.


 


(a)           To the extent funds
have been advanced to the Lessor as Loans by the Lenders and to the Lessor as
Holder Advances by the Holders, the Lessor will use such funds from time to
time in accordance with the terms and conditions of this Agreement and the
other Operative Agreements (i) at the direction of the Construction Agent to acquire
the Properties in accordance with the terms of this Agreement, the Agency
Agreement and the other Operative Agreements, (ii) to make Advances to the
Construction Agent to permit the acquisition, testing, engineering,
installation, development, construction, modification, design, and renovation,
as applicable, of the Properties (or components thereof) in accordance with the
terms of the Agency Agreement and the other Operative Agreements, and (iii) to
pay Transaction Expenses, fees, expenses and other disbursements payable by the
Lessor under Sections 7.1(a), 7.1(b), 7.2 and 11.8.


 


(b)           In lieu of the
payment of interest on the Loans and Holder Yield on the Holder Advances on any
Scheduled Interest Payment Date with respect to any Property during the period
prior to the Rent Commencement Date with respect to such Property and subject
to Section 5.9, (i) each Lender’s Loan shall automatically be increased by the
amount of interest accrued and unpaid on such Loan for such period (except to
the extent that at any time such increase would cause such Lender’s Loan to
exceed such Lender’s Available Commitment, in which case the Lessee shall pay
such excess amount to such Lender in immediately available funds on the date
such Lender’s Available Commitment was exceeded), and (ii) each Holder’s Holder
Advance shall automatically be increased by the amount of Holder Yield accrued
and unpaid on such Holder Advance for such period (except to the extent that at
any time such increase would cause the Holder Advance of such Holder to exceed
such Holder’s Available Holder Commitment, in which case the Lessee shall pay
such excess amount to such Holder in immediately available funds on the date
the Available Holder Commitment of such Holder was exceeded).  Such increases in a Lender’s Loan and a
Holder’s Holder Advance shall occur without any disbursement of funds by any
Person.


 


5.2.                            Procedures for Funding.


 


(a)           The Construction
Agent shall designate the date for Advances hereunder in accordance with the
terms and provisions hereof; except that it is understood and agreed that no
more than two (2) Advances (excluding any conversion and/or continuation of any
Loan or Holder Advance) may be requested during any calendar month and no such
designation from the Construction Agent is required for funding of Transaction
Expenses, fees, expenses and other disbursements payable by the Lessor pursuant
to or in connection with Sections 7.1(a), 7.1(b), 7.2 and 11.8.  Not less than (i) three (3) Business Days
prior to the date that the first Advance is requested hereunder and (ii) three
(3) Business Days prior to the date on which any subsequent Acquisition Advance
or Construction Advance is to be made, the Construction Agent shall deliver to
the Agent a Requisition as described in Section 4.2 hereof.


 


(b)           Each Requisition
shall:  (i) be irrevocable, (ii) request
funds in an amount that is not in excess of the total aggregate of the
Available Commitments plus the Available Holder Commitments at such time, (iii)
request that the Holders make Holder Advances and that the Lenders make Loans
to the Lessor for the payment of Transaction Expenses, Property Acquisition
Costs (in the case of an Acquisition Advance) or other Property Costs (in the
case of a Construction Advance) that have previously been incurred or are to be
incurred on the date of such Advance to the extent such were not subject to a
prior Requisition, in each case as specified in the Requisition and (iv) shall
constitute a restatement of the representations made by Lessee in the certificate
provided pursuant to Section 5.3(z) as of the date of such Requisition.


 


3

















 


(c)           Subject to the
satisfaction of the conditions precedent set forth in Sections 5.3 or 5.4, as
applicable, on each Property Closing Date or the date on which the Construction
Advance is to be made, as applicable, (i) the Lenders shall make Loans based on
their respective Lender Commitments to the Lessor in an aggregate amount equal
to ninety-six and seven tenths percent (96.7%) of the Requested Funds specified
in any Requisition plus any additional amount of Transaction Expenses as
referenced in Sections 7.1(a), 7.1(b) and 7.2 and any additional amount
respecting any indemnity payment as referenced in Section 11.8, unless any such
funding of Transaction Expenses or any indemnity payment is declined in writing
by each Lender and each Holder (such decision to be in the reasonable
discretion of each Lender and each Holder) ratably between the Tranche A
Lenders and the Tranche B Lenders with the Tranche A Lenders funding
eighty-four percent (84%) of the Requested Funds and the Tranche B Lenders
funding twelve and seven tenths percent (12.7%) of the Requested Funds), up to
an aggregate principal amount equal to the aggregate of the Available
Commitments, (ii) the Holders shall make Holder Advances based on their
respective Holder Commitments in an aggregate amount equal to three and three
tenths percent (3.3%) of the balance of the Requested Funds specified in such
Requisition plus any additional amount of Transaction Expenses as referenced in
Sections 7.1(a), 7.1(b) and 7.2 and any additional amount respecting any
indemnity payment as referenced in Section 11.8, unless any such funding of
Transaction Expenses or any indemnity payment is declined in writing by each
Lender and each Holder (such decision to be in the reasonable discretion of
each Lender and each Holder), up to the aggregate advanced amount equal to the
aggregate of the Available Holder Commitments; and (iii) the total amount of
such Loans and Holder Advances made on such date shall (x) be used by the
Lessor to pay Property Costs including Transaction Expenses within three (3)
Business Days of the receipt by the Lessor of such Advance or (y) be advanced
by the Lessor on the date of such Advance to the Construction Agent or the
Lessee to pay Property Costs, as applicable. 
Notwithstanding that the Operative Agreements state that Advances shall
be directed to the Lessor, each Advance shall in fact be directed to the
Construction Agent (for the benefit of the Lessor) and applied by the
Construction Agent (for the benefit of the Lessor) pursuant to the requirements
imposed on the Lessor under the Operative Agreements.


 


(d)           With respect to an
Advance obtained by the Lessor to pay for Property Costs and/or Transaction
Expenses or other costs payable under Sections 7.1(a), 7.1(b), 7.2 or 11.8
hereof and not expended by the Lessor for such purpose on the date of such
Advance, such amounts shall be held by the Lessor (or the Agent on behalf of
the Lessor) until the applicable closing date or payment date or, if such
closing date or payment date does not occur within three (3) Business Days of
the date of the Lessor’s receipt of such Advance, shall be applied regarding
the applicable Advance to repay the Lenders and the Holders and, subject to the
terms hereof, and of the Credit Agreement and the Trust Agreement, shall remain
available for future Advances, shall not count as an Advance for purposes of
the two Advance limit per month provided for in Section 5.2(a), and shall not
reduce the Lender Commitments or the Holder Commitments.  Any such amounts held by the Lessor (or the
Agent on behalf of the Lessor) shall be subject to the lien of the Security
Agreement.


 


(e)           All Operative Agreements
which are to be delivered to the Lessor, the Agent, the Lenders or the Holders
shall be delivered to the Agent, on behalf of the Lessor, the Agent, the
Lenders or the Holders, and such items (except for Notes, Certificates, Bills
of Sale and chattel paper originals, with respect to which in each case there
shall be only one original) shall be delivered with originals sufficient for
the Lessor, the Agent, each Lender and each Holder.  All other items which are to be delivered to the Lessor, the
Agent, the Lenders or the Holders shall be delivered to the Agent, on behalf of
the Lessor, the Agent, the Lenders or the Holders, and such other items shall
be held by the Agent.  To the extent any
such other items are requested in writing from time to time by the Lessor, any
Lender or any Holder, the Agent shall provide a copy of such item to the party
requesting it.


 


(f)            [Intentionally
Omitted.]


 


4

















 


5.3.                            Conditions Precedent
for  the Lessor, the Agent, the Lenders
and the Holders Relating to the Initial Closing Date and the Advance of Funds
for the Acquisition of a Property.


 


The
obligations (i) on the Initial Closing Date of the Lessor, the Agent, the
Lenders and the Holders to enter into the transactions contemplated by this
Agreement, including without limitation the obligation to execute and deliver
the applicable Operative Agreements to which each is a party on the Initial
Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder
Advances, and of the Lenders to make Loans in order to pay Transaction
Expenses, fees, expenses and other disbursements payable by the Lessor under
Sections 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date
for the purpose of providing funds to the Lessor necessary to pay the
Transaction Expenses, fees, expenses and other disbursements payable by the
Lessor under Sections 7.1(b) and 7.2 of this Agreement and to acquire a
Property (an “Acquisition Advance”), in each case (with regard to the
foregoing Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or
waiver of the following conditions precedent on or prior to the Initial Closing
Date or the applicable Property Closing Date, as the case may be (to the extent
such conditions precedent require the delivery of any agreement, certificate,
instrument, memorandum, legal or other opinion, appraisal, commitment, title
insurance commitment, lien report or any other document of any kind or type,
such shall be in form and substance satisfactory to the Agent and the Majority
Secured Parties, in their reasonable discretion; notwithstanding the foregoing,
the obligations of each party shall not be subject to any conditions contained
in this Section 5.3 which are required to be performed by such party):


 


(a)           the correctness of
the representations and warranties of the parties to this Agreement contained
herein, in each of the other Operative Agreements and each certificate
delivered pursuant to any Operative Agreement on each such date;


 


(b)           the performance by
the parties to this Agreement of their respective agreements contained herein
and in the other Operative Agreements to be performed by them on or prior to
each such date;


 


(c)           the Agent shall have
received a fully executed counterpart copy of the Requisition, appropriately
completed;


 


(d)           [Intentionally Omitted];


 


(e)           the Construction
Agent shall have delivered to the Agent a good standing certificate for the
Construction Agent in the state where each such Property is located, the Deed
with respect to the Land and existing Improvements (if any), and a copy of the
Bill of Sale with respect to the Equipment (if any), respecting such of the
foregoing as are being acquired on each such date with the proceeds of the
Loans and Holder Advances or which have been previously acquired  with the proceeds of the Loans and Holder
Advances and such Land, existing Improvements (if any) and Equipment (if any)
shall be located in an Approved State;


 


(f)            there shall not
have occurred and be continuing any Default or Event of Default under any of
the Operative Agreements and no Default or Event of Default under any of the
Operative Agreements will have occurred after giving effect to the Advance
requested by each such Requisition;


 


(g)           the Construction
Agent shall have delivered to the Agent title insurance commitments to issue
policies respecting each such Property, with such endorsements as are available
that the Agent deems necessary, in favor of the Lessor and the Agent from a
title insurance company acceptable to the Agent in its reasonable discretion,
but only with such title exceptions thereto as are acceptable to the Agent in
its reasonable discretion,;


 


(h)           the Construction
Agent shall have delivered to the Agent an environmental site assessment
respecting each such Property prepared (no earlier than six months prior to the
date presented to the Agent) by an independent recognized professional
acceptable to the Agent in its reasonable discretion, and evidencing no
pre-existing environmental condition with respect to which there is more than a
remote risk of loss;


 


5

















 


(i)            the Construction
Agent shall have delivered to the Agent a survey (with a flood hazard
certification) respecting each such Property prepared (i) by an independent
recognized professional acceptable to the Agent in its reasonable discretion,
and (ii) in a manner and including such information as is reasonably required
by the Agent;


 


(j)            unless such an
opinion has previously been delivered with respect to a particular state, the
Construction Agent shall have caused to be delivered to the Agent a legal
opinion substantially in the form attached hereto as Exhibit B or in
such other form as is reasonably acceptable to the Agent with respect to local
law real property issues respecting the state in which each such Property is
located addressed to the Lessor, the Agent, the Lenders and the Holders, from
counsel located in the state where each such Property is located, prepared by
counsel reasonably acceptable to the Agent;


 


(k)           the Agent shall be
satisfied that the acquisition and/or holding of each such Property and the
execution of the Mortgage Instrument and the other Security Documents will not
materially and adversely affect the rights of the Lessor, the Agent, the
Holders or the Lenders under or with respect to the Operative Agreements;


 


(l)            the Construction
Agent shall have delivered to the Agent invoices from the Lessee, Construction
Agent, Agent, Owner Trustee or others, as the case may be, for, or other
reasonably satisfactory evidence to support payment of, the various Transaction
Expenses and other fees, expenses and disbursements referenced in Sections
7.1(a), 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between
the Construction Agent and the Agent regarding the initial Requisition);


 


(m)          the Construction
Agent and the Owner Trustee shall have caused to be delivered to the Agent a
Mortgage Instrument (in such form as is acceptable to the Agent, with revisions
as necessary to conform to applicable state law), Lessor Financing Statements
and Lender Financing Statements respecting each such Property, all fully
executed and in recordable form;


 


(n)           the Lessee and the
Lessor shall have delivered to the Agent with respect to each such Property a
Lease Supplement and a memorandum (or short form lease) regarding the Lease and
such Lease Supplement (such memorandum or short form lease to be in
substantially the form attached to the Lease as Exhibit B or in such
other form as is reasonably acceptable to the Agent, with modifications as
necessary to conform to applicable state law, and in form suitable for
recording);


 


(o)           with respect to each
Acquisition Advance, the sum of the Available Commitment plus the Available
Holder Commitment (after deducting the Unfunded Amount, if any, and after
giving effect to the Acquisition Advance) will be sufficient to pay all amounts
payable therefrom;


 


(p)           [Intentionally Omitted];


 


(q)           [Intentionally Omitted];


 


(r)            the Construction
Agent shall have delivered to the Agent a preliminary Construction Budget for
each such Property, if applicable;


 


(s)           the Construction
Agent shall have provided evidence to the Agent of insurance with respect to
each such Property as provided in the Lease;


 


(t)            the Construction
Agent shall have caused an appraisal regarding each such Property evidencing an
appraised amount equal to at least ninety percent (90%) of (i) the Property
Cost to be funded by the Lenders and the Holders on the Property Closing Date
for the Property located in or near Southlake, Texas, including without
limitation approximately 25 acres of land and the existing office building of
approximately 400,000 square feet and parking garage located thereon
(collectively, the “Constructed Property”), and (ii) the anticipated
Property Cost for the other Property located in or near Southlake, Texas,
including the Land, Improvements and Equipment on or about such Property, or to
be constructed and/or 


 


6

















 


obtained in
connection therewith, including without limitation approximately 156 acres of
Land and the to-be-constructed office building of approximately 500,000 square
feet to be located thereon (collectively, the “Undeveloped Property”).


 


(u)           the Construction
Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches
and judgment lien searches regarding the Lessee to be conducted (and copies
thereof to be delivered to the Agent) in such jurisdictions as reasonably
determined by the Agent by a nationally recognized search company reasonably
acceptable to the Agent and (ii) the liens referenced in such lien searches
which are not permitted pursuant to the terms of the Operative Agreements and
which are objectionable to the Agent to be either removed or otherwise handled
in a manner reasonably satisfactory to the Agent;


 


(v)           all taxes, fees and
other charges in connection with the execution, delivery, recording, filing and
registration of the Operative Agreements and/or documents related thereto shall
have been paid or provisions for such payment shall have been made to the
reasonable satisfaction of the Agent;


 


(w)          in the reasonable
opinion of the Agent and its counsel, the transactions contemplated by the
Operative Agreements do not and will not subject the Lessor, the Lenders, the
Agent or the Holders to any adverse regulatory prohibitions, constraints,
penalties or fines;


 


(x)            each of the
Operative Agreements to be entered into on such date shall have been duly
authorized, executed and delivered by the parties thereto, and shall be in full
force and effect, and the Agent shall have received a fully executed copy of
each of the Operative Agreements;


 


(y)           since the date of
the most recent audited consolidated financial statements (as delivered
pursuant to the requirements of this Agreement) of the Parent and its
Consolidated Subsidiaries, there shall not have occurred any event, condition
or state of facts which shall have or could reasonably be expected to have a
Material Adverse Effect, other than as specifically contemplated by the
Operative Agreements;


 


(z)            as of the Initial
Closing Date only, the Agent shall have received an Officer’s Certificate,
dated as of the Initial Closing Date, of the Lessee in substantially the form
attached hereto as Exhibit C or in such other form as is reasonably
acceptable to the Agent stating that (i) each and every representation and
warranty of the Lessee contained in the Operative Agreements to which it is a
party is true and correct on and as of the Initial Closing Date; (ii) no
Default or Event of Default with respect to the Lessee has occurred and is
continuing under any Operative Agreement; (iii) each Operative Agreement to
which the Lessee is a party is in full force and effect with respect to it; and
(iv) the Lessee has duly performed and complied with all covenants, agreements
and conditions contained herein or in any other Operative Agreement to which it
is a party required to be performed or complied with by it on or prior to the
Initial Closing Date;


 


(aa)         as of the Initial
Closing Date only, the Agent shall have received (i) a certificate of the
Secretary or an Assistant Secretary of the Lessee, dated as of the Initial
Closing Date, in substantially the form attached hereto as Exhibit D or
in such other form as is reasonably acceptable to the Agent attaching and
certifying as to (A) the resolutions of its Board of Directors duly authorizing
the execution, delivery and performance by the Lessee of each of the Operative
Agreements to which it is or will be a party, (B) its certificate of
incorporation certified as of a recent date by the Secretary of State of its
state of incorporation, (C) its by-laws and (D) the incumbency and signature of
persons authorized to execute and deliver on its behalf the Operative
Agreements to which it is or will be a party and (ii) a good standing
certificate (or local equivalent) from the appropriate office of the respective
states where the Lessee is incorporated and where the principal place of
business of the Lessee is located as to its good standing in each such state;


 


(bb)         as of the Initial
Closing Date only, the Agent shall have received an Officer’s Certificate of
the Lessor dated as of the Initial Closing Date in substantially the form
attached hereto as Exhibit E or in such other form as is reasonably
acceptable to the Agent, stating that (i) each and every representation
and warranty of the Lessor contained in the Operative Agreements to which it is
a party is true and correct on


 


7

















 


and as of the
Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a
party is in full force and effect with respect to it, and (iii) the Lessor has
duly performed and complied with all covenants, agreements and conditions
contained herein or in any other Operative Agreement to which it is a party
required to be performed or complied with by it on or prior to the Initial
Closing Date;


 


(cc)         as of the Initial
Closing Date only, the Agent shall have received (i) a certificate of the
Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust
Company in substantially the form attached hereto as Exhibit F or in
such other form as is acceptable to the Agent, attaching and certifying as to
(A) the signing resolutions duly authorizing the execution, delivery and
performance by the Lessor of each of the Operative Agreements to which it is or
will be a party, (B) its articles of association or other equivalent charter
documents, (C) its by-laws, as the case may be, certified as of a recent date
by an appropriate officer of the Trust Company and (D) the incumbency and
signature of persons authorized to execute and deliver on its behalf the
Operative Agreements to which it is a party and (ii) a good standing
certificate from the Office of the Comptroller of the Currency;


 


(dd)         as of the Initial
Closing Date only, counsel for the Lessor reasonably acceptable to the Agent
shall have issued to the Lessee, the Holders, the Lenders and the Agent its
opinion in substantially the form attached hereto as Exhibit G or in
such other form as is reasonably acceptable to the Agent; and


 


(ee)         as of the Initial
Closing Date only, the Construction Agent shall have caused to be delivered to
the Agent a legal opinion in substantially the form attached hereto as Exhibit H
or in such other form as is reasonably acceptable to the Agent, addressed to
the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably
acceptable to the Agent.


 


5.3A                      Conditions to the Obligations of the
Lessee.


 


The obligations
of the Lessee to lease from the Lessor are subject to the fulfillment on the
Closing Date to the satisfaction of, or waiver by, the Lessee, of the following
conditions precedent:


 


(a)           General
Conditions.  The conditions set
forth in Section 5.3 that require fulfillment by the Lessor, the
Holders, the Agent or the Lenders shall have been satisfied.


 


(b)           Legality.  The transactions contemplated by the
Operative Agreements shall not violate any Law applicable to the Lessee, and no
change shall have occurred or been proposed in Law that would make it illegal
for the Lessee to participate in any of the transactions contemplated by the
Operative Agreement.


 


5.4.                            Conditions Precedent for
the Lessor, the Agent, the Lenders
and the Holders Relating to the Advance of Funds after the Acquisition
Advance.


 


The
obligations of the Holders to make Holder Advances, and the Lenders to make
Loans in connection with all requests for Advances subsequent to the
acquisition of a Property (and to pay the Transaction Expenses, fees, expenses
and other disbursements payable by the Lessor under Sections 7.1 and 7.2 of
this Agreement in connection therewith) are subject to the satisfaction or
waiver of the following conditions precedent (to the extent such conditions
precedent require the delivery of any agreement, certificate, instrument,
memorandum, legal or other opinion, appraisal, commitment, title insurance
commitment, lien report or any other document of any kind or type, such shall
be in form and substance satisfactory to the Agent and the Majority Secured
Parties in their reasonable discretion; notwithstanding the foregoing, the
obligations of each party shall not be subject to any conditions contained in
this Section 5.4 which are required to be performed by such party):


 


(a)           the correctness on
such date of the representations and warranties of the parties to this
Agreement contained herein, in each of the other Operative Agreements and in
each certificate delivered pursuant to any Operative Agreement;


 


8

















 


(b)           the performance by
the parties to this Agreement of their respective agreements contained herein
and in the other Operative Agreements to be performed by them on or prior to
each such date;


 


(c)           the Agent shall have
received a fully executed counterpart of the Requisition, appropriately
completed;


 


(d)           based upon the
applicable Construction Budget which shall satisfy the requirements of this
Agreement, the Available Commitments and the Available Holder Commitment (after
deducting the Unfunded Amount) will be sufficient to complete the Improvements;


 


(e)           there shall not have
occurred and be continuing any Default or Event of Default under any of the
Operative Agreements and no Default or Event of Default under any of the
Operative Agreements will have occurred after giving effect to the Construction
Advance requested by the applicable Requisition;


 


(f)            the title
commitment delivered in connection with the requirements of Section 5.3(g)
shall provide for (or shall be endorsed to provide for) insurance in an amount
at least equal to the maximum total Property Cost indicated by the Construction
Budget referred to in subparagraph (d) above and there shall be no title change
or exception objectionable to the Agent in its reasonable discretion; provided,
not in limitation of the forgoing provisions of this Section 5.4(f), down date
title insurance endorsements shall be provided at each such date evidencing
that there are no additional Liens of record objectionable to the Agent in its
reasonable discretion.


 


(g)           [Intentionally Omitted];


 


(h)           the Construction
Agent shall have delivered to the Agent invoices from the Lessee, Construction
Agent, Agent, Owner Trustee or others, as the case may be, for, or other
reasonably satisfactory evidence to support payment of, any Transaction
Expenses and other fees, expenses and disbursements referenced in Sections
7.1(b) and 7.2 that are to be paid with the Advance;


 


(i)            the Construction
Agent shall have delivered, or caused to be delivered to the Agent, invoices,
Bills of Sale or other documents reasonably acceptable to the Agent, in each
case with regard to any Equipment or other components of such Property then
being acquired with the proceeds of the Loans and Holder Advances and naming
the Lessor as purchaser and transferee;


 


(j)            all taxes, fees and
other charges in connection with the execution, delivery, recording, filing and
registration of the Operative Agreements shall have been paid or provisions for
such payment shall have been made to the reasonable satisfaction of the Agent;


 


(k)           since the date of
the most recent audited financial statements (as delivered pursuant to the
requirements of this Agreement) of the Parent and its Consolidated
Subsidiaries, there shall not have occurred any event, condition or state of
facts which shall have or could reasonably be expected to have a Material
Adverse Effect, other than as specifically contemplated by the Operative
Agreements; and


 


(l)            in the reasonable
opinion of the Agent and its counsel, the transactions contemplated by the
Operative Agreements do not and will not subject the Lessor, the Lenders, the
Agent or the Holders to any adverse regulatory prohibitions, constraints,
penalties or fines.


 


5.5.                            Additional Reporting and Delivery
Requirements on Completion Date and on Construction Period Termination Date.


 


On or prior to
the Completion Date for each Property, the Construction Agent shall deliver to
the Agent, in sufficient copies for each Financing Party, an Officer’s
Certificate substantially in the form attached hereto as Exhibit I or in
such other form as is acceptable to the Agent specifying (a) the address for
such Property, (b) the Completion Date for such Property, (c) the
aggregate Property Cost for such Property, (d) reasonably detailed,
itemized documentation supporting the asserted Property Cost figures and (e)
that all representations and warranties


 


9

















 


of the Construction Agent and
Lessee in each of the Operative Agreements and each certificate delivered
pursuant thereto are true and correct as of the Completion Date.  The Agent shall have the right to contest
the information contained in such Officer’s Certificate within ninety (90) days
of receipt of such Officer’s Certificate by the Agent pursuant to a written
notice from the Agent to the Construction Agent identifying in reasonable
detail the objections of the Agent. 
Furthermore, on or prior to the Completion Date for each Property, the
Construction Agent shall deliver or cause to be delivered to the Agent (unless
previously delivered to the Agent) originals of the following, each of which
shall be in form and substance reasonably acceptable to the Agent: (w) a
title insurance endorsement regarding the title insurance policy delivered in
connection with the requirements of Section 5.3(g), but only to the extent such
endorsement is necessary to provide for insurance in an amount at least equal
to the maximum total Property Cost indicated by the Construction Budget
referred to in Section 5.4(d) and, if endorsed, the endorsement shall not
include a title change or exception reasonably objectionable to the Agent; (x)
an as-built survey for such Property, (y) insurance certificates respecting
such Property as required hereunder and under the Lease Agreement, and (z) if
reasonably requested by the Agent, amendments to the Lessor Financing
Statements executed by the appropriate parties.  In addition, on the Completion Date for such Property the Construction
Agent covenants and agrees that the recording fees, documentary stamp taxes or
similar amounts required to be paid in connection with the related Mortgage
Instrument shall be paid in an amount required by applicable law, subject,
however, to the obligations of the Lenders and the Holders to fund such costs
to the extent required pursuant to Section 7.1.


 


5.6.                            The
Construction Agent Delivery of Construction Budget Modifications.


 


The
Construction Agent covenants and agrees to deliver to the Agent on the first
Business Day of each month during the Construction Period notification of any
modification to any Construction Budget regarding any Property if such
modification increases the cost to construct such Property unless any such
modification increases the cost of construction in excess of $1,000,000, in
which event such notification shall be provided to Agent within five (5)
Business Days of such modification to the Construction Budget; except that no
Construction Budget may be increased unless (a) the title insurance policies
referenced in Section 5.3(g) are also modified or endorsed, if necessary, to
provide for insurance in an amount that satisfies the requirements of Section
5.4(f) of this Agreement and (b) after giving effect to any such amendment, the
Construction Budget remains in compliance with the requirements of Section
5.4(d) of this Agreement.


 


5.7.                            Restrictions on Liens.


 


On each
Property Closing Date, the Construction Agent shall cause each Property
acquired by the Lessor on such date to be free and clear of all Liens except
those referenced in Sections 6.2(r)(i) and 6.2(r)(ii).  On each date a Property is either sold to a
third party in accordance with the terms of the Operative Agreements or,
pursuant to Section 22.1(a) of the Lease Agreement, retained by the Lessor, the
Lessee shall cause such Property to be free and clear of all Liens (other than
Lessor Liens, Liens in favor of the Agent and such other Liens that are
expressly set forth as title exceptions on the title commitment issued under
Section 5.3(g) with respect to such Property, to the extent such title
commitment has been approved by the Agent in its reasonable discretion).


 


5.8.                            Payments.


 


All payments
of principal, interest, Holder Advances, Holder Yield and other amounts to be
made by the Construction Agent or the Lessee under this Agreement or any other
Operative Agreements (excluding Excepted Payments which shall be paid directly
to the party to whom such payments are owed) shall be made to the Agent at the
office designated by the Agent from time to time in Dollars and in immediately
available funds, without setoff, deduction, or counterclaim.  Subject to the definition of “Interest
Period” in Appendix A attached hereto, whenever any payment under this
Agreement or any other Operative Agreements shall be stated to be due on a day
that is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time in such case shall be included in the
computation of interest, Holder Yield and fees payable pursuant to the
Operative Agreements, as applicable and as the case may be.


 


10

















 


5.9.                            Unilateral
Right to Increase the Holder Commitments and the Lender Commitments.


 


Notwithstanding
any other provision of any Operative Agreement or any objection by any Person
(including without limitation any objection by the Lessee), (a) the Holders,
upon the agreement of all Holders and Lenders, may elect to increase their
respective Holder Commitment (based on their then current Holder Commitment percentage)
in order to fund amounts due and owing pursuant to Sections 7.1(a), 7.1(b), 7.2
and/or 11.8 and (b) the Lenders, upon the agreement of all Lenders and all
Holders, may elect to increase their respective Lender Commitments ratably
(based on their then current Commitment percentage) in order to fund amounts
due and owing pursuant to Sections 7.1(a), 7.1(b), 7.2 and/or 11.8.


 


5.10.                     Plans and Specifications.


 


The
Construction Agent shall have delivered to the Agent copies of the Plans and
Specifications for the Improvements regarding each Property within sixty (60)
days after the Acquisition Advance for such Property (and in any event prior to
the Initial Construction Advance for such Property).


 


5.11.                     Amounts Received in Regard to
Collateral.


 


All payments
and amounts realized by any Financing Party with respect to any Collateral
(including without limitation pursuant to the right of set-off) shall be held
in trust for the benefit of the Lenders and the Holders and shall be promptly
paid over to the Agent for distribution in accordance with Section 8.7.


 


SECTION 6.  REPRESENTATIONS AND WARRANTIES.


 


6.1.                            Representations and Warranties of
the Borrower.


 


Effective as
of the Initial Closing Date and the date of each Advance, the Trust Company in
its individual capacity and as the Borrower, as indicated, represents and
warrants to each of the other parties hereto as follows, except that the
representations in the following paragraphs (h), (j) and (k) are made solely in
its capacity as the Borrower:


 


(a)           It is a national
banking association and is duly organized and validly existing and in good
standing under the laws of the United States of America and has the power and
authority to enter into and perform its obligations under the Trust Agreement
and (assuming due authorization, execution and delivery of the Trust Agreement
by the Holders) has the corporate and trust power and authority to act as the
Owner Trustee and to enter into and perform the obligations under each of the
other Operative Agreements to which the Trust Company or the Owner Trustee, as
the case may be, is or will be a party;


 


(b)           The execution,
delivery and performance of each Operative Agreement to which it is or will be
a party, either in its individual capacity or (assuming due authorization, execution
and delivery of the Trust Agreement by the Holders) as the Owner Trustee, as
the case may be, has been duly authorized by all necessary action on its part
and neither the execution and delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it with any of the terms
and provisions thereof (i) does or will require any approval or consent of any
trustee or holders of any of its indebtedness or obligations, (ii) does or will
contravene any Legal Requirement relating to its banking or trust powers, (iii)
does or will contravene or result in any breach of or constitute any default
under, or result in the creation of any Lien upon any of its property under,
(A) its charter or by-laws, or (B) any indenture, mortgage, chattel mortgage,
deed of trust, conditional sales contract, bank loan or credit agreement or
other agreement or instrument to which it is a party or by which it or its
properties may be bound or affected, which contravention, breach, default or
Lien under clause (B) would materially and adversely affect its ability, in its
individual capacity or as the Owner Trustee, to perform its obligations under
the Operative Agreements to which it is a party or (iv) does or will require
any Governmental Action by any Governmental Authority regulating its banking or
trust powers;


 


(c)           The Trust Agreement
and, assuming the Trust Agreement is the legal, valid and binding obligation of
the Holders, each other Operative Agreement to which the Trust Company or the
Owner


 


11

















 


Trustee, as
the case may be, is or will be a party have been, or on or before such Closing
Date will be, duly executed and delivered by the Trust Company or the Owner
Trustee, as the case may be, and the Trust Agreement and each such other
Operative Agreement to which the Trust Company or the Owner Trustee, as the
case may be, is a party constitutes, or upon execution and delivery will
constitute, a legal, valid and binding obligation enforceable against the Trust
Company or the Owner Trustee, as the case may be, in accordance with the terms
thereof;


 


(d)           There is no action
or proceeding pending or, to its knowledge, threatened to which it is or will
be a party, either in its individual capacity or as the Owner Trustee, before
any Governmental Authority that, if adversely determined, would materially and
adversely affect its ability, in its individual capacity or as the Owner
Trustee, to perform its obligations under the Operative Agreements to which it is
a party or would question the validity or enforceability of any of the
Operative Agreements to which it is or will become a party;


 


(e)           It, either in its
individual capacity or as the Owner Trustee, has not assigned or transferred
any of its right, title or interest in or under the Lease, the Agency Agreement
or its interest in any Property or any portion thereof, except in accordance
with the Operative Agreements;


 


(f)            No Default or Event
of Default under the Operative Agreements attributable to it has occurred and
is continuing;


 


(g)           Except as otherwise
contemplated in the Operative Agreements, the proceeds of the Loans and Holder
Advances shall not be applied by the Owner Trustee, either in its individual
capacity or as the Owner Trustee, for any purpose other than the purchase of
the Properties, the acquisition, installation and testing of the Equipment, the
construction of Improvements and the payment of Transaction Expenses and the
fees, expenses and other disbursements referenced in Sections 7.1(a), 7.1(b)
and 7.2 of this Agreement, in each case which accrue prior to the Rent
Commencement Date with respect to a particular Property;


 


(h)           Neither the Owner
Trustee nor any Person authorized by the Owner Trustee to act on its behalf has
offered or sold any interest in the Trust Estate or the Notes, or in any
similar security relating to a Property, or in any security the offering of
which for the purposes of the Securities Act would be deemed to be part of the
same offering as the offering of the aforementioned securities to, or solicited
any offer to acquire any of the same from, any Person other than, in the case
of the Notes, the Agent, and neither the Owner Trustee nor any Person
authorized by the Owner Trustee to act on its behalf will take any action which
would subject, as a direct result of such action alone, the issuance or sale of
any interest in the Trust Estate or the Notes to the provisions of Section 5 of
the Securities Act or require the qualification of any Operative Agreement
under the Trust Indenture Act of 1939, as amended;


 


(i)            The Owner Trustee’s
principal place of business, chief executive office and office where the
documents, accounts and records relating to the transactions contemplated by
this Agreement and each other Operative Agreement are kept are located at 79
South Main Street, Salt Lake City, Utah 84111;


 


(j)            The Owner Trustee
is not engaged principally in, and does not have as one (1) of its important
activities, the business of extending credit for the purpose of purchasing or carrying
any margin stock (within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System of the United States), and no part of the
proceeds of the Loans or the Holder Advances will be used by it to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or for any purpose that violates,
or is inconsistent with, the provisions of Regulations T, U, or X of the Board
of Governors of the Federal Reserve System of the United States;


 


(k)           The Owner Trustee is
not an “investment company” or a company controlled by an “investment company”
within the meaning of the Investment Company Act;


 


12

















 


(l)            Each Property is
free and clear of all Lessor Liens attributable to the Owner Trustee, either in
its individual capacity or as the Owner Trustee;


 


(m)          The Owner Trustee, in
its trust capacity, is not a party to any documents, instruments or agreements
other than the Operative Agreements executed by the Owner Trustee, in its trust
capacity; and


 


(n)           The Owner Trustee
has filed the requisite documents with the Secretary of State of the State of
Texas pursuant to Section 105A of the Texas Probate Code and, as an
out-of-state bank, is authorized to act as a fiduciary in the State of Texas;
in connection with such filing with the Secretary of State of the State of
Texas, the Owner Trustee has represented that the State of Utah has a
reciprocal statute or law that permits an out-of-state bank or trust company to
serve as a fiduciary in the State of Utah; and the Owner Trustee has no office,
branch offices or employees located in the State of Texas.


 


6.2.                            Representations and
Warranties of the Construction Agent
and the Lessee.


 


Effective as
of the Initial Closing Date, the date of each Advance and the Rent Commencement
Date, the Construction Agent and the Lessee represent and warrant to each of
the other parties hereto that:


 


(a)           [Intentionally Omitted];


 


(b)           The execution and
delivery by each of the Construction Agent and the Lessee of this Agreement and
the other applicable Operative Agreements to which it is or will be a party as
of such date and the performance by each of the Construction Agent and the
Lessee of its respective obligations under this Agreement and the other
applicable Operative Agreements to which it is or will be a party are within
the corporate powers of each of the Construction Agent and the Lessee, have
been duly authorized by all necessary corporate action on the part of each of
the Construction Agent and the Lessee (including without limitation any
necessary shareholder action), have been duly executed and delivered, have
received all necessary governmental approval, and do not and will not (i)
violate any Legal Requirement which is binding on the Construction Agent, the
Lessee or any of its Subsidiaries, (ii) contravene or conflict with, or
result in a breach of, any provision of the Certificate of Incorporation,
By-Laws or other organizational documents of any of the Construction Agent, the
Lessee or any of its Subsidiaries or of any agreement, indenture, instrument or
other document which is binding on any of the Construction Agent, the Lessee or
any of its Subsidiaries or (iii) result in, or require, the creation or
imposition of any Lien on any asset of any of the Construction Agent, the
Lessee or any of its Subsidiaries, except to the extent any of the foregoing
Liens referenced in this subsection (iii) are permitted pursuant to the
Operative Agreements;


 


(c)           This Agreement and
the other applicable Operative Agreements to which the Construction Agent or
the Lessee are parties, executed prior to and as of such date, constitute the
legal, valid and binding obligation of the Construction Agent or the Lessee, as
applicable, enforceable against the Construction Agent or the Lessee, as
applicable, in accordance with their terms, subject to bankruptcy, insolvency,
liquidation, reorganization, fraudulent conveyance and similar laws affecting
creditors’ rights generally, and general principles of equity;


 


(d)           Other than as
described in Exhibit J hereto, there are no material actions, suits or
proceedings pending or, to its knowledge, threatened against either the
Construction Agent or the Lessee in any court or before any Governmental
Authority (nor shall any order, judgment or decree have been issued or proposed
to be issued by any Governmental Authority to set aside, restrain, enjoin or
prevent the full performance of any Operative Agreement or any transaction
contemplated thereby) that (i) concern any Property or the Lessee’s interest
therein, (ii) question the validity or enforceability of any Operative
Agreement or any transaction described in the Operative Agreements or
(iii) shall have or could reasonably be expected to have a Material
Adverse Effect;


 


(e)           No Governmental
Action by any Governmental Authority or other authorization, registration,
consent, approval, waiver, notice or other action by, to or of any other Person
pursuant to any Legal Requirement, contract, indenture, instrument or agreement
or for any other reason is required to


 


13

















 


authorize or
is required in connection with (i) the execution, delivery or performance by
either of the Construction Agent or the Lessee of any Operative Agreement to
which it is a party, (ii) the legality, validity, binding effect or
enforceability of any Operative Agreement to which it is a party, (iii) the
acquisition, ownership, construction, completion, occupancy, operation, leasing
or subleasing of any Property or (iv) any Advance, in each case, except those
which have been obtained and are in full force and effect, those the failure to
obtain would not reasonably be expected to have a Material Adverse Effect and
those the failure to obtain do not violate any other provision of the Operative
Agreements;


 


(f)            Upon the execution
and delivery of each Lease Supplement to the Lease, (i) the Lessee will
have unconditionally accepted the Property subject to the Lease Supplement,
subject only to the Permitted Liens, and (ii) no offset will exist with respect
to any Rent or other sums payable by Lessee under the Lease;


 


(g)           Except as otherwise
contemplated by the Operative Agreements, the Construction Agent shall not use
the proceeds of any Holder Advance or Loan for any purpose other than the
purchase and/or lease of the Properties, the acquisition, installation and
testing of the Equipment, the construction of Improvements and the payment of
Transaction Expenses and the fees, expenses and other disbursements referenced
in Sections 7.1(a), 7.1(b) and 7.2 of this Agreement, in each case which accrue
prior to the Rent Commencement Date with respect to a particular Property;


 


(h)           All information
heretofore or contemporaneously herewith furnished by either the Construction
Agent or the Lessee or any of their Subsidiaries to the Agent, the Owner
Trustee, any Lender or any Holder for purposes of or in connection with this
Agreement and the transactions contemplated hereby is, and all information hereafter
furnished by or on behalf of the Construction Agent, the Lessee or any of their
Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant
hereto or in connection herewith will be, true and accurate in every material
respect on the date as of which such information is dated or certified, and
such information, taken as a whole, does not and will not omit to state any
material fact necessary to make such information, taken as a whole, not
misleading;


 


(i)            The principal place
of business, chief executive office and office of the Construction Agent and
the Lessee where the documents, accounts and records relating to the
transactions contemplated by this Agreement and each other Operative Agreement
are kept are located at 4255 Amon Carter Boulevard, Fort Worth, Texas 76155;


 


(j)            The representations
and warranties of the Construction Agent and the Lessee set forth in any of the
Operative Agreements are true and correct in all material respects on and as of
each such date as if made on and as of such date (except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true and correct on
and as of such date).  The Construction
Agent and the Lessee are in all material respects in compliance with their
respective obligations under the Operative Agreements and there exists no
Default or Event of Default with respect to it under any of the Operative
Agreements which is continuing and which has not been cured within any cure
period expressly granted under the terms of the applicable Operative Agreement
or otherwise waived in accordance with the applicable Operative Agreement.  No Default or Event of Default will occur
under any of the Operative Agreements as a result of, or after giving effect
to, the Advance requested by the Requisition on the date of each Advance;


 


(k)           As of each Property
Closing Date, the date of each subsequent Advance and the Rent Commencement
Date only, each Property then being financed consists of (i) unimproved Land or
(ii) Land and existing Improvements thereon which Improvements are either
suitable for occupancy at the time of acquisition or will be renovated and/or
modified in accordance with the terms of this Agreement.  Each Property then being financed is located
at the location set forth on the applicable Requisition, each of which is in
one (1) of the Approved States;


 


(l)            As of each Property
Closing Date, the date of each subsequent Advance and the Rent Commencement
Date only, the Lessor has good and indefeasible fee simple title to each
Property, subject


 


14

















 


only to (i)
such Liens referenced in Sections 6.2(r)(i) and 6.2(r)(ii) on the applicable
Property Closing Date and (ii) subject to Section 5.7, Permitted Liens and
Lessor Liens after the applicable Property Closing Date;


 


(m)          As of each Property
Closing Date, the date of each subsequent Advance and the Rent Commencement
Date only, no portion of any Property is located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or other
applicable agency, or if any such Property is located in an area identified as
a special flood hazard area by the Federal Emergency Management Agency or other
applicable agency, then flood insurance has been obtained for such Property in
accordance with Section 14.2(b) of the Lease and in accordance with the
National Flood Insurance Act of 1968, as amended;


 


(n)           As of each Property
Closing Date, the date of each subsequent Advance and the Rent Commencement
Date only, each Property complies in all material respects with all Insurance
Requirements and all standards of the Lessee with respect to similar properties
owned by the Lessee;


 


(o)           As of each Property
Closing Date, the date of each subsequent Advance and the Rent Commencement
Date only, each Property complies with all Legal Requirements as of such date
(including without limitation all zoning and land use laws and Environmental
Laws), except to the extent that failure to comply therewith, individually or
in the aggregate, shall not have and could not reasonably be expected to have a
Material Adverse Effect;


 


(p)           As of each Property
Closing Date, the date of each subsequent Advance and the Rent Commencement
Date only, all material utility services and facilities necessary for the
construction and operation of the Improvements and the installation and
operation of the Equipment regarding each Property (including without
limitation gas, electrical, water and sewage services and facilities) are
available at the applicable Land or will be constructed prior to the Completion
Date for such Property;


 


(q)           As of each Property
Closing Date, the date of each subsequent Advance and the Rent Commencement
Date only, installation and testing of the Equipment (if any) and construction
of the Improvements (if any) to such date shall have been performed in a good
and workmanlike manner, substantially in accordance with the applicable Plans
and Specifications;


 


(r)            (i)            Assuming
that the representations and warranties contained in Section 6.1 are true, the
Security Documents, except the Lease Agreement which is the subject of Section
6.2(r)(ii), create, as security for the Obligations, valid and enforceable
security interests in, and Liens on, all of the Collateral, in favor of the
Agent, for the ratable benefit of the Lenders and the Holders, as their
respective interests appear in the Operative Agreements, and such security
interests and Liens are subject to no other Liens other than Liens that are
expressly set forth as title exceptions on the title commitment issued under
Section 5.3(g) with respect to the applicable Property, to the extent such
title commitment has been approved by the Agent in its reasonable discretion.  Assuming that the representations and
warranties contained in Section 6.1 are true, upon recordation of the Mortgage
Instrument in the real estate recording office in the applicable Approved State
identified by the Construction Agent or the Lessee, the Lien created by the
Mortgage Instrument in the real property described therein shall be a perfected
first priority mortgage Lien on such real property in favor of the Agent, for
the ratable benefit of the Lenders and the Holders, as their respective interests
appear in the Operative Agreements, subject to no other Liens other than Liens
that are expressly set forth as title exceptions on the title commitment issued
under Section 5.3(g) with respect to the applicable Property, to the extent
such title commitment has been approved by the Agent in its reasonable
discretion.  Assuming that the
representations and warranties contained in Section 6.1 are true, to the extent
that the security interests in the portion of the Collateral comprised of
personal property can be perfected by filing in the filing offices in the
applicable Approved States or elsewhere identified by the Construction Agent or
the Lessee, upon filing of the Lender Financing Statements in such filing
offices, the security interests created by the Security Agreement shall be
perfected first priority security interests in such personal property in favor
of the Agent, for the ratable benefit of the Lenders and


 


15

















 


the Holders,
as their respective interests appear in the Operative Agreements, subject to no
other Liens other than Permitted Liens arising after the Property Closing Date
and Lessor Liens;


 


(ii)           To the extent the
Lease Agreement would be construed by a court of competent jurisdiction as a
security instrument, the Lease Agreement creates, as security for the
obligations of the Lessee under the Lease Agreement, valid and enforceable
security interests in, and Liens on, each Property leased thereunder, in favor
of the Lessor, and such security interests and Liens are subject to no other
Liens other than Liens that are expressly set forth as title exceptions on the
title commitment issued under Section 5.3(g) with respect to the applicable
Property, to the extent such title commitment has been approved by the Agent in
its reasonable discretion.  Upon
recordation of the memorandum of the Lease Agreement (or a short form lease) in
the real estate recording office in the applicable Approved State identified by
the Construction Agent or the Lessee, the Lien created by the Lease Agreement
in the real property described therein shall be a perfected first priority
mortgage Lien on such real property in favor of the Agent, for the ratable
benefit of the Lenders and the Holders, as their respective interests appear in
the Operative Agreements, subject to no other Liens other than Liens that are
expressly set forth as title exceptions on the title commitment issued under
Section 5.3(g) with respect to the applicable Property, to the extent such
title commitment has been approved by the Agent in its reasonable
discretion.  To the extent that the
security interests in the portion of any Property comprised of personal
property can be perfected by the filing in the filing offices in the applicable
Approved State or elsewhere identified by the Lessee upon filing of the Lessor
Financing Statements in such filing offices, a security interest created by the
Lease Agreement shall be perfected first priority security interests in such
personal property in favor of the Lessor, which rights pursuant to the Lessor
Financing Statements are assigned to the Agent, for the ratable benefit of the
Lenders and the Holders, as their respective interests appear in the Operative
Agreements, subject to no other Liens other than Permitted Liens arising after
the Property Closing Date and Lessor Liens;


 


(s)           The Plans and
Specifications for each Property will be prepared prior to the commencement of
construction in accordance with all applicable Legal Requirements, except to
the extent the failure to comply therewith, individually or in the aggregate,
shall not have and could not reasonably be expected to have a Material Adverse
Effect.  Upon completion of the
Improvements for each Property in accordance with the applicable Plans and Specifications,
such Improvements will be within any building restriction lines and will not
encroach in any manner onto any adjoining land (except as permitted by express
written easements, which have been approved by the Agent in its reasonable
discretion);


 


(t)            As of the Rent
Commencement Date only, each Property shall be improved substantially in
accordance with the applicable Plans and Specifications in a good and
workmanlike manner and shall be operational;


 


(u)           As of each Property
Closing Date only, each Property has been acquired at a price that is not
substantially in excess of fair market value, as the case may be;


 


(v)           The Lessee has (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries’ business and operations that could be materially and adversely
affected by the Year 2000 Problem, (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis and (iii) to date,
implemented that plan substantially in accordance with that timetable.  Based on the foregoing, the Lessee believes
that all its computer applications that are material to its or any of its
Subsidiaries’ business and operations are reasonably expected on a timely basis
to be able to perform properly date-sensitive functions for all dates before
and after January 1, 2000 (that is, be “Year 2000 Compliant”), except to
the extent that a failure to do so shall not have and could not reasonably be
expected to have a Material Adverse Effect;


 


(w)          No Default or Event
of Default with respect to the Lessee or the Construction Agent has occurred
and is continuing;


 


16

















 


(x)            Except as would not reasonably be expected to
have a Material Adverse Effect:


 


(i)            During
the five-year period prior to the date on which this representation is made or
deemed made:  (A) no ERISA Event has
occurred, and, to the best knowledge of Lessee, no event or condition has
occurred or exists as a result of which any ERISA Event could reasonably be
expected to occur, with respect to any Pension Plan; (B) no “accumulated
funding deficiency,” as such term is defined in Section 302 of ERISA and
Section 412 of the Code, whether or not waived, has occurred with respect to
any Pension Plan; (C) each Pension Plan has been maintained, operated, and
funded in compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable federal or state laws;
and (D) no lien in favor of the PBGC or a Pension Plan has arisen or is reasonably
likely to arise on account of any Plan;


 


(ii)           Neither
Lessee nor any Subsidiary of Lessee has incurred, or, to the best knowledge of
Lessee, could be reasonably expected to incur, any withdrawal liability under
ERISA to any Multiemployer Plan or Multiple Employer Plan, and no ERISA
Affiliate has incurred or, to the best knowledge of Lessee, could reasonably be
expected to incur, such withdrawal liability that could result in liability to
Lessee or any Subsidiary of Lessee. 
Neither Lessee nor any Subsidiary of Lessee has received, nor to
Lessee’s best knowledge has any ERISA Affiliate received, any notification that
any Multiemployer Plan is in reorganization (within the meaning of Section 4241
of ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or has
been terminated (within the meaning of Title IV of ERISA), and no Multiemployer
Plan is, to the actual knowledge of Lessee, reasonably expected to be in
reorganization, insolvent, or terminated;


 


(iii)          No
prohibited transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) or breach of fiduciary responsibility has occurred with
respect to a Plan which has subjected or may subject Lessee or any Subsidiary
of Lessee to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA
or Section 4975 of the Code, or under any agreement or other instrument
pursuant to which Lessee or any Subsidiary of Lessee has agreed or is required
to indemnify any person against any such liability;


 


(iv)          Each
Plan which is a welfare plan (as defined in Section 3(1) of ERISA) to which
Sections 601-609 of ERISA and Section 4980B of the Code apply has been
administered in compliance in all material respects of such sections;


 


(y)           Except as would not reasonably be expected to
have a Material Adverse Effect and except as disclosed in any environmental
report delivered to the Agent prior to the Initial Closing Date:


 


(i)            Each
of the facilities and properties owned, leased or operated by Lessee or any
Consolidated Subsidiary (the “Subject Properties”) and all operations at
the Subject Properties are in compliance with all applicable Environmental
Laws, and there is no violation of any Environmental Law with respect to the
Subject Properties or the businesses operated thereon by Lessee and the Consolidated
Subsidiaries (the “Businesses”), and there are no conditions relating to
the Businesses or Subject Properties that could give rise to liability under
any applicable Environmental Laws;


 


(ii)           To
the knowledge of Lessee, none of the Subject Properties contains, or has
previously contained, any Hazardous Substances at, on or under the Subject
Properties in amounts or concentrations that constitute or constituted a
violation of, or could give rise to liability under, Environmental Laws;


 


(iii)          Neither
Lessee nor any Consolidated Subsidiary has received any written or verbal
notice of, or inquiry from any Governmental Authority regarding, any
Environmental Claims with regard to any of the Subject Properties or the
Businesses, nor does Lessee or any Consolidated Subsidiary have knowledge or
reason to believe that any such notice will be received or is being threatened;


 


17

















 


(iv)          Hazardous
Substances have not been transported or disposed of from the Subject
Properties, or generated, treated, stored or disposed of at, on or under any of
the Subject Properties or any other location, in each case by or on behalf of
Lessee or any Consolidated Subsidiary in violation of, or in a manner that
would be reasonably likely to give rise to liability under, any applicable
Environmental Law;


 


(v)           To the knowledge of
Lessee, no Environmental Claim is pending or threatened to which Lessee or any
Consolidated Subsidiary is or will be named as a party, nor are there any consent
decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to Lessee or
any Consolidated Subsidiary, the Subject Properties or the Businesses; and


 


(vi)          To
the knowledge of Lessee, there has been no release or, threat of release of
Hazardous Substances at or from the Subject Properties, or arising from or
related to the operations (including, without limitation, disposal) of Lessee
or any Consolidated Subsidiary in connection with the Subject Properties or
otherwise in connection with the Businesses, in violation of or in amounts or
in a manner that could give rise to liability under Environmental Laws;


 


(z)            No
broker’s fees are payable to any third party in connection with the
transactions contemplated by this Agreement other than fees payable to The
Staubach Company in an amount equal to One Million One Hundred Twenty Thousand
dollars ($1,120,000);


 


(aa)         Each of the
Construction Agent and the Lessee is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware; and


 


(bb)         The consolidated
balance sheet and income statement of Parent and its Consolidated Subsidiaries
as of December 31, 1998, together with related consolidated statements of
operations and retained earnings and of cash flows as of December 31, 1998 and
the consolidated balance sheet and income statement of Parent and its
Consolidated Subsidiaries as of June 30, 1999, together with related
consolidated statements of operations and retained earnings and of cash flows
as of June 30, 1999, fairly present in all material respects the consolidated
financial condition of the Parent and its Consolidated Subsidiaries as at such
dates and the consolidated results of the operations of the Parent  and its Consolidated Subsidiaries for the
periods ended on such dates, all in accordance with GAAP, subject with respect
to the June 30, 1999 financial statements, to changes resulting from audit and
normal year-end audit adjustments.


 


6.3.                            Representations of each Lender and Holder.


 


Effective as
of the Initial Closing Date and as of the date of each Advance, each Lender and
Holder represents and warrants to the Lessor and to the Lessee and the
Construction Agent as follows:


 


(a)           Securities Act.  The interest being acquired or to be
acquired by such Lender or Holder in the Loans and Advances is being acquired
for its own account, without any view to the distribution thereof or any
interest therein, except that such Lender and Holder shall be entitled to
assign, convey or transfer its interest in accordance with Sections 9.7 and 9.8
of the Credit Agreement.  Such Lender or
Holder is an accredited investor as that term is defined in Rule 501(a) under
the Securities Act.


 


(b)           Employment
Benefit Plans.  Such Lender or
Holder is not and will not be making its investment hereunder, and is not
performing its obligations under the Operative Agreements, with the assets of
an “employee benefit plan” (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA, or “plan” (as defined in Section 4975(e)(1) of the
Code).


 


18

















 


SECTION 7.
PAYMENT OF CERTAIN EXPENSES.


 


7.1.                            Transaction Expenses.


 


(a)           The Lessor agrees on
the Initial Closing Date, to pay, or cause to be paid, all Transaction Expenses
arising from the Initial Closing Date, including without limitation all
Attorney Costs for the Lessor and the Agent in connection with the transactions
contemplated by the Operative Agreements and incurred in connection with such
Initial Closing Date, the initial fees and reasonable out-of-pocket expenses of
the Owner Trustee due and payable on such Initial Closing Date, all fees, taxes
and expenses for the recording, registration and filing of documents and all
other reasonable fees, expenses and disbursements incurred in connection with
such Initial Closing Date; provided, however, the Lessor shall
pay such amounts described in this Section 7.1(a) only if  funds are made available by the Lenders and
the Holders in an amount sufficient to allow such payment and without regard to
whether such amounts are referenced in any Requisition, provided invoices have
been submitted that support payment of such amount.  On the Initial Closing Date after satisfaction of the conditions
precedent for such date (excluding the requirement that a Requisition be
delivered, provided invoices have been submitted that support payment of such
amount), the Holders shall make Holder Advances and the Lenders shall make
Loans to the Lessor to pay for the Transaction Expenses, fees, expenses and
other disbursements referenced in this Section 7.1(a).


 


(b)           Assuming no Default
or Event of Default shall have occurred and be continuing and only for the
period prior to the Rent Commencement Date, the Lessor agrees on each Property
Closing Date, on the date of any Construction Advance and on the Completion
Date to pay, or cause to be paid, all Transaction Expenses including without
limitation all Attorney Costs for the Lessor and the Agent in connection with
the transactions contemplated by the Operative Agreements and billed in
connection with such Advance or such Completion Date, all amounts described in
Sections 7.1(a) and 7.2 of this Agreement which have not been previously paid,
the annual fees and reasonable out-of-pocket expenses of the Owner Trustee, all
reasonable fees, expenses and disbursements incurred with respect to the
various items referenced in Sections 5.3, 5.4 and/or 5.5 (including without
limitation any premiums for title insurance policies and charges for any
updates to such policies) and all other reasonable fees, expenses and
disbursements in connection with such Advance or such Completion Date including
without limitation all reasonable expenses relating to and all fees, taxes and
expenses for the recording, registration and filing of documents and during the
Commitment Period, all fees, expenses and costs referenced in Sections 7.3(a),
7.3(b), 7.3(d) and 7.4; provided, however, the Lessor shall pay
such amounts described in this Section 7.1(b) only if funds are made available
by the Lenders and the Holders in an amount sufficient to allow such payment
and without regard to whether such amounts are referenced in any Requisition, provided
invoices have been submitted that support payment of such amounts.  On each Property Closing Date, on the date
of any Construction Advance or any Completion Date, after satisfaction of the
conditions precedent for such date (excluding the requirement that a
Requisition be delivered, provided invoices have been submitted that support
payment of such amounts), the Holders shall make a Holder Advance and the
Lenders shall make Loans to the Lessor to pay for the Transaction Expenses,
fees, expenses and other disbursements referenced in this Section 7.1(b).


 


(c)           All fees payable
pursuant to the Operative Agreements shall be calculated on the basis of a year
of three hundred sixty (360) days for the actual days elapsed.


 


7.2.                            Brokers’
Fees.


 


The Lessor agrees
to pay, or cause to be paid, any and all brokers’ fees, if any, including
without limitation any interest and penalties thereon, which are payable in
connection with the transactions contemplated by this Agreement and the other
Operative Agreements.


 


7.3.                            Certain Fees and Expenses.


 


The Lessee
agrees to pay or cause to be paid (a) the initial and annual Owner
Trustee’s fee and all reasonable out-of-pocket expenses of the Owner Trustee
and any co-trustees (including without limitation Attorney


 


19

















 


Costs) or any successor owner
trustee and/or co-trustee, for acting as the owner trustee under the Trust
Agreement, (b) all reasonable out-of-pocket costs and expenses incurred by the
Construction Agent, the Lessee, the Agent, the Lenders, the Holders or the
Lessor in entering into any Lease Supplement and any future amendments,
modifications, supplements, restatements and/or replacements with respect to
any of the Operative Agreements, whether or not such Lease Supplement,
amendments, modifications, supplements, restatements and/or replacements are
ultimately entered into, or giving or withholding of waivers of consents hereto
or thereto, which have been requested by the Construction Agent, the Lessee,
the Agent, the Lenders, the Holders or the Lessor, (c) all out-of-pocket costs
and expenses (including without limitation all outside attorneys’ fees and
expenses) and the fees and expenses of in-house legal counsel incurred by the
Construction Agent, the Lessee, the Agent, the Lenders, the Holders or the
Lessor in connection with any exercise of remedies under any Operative
Agreement and (d) all reasonable out-of-pocket costs and expenses incurred by
the Construction Agent, the Lessee, the Agent, the Lenders, the Holders or the
Lessor in connection with any purchase, transfer or conveyance of any Property,
whether or not such purchase, transfer or conveyance is ultimately
accomplished.


 


7.4.                            Unused
Fee.


 


During the
Commitment Period, the Lessee shall cause the Lessor to pay to the Agent for
the account of (a) the Lenders, respectively, an unused fee on the unused
Lender Commitments (the “Lender Unused Fee”) equal to the product of the
then current average daily Available Commitment of each Lender during the
preceding quarter multiplied by a rate per annum equal to the percentage shown
in the appropriate table in the definition of Applicable Percentage which
corresponds to the appropriate Pricing Level and (b) the Holders, respectively,
an unused fee on the unused Holder Commitments (the “Holder Unused Fee”)
equal to the product of the then current average daily Available Holder
Commitment of each Holder during the preceding quarter multiplied by a rate per
annum equal to the percentage shown on the appropriate table in the definition
of Applicable Percentage which corresponds to the appropriate Pricing
Level.  Such Unused Fees shall be
payable quarterly in arrears on each Unused Fee Payment Date and shall be pro
rated for any partial quarters.  If all
or a portion of any such Unused Fee shall not be paid when due, such overdue
amount shall bear interest, payable by the Lessee on demand, at a rate per
annum equal to (x) in the case of the Lender Unused Fee, the ABR plus two
percent (2%) from the date of such non-payment until such amount is paid in
full (as well as before judgment), (y) in the case of the Holder Unused Fee,
the ABR plus two and seventy-five hundredths percent (2.75%) from the date of
each non-payment until such amount is paid in full (as well as before judgment).


 


7.5.                            Engagement Letter Fees.


 


The Lessee
shall pay or cause to be paid to the Agent all fees set forth in the engagement
letter dated June 23, 1999 addressed to Jeffery M. Jackson, Senior Vice
President and Chief Financial Officer of The Sabre Group, Inc., now known as
Sabre Inc., from Grant M. Moyer, Vice President, Banc of America Securities LLC
on the terms and conditions set forth therein.


 


7.6.                            Upfront
Fee.


 


The Lessee, at
its option, either (a) shall cause the Lessor to pay or (b) to the extent such
amounts are not otherwise paid by the Lessor, the Lessee shall timely pay, in
either case on the Initial Closing Date an upfront fee payable to each Lender
and Holder (for the respective individual accounts of each such entity) as
agreed by each Lender and Holder (with respect to the upfront fee payable to
such Lender or Holder), the Lessee and the Agent.


 


SECTION 8.  OTHER COVENANTS AND AGREEMENTS.


 


8.1.                            Cooperation with the Construction
Agent or the Lessee.


 


The Holders,
the Lenders, the Lessor (at the direction of the Majority Secured Parties) and
the Agent shall, at the expense of and to the extent reasonably requested by
the Construction Agent or the Lessee (but without assuming additional
liabilities on account thereof and only to the extent such is acceptable to the
Holders, the Lenders, the Lessor (at the direction of the Majority Secured
Parties) and the Agent in their reasonable discretion), cooperate with the
Construction Agent or the Lessee in connection with the Construction Agent or
the Lessee


 


20

















 


satisfying its covenant
obligations contained in the Operative Agreements including without limitation
at any time and from time to time, promptly and duly executing and delivering
any and all such further instruments, documents and financing statements (and
continuation statements related thereto).


 


8.2.                            Covenants of the Owner Trustee.


 


The Owner
Trustee hereby agrees that so long as this Agreement is in effect:


 


(a)           The Owner Trustee
(in its trust capacity or in its individual capacity) will not create or permit
to exist at any time, and it will, at its own cost and expense, promptly take
such action as may be necessary duly to discharge, or to cause to be
discharged, all Lessor Liens on the Properties attributable to it; except that
the Owner Trustee shall not be required to so discharge any such Lessor Lien
while the same is being contested in good faith by appropriate proceedings
diligently prosecuted, so long as such proceedings do not materially and
adversely affect the rights of the Lessee under the Lease and the other
Operative Agreements or involve any material danger of impairment of the Liens
of the Security Documents or of the sale, forfeiture or loss of, and do not
interfere with the use or disposition of, any Property or title thereto or any
interest therein or the payment of Rent;


 


(b)           Without prejudice to
any right under the Trust Agreement of the Owner Trustee to resign (subject to
the requirement set forth in the Trust Agreement that such resignation shall
not be effective until a successor shall have agreed to accept such
appointment), or the Holders’ rights under the Trust Agreement to remove the
institution acting as the Owner Trustee (after consent to such removal by the
Agent as provided in the Trust Agreement), the Owner Trustee hereby agrees with
the Lessee and the Agent (i) not to terminate or revoke the trust created by
the Trust Agreement except as permitted by Article VIII of the Trust Agreement,
(ii) not to amend, supplement, terminate or revoke or otherwise modify any
provision of the Trust Agreement in such a manner as to adversely affect the
rights of any such party without the prior written consent of such party and
(iii) to comply with all of the terms of the Trust Agreement, the
nonperformance of which would adversely affect such party;


 


(c)           The Owner Trustee or
any successor may resign or be removed by the Holders as the Owner Trustee, a
successor Owner Trustee may be appointed and a corporation may become the Owner
Trustee under the Trust Agreement, only in accordance with the provisions of
Article IX of the Trust Agreement and, with respect to such appointment, with
the consent of the Lessee (so long as there shall be no Lease Event of Default
that shall have occurred and be continuing), which consent shall not be
unreasonably withheld or delayed;


 


(d)           The Owner Trustee,
in its capacity as the Owner Trustee under the Trust Agreement, and not in its
individual capacity, shall not contract for, create, incur or assume any
Indebtedness, or enter into any business or other activity or enter into any
contracts or agreements, other than pursuant to or under the Operative
Agreements;


 


(e)           [Intentionally
Omitted.]


 


(f)            The Owner Trustee
shall not (i) commence any case, proceeding or other action with respect to the
Owner Trustee under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, arrangement,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian
or other similar official with respect to the Owner Trustee or for all or any
substantial benefit of the creditors of the Owner Trustee; and the Owner
Trustee shall not take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in this
paragraph;


 


(g)           The Owner Trustee
shall give prompt notice to the Lessee, the Holders and the Agent if the Owner
Trustee’s principal place of business or chief executive office, or the office
where the records concerning the accounts or contract rights relating to any
Property are kept, shall cease to be located at 79 South Main Street, Salt Lake
City, Utah 84111, or if it shall change its name;


 


21

















 


(h)           The Owner Trustee
shall take or refrain from taking such actions and grant or refrain from
granting such approvals with respect to the Operative Agreements and/or
relating to any Property in each case as directed in writing by the Agent
(until such time as the Loans are paid in full, and then by the Majority
Holders) or, in connection with Sections 8.5 and 9.2 hereof, the Lessee; provided,
however, that notwithstanding the foregoing provisions of this
subparagraph (g) the Owner Trustee, the Agent, the Lenders and the Holders each
acknowledge, covenant and agree that neither the Owner Trustee nor the Agent
shall act or refrain from acting, regarding each Unanimous Vote Matter, until
such party has received the approval of each Lender and each Holder affected by
such matter;


 


(i)            The proceeds of the
Loans and Advances received from the Lenders and the Holders will be used by
the Owner Trustee solely to purchase the Properties and to pay the Construction
Loan Property Costs.  No portion of the
proceeds of the Loans or Advances will be used by the Owner Trustee (i) in
connection with, whether directly or indirectly, any tender offer for, or other
acquisition of, stock of any corporation with a view towards obtaining control
of such other corporation, (ii) directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying any margin
stock, (iii) for any purpose in violation of any applicable Law or (iv) in
violation of the Operative Agreements;


 


(j)            The Owner Trustee
shall not (i) consent to or suffer any Lien which is not permitted or
contemplated by the Operative Agreements or (ii) sell or otherwise dispose of
any Property, other than as expressly contemplated pursuant to the Operative
Agreements;


 


(k)           The Owner Trustee
shall comply with all Laws the non-compliance with which would reasonably be
expected to have a material adverse effect upon the ability of the Owner
Trustee to perform its obligations under the Operative Agreements to which is a
party or the validity or enforceability against the Owner Trustee of any of the
Operative Agreements to which it is a party;


 


(l)            The Owner Trustee
shall notify the Agent and the Lessee of the institution of any litigation
against it which would reasonably be expected to have a material adverse effect
upon the ability of the Owner Trustee to perform its obligations under the
Operative Agreements to which it is a party or the validity or enforceability
against the Owner Trustee of any of the Operative Agreements to which it is a
party;


 


(m)          The Owner Trustee
shall maintain its legal existence as a national banking association and good
standing under the laws of the United States of America with authorization to
conduct a trust business; and


 


(n)           The Owner Trustee
shall pay any and all Taxes owed by it prior to such Taxes becoming delinquent
(other than on the Properties which shall be the responsibility of Lessee as
provided for herein and in the other Operative Agreements), unless it is
contesting such Taxes in good faith by appropriate proceedings and maintaining
reserves with respect thereto in accordance with GAAP.


 


8.2A.                   Covenants of the Holders.


 


The Holders
hereby agrees that so long as this Agreement is in effect:


 


(a)           No Holder will
create or permit to exist at any time, and each of them will, at its own cost
and expense, promptly take such action as may be necessary duly to discharge,
or to cause to be discharged, all Lessor Liens on the Properties attributable
to it; except that the Holders shall not be required to so discharge any such
Lessor Lien while the same is being contested in good faith by appropriate
proceedings diligently prosecuted, so long as such proceedings do not
materially and adversely affect the rights of the Lessee under the Lease and
the other Operative Agreements or involve any material danger of impairment of
the Liens of the Security Documents or of the sale, forfeiture or loss of, and
do not interfere with the use or disposition of, any Property or title thereto
or any interest therein or the payment of Rent;


 


22

















 


(b)           Without prejudice to
any right under the Trust Agreement of the Owner Trustee to resign (subject to
the requirement set forth in the Trust Agreement that such resignation shall
not be effective until a successor shall have agreed to accept such
appointment), or the Holders’ rights under the Trust Agreement to remove the
institution acting as the Owner Trustee (after consent to such removal by the
Agent as provided in the Trust Agreement), each of the Holders hereby agrees
with the Lessee and the Agent (i) not to terminate or revoke the trust created
by the Trust Agreement except as permitted by Article VIII of the Trust
Agreement, (ii) not to amend, supplement, terminate or revoke or otherwise
modify any provision of the Trust Agreement in such a manner as to adversely
affect the rights of any such party without the prior written consent of such
party and (iii) to comply with all of the terms of the Trust Agreement, the
nonperformance of which would adversely affect such party;


 


(c)           The Owner Trustee or
any successor may resign or be removed by the Holders as the Owner Trustee, a
successor Owner Trustee may be appointed and a corporation may become the Owner
Trustee under the Trust Agreement, only in accordance with the provisions of
Article IX of the Trust Agreement and, with respect to such appointment, with
the consent of the Lessee (so long as there shall be no Lease Event of Default
that shall have occurred and be continuing), which consent shall not be
unreasonably withheld or delayed;


 


(d)           The Holders will not
instruct the Owner Trustee to take any action in violation of the terms of any
Operative Agreement;


 


(e)           No Holder shall (i)
commence any case, proceeding or other action with respect to the Owner Trustee
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, arrangement, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (ii) seek appointment of a receiver, trustee, custodian or other
similar official with respect to the Owner Trustee or for all or any
substantial benefit of the creditors of the Owner Trustee; and no Holder shall
take any action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the acts set forth in this paragraph; and


 


(f)            The proceeds of the
Loans and Advances received from the Lenders and the Holders will be used by
the Owner Trustee solely to purchase the Properties and to pay the Construction
Loan Property Costs.  No portion of the
proceeds of the Loans or Advances will be used by the Owner Trustee (i) in
connection with, whether directly or indirectly, any tender offer for, or other
acquisition of, stock of any corporation with a view towards obtaining control
of such other corporation, (ii) directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying any margin
stock, (iii) for any purpose in violation of any applicable Law or (iv) in
violation of the Operative Agreements.


 


8.3                               The
Lessee Covenants, Consent and Acknowledgment.


 


(a)           The Lessee
acknowledges and agrees that the Owner Trustee, pursuant to the terms and
conditions of the Security Agreement and the Mortgage Instruments, shall create
Liens respecting the various personal property, fixtures and real property
described therein in favor of the Agent. 
The Lessee hereby irrevocably consents to the creation, perfection and
maintenance of such Liens.  Each of the
Construction Agent and the Lessee shall, to the extent reasonably requested by
any of the other parties hereto, cooperate with the other parties in connection
with their covenants herein or in the other Operative Agreements and shall from
time to time duly execute and deliver any and all such future instruments,
documents and financing statements (and continuation statements related
thereto) as any other party hereto may reasonably request.


 


(b)           The Lessor hereby
instructs the Lessee, and the Lessee hereby acknowledges and agrees, that until
such time as the Loans and the Holder Advances are paid in full and the Liens
evidenced by the Security Agreement and the Mortgage Instruments have been
released (i) any and all Rent (excluding Excepted Payments which shall be
payable directly to each Holder or other Person as appropriate) and any and all
other amounts of any kind or type under any of the Operative Agreements due and
owing or payable to any Person shall instead be paid directly to the Agent or
as the Agent may direct from time to time for


 


23

















 


allocation and
distribution in accordance with the procedures set forth in Section 8.7 hereof,
(ii) all rights of the Lessor under the Lease shall be exercised by the Agent
and (iii) the Lessee shall cause all notices, certificates, financial
statements, communications and other information which are delivered, or are
required to be delivered, to the Lessor, to also be delivered at the same time
to the Agent.


 


(c)           The Lessee shall not
consent to or permit any amendment, supplement or other modification of the
terms or provisions of any Operative Agreement except in accordance with
Section 12.4 of this Agreement.


 


(d)           The Lessee hereby
covenants and agrees to cause a reappraisal (in form and substance reasonably
satisfactory to the Agent and the Majority Secured Parties and from an
appraiser reasonably selected by the Agent) to be issued respecting any
Property as requested by the Agent from time to time in its reasonable
discretion (i) at each and every time as such reappraisal shall be required to
satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust
Company, any Lender and/or any Holder, (ii) upon the occurrence and continuance
of an Event of Default and (iii) as requested by the Agent pursuant to Section
20.1 of the Lease.


 


(e)           The Lessee hereby
covenants and agrees that (except for amounts payable as Basic Rent, payments
of Supplemental Rent to the extent such payments have been previously paid in
full by the Lessee in accordance with the provisions of the Operative
Agreements, principal, interest and yield due and owing under the Notes and
Holders Certificates, respectively, amounts expressly excluded from
indemnification pursuant to Sections 11.1 and 11.2 of this Agreement, amounts
due and owing as a result of any voluntary sale of an assignment or
participation interest by any Lender or Holder under the Operative Agreements
and any interest calculated at a rate equal to the daily average Federal Funds
Effective Rate payable by any Lender to the Agent pursuant to Section 2.10(b)
of the Credit Agreement) any and all payment obligations owing from time to time
under the Operative Agreements by any Person to the Agent, any Lender, any
Holder or any other Person shall (without further action) be deemed to be
Supplemental Rent obligations payable by the Lessee.  Without limitation, such obligations of the Lessee shall include
the Supplemental Rent obligations pursuant to this Section 8.3(e), Section 3.3
of the Lease, arrangement fees, administrative fees, participation fees,
commitment fees, Lender Unused Fees, Holder Unused Fees, prepayment penalties,
breakage costs, indemnities, trustee fees and transaction expenses incurred by
the parties hereto in connection with the transactions contemplated by, and as
expressly provided for pursuant to the terms of, the Operative Agreements.


 


(f)            At any time the
Lessor or the Agent is entitled under the Operative Agreements to possession of
a Property or any component thereof, each of the Construction Agent and the
Lessee hereby covenants and agrees, at its own cost and expense, to assemble
and make the same available to the Agent (on behalf of the Lessor).


 


(g)           The Lessee hereby
covenants and agrees that, respecting each Property, Non-Integral Equipment
financed under the Operative Agreements may constitute up to, but shall not
exceed, fifteen percent (15%) of the aggregate Advances extended at or prior to
such time with respect to such Property.


 


(h)           The Lessee hereby
covenants and agrees that the Constructed Property and Undeveloped Property
shall be the only Properties subject at any time to the Operative Agreements.


 


(i)            The Lessee hereby
covenants and agrees that it shall give prompt notice to the Agent and the
other Financing Parties if the Lessee’s principal place of business or chief
executive office, or the office where the records concerning the accounts or
contract rights relating to any Property are kept, shall cease to be located at
4255 Amon Carter Boulevard, Fort Worth, Texas 76155 or if it shall change its
name.


 


(j)            [Intentionally
Omitted.]


 


(k)           [Intentionally Omitted.]


 


24

















 


(l)            The Lessee hereby
covenants and agrees that the rights of the Lessee under this Agreement and the
Lease shall not impair or in any way diminish the obligations of the
Construction Agent and/or the rights of the Lessor under the Agency Agreement.


 


(m)          The Lessee shall
promptly notify the Agent, or cause the Agent to be promptly notified, upon the
Lessee gaining knowledge of the occurrence of any Default or Event of Default
which is continuing at such time.  In any
event, such notice shall be provided to the Agent within ten (10) days of when
the Lessee gains such knowledge.


 


(n)           Until all of the
obligations under the Operative Agreements have been finally and indefeasibly
paid and satisfied in full and the Commitments and the Holder Commitments
terminated unless consent has been obtained from the Majority Secured Parties,
the Lessee will:


 


(i)            and will cause each
of its Subsidiaries to, except as permitted by the express provisions of this
Agreement, preserve and maintain its separate legal existence and all rights,
franchises, licenses and privileges necessary to the conduct of its business,
and qualify and remain qualified as a foreign corporation (or partnership,
limited liability company or other such similar entity, as the case may be) and
authorized to do business in each jurisdiction, except to the extent failure to
do any of the foregoing would not reasonably be expected to have a Material
Adverse Effect;


 


(ii)           and will cause each
of its Subsidiaries to, pay and perform all its obligations under the Operative
Agreements and pay, discharge and perform (A) all taxes, assessments and other
governmental charges or levies that may be imposed or assessed upon it or upon
its income or profits, or upon any of its property before they shall become
delinquent, (B) all lawful claims (including claims for labor, materials and
supplies which, if unpaid might give rise to a Lien upon any of its
properties), (C) all other indebtedness, obligations and liabilities in
accordance with customary trade practices, except to the extent failure to do
any of the foregoing would not reasonably be expected to have a Material
Adverse Effect, except that the Lessee and its Subsidiaries may contest any
item described in this Section 8.3(n)(ii) in good faith so long as adequate
reserves are maintained with respect thereto in accordance with GAAP unless the
failure to make such payment would not be reasonably expected to have a
Material Adverse Effect;


 


(iii)          to the extent
failure to do so would have a Material Adverse Effect, observe and remain in
compliance with all applicable Laws and maintain in full force and effect all
Governmental Actions, in each case applicable to the conduct of its Businesses;
keep in full force and effect all licenses, certifications or accreditations
necessary for any Permitted Facility to carry on its Businesses; and not permit
the termination of any insurance reimbursement program available to any
Permitted Facility; and


 


(iv)          and will cause each
of its Subsidiaries to, provided that the Agent, the Lenders and the Holders
use reasonable efforts to minimize disruption to the Businesses of the Lessee
and its Subsidiaries, permit representatives of the Agent or any Lender or
Holder, from time to time, to visit and inspect the Properties and its books and records and to make photocopies or
photographs thereof and to write down and record any information such
representative obtains and Lessee and its Subsidiaries shall permit the Agent
or its representatives to investigate and verify the accuracy of information
provided to the Agent, the Lenders or the Holders, and to discuss all such
matters with the officers, employees and representatives of such Person, except
that all intellectual property of the Lessee and its Subsidiaries are excluded
from any such inspection or investigation. 
Unless a Default or an Event of Default shall have occurred and be
continuing, all such visitations and inspections shall be at the expense of the
Secured Parties and shall be conducted during normal business hours unless
otherwise agreed by Lessee and the Agent; provided, however, that
all such visitations and inspections conducted after the occurrence and during
the continuance of any Default or Event of Default shall be at Lessee’s sole
cost and expense and shall be conducted without limitation as to normal
business hours.


 


25

















 


(o)           [Intentionally Omitted.]


 


(p)           Promptly after
obtaining any required architectural approvals by any business park or any
other applicable entity with oversight responsibility for the applicable
Improvements, the Construction Agent shall deliver to the Agent copies of the
same.


 


(q)           The Lessee will
promptly notify the Agent in the event the Lessee discovers or determines that
any of its computer applications that is material to its or any of its
Subsidiaries’ business and operations will not be Year 2000 Compliant, except
to the extent that such failure shall not have and could not reasonably be
expected to have a Material Adverse Effect.


 


(r)            Upon the occurrence
of any Event of Default, the Lessee shall reimburse Lessor and/or the Agent for
the cost of all appropriate and reasonable environmental testing and
remediation (if any) of the Properties.


 


(s)           The Lessee will
cause all outstanding punch list items with respect to each Property to be
promptly completed following the Completion Date therefor.


 


8.3A.                   Additional Affirmative Covenants of
the Lessee.


 


Lessee hereby covenants and agrees that, so long as any Operative
Agreement is in effect or any amounts payable under any Operative Agreement
shall remain outstanding, and until all of the Commitments and Holder
Commitments shall have terminated:


 


(a)           Lessee
will furnish, or cause to be furnished, to
the Agent, in sufficient copies for the Lenders and the Holders, in form and
substance reasonably satisfactory to the Agent and the Majority Secured
Parties:


 


(i)            As soon as
available, and in any event within 105 days after the close of each fiscal year
of Parent and its Consolidated Subsidiaries, a consolidated balance sheet and
income statement of Parent and its Consolidated Subsidiaries as of the end of
such fiscal year, together with related consolidated statements of operations
and retained earnings and of cash flows for such fiscal year, in each case setting
forth in comparative form consolidated figures for the preceding fiscal year,
all such financial information described above to be in reasonable form and
detail and certified by independent certified public accountants of recognized
national standing reasonably acceptable to the Agent (provided that Ernst &
Young LLP and any other nationally recognized accounting firm shall be deemed
acceptable to the Agent), and whose opinion shall be to the effect that such
financial statements have been prepared in accordance with GAAP (except for
changes with which such accountants concur) and shall not be limited as to the
scope of the audit or qualified as to the status of Parent, Lessee and the
Consolidated Subsidiaries of the Parent as a going concern.


 


(ii)           As
soon as available, and in any event within 60 days after the close of each of
the first three fiscal quarters of Parent and its Consolidated Subsidiaries a
consolidated balance sheet and income statement of Parent and its Consolidated
Subsidiaries as of the end of such fiscal quarter, together with related
consolidated statements of operations and retained earnings and of cash flows
for such fiscal quarter, in each case setting forth in comparative form
consolidated figures for the corresponding period of the preceding fiscal year,
all such financial information described above to be in reasonable form and
detail and reasonably acceptable to the Agent and the Majority Secured Parties,
and accompanied by a certificate of a Responsible Officer of Lessee to the
effect that such quarterly financial statements fairly present in all material
respects the financial condition of Parent and its Consolidated Subsidiaries
and have been prepared in accordance with GAAP, subject to changes resulting
from audit and normal year-end audit adjustments.


 


26

















 


(iii)          At
the time of delivery of the financial statements provided for in Sections
8.3A(a)(i) and 8.3A(a)(ii) above, a certificate of a Responsible Officer of
Lessee substantially in the form of Exhibit K, (i) demonstrating
compliance with the financial covenants contained in Section 8.3A(j) by
calculation thereof as of the end of each such fiscal period and (ii) stating
that no Default or Event of Default with respect to the Lessee exists, or if
any Default or Event of Default with respect to the Lessee does exist,
specifying the nature and extent thereof and what action Lessee proposes to
take with respect thereto.


 


(iv)          Promptly
upon transmission or receipt thereof, copies of any filings and registrations
with, and public reports to or from, the Securities and Exchange Commission, or
any successor agency (excluding preliminary filings or reports for which
confidential treatment is sought), and copies of all financial statements,
proxy statements, notices and reports as Parent or any Consolidated Subsidiary
shall send to its public shareholders (excluding AMR Corporation) or to a
holder of any Indebtedness owed by Parent or any Consolidated Subsidiary in its
capacity as such a holder.


 


(v)           Upon
any Responsible Officer of Lessee obtaining knowledge thereof, Lessee
will give written notice to the Agent
immediately of (i) the occurrence of an event or condition consisting of a
Default or Event of Default, specifying the nature and existence thereof and
what action, if any, Lessee proposes to take with respect thereto, and (ii) the
occurrence of any of the following with respect to Parent or any Consolidated
Subsidiary (A) the pendency or commencement of any litigation, arbitral or
governmental proceeding against such Person or the Properties which if
adversely determined is likely to have a Material Adverse Effect or (B) the
institution of any proceedings against such Person with respect to, or the
receipt of notice by such Person of potential liability or responsibility for
violation, or alleged violation of any federal, state or local law, rule or
regulation, including but not limited to, Environmental Laws, the violation of
which could have a Material Adverse Effect.


 


(vi)          With
reasonable promptness upon any such request, such other information regarding
the Businesses, Properties or financial condition of Lessee and its
Consolidated Subsidiaries as the Agent or any Secured Party may reasonably
request.


 


(b)           [Intentionally
Omitted.]


 


(c)           Lessee
will, and will cause each of its Subsidiaries to, keep complete and accurate
books and records of its transactions in accordance with GAAP (including the
establishment and maintenance of appropriate reserves).


 


(d)           Lessee
will, and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders, and all applicable restrictions imposed by all
Governmental Authorities, applicable to it and its property (whether real,
personal or mixed, or tangible or intangible) if noncompliance with any such
law, rule, regulation, order or restriction could have a Material Adverse
Effect.


 


(e)           [Intentionally
Omitted.]


 


(f)            Lessee will, and
will cause each of its Subsidiaries to, at all times maintain in full force and
effect insurance (including worker’s compensation insurance, liability
insurance, casualty insurance and business interruption insurance) in such
amounts, covering such risks and liabilities and with such deductibles or
self-insurance retentions as are in accordance with normal industry
practice  for companies engaged in
similar activities in similar geographic areas as the Lessee (or as otherwise
required by the Operative Agreements).


 


(g)           Lessee
will, and will cause each of its Subsidiaries to, maintain and preserve its
properties and equipment material to the conduct of its Businesses in good
repair, working order and condition, normal wear and tear and casualty and
condemnation excepted, and will make, or cause to be made, in such properties


 


27

















 


and equipment from time to time all repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto as may be needed or
proper, to the extent and in the manner customary for companies in similar businesses,
unless the failure to do any of the foregoing would not have a Material Adverse
Effect.


 


(h)           Lessee
will, and will cause each of its Subsidiaries to, perform in all material
respects all of its obligations under the terms of all material agreements,
indentures, mortgages, security agreements or other debt instruments to which
it is a party or by which it is bound.


 


(i)            To
the extent the Parent at any time has one or more Subsidiaries direct or
indirect (other than Lessee) which individually or on an aggregate basis with
all other such Subsidiaries has or have either (i) assets (determined in
accordance with GAAP) for such Subsidiaries (other than Lessee) in excess of
ten percent (10%) of the then current aggregate tangible assets (determined in
accordance with GAAP) of the Parent and its Consolidated Subsidiaries or (ii)
“consolidated ebitda” (determined using the same methodology used in
determining Consolidated EBITDA) for such Subsidiaries (other than Lessee) in
excess of ten percent (10%) of the then current Consolidated EBITDA, then, in
either such case, Lessee shall promptly (and in any event within five (5)
Business Days of either such occurrence) give written notice to the Agent of
the election by Lessee either to: (x) amend the Operative Agreements to provide
for (1) financial reporting pursuant to Section 8.3A(a) regarding
Lessee and its Consolidated Subsidiaries and not with respect to the Parent and
its Consolidated Subsidiaries, (2) calculation of the financial covenants
referenced in Sections 8.3A(j)(i) and 8.3A(j)(ii) with respect to Lessee and
its Consolidated Subsidiaries and not with respect to the Parent and its
Consolidated Subsidiaries, (3) calculation of the Applicable Percentage
with respect to Lessee and its Consolidated Subsidiaries and not with respect
to the Parent and its Consolidated Subsidiaries, (4) modification of the
definition of “Funded Debt” to exclude Indebtedness owing by Lessee or any of
its Subsidiaries to the Parent (but only to the extent that such Indebtedness
is expressly and totally subordinated to the obligations owing to the Financing
Parties from time to time pursuant to the Operative Agreements),
(5) modification of the definition of Consolidated Tangible Net Worth to
exclude Indebtedness owing and dividends payable to the Parent from the Lessee
or any of its Subsidiaries, (6) modification of the definition of
“Material Adverse Effect” to refer to Lessee and its Consolidated Subsidiaries
instead of referring to the Parent and its Consolidated Subsidiaries, (7) modification
of Section 8.3B(a) such that Consolidated Gross Revenue is calculated for
Lessee and its Consolidated Subsidiaries only and (8) modification of the other
provisions of the Operative Agreements, as shall be reasonably agreed by Lessee
and the Agent, to refer to Lessee instead of referring to the Parent or
(y) cause the Parent to guaranty all payment and performance obligations
of Lessee pursuant to the Operative Agreements.  To the extent the Parent at any time has a parent entity, the
Operative Agreements shall be amended as referenced in the foregoing subsection
(x).  In connection with any amendments
to the Operative Agreements referenced in the foregoing subsection (x), Lessee
shall also deliver to the Agent a detailed reconciliation of the calculations
and figures associated therewith.  All
such amendments to the Operative Agreements referenced in the foregoing
subsections (x) or (y) shall be pursuant to terms and conditions reasonably
satisfactory to the Majority Secured Parties, the Agent and Lessee.  To the extent such amendments to the
Operative Agreements referenced in the foregoing subsections (x) or (y) are not
effectuated to the satisfaction of the Majority Secured Parties, the Agent and
Lessee within thirty (30) days of the occurrence of either the events described
in Sections 8.3A(i)(i) or 8.3A(i)(ii), then Lessee shall purchase all, but not
less than all, the Properties for the Termination Value on a date specified
therefor by the Agent and otherwise substantially on such terms and conditions
that are specified for the Purchase Option in the Lease.


 


(j)            Comply with the
following financial covenants:


 


(i)            The
Consolidated Leverage Ratio, as of the last day of each fiscal quarter of
Parent and its Consolidated Subsidiaries, shall be less than or equal to
3.0:1.0.


 


(ii)           At
all times the Consolidated Tangible Net Worth shall be greater than or equal to
the sum of $589,000,000, plus on a cumulative basis as of the end of
each fiscal quarter of Parent and its Consolidated Subsidiaries, commencing
with the fiscal quarter ending September 30, 1999, an amount equal to fifty
percent (50%) of Consolidated Net Income (to the extent positive) for the
fiscal quarter then ended, plus fifty percent (50%) of the
net proceeds from Equity Issuances occurring after the Initial Closing Date, minus
amounts used to repurchase or redeem capital stock of the


 


28

















 


Parent during
the fiscal quarter then ended, minus dividends paid to shareholders of
the Parent in connection with any Spin-Off Transaction to the extent, but only
to the extent, (A) such dividends are paid solely and expressly with respect to
such Spin-Off Transaction, (B) such dividends are paid within the period of
twelve (12) consecutive calendar months following the effective date of such
Spin-Off Transaction, (C) such reduction in Consolidated Tangible Net Worth for
dividends shall be made one and only one time in connection with the first such
payment of dividends and (D) such reduction in Consolidated Tangible Net Worth
for dividends shall not exceed $500,000,000 notwithstanding that the actual
amount of dividends paid at such time may exceed $500,000,000.


 


8.3B.                   Additional Negative Covenants of the
Lessee.


 


Lessee hereby covenants and agrees that, so long as any Operative
Agreement is in effect or any amounts payable under any Operative Agreement
shall remain outstanding, and until all of the Commitments and Holder
Commitments shall have terminated:


 


(a)           Lessee
will not permit any of its Subsidiaries to contract, create, incur, assume or
permit to exist any Indebtedness in the aggregate in excess of ten percent
(10%) of the Consolidated Gross Revenue of Parent and its Consolidated
Subsidiaries for the immediately preceding twelve month period based on GAAP,
and to the extent such aggregate Indebtedness exceeds such amount, such excess
amount of Indebtedness shall be subordinated (on terms and conditions
reasonably satisfactory to the Majority Secured Parties) to the obligations of
Lessee under the Operative Agreements evidencing this transaction.


 


(b)           Lessee
will not, and will not permit any Subsidiary to, contract, create, incur,
assume or permit to exist any Lien with respect to any of its property or
assets (excluding Properties which shall be subject to the restrictions on
incurrence of Liens pursuant to Article XII of the Lease, but including stock
or other securities of any Person, including any Subsidiary), whether now owned
or after acquired, except:


 


(i)            Liens
incurred and pledges and deposits made in the ordinary course of business in
connection with workmen’s compensation, unemployment insurance, old-age
pensions and other social security laws or regulations;


 


(ii)           Liens
securing the performance of bids, tenders, leases, contracts (other than for
the repayment of borrowed money), statutory obligations, surety, customs and
appeal bonds and other obligations of like nature, incurred as an incident to
and in the ordinary course of business;


 


(iii)          Liens
imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s
and vendors’ liens, incurred in good faith in the ordinary course of business
and securing obligations which are not yet due or which are being contested in
compliance with Section 8.3(n)(ii);


 


(iv)          Liens
for taxes not yet due or which are being contested in compliance with Section
8.3(n)(ii);


 


(v)           zoning
restriction, easements, licenses, reservations, provisions, covenants,
conditions, waivers, restrictions on the use of property or minor
irregularities of title (and with respect to leasehold interests, mortgages,
obligations, liens and other encumbrances incurred, created, assumed or
permitted to exist and arising by, through or under or asserted by a landlord
or owner of the leased property, with or without consent of the lessee), none
of which materially impairs the use of any parcel of property material to the
operation of the business of Lessee or any Subsidiary or the value of such
property for the purpose of such business;


 


(vi)          Liens
upon any property acquired, constructed or improved by Lessee or any Subsidiary
which are created or incurred contemporaneously with or within 90 days after
such acquisition, construction or improvement to secure or provide for the
payment of any part of the


 


29

















 


purchase price of such property or the cost of such construction or
improvement (but no other amounts); provided that any such Lien or
security interest shall not apply to any other property of Lessee or any
Subsidiary;


 


(vii)         Liens
on property existing at the time such property is acquired by Lessee or any
Subsidiary; provided, in each case, that such liens were not created in
contemplation of the acquisition by Lessee or any Subsidiary of such property;


 


(viii)        Liens
existing on the date of this Agreement and disclosed in the financial
statements referred to in Section 8.3A(a) or the notes thereto or the searches
referred to in Section 5.3(u) (to the extent the Liens in such searches were
not objected to by the Agent);


 


(ix)           other
Liens on assets other than inventory or accounts receivable created, incurred,
assumed or permitted to exist in the ordinary course of its business or
customary in its industry;


 


(x)            extensions,
renewals and replacements of Liens referred to in paragraphs (i) through (ix)
of this Section 8.3B(b); provided, that any such extension, renewal or
replacement Lien shall be limited to the property or assets covered by the Lien
extended, renewed or replaced and that the obligations secured by any such
extension, renewal or replacement Lien shall be in an amount not greater than
the amount of the obligations secured by the Lien extended, renewed or
replaced;


 


(xi)           Liens
created or deemed to exist in connection with a Permitted Securitization
Transaction (including any related filings of any financing statements), but
only to the extent that any such Lien relates to the applicable receivables and
related property actually sold, contributed or otherwise conveyed pursuant to
such transaction; and


 


(xii)          Liens
created in order to cash collateralize obligations of the Lessee and its
Consolidated Subsidiaries not to exceed $15,000,000 in the aggregate from time
to time outstanding.


 


(c)           [Intentionally
Omitted.]


 


(d)           Lessee will not, and
will not permit any Subsidiary of Lessee to, merge with or into or consolidate
or combine with any other Person; except that: 
(i) any Subsidiary (direct or indirect) of Sabre Inc. may merge with or
into or consolidate or combine with Sabre Inc. or any other Subsidiary (direct or indirect) of Sabre Inc. (whether in one
transaction or a series of transactions); (ii) any Subsidiary (direct or
indirect) of Sabre Inc. may merge, consolidate or combine with any Person if
the surviving Person is a Subsidiary (direct or indirect) of Sabre Inc.; (iii)
if no Default or Event of Default shall have occurred at the time of or
immediately after giving effect to such transaction and be continuing, Sabre
Inc. may merge, consolidate or combine with any Person if the surviving
corporation is Sabre Inc.; and (iv) any Subsidiary (direct or indirect) of
Sabre Inc. may merge, consolidate or combine with any other Person as part of a
transaction in which the surviving Person is not a Subsidiary (direct or
indirect) of Sabre Inc., to the extent that the sum of (A) the aggregate net
book value of such Subsidiary, plus (B) the aggregate net book value of
all other Subsidiaries (direct or indirect) of Sabre Inc. previously or
contemporaneously merged, consolidated or combined pursuant to this Section
8.3B(d)(iv), plus (C) the previous or contemporaneous Asset Dispositions
pursuant to Section 8.3B(e)(v), does not exceed twenty-five percent (25%) of
the Parent’s total consolidated assets as shown on its consolidated balance
sheet for its most recent prior fiscal quarter.


 


(e)           Lessee will not, and
will not permit any Subsidiary of Lessee to, make any Asset Disposition
(including, without limitation, any sale/leaseback transaction); except that
Lessee and its Subsidiaries (direct or indirect) may make: (i) Asset
Dispositions of inventory, or used, worn-out or surplus equipment, all in the
ordinary course of business; (ii) Asset Dispositions on reasonable commercial
terms and for fair value or which would not have a Material Adverse Effect
(except that dispositions of any of the capital stock or all or substantially
all of the assets of any Subsidiary shall not be permitted under this clause
(ii)); (iii) Asset Dispositions to other Subsidiaries; (iv) Asset
Dispositions to any Person that becomes a


 


30

















 


Subsidiary
(direct or indirect) of Lessee as part of a transaction or series of
transactions that includes the Asset Disposition; and (v) Asset Dispositions to
any Person where the sum of (A) the aggregate net book value of the transferred
assets, plus (B) the aggregate net book value of all transactions pursuant
to Section 8.3B(d)(iv), plus (C) the aggregate net book value of the
transferred assets in all previous or contemporaneous Asset Dispositions
pursuant to this Section 8.3B(e)(v), does not exceed twenty-five percent (25%)
of the Parent’s total consolidated assets as shown on its consolidated balance
sheet for its most recent prior fiscal quarter.


 


(f)            Lessee
will not, and will not permit any Subsidiary to, enter into or permit to exist
any transaction or series of transactions with any officer, director,
shareholder, Subsidiary or Affiliate of such Person other than transactions
which are entered into on terms and conditions substantially as favorable to
such Person as would be obtainable by it in a comparable arms-length
transaction with a Person other than an officer, director, shareholder,
Subsidiary or Affiliate.


 


(g)           Lessee
will not, and will not permit any Subsidiary to, enter into or permit to exist
any Securitization Transaction that is not a Permitted Securitization
Transaction.


 


8.4.                            Sharing
of Certain Payments.


 


Except for
Excepted Payments, the parties hereto acknowledge and agree that all payments
due and owing by the Lessee to the Lessor under the Lease or any of the other
Operative Agreements shall be made by the Lessee directly to the Agent as more
particularly provided in Section 8.3(b) hereof.  The Lessor, the Holders, the Agent, the Lenders and the Lessee
acknowledge the terms of Section 8.7 of this Agreement regarding the allocation
of payments and other amounts made or received from time to time under the
Operative Agreements and agree, that all such payments and amounts are to be
allocated as provided in Section 8.7 of this Agreement.


 


8.5.                            Grant
of Easements, etc.


 


The Agent, the
Lenders and the Holders hereby agree that, so long as no Event of Default shall
have occurred and be continuing, the Owner Trustee shall, from time to time at
the request of the Lessee (and with the prior consent of the Agent, which
consent shall not be unreasonably withheld or delayed), in connection with the
transactions contemplated by the Agency Agreement, the Lease or the other
Operative Agreements, (i) grant easements and other rights in the nature of
easements with respect to any Property, (ii) release existing easements or
other rights in the nature of easements which are for the benefit of any
Property, (iii) execute and deliver to any Person any instrument appropriate to
confirm or effect such grants or releases, and (iv) execute and deliver to any
Person such other documents or materials in connection with the acquisition,
development, construction, testing or operation of any Property, including
without limitation reciprocal easement agreements, construction contracts,
operating agreements, development agreements, plats, replats or subdivision
documents; provided, that each of the agreements referred to in this
Section 8.5 shall be of the type normally executed by similarly situated
companies in the ordinary course of such company’s business and shall be on
commercially reasonable terms so as not to diminish the value of any Property
in any material respect.


 


8.6.                            Appointment by the Agent, the Lenders,
the Holders and the Owner Trustee.


 


The Holders
hereby appoint the Agent to act as collateral agent for the Holders in
connection with the Lien granted by the Security Documents to secure the Holder
Amount.  The Lenders and the Holders
acknowledge and agree and direct that the rights and remedies of the
beneficiaries of the Lien of the Security Documents shall be exercised by the
Agent on behalf of the Lenders and the Holders as directed from time to time by
the Majority Secured Parties or, pursuant to Sections 8.2(h) and 12.4, all of
the Lenders and the Holders, as the case may be; provided, in all cases,
the Agent shall allocate payments and other amounts received in accordance with
Section 8.7.  The Agent is further
appointed to provide notices under the Operative Agreements on behalf of the
Owner Trustee (as determined by the Agent, in its reasonable discretion), to
receive notices under the Operative Agreements on behalf of the Owner Trustee
and (subject to Sections 8.5 and 9.2) to take such other action under the
Operative Agreements on behalf of the Owner Trustee as the Agent shall
determine in its reasonable discretion from time to time.  The Agent hereby accepts such
appointments.  For purposes hereof, the
provisions of Section 7 of the Credit


 


31

















 


Agreement, together with such
other terms and provisions of the Credit Agreement and the other Operative
Agreements as required for the full interpretation and operation of Section 7
of the Credit Agreement are hereby incorporated by reference as if restated
herein for the mutual benefit of the Agent and each Holder as if each Holder
were a Lender thereunder.  Further, the
Agent shall be entitled to take such action on behalf of the Owner Trustee as
is delegated to the Agent under any Operative Agreement (whether express or
implied) as may be reasonably incidental thereto.  The parties hereto hereby agree to the provisions contained in
this Section 8.6.  Any appointment of a
successor agent under Section 7.9 of the Credit Agreement shall also be
effective as an appointment of a successor agent for purposes of this Section
8.6.


 


8.7.                            Collection and Allocation of Payments
and Other Amounts.


 


(a)           The Lessee and the
Construction Agent have agreed pursuant to Section 5.8 and otherwise in
accordance with the terms of this Agreement to pay to (i) the Agent any and all
Rent (excluding Excepted Payments) and any and all other amounts (excluding
Excepted Payments) of any kind or type under any of the Operative Agreements
due and owing or payable to any Person and (ii) each Person as appropriate the
Excepted Payments.  Promptly after
receipt, the Agent shall apply and allocate, in accordance with the terms of
this Section 8.7, such amounts received from the Lessee or the
Construction Agent and all other payments, receipts and other consideration of
any kind whatsoever received by the Agent pursuant to the Security Agreement or
otherwise received by the Agent, the Holders or any of the Lenders in
connection with the Collateral, the Security Documents or any of the other
Operative Agreements.  Ratable distributions
among the Lenders and the Holders under this Section 8.7 shall be made based on
(in the case of the Lenders) the ratio of the outstanding Loans to the
aggregate Property Cost and (in the case of the Holders) the ratio of the
outstanding Holder Advances to the aggregate Property Cost.  Ratable distributions among the Tranche A
Lenders under this Section 8.7 shall be made based on the ratio of the
individual Tranche A Lender’s Commitment for Tranche A Loans to the aggregate
of all the Tranche A Lenders’ Commitments for Tranche A Loans. Ratable
distributions among the Tranche B Lenders under this Section 8.7 shall be made
based on the ratio of the individual Tranche B Lender’s Commitment for Tranche
B Loans to the aggregate of all the Tranche B Lenders’ Commitments for Tranche
B Loans.  Ratable distributions among
the Lenders (in situations where the Tranche A Lenders are not differentiated
from the Tranche B Lenders) shall be made based on the ratio of the individual
Lender’s Commitment to the aggregate of all the Lenders’ Commitments.  Ratable distributions among the Holders
under this Section 8.7 shall be based on the ratio of the individual Holder’s
Holder Commitment to the aggregate of all the Holders’ Holder Commitments.


 


(b)           Payments and other
amounts received by the Agent from time to time in accordance with the terms of
subparagraph (a) shall be applied and allocated as follows (subject in all
cases to Section 8.7(c)):


 


(i)            Any such payment or
amount identified as or deemed to be Basic Rent shall be applied and allocated
by the Agent first, ratably to the Lenders and the Holders for
application and allocation to the payment of interest on the Loans and
thereafter the principal of the Loans which is due and payable on such date and
thereafter to the payment of accrued Holder Yield with respect to the Holder
Advances and thereafter the portion of the Holder Advances which is due on such
date; and second, if no Default or Event of Default has occurred and is
continuing, any excess shall be paid to such Person or Persons as the Lessee
may designate; provided, that if a Default or Event of Default has
occurred and is continuing, such excess (if any) shall instead be held by the
Agent until the earlier of (A) the first date thereafter on which no Default or
Event of Default shall be continuing (in which case such payments or returns
shall then be made to such other Person or Persons as the Lessee may designate)
and (B) the Expiration Date (or, if earlier, the date of any Acceleration), in
which case such amounts shall be applied and allocated in the manner
contemplated by Section 8.7(b)(iv).


 


(ii)           If on any date the
Agent or the Lessor shall receive any amount in respect of (A) any Casualty or
Condemnation pursuant to Sections 15.1(a) or 15.1(g) of the Lease (excluding
any payments in respect thereof which are payable to the Lessee in accordance
with the Lease), or (B)


 


32

















 


the
Termination Value in connection with the delivery of a Termination Notice
pursuant to Article XVI of the Lease, or (C) the Termination Value in
connection with the exercise of the Purchase Option under Section 20.1 of the
Lease or the exercise of the option of the Lessor to transfer the Properties to
the Lessee pursuant to Section 20.3 of the Lease, or (D) any payment required
to be made or elected to be made by the Construction Agent to the Lessor
pursuant to the terms of the Agency Agreement, subject to the provisions of
Section 8.7(b)(iv) or (E) any Out Parcel Allocable Amount, then in each case,
the Lessor shall be required to pay such amount received (1) if no Acceleration
has occurred, to prepay the principal balance of the Loans and the Holder
Advances, on a pro rata basis in accordance with Section 8.7(a), a portion of
such amount to be distributed to the Lenders and the Holders or (2) if an
Acceleration has occurred, to apply and allocate the proceeds respecting
Sections 8.7(b)(ii)(A) through 8.7(b)(ii)(D) in accordance with Section
8.7(b)(iii) hereof.


 


(iii)          An amount equal to
any payment identified as proceeds of the sale or other disposition (or lease
upon the exercise of remedies) of the Properties or any portion thereof,
whether pursuant to Article XXII of the Lease or the exercise of remedies under
the Security Documents or otherwise, the execution of remedies set forth in the
Lease and any payment in respect of excess wear and tear pursuant to Section
22.3 of the Lease (whether such payment relates to a period before or after the
Construction Period Termination Date) shall be applied and allocated by the
Agent first, ratably to the payment of the principal and interest of the
Tranche B Loans then outstanding, second, ratably to the payment to the
Holders of the outstanding principal balance of all Holder Advances plus all
outstanding Holder Yield with respect to such outstanding Holder Advances, third,
to the extent such amount exceeds the maximum amount to be returned pursuant to
the foregoing provisions of this paragraph (iii), ratably to the payment of the
principal and interest of the Tranche A Loans then outstanding, fourth,
to any and all other amounts owing under the Operative Agreements to the
Lenders under the Tranche B Loans, fifth, to any and all other amounts
owing under the Operative Agreements to the Holders, sixth, to any and
all other amounts owing under the Operative Agreements to the Lenders under the
Tranche A Loans, and seventh, to the extent moneys remain after
application and allocation pursuant to clauses first through sixth
above, to the Owner Trustee for application and allocation to any and all other
amounts owing to the Holders or the Owner Trustee and as the Holders shall
determine; provided, where no Event of Default shall exist and be
continuing and a prepayment is made for any reason with respect to less than
the full amount of the outstanding principal amount of the Loans and the
outstanding Holder Advances, the proceeds shall be applied and allocated
ratably to the Lenders and to the Holders.


 


(iv)          An amount equal to
(A) any such payment identified as a payment of the Maximum Amount or any
payment pursuant to Section 22.1(b) of the Lease (or otherwise) of the Maximum
Residual Guarantee Amount (and any such lesser amount as may be required by
Section 22.1(b) of the Lease) in respect of the Properties and (B) any other
amount payable upon any exercise of remedies after the occurrence of an Event
of Default not covered by Sections 8.7(b)(i) or 8.7(b)(iii) above
(including without limitation any amount received in connection with an
Acceleration which does not represent proceeds from the sale or liquidation of
the Properties), shall be applied and allocated by the Agent first,
ratably, to the payment of the principal and interest balance of Tranche A
Loans then outstanding, second, ratably to the payment of the principal
and interest balance of the Tranche B Loans then outstanding, third,
ratably to the payment of the principal balance of all Holder Advances plus all
outstanding Holder Yield with respect to such outstanding Holder Advances, fourth,
to the payment of any other amounts owing to the Lenders hereunder or under any
of the other Operative Agreement, and fifth, to the extent moneys remain
after application and allocation pursuant to clauses first through fourth
above, to the Owner Trustee for any other amounts owing to the Holders or the
Owner Trustee as the Holders shall determine.


 


(v)           An amount equal to
any such payment identified as Supplemental Rent shall be applied and allocated
by the Agent to the payment of any amounts then owing to the Agent, the


 


33

















 


Lenders, the
Holders and the other parties to the Operative Agreements (or any of them)
(other than any such amounts payable pursuant to the preceding provisions of
this Section 8.7(b)) as shall be determined by the Agent in its reasonable
discretion; provided, however, that Supplemental Rent received
upon the exercise of remedies after the occurrence and continuance of an Event
of Default in lieu of or in substitution of the Maximum Residual Guarantee
Amount or as a partial payment thereon shall be applied and allocated as set
forth in Section 8.7(b)(iv).


 


(vi)          The Agent in its
reasonable judgment shall identify the nature of each payment or amount
received by the Agent and apply and allocate each such amount in the manner
specified above.


 


(c)           Upon the payment in
full of the Loans, the Holder Advances and all other amounts then due and owing
by the Owner Trustee hereunder or under any Credit Document and the payment in
full of all other amounts then due and owing to the Lenders, the Holders, the
Agent, the Owner Trustee and the other Financing Parties pursuant to the
Operative Agreements, any moneys remaining with the Agent shall be returned to
the Lessee.  In the event of an
Acceleration it is agreed that, prior to the application and allocation of
amounts received by the Agent in the order described in Section 8.7(b) above or
any distribution of money to the Lessee, any such amounts shall first be
applied and allocated to the payment of (i) any and all sums advanced by the
Agent in order to preserve the Collateral or to preserve its Lien thereon, (ii)
the expenses of retaking, holding, preparing for sale or lease, selling or
otherwise disposing or realizing on the Collateral, or of any exercise by the
Agent of its rights under the Security Documents, together with reasonable
attorneys’ fees and expenses and court costs and (iii) any and all other
amounts reasonably owed to the Agent under or in connection with the
transactions contemplated by the Operative Agreements (including without
limitation any accrued and unpaid administration fees).


 


8.8.                            Release
of Properties, etc.


 


If the Lessee
shall at any time purchase any Property pursuant to the Lease, or the
Construction Agent shall purchase any Property pursuant to the Agency
Agreement, or if any Property shall be sold in accordance with Article XXII of
the Lease, then, upon satisfaction by the Owner Trustee of its obligation to
prepay the Loans, Holder Advances and all other amounts owing to the Lenders
and the Holders under the Operative Agreements, the Agent is hereby authorized
and directed by the Lenders, Holders, Borrower and Owner Trustee to release,
and will release, such Properties from the Liens created by the Security
Documents and the Lease shall be released to the extent of its interest
therein.  In addition, upon the
termination of the Commitments and the Holder Commitments and the payment in
full of the Loans, the Holder Advances and all other amounts owing by the Owner
Trustee and the Lessee hereunder or under any other Operative Agreement, the
Agent is hereby authorized and directed by the Lenders, Holders, Borrower and
Owner Trustee to release, and will release, all of the Properties from the
Liens created on such Properties by the Security Documents and the Lease shall
be released.  Upon request of the Owner
Trustee following any such release, the Agent shall, at the sole cost and
expense of the Lessee, execute and deliver to the Owner Trustee and the Lessee
such documents as the Owner Trustee or the Lessee shall reasonably request to
evidence such release.


 


SECTION 9.  CREDIT AGREEMENT AND TRUST AGREEMENT.


 


9.1.                            The Construction Agent’s
and the Lessee’s Credit Agreement Rights.


 


Notwithstanding
anything to the contrary contained in the Credit Agreement, the Agent, the
Lenders, the Holders, the Construction Agent, the Lessee and the Owner Trustee
hereby agree that, prior to the occurrence and continuation of any Default or
Event of Default, the Construction Agent or the Lessee, as the case may be,
shall have the following rights:


 


(a)           the right to
designate the Type of Loans to be made and accounts to which amounts funded
under the Operative Agreements shall be credited pursuant to Section 2.3(a) of
the Credit Agreement;


 


34

















 


(b)           the right to
terminate or reduce the Commitments pursuant to Section 2.5(a) of the Credit
Agreement;


 


(c)           the right to provide
or receive any notice and/or any certificate, in each case issued pursuant to
Sections 2.6(a), 2.9 or 2.11(a) of the Credit Agreement;


 


(d)           the right to
exercise the conversion and continuation options pursuant to Section 2.7 of the
Credit Agreement;


 


(e)           the right to
exercise the rights in Section 2.11(b) of the Credit Agreement;


 


(f)            the right to
approve any successor agent pursuant to Section 7.9 of the Credit Agreement;
and


 


(g)           the right to consent
to any assignment by a Lender to which the Lessor has the right to consent
pursuant to Section 9.8 of the Credit Agreement.


 


9.2.                            The Construction Agent’s and the Lessee’s Trust Agreement
Rights.


 


Notwithstanding
anything to the contrary contained in the Trust Agreement, the Construction
Agent, the Lessee, the Owner Trustee and the Holders hereby agree that, prior
to the occurrence and continuation of any Default or Event of Default, the
Construction Agent or the Lessee, as the case may be, shall have the following
rights:


 


(a)           the right to
designate the Type of Advances to be made under Section 3.1 of the Trust
Agreement;


 


(b)           the right to
exercise the conversion and continuation options pursuant to Section 3.8 of the
Trust Agreement;


 


(c)           the right to receive
any notice and any certificate, in each case issued pursuant to Section 3.4(a)
or 3.9(a) of the Trust Agreement;


 


(d)           the right to replace
any Holder pursuant to Section 3.9(b) of the Trust Agreement; and


 


(e)           the right to
exercise the removal options contained in Section 9.1 of the Trust Agreement; provided,
however, that no removal of the Owner Trustee and appointment of a
successor Owner Trustee by the Holders pursuant to Section 9.1 of the Trust
Agreement shall be made without the prior written consent (not to be
unreasonably withheld or delayed) of the Lessee.


 


SECTION 10.  TRANSFER OF INTEREST.


 


10.1.                     Restrictions
on Transfer.


 


Each Lender
may participate, assign or transfer all or a portion of its interest hereunder
and under the other Operative Agreements in accordance with Sections 9.7 and
9.8 of the Credit Agreement; provided, each participant, assignee or
transferee must obtain the same ratable interest in Tranche A Loans, Tranche A
Commitments, Tranche B Loans and Tranche B Commitments (and to the extent the
selling Lender is also a Holder (or an Affiliate of a Holder), each such
participant, assignor or transferee must also obtain the same ratable interest
in and to the Holder Advances, Holder Commitments and the Trust Estate); provided
further, that each Lender that participates, assigns or transfers all or
a portion of its interest hereunder and under the other Operative Agreements shall
deliver to the Agent a copy of each Assignment and Acceptance (as referenced in
Section 9.8 of the Credit Agreement) for purposes of maintaining the
Register.  The Holders may, directly or
indirectly, assign, convey or otherwise transfer any of their right, title or
interest in or to the Trust Estate or the Trust Agreement with the prior
written consent of the Agent and the Lessee (which consent shall not be
unreasonably withheld or delayed) and in accordance with the terms of Section
11.8(b) of the Trust Agreement; provided, to the extent the selling
Holder is also a Lender (or an


 


35

















 


Affiliate of a Lender), each
such assignee, receiver of a conveyance or other transferee must also obtain
the same ratable interest in and to the Tranche A Loans, Tranche A Commitments,
Tranche B Loans and Tranche B Commitments. 
The Owner Trustee may, subject to the rights of the Lessee under the
Lease and the other Operative Agreements and to the Lien of the applicable Security
Documents but only with the prior written consent of the Agent (which consent
shall be provided if approved by the Majority Secured Parties) and (provided,
no Default or Event of Default has occurred and is continuing) with the consent
of the Lessee, directly or indirectly, assign, convey, appoint an agent with
respect to enforcement of, or otherwise transfer any of its right, title or
interest in or to any Property, the Lease, the Trust Agreement and the other
Operative Agreements (including without limitation any right to indemnification
thereunder), or any other document relating to a Property or any interest in a
Property as provided in the Trust Agreement and the Lease.  The provisions of the immediately preceding
sentence shall not apply to the obligations of the Owner Trustee to transfer
Property to the Lessee or a third party purchaser pursuant to Article XXII of
the Lease upon payment for such Property in accordance with the terms and
conditions of the Lease.  Neither the
Lessee nor the Construction Agent may assign any of the Operative Agreements or
any of their respective rights or obligations thereunder or with respect to any
Property in whole or in part to any Person without the prior written consent of
the Agent and the Lessor.  Prior to or
contemporaneous with the effectiveness of any assignment of interest by any
Lender or Holder pursuant to the Operative Agreements, the assignee shall make
the representations and warranties referenced in Section 6.3, and thereafter
the assignee shall make such representations and warranties as required
pursuant to Section 6.3 from time to time.


 


10.2.                     Effect
of Transfer.


 


From and after
any transfer effected in accordance with this Section 10, the transferor shall
be released, to the extent of such transfer, from its liability hereunder and
under the Operative Agreements to which it is a party in respect of obligations
to be performed on or after the date of such transfer; except that any
transferor shall remain liable hereunder and under such other documents to the
extent that the transferee shall not have assumed the obligations of the
transferor thereunder.  Upon any
transfer by the Owner Trustee, a Holder or a Lender as above provided, any such
transferee shall assume the obligations of the Owner Trustee, the Holder or the
Lender, as the case may be, and shall be deemed an “Owner Trustee”, “Holder”,
or “Lender”, as the case may be, for all purposes of such documents and each
reference herein to the transferor shall thereafter be deemed a reference to such
transferee for all purposes, except as provided in the preceding sentence.  Notwithstanding any transfer of all or a
portion of the transferor’s interest as provided in this Section 10, the
transferor shall be entitled to all benefits accrued and all rights vested
prior to such transfer including without limitation rights to indemnification
under any such document.


 


10.3                        Replacement
of Lenders and Holders Which Do Not Consent to Renewal Terms.


 


Lessee shall
have the option to replace any Lender or any Holder which does not expressly
agree to any request from Lessee for any Renewal Term in accordance with the
provisions of Section 2.2 of the Lease, and each such Lender or Holder shall
assign its interest in the transactions evidenced by, and rights and obligations
under, the Operative Agreements to any assignee identified by Lessee pursuant
to the applicable provisions of the Operative Agreements regarding assignment
and transfer; provided, however, that Lessee shall be liable for
the payment upon demand of all costs and other amounts arising under Section
11.4 hereof that result from the assignment of any Lender’s or Holder’s
interest, and any outstanding Eurodollar Loans and Eurodollar Holder Advances
relating thereto, or portion thereof, by an assignee on a date other than the
last day of the applicable Interest Period with respect to any such outstanding
Eurodollar Loan or Eurodollar Holder Advance.


 


SECTION 11.  INDEMNIFICATION.


 


11.1.                     General
Indemnity.


 


SUBJECT TO AND
LIMITED BY IN ALL RESPECTS THE PROVISIONS OF SECTIONS 11.6 THROUGH 11.8 AND
WHETHER OR NOT ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
CONSUMMATED, THE INDEMNITY PROVIDER HEREBY ASSUMES LIABILITY FOR AND AGREES TO
DEFEND, INDEMNIFY AND HOLD HARMLESS EACH 


 


36

















 


INDEMNIFIED PERSON ON AN AFTER TAX BASIS FROM
AND AGAINST ANY CLAIM THAT MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST
AN INDEMNIFIED PERSON BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION CLAIMS
ARISING FROM THE NEGLIGENCE OF AN INDEMNIFIED PERSON (BUT NOT TO THE EXTENT
SUCH CLAIMS ARISE FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
INDEMNIFIED PERSON ITSELF) IN ANY WAY RELATING TO OR ARISING OR ALLEGED TO
ARISE OUT OF THE EXECUTION, DELIVERY, PERFORMANCE OR ENFORCEMENT OF THIS
AGREEMENT, THE LEASE OR ANY OTHER OPERATIVE AGREEMENT OR ON OR WITH RESPECT TO
ANY PROPERTY OR ANY COMPONENT THEREOF, INCLUDING WITHOUT LIMITATION CLAIMS IN
ANY WAY RELATING TO OR ARISING OR ALLEGED TO ARISE OUT OF (A) THE FINANCING,
REFINANCING, PURCHASE, ACCEPTANCE, REJECTION, OWNERSHIP, DESIGN, CONSTRUCTION,
REFURBISHMENT, DEVELOPMENT, DELIVERY, ACCEPTANCE, NONDELIVERY, LEASING,
SUBLEASING, POSSESSION, USE, OCCUPANCY, OPERATION, MAINTENANCE REPAIR,
MODIFICATION, TRANSPORTATION, CONDITION, SALE, RETURN, REPOSSESSION (WHETHER BY
SUMMARY PROCEEDINGS OR OTHERWISE), OR ANY OTHER DISPOSITION OF ANY PROPERTY OR
ANY PART THEREOF, INCLUDING WITHOUT LIMITATION THE ACQUISITION, HOLDING OR
DISPOSITION OF ANY INTEREST IN THE PROPERTY, LEASE OR AGREEMENT COMPRISING A
PORTION OF ANY THEREOF; (B) ANY LATENT OR OTHER DEFECTS IN ANY PROPERTY OR ANY
PORTION THEREOF WHETHER OR NOT DISCOVERABLE BY AN INDEMNIFIED PERSON OR THE
INDEMNITY PROVIDER; (C) A VIOLATION OF ENVIRONMENTAL LAWS, ENVIRONMENTAL CLAIMS
OR OTHER LOSS OF OR DAMAGE TO ANY PROPERTY OR THE ENVIRONMENT RELATING TO THE
PROPERTY, THE LEASE, THE AGENCY AGREEMENT OR THE INDEMNITY PROVIDER; (D) THE
OPERATIVE AGREEMENTS, OR ANY TRANSACTION CONTEMPLATED THEREBY; (E) ANY BREACH
BY THE INDEMNITY PROVIDER OF ANY OF ITS REPRESENTATIONS OR WARRANTIES UNDER THE
OPERATIVE AGREEMENTS TO WHICH THE INDEMNITY PROVIDER IS A PARTY OR FAILURE BY
THE INDEMNITY PROVIDER TO PERFORM OR OBSERVE ANY COVENANT OR AGREEMENT TO BE
PERFORMED BY IT UNDER ANY OF THE OPERATIVE AGREEMENTS; (F) PERSONAL
INJURY, DEATH OR PROPERTY DAMAGE, INCLUDING WITHOUT LIMITATION CLAIMS BASED ON
STRICT OR ABSOLUTE LIABILITY IN TORT; (G) ANY FEES, EXPENSES AND/OR OTHER
ASSESSMENTS BY ANY BUSINESS PARK OR ANY OTHER APPLICABLE ENTITY WITH OVERSIGHT
RESPONSIBILITY FOR THE APPLICABLE PROPERTY; (H) ANY VIOLATION OF ANY WORKERS’
COMPENSATION LAWS OR ANY NON-COMPLIANCE BY THE INDEMNITY PROVIDER WITH ANY
WORKERS’ COMPENSATION LAWS OR ANY CLAIMS AGAINST ANY INDEMNIFIED PERSONS IN
CONNECTION THEREWITH; AND (I) ANY LOSS THE LESSOR MAY INCUR OR BE REQUIRED TO
PAY UNDER SECTION 11.8.  THIS
INDEMNIFICATION PROVISION INCLUDES AN INDEMNIFICATION BY THE INDEMNITY PROVIDER
FOR ORDINARY NEGLIGENCE OF THE INDEMNIFIED PERSONS.


 


If a written
Claim is made against any Indemnified Person or if any proceeding shall be
commenced against such Indemnified Person (including without limitation a
written notice of such proceeding), for any Claim, such Indemnified Person
shall promptly notify the Indemnity Provider in writing and shall not take
action with respect to such Claim without the consent of the Indemnity Provider
for thirty (30) days after the receipt of such notice by the Indemnity Provider
and thereafter such Indemnified Person shall not take action with respect to
such Claim unless the Indemnity Provider has not undertaken such action; provided,
however, that in the case of any such Claim, if action shall be required
by law or regulation to be taken prior to the end of such period of thirty (30)
days, such Indemnified Person shall endeavor to, in such notice to the
Indemnity Provider, inform the Indemnity Provider of such shorter period, and
no action shall be taken with respect to such Claim without the consent of the
Indemnity Provider before seven (7) days before the end of such shorter period;
provided, further, that the failure of such Indemnified Person to
give the notices referred to in this sentence shall not diminish the Indemnity
Provider’s obligation hereunder except to the extent such failure arises from
the gross negligence or willful misconduct of such Indemnified Person and in
such case, the Indemnity Provider shall be relieved of its indemnity obligation
respecting such Claim to the extent, but only to the extent, the failure of
such Indemnified Person to give such notice has materially precluded or
materially prejudiced the Indemnity Provider from contesting such Claim.


 


37

















 


If, within
thirty (30) days of receipt of such notice from the Indemnified Person (or such
shorter period as the Indemnified Person has notified the Indemnity Provider is
required by law or regulation for the Indemnified Person to respond to such
Claim), the Indemnity Provider shall request in writing that such Indemnified
Person respond to such Claim, the Indemnified Person shall, at the expense of
the Indemnity Provider, in good faith conduct and control such action
(including without limitation by pursuit of appeals) (provided, however,
that (A) if such Claim, in the Indemnity Provider’s reasonable discretion, can
be pursued by the Indemnity Provider on behalf of or in the name of such
Indemnified Person, the Indemnified Person, at the Indemnity Provider’s
request, shall allow the Indemnity Provider to conduct and control the response
to such Claim and (B) in the case of any Claim (and notwithstanding the
provisions of the foregoing subsection (A)), the Indemnified Person may request
the Indemnity Provider to conduct and control the response to such Claim (with
counsel to be selected by the Indemnity Provider and consented to by such
Indemnified Person, such consent not to be unreasonably withheld; provided,
however, that any Indemnified Person may retain separate counsel at the
reasonable expense of the Indemnity Provider in the event of a conflict of
interest between such Indemnified Person and the Indemnity Provider)) by, in
the sole discretion of the Person conducting and controlling the response to
such Claim (1) resisting payment thereof, (2) not paying the same except under
protest, if protest is necessary and proper, (3) if the payment be made, using
reasonable efforts to obtain a refund thereof in appropriate administrative and
judicial proceedings, or (4) taking such other action as is reasonably
requested by the Indemnity Provider from time to time.


 


The party
controlling the response to any Claim shall consult in good faith with the
non-controlling party and shall keep the non-controlling party reasonably
informed as to the conduct of the response to such Claim; provided, that
all decisions ultimately shall be made in the discretion of the controlling
party.  The parties agree that an
Indemnified Person may at any time decline to take further action with respect
to the response to such Claim and may settle such Claim if such Indemnified Person
shall waive its rights to any indemnity from the Indemnity Provider that
otherwise would be payable in respect of such Claim (and any future Claim, the
pursuit of which is precluded by reason of such resolution of such Claim) and
shall pay to the Indemnity Provider any amount previously paid or advanced by
the Indemnity Provider pursuant to this Section 11.1 by way of indemnification
or advance for the payment of an amount regarding such Claim.


 


Notwithstanding
the foregoing provisions of this Section 11.1, an Indemnified Person shall not
be required to take any action and the Indemnity Provider shall not be
permitted to respond to any Claim in the name of the Indemnified Person unless
(A) the Indemnity Provider shall have agreed to pay and shall pay to such
Indemnified Person on demand and on an After Tax Basis all reasonable costs,
losses and expenses that such Indemnified Person actually incurs in connection
with such Claim, including without limitation all reasonable legal, accounting
and investigatory fees and disbursements and, if the Indemnified Person has
informed the Indemnity Provider that it intends to contest such Claim (whether
or not the control of the contest is then assumed by the Indemnity Provider),
the Indemnity Provider shall have agreed that the Claim is an indemnifiable
Claim hereunder, (B) in the case of a Claim that must be pursued in the name of
an Indemnified Person (or an Affiliate thereof), the amount of the potential
indemnity (taking into account all similar or logically related Claims that
have been or could be raised for which the Indemnity Provider may be liable to
pay an indemnity under this Section 11.1) exceeds $50,000 (or such lesser
amount as may be subsequently agreed between the Indemnity Provider and the
Indemnified Person), (C) the Indemnified Person shall have reasonably
determined that the action to be taken will not result in any material danger
of sale, forfeiture or loss of the Property, or any part thereof or interest
therein, will not interfere with the payment of Rent, and will not result in
risk of criminal liability, (D) if such Claim shall involve the payment of any
amount prior to the resolution of such Claim, the Indemnity Provider shall
provide to the Indemnified Person an interest-free advance in an amount equal
to the amount that the Indemnified Person is required to pay (with no
additional net after-tax cost to such Indemnified Person) prior to the date
such payment is due, (E) in the case of a Claim that must be pursued in the
name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider
shall have provided to such Indemnified Person an opinion of independent
counsel selected by the Indemnity Provider and reasonably satisfactory to the
Indemnified Person stating that a reasonable basis exists to contest such Claim
(or, in the case of an appeal of an adverse determination, an opinion of such
counsel to the effect that the position asserted in such appeal will more
likely than not prevail) and (F) no Event of Default shall have occurred and be
continuing.  In no event shall an
Indemnified Person be required to appeal an adverse judicial determination to
the United States Supreme Court.  In
addition, an Indemnified Person shall not be required to contest any Claim in
its name (or that of an Affiliate) if the subject matter thereof shall be of a
continuing nature and shall have previously been decided adversely by a court
of competent jurisdiction pursuant to the contest provisions of this Section
11.1, unless there


 


38

















 


shall have been a change in law
(or interpretation thereof) and the Indemnified Person shall have received, at
the Indemnity Provider’s expense, an opinion of independent counsel selected by
the Indemnity Provider and reasonably acceptable to the Indemnified Person
stating that as a result of such change in law (or interpretation thereof), it
is more likely than not that the Indemnified Person will prevail in such
contest.  In no event shall the party
controlling the response to any Claim be permitted to adjust or settle any
Claim without the consent of the non-controlling parties to the extent any such
adjustment or settlement involves, or is reasonably likely to involve, any
performance by or adverse admission by or with respect to the non-controlling
parties.


 


11.2.                     General
Tax Indemnity.


 


(a)           Subject to and
limited by in all respects the provisions of Sections 11.6 through 11.8, the
Indemnity Provider shall pay and assume liability for, and does hereby agree to
indemnify, protect and defend each Property and all Indemnified Persons, and
hold them harmless against, all Impositions on an After Tax Basis, and all
payments pursuant to the Operative Agreements shall be made free and clear of
and without deduction for any and all present and future Impositions.


 


(b)           Notwithstanding
anything to the contrary in Section 11.2(a) hereof, the following shall be
excluded from the indemnity required by Section 11.2(a) (collectively, the “Excluded
Taxes”):


 


(i)            Taxes (other than
Taxes that are, or are in the nature of, sales, use, rental, value added,
transfer or property taxes) that are imposed on a Indemnified Person (other
than the Lessor, the Owner Trustee and the Trust) by the United States federal
government that are based on or measured by the net income (including without
limitation taxes based on capital gains and minimum taxes) of such Person; provided,
that this clause (i) shall not be interpreted to prevent a payment from being
made on an After Tax Basis if such payment is otherwise required to be so made;


 


(ii)           Taxes (other than
(A) Taxes that are, or are in the nature of, sales, use, rental, value added,
transfer or property taxes and (B) Taxes that result from the failure of the
Owner Trustee to qualify to transact, conduct or otherwise do business in any
jurisdiction in which any of the Properties is located, for the purpose of this
clause (B) only, to the extent such Tax relates to the transactions
contemplated by the Operative Agreements) that are imposed on any Indemnified
Person (other than the Lessor, the Owner Trustee and the Trust) by any state or
local jurisdiction or taxing authority within any state or local jurisdiction
and that are based upon or measured by the net income (including without
limitation taxes based on capital gains and minimum taxes) of such Person or
measured by Taxes on doing business, business privilege, franchise, capital,
capital stock, net worth or similar taxes; provided that this clause
(ii) shall not be interpreted to prevent a payment from being made on an After
Tax Basis if such payment is otherwise required to be so made;


 


(iii)          any Tax to the
extent it relates to any act, event or omission that occurs after the
termination of the Lease and redelivery or sale of the Property in accordance
with the terms of the Lease (but not any Tax that relates to such termination,
redelivery or sale and/or to any period prior to such termination, redelivery
or sale);


 


(iv)          Taxes that are based
on, or measured by, the fees or other compensation received by a Person acting
as Owner Trustee (in its individual capacity) or any Affiliate thereof for
acting as trustee under the Operative Agreements;


 


(v)           any Tax which is
being contested in accordance with the provisions of Section 11.2(f), during
the pendency of such contest;


 


(vi)          to the extent any
interest, penalties or additions to tax result in whole or in part from the
failure of an Indemnified Person to file a tax return that it is required to
file in a proper and timely manner, unless such failure (A) results from the
transactions contemplated by the


 


39

















 


Operative
Agreements in circumstances where the Lessee did not give timely notice to such
Indemnified Person (and such Indemnified Person otherwise had no actual knowledge)
of such filing requirement that would have permitted a proper and timely filing
of such return, (B) results from the failure of the Lessee to supply
information necessary for the proper and timely filing of such return that was
not in the possession of such Indemnified Person, or (C) results from the
failure of the Owner Trustee to qualify to transact, conduct or otherwise do
business in any jurisdiction in which any of the Properties is located, for the
purpose of this clause (C) only, to the extent such Tax relates to the
transactions contemplated by the Operative Agreements;


 


(vii)         any Tax that results
from the breach by the Lessor of its representation and warranty made in
Section 6.1(a) hereof or the breach by any Lender or Holder of its representation
and warranty made in Section 6.3(b) hereof, other than Tax that results from
the failure of the Owner Trustee to qualify to transact, conduct or otherwise
do business in any jurisdiction in which any of the Properties is located to
the extent such Tax relates to the transactions contemplated by the Operative
Agreements;


 


(viii)        any Taxes which are
imposed on an Indemnified Person as a result of the gross negligence or willful
misconduct of such Indemnified Person, but not Taxes imposed as a result of
ordinary negligence of such Indemnified Person; and


 


(ix)           any Tax that does
not relate to any Property or the transactions contemplated by the Operative
Agreements.


 


(c)           (i)            Subject
to the terms of Section 11.2(f), the Indemnity Provider shall pay or cause to
be paid all Impositions directly to the taxing authorities where feasible and
otherwise to the Indemnified Person, as appropriate, and the Indemnity Provider
shall at its own expense, upon such Indemnified Person’s reasonable request,
furnish to such Indemnified Person copies of official receipts or other
satisfactory proof evidencing such payment.


 


(ii)           In the case of
Impositions for which no contest is conducted pursuant to Section 11.2(f) and
which the Indemnity Provider pays directly to the taxing authorities, the
Indemnity Provider shall pay such Impositions prior to the latest time
permitted by the relevant taxing authority for timely payment.  In the case of Impositions for which the
Indemnity Provider reimburses an Indemnified Person, the Indemnity Provider
shall do so within thirty (30) days after receipt by the Indemnity Provider of
demand by such Indemnified Person describing in reasonable detail the nature of
the Imposition and the basis for the demand (including without limitation the computation
of the amount payable), accompanied by receipts or other reasonable evidence of
such demand.  In the case of Impositions
for which a contest is conducted pursuant to Section 11.2(f), the Indemnity
Provider shall pay such Impositions or reimburse such Indemnified Person for
such Impositions, to the extent not previously paid or reimbursed pursuant to
subsection (a), prior to the latest time permitted by the relevant taxing
authority for timely payment after conclusion of all contests under Section 11.2(f).


 


(iii)          At the Indemnity
Provider’s request, the amount of any indemnification payment by the Indemnity
Provider pursuant to subsection (a) shall be verified and certified by an
independent public accounting firm mutually acceptable to the Indemnity
Provider and the Indemnified Person. 
The fees and expenses of such independent public accounting firm shall
be paid by the Indemnity Provider unless such verification shall result in an
adjustment in the Indemnity Provider’s favor of ten percent (10%) or more of
the payment as computed by the Indemnified Person, in which case such fee shall
be paid by the Indemnified Person.


 


(d)           The Indemnity
Provider shall be responsible for preparing and filing any real and personal
property or ad valorem tax returns in respect of each Property and any other
tax returns required for the Owner Trustee respecting the transactions
described in the Operative Agreements. 
In case any other report or tax return shall be required to be made with
respect to any obligations of the Indemnity Provider


 


40

















 


under or
arising out of subsection (a) and of which the Indemnity Provider has knowledge
or should have knowledge, the Indemnity Provider, at its sole cost and expense,
shall notify the relevant Indemnified Person of such requirement and (except if
such Indemnified Person notifies the Indemnity Provider that such Indemnified
Person intends to prepare and file such report or return) (A) to the extent
required or permitted by and consistent with Legal Requirements, make and file
in the Indemnity Provider’s name such return, statement or report; and (B) in
the case of any other such return, statement or report required to be made in
the name of such Indemnified Person, advise such Indemnified Person of such
fact and prepare such return, statement or report for filing by such
Indemnified Person or, where such return, statement or report shall be required
to reflect items in addition to any obligations of the Indemnity Provider under
or arising out of subsection (a), provide such Indemnified Person at the
Indemnity Provider’s expense with information sufficient to permit such return,
statement or report to be properly made with respect to any obligations of the
Indemnity Provider under or arising out of subsection (a).  Such Indemnified Person shall, upon the
Indemnity Provider’s request and at the Indemnity Provider’s expense, provide
any data maintained by such Indemnified Person (and not otherwise available to
or within the control of the Indemnity Provider) with respect to each Property
which the Indemnity Provider may reasonably require to prepare any required tax
returns or reports.


 


(e)           As between the
Indemnity Provider on one hand, and each Financing Party on the other hand, the
Indemnity Provider shall be responsible for, and the Indemnity Provider shall
indemnify and hold harmless each Financing Party (without duplication of any
indemnification required by subsection (a)) on an After Tax Basis against, any
obligation for United States or foreign withholding taxes or similar levies,
imposts, charges, fees, deductions or withholdings (collectively, “Withholdings”)
imposed in respect of the interest payable on the Notes, Holder Yield payable
on the Certificates or with respect to any other payments under the Operative
Agreements (all such payments being referred to herein as “Exempt Payments”
to be made without deduction, withholding or set off) (and, if any Financing
Party receives a demand for such payment from any taxing authority or a
Withholding is otherwise required with respect to any Exempt Payment, the
Indemnity Provider shall discharge such demand on behalf of such Financing
Party); except that the obligation of the Indemnity Provider under this Section
11.2(e) shall not apply to:


 


(i)            Withholdings on any
Exempt Payment to any Financing Party which is a non-U.S. Person unless such
Financing Party is, on the date hereof (or on the date it becomes a Financing
Party hereunder) and on the date of any change in the principal place of business
or the lending office of such Financing Party, entitled to submit a Form 1001
(relating to such Financing Party and entitling it to a complete exemption from
Withholding on such Exempt Payment) or Form 4224 or is otherwise subject to
exemption from Withholding with respect to such Exempt Payment (except where
the failure of the exemption results from a change in the principal place of
business of the Lessee; unless if a failure of exemption for any Financing
Party results from a change in the principal place of business or lending
office of any other Financing Party, in which case such other Financing Party
shall be liable for any Withholding or indemnity with respect thereto),


 


(ii)           Any U.S. Taxes
imposed solely by reason of the failure by a non-U.S. Person to comply with
applicable certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or connections
with the United States of America of such non-U.S. Person if such compliance is
required by statute or regulation of the United States of America as a
precondition to relief or exemption from such U.S. Taxes; or


 


(iii)          Any foreign
withholding tax unless such withholding tax is imposed as a result in a change
in the jurisdiction under the laws of which Lessee is organized or in which
Lessee maintains its principal place of business to a jurisdiction outside the
United States or otherwise arises from the activities of the Lessee or any
Affiliate of Lessee outside of the United States.


 


For the
purposes of this Section 11.2(e), (A) “U.S. Person” shall mean a
citizen, national or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under any laws of the
United States of America or any State thereof, or any estate or trust that is
subject to Federal


 


41

















 


income
taxation regardless of the source of its income, (B) “U.S. Taxes” shall
mean any present or future tax, assessment or other charge or levy imposed by
or on behalf of the United States of America or any taxing authority thereof or
therein, (C) “Form 1001” shall mean Form 1001 (Ownership, Exemption, or
Reduced Rate Certificate) of the Department of the Treasury of the United
States of America and (D) “Form 4224” shall mean Form 4224(R) (Exemption
from Withholding of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States) of the Department of Treasury of the
United States of America (or in relation to either such Form such successor and
related forms as may from time to time be adopted by the relevant taxing
authorities of the United States of America to document a claim to which such
Form relates).  Each of the Forms
referred to in the foregoing clauses (C) and (D) shall include such successor
and related forms as may from time to time be adopted by the relevant taxing
authorities of the United States of America to document a claim to which such
Form relates.


 


If a Financing Party or an Affiliate with whom such Financing Party
files a consolidated tax return (or equivalent) subsequently receives the
benefit in any country of a tax credit or an allowance resulting from U.S.
Taxes with respect to which it has received a payment of an additional amount
under this Section 11.2(e), such Financing Party will pay to the Indemnity
Provider such part of that benefit as in the opinion of such Financing Party
will leave it (after such payment) in a position no more and no less favorable
than it would have been in if no additional payment had been required to be
paid, provided always that (i) such Financing Party acting in good faith
will be the sole judge of the amount of any such benefit and of the date on
which it is received, (ii) such Financing Party acting in good faith will have
the absolute discretion as to the order and manner in which it employs or
claims tax credits and allowances available to it and (iii) such Financing
Party will not be obliged to disclose to the Indemnity Provider any information
regarding its tax affairs or tax computations.


 


Each non-U.S. Person that shall become a Financing Party after the date
hereof shall, upon the effectiveness of the related transfer or otherwise upon
becoming a Financing Party hereunder, be required to provide all of the forms
and statements referenced above or other evidences of exemption from
Withholdings.


 


(f)            If a written Claim
is made against any Indemnified Person or if any proceeding shall be commenced
against such Indemnified Person (including without limitation a written notice
of such proceeding), for any Impositions, the provisions in Section 11.1
relating to notification and rights to contest shall apply; except that the
Indemnity Provider shall have the right to conduct and control such contest only
if such contest involves a Tax other than a Tax on net income of the
Indemnified Person and can be pursued independently from any other proceeding
involving a Tax liability of such Indemnified Person.


 


11.3.                     Increased
Costs, Illegality, etc.


 


(a)           If, due to either
(i) the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request hereafter
adopted, promulgated or made by any central bank or other governmental
authority (whether or not having the force of law), there shall be any increase
in the cost to any Financing Party of agreeing to make or making, funding or
maintaining Advances, then the Lessee shall from time to time, upon demand by
such Financing Party (with a copy of such demand to the Agent but subject to
the terms of Section 2.11 of the Credit Agreement and 3.9 of the Trust
Agreement, as the case may be), pay to the Agent for the account of such
Financing Party additional amounts sufficient to compensate such Financing Party
for such increased cost.  A certificate
as to the amount of such increased cost, submitted to the Lessee and the Agent
by such Financing Party, shall be conclusive and binding for all purposes,
absent manifest error.


 


(b)           If any Financing
Party determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law, but in each case promulgated or made after the date
hereof) affects or would affect the amount of capital required or expected to
be maintained by such Financing Party or any corporation controlling such
Financing Party and that the amount of such capital is increased by or based
upon the existence of such Financing Party’s commitment to make Advances and
other commitments of this type or upon the


 


42

















 


Advances,
then, upon demand by such Financing Party (with a copy of such demand to the
Agent but subject to the terms of Section 2.11 of the Credit Agreement and
Section 3.9 of the Trust Agreement), the Lessee shall pay to the Agent for the
account of such Financing Party, from time to time as specified by such
Financing Party, additional amounts sufficient to compensate such Financing
Party or such corporation in the light of such circumstances, to the extent
that such Financing Party reasonably determines such increase in capital to be
allocable to the existence of such Financing Party’s commitment to make such
Advances and the Financing Parties are not able to avoid or materially diminish
or mitigate the need for such capital increases through the use of commercially
reasonable efforts.  A certificate as to
such amounts submitted to the Lessee and the Agent by such Financing Party
shall be conclusive and binding for all purposes, absent manifest error.


 


(c)           Without limiting the
effect of the foregoing, the Lessee shall pay to each Financing Party on the
last day of the Interest Period therefor so long as such Financing Party is
maintaining reserves against “Eurocurrency liabilities” under Regulation D an
additional amount (determined by such Financing Party and notified to the
Lessee through the Agent) equal to the product of the following for each
Eurodollar Loan or Eurodollar Holder Advance, as the case may be, for each day
during such Interest Period:


 


(i)            the principal
amount of such Eurodollar Loan or Eurodollar Holder Advance, as the case may
be, outstanding on such day; and


 


(ii)           the remainder of
(x) a fraction the numerator of which is the rate (expressed as a decimal) at
which interest accrues on such Eurodollar Loan or Eurodollar Holder Advance, as
the case may be, for such Interest Period as provided in the Credit Agreement
or the Trust Agreement, as the case may be (less the Applicable Percentage),
and the denominator of which is one (1) minus the effective rate
(expressed as a decimal) at which such reserve requirements are imposed on such
Financing Party on such day minus (y) such numerator; and


 


(iii)          1/360.


 


(d)           Without affecting
its rights under Sections 11.3(a), 11.3(b) or 11.3(c) or any other provision of
any Operative Agreement, each Financing Party agrees that if there is any
increase in any cost to or reduction in any amount receivable by such Financing
Party with respect to which the Lessee would be obligated to compensate such
Financing Party pursuant to Sections 11.3(a) or 11.3(b), such Financing Party
shall use reasonable efforts to select an alternative office for Advances which
would not result in any such increase in any cost to or reduction in any amount
receivable by such Financing Party; provided, however, that no
Financing Party shall be obligated to select an alternative office for Advances
if such Financing Party determines that (i) as a result of such selection such
Financing Party would be in violation of any applicable law, regulation,
treaty, or guideline, or would incur additional costs or expenses or (ii) such
selection would be inadvisable for regulatory reasons or materially
inconsistent with the interests of such Financing Party.


 


(e)           With reference to
the obligations of the Lessee set forth in Sections 11.3(a) through 11.3(d),
the Lessee shall not have any obligation to pay to any Financing Party amounts
owing under such Sections for any period which is more than one hundred twenty
(120) days prior to the date upon which the request for payment therefor is
delivered to the Lessee.


 


(f)            Notwithstanding any
other provision of this Agreement, if any Financing Party shall notify the
Agent that the introduction of or any change in or in the interpretation of any
law or regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Financing Party to perform its
obligations hereunder to make or maintain Eurodollar Loans or Eurodollar Holder
Advances, as the case may be, then (i) each Eurodollar Loan or Eurodollar
Holder Advance, as the case may be, will automatically, at the earlier of the
end of the Interest Period for such Eurodollar Loan or Eurodollar Holder Advance,
as the case may be, or the date required by law, convert into an ABR Loan or an
ABR Holder Advance, as the case may be, and (iii) the obligation of the
Financing Parties to make, convert or continue Eurodollar Loans or Eurodollar
Holder Advances, as the case may be, shall be


 


43

















 


suspended
until the Agent shall notify the Lessee that such Financing Party has
determined that the circumstances causing such suspension no longer exist.


 


11.4.                     Funding/Contribution Indemnity.


 


Subject to the
provisions of Section 2.11(a) of the Credit Agreement and 3.9(a) of the Trust
Agreement, as the case may be, the Lessee agrees to indemnify each Financing
Party and to hold each Financing Party harmless from any loss or reasonable
expense which such Financing Party may sustain or incur as a consequence of (a)
any default by the Lessee or Construction Agent in connection with the drawing
of funds for any Advance, (b) any default by the Lessee or Construction Agent
in making any prepayment after a notice thereof has been given in accordance
with the provisions of the Operative Agreements or (c) the making of a
voluntary or involuntary payment by the Lessee or Construction Agent of Rent
used to pay Eurodollar Loans or Eurodollar Holder Advances, as the case may be,
on a day which is not the last day of an Interest Period with respect
thereto.  Such indemnification shall be
in an amount equal to the excess, if any, of (x) the amount of interest or
Holder Yield, as the case may be, which would have accrued on the amount so
paid, or not so borrowed, accepted, converted or continued for the period from
the date of such payment or of such failure to borrow, accept, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, accept, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable
Eurodollar Rate plus the Applicable Percentage for such Loan or Holder Advance,
as the case may be, for such Interest Period over (y) the amount of interest
(as determined by such Financing Party in its reasonable discretion) which
would have accrued to such Financing Party on such amount by (i) (in the
case of the Lenders) reemploying such funds in loans of the same type and
amount during the period from the date of payment or failure to borrow to the
last day of the then applicable Interest Period (or, in the case of a failure
to borrow, the Interest Period that would have commenced on the date of such
failure) and (ii) (in the case of the Holders) placing such amount on deposit
for a comparable period with leading banks in the relevant interest rate
market.  This covenant shall survive the
termination of the Operative Agreements and the payment of all other amounts
payable hereunder.


 


11.5.                     EXPRESS
INDEMNIFICATION FOR ORDINARY NEGLIGENCE,  

STRICT LIABILITY, ETC.


 


SUBJECT TO AND
LIMITED BY IN ALL RESPECTS THE PROVISIONS OF SECTION 11.6 THROUGH 11.8 AND
WITHOUT LIMITING THE GENERALITY OF THE INDEMNIFICATION PROVISIONS OF ANY AND
ALL OF THE OPERATIVE AGREEMENTS, EACH PERSON PROVIDING INDEMNIFICATION OF
ANOTHER PERSON UNDER ANY OPERATIVE AGREEMENT HEREBY FURTHER EXPRESSLY RELEASES
EACH BENEFICIARY OF ANY SUCH INDEMNIFICATION FROM ALL CLAIMS FOR LOSS OR
DAMAGE, DESCRIBED IN ANY OPERATIVE AGREEMENT, CAUSED BY ANY ACT OR OMISSION ON
THE PART OF ANY SUCH BENEFICIARY ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE
(WHETHER SOLE OR CONTRIBUTORY) OR STRICT LIABILITY OF ANY SUCH BENEFICIARY, AND
INDEMNIFIES, EXONERATES AND HOLDS EACH SUCH BENEFICIARY FREE AND HARMLESS FROM
AND AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, LOSSES,
COSTS, LIABILITIES, DAMAGES AND EXPENSES (INCLUDING WITHOUT LIMITATION
ATTORNEY’S FEES AND EXPENSES), DESCRIBED ABOVE, INCURRED BY ANY SUCH
BENEFICIARY (IRRESPECTIVE OF WHETHER ANY SUCH BENEFICIARY IS A PARTY TO THE
ACTION FOR WHICH INDEMNIFICATION UNDER THIS AGREEMENT OR ANY OTHER OPERATIVE
AGREEMENT IS SOUGHT) ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE (WHETHER SOLE OR
CONTRIBUTORY) OR STRICT LIABILITY OF ANY SUCH BENEFICIARY.


 


11.6.                     Additional Provisions Regarding
Environmental Indemnification.


 


Each and every
Indemnified Person shall at all times have the rights and benefits, and the
Indemnity Provider shall have the obligations, in each case provided pursuant
to the Operative Agreements with respect to environmental matters, violations
of any Environmental Law, any Environmental Claim or other loss of or damage to
any property or the environment relating to any Property, the Lease, the Agency
Agreement or the Indemnity Provider (including without limitation the rights
and benefits provided pursuant to Section 11.1(c).


 


44

















 


11.7.                     Additional Provisions Regarding
Indemnification.


 


Notwithstanding
the provisions of Sections 11.1, 11.2 and 11.5 (other than with respect to
matters concerning environmental indemnification referenced in Section 11.6),
(a) the Owner Trustee shall be the only beneficiary of the provisions set forth
in Sections 11.1, 11.2 and 11.5 (again, subject to the immediately preceding
parenthetical phrase) with respect to each Property solely for the period prior
to the earlier to occur of the applicable Completion Date or Construction
Period Termination Date for such Property, as applicable, and (b) such limited
rights of indemnification referenced in Section 11.7(a) (to the extent relating
to third-party claims) shall be limited to third-party claims caused by or
resulting from the Indemnity Provider’s acts or omissions and/or all other
Persons acting by, through or under the Indemnity Provider.  After the earlier to occur of the applicable
Completion Date or Construction Period Termination Date for such Property, as
applicable, each Indemnified Person shall be a beneficiary of the provisions
set forth in Sections 11.1, 11.2 and 11.5.


 


                                                                                                11.8.       Indemnifications Provided by the
Owner Trustee in Favor of the Other Indemnified Persons.


 


To the extent
the Indemnity Provider is not obligated to indemnify each Indemnified Person
with respect to the various matters described in this Section 11.8, the Owner
Trustee shall provide such indemnities (but only to the extent amounts
sufficient to pay such indemnity are funded by the Lenders and the Holders) in
favor of each Indemnified Person in accordance with this Section 11.8 and shall
pay all such amounts owed with respect to this Section 11.8 (x) to the extent
received with amounts paid by Lessee pursuant to Section 11.1(I) hereof or (y)
to the extent insufficient amounts are available from (x) above, then with
amounts advanced by the Lenders and the Holders (a) to the extent, but only to
the extent, amounts are available therefor with respect to the Available
Commitments and the Available Holder Commitments (subject to the rights of the
Lenders and the Holders to increase their respective commitment amounts in
accordance with the provisions of Section 5.11) and (b) unless each Lender and
each Holder has declined in writing to fund such amount.  Notwithstanding any other provision in any
other Operative Agreement to the contrary, all amounts so advanced shall be
deemed added (ratably, based on the ratio of the Property Cost for each
Property individually to the Aggregate Property Cost of all Properties at such
time) to the Property Cost of all Properties then subject to the terms of the
Operative Agreements.


 


Whether or not
any of the transactions contemplated hereby shall be consummated, the Owner
Trustee hereby assumes liability for and agrees to defend, indemnify and hold
harmless each Indemnified Person on an After Tax Basis from and against any
Claims, which may be imposed on, incurred by or asserted against an Indemnified
Person by any third party, including without limitation Claims arising from the
negligence of an Indemnified Person (but not to the extent such Claims arise
from the gross negligence or willful misconduct of such Indemnified Person or
breach of such Indemnified Person’s obligations under this Agreement, the Lease
or any other Operative Agreement) in any way relating to or arising or alleged
to arise out of the execution, delivery, performance or enforcement of this
Agreement, the Lease or any other Operative Agreement or on or with respect to
any Property or any component thereof, including without limitation Claims in
any way relating to or arising or alleged to arise out of the matters set forth
in Sections 11.1(a) through 11.1(h).


 


The Owner
Trustee shall pay and assume liability for, and does hereby agree to indemnify,
protect and defend each Property and all Indemnified Persons, and hold them
harmless against, all Impositions on an After Tax Basis, and all payments
pursuant to the Operative Agreements shall be made free and clear of and
without deduction for any and all present and future Impositions.  Notwithstanding anything to the contrary in
this paragraph, the Excluded Taxes shall be excluded from the indemnity
provisions afforded by this paragraph.


 


THE INDEMNITY
OBLIGATIONS UNDERTAKEN BY THE OWNER TRUSTEE PURSUANT TO THIS SECTION 11.8 ARE
IN ALL RESPECTS SUBJECT TO THE LIMITATIONS ON LIABILITY REFERENCED IN SECTION
12.9.


 


45

















 


SECTION 12.  MISCELLANEOUS.


 


12.1.                     Survival
of Agreements.


 


The
representations, warranties, covenants, indemnities and agreements of the
parties provided for in the Operative Agreements, and the parties’ obligations
under any and all thereof, shall survive the execution and delivery of this
Agreement, the transfer of any Property to the Owner Trustee, the acquisition
of any Property (or any of its components), the construction of any
Improvements, the Completion of any Property, any disposition of any interest
of the Owner Trustee in any Property or any interest of the Holders in the
Trust Estate, the payment of the Notes and any disposition thereof and shall be
and continue in effect notwithstanding any investigation made by any party and
the fact that any party may waive compliance with any of the other terms,
provisions or conditions of any of the Operative Agreements.  Except as otherwise expressly set forth
herein or in other Operative Agreements, the indemnities of the parties
provided for in the Operative Agreements shall survive the expiration or
termination of any thereof.


 


12.2.                     Notices.


 


All notices
required or permitted to be given under any Operative Agreement shall be in
writing.  Notices may be served by
certified or registered mail, postage paid with return receipt requested; by
private courier, prepaid; by telex, facsimile, or other telecommunication
device capable of transmitting or creating a written record; or
personally.  Mailed notices shall be
deemed delivered five (5) days after mailing, properly addressed.  Couriered notices shall be deemed delivered
when delivered as addressed, or if the addressee refuses delivery, when
presented for delivery notwithstanding such refusal.  Telex or telecommunicated notices shall be deemed delivered when
receipt is either confirmed by confirming transmission equipment or
acknowledged by the addressee or its office. 
Personal delivery shall be effective when accomplished.


 


Unless a party
changes its address by giving notice to the other party as provided herein,
notices shall be delivered to the parties at the addresses set forth on Schedule
12.2 hereof.


 


From time to
time any party may designate additional parties and/or another address for
notice purposes by notice to each of the other parties hereto.  Each notice hereunder shall be effective
upon receipt or refusal thereof.


 


12.3.                     Counterparts.


 


This Agreement
may be executed by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one (1) and the same instrument.


 


12.4.                     Terminations, Amendments,
Waivers, Etc.; Unanimous Vote Matters.


 


Each Basic
Document may be terminated, amended, supplemented, waived or modified only by
an instrument in writing signed by, subject to Article VIII of the Trust
Agreement regarding termination of the Trust Agreement, the Majority Secured
Parties and the Lessee and/or the Construction Agent (to the extent the Lessee
and/or the Construction Agent is a party to such Basic Document); except that
to the extent no Default or Event of Default shall have occurred and be
continuing, the Majority Secured Parties shall not amend, supplement, waive or
modify any provision of any Basic Document in such a manner as to adversely
affect the rights of the Lessee and/or the Construction Agent without the prior
written consent (not to be unreasonably withheld or delayed) of the Lessee
and/or the Construction Agent.  Each
Operative Agreement which is not a Basic Document may be terminated, amended,
supplemented, waived or modified only by an instrument in writing signed by the
parties thereto and (without the consent of any other Financing Party) the
Agent.  In addition, the Unanimous Vote
Matters shall require the consent of each Lender and each Holder affected by
such matter.


 


Notwithstanding
the foregoing, no such termination, amendment, supplement, waiver or modification
shall, without the consent of the Agent and, to the extent affected thereby,
each Lender and each Holder (collectively, the “Unanimous Vote Matters”)
(i) reduce the Lender Commitments and/or the Holder Commitments except as


 


46

















 


otherwise provided in Section
2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement, extend
the scheduled date of maturity of any Note, extend the scheduled Expiration
Date, extend any payment date of any Note or Certificate, reduce the stated
rate of interest payable on any Note, reduce the stated Holder Yield payable on
any Certificate (other than as a result of waiving the applicability of any
post-default increase in interest rates or Holder Yields), modify the priority
of any Lien in favor of the Agent under any Security Document, subordinate any
obligation owed to such Lender or Holder, reduce any Lender Unused Fees or any
Holder Unused Fees payable to such Lender or Holder (as the case may be) under
this Participation Agreement, extend the scheduled date of payment of any
Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder
(as the case may be), fund any Advance referenced in Section 2.1 of the Agency
Agreement in excess of the then current aggregate sum of the Available
Commitments and the Available Holder Commitments, elect to decline the funding
of any Transaction Expense with respect to Sections 7.1(a) or 7.1(b), elect to
decline the funding of any indemnity payment by the Owner Trustee with respect
to Section 11.8 or extend the expiration date of such Lender’s Commitment or
the Holder Commitment of such Holder, or (ii) terminate, amend, supplement,
waive or modify any provision of this Section 12.4 or reduce the percentages
specified in the definitions of Majority Lenders, Majority Holders or Majority
Secured Parties, or consent to the assignment or transfer by the Owner Trustee
of any of its rights and obligations under any Credit Document or release a
material portion of the Collateral (except in accordance with Section 8.8) or
release the Lessee from its obligations under any Operative Agreement or
otherwise alter any payment obligations of the Lessee to the Lessor or any
Financing Party under the Operative Agreements, or (iii) terminate, amend,
supplement, waive or modify any provision of Section 7 of the Credit Agreement
(which shall also require the consent of the Agent), or (iv) eliminate the
automatic option under Section 5.3(b) of the Agency Agreement requiring that
the Construction Agent pay certain liquidated damages in exchange for the
conveyance of a Property to the Construction Agent, or (v) permit the extension
of the Construction Period beyond the date that is thirty (30) months from the
Initial Closing Date.  Any such
termination, amendment, supplement, waiver or modification shall apply equally
to each of the Lenders and the Holders and shall be binding upon all the
parties to this Agreement.  In the case
of any waiver, each party to this Agreement shall be restored to its former
position and rights under the Operative Agreements, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. 
The parties to this Agreement agree that any increase in the Lender
Commitment of any Lender and/or any increase in the Holder Commitment of any
Holder shall be a matter decided by the Majority Secured Parties (which must
include the Lender whose Lender Commitment is so increased or the Holder whose
Holder Commitment is so increased, as the case may be) and not as a Unanimous
Vote Matter.


 


If at a time
when the conditions precedent set forth in the Operative Agreements to any Loan
are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail
to fulfill its obligations to make such Loan (any such Lender, a “Defaulting
Lender”) then, for so long as such failure shall continue, the Defaulting
Lender shall (unless the Lessee and the Majority Lenders, determined as if the
Defaulting Lender were not a “Lender”, shall otherwise consent in writing) be
deemed for all purposes relating to terminations, amendments, supplements,
waivers or modifications under the Operative Agreements to have no Loans, shall
not be treated as a “Lender” when performing the computation of Majority
Lenders or Majority Secured Parties, and shall have no rights under this
Section 12.4; provided that any action taken pursuant to the second
paragraph of this Section 12.4 shall not be effective as against the Defaulting
Lender.


 


If at a time
when the conditions precedent set forth in the Operative Agreements to any
Holder Advance are, in the opinion of the Majority Holders, satisfied, any
Holder shall fail to fulfill its obligations to make such Holder Advance (any
such Holder, a “Defaulting Holder”) then, for so long as such failure
shall continue, the Defaulting Holder shall (unless the Lessee and the Majority
Holders, determined as if the Defaulting Holder were not a “Holder”, shall
otherwise consent in writing) be deemed for all purposes relating to
terminations, amendments, supplements, waivers or modifications under the
Operative Agreements to have no Holder Advances, shall not be treated as a “Holder”
when performing the computation of Majority Holders or Majority Secured
Parties, and shall have no rights under this Section 12.4; provided that
any action taken pursuant to the second paragraph of this Section 12.4 shall
not be effective as against the Defaulting Holder.


 


47

















 


12.5.                     Headings,
etc.


 


The Table of
Contents and headings of the various Articles and Sections of this Agreement
are for convenience of reference only and shall not modify, define, expand or
limit any of the terms or provisions hereof.


 


12.6.                     Parties
in Interest.


 


Except as
expressly provided herein, none of the provisions of this Agreement are
intended for the benefit of any Person except the parties hereto.


 


                                                                                                12.7.       GOVERNING LAW;
SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; VENUE.


 


(a)           THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.  Any legal action or proceeding with respect
to this Agreement or any other Operative Agreement may be brought in the courts
of the State of Texas in Dallas County or of the United States for the Northern
District of Texas, and, by execution and delivery of this Agreement, each of
the parties to this Agreement hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts.  Each of
the parties to this Agreement further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section
12.2, such service to become effective three (3) days after such mailing.  Nothing herein shall affect the right of any
party to serve process in any other manner permitted by Law or to commence
legal proceedings or to otherwise proceed against any party in any other
jurisdiction.


 


(b)           EACH OF THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY, TO THE FULLEST EXTENT ALLOWED BY
APPLICABLE LAW, WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT, ANY OTHER OPERATIVE AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.


 


(c)           Each of the parties
to this Agreement hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Operative Agreement brought in the courts referred to in subsection (a) above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.


 


12.8.                     Severability.


 


Any provision
of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.


 


12.9.                     Liability
Limited.


 


(a)           The Lenders, the
Agent, the Lessee, the Owner Trustee and the Holders each acknowledge and agree
that the Owner Trustee is (except as otherwise expressly provided herein or
therein) entering into this Agreement and the other Operative Agreements to
which it is a party (other than the Trust Agreement and to the extent otherwise
provided in Section 6.1 of this Agreement), solely in its capacity as trustee
under the Trust Agreement and not in its individual capacity and that the Trust
Company shall not be liable or accountable under any circumstances whatsoever
in its individual capacity for or on account of any statements,
representations, warranties, covenants or obligations stated to be those of the
Owner Trustee, 


 


48

















 


except for its
own gross negligence or willful misconduct and as otherwise expressly provided
herein or in the other Operative Agreements.


 


(b)           Anything to the
contrary contained in this Agreement, the Credit Agreement, the Notes or in any
other Operative Agreement notwithstanding, no Exculpated Person shall be
personally liable in any respect for any liability or obligation arising
hereunder or in any other Operative Agreement including without limitation the
payment of the principal of, or interest on, the Notes, or for monetary damages
for the breach of performance of any of the covenants contained in the Credit
Agreement, the Notes, this Agreement, the Security Agreement or any of the
other Operative Agreements.  The
Lenders, the Holders and the Agent agree that, in the event any remedies under
any Operative Agreement are pursued, neither the Lenders, the Holders nor the
Agent shall have any recourse against any Exculpated Person for any deficiency,
loss or Claim for monetary damages or otherwise resulting therefrom and recourse
shall be had solely and exclusively against the Trust Estate (excluding
Excepted Payments) and the Lessee (with respect to the Lessee’s obligations
under the Operative Agreements); but nothing contained herein shall be taken to
prevent recourse against or the enforcement of remedies against the Trust
Estate (excluding Excepted Payments) in respect of any and all liabilities,
obligations and undertakings contained herein and/or in any other Operative
Agreement.  Notwithstanding the
provisions of this Section, nothing in any Operative Agreement shall:  (i) constitute a waiver, release or
discharge of any indebtedness or obligation evidenced by the Notes and/or the
Certificates arising under any Operative Agreement or secured by any Operative
Agreement, but the same shall continue until paid or discharged; (ii) relieve
any Exculpated Person from liability and responsibility for (but only to the
extent of the damages arising by reason of): 
active waste knowingly committed by any Exculpated Person with respect
to any Property, any fraud, gross negligence or willful misconduct on the part
of any Exculpated Person; (iii) relieve any Exculpated Person from liability
and responsibility for (but only to the extent of the moneys misappropriated,
misapplied or not turned over) (A) except for Excepted Payments,
misappropriation or misapplication by the Lessor (i.e., application in a manner
contrary to any of the Operative Agreements) of any insurance proceeds or
condemnation award paid or delivered to the Lessor by any Person other than the
Agent, (B) except for Excepted Payments, any deposits or any escrows or amounts
owed by the Construction Agent under the Agency Agreement held by the Lessor or
(C) except for Excepted Payments, any rent or other income received by the
Lessor from the Lessee that is not turned over to the Agent; or (iv) affect or
in any way limit the Agent’s rights and remedies under any Operative Agreement
with respect to the Rents and rights and powers of the Agent under the
Operative Agreements or to obtain a judgment against the Lessee’s interest in
the Properties or the Agent’s rights and powers to obtain a judgment against
the Lessor (provided, that no deficiency judgment or other money
judgment shall be enforced against any Exculpated Person except to the extent
of the Lessor’s interest in the Trust Estate (excluding Excepted Payments) or
to the extent the Lessor may be liable as otherwise contemplated in clauses
(ii) and (iii) of this Section 12.9(b)).


 


12.10.              Rights of
the Lessee.


 


If at any time
all payment obligations (i) of the Owner Trustee under the Credit Agreement,
the Security Documents and the other Operative Agreements and (ii) of the
Lessee under the Operative Agreements have in each case been satisfied or
discharged in full, then the Lessee shall be entitled to (a) terminate the
Lease and (b) receive all amounts then held under the Operative Agreements and
all proceeds with respect to any of the Properties.  Upon the termination of the Lease pursuant to the foregoing
clause (a), the Lessor shall transfer to the Lessee all of its right, title and
interest in the Properties free and clear of the Lien of the Lease, the Lien of
the Security Documents and all Lessor Liens in and to any Properties then
subject to the Lease and any amounts or proceeds referred to in the foregoing
clause (b) shall be paid over to the Lessee and all Uniform Commercial Code
financing statements filed in connection with the transactions evidenced by the
Operative Agreements shall be terminated.


 


12.11.              Further Assurances.


 


The parties
hereto shall promptly cause to be taken, executed, acknowledged or delivered,
at the sole expense of the Lessee, all such further acts, conveyances,
documents and assurances as the other parties may from time to time reasonably
request in order to carry out and effectuate the intent and purposes of this
Participation Agreement, the other Operative Agreements and the transactions
contemplated hereby and thereby (including


 


49

















 


without limitation the
preparation, execution and filing of any and all Uniform Commercial Code
financing statements, filings of Mortgage Instruments and other filings or
registrations which the parties hereto may from time to time request to be
filed or effected).  The Lessee, at its
own expense and without need of any prior request from any other party, shall
take such action as may be reasonably necessary (including without limitation
any action specified in the preceding sentence), or (if the Owner Trustee shall
so request) as so reasonably requested, in order to maintain and protect all
security interests provided for hereunder or under any other Operative
Agreement.  In addition, in connection
with the sale or other disposition of any Property or any portion thereof, the
Lessee agrees to execute such instruments of conveyance as may be reasonably
required in connection therewith.


 


12.12.              Calculations Under Operative
Agreements.


 


The parties
hereto agree that all calculations and numerical determinations to be made
under the Operative Agreements by the Owner Trustee shall be made by the Agent
and that such calculations and determinations shall be conclusive and binding
on the parties hereto in the absence of manifest error.


 


12.13.              Confidentiality.


 


Each Financing
Party agrees to keep confidential any information furnished or made available
to it by or on behalf of the Lessee or any of its Subsidiaries pursuant to this
Agreement that is marked confidential; provided that nothing herein
shall prevent any Financing Party from disclosing such information (a) to any
other Financing Party or any Affiliate of any Financing Party, or any officer,
director, employee, agent, or advisor of any Financing Party or Affiliate of
any Financing Party if reasonably incidental to the administration of the
facility provided herein, (b) to any other Person if reasonably incidental to
the administration of the facility provided herein, (c) as required by any law,
rule, or regulation, (d) upon the order of any court or administrative agency,
(e) upon the request or demand of any regulatory agency or authority, (f) that
is or becomes available to the public or that is or becomes available to any
Financing Party other than as a result of a disclosure by any Financing Party
prohibited by this Agreement, (g) in connection with any litigation to which
such Financing Party or any of its Affiliates may be a party, (h) to the extent
necessary in connection with the exercise of any remedy under this Agreement or
any other Operative Agreement, and (i) subject to provisions substantially
similar to those contained in this Section, to any actual or proposed
participant or assignee.


 


12.14.              Financial Reporting/Tax
Characterization.


 


The parties
hereto agree that it is their intent that for U.S. federal, state and local tax
purposes that (i) the transactions contemplated by the Operative Agreements
will be treated as a financing pursuant to which each of the Lenders and each
of the Holders will lend money to the Lessee and the Owner Trustee shall not be
deemed to be the borrower and (ii) the Lessee is to be treated as the owner of
the Properties and the sole Person entitled to depreciation deductions with
respect thereto.  Unless otherwise
required by Law, no party shall take any inconsistent position in any tax
return or other governmental filing. 
Lessee further agrees that Lessee shall not rely upon any statement of
any Financing Party or any of their respective Affiliates and/or Subsidiaries
regarding any such financial reporting treatment and/or tax characterization.  Each Financing Party further agrees that it
will not rely on any statement by Lessee or any Affiliate and/or Subsidiary
regarding any financial reporting treatment and/or tax characterization; provided,
however, that such agreement will not affect any indemnity obligation of
the Lessee under the Operative Agreements.


 


12.15.              Set-off.


 


In addition to
any rights now or hereafter granted under applicable Law and not by way of
limitation of any such rights, upon and after the occurrence of any Event of
Default and during the continuance thereof, the Lenders, the Holders, their
respective Affiliates and any assignee or participant of a Lender or a Holder
in accordance with the applicable provisions of the Operative Agreements are
hereby authorized by the Lessee at any time or from time to time (but only to
the extent permitted by applicable Law), without notice to the Lessee or to any
other Person, any such notice being hereby expressly waived, to set-off and to
appropriate and to apply any and all deposits (general or special, time or
demand, including without limitation indebtedness evidenced by certificates of
deposit, whether


 


50

















 


matured or unmatured), and any
other indebtedness at any time held or owing by the Lenders, the Holders, their
respective Affiliates or any assignee or participant of a Lender or a Holder in
accordance with the applicable provisions of the Operative Agreements to or for
the credit or the account of the Lessee against and on account of the
obligations of the Lessee under the Operative Agreements irrespective of
whether or not (a) the Lenders or the Holders shall have made any demand under
any Operative Agreement or (b) the Agent shall have declared any or all of the
obligations of the Lessee under the Operative Agreements to be due and payable
and although such obligations shall be contingent or unmatured.  Notwithstanding the foregoing, neither the
Agent nor any other Financing Party shall exercise, or attempt to exercise, any
right of setoff, banker’s lien, or the like, against any deposit account or
property of the Lessee held by the Agent or any other Financing Party, without
the prior written consent of the Majority Secured Parties, and any Financing
Party violating this provision shall indemnify the Agent and the other
Financing Parties from any and all costs, expenses, liabilities and damages
resulting therefrom.  The contractual
restriction on the exercise of setoff rights provided in the foregoing sentence
is solely for the benefit of the Agent and the Financing Parties and may not be
enforced by the Lessee.


 


12.16.              Delivery
of Documentation.


 


With respect
to any and all of the documentation required to be delivered to the Agent
pursuant to Sections 5.3 or 5.4 of this Agreement or by the Lessee pursuant to
any other Operative Agreement, the Agent shall deliver (subject to the next
sentence) copies of such documentation to any other Financing Party if, and
only if, such other Financing Party requests copies of such documentation by
written notice to the Agent in accordance with Section 12.2.  In addition, the Lessee shall be responsible
for delivery of all such documentation as requested from time to time by the
Agent.


 


12.17.              Reliance by Agent.


 


For purposes
of determining compliance with the conditions specified in Sections 4.1
and 4.2 of the Credit Agreement and in Sections 5.3 and 5.4 of this
Agreement, each Financing Party, upon delivery and release of its signature
pages for any applicable documents or upon release of its funds for any
particular Advance, shall be deemed to have consented to, approved or accepted
or to be satisfied with, each document or other matter either sent by Agent to
such Lender for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to such
Financing Party.


 


12.18.              Usury
Savings Provision.


 


IT IS THE
INTENT OF THE PARTIES HERETO TO CONFORM TO AND CONTRACT IN STRICT COMPLIANCE
WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT.  ANY SUCH PAYMENTS SO CHARACTERIZED AS
INTEREST MAY BE REFERRED TO HEREIN AS “INTEREST.”  ALL AGREEMENTS AMONG THE PARTIES HERETO ARE
HEREBY LIMITED BY THE PROVISIONS OF THIS PARAGRAPH WHICH SHALL OVERRIDE AND
CONTROL ALL SUCH AGREEMENTS, WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER WRITTEN OR ORAL.  IN NO WAY, NOR
IN ANY EVENT OR CONTINGENCY (INCLUDING WITHOUT LIMITATION PREPAYMENT OR
ACCELERATION OF THE MATURITY OF ANY OBLIGATION), SHALL ANY INTEREST TAKEN,
RESERVED, CONTRACTED FOR, CHARGED, OR RECEIVED UNDER THIS AGREEMENT OR
OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER APPLICABLE
LAW.  IF, FROM ANY POSSIBLE CONSTRUCTION
OF ANY OF THE OPERATIVE AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST
WOULD OTHERWISE BE PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY
SUCH CONSTRUCTION SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH
AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED TO
THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW, WITHOUT THE
NECESSITY OF EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT.  IF THE AGENT OR ANY LENDER OR ANY HOLDER
SHALL EVER RECEIVE ANYTHING OF VALUE WHICH IS CHARACTERIZED AS INTEREST WITH
RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR UNDER APPLICABLE LAW AND WHICH
WOULD, APART FROM THIS PROVISION, BE IN EXCESS OF THE MAXIMUM LAWFUL


 


51

















 


AMOUNT, AN AMOUNT EQUAL TO THE
AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE INTEREST SHALL, WITHOUT PENALTY, BE
APPLIED TO THE REDUCTION OF THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL
AND NOT TO THE PAYMENT OF INTEREST, OR REFUNDED TO THE BORROWER OR ANY OTHER
PAYOR THEREOF, IF AND TO THE EXTENT SUCH AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE
EXCEEDS THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL.  THE RIGHT TO DEMAND PAYMENT OF ANY AMOUNTS
EVIDENCED BY ANY OF THE OPERATIVE AGREEMENTS DOES NOT INCLUDE THE RIGHT TO
RECEIVE ANY INTEREST WHICH HAS NOT OTHERWISE ACCRUED ON THE DATE OF SUCH DEMAND,
AND NEITHER THE AGENT NOR ANY LENDER NOR ANY HOLDER INTENDS TO CHARGE OR
RECEIVE ANY UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND.  ALL INTEREST PAID OR AGREED TO BE PAID TO
THE AGENT OR ANY LENDER OR ANY HOLDER SHALL, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BE AMORTIZED, PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED
TERM (INCLUDING WITHOUT LIMITATION ANY RENEWAL OR EXTENSION) OF THIS AGREEMENT
SO THAT THE AMOUNT OF INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE
MAXIMUM NONUSURIOUS AMOUNT PERMITTED BY APPLICABLE LAW.


 


12.19.              ENTIRE AGREEMENT.


 


THIS WRITTEN
AGREEMENT, TOGETHER WITH THE OTHER OPERATIVE AGREEMENTS, REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES REGARDING THE SUBJECT MATTER HEREIN AND THEREIN
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES HERETO. 
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


[signature pages follow]


 


52

















 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first
above written.


 


 


	
  CONSTRUCTION
  AGENT AND LESSEE:

  	
  SABRE INC.,
  as the Construction Agent and as the Lessee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffery
  M. Jackson

  	
   

  
	
   

  	
  Name:

  	
  Jeffery M.
  Jackson

  	
   

  
	
   

  	
  Title:

  	
  Exec. VP,
  CFO

  	
   

  
					



 


 


[signatures pages continue]

















 


	
  OWNER
  TRUSTEE AND LESSOR:

  	
  FIRST
  SECURITY BANK, NATIONAL ASSOCIATION, not individually, except as expressly
  stated herein, but solely as the Owner Trustee under the TSG Trust 1999-1

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Val T.
  Orton

  	
   

  
	
   

  	
  Name:

  	
  Val T. Orton

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


 

















 


	
  AGENT AND
  LENDERS:

  	
  BANK OF
  AMERICA, N.A., as a Lender and as the Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin C.
  Leader

  	
   

  
	
   

  	
  Name:

  	
  Kevin C.
  Leader

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
						



 


 

















 


	
   

  	
  CITIBANK,
  N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philippa
  F. Portnoy

  	
   

  
	
   

  	
  Name:

  	
  Philippa F.
  Portnoy

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
   

  	
  FIRST UNION
  NATIONAL BANK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul L.
  Menconi

  	
   

  
	
   

  	
  Name:

  	
  Paul L.
  Menconi

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


 

















 


	
   

  	
  BANCA
  COMMERCIALE ITALIANA - LOS 

  ANGELES FOREIGN BRANCH, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward
  C. Bermant

  	
   

  
	
   

  	
  Name:

  	
  Edward C.
  Bermant

  	
   

  
	
   

  	
  Title:

  	
  FVP &
  Deputy Manager

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph
  Carlani

  	
   

  
	
   

  	
  Name:

  	
  Joseph Carlani

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
   

  	
  MORGAN
  GUARANTY TRUST COMPANY OF NEW YORK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kathryn
  Sayko-Yanes

  	
   

  
	
   

  	
  Name:

  	
  Kathryn
  Sayko-Yanes

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
   

  	
  SUNTRUST
  BANK, ATLANTA, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Deborah S.
  Armstrong

  	
   

  
	
   

  	
  Name:

  	
  Deborah S.
  Armstrong

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
   

  	
  THE BANK OF
  NEW YORK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald
  R. Reedy

  	
   

  
	
   

  	
  Name:

  	
  Ronald R.
  Reedy

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


 

















 


	
   

  	
  WELLS FARGO
  BANK (TEXAS), N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brent
  Bertino

  	
   

  
	
   

  	
  Name:

  	
  Brent
  Bertino

  	
   

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  	
   

  
						



 


 

















 


	
   

  	
  KBC BANK
  N.V., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  Snauffer

  	
   

  
	
   

  	
  Name:

  	
  Robert
  Snauffer

  	
   

  
	
   

  	
  Title:

  	
  First Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  M. Surdam, Jr.

  	
   

  
	
   

  	
  Name:

  	
  Robert M.
  Surdam, Jr.

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
  HOLDERS:

  	
  BANK OF
  AMERICA, N.A., as a Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin C.
  Leader

  	
   

  
	
   

  	
  Name:

  	
  Kevin C.
  Leader

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
						



 


 

















 


	
   

  	
  CITICORP
  DEL-LEASE INC., as a Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  F. Carr

  	
   

  
	
   

  	
  Name:

  	
  Robert F.
  Carr

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
   

  	
  FIRST UNION
  NATIONAL BANK, as a Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul L.
  Menconi

  	
   

  
	
   

  	
  Name:

  	
  Paul L.
  Menconi

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
   

  	
  BANCA
  COMMERCIALE ITALIANA - LOS 

  ANGELES FOREIGN BRANCH, as a Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward
  C. Bermant

  	
   

  
	
   

  	
  Name:

  	
  Edward C.
  Bermant

  	
   

  
	
   

  	
  Title:

  	
  FVP &
  Deputy Manager

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph
  Carlani

  	
   

  
	
   

  	
  Name:

  	
  Joseph
  Carlani

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
   

  	
  MORGAN
  GUARANTY TRUST COMPANY OF NEW YORK, as a Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kathryn
  Sayko-Yanes

  	
   

  
	
   

  	
  Name:

  	
  Kathryn
  Sayko-Yanes

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
   

  	
  SUNTRUST
  BANK, ATLANTA, as a Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Deborah
  S. Armstrong

  	
   

  
	
   

  	
  Name:

  	
  Deborah S.
  Armstrong

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
   

  	
  THE BANK OF
  NEW YORK, as a Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald
  R. Reedy

  	
   

  
	
   

  	
  Name:

  	
  Ronald R.
  Reedy

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 

















 


	
   

  	
  WELLS FARGO
  BANK (TEXAS), N.A., as a Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brent
  Bertino

  	
   

  
	
   

  	
  Name:

  	
  Brent
  Bertino

  	
   

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  	
   

  
						



 


 


[signatures pages end]


 

















 


Schedule
12.2


 


NOTICES


 


CONSTRUCTION
AGENT/LESSEE:


 


Sabre Inc.


4255 Amon Carter Boulevard


MD 4244


Fort Worth, Texas 76155


Attention: Patricia A. Jones,
Corporate Finance Manager


Telephone: 817-931-9277


Facsimile: 817-967-4911


 


OWNER TRUSTEE:


 


First Security Bank, National
Association


79 South Main Street


3rd Floor


Salt Lake City, Utah  84111


Attention:  Val T. Orton, Vice President


Telephone:  801-246-5300


Facsimile:  801-246-5053


 


AGENT:


 


Notices for
Borrowing, Conversions/Continuations, and Payments:


 


Bank of America, N.A.


Mail Code:  CA4-706-05-09


Agency Administrative Services
#5596


1850 Gateway Boulevard, 5th
Floor


Concord, CA  94520


Attention:  Brian Graybill


Telephone:  925-675-8414


Facsimile:  925-969-2813


 


Other Notices:


 


Bank of America, N.A.


Mail Code:  CA5-705-41-89


Diversified Industries #9994


555 California Street, 41st
Floor


San Francisco, CA  94104


Attention:  Kevin Leader


Telephone:  415-622-8168


Facsimile:  415-622-2385


 


53

















 


Agent’s
Payment Office:


 


Bank of America, N.A.


1850 Gateway Boulevard


Concord, CA  94520


Attention:  Agency Administrative Services #5596


Reference:  The Sabre Group


For credit to FTA Acct. No.
37508-36479


 


HOLDERS


 


Domestic and
Offshore Lending Office:


 


Bank of America, N.A.


1850 Gateway Boulevard, 4th
Floor


Concord, CA  94520


Attention:  Brian Graybill


Telephone:  925-675 - 8414


Facsimile:  925-969-2813


 


Notices (other
than Borrowing Notices and Notices of Conversion/Continuation):


 


Bank of America, N.A.


Mail Code:  CA5-705-41-89


Diversified Industries #9994


555 California Street, 41st
Floor


San Francisco, CA  94104


Attention:  Kevin Leader


Telephone:  415-622-8168


Facsimile:  415-622-4585


 


Credit Contact


 


Citicorp Del-Lease Inc.


450 Mamaroneck Avenue


Harrison, NY 10528


Attention:  Robert F. Carr


Telephone:  914-899-7504


Facsimile:  914-899-7308


 


Operations
Contact


 


Citicorp Del-Lease Inc.


989 E. Hillside Blvd, Ste. 300


Foster City, CA 94044-2401


Attention:  Robert Spratt


Telephone:  650-571-8220


Facsimile:  650-573-5669


 


54

















 


Credit Contact


 


First Union National Bank


301 South College Street,
NC0745


Charlotte, NC 28288


Attention:  Paul Menconi


Telephone:  704-374-7148


Facsimile:   704-383-7236


 


Operations
Contact


 


First Union National Bank


201 South College Street,
NC1183


Charlotte, NC 28288


Attention:  Todd Tucker


Telephone:  704-383-0905


Facsimile:  704-383-7999


 


Credit Contact


 


Banca Commerciale Italiana


One William Street


New York, NY 10004


Attention:  Charles Dougherty, Vice President


Telephone:  212-607-3656


Facsimile:  212-809-2124


 


Operations
Contact


 


Banca Commerciale Italiana


One William Street, 8th Floor


New York, NY 10004


Attention:  Jonathan Sahr


Telephone:  212-607-3814


Facsimile:  212-607-3897


 


Credit Contact


 


Morgan Guaranty Trust Company
of New York


60 Wall Street, 3rd Floor


New York, NY 10260-0060


Attention:  Jonathan Sahr


Telephone:  212-648-1265


Facsimile:  212-648-5018


 


55

















 


Operations
Contact


 


Morgan Guaranty Trust Company
of New York


c/o JP Morgan Services Inc.


500 Stanton Christiana Road


Newark, DE 19713


Attention:  Taihitia Watson


Telephone:  302-634-1961


Facsimile:  302-634-1092


 


Credit Contact


 


SunTrust Bank, Atlanta


303 Peachtree Street


3rd Floor, MC 1929


Atlanta, GA 30308


Attention:  Deborah Armstrong


Telephone:  404-724-3795


Facsimile:  404-827-6270


 


Operations
Contact


 


SunTrust Bank, Atlanta


25 Park Place


21st Floor, MC 1941


Atlanta, GA 30303


Attention:  Michelle Wood


Telephone:  404-230-1939


Facsimile:  404-575-2730


 


Credit Contact


 


The Bank of New York


One Wall Street, 22nd Floor


New York, NY 10286


Attention:  Ronald R. Reedy


Telephone:  212-635-6724


Facsimile:  212-635-6434


 


Operations
Contact


 


The Bank of New York


One Wall Street, 22nd Floor


New York, NY 10286


Attention:  Trudy Hoo-Fong


Phone:    212-635-6734


Fax:         212-635-6877


 


56

















 


Credit Contact


 


Wells Fargo Bank


1445 Ross Avenue, 3rd Floor


Dallas, TX 75202


Attention:  Brent Bertino


Telephone:  214-740-1557


Facsimile:  214-969-0370


 


Operations
Contact


 


Wells Fargo Bank


201 3rd Street, 8th Floor


San Francisco, CA 94103


Attention:  Evelyn Lucas


Telephone:  415-477-5426


Facsimile:  415-979-0675


 


LENDERS


 


Domestic and
Offshore Lending Office:


 


Bank of America, N.A.


1850 Gateway Boulevard, 4th
Floor


Concord, CA  94520


Attention:  Brian Graybill


Telephone:  925-675-8414


Facsimile:  925-969-2813


 


Notices (other
than Borrowing Notices and Notices of Conversion/Continuation):


 


Bank of America, N.A.


Mail Code:  CA5-705-41-89


Diversified Industries #9994


555 California Street, 41st
Floor


San Francisco, CA  94104


Attention:  Kevin Leader


Telephone:  415-622-8168


Facsimile:  415-622-4585


 


57

















 


Credit Contact


 


Citibank, N.A.


399 Park Avenue


12th Floor/Zone Z


New York, New York  10043


Attention:  Art Deffaa


Managing Director


Telephone:  212-559-1725


Facsimile:  212-793-3734


 


Operations
Contact


 


Citibank, N.A.


Global Loan Administration


2 Penns Way


Suite 200


New Castle, DE  19720


Attention:  Timothy E. Smith


Telephone:  302-894-6059


Facsimile:  302-894-6122


 


Credit Contact


 


First Union National Bank


301 South College Street,
NC0745


Charlotte, NC 28288


Attention:  Paul Menconi


Telephone:  704-374-7148


Facsimile:   704-383-7236


 


Operations
Contact


 


First Union National Bank


201 South College Street,
NC1183


Charlotte, NC 28288


Attention:  Todd Tucker


Telephone:  704-383-0905


Facsimile:  704-383-7999


 


Credit Contact


 


Banca Commerciale Italiana


One William Street


New York, NY 10004


Attention:  Charles Dougherty, Vice President


Telephone:  212-607-3656


Facsimile:  212-809-2124


 


58

















 


Operations
Contact


 


Banca Commerciale Italiana


One William Street, 8th Floor


New York, NY 10004


Attention:  Jonathan Sahr


Telephone:  212-607-3814


Facsimile:  212-607-3897


 


Credit Contact


 


Morgan Guaranty Trust Company
of New York


60 Wall Street, 3rd Floor


New York, NY 10260-0060


Attention:  Jonathan Sahr


Telephone:  212-648-1265


Facsimile:  212-648-5018


 


Operations Contact


 


Morgan Guaranty Trust Company
of New York


c/o JP Morgan Services Inc.


500 Stanton Christiana Road


Newark, DE 19713


Attention:  Taihitia Watson


Telephone:  302-634-1961


Facsimile:  302-634-1092


 


Credit Contact


 


SunTrust Bank, Atlanta


303 Peachtree Street


3rd Floor, MC 1929


Atlanta, GA 30308


Attention:  Deborah Armstrong


Telephone:  404-724-3795


Facsimile:  404-827-6270


 


Operations
Contact


 


SunTrust Bank, Atlanta


25 Park Place


21st Floor, MC 1941


Atlanta, GA 30303


Attention:  Michelle Wood


Telephone:  404-230-1939


Facsimile:  404-575-2730


 


59

















 


Credit Contact


 


The Bank of New York


One Wall Street, 22nd Floor


New York, NY 10286


Attention:  Ronald R. Reedy


Telephone:  212-635-6724


Facsimile:  212-635-6434


 


Operations
Contact


 


The Bank of New York


One Wall Street, 22nd Floor


New York, NY 10286


Attention:  Trudy Hoo-Fong


Phone:    212-635-6734


Fax:         212-635-6877


 


Credit Contact


 


Wells Fargo Bank


1445 Ross Avenue, 3rd Floor


Dallas, TX 75202


Attention:  Brent Bertino


Telephone:  214-740-1557


Facsimile:  214-969-0370


 


Operations
Contact


 


Wells Fargo Bank


201 3rd Street, 8th Floor


San Francisco, CA 94103


Attention:  Evelyn Lucas


Telephone:  415-477-5426


Facsimile:  415-979-0675


 


Credit Contact


 


KBC Bank N.V.


1349 West Peachtree Street


Suite 1750


Atlanta, GA 30309


Attention:  Filip Ferrante


Telephone:  404-876-2556


Facsimile:  404-876-3212


 


60

















 


Operations
Contact


 


KBC Bank N.V.


125 West 55th Street


New York, NY 10019


Attention:  Loan Administration


Telephone:  212-541-0657


Facsimile:  212-956-5581


 


 


61

















 


EXHIBIT A


 


 


REQUISITION FORM


(Pursuant to Sections
4.2, 5.2, 5.3 and 5.4 of the Participation Agreement)


 


SABRE INC., a
Delaware corporation (the “Company”), hereby certifies as true and
correct and delivers the following Requisition to Bank of America, N.A., as the
agent for the Lenders (hereinafter defined) and respecting the Security
Documents, as the agent for the Lenders and the Holders (hereinafter defined),
to the extent of their interests (the “Agent”):


 


Reference is
made herein to that certain Participation Agreement dated as of September 14, 1999
(as amended, modified, extended, supplemented, restated and/or replaced from
time to time, the “Participation Agreement”) among the Company, in its
capacity as the Lessee and as the Construction Agent, First Security Bank,
National Association, as the Owner Trustee, the various banks and other lending
institutions which are parties thereto from time to time, as holders (the “Holders”),
the various banks and other lending institutions which are parties thereto from
time to time, as lenders (the “Lenders”), and the Agent.  Capitalized terms used herein but not
otherwise defined herein shall have the meanings set forth therefor in the
Participation Agreement.


 


Check one (if both the Initial
Closing Date and a Property Closing Date, check both):


 


INITIAL
CLOSING DATE: 


(three (3)
Business Days prior notice required for Advance)


 


PROPERTY
CLOSING DATE:


(three (3)
Business Days prior notice required for Advance)


 


CONSTRUCTION
ADVANCE DATE:


(three (3)
Business Days prior notice required for Advance)


 


1.               Transaction
Expenses and other fees, expenses and disbursements under Sections 7.1(a),
7.1(b) and 7.2 of the Participation Agreement and any and all other amounts
contemplated to be financed under the Participation Agreement including without
limitation any Work, broker’s fees, taxes, recording fees and the like (with
supporting invoices or closing statement attached as agreed between the Company
and the Agent):


 


	
  Party to
  Whom

  Amount is Owed

  	
   

  	
  Amount
  Owed

  (in U.S. Dollars)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


2.               Description
of Land (which shall be a legal description of the Land in connection with an
Advance to pay Property Acquisition Costs): See attached Schedule 1


 


3.               Description
of Improvements:  See attached Schedule
2


 


4.               Description
of Equipment:  See attached Schedule
3


 


5.               Description
of Work:  See attached Schedule 4


 


6.             Aggregate
Loans and Holder Advances requested since the Initial Closing Date with respect
to each Property for which Advances are requested under this Requisition
(listed on a Property by Property basis), including 


 


A-1

















 


without
limitation all amounts requested under this Requisition and street address of
each Property:

[identify
on a Property by Property basis]


 


	
  $

  	
  [Property]

  



 


In connection
with this Requisition, the Company hereby requests that the Lenders make Loans
to the Lessor in the amount of
$                               and that the Holders make Holder Advances to
the Lessor in the amount of
$                             
..  The Company hereby certifies (i) that
the foregoing amounts requested do not exceed the total aggregate of the
Available Commitments plus the Available Holder Commitments and (ii) each of
the provisions of the Participation Agreement applicable to the Loans and
Holder Advances requested hereunder have been complied with as of the date of
this Requisition.


 


The Company
requests the Loans be allocated as follows:


 


	
  $

  	
  ABR Loans

  
	
   

  	
   

  
	
  $

  	
  Eurodollar
  Loans

  



 


The Company
requests the Holder Advances be allocated as follows:


 


	
  $

  	
  ABR Holder
  Advances

  
	
   

  	
   

  
	
  $

  	
  Eurodollar
  Holder Advances

  



 


The Company
has caused this Requisition to the executed by its duly authorized officer as
of this
             day
of
                     ,
                .


 


	
   

  	
  SABRE INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


A-2

















 


Schedule 1


 


Description of Land


(Legal Description and Street Address)


 


A-3

















 


Schedule 2


 


Description of Improvements


 


A-4

















 


Schedule 3


 


Description of Equipment


 


	
  General
  Description

  	
   

  	
  Make

  	
   

  	
  Model

  	
   

  	
  Serial
  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-5

















 


Schedule 4


 


Work


 


 


Work Performed for which the Advance is requested:


 


 


 


 


A-6

















 


EXHIBIT B


 


[Outside Counsel Opinion for the Lessee]


(Pursuant to Section 5.3(j)
of the


Participation Agreement)


 


                  ,
         


 


TO THOSE ON THE ATTACHED
DISTRIBUTION LIST


 


Re:          Synthetic Lease Financing Provided in
favor of Sabre Inc.


 


Dear Sirs:


 


We have acted as special
counsel to [IF CREDIT SUPPORT FROM A PARTY OTHER THAN THE LESSEE IS PART OF THE
TRANSACTION, THIS OPINION MUST BE MODIFIED TO REFERENCE SUCH PARTY AND THE
DOCUMENTS TO WHICH IT IS A PARTY], Sabre Inc., a Delaware
corporation (the “Lessee”) in connection with certain transactions
contemplated by the Participation Agreement dated as of September 14, 1999 (the
“Participation Agreement”), among the Lessee, First Security Bank,
National Association, as the Owner Trustee (the “Owner Trustee”), the
various banks and other lending institutions which are parties thereto from
time to time, as holders (the “Holders”), the various banks and other
lending institutions which are parties thereto from time to time, as lenders
(the “Lenders”), and Bank of America, N.A., as the agent for the Lenders
and respecting the Security Documents, as the agent for the Lenders and the
Holders, to the extent of their interests (the “Agent”).  This opinion is delivered pursuant to
Section 5.3(j) of the Participation Agreement. 
All capitalized terms used herein, and not otherwise defined herein,
shall have the meanings assigned thereto in Appendix A to the Participation
Agreement.


 


In connection with the
foregoing, we have examined originals, or copies certified to our satisfaction,
of [identify
the applicable Operative Agreements, including each Mortgage Instrument,
related UCC fixture filings, Additional UCCs (hereinafter defined), Deeds and
Memoranda of Lease] and such other corporate documents and records
of the Lessee, certificates of public officials and representatives of the
Lessee as to certain factual matters, and such other instruments and documents
which we have deemed necessary or advisable to examine for the purpose of this
opinion.  With respect to such
examination, we have assumed (i) the statements of fact made in all such
certificates, documents and instruments are true, accurate and complete; (ii)
the due authorization, execution and delivery of the Operative Agreements by
the parties thereto; (iii) the genuineness of all signatures, the authenticity
and completeness of all documents, certificates, instruments, records and
corporate records submitted to us as originals and the conformity to the
original instruments of all documents submitted to us as copies, and the
authenticity and completeness of the originals of such copies; (iv) that all
parties have all requisite corporate power and authority to execute, deliver
and perform the Operative Agreements; and (v) except as to the Lessee, the
enforceability of the Mortgage Instrument, the Memorandum of Lease and the UCC
financing statements against all parties thereto.


 


Based on the foregoing, and
having due regard for such legal considerations as we deem relevant, and
subject to the limitations and assumptions set forth herein, including without
limitation the matters set forth in the last two (2) paragraphs hereof, we are
of the opinion that:


 


(a)           The Mortgage Instrument and
Memorandum of Lease are enforceable in accordance with their respective terms,
except as limited by laws generally affecting the enforcement of creditors’
rights, which laws will not materially prevent the realization of the benefits
intended by such documents.


 


(b)           Each form of Mortgage Instrument  and
UCC fixture filing  relating thereto, attached hereto as Schedules
1 and 2, respectively, is in proper form for filing and recording with the
offices of [identify the recording 


 


B-1

















 


offices of the respective county clerks where
the Properties are to be located].  Upon filing of each Mortgage Instrument and
UCC fixture filing in [identify the recording offices of the respective
county clerks where the Properties are to be located], the Agent
will have a valid, perfected lien and security interest in that portion of the
Collateral described in such Mortgage Instrument or UCC fixture filing to the
extent such Collateral is comprised of real property and/or fixtures.


 


(c)           The forms of UCC financing statements
relating to the Security Documents, attached hereto as Schedule 3 (the “Additional
UCCs”), are in proper form for filing and recording with the offices of [identify
(i) the recording offices of the respective county clerks where the Properties
are to be located and (ii) the Secretary of State where the Properties are to
be located].  Upon filing of
the Additional UCCs in [identify (i) the recording offices of the respective
county clerks where the Properties are to be located and (ii) the Secretary of
State where the Properties are to be located], the Agent will have a
valid, perfected lien and security interest in that portion of the Collateral
which can be perfected by filing UCC-1 financing statements under Article 9 of
the UCC.


 


(d)           Each form of Deed and Memorandum of
Lease is in appropriate form for filing and recording with the [identify
the recording offices of the respective county clerks for the counties where
the Properties are to be located].


 


(e)           Each Memorandum of Lease, when filed
and recorded with the [identify the recording offices of the respective
county clerks for the counties where the Properties are to be located],
will have been filed and recorded in all public offices in the State of
[                       ]
in which filing or recording is necessary to provide constructive notice of the
Lease to third Persons and to establish of record the interest of the Lessor
thereunder as to the Properties described in each such Memorandum of Lease.


 


(f)            Title to the Properties located in
the State of
[                       ]
may be held in the name of the Owner Trustee as follows:  First Security Bank, National Association,
not individually, but solely as the Owner Trustee under the TSG Trust 1999-1.


 


(g)           The execution and delivery by First
Security Bank, National Association, individually or as the Owner Trustee, as
the case may be, of the Operative Agreements to which it is a party and
compliance by First Security Bank, National Association, individually or as the
Owner Trustee, with all of the provisions thereof do not and will not contravene
any law, rule or regulation of [identify the state].


 


(h)           By reason of their participation in
the transaction contemplated under the Operative Agreements, none of the Agent,
the Lenders, the Holders or the Owner Trustee has to (a) qualify as a foreign
corporation in [identify the state], (b) file any application or any
designation for service of process in [identify the state] or (c) pay any
franchise, income, sales, excise, stamp or other taxes of any kind to [identify
the state].


 


(i)            The provisions in the Operative
Agreements concerning Rent, interest, fees, prepayment premiums and other
similar charges do not violate the usury laws or other similar laws regulating
the use or forbearance of money of [identify the state].


 


(j)            If the transactions contemplated by
the Operative Agreements are characterized as a lease transaction by a court of
competent jurisdiction, the Lease and the applicable Lease Supplement shall
demise to the Lessee a valid leasehold interest in the Properties described in
such Lease Supplement.


 


(k)           If the transactions contemplated by
the Operative Agreements are characterized as a loan transaction by a court of
competent jurisdiction, the combination of the Mortgage Instruments, the Deeds,
the Lease and the applicable Lease Supplements (and the other Operative
Agreements incorporated therein by reference) are sufficient to create a valid,
perfected lien or security interest in the Properties therein described,
enforceable as a mortgage in [identify the state].


 


B-2

















 


This opinion is limited to the
matters stated herein and no opinion is implied or may be inferred beyond the
matters stated herein.  This opinion is
based on and is limited to the laws of the State of [                       ]
and the federal laws of the United States of America.  Insofar as the foregoing opinion relates to matters of law other
than the foregoing, no opinion is hereby given.


 


This opinion is for the sole
benefit of the Lessee, the Construction Agent, the Owner Trustee, the Holders,
the Lenders, the Agent and their respective successors and assigns and may not
be relied upon by any other person other than such parties and their respective
successors and assigns without the express written consent of the undersigned.  The opinions expressed herein are as of the
date hereof and we make no undertaking to amend or supplement such opinions if
facts come to our attention or changes in the current law of the jurisdictions
mentioned herein occur which could affect such opinions.


 


	
   

  	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [LESSEE’S OUTSIDE COUNSEL]

  



 


B-3

















 


Distribution List


 


Bank of America, N.A., as the
Agent, a Holder and a Lender


 


The various banks and other
lending institutions which are parties to the Participation Agreement from time
to time, as additional Holders


 


The various banks and other
lending institutions which are parties to the Participation Agreement from time
to time, as additional Lenders


 


Sabre Inc., as the Construction
Agent and the Lessee


 


First Security Bank, National
Association, not individually, but solely as the Owner Trustee under the TSG
Trust

1999-1


 


B-4

















 


Schedule 1


 


Form of Mortgage Instrument


 


B-5

















 


Schedule 2


 


Forms of UCC Fixture Filings


 


B-6

















 


Schedule 3


 


Forms of UCC Financing Statements


 


B-7

















 


EXHIBIT C


 


SABRE INC.


 


OFFICER’S CERTIFICATE


(Pursuant to Section
5.3(z) of the Participation Agreement)


 


SABRE INC., a
Delaware corporation (the “Company”), DOES HEREBY CERTIFY as follows:


 


1.                                       Each
and every representation and warranty of the Company contained in the Operative
Agreements to which it is a party is true and correct on and as of the date
hereof.


 


2.                                       No
Default or Event of Default with respect to the Company has occurred and is
continuing under any Operative Agreement.


 


3.                                       Each
Operative Agreement to which the Company is a party is in full force and effect
with respect to it.


 


4.                                       The
Company has duly performed and complied with all covenants, agreements and
conditions contained in the Participation Agreement (hereinafter defined) or in
any other Operative Agreement to which it is a party required to be performed
or complied with by it on or prior to the date hereof.


 


Capitalized terms used in this
Officer’s Certificate and not otherwise defined herein have the respective
meanings ascribed thereto in the Participation Agreement dated as of September
14,  1999
among the Company, as the Lessee and as the Construction Agent, First Security
Bank, National Association, as the Owner Trustee, the various banks and other
lending institutions which are parties thereto from time to time, as holders
(the “Holders”), the various banks and other lending institutions which
are parties thereto from time to time, as lenders (the “Lenders”), and
Bank of America, N.A., as the agent for the Lenders and respecting the Security
Documents, as the agent for the Lenders and the Holders, to the extent of their
interests (the “Agent”).


 


IN WITNESS WHEREOF, the Company
has caused this Officer’s Certificate to be duly executed and delivered as of
this
               day
of                      ,
                  .


 


	
   

  	
  SABRE INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


C-1

















 


EXHIBIT D


 


SABRE INC.


 


SECRETARY’S CERTIFICATE


(Pursuant to Section
5.3(aa) of the Participation Agreement)


 


SABRE INC., a
Delaware corporation (the “Company”), DOES HEREBY CERTIFY as follows:


 


1.                                       Attached
hereto as Schedule 1 is a true, correct and complete copy of the
resolutions of the Board of Directors of the Company duly adopted by the Board
of Directors of the Company on
                   ,
1999.  Such resolutions have not been
amended, modified or rescinded since their date of adoption and remain in full
force and effect as of the date hereof.


 


2.                                       Attached
hereto as Schedule 2 is a true, correct and complete copy of the
Certificate of Incorporation of the Company on file in the Office of the
Secretary of State of Delaware.  Such
Certificate of Incorporation has not been amended, modified or rescinded since
its date of adoption except as shown and remains in full force and effect as of
the date hereof.


 


3.                                       Attached
hereto as Schedule 3 is a true, correct and complete copy of the Bylaws
of the Company.  Such Bylaws have not
been amended, modified or rescinded since their date of adoption, except as
shown and remain in full force and effect as of the date hereof.


 


4.                                       The
persons named below now hold the offices set forth opposite their names, and
the signatures opposite their names and titles are their true and correct
signatures.


 


	
  Name

  	
   

  	
  Office

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


IN WITNESS WHEREOF, the Company
has caused this Secretary’s Certificate to be duly executed and delivered as of
this           day of
                    ,
1999.


 


	
   

  	
  SABRE INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


D-1

















 


Schedule 1


 


Board Resolutions


 


D-2

















 


Schedule 2


 


Articles of Incorporation


 


D-3

















 


Schedule 3


 


Bylaws


 


D-4

















 


EXHIBIT E


 


FIRST SECURITY BANK, NATIONAL ASSOCIATION


 


OFFICER’S CERTIFICATE


(Pursuant to Section
5.3(bb) of the Participation Agreement)


 


FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not individually (except with
respect to paragraph 1 below, to the extent any such representations and
warranties are made in its individual capacity) but solely as the owner trustee
under the TSG Trust 1999-1 (the “Owner Trustee”), DOES HEREBY CERTIFY as
follows:


 


1.                                       Each
and every representation and warranty of the Owner Trustee contained in the
Operative Agreements to which it is a party is true and correct on and as of
the date hereof.


 


2.                                       Each
Operative Agreement to which the Owner Trustee is a party is in full force and
effect with respect to it.


 


3.                                       The
Owner Trustee has duly performed and complied with all covenants, agreements
and conditions contained in the Participation Agreement (hereinafter defined)
or in any other Operative Agreement to which it is a party required to be
performed or complied with by it on or prior to the date hereof.


 


Capitalized terms used in this
Officer’s Certificate and not otherwise defined herein have the respective
meanings ascribed thereto in the Participation Agreement dated as of September
14, 1999
among Sabre Inc., as the Lessee and as the Construction Agent, the Owner
Trustee, the various banks and other lending institutions which are parties
thereto from time to time, as holders (the “Holders”), the various banks
and other lending institutions which are parties thereto from time to time, as
lenders (the “Lenders”), and Bank of America, N.A., as the agent for the
Lenders and respecting the Security Documents, as the agent for the Lenders and
the Holders, to the extent of their interests (the “Agent”).


 


IN WITNESS WHEREOF, the Owner
Trustee has caused this Officer’s Certificate to be duly executed and delivered
as of this          day of
                        ,
1999.


 


	
   

  	
  FIRST
  SECURITY BANK, NATIONAL ASSOCIATION, 

  not individually, except as expressly stated herein, but solely as the Owner
  Trustee under the TSG Trust 1999-1

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


E-1

















 


EXHIBIT F


 


FIRST SECURITY BANK, NATIONAL ASSOCIATION


 


SECRETARY’S CERTIFICATE


(Pursuant to Section
5.3(cc) of the Participation Agreement)


 


CERTIFICATE OF
ASSISTANT SECRETARY


 


I,
                            ,
duly elected and qualified Assistant Secretary of the Board of Directors of
First Security Bank, National Association (the “Association”), hereby certify
as follows:


 


1.             The Association is a National
Banking Association duly organized, validly existing and in good standing under
the laws of the United States.  With
respect thereto the following is noted:


 


A.                                   Pursuant
to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., the
Comptroller of the Currency charters and exercises regulatory and supervisory
authority over all National Banking Associations;


 


B.                                     On
December 9, 1881, the First National Bank of Ogden, Utah was chartered as a
National Banking Association under the laws of the United States and under
Charter No. 2597;


 


C.                                     On
October 2, 1922, in connection with a consolidation of The First National Bank
of Ogden, Ogden, Utah, and The Utah National Bank of Ogden, Ogden, Utah, the
title was changed to “The First & Utah National Bank of Ogden”; on January
18, 1923, The First & Utah National Bank of Ogden changed its title to
“First Utah National Bank of Ogden”; on January 19, 1926, the title was changed
to “First National Bank of Ogden”; on February 24, 1934, the title was changed
to “First Security Bank of Utah, National Association”; on June 21, 1996, the
title was changed to “First Security Bank, National Association”; and


 


D.                                    First
Security Bank, National Association, continues to hold a valid certificate to
do business as a National Banking Association.


 


2.             The Association’s Articles of
Association, as amended, are in full force and effect, and a true, correct and
complete copy is attached hereto as Schedule A and incorporated herein
by reference.  Said Articles were last
amended October 20, 1975, as required by law on notice at a duly called special
meeting of the shareholders of the Association.


 


3.             The Association’s By-Laws, as
amended, are in full force and effect; and a true, correct and complete copy is
attached hereto as Schedule B and incorporated herein by reference.  Said By-Laws, still in full force and
effect, were adopted September 17, 1942, by resolution, after proper notice of
consideration and adoption of By-Laws was given to each and every shareholder,
at a regularly called meeting of the Board of Directors with a quorum present.


 


4.             Pursuant to the authority vested in
it by an Act of Congress approved December 23, 1913 and known as the Federal
Reserve Act, as amended, the Federal Reserve Board (now the Board of Governors
of the Federal Reserve System) has granted to the Association now known as
“First Security Bank, National Association” of Ogden, Utah, the right to act,
when not in contravention of State or local law, as trustee, executor,
administrator, registrar of stocks and bonds, guardian of estates, assignee,
receiver, committee of estates of lunatics, or in any other fiduciary capacity
in which State banks, trust companies or other corporations which come into
competition with 


 


F-1

















 


National Banks are permitted to
act under the laws of the State of Utah; and under the provisions of applicable
law, the authority so granted remains in full force and effect.


 


5.             Pursuant to authority vested by Act
of Congress (12 U.S.C. 92a and 12 U.S.C. 481, as amended) the Comptroller of
the Currency has issued Regulation 9, as amended, dealing, in part, with the
Fiduciary Powers of National Banks, said regulation providing in subparagraph
9.7 (a) (1-2):


 


(1)                                  The
board of directors is responsible for the proper exercise of fiduciary powers
by the Bank.  All matters pertinent
thereto, including the determination of policies, the investment and
disposition of property held in fiduciary capacity, and the direction and
review of the actions of all officers, employees, and committees utilized by
the Bank in the exercise of its fiduciary powers, are the responsibility of the
board.  In discharging this responsibility,
the board of directors may assign, by action duly entered in the minutes, the
administration of such of the Bank’s fiduciary powers as it may consider proper
to assign to such director(s), officer(s), employee(s) or committee(s) as it
may designate.


 


(2)                                  No
fiduciary account shall be accepted without the prior approval of the board, or
of the director(s), officer(s), or committee(s) to whom the board may have
designated the performance of that responsibility. . . .


 


6.             A Resolution relating to Exercise
of Fiduciary Powers was adopted by the Board of Directors of the Association at
a meeting held July 26, 1994 at which time there was a quorum present; said
resolution is still in full force and effect and has not been rescinded.  Said resolution is attached hereto as Schedule
C and incorporated herein by reference.


 


7.             A Resolution relating to the
Designation of Officers and Employees to Exercise Fiduciary Powers was adopted
by the Trust Policy Committee of the Association at a meeting held February 7,
1996 at which time a quorum was present; said resolution is still in full force
and effect and has not been rescinded. 
Said resolution is attached hereto as Schedule D and is
incorporated herein by reference.


 


8.             Attached hereto as Schedule E
and incorporated herein by reference, is a listing of facsimile signatures of
persons authorized (herein “Authorized Signatory” or “Signatories”)
on behalf of the Association and its Trust Group to act in exercise of its
fiduciary powers subject to the resolutions in Paragraphs 6 and 7 above.


 


9.             The principal office of the First
Security Bank, National Association, Trust Group and of its departments, except
for the St. George, Utah, Ogden, Utah, and Provo, Utah branch offices, is
located at 79 South Main Street, Salt Lake City, Utah 84111 and all records
relating to fiduciary accounts are located at such principal office of the
Trust Group or in storage facilities within Salt Lake County, Utah, except for
those of the Ogden, Utah, St. George, Utah, and Provo, Utah branch offices,
which are located at said offices.


 


10.           Each Authorized Signatory (i) is a
duly elected or appointed, duly qualified officer or employee of the
Association; (ii) holds the office or job title set forth below his or her name
on the date hereof; (iii) and the facsimile signature appearing opposite the
name of each such officer or employee is a true replica of his or her
signature.


 


F-2

















 


IN WITNESS WHEREOF, I have
hereunto set my hand and affixed the seal of the Association this
                    day
of
                         ,  1999.


 


 


(SEAL)


 


	
   

  	
   

  
	
   

  	
  R. James
  Steenblik

  Senior Vice President

  Assistant Secretary

  



 


F-3

















 


Schedule A


 


Articles of Association


 


F-4

















 


Schedule B


 


Bylaws


 


F-5

















 


Schedule C


 


Resolution Relating to

Exercise of Fiduciary Powers


 


F-6

















 


Schedule D


 


Resolution Relating to the

Designation of Officers and Employees

To Exercise Fiduciary Powers


 


F-7

















 


Schedule E


 


Authorized Signatory or Signatories


 


F-8

















 


EXHIBIT G


 


[Outside Counsel Opinion for the Owner Trustee]


(Pursuant to Section
5.3(dd) of the


Participation Agreement)


 


                  ,
        


 


TO THOSE ON THE ATTACHED
DISTRIBUTION LIST


 


Re:          Trust Agreement dated as of September
14, 1999


 


Dear Sirs:


 


We have acted
as special counsel for First Security Bank, National Association, a national
banking association, in its individual capacity (“FSB”) and in its
capacity as trustee (the “Owner Trustee”) under the Trust Agreement
dated as of September 14, 1999 (the “Trust Agreement”) by
and among it and the various banks and other lending institutions which are
parties thereto from time to time, as holders (the “Holders”), in
connection with the execution and delivery by the Owner Trustee of the
Operative Agreements to which it is a party. 
Except as otherwise defined herein, the terms used herein shall have the
meanings set forth in Appendix A to the Participation Agreement dated as of
September 14, 1999 (the “Participation Agreement”) by and among
Sabre Inc. (the “Lessee”), First Security Bank, National Association, as
the Owner Trustee, the Holders, the various banks and other lending
institutions which are parties thereto from time to time, as lenders (the “Lenders”),
and Bank of America, N.A., as the agent for the Lenders and respecting the
Security Documents, as the agent for the Lenders and the Holders, to the extent
of their interests (the “Agent”).


 


We have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records and other instruments as we
have deemed necessary or advisable for the purpose of rendering this opinion.


 


Based upon the foregoing, we
are of the opinion that:


 


1.             FSB is a national banking
association duly organized, validly existing and in good standing under the
laws of the United States of America and each of FSB and the Owner Trustee has
under the laws of the State of Utah and federal banking law the power and
authority to enter into and perform its obligations under the Trust Agreement
and each other Operative Agreement to which it is a party.


 


2.             The Owner Trustee is the duly
appointed trustee under the Trust Agreement.


 


3.             The Trust Agreement has been duly
authorized, executed and delivered by one (1) of the officers of FSB and,
assuming due authorization, execution and delivery by the Holders, is a legal,
valid and binding obligation of the Owner Trustee (and to the extent set forth
therein, against FSB), enforceable against the Owner Trustee (and to the extent
set forth therein, against FSB) in accordance with its terms, and the Trust
Agreement creates under the laws of the State of Utah for the Holders the
beneficial interest in the Trust Estate it purports to create and is a valid
trust under the laws of the State of Utah.


 


4.             The Operative Agreements to which
it is party have been duly authorized, executed and delivered by FSB, and,
assuming due authorization, execution and delivery by the other parties
thereto, are legal, valid and binding obligations of FSB, enforceable against
FSB in accordance with their respective terms.


 


5.             The Operative Agreements to which
it is party have been duly authorized, executed and delivered by the Owner
Trustee, and, assuming due authorization, execution and delivery by the other
parties thereto, are legal, valid and binding obligations of the Owner Trustee,
enforceable against the Owner Trustee in accordance with their 


 


G-1

















 


respective terms.  The Notes and Certificates have been duly
issued, executed and delivered by the Owner Trustee, pursuant to authorization
contained in the Trust Agreement, and the Certificates are entitled to the
benefits and security afforded by the Trust Agreement in accordance with its
terms and the terms of the Trust Agreement.


 


6.             The execution and delivery by each
of FSB and the Owner Trustee of the Trust Agreement and the Operative
Agreements to which it is a party, and compliance by FSB or the Owner Trustee,
as the case may be, with all of the provisions thereof do not and will not
contravene any Laws applicable to or binding on FSB, or as the Owner Trustee,
or contravene the provisions of, or constitute a default under, its charter
documents or by-laws or, to our knowledge after due inquiry, any indenture,
mortgage contract or other agreement or instrument to which FSB or Owner
Trustee is a party or by which it or any of its property may be bound or
affected.


 


7.             The execution and delivery of the
Operative Agreements by each of FSB and the Owner Trustee and the performance
by each of FSB and the Owner Trustee of their respective obligations thereunder
does not require on or prior to the date hereof the consent or approval of, the
giving of notice to, the registration or filing with, or the taking of any
action in respect of any Governmental Authority or any court.


 


8.             Assuming that the trust created by
the Trust Agreement is treated as a grantor trust for federal income tax
purposes within the contemplation of Section 671 through 678 of the Internal
Revenue Code of 1986, there are no fees, taxes, or other charges (except taxes
imposed on fees payable to the Owner Trustee) payable to the State of Utah or
any political subdivision thereof in connection with the execution, delivery or
performance by the Owner Trustee, the Agent, the Lenders, the Lessee or the
Holders, as the case may be, of the Operative Agreements or in connection with
the acquisition of any Property by the Owner Trustee or in connection with the
making by any Holder of its investment in the Trust or its acquisition of the
beneficial interest in the Trust Estate or in connection with the issuance and
acquisition of the Certificates, or the Notes, and neither the Owner Trustee,
the Trust Estate nor the trust created by the Trust Agreement will be subject
to any fee, tax or other governmental charge (except taxes on fees payable to
the Owner Trustee) under the laws of the State of Utah or any political
subdivision thereof on, based on or measured by, directly or indirectly, the
gross receipts, net income or value of the Trust Estate by reason of the
creation or continued existence of the trust under the terms of the Trust
Agreement pursuant to the laws of the State of Utah or the Owner Trustee’s
performance of its duties under the Trust Agreement.


 


9.             There is no fee, tax or other
governmental charge under the laws of the State of Utah or any political
subdivision thereof in existence on the date hereof on, based on or measured by
any payments under the Certificates, Notes or the beneficial interest in the
Trust Estate, by reason of the creation of the trust under the Trust Agreement
pursuant to the laws of the State of Utah or the Owner Trustee’s performance of
its duties under the Trust Agreement within the State of Utah.


 


10.           Upon the filing of the financing
statement on form UCC-1 in the form attached hereto as Schedule 1 with
the Utah Division of Corporation and Commercial Code, the Agent’s security
interest in the Trust Estate, for the benefit of the Lenders and the Holders,
will be perfected, to the extent that such perfection is governed by Article 9
of the Uniform Commercial Code as in effect in the State of Utah (the “Utah
UCC”).


 


Your attention
is directed to the Utah UCC, which provides, in part, that a filed financing
statement which does not state a maturity date or which states a maturity date
of more than five (5) years is effective only for a period of five (5) years
from the date of filing, unless within six (6) months prior to the expiration
of said period a continuation statement is filed in the same office or offices
in which the original statement was filed. 
The continuation statement must be signed by the secured party, identify
the original statement by file number and state that the original statement is
still effective.  Upon the timely filing
of a continuation statement, the effectiveness of the original financing
statement is continued for five (5) years after the last date to which the
original statement was effective. 
Succeeding continuation statements may be filed in the same manner to
continue the effectiveness of the original statement.


 


The foregoing opinions are
subject to the following assumptions, exceptions and qualifications:


 


A.            We are attorneys admitted to
practice in the State of Utah and in rendering the foregoing opinions we have
not passed upon, or purported to pass upon, the laws of any jurisdictions other
than the State of Utah and the 


 


G-2

















 


federal banking law governing
the banking and trust powers of FSB.  In
addition, without limiting the foregoing we express no opinion with respect to
(i) federal securities laws, including the Securities Act of 1933, as amended,
the Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended, (iii) the
Federal Communications Act of 1934, as amended, or (iv) state securities or
blue sky laws.  Insofar as the foregoing
opinions relate to the legality, validity, binding effect and enforceability of
the documents involved in these transactions, which by their terms are governed
by the laws of a state other than Utah, we have assumed that the laws of such
state (as to which we express no opinion), are in all material aspects
identical to the laws of the State of Utah.


 


B.            The opinions set forth in paragraphs
3, 4, and 5 above are subject to the qualification that enforceability of the
Trust Agreement and the other Operative Agreements to which FSB and the Owner
Trustee are parties, in accordance with their respective terms, may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium, receivership or
similar laws affecting enforcement of creditors’ rights generally, and (ii)
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.


 


C.            As to the documents involved in
these transactions, we have assumed that each is a legal, valid and binding
obligation of each party thereto, other than FSB or the Owner Trustee, and is
enforceable against each such party in accordance with their respective terms.


 


D.            We have assumed that all signatures,
other than those of the Owner Trustee or FSB, on documents and instruments
involved in these transactions are genuine, that all documents and instruments
submitted to us as originals are authentic, and that all documents and
instruments submitted to us as copies conform with the originals, which facts
we have not independently verified.


 


E.             We do not purport to be experts in
respect of, or express any opinion concerning laws, rules or regulations
applicable to the particular nature of the equipment or property involved in
these transactions.


 


F.             We have made no investigation of,
and we express no opinion concerning, the nature of the title to any part of
the equipment or property involved in these transactions or the priority of any
mortgage or security interest.


 


G.            We have assumed that the
Participation Agreement and the transactions contemplated thereby are not
within the prohibitions of Section 406 of the Employee Retirement Income
Security Act of 1974.


 


H.            In addition to any other limitation
by operation of law upon the scope, meaning, or purpose of this opinion, the
opinions expressed herein speak only as of the date hereof.  We have no obligation to advise the recipients
of this opinion (or any third party) and make no undertaking to amend or
supplement such opinions if facts come to our attention or changes in the
current law of the jurisdictions mentioned herein occur which could affect such
opinions the legal analysis, a legal conclusion or any information confirmation
herein.


 


I.              This opinion is for the sole
benefit of the Lessee, the Construction Agent, the Owner Trustee, the Holders,
the Lenders, the Agent and their respective successors and assigns in matters
directly related to the Participation Agreement or the transaction contemplated
thereunder and may not be relied upon by any other person other than such
parties and their respective successors and assigns without the express written
consent of the undersigned.  The
opinions expressed in this letter are limited to the matter set forth in this
letter, and no other opinions should be inferred beyond the matters expressly
stated.


 


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  RAY, QUINNEY
  & NEBEKER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  M. John
  Ashton

  



 


G-3

















 


Distribution List


 


Bank of America, N.A., as the
Agent, a Holder and a Lender


 


The various banks and other
lending institutions which are parties to the Participation Agreement from time
to time, as additional Holders


 


The various banks and other
lending institutions which are parties to the Participation Agreement from time
to time, as additional Lenders


 


Sabre Inc., as the Construction
Agent and the Lessee


 


First Security Bank, National
Association, not individually, but solely as the Owner Trustee under the TSG
Trust 1999-1


 


G-4

















 


Schedule 1


 


Form of UCC-1 to be Filed in Owner Trustee’s Principal Place of
Business


 


G-5

















 


EXHIBIT H


 


[Outside Counsel Opinion for the Lessee]


(Pursuant to Section
5.3(ee) of the Participation Agreement)


 


                 ,
      


 


TO THOSE ON THE ATTACHED
DISTRIBUTION LIST


 


Re:          Synthetic Lease Financing Provided in
favor of Sabre Inc.


 


Dear Sirs:


 


We have acted as special
counsel to [IF CREDIT SUPPORT FROM A PARTY OTHER THAN THE LESSEE IS PART OF THE
TRANSACTION, THIS OPINION MUST BE MODIFIED TO REFERENCE SUCH PARTY AND THE
DOCUMENTS TO WHICH IT IS A PARTY], Sabre Inc., a Delaware
corporation (the “Lessee”) in connection with certain transactions
contemplated by the Participation Agreement dated as of September 14, 1999
(the “Participation Agreement”), among the Lessee, First Security Bank,
National Association, as the Owner Trustee (the “Owner Trustee”), the
various banks and other lending institutions which are parties thereto from
time to time, as holders (the “Holders”), the various banks and other
lending institutions which are parties thereto from time to time, as lenders
(the “Lenders”), and Bank of America, N.A., as the agent for the Lenders
and respecting the Security Documents, as the agent for the Lenders and the
Holders, to the extent of their interests (the “Agent”).  This opinion is delivered pursuant to
Section 5.3(ee) of the Participation Agreement.  All capitalized terms used herein, and not otherwise defined
herein, shall have the meanings assigned thereto in Appendix A to the
Participation Agreement.


 


In connection with the
foregoing, we have examined originals, or copies certified to our satisfaction,
of the Operative Agreements, and such other corporate, partnership or limited
liability company documents and records of the Lessee, certificates of public
officials and representatives of the Lessee as to certain factual matters, and
such other instruments and documents which we have deemed necessary or
advisable to examine for the purpose of this opinion.  With respect to such examination, we have assumed (i) the
statements of fact made in all such certificates, documents and instruments are
true, accurate and complete; (ii) the due authorization, execution and delivery
of the Operative Agreements by the parties thereto other than the Lessee; (iii)
the genuineness of all signatures (other than the signatures of persons signing
on behalf of the Lessee), the authenticity and completeness of all documents,
certificates, instruments, records and corporate records submitted to us as
originals and the conformity to the original instruments of all documents
submitted to us as copies, and the authenticity and completeness of the
originals of such copies; (iv) that all parties other than the Lessee have all
requisite corporate power and authority to execute, deliver and perform the
Operative Agreements; and (v) the enforceability of the Operative Agreements against
all parties thereto other than the Lessee and respecting the opinion set forth
below in section (i), First Security Bank, National Association, individually
or as the Owner Trustee, as the case may be. 
We have further assumed that the laws of the States of [state of
lawyer’s admission] and [governing law of Participation Agreement]
are substantively identical.


 


Based on the foregoing, and
having due regard for such legal considerations as we deem relevant, and
subject to the limitations and assumptions set forth herein, including without
limitation the matters set forth in the last two (2) paragraphs hereof, we are
of the opinion that:


 


(a)           The Lessee is a [corporation, partnership or limited
liability company] duly [incorporated or organized], validly existing
and in good standing under the laws of
[                     ]
and has the power and authority to conduct its business as presently conducted
and to execute, deliver and perform its obligations under the Operative
Agreements to which it is a party.  The
Lessee is duly qualified to do business in all jurisdictions in which its
failure


 


H-1

















 


to so qualify would materially
impair its ability to perform its obligations under the Operative Agreements to
which it is a party or its financial position or its business as now and now
proposed to be conducted.


 


(b)           The execution, delivery and
performance by the Lessee of the Operative Agreements to which it is a party
have been duly authorized by all necessary corporate action on the part of the
Lessee and the Operative Agreements to which the Lessee is a party have been
duly executed and delivered by the Lessee.


 


(c)           The Operative Agreements to which the
Lessee is a party constitute valid and binding obligations of the Lessee
enforceable against the Lessee in accordance with the terms thereof, subject to
bankruptcy, insolvency, liquidation, reorganization, fraudulent conveyance, and
similar laws affecting creditors’ rights generally, and general principles of equity
(regardless of whether the application of such principles is considered in a
proceeding in equity or at law).


 


(d)           The execution and delivery by the
Lessee of the Operative Agreements to which it is a party and compliance by the
Lessee with all of the provisions thereof do not and will not
(i) contravene the provisions of, or result in any breach of or constitute
any default under, or result in the creation of any Lien (other than Permitted
Liens and Lessor Liens) upon any of its property under, its [Articles of
Incorporation, By-Laws, operating agreement, partnership agreement or other
similar document of formation] or any indenture, mortgage, chattel
mortgage, deed of trust, lease, conditional sales contract, bank loan or credit
agreement or other agreement or instrument to which the Lessee is a party or by
which it or any of its property may be bound or affected, or (ii) contravene
any Laws or any order of any Governmental Authority applicable to or binding on
the Lessee.


 


(e)           No Governmental Action by, and no
notice to or filing with, any Governmental Authority is required for the due
execution, delivery or performance by the Lessee of any of the Operative
Agreements to which it is a party or for the acquisition, ownership,
construction and completion of the Properties, except for those which have been
obtained.


 


(f)            Except as set forth on Schedule 1
hereto, there are no actions, suits or proceedings pending or to our knowledge,
threatened against the Lessee in any court or before any Governmental Authority,
that concern the Properties or the Lessee’s interest therein or that question
the validity or enforceability of any Operative Agreement to which the Lessee
is a party or the overall transaction described in the Operative Agreements to
which the Lessee is a party.


 


(g)           Neither the nature of the Properties,
nor any relationship between the Lessee and any other Person, nor any
circumstance in connection with the execution, delivery and performance of the
Operative Agreements to which the Lessee is a party is such as to require any
approval of stockholders of, or approval or consent of any trustee or holders
of indebtedness of, the Lessee, except for such approvals and consents which
have been duly obtained and are in full force and effect.


 


(h)           The Security Documents which have
been executed and delivered as of the date of this opinion create, for the
benefit of the Agent, the security interests in the Collateral described
therein which by their terms such Security Documents purport to create.  Upon filing of the UCC-1 financing
statements (attached hereto as Schedule 2) relating to the Security
Documents in the recording offices of (A) the respective county clerk where the
principal place of business of the Lessee is located and (B) the Secretary of
State where the principal place of business of the Lessee is located, the Agent
will have a valid, perfected lien and security interest in that portion of the
Collateral which can be perfected by the filing of UCC-1 financing statements
under Article 9 of the UCC in [identify the state].


 


(i)            The Operative Agreements to which
First Security Bank, National Association, individually or as the Owner
Trustee, is a party constitute valid and binding obligations of such party and
are enforceable against First Security Bank, National Association, individually
or as the Owner Trustee, as the case may be, in accordance with the terms
thereof, subject to bankruptcy, insolvency, liquidation, reorganization,
fraudulent conveyance, and similar laws affecting creditors, rights generally,
and general principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).


 


H-2

















 


(j)            The offer, issuance, sale and
delivery of the Notes and the offer, issuance, sale and delivery of the
Certificates under the circumstances contemplated by the Participation
Agreement do not, under existing law, require registration of the Notes or the
Certificates being issued on the date hereof under the Securities Act of 1933,
as amended, or the qualification of the Loan Agreement under the Trust
Indenture Act of 1939, as amended.


 


This opinion is limited to the
matters stated herein and no opinion is implied or may be inferred beyond the
matters stated herein.  This opinion is
based on and is limited to the laws of the States of
[                     ],
and the federal laws of the United States of America.  Insofar as the foregoing opinion relates to matters of law other
than the foregoing, no opinion is hereby given.


 


This opinion is for the sole
benefit of the Lessee, the Construction Agent, the Owner Trustee, the Holders,
the Lenders, the Agent and their respective successors and assigns and may not
be relied upon by any other person other than such parties and their respective
successors and assigns without the express written consent of the
undersigned.  The opinions expressed
herein are as of the date hereof and we 
make no undertaking to amend or supplement such opinions if facts come
to our attention or changes in the current law of the jurisdictions mentioned
herein occur which could affect such opinions.


 


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  [LESSEE’S OUTSIDE COUNSEL]

  



 


H-3

















 


Distribution List


 


Bank of America, N.A., as the
Agent, a Holder and a Lender


 


The various banks and other
lending institutions which are parties to the Participation Agreement from time
to time, as additional Holders


 


The various banks and other
lending institutions which are parties to the Participation Agreement from time
to time, as additional Lenders


 


Sabre Inc., as the Construction
Agent and the Lessee


 


First Security Bank, National
Association, not individually, but solely as the Owner Trustee under the TSG
Trust 1999-1


 


H-4

















 


Schedule 1


 


(Litigation)


 


H-5

















 


Schedule 2


 


(UCC-1 Financing Statements)


 


H-6

















 


EXHIBIT I


 


OFFICER’S CERTIFICATE


(Pursuant to Section
5.5 of the Participation Agreement)


 


SABRE INC., a
Delaware corporation (the “Company”) DOES HEREBY CERTIFY as follows:


 


1.                                       The
address for the subject Property is
                                                       


                                                                                  .


2.                                       The
Completion Date for the construction of Improvements at the Property occurred
on
                             .


 


3.                                       The
aggregate Property Cost for the Property was
$                             .


 


4.                                       Attached
hereto as Schedule 1 is the detailed, itemized documentation supporting
the asserted Property Cost figures.


 


5.                                       All
representations and warranties of the Company in each Operative Agreement and
in each certificate delivered pursuant thereto are true and correct as of the
Completion Date.


 


Capitalized terms used in this
Officer’s Certificate and not otherwise defined have the respective meanings
ascribed thereto in the Participation Agreement dated as of September 14, 1999
among the Company, as the Lessee and as the Construction Agent, First Security
Bank, National Association, as the Owner Trustee, the various banks and other
lending institutions which are parties thereto from time to time, as holders
(the “Holders”), the various banks and other lending institutions which
are parties thereto from time to time, as lenders (the “Lenders”), and
Bank of America, N.A., as the agent for the Lenders and respecting the Security
Documents, as the agent for the Lenders and the Holders, to the extent of their
interests.


 


[The remainder of this page has been intentionally left blank.]


 


I-1

















 


IN WITNESS WHEREOF, the Company
has caused this Officer’s Certificate to be duly executed and delivered as of
this
              
day of
                            ,
              .


 


	
   

  	
  SABRE INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


I-2

















 


Schedule I


 


(Itemized Documentation in Support of Asserted Property Cost)


 


I-3

















 


EXHIBIT J


 


[Description of Material Litigation]


(Pursuant to Section
6.2(d) of the Participation Agreement)


 


Below is the legal proceedings
section from Sabre Holdings Corporation’s most recent SEC Form 10-Q filing,
which describes the material litigation in which Sabre Inc. is involved:


 


BOOKING FEE DISPUTES


 


In June 1996, American Trans
Air, Inc. (“ATA”) filed a lawsuit against American in the U.S. District Court
for the Southern District of Indiana, Indianapolis Division, seeking a refund
of over $400,000 in booking fees charged by The Sabre Group.  In the Reorganization, the Company became
the successor in interest to American in the case. Since June 1996, ATA has
withheld payment of approximately $250,000 in Sabre system booking fees.  On August 12, 1998, the District Court
granted the Company’s motion as to the definition of a “booking” and the
validity of the charges under the participation agreement.  In January 1999, the Company filed additional
motions seeking to dismiss the remaining issues in the case, which involve
interpretation of the U.S. Department of Transportation’s CRS regulations.  In August 1999, the parties reached a
settlement in principle of all claims.


 


WORLDSPAN DISPUTE


 


On January 9, 1998, Worldspan
LP (“Worldspan”), the former provider of computer reservation system services
to ABACUS International Holdings (“ABACUS”), filed a lawsuit against the
Company in the United States District Court for the Northern District of Georgia,
Atlanta Division, seeking damages and an injunction, and alleging, among other
things, that the Company interfered with Worldspan’s relationship with ABACUS,
violated the U.S. antitrust laws, and misappropriated Worldspan’s confidential
information.  The same day, Worldspan
filed a parallel lawsuit in the same court against ABACUS. On February 26,
1998, the court denied Worldspan’s motion for a preliminary injunction against
ABACUS.  Thereafter, the court stayed the
ABACUS case pending arbitration between ABACUS and Worldspan.  The arbitration concluded on May 20,
1999.  The Arbitration Tribunal has not
yet issued a ruling in the matter. 
Discovery continues in the case between Worldspan and the Company.  The Company believes that Worldspan’s claims
are without merit and is vigorously defending itself.  No trial date has been set.


 


INDIA TAX ISSUE


 


The tax authority in India
recently asserted that the Company has a taxable presence in India arising from
the Company’s relationship with its Indian distributor.  In March 1999, the Company received a $30
million USD tax assessment (including interest) for the two years ending March
31, 1998.  The Company is challenging
the assessment on the grounds that it does not have a taxable presence in India
and, even if it does, the assessment is based on incorrect data.  The United States government has intervened
on behalf of the Company (and other U.S. companies currently facing similar
tax-related issues with the Indian government).  Pursuant to that process, the Indian tax authority has stayed
efforts to collect the assessment from the Company.  The Company has also appealed the validity and amount of the
assessment within the Indian tax authority. 
The Company believes that the position of the Indian 


 


J-1

















 


government is without merit and
that it will ultimately prevail either through the U.S.-India tax dispute
procedures or on its direct appeal.


 


J-2

















 


EXHIBIT K


 


Form of Officer’s Compliance Certificate


 


This
Certificate is delivered in accordance with the provisions of Section
8.3A(a)(iii) of that Participation Agreement dated as of September 14,
1999 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time, the “Participation Agreement”) among Sabre Inc., a
Delaware corporation, as the Lessee and as the Construction Agent, First
Security Bank, National Association, as the Owner Trustee, the various banks
and other lending institutions which are parties thereto from time to time, as
holders, the various banks and other lending institutions which are parties
thereto from time to time, as lenders, and the Agent.  Capitalized terms used herein but not otherwise defined herein
shall have the meanings set forth therefor in the Participation Agreement.


 


The
undersigned, being a Responsible Officer of Lessee hereby certifies, in my
official capacity and not in my individual capacity, that to the best of my
knowledge and belief:


 


(a)           the financial statements accompanying
this Certificate fairly present the financial condition of the parties covered
by such financial statements in all material respects;


 


(b)           during the period covered by such
financial statements, Lessee observed or performed all of its covenants and
other agreements in all material respects, and satisfied in all material
respects every material condition, contained in the Operative Agreements to be
observed, performed or satisfied by it;


 


(c)           no Default or Event of Default exists
with respect to the Lessee;


 


(d)           accompanying this Certificate are
calculations which determine both the Consolidated Leverage Ratio and the
Consolidated Tangible Net Worth (as required pursuant to Section 8.3A(j)  of
the Participation Agreement) and which demonstrate compliance with such
financial covenants as set forth in Section 8.3A(j) of the Participation
Agreement accompany this Certificate;


 


(e)           to the extent Parent has a debt
rating from S&P and/or Moody’s, the Debt Rating of Parent by S&P and/or
Moody’s, as applicable; and


 


(f)            no Subsidiaries of the Lessee have
contracted, created, incurred, assumed or permitted to exist any Indebtedness
in the aggregate in excess of ten percent (10%) of the Consolidated Gross
Revenues of Parent and its Consolidated Subsidiaries for the immediately
preceding twelve month period based on GAAP.


 


This the
                                       
day of      
                            ,
              .


 


	
   

  	
  SABRE INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


K-1

















 


Attachment to Officer’s Certificate


 


Computation of Financial Covenants/Credit Rating by S&P and Moody’s


 


K-2

















 


Appendix A


Rules of Usage and Definitions


 


I.  Rules of Usage


 


The following rules of usage
shall apply to this Appendix A and the Operative Agreements (and each appendix,
schedule, exhibit and annex to the foregoing) unless otherwise required by the
context or unless otherwise defined therein:


 


(a)           Except as otherwise expressly
provided, any definitions set forth herein or in any other document shall be
equally applicable to the singular and plural forms of the terms defined.


 


(b)           Except as otherwise expressly
provided, references in any document to articles, sections, paragraphs,
clauses, annexes, appendices, schedules or exhibits are references to articles,
sections, paragraphs, clauses, annexes, appendices, schedules or exhibits in or
to such document.


 


(c)           The headings, subheadings and table
of contents used in any document are solely for convenience of reference and
shall not constitute a part of any such document nor shall they affect the
meaning, construction or effect of any provision thereof.


 


(d)           References to any Person shall
include such Person, its successors, permitted assigns and permitted
transferees.


 


(e)           Except as otherwise expressly
provided, reference to any agreement means such agreement as amended, modified,
extended, supplemented, restated and/or replaced from time to time in
accordance with the applicable provisions thereof.


 


(f)            Except as otherwise expressly
provided, references to any law includes any amendment or modification to such
law and any rules or regulations issued thereunder or any law enacted in
substitution or replacement therefor.


 


(g)           When used in any document, words such
as “hereunder”, “hereto”, “hereof” and “herein” and other words of like import
shall, unless the context clearly indicates to the contrary, refer to the whole
of the applicable document and not to any particular article, section,
subsection, paragraph or clause thereof.


 


(h)           References to “including” means
including without limiting the generality of any description preceding such
term and for purposes hereof the rule of ejusdem generis shall not be
applicable to limit a general statement, followed by or referable to an
enumeration of specific matters, to matters similar to those specifically
mentioned.


 


(i)            References herein to “attorney’s
fees”, “legal fees”, “costs of counsel” or other such references shall be
deemed to mean reasonable fees and costs and to include (except with respect to
Section 7.3(c) of the Participation Agreement) the allocated cost of in-house
counsel.


 


(j)            Each of the parties to the Operative
Agreements and their counsel have reviewed and revised, or requested revisions
to, the Operative Agreements, and the usual rule of construction that any
ambiguities are to be resolved against the drafting party shall be inapplicable
in the construction and interpretation of the Operative Agreements and any amendments
or exhibits thereto.


 

















 


(k)           Capitalized terms used in any
Operative Agreements which are not defined in this Appendix A but are
defined in another Operative Agreement shall have the meaning so ascribed to
such term in the applicable Operative Agreement.


 


(l)            In each Operative Agreement, unless
expressly otherwise provided, accounting terms shall be construed and
interpreted, and accounting determinations and computations shall be made, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for changes agreed to by the Lessee’s independent public
accountants) with the most recent audited consolidated financial statements of
the Lessee and its Subsidiaries; except that if any change in generally
accepted accounting principles occurring after June 30, 1999 in itself
materially affects the calculation or definition of Consolidated EBITDA,
Consolidated Net Income, Consolidated Net Worth, Consolidated Tangible Net
Worth or Funded Debt, the Lessee may, by notice to the Agent, or the Agent (at
the request of the Majority Secured Parties) may by notice to the Lessee,
require that Consolidated EBITDA, Consolidated Net Income, Consolidate Net
Worth, Consolidated Tangible Net Worth or Funded Debt, as the case may be, thereafter
be calculated in accordance with generally accepted accounting principles as in
effect and applied by the Parent immediately before such change in generally
accepted accounting principles occurs. 
If such notice is given, the Compliance Certificate delivered pursuant
to the Participation Agreement after such change occurs shall be accompanied by
reconciliations of the difference between the calculation set forth herein and
a calculation made in accordance with generally accepted accounting principles as
in effect from time to time after such change occurs.


 


(m)          If there is any conflict between any
Operative Agreements, each such Operative Agreement shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) such conflict cannot be avoided, the
Participation Agreement shall prevail and control.


 


(n)           Except with respect to Section
8.3A(i), any reference in any Operative Agreements to consolidated financial
statements, consolidated balance sheets or consolidated income statements of
Lessee or Parent and its Subsidiaries or Consolidated Subsidiaries shall be
deemed to mean the consolidated financial statements, consolidated balance
sheet or consolidated income statement of Parent and its Consolidated
Subsidiaries.


 


(o)           References to “Borrower”, “Lessor”,
“Owner Trustee” and “Trust Company” each refer to First Security Bank, National
Association, but in different capacities, and reference to “Lessee” and “Construction Agent” each refer to Sabre
Inc., but in different capacities.


 


II.  Definitions


 


“Abandonment”
shall mean, regarding any Construction Period Property, the cessation of
construction and development of such Construction Period Property for a period
of thirty (30) days or more for reasons other than a Force Majeure Event.


 


“ABR” shall
mean, for any day, a rate per annum equal to the greater of (a) the Prime
Lending Rate in effect on such day, and (b) the Federal Funds Effective Rate in
effect on such day plus one-half of one percent (0.5%).  For purposes hereof:  “Prime Lending Rate” shall mean the
rate which Bank of America, N.A. announces from time to time as its prime
lending rate as in effect from time to time. 
The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer.  Any Lender may make commercial loans or
other loans at rates of interest at, above or below the Prime Lending Rate.  The Prime Lending Rate shall change
automatically and without notice from time to time as and when the prime
lending rate of Bank of America, N.A. changes. 
“Federal Funds Effective Rate” shall mean, for any period, a
fluctuating interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published for such day (or, if such day is not a Business Day, for 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 such day on such transactions received by the Agent from
three (3) Federal funds brokers of recognized standing selected by it.  Any change in the ABR due to a change in the
Prime Lending Rate or the Federal 


 


A-2

















 


Funds Effective Rate shall be
effective as of the opening of business on the effective day of such change in
the Prime Lending Rate or the Federal Funds Effective Rate, respectively.


 


“ABR Holder
Advance” shall mean a Holder Advance bearing a Holder Yield based on the ABR.


 


“ABR Loans”
shall mean Loans the rate of interest applicable to which is based upon the
ABR.


 


“Acceleration”
shall have the meaning given to such term in Section 6 of the Credit Agreement.


 


“Accounts”
shall have the meaning given to such term in Section 1(a) of the Security
Agreement.


 


“Acquisition
Advance” shall have the meaning given to such term in Section 5.3 of the
Participation Agreement.


 


“Acquisition
Loan” shall mean any Loan made in connection with an Acquisition Advance.


 


“Advance”
shall mean a Construction Advance or an Acquisition Advance.


 


“Affiliate”
shall mean, with respect to any Person, any Person or group acting in concert
in respect of the Person in question that, directly or indirectly, controls or
is controlled by or is under common control with such Person.  For purposes of this definition, “control”
of a Person means the power, directly or indirectly, either to (a) vote 10% or
more of the equity interests having ordinary voting power for the election of
directors of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise (but not solely
by being an officer or director of that Person).


 


“After Tax
Basis” shall mean, with respect to any payment to be received, the amount of
such payment increased so that, after deduction from such payment of the amount
of all taxes required to be paid by the recipient calculated at the then
maximum marginal rates generally applicable to Persons of the same type as the
recipients with respect to the receipt by the recipient of such amounts (less
any tax savings realized as a result of the payment of the amount), such
increased payment (as so reduced) is equal to the payment otherwise required to
be made.


 


“Agency
Agreement” shall mean the Agency Agreement, dated on or about the Initial
Closing Date between the Construction Agent and the Lessor.


 


“Agency
Agreement Event of Default” shall mean an “Event of Default” as defined in
Section 5.1 of the Agency Agreement.


 


“Agent” shall
mean Bank of America, N.A., as agent for the Lenders pursuant to the Credit
Agreement, or any successor agent appointed in accordance with the terms of the
Credit Agreement and respecting the Security Documents, for the Lenders and the
Holders, to the extent of their interests.


 


“Agent-Related
Persons” shall mean Agent (including any successor agent), together with its
Affiliates (including, in the case of Agent, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.


 


“Applicable
Percentage” shall mean for Eurodollar Loans, Eurodollar Holder Advances, Lender
Unused Fees and Holder Unused Fees, the appropriate applicable percentages
referenced in the Leverage Pricing Grid referenced below until such time as the
Parent has a Debt Rating from either Moody’s or S&P and after such Debt
Rating is made by either Moody’s or S&P, the appropriate applicable
percentage referenced in the Debt Rating Pricing Grid referenced below:


 


A-3

















 


Leverage Pricing Grid


 


	
  Pricing Level

  	
   

  	
  Consolidated

  Leverage

  Ratio

  	
   

  	
  Applicable

  Percentage

  for Eurodollar

  Loans

  	
   

  	
  Applicable

  Percentage

  for Eurodollar

  Holder Advances

  	
   

  	
  Lender

  Unused Fee

  	
   

  	
  Holder

  Unused Fee

  	
   

  
	
  I

  	
   

  	
  <0.5x

  	
   

  	
  52.50 bps

  	
   

  	
  127.50 bps

  	
   

  	
  10.00 bps

  	
   

  	
  10.00 bps

  	
   

  
	
  II

  	
   

  	
  30.5x and <1.0x

  	
   

  	
  62.50 bps

  	
   

  	
  137.50 bps

  	
   

  	
  12.50 bps

  	
   

  	
  12.50 bps

  	
   

  
	
  III

  	
   

  	
  31.0x and <1.5x

  	
   

  	
  72.50 bps

  	
   

  	
  147.50 bps

  	
   

  	
  15.00 bps

  	
   

  	
  15.00 bps

  	
   

  
	
  IV

  	
   

  	
  31.5x and <2.0x

  	
   

  	
  87.50 bps

  	
   

  	
  162.50 bps

  	
   

  	
  20.00 bps

  	
   

  	
  20.00 bps

  	
   

  
	
  V

  	
   

  	
  32.0x and <2.5x

  	
   

  	
  112.50 bps

  	
   

  	
  187.50 bps

  	
   

  	
  27.50 bps

  	
   

  	
  27.50 bps

  	
   

  
	
  VI

  	
   

  	
  32.5x

  	
   

  	
  137.50 bps

  	
   

  	
  212.50 bps

  	
   

  	
  32.50 bps

  	
   

  	
  32.50 bps

  	
   

  



 


To the extent
the above-referenced Leverage Pricing Grid is applicable, the Applicable
Percentage for Eurodollar Loans, Eurodollar Holder Advances, Lender Unused Fees
and Holder Unused Fees shall, in each case, be determined and adjusted
quarterly on the fifth Business Day after the date by which the Lessee is
required from time to time to provide the Compliance Certificate (each a “Consolidated
Leverage Ratio Calculation Date”); except that (i) the initial
Applicable Percentage, in each case, shall be based on Pricing Level I (as
shown above) and shall remain at Pricing Level I until the occurrence of
the Consolidated Leverage Ratio Calculation Date relating to the third fiscal
quarter of the Parent occurring in fiscal year 1999 (i.e., September 30, 1999)
and, thereafter, the Pricing Level shall be determined by the then current
Consolidated Leverage Ratio, and (ii) if at any time that the Leverage Pricing
Grid is applicable, Lessee fails to provide to the Agent the Compliance Certificate,
the Applicable Percentage, in each case, from the corresponding Consolidated
Leverage Ratio Calculation Date shall be based on Pricing Level VI (referenced
in the Leverage Pricing Grid) until such time that such Compliance Certificate
is provided, whereupon the Pricing Level shall be determined by the then
current Consolidated Leverage Ratio as specified in such Compliance
Certificate.  Each Applicable Percentage
shall be effective from one Consolidated Leverage Ratio Calculation Date until
the next Consolidated Leverage Ratio Calculation Date.  Any adjustment in the Applicable Percentage
shall be applicable to the Lender Unused Fees, the Holder Unused Fees and all
existing Eurodollar Loans and Eurodollar Holder Advances as well as any new
Eurodollar Loans and Eurodollar Holder Advances made or issued.


 


A-4

















 


Debt Rating Pricing Grid


 


	
  Pricing

  Level

  	
   

  	
  Debt
  Rating

  	
   

  	
  Applicable

  Percentage

  for Eurodollar

  Loans

  	
   

  	
  Applicable

  Percentage

  for Eurodollar Holder Advances

  	
   

  	
  Lender

  Unused Fee

  	
   

  	
  Holder 

  Unused Fee

  	
   

  
	
  I

  	
   

  	
  A or better
  by S&P or A2 or better by Moody’s

  	
   

  	
  37.50 bps

  	
   

  	
  112.50 bps

  	
   

  	
  8.00 bps

  	
   

  	
  8.00 bps

  	
   

  
	
  II

  	
   

  	
  A- by
  S&P or A3 by Moody’s

  	
   

  	
  47.50 bps

  	
   

  	
  122.50 bps

  	
   

  	
  9.00 bps

  	
   

  	
  9.00 bps

  	
   

  
	
  III

  	
   

  	
  BBB+ by
  S&P or Baa1 by Moody’s

  	
   

  	
  62.50 bps

  	
   

  	
  137.50 bps

  	
   

  	
  12.50 bps

  	
   

  	
  12.50 bps

  	
   

  
	
  IV

  	
   

  	
  BBB by
  S&P or Baa2 by Moody’s

  	
   

  	
  75.00 bps

  	
   

  	
  150.00 bps

  	
   

  	
  15.00 bps

  	
   

  	
  15.00 bps

  	
   

  
	
  V

  	
   

  	
  BBB- or
  below by S&P or Baa3 or below by Moody’s or if a Debt Rating is no longer
  available for either S&P or Moody’s

  	
   

  	
  100.00 bps

  	
   

  	
  175.00 bps

  	
   

  	
  22.50 bps

  	
   

  	
  22.50 bps

  	
   

  



 


To the extent
the above-referenced Debt Rating Pricing Grid is applicable, the Applicable
Percentage for Eurodollar Loans, Eurodollar Holder Advances, Lender Unused Fees
and Holder Unused Fees shall, in each case, be determined as of the date either
Rating Agency provides a Debt Rating and thereafter shall be adjusted as of the
date the Debt Rating changes (each a “Debt Rating Calculation Date”); provided,
however, (i) if the Parent no longer has a Debt Rating by either S&P
or Moody’s (i.e., neither S&P nor Moody’s provides a Debt Rating for the
Parent), then the Applicable Percentage shall be based on Pricing Level V
(referenced in the Debt Rating Pricing Grid), (ii) if the Parent shall have a
Debt Rating by both S&P and Moody’s split by one Pricing Level, then the
higher of the two ratings shall apply, (iii) if the Parent shall have a Debt
Rating by both S&P and Moody’s split by two Pricing Levels, then the
Pricing Level between the two split Pricing Levels shall apply and (iv) if the
Parent shall have a Debt Rating by both S&P and Moody’s split by more than
two Pricing Levels, then the first Pricing Level below the higher of the two
split Pricing Levels shall apply.  Each
Applicable Percentage shall be effective from one Debt Rating Calculation Date
until the next Debt Rating Calculation Date. 
Any adjustment in the Applicable Percentage shall be applicable to the
Lender Unused Fees, the Holder Unused Fees and all existing Eurodollar Loans
and Eurodollar Holder Advances as well as any new Eurodollar Loans and
Eurodollar Holder Advances made or issued.


 


“Appraisal”
shall mean, with respect to any Property, an appraisal to be delivered in
connection with the Participation Agreement or in accordance with the terms of
the Lease, in each case prepared by a reputable appraiser reasonably acceptable
to the Agent, which in the reasonable judgment of counsel to the Agent,
complies with all of the provisions of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended, the rules and regulations
adopted pursuant thereto, and all other applicable Legal Requirements.


 


“Appraisal
Procedure” shall have the meaning given to such term in Section 22.4 of the
Lease.


 


“Approved
State” shall mean each of the following: 
Texas and any other state within the continental United States proposed
by the Lessee and consented to in writing by the Agent.


 


A-5

















 


“Appurtenant
Rights” shall mean (a) 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
underlying the Improvements or the Improvements, including without limitation
the use of any streets, ways, alleys, vaults or strips of land adjoining,
abutting, adjacent or contiguous to the Land and (b) all permits, licenses and
rights, whether or not of record, appurtenant to such Land or the Improvements.


 


“Arranger”
shall mean Banc of America Securities LLC, in its capacity as sole arranger and
sole book manager.


 


“Asset
Disposition” shall mean and include the sale, lease or other disposition of any
property or asset (including without limitation the Capital Stock of a
Subsidiary) by Lessee or any Consolidated Subsidiary; but for purposes hereof
shall not include, in any event, (a) the sale of inventory in the ordinary
course of business, (b) the sale or disposition of machinery and equipment
no longer used or useful in the conduct of business, (c) a sale, lease,
transfer or disposition of property or assets by Lessee to any Consolidated
Subsidiary or by any Consolidated Subsidiary to Lessee, or (d) a sale,
transfer or other disposition of Securitization Receivables in connection with
a Permitted Securitization Transaction.


 


“Assignment
and Acceptance” shall mean the Assignment and Acceptance in the form attached
to the Credit Agreement as Exhibit B.


 


“Attorney
Costs” shall mean and include all reasonable fees and disbursements of any law
firm or other external legal counsel and the allocated reasonable cost of
internal legal services and all disbursements of internal counsel.


 


“Attributed
Principal Amount” shall mean, on any day, with respect to any Securitization
Transaction entered into by the Lessee or any of its Consolidated Subsidiaries,
the aggregate amount (with respect to any such transaction, the “Invested
Amount”) paid to, or borrowed by, such Person as of such date under such
Securitization Transaction, minus the aggregate amount received by the
applicable receivables financier and applied to the reduction of the Invested
Amount under such Securitization Transaction.


 


“Available
Commitment” shall mean, as to any Lender at any time, an amount equal to the
positive remainder, if any, of (a) the amount of such Lender’s Commitment minus
(b) the aggregate principal amount of all Loans made by such Lender as of
such date after giving effect to Section 5.2(d) of the Participation
Agreement (but without giving effect to any other repayments or prepayments of
any Loans hereunder).


 


“Available
Holder Commitments” shall mean an amount equal to the positive remainder, if
any, of (a) the aggregate amount of the Holder Commitments minus (b) the
aggregate amount of the Holder Advances made since the Initial Closing Date
after giving effect to Section 5.2(d) of the Participation Agreement (but
without giving effect to any other repayments or prepayments of any Holder
Advances).


 


“Bank of
America” shall mean Bank of America, N.A.


 


“Bankruptcy
Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as
now or hereafter in effect or any successor thereto.


 


“Basic
Documents” shall mean the following: 
the Participation Agreement, the Agency Agreement, the Trust Agreement,
the Certificates, the Credit Agreement, the Notes, the Lease and the Security
Agreement and the Mortgage Instrument.


 


“Basic Rent”
shall mean the sum of (a) the Loan Basic Rent and (b) the Lessor Basic Rent,
calculated as of the applicable date on which Basic Rent is due.


 


“Basic Term”
shall have the meaning given to such term in Section 2.2 of the Lease.


 


“Basic Term
Commencement Date” shall have the meaning given to such term in Section 2.2 of
the Lease.


 


A-6

















 


“Basic Term
Expiration Date” shall have the meaning given to such term in Section 2.2 of
the Lease.


 


“Benefited
Lender” shall have the meaning given to such term in Section 9.10(a) of the
Credit Agreement.


 


“Bill of Sale”
shall mean a Bill of Sale regarding Equipment in form and substance reasonably
satisfactory to the Agent.


 


“Board” shall
mean the Board of Governors of the Federal Reserve System of the United States
(or any successor).


 


“Borrower”
shall mean the Owner Trustee, not in its individual capacity but as Borrower
under the Credit Agreement.


 


“Borrowing
Date” shall mean any Business Day specified in a notice delivered pursuant to
Section 2.3 of the Credit Agreement as a date on which the Lessor requests
the Lenders to make Loans hereunder.


 


“Budgeted
Total Property Cost” shall mean, at any date of determination with respect to
any Construction Period Property, an amount equal to the aggregate amount which
the Construction Agent in good faith expects to be expended in order to achieve
Completion with respect to such Property.


 


“Business Day”
shall mean a day other than a Saturday, Sunday or other day on which commercial
banks in San Francisco, California or Dallas, Texas are authorized or required
by law to close; provided, however, that when used in connection
with a Eurodollar Loan, the term “Business Day” shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
interbank market.


 


“Businesses”
shall have the meaning given to such term in Section 6.2(y)(i), of the
Participation Agreement.


 


“Calculation
Date” shall mean the Consolidated Leverage Ratio Calculation Date or the Debt
Rating Calculation Date, as each such term has been defined in the definition
of “Applicable Percentage”.


 


“Capitalized
Lease” shall mean, as applied to any Person, any lease of property (whether
real, personal, tangible, intangible or mixed of such Person) by such Person as
the lessee which at the time would be capitalized on a balance sheet of such
Person prepared in accordance with GAAP.


 


“Capital
Stock” shall mean any nonredeemable capital stock of the Lessee or any of its
Subsidiaries, whether common or preferred.


 


“Cash Equivalents” shall mean (a) securities issued or directly and
fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) deposit accounts maintained in the
ordinary course of business with each Dollar denominated time deposits and
certificates of deposit of (i) any Lender or any Holder, or (ii) any domestic
commercial bank of recognized standing (x) having capital and surplus in excess
of $500,000,000 (any such bank being an “Approved Bank”), in each case
with maturities of not more than 270 days from the date of acquisition,
(c) commercial paper and variable or fixed rate notes issued by any
Approved Bank (or by the parent company thereof) or any variable rate notes
issued by, or guaranteed by, any domestic corporation rated A-2 (or the
equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or
better by Moody’s, (d) repurchase agreements entered into by a Person with a bank
or trust company (including any Lender or any Holder) or recognized securities
dealer having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States in which such
Person shall have a perfected first priority security interest (subject to no
other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations, (e) obligations
of any State of the United States or any political subdivision thereof, the
interest with respect to which is exempt from federal income taxation under
Section 103 of the Code, having a long term rating of at least A by S&P or
Moody’s, respectively, and maturing within three years from the date of 


 


A-7

















 


acquisition
thereof, (f) Investments in municipal auction preferred stock (i) rated AAA (or
the equivalent thereof) or better by S&P or Aaa (or the equivalent thereof)
or better by Moody’s and (ii) with dividends that reset at least once every 365
days and (g) Investments, classified in accordance with GAAP as current assets,
in money market investment programs registered under the Investment Company Act
of 1940, as amended, which are administered by reputable financial institutions
having capital of at least $100,000,000 and the portfolios of which are limited
to Investments of the character described in the foregoing subdivisions (a)
through (f).


 


“Casualty”
shall mean any damage or destruction of all or any portion of the Property as a
result of a fire or other casualty.


 


“CERCLA” shall
mean the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986.


 


“Certificate”
shall mean a Certificate in favor of each Holder regarding the Holder
Commitment of such Holder issued pursuant to the terms and conditions of the
Trust Agreement in favor of each Holder.


 


“Chattel
Paper” shall have the meaning given to such term in Section 1(a) of the
Security Agreement.


 


“Claims” shall
mean any and all obligations, liabilities, losses, actions, suits, penalties,
claims, demands, costs and expenses (including without limitation reasonable
attorneys’ fees and expenses) of any nature whatsoever.


 


“Closing Date”
shall mean the Initial Closing Date and each Property Closing Date.


 


“Code” shall
mean the Internal Revenue Code of 1986, as amended from time to time, or any
successor statute thereto, together with rules and regulations promulgated
thereunder.


 


“Collateral”
shall mean all assets of the Lessor, the Construction Agent and the Lessee, now
owned or hereafter acquired, upon which a Lien is purported to be created by
one or more of the Security Documents.


 


“Commitment”
shall mean, as to any Lender, the obligation of such Lender to make the portion
of the Loans to the Lessor in an aggregate principal amount at any time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule
2.1 of the Credit Agreement, as such amount may be increased or reduced
from time to time in accordance with the provisions of the Operative
Agreements.


 


“Commitment
Percentage” shall mean, as to any Lender at any time, the percentage which such
Lender’s Commitment then constitutes of the aggregate Commitments (or, at any
time after the Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender’s Loans then outstanding
constitutes of the aggregate principal amount of all of the Loans then
outstanding), and such Commitment Percentage shall take into account both the
Lender’s Tranche A Commitment and the Lender’s Tranche B Commitment.


 


“Commitment
Period” shall mean the period from and including the Initial Closing Date to
and including the Construction Period Termination Date, or such earlier date as
the Commitments shall terminate as provided in the Credit Agreement or the
Holder Commitment shall terminate as provided in the Trust Agreement.


 


“Completion”
shall mean, with respect to a Property, such time as the acquisition,
installation, testing and final completion of the Improvements on such Property
has been achieved in accordance with the Plans and Specifications, the Agency
Agreement and/or the Lease, and in compliance with all Legal Requirements and
Insurance Requirements and a certificate of occupancy has been issued with
respect to such Property by the appropriate governmental entity (except if
non-compliance, individually or in the aggregate, shall not have and could not
reasonably be expected to have a Material Adverse Effect).  If the Lessor purchases a Property that
includes existing Improvements that are to be immediately occupied by the
Lessee without any improvements financed pursuant to the Operative Agreements,
the date of Completion for such Property shall be the Property Closing Date.


 


“Completion
Date” shall mean, with respect to a Property, the earlier of (a) the date on
which Completion for such Property has occurred or (b) the Construction Period
Termination Date.


 


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“Compliance
Certificate” shall mean the compliance certificate required from the Lessee
from time to time pursuant to Section 8.3A(a)(iii) of the Participation
Agreement.


 


“Condemnation”
shall mean any taking or sale of the use, access, occupancy, easement rights or
title to any Property or any part thereof, wholly or partially (temporarily or
permanently), by or on account of any actual or threatened eminent domain
proceeding or other taking of action by any Person having the power of eminent
domain, including without limitation an action by a Governmental Authority to
change the grade of, or widen the streets adjacent to, any Property or alter
the pedestrian or vehicular traffic flow to any Property so as to result in a
materially adverse change in access to such Property, or by or on account of an
eviction by paramount title or any transfer made in lieu of any such proceeding
or action.


 


“Consolidated EBITDA”
shall mean,  as of any date for the
four fiscal quarter period ending on such date with respect to the Parent and its Consolidated Subsidiaries
on a consolidated basis, the sum of (i) Consolidated Net Income, plus
(ii) an amount which, in the determination of Consolidated Net Income, has been
deducted for (A) interest expense,
(B) total federal, state, local and foreign income, value added and similar
taxes and (C) depreciation and amortization expense, all as determined in
accordance with GAAP.


 


“Consolidated
Gross Revenue” shall mean total revenues as reported in the consolidated income
statement of the Parent and its Consolidated Subsidiaries, as determined in
accordance with GAAP.


 


“Consolidated Leverage Ratio” shall mean, as of the end of any fiscal
quarter of the Parent and its Consolidated Subsidiaries for the four fiscal
quarter period ending on such date with respect to the Parent and its Consolidated Subsidiaries  on a consolidated basis, the ratio of (a) Funded
Debt of the Parent and its Consolidated Subsidiaries on a consolidated basis on
the last day of such period to (b) Consolidated EBITDA for such period.


 


“Consolidated
Net Income” shall mean, as of any date for
the four fiscal quarter period ending on such date with respect to the Parent and its Consolidated Subsidiaries
on a consolidated basis, net income (excluding extraordinary items)
determined in accordance with GAAP.


 


“Consolidated Net
Worth” shall mean, as of any date with respect to the Parent and its Consolidated Subsidiaries on a consolidated
basis, shareholders’ equity or net worth, as determined in accordance with
GAAP.


 


“Consolidated
Subsidiary” shall mean, as to any Person, any Subsidiary of such Person which
under the rules of GAAP consistently applied should have its financial results
consolidated with those of such Person for purposes of financial accounting
statements.


 


“Consolidated
Tangible Net Worth” shall mean, as of any date with respect to the Parent and its Consolidated Subsidiaries
on a consolidated basis, Consolidated Net Worth minus intangible assets as
determined in accordance with GAAP.


 


“Constructed
Property” shall have the meaning given to such term in Section 5.3(t) of the
Participation Agreement.


 


“Construction
Advance” shall mean an advance of funds to pay Property Costs pursuant to
Section 5.4 of the Participation Agreement.


 


“Construction
Agent” shall mean Sabre Inc., a Delaware corporation, as the construction agent
under the Agency Agreement.


 


“Construction
Agent Options” shall have the meaning given to such term in Section 2.1 of the
Agency Agreement.


 


“Construction
Budget” shall mean the cost of acquisition, installation, testing, constructing
and developing any Property as determined by the Construction Agent in its
reasonable, good faith judgment.


 


A-9

















 


“Construction
Commencement Date” shall mean, with respect to Improvements, the date on which
construction of such Improvements commences pursuant to the Agency Agreement.


 


“Construction
Contract” shall mean any contract entered into between the Construction Agent
or the Lessee with a Contractor for the construction of Improvements or any
portion thereof on the Property.


 


“Construction
Loan” shall mean any Loan made in connection with a Construction Advance.


 


“Construction
Loan Property Cost” shall mean with respect to each Construction Period
Property at the date of determination, an amount (and for the various items and
occurrences giving rise to such amounts including without limitation the Hard
Costs and the Soft Costs) equal to (a) the aggregate principal amount of
Construction Loans made on or prior to such date with respect to the Property minus
(b) the aggregate principal amount of prepayments or repayments of the Loans
allocated to reduce the Construction Loan Property Cost of such Property
pursuant to Section 2.6(c) of the Credit Agreement.


 


“Construction
Period” shall mean, with respect to a Property, the period commencing on the
Construction Commencement Date for such Property and ending on the Completion
Date for such Property.


 


“Construction
Period Property” means, at any date of determination, any Property as to which
the Rent Commencement Date has not occurred on or prior to such date.


 


“Construction
Period Termination Date” shall mean the earlier of (i) the date that the
Commitments have been terminated in their entirety in accordance with the terms
of Section 2.5(a) of the Credit Agreement, or (ii) the thirty (30) month
anniversary of the Initial Closing Date.


 


“Contractor”
shall mean each entity with whom the Construction Agent or the Lessee contracts
to construct any Improvements or any portion thereof on the Property.


 


“Controlled
Group” shall mean as of the applicable date all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Lessee, are treated as a single
employer under Section 414 of the Code.


 


“Co-Owner
Trustee” shall have the meaning given to such term in Section 9.2 of the Trust
Agreement.


 


“Credit
Agreement” shall mean the Credit Agreement, dated on or about the Initial
Closing Date, among the Lessor, the Agent and the Lenders, as specified
therein.


 


“Credit
Agreement Default” shall mean any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute a Credit Agreement
Event of Default.


 


“Credit
Agreement Event of Default” shall mean any event or condition defined as an
“Event of Default” in Section 6 of the Credit Agreement.


 


“Credit
Documents” shall mean the Participation Agreement, the Agency Agreement, the
Credit Agreement, the Notes and the Security Documents.


 


“Debt Rating”
shall mean, as of any date of determination thereof, the rating most recently
published by the Rating Agencies relating to the unsecured, unsupported senior
long–term debt obligations of the Parent.


 


“Deed” shall
mean a general warranty deed regarding the Land and/or Improvements in form and
substance reasonably satisfactory to the Agent.


 


“Default”
shall mean any event, act or condition which is not cured pursuant to the
Operative Agreements which with notice or lapse of time, or both, would
constitute an Event of Default.


 


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“Defaulting
Holder” shall have the meaning given to such term in Section 12.4 of the Participation
Agreement.


 


“Defaulting
Lender” shall have the meaning given to such term in Section 12.4 of the
Participation Agreement.


 


“Deficiency
Balance” shall have the meaning given to such term in Section 22.1(b) of the
Lease Agreement.


 


“Documents” shall
have the meaning given to such term in Section 1(a) of the Security Agreement.


 


“Dollars” and
“$” shall mean dollars in lawful currency of the United States of America.


 


“Election
Notice” shall have the meaning given to such term in Section 20.1 of the Lease.


 


“Eligible
Assignee” shall mean (a) a Lender or a Holder, as the case may be; (b) an
Affiliate of a Lender or a Holder, as the case may be; and (c) (i) a commercial
bank, savings and loan association or savings bank organized under the laws of
the United States, or any state thereof, and having total assets in excess of
$500,000,000, and (ii) a finance company, insurance company, other financial
institution, fund or other entity that is an “accredited investor” (as defined
in Regulation D), is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and has total assets in
excess of $500,000,000, provided that in the case of clause (i) and (ii) above,
such Person shall be approved by the Agent and, unless an Event of Default has
occurred and is continuing at the time any assignment is effected in accordance
with the Operative Agreements, the Lessee or the Construction Agent, such
approval not to be unreasonably withheld or delayed by the Lessee or the
Construction Agent and such approval to be deemed given by the Lessee or the
Construction Agent if no objection is received by the assigning Lender or
Holder and the Agent from the Lessee or the Construction Agent within five
Business Days after notice of such proposed assignment has been provided by the
assigning Lender or Holder to the Lessee or the Construction Agent; provided,
however, that neither the Lessee or the Construction Agent nor an
Affiliate of the Lessee or the Construction Agent shall qualify as an Eligible
Assignee.


 


“Employee
Benefit Plan” shall have the meaning given to the term “Plan.”


 


“Environmental
Claim” shall mean any investigation, written notice, violation, written demand,
written allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising pursuant to, or in connection with, an actual or
alleged violation of any Environmental Law (a) in connection with any Hazardous
Substance, (b) from any abatement, removal, remedial, corrective, or other
response action in connection with a Hazardous Substance, Environmental Law, or
other order of a Governmental Authority or (c) from any actual or alleged
damage, injury, threat, or harm to health, safety, natural resources, or the
environment.


 


“Environmental
Laws” shall mean any Law, permit, consent, approval, license, award, or other
authorization or requirement of any Governmental Authority relating to
emissions, discharges, releases or threatened releases of any Hazardous
Substance into ambient air, surface water, ground water, publicly-owned
treatment works, septic system, or land, or otherwise relating to the handling,
storage, treatment, generation, use, or disposal of Hazardous Substances,
pollution or to the protection of health or the environment, including without
limitation CERCLA, the Resource Conservation and Recovery Act of 1976, 42
U.S.C. § 6901, et seq., and state statutes analogous thereto.


 


“Environmental
Violation” shall mean any activity, occurrence or condition that violates or
threatens (if the threat requires remediation under any Environmental Law and
is not remediated during any grace period allowed under such Environmental Law)
to violate or results in or threatens (if the threat requires remediation under
any Environmental Law and is not remediated during any grace period allowed
under such Environmental Law) to result in noncompliance with any Environmental
Law.


 


A-11

















 


“Equipment”
shall mean equipment, apparatus, furnishings, fittings and personal property of
every kind and nature whatsoever purchased, leased or otherwise acquired using
the proceeds of the Loans or the Holder Advances by the Construction Agent, the
Lessee or the Lessor and all improvements and modifications thereto and
replacements thereof, whether or not now owned or hereafter acquired or now or
subsequently attached to, contained in or used or usable in any way in
connection with any operation of any Improvements, including all equipment
described in the Appraisal, including all heating, electrical, and mechanical
equipment, lighting, switchboards, plumbing, ventilation, air conditioning and
air-cooling apparatus, refrigerating, and incinerating equipment, escalators,
elevators, loading and unloading equipment and systems, cleaning systems
(including window cleaning apparatus), telephones, communication systems
(including satellite dishes and antennae), televisions, computers (including network
cabling), sprinkler systems and other fire prevention and extinguishing
apparatus and materials, security systems, motors, engines, machinery, pipes,
pumps, tanks, conduits, appliances, fittings and fixtures of every kind and
description.


 


“Equipment
Schedule” shall mean (a) each Equipment Schedule attached to the applicable
Requisition and (b) each Equipment Schedule attached to the applicable Lease
Supplement.


 


“Equity Issuance” shall mean any issuance by the Parent or any
Consolidated Subsidiary to any Person of (a) shares of its Capital Stock, (b)
any shares of its Capital Stock pursuant to the exercise of options or
warrants, (c) any shares of its Capital Stock pursuant to the conversion of any
debt securities to equity or (d) any options or warrants relating to its
Capital Stock, excluding any of the foregoing with respect to any employee
programs.  The term “Equity Issuance”
shall not include any Asset Disposition.


 


“ERISA” shall
mean the Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA
Affiliate” shall mean each entity required to be aggregated with the Lessee
pursuant to the requirements of Section 414 of the Code.


 


“ERISA Event” shall mean (a) with respect to any Pension Plan, the
occurrence of a Reportable Event or the substantial cessation of operations
(within the meaning of Section 4062(e) of ERISA); (b) the withdrawal by Lessee,
any Subsidiary of Lessee or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a substantial employer (as such term is
defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple
Employer Plan; (c) the distribution of a notice of intent to terminate or the
actual termination of a Pension Plan pursuant to Section 4041(a)(2) or 4041A of
ERISA; (d) the institution of proceedings to terminate or the actual
termination of a Pension Plan by the PBGC under Section 4042 of ERISA; (e) any
event or condition which would reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (f) the conditions for imposition of a
lien under Section 302(f) of ERISA exist with respect to any Pension Plan;
or (g) the adoption of an amendment to any Pension Plan requiring the provision
of security to such Pension Plan pursuant to Section 307 of ERISA, but
only to the extent any of the foregoing events results in, or is reasonably
expected to result in, liability to Lessee or any Subsidiary of Lessee in
excess of $15,000,000.


 


“Eurocurrency
Reserve Requirements” shall mean for any day as applied to a Eurodollar Loan,
the aggregate (without duplication) of the maximum rates (expressed as a
decimal) of reserve requirements in effect on such day (including without
limitation basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed on
eurocurrency funding (currently referred to as “Eurocurrency liabilities” in
Regulation D) maintained by a member bank of the Federal Reserve System.


 


“Eurodollar
Holder Advance” shall mean a Holder Advance bearing a Holder Yield based on the
Eurodollar Rate.


 


“Eurodollar
Loans” shall mean Loans the rate of interest applicable to which is based upon
the Eurodollar Rate.


 


“Eurodollar
Rate” means, for any Eurodollar Loan or
Eurodollar Holder Advance comprising part of the same borrowing or advance
(including without limitation conversions, extensions and renewals), for any
Interest Period 


 


A-12

















 


therefor,
the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate (a/k/a Dow Jones Markets) Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term “Eurodollar Rate” shall mean,
for any Eurodollar Loan or Eurodollar Holder Advance for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; except that if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%).  As used herein,
“Reuters Screen LIBO Page” means the display designated as page “LIBO” on the
Reuters Monitor Money Rates Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London interbank offered
rates of major banks) (“RMMRS”).  In the
event the RMMRS is not then quoting such offered rates, “Eurodollar Rate” shall
mean for the Interest Period for each Eurodollar Loan or Eurodollar Holder
Advance comprising part of the same borrowing or advance (including without
limitation conversions, extensions and renewals), the average (rounded upward
to the nearest one sixteenth (1/16) of one percent (1%)) per annum rate of
interest determined by the office of the Agent (each such determination to be
conclusive and binding) as of two (2) Business Days prior to the first day of
such Interest Period, as the effective rate at which deposits in immediately
available funds in U.S. dollars are being, have been, or would be offered or
quoted by Bank of America, N.A. to major banks in the applicable interbank
market for Eurodollar deposits at any time during the Business Day which is the
second Business Day immediately preceding the first day of such Interest
Period, for a term comparable to such Interest Period and in the amount of the
requested Eurodollar Loan and/or Eurodollar Holder Advance.  If no such offers or quotes are generally
available for such amount, then the Agent shall be entitled to determine the
Eurodollar Rate by estimating in its reasonable judgment the per annum rate (as
described above) that would be applicable if such quote or offers were
generally available.


 


“Event of
Default” shall mean a Lease Event of Default, an Agency Agreement Event of
Default or a Credit Agreement Event of Default.


 


“Excepted
Payments” shall mean and include:


 


(a)           all indemnity
payments (including without limitation indemnity payments made pursuant to
Section 11 of the Participation Agreement), whether made by adjustment to Basic
Rent or otherwise, to which the Owner Trustee, any Holder or any of their
respective Affiliates, agents, officers, directors or employees is entitled;


 


(b)           any amounts (other
than Basic Rent or Termination Value) payable under any Operative Agreement to
reimburse the Owner Trustee, any Holder or any of their respective Affiliates
(including without limitation the reasonable expenses of the Owner Trustee, the
Trust Company and the Holders incurred in connection with any such payment) for
performing or complying with any of the obligations of the Lessee under and as
permitted by any Operative Agreement;


 


(c)           any amount payable
to a Holder by any transferee of such interest of a Holder as the purchase
price of such Holder’s interest in the Trust Estate (or a portion thereof);


 


(d)           any insurance
proceeds (or payments with respect to risks self-insured or policy deductibles)
under liability policies other than such proceeds or payments payable to the
Agent or any Lender;


 


(e)           any insurance
proceeds under policies maintained by the Owner Trustee or any Holder;


 


(f)            Transaction
Expenses or other amounts, fees, disbursements or expenses paid or payable to
or for the benefit of the Owner Trustee;


 


(g)           any payments in
respect of interest to the extent attributable to payments referred to in
clauses (a) through (f) above; and


 


A-13

















 


(h)           any rights of either
the Owner Trustee or the Trust Company to demand, collect, sue for or otherwise
receive and enforce payment of any of the foregoing amounts, provided
that such rights shall not include the right to terminate the Lease.


 


“Excess
Proceeds” shall mean the excess, if any, of the aggregate of all awards,
compensation or insurance proceeds payable in connection with a Casualty or
Condemnation over the Termination Value paid by the Lessee pursuant to the
Lease with respect to such Casualty or Condemnation.


 


“Excluded
Taxes” shall have the meaning given to such term in Section 11.2(b) of the
Participation Agreement.


 


“Exculpated
Persons” shall mean the Trust Company (except with respect to the
representations and warranties and the other obligations of the Trust Company
pursuant to the Operative Agreements expressly undertaken in its individual
capacity, including without limitation the representations and warranties of
the Trust Company pursuant to Section 6.1 of the Participation Agreement, the
obligations of the Trust Company pursuant to Section 8.2 of the Participation
Agreement and the obligations of the Trust Company pursuant to the Trust
Agreement), the Holders (except with respect to the obligations of the Holders
pursuant to the Participation Agreement and the Trust Agreement expressly
undertaken in their respective individual capacities), and the officers,
directors and shareholders of, and partners in, such Persons.


 


“Exempt
Payments” shall have the meaning given to such term in Section 11.2(e) of the
Participation Agreement.


 


“Expiration
Date” shall mean either (a) the Basic Term Expiration Date or (b) the last
Business Day of the applicable Renewal Term; except that in no event shall the
Expiration Date be later than the anniversary of the Initial Closing Date
occurring in the year 2004, unless such later date has been expressly agreed to
in writing by each of the Lessee, the Agent, the Lenders and the Holders.


 


“Fair Market
Sales Value” shall mean, with respect to any Property, the amount, which in any
event, shall not be less than zero Dollars ($0), that would be paid 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, such Property. 
Fair Market Sales Value of any Property shall be determined based on the
assumption that, except for purposes of Section 17 of the Lease, such
Property is in the condition and state of repair required under
Section 10.1 of the Lease and the Lessee is in compliance with the other
requirements of the Operative Agreements.


 


“Federal Funds
Effective Rate” shall have the meaning given to such term in the definition of
“ABR”.


 


“Financing
Parties” shall mean the Lessor, the Owner Trustee, in its trust capacity, the
Agent, the Holders and the Lenders.


 


“Fixtures”
shall mean all fixtures, as such term is defined in the UCC, relating to the
Improvements, and all components thereof, located in or on the Improvements,
together with all replacements, modifications, alterations and additions
thereto.


 


“Force Majeure
Event” shall mean any event beyond the control of the Construction Agent,
including without limitation strikes or lockouts (but only when the
Construction Agent is legally prevented from securing replacement labor or
materials as a result thereof), adverse soil conditions, acts of God, adverse
weather conditions, inability to obtain labor or materials after all possible
efforts have been expended by the Construction Agent, governmental activities,
civil commotion and enemy action; but excluding any event, cause or condition
that results from the Construction Agent’s financial condition.


 


“Form 1001”
shall have the meaning given to such term in Section 11.2(e) of the
Participation Agreement.


 


A-14

















 


“Form 4224”
shall have the meaning given to such term in Section 11.2(e) of the
Participation Agreement.


 


“Funded Debt” shall mean, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional sale or other
title retention agreements relating to property purchased by such Person (other
than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (d) all obligations
of such Person issued or assumed as the deferred purchase price of property or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the incurrence
thereof), (e) the principal portion of all obligations of such Person under
Capitalized Leases, (f) all Support Obligations of such Person with respect to
Funded Debt of another Person, (g) the maximum available amount of all standby
letters of credit or acceptances or bank guarantees issued or created for the
account of such Person (excluding all performance standby letters of credit and
performance bank guarantees), (h) all Funded Debt of another Person secured by
a Lien on any property of such Person, whether or not such Funded Debt has been
assumed, provided that for purposes hereof the amount of such Funded
Debt shall be limited to the greater of (i) the amount of such Funded Debt as
to which there is recourse to such Person and (ii) the fair market value of the
property which is subject to such Lien, (i) the outstanding attributed
principal amount under any securitization transaction, (j) the outstanding
Attributed Principal Amount under any Securitization Transaction, and
(k) the principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance sheet
financing product to which such Person is a party, where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP. 
The Funded Debt of any Person shall include the Funded Debt of any
partnership or joint venture in which such Person is a general partner or joint
venturer, but only to the extent to which there is recourse to such Person for
the payment of such Funded Debt.


 


“Future Amounts” shall have the meaning given to such term in Section
2.1 of the Agency Agreement.


 


“GAAP” shall
mean generally accepted accounting principles set forth in the opinions and
pronouncements of the accounting principles board of the American Institute of
Certified Public Accountants, and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the accounting
profession, that are applicable to the circumstances as of the date of
determination.


 


“Governmental
Action” shall mean all permits, authorizations, registrations, consents,
approvals, waivers, exceptions, variances, orders, judgments, written
interpretations, decrees, licenses, exemptions, publications, filings, notices
to and declarations of or with, or required by, any Governmental Authority, or
required by any Legal Requirement, and shall include, without limitation, all
environmental and operating permits and licenses that are required for the full
use, occupancy, zoning and operating of the Property.


 


“Governmental
Authority” shall mean any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.


 


“Hard Costs”
shall mean all costs and expenses payable for Land, supplies, materials, labor
and profit with respect to the Improvements under any Construction Contract.


 


“Hazardous
Substance” shall mean any of the following: 
(a) any petroleum or petroleum product, explosives, radioactive
materials, asbestos, formaldehyde, polychlorinated biphenyls, lead and radon
gas; (b) any substance, material, product, derivative, compound or mixture,
mineral, chemical, waste, gas, medical waste, or pollutant, in each case whether
naturally occurring, man-made or the by-product of any process, that is toxic,
harmful or hazardous to the environment or human health or safety as determined
in accordance with any Environmental Law; or (c) any substance, material,
product, derivative, compound or mixture, mineral, chemical, waste, gas,
medical waste or pollutant that would support the assertion of any claim under
any Environmental Law, whether or not defined as hazardous as such under any
Environmental Law.


 


“Holder
Advance” shall mean any advance made by any Holder to the Owner Trustee
pursuant to the terms of the Trust Agreement or the Participation Agreement.


 


A-15

















 


“Holder
Amount” shall mean as of any date, the aggregate amount of Holder Advances made
by each Holder to the Trust Estate pursuant to Section 2 of the Participation
Agreement and Section 3.1 of the Trust Agreement less any payments of any
Holder Advances received by the Holders pursuant to Section 3.4 of the Trust
Agreement.


 


“Holder
Commitments” shall mean $6,930,000, as such amount may be increased or reduced
from time to time in accordance with the provisions of the Operative
Agreements; except that if there is more than one (1) Holder, the Holder
Commitment of each Holder shall be as set forth in Schedule I to the
Trust Agreement as such Schedule I may be amended and replaced from time
to time.


 


“Holder
Construction Property Cost” shall mean, with respect to each Construction
Period Property, at any date of determination, an amount equal to the
outstanding Holder Advances made with respect thereto under the Trust
Agreement.


 


“Holder
Overdue Rate” shall mean the lesser of (a) the then current rate of Holder
Yield respecting the particular amount in question plus two percent (2%) and
(b) the highest rate permitted by applicable law.


 


“Holder
Property Cost” shall mean with respect to a Property an amount (and/or various
items and occurrences giving rise to such amounts including without limitation
the Hard Costs and the Soft Costs) equal to the outstanding Holder Advances
with respect thereto minus the aggregate principal amount of prepayments or
repayments of the Holder Advances allocated to reduce the Holder Property Cost
of such Property pursuant to Section 3.4(c) of the Trust Agreement.


 


“Holder Unused
Fee” shall have the meaning given to such term in Section 7.4 of the
Participation Agreement.


 


“Holder Yield”
shall mean, with respect to Holder Advances from time to time, either (i) the
Eurodollar Rate plus the Applicable Percentage or (ii) the ABR plus 0.75% (75
basis points) per annum as elected by the Owner Trustee from time to time with
respect to such Holder Advances in accordance with the terms of the Trust
Agreement; except that (a) upon delivery of the notice described in Section
3.7(c) of the Trust Agreement, the outstanding Holder Advances of each Holder
shall automatically bear a yield at the ABR plus 0.75% (75 basis points) per
annum applicable from time to time from and after the dates and during the
periods specified in Section 3.7(c) of the Trust Agreement, and (b) upon the
delivery by a Holder of the notice described in Section 11.3(f) of the
Participation Agreement, the Holder Advances of such Holder shall automatically
bear a yield at the ABR plus 0.75% (75 basis points) per annum applicable from
time to time after the dates and during the periods specified in Section
11.3(f) of the Participation Agreement.


 


“Holders”
shall mean the banks and financial institutions which may be from time to time
holders of Certificates in connection with the TSG Trust 1999-1.


 


“Impositions”
shall mean any and all liabilities, losses, expenses, costs, charges and Liens
of any kind whatsoever for fees, taxes, levies, imposts, duties, charges,
assessments or withholdings (“Taxes”) including but not limited to (a)
real and personal property taxes, including without limitation personal
property taxes on any property covered by the Lease that is classified by
Governmental Authorities as personal property, and real estate or ad valorem taxes
in the nature of property taxes; (b) sales taxes, use taxes and other similar
taxes (including rent taxes and intangibles taxes); (c) excise taxes; (d) real
estate transfer taxes, conveyance taxes, stamp taxes and documentary recording
taxes and fees; (e) taxes that are or are in the nature of franchise, income,
value added, privilege and doing business taxes, license and registration fees;
(f) assessments on any Property, including without limitation all assessments
for public Improvements or benefits, whether or not such improvements are
commenced or completed within the Term; and (g) taxes, Liens, assessments or
charges asserted, imposed or assessed by the PBGC or any governmental authority
succeeding to or performing functions similar to, the PBGC; and in each case
all interest, additions to tax and penalties thereon, which at any time prior
to, during or with respect to the Term or in respect of any period for which
the Lessee shall be obligated to pay Supplemental Rent, may be levied, assessed
or imposed by any Governmental Authority upon or with respect to (q) any
Property or any part thereof or interest therein; (r) the 


 


A-16

















 


leasing, financing,
refinancing, demolition, construction, substitution, subleasing, assignment,
control, condition, occupancy, servicing, maintenance, repair, ownership,
possession, activity conducted on, delivery, insuring, use, operation,
improvement, sale, transfer of title, return or other disposition of such
Property or any part thereof or interest therein; (s) the Notes, other
indebtedness with respect to any Property, or the Certificates, or any part
thereof or interest therein; (t) the rentals, receipts or earnings arising from
any Property or any part thereof or interest therein; (u) the Operative
Agreements, the performance thereof, or any payment made or accrued pursuant
thereto; (v) the income or other proceeds received with respect to any Property
or any part thereof or interest therein upon the sale or disposition thereof;
(w) any contract (including the Agency Agreement) relating to the construction,
acquisition or delivery of the Improvements or any part thereof or interest
therein; (x) the issuance of the Notes or the Certificates; (y) the Owner
Trustee, the Trust or the Trust Estate; or (z) otherwise in connection with the
transactions contemplated by the Operative Agreements.


 


“Improvements”
shall mean, with respect to the construction, renovations and/or Modifications
on any Land, all buildings, structures, Fixtures, and other improvements of
every kind existing at any time and from time to time on or under the Land
purchased or otherwise acquired using the proceeds of the Loans or the Holder
Advances, together with any and all appurtenances to such buildings, structures
or improvements, including without limitation sidewalks, pedestrian or utility
tunnels, utility pipes, conduits and lines, parking areas and roadways, and
including without limitation all Modifications and other additions to or
changes in the Improvements at any time, including without limitation (a) any
Improvements existing as of the Property Closing Date as such Improvements may
be referenced on the applicable Requisition and (b) any Improvements made
subsequent to such Property Closing Date.


 


“Indebtedness”
of a Person shall mean, without duplication, such Person’s:


 


(a)           obligations for
borrowed money;


 


(b)           obligations
representing the deferred purchase price of Property (whether real, personal,
tangible, intangible or mixed) or services (other than accounts payable arising
in the ordinary course of such Person’s business payable on terms customary in
the trade);


 


(c)           obligations, whether
or not assumed, secured by liens or payable out of the proceeds or production
from property now or hereafter owned or acquired by such Person;


 


(d)           obligations which
are evidenced by notes, acceptances or other instruments;


 


(e)           Capitalized Lease
obligations and the principal balance
outstanding under any synthetic lease, tax retention operating lease, off-balance
sheet loan or similar off-balance sheet financing product to which such Person
is a party, where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an operating lease in accordance with
GAAP;


 


(f)            net liabilities
under interest rate swap, exchange or cap agreements;


 


(g)           the outstanding
Attributed Principal Amount under any Securitization Transactions; and


 


(h)           contingent
obligations in connection with any of the foregoing.


 


“Indemnified
Liabilities” shall mean any and all liabilities, losses, costs or expenses
(including Attorney Costs) that any Indemnified Person suffers or incurs as a
result of the assertion of any claim, demand, action or cause of action
referenced in Sections 11.1 and/or 11.2 of the Participation Agreement,
including those liabilities caused by an Indemnified Person’s own negligence
(excluding any loss caused by the gross negligence or willful misconduct of
such Indemnified Person and also excluding any loss asserted against one Indemnified
Person by another Indemnified Person).


 


“Indemnified
Person” shall mean the Lessor, the Owner Trustee, in its individual and its
trust capacity, the Trust, the Trust Company, the Agent, the Arranger, the
Holders, the Lenders and their respective successors, assigns, directors,
shareholders, partners, officers, employees, agents and Affiliates.


 


A-17

















 


“Indemnity
Provider” shall mean, respecting each Property, the Lessee.


 


“Initial
Closing Date” shall mean September 14, 1999.


 


“Initial
Construction Advance” shall mean the initial Advance to pay for:  (a) Property Costs for construction of any
Improvements; and (b) the Property Costs of restoring or repairing any Property
which is required to be restored or repaired in accordance with Section 15.1(e)
of the Lease.


 


“Instruments”
shall have the meaning given to such term in Section 1(a) of the Security
Agreement.


 


“Insurance
Requirements” shall mean all terms and conditions of any insurance policy
either required by the Lease to be maintained by the Lessee or required by the
Agency Agreement to be maintained by the Construction Agent, and all
requirements of the issuer of any such policy and, regarding self insurance,
any other requirements of the Lessee.


 


“Interest
Period” shall mean during the Commitment Period and thereafter as to any
Eurodollar Loan or Eurodollar Holder Advance (i) with respect to the initial
Interest Period, the period beginning on the date of the first Eurodollar Loan
and Eurodollar Holder Advance and ending one (1) month, two (2) months, three
(3) months, six (6) months or twelve (12) months thereafter (with respect
solely to the twelve (12) month alternative, only to the extent available to
all Lenders and all Holders), as selected by the Lessee in its applicable
notice given with respect thereto and (ii) thereafter, each period commencing
on the last day of the next preceding Interest Period applicable to such
Eurodollar Loan or Eurodollar Holder Advance and ending one (1) month, two (2)
months, three (3) months, six (6) months or twelve (12) months thereafter (with
respect solely to the twelve (12) month alternative, only to the extent
available to all Lenders and all Holders), as selected by the Lessee by
irrevocable notice to the Agent in each case not less than three (3) Business
Days prior to the last day of the then current Interest Period with respect
thereto; except that all of the foregoing provisions relating to Interest
Periods are subject to the following: 
(A) if any Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day), (B) no
Interest Period shall extend beyond the Expiration Date, (C) where an Interest
Period begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such Interest Period
shall end on the last Business Day of such calendar month, (D) the aggregate
amount of Eurodollar Loans and Eurodollar Holder Advances for any particular
Interest Period shall be in the amount of $2,000,000 or more and (E) there
shall not be more than eight (8) Interest Periods outstanding at any one (1)
time.


 


“Investment
Company Act” shall mean the Investment Company Act of 1940, as amended,
together with the rules and regulations promulgated thereunder.


 


“Investments”, in any Person, shall mean any loan or advance to
such Person, any purchase or other acquisition of any capital stock, warrants,
rights, options, obligations or other securities of, or equity interest in,
such Person, any capital contribution to such Person or any other investment in
such Person, including, without limitation, any guaranty obligation incurred
for the benefit of such Person.


 


“Land” shall
mean a parcel of real property described on (a) the Requisition issued by the
Construction Agent on the Property Closing Date relating to such parcel and (b)
the schedules to each applicable Lease Supplement executed and delivered in
accordance with the requirements of Section 2.4 of the Lease.


 


“Law” shall
mean any statute, law, ordinance, regulation, rule, directive, order, writ,
injunction or decree of any Governmental Authority.


 


“Lease” or
“Lease Agreement” shall mean the Lease Agreement dated on or about the Initial
Closing Date, between the Lessor and the Lessee, together with any Lease
Supplements thereto.


 


A-18

















 


“Lease
Default” shall mean any event or condition which is not cured pursuant to the
Operative Agreements which, with the lapse of time or the giving of notice, or
both, would constitute a Lease Event of Default.


 


“Lease Event
of Default” shall have the meaning given to such term in Section 17.1 of the
Lease.


 


“Lease
Supplement” shall mean each Lease Supplement substantially in the form of Exhibit A
to the Lease, together with all attachments and schedules thereto.


 


“Legal
Requirements” shall mean all foreign, federal, state, county, municipal and
other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting the Owner Trustee, any Holder, the
Lessor, the Lessee, the Agent, any Lender or any Property, Land, Improvement,
Equipment or the taxation, demolition, construction, use or alteration of such
Improvements, whether now or hereafter enacted and in force, including without
limitation any that require repairs, modifications or alterations in or to any
Property or in any way limit the use and enjoyment thereof (including without
limitation all building, planning, zoning and fire codes and the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et. seq., and any other similar
federal, state or local laws or ordinances and the regulations promulgated
thereunder) and any that may relate to environmental requirements (including
without limitation all Environmental Laws), and all permits, certificates of
occupancy, licenses, authorizations and regulations relating thereto, and all
covenants, agreements, restrictions and encumbrances contained in any
instruments which are either of record or known to the Lessee affecting any
Property or the Appurtenant Rights.


 


“Lender
Commitments” shall mean $203,070,000, as such amount may be increased or
reduced from time to time in accordance with the provisions of the Operative
Agreements; except that, if there shall be more than one (1) Lender, the Lender
Commitment of each Lender shall be as set forth in Schedule 2.1 to the
Credit Agreement as such Schedule 2.1 may be amended and replaced from
time to time.


 


“Lender
Financing Statements” shall mean UCC financing statements and fixture filings
appropriately completed and executed for filing in the applicable jurisdiction
in order to procure a security interest in favor of the Agent in the Collateral
subject to the Security Documents.


 


“Lender Unused
Fee” shall have the meaning given to such term in Section 7.4 of the
Participation Agreement.


 


“Lenders”
shall mean Bank of America and the other banks and financial institutions which
may be from time to time party to the Participation Agreement and the Credit
Agreement.


 


“Lessee” shall
have the meaning set forth in the Lease.


 


“Lessor” shall
mean the Owner Trustee, not in its individual capacity, but as the Lessor under
the Lease.


 


“Lessor Basic
Rent” shall mean the scheduled Holder Yield due on the Holder Advances on any
Scheduled Interest Payment Date pursuant to the Trust Agreement (but not including
interest on (a) any such scheduled Holder Yield due on the Holder Advances
prior to the Rent Commencement Date with respect to the Property to which such
Holder Advances relate or (b) overdue amounts under the Trust Agreement or
otherwise).


 


“Lessor Financing
Statements” shall mean UCC financing statements and fixture filings
appropriately completed and executed for filing in the applicable jurisdictions
in order to protect the Lessor’s interest under the Lease to the extent the
Lease is deemed by a court of competent jurisdiction to be a security agreement
or a mortgage.


 


“Lessor Lien”
shall mean any Lien, true lease or sublease or disposition of title arising as
a result of (a) any claim against the Lessor or the Trust Company not resulting
from the transactions contemplated by the Operative Agreements, (b) any act or
omission of the Lessor or the Trust Company which is not required by the
Operative Agreements or is in violation of any of the terms of the Operative
Agreements, (c) any claim against the Lessor or the Trust Company with respect
to Taxes or Transaction Expenses against which the Lessee is not required to 


 


A-19

















 


indemnify the Lessor or the
Trust Company pursuant to Section 11 of the Participation Agreement or (d) any
claim against the Lessor arising out of any transfer by the Lessor of all or
any portion of the interest of the Lessor in the Properties, the Trust Estate
or the Operative Agreements other than the transfer of title to or possession
of any Properties by the Lessor pursuant to and in accordance with the Lease,
the Credit Agreement, the Security Agreement or the Participation Agreement or
pursuant to the exercise of the remedies set forth in Article XVII of the
Lease.


 


“Lien” shall mean
any mortgage, pledge, security interest, encumbrance, lien, option or charge of
any kind.


 


“Limited
Recourse Amount” shall mean with respect to all the Properties on an aggregate
basis, an amount equal to the sum of the Termination Values with respect to all
the Properties on an aggregate basis on each Payment Date, less the Maximum
Residual Guarantee Amount as of such date with respect to all the Properties on
an aggregate basis.


 


“Loan Basic
Rent” shall mean the scheduled interest due on the Loans on any Scheduled
Interest Payment Date pursuant to the Credit Agreement (but not including
interest on (a) any such Loan due prior to the Rent Commencement Date with
respect to the Property to which such Loan relates or (b) any overdue amounts
under Section 2.8(b) of the Credit Agreement or otherwise).


 


“Loan Property
Cost” shall mean, with respect to each Property at any date of determination,
an amount (and for the various items and occurrences giving rise to such
amounts including without limitation the Hard Costs and the Soft Costs) equal
to the remainder of (a) the aggregate principal amount all Loans (including
without limitation all Acquisition Loans and Construction Loans) made on or
prior to such date with respect to such Property minus (b) the aggregate
amount of prepayments or repayments as the case may be of the Loans allocated
to reduce the Loan Property Cost of such Property pursuant to Section 2.6(c) of
the Credit Agreement.


 


“Loans” shall
mean the loans extended pursuant to the Credit Agreement and shall include both
the Tranche A Loans and the Tranche B Loans.


 


“Majority
Holders” shall mean at any time, Holders (a) whose Holder Advances
outstanding represent more than fifty percent (50%) of the aggregate Holder
Advances outstanding or (b) to the extent there are no Holder Advances
outstanding, whose Holder Commitments represent more than fifty percent (50%)
of the aggregate Holder Commitments.


 


“Majority
Lenders” shall mean at any time, Lenders (a) whose Loans outstanding
represent more than fifty percent (50%) of the aggregate Loans outstanding or
(b) to the extent there are no Loans outstanding, whose Lender Commitments
represent more than fifty percent (50%) of the aggregate of the Lender
Commitments.


 


“Majority
Secured Parties” shall mean at any time, Lenders and Holders (a) whose Loans
and Holder Advances outstanding represent more than fifty percent (50%) of the
aggregate Advances outstanding or (b) to the extent there are no Advances
outstanding, whose Lender Commitments and Holder Commitments represent more
than fifty percent (50%) of the sum of the aggregate Holder Commitments plus
the aggregate Lender Commitments.


 


“Marketing
Period” shall mean, if the Lessee has given a Sale Notice in accordance with
Section 20.1 of the Lease, the period commencing on the date such Sale
Notice is given and ending on the Expiration Date.


 


“Material
Adverse Effect” shall mean a material adverse effect upon (a) the
financial condition, operations or properties of the Parent and its
Consolidated Subsidiaries, taken as a whole, or (b) the ability of the Lessee
to perform in any material respect under the Operative Agreements or (c) the
value, utility or useful life of any Property, or (d) the validity or
enforceability against Lessee of any of the Operative Agreements to which
Lessee is a party, or (e) the priority or perfection of any Financing Party’s
interest in any Property.


 


“Maximum
Amount” shall mean (a) one hundred percent (100%) of the cost of the Land for
all, but not less than all, the Properties (collectively, the “Land Cost”),
plus (b) the product of eighty-nine and nine tenths percent (89.9%)
multiplied by the following: (the aggregate Termination Value for all, but not
less than all, the Properties,


 


A-20

















 


minus
the Land Cost, minus all structuring fees payable in connection with the
transactions evidenced by the Operative Agreements to Banc of America
Securities LLC, Bank of America, N.A. and/or any Affiliates of either of the
foregoing, minus accrued, unpaid Holder Yield respecting any and all
Construction Period Properties) minus (c) the accreted value (calculated
at a rate of five and nine hundred five thousandths percent (5.905%) per annum)
of any payments previously made by the Construction Agent or the Lessee
regarding any and all Construction Period Properties and not reimbursed minus
(d) the product of ten and one-tenth percent (10.1%) multiplied by the
aggregate Future Amounts deposited into escrow with the Agent pursuant to
Section 2.1 of the Agency Agreement.


 


“Maximum
Residual Guarantee Amount” shall mean an amount equal to the product of the
aggregate Property Cost for all of Properties times eighty-four percent (84%).


 


“Modifications”
shall have the meaning given to such term in Section 11.1(a) of the Lease.


 


“Moody’s”
shall mean Moody’s Investors Service, Inc., and any successor thereto.


 


“Mortgage
Instrument” shall mean any mortgage, deed of trust or any other instrument
executed by the Owner Trustee and the Lessee in favor of the Agent (for the
benefit of the Lenders and the Holders) and evidencing a Lien on the Property,
in form and substance reasonably acceptable to the Agent.


 


“Multiemployer
Plan” shall mean any plan described in Section 4001(a)(3) of ERISA to which
contributions are or have been made or required by the Lessee or any of its
Subsidiaries or ERISA Affiliates.


 


“Multiple
Employer Plan” shall mean a plan to which the Lessee or any ERISA Affiliate and
at least one (1) other employer other than an ERISA Affiliate is making or accruing
an obligation to make, or has made or accrued an obligation to make,
contributions.


 


“Non-Integral
Equipment” shall mean Equipment which (a) is personal property that is readily
removable without causing material damage to the applicable Property and (b) is
not integral or necessary, respecting the applicable Property, for compliance
with Section 8.3 of the Lease or otherwise to the structure thereof, the
mechanical operation thereof, the electrical systems thereof or otherwise with
respect to any aspect of the physical plant thereof.


 


“Notes” shall
mean those notes issued to the Lenders pursuant to the Credit Agreement and
shall include both the Tranche A Notes and the Tranche B Notes.


 


“Obligations”
shall have the meaning given to such term in Section 1(a) of the Security
Agreement.


 


“Officer’s
Certificate” with respect to any Person shall mean a certificate executed on
behalf of such Person by a Responsible Officer who has made or caused to be
made such examination or investigation as is necessary to enable such
Responsible Officer to express an informed opinion with respect to the subject
matter of such Officer’s Certificate.


 


“Operative
Agreements” shall mean the following: the Participation Agreement, the Agency
Agreement, the Trust Agreement, the Certificates, the Credit Agreement, the
Notes, the Lease, the Lease Supplements (and memoranda of the Lease and each
Lease Supplement in a form reasonably acceptable to the Agent), the Security
Agreement, the Mortgage Instruments, the other Security Documents, the Deeds
and the Bills of Sale and any and all other agreements, documents and
instruments executed in connection with any of the foregoing.


 


“Original
Executed Counterpart” shall have the meaning given to such term in Section 5 of
Exhibit A to the Lease.


 


“Out Parcel”
shall have the meaning given to such term in Section 22.6 of the Lease.


 


“Out Parcel
Allocable Amount” shall mean with respect to any Out Parcel sold in accordance
with Section 22.6 of the Lease, an amount equal to the product of (a) the Out
Parcel Percentage multiplied by (b) the gross sales 


 


A-21

















 


proceeds of such Out Parcel;
except that in no event shall the Out Parcel Allocable Amount be less than the
product of (x) the Out Parcel Percentage multiplied by (y) the amount of the
Acquisition Advance for the Property from which such Out Parcel is being sold.


 


“Out Parcel
Percentage” shall mean with respect to any Out Parcel sold in accordance with
Section 22.6 of the Lease, a fraction, the numerator of which is the acreage of
such Out Parcel and the denominator of which is the acreage of the Property
(including the acreage of such Out Parcel) from which such Out Parcel is being
sold.


 


“Overdue
Interest” shall mean any interest payable pursuant to Section 2.8(b) of the
Credit Agreement.


 


“Overdue Rate”
shall mean (a) with respect to the Loan Basic Rent, and any other amount owed
under or with respect to the Credit Agreement or the Security Documents, the
rate specified in Section 2.8(b) of the Credit Agreement, (b) with respect to
the Lessor Basic Rent, the Holder Yield and any other amount owed under or with
respect to the Trust Agreement, the Holder Overdue Rate, and (c) with respect
to any other amount, the amount referred to in clause (y) of Section 2.8(b) of
the Credit Agreement.


 


“Owner
Trustee,” “Borrower” or “Lessor” shall mean First Security Bank, National
Association, not individually, except as expressly stated in the various
Operative Agreements, but solely as the Owner Trustee under the TSG Trust
1999-1, and any successor, replacement and/or additional Owner Trustee
expressly permitted under the Operative Agreements.


 


“Parent” shall
mean Sabre Holdings Corporation, a Delaware corporation.


 


“Participant”
shall have the meaning given to such term in Section 9.7 of the Credit
Agreement.


 


“Participation
Agreement” shall mean the Participation Agreement dated on or about the Initial
Closing Date, among the Lessee, the Owner Trustee, not in its individual
capacity except as expressly stated therein, the Holders, the Lenders and the
Agent.


 


“Payment Date”
shall mean any Scheduled Interest Payment Date and any date on which interest
or Holder Yield in connection with a prepayment of principal on the Loans or of
the Holder Advances is due under the Credit Agreement or the Trust Agreement.


 


“PBGC” shall
mean the Pension Benefit Guaranty Corporation created by Section 4002(a)
of ERISA or any successor thereto.


 


“Pension Plan”
shall mean a “pension plan”, as such term is defined in section 3(2) of ERISA,
which is subject to title IV of ERISA (other than a Multiemployer Plan), and to
which the Lessee or any ERISA Affiliate may have any liability, including
without limitation any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five (5) years, or by reason of being deemed to be a contributing
sponsor under section 4069 of ERISA.


 


“Permitted
Facility” shall mean the Constructed Property and the Undeveloped Property.


 


“Permitted
Liens” shall mean:


 


(a)           the respective
rights and interests of the parties under the Operative Agreements as provided
in the Operative Agreements, including Liens that are expressly set forth as
title exceptions on the title commitment issued under Section 5.3(g) of
the Participation Agreement with respect to the applicable Property, to the
extent such title commitment has been approved by the Agent in its reasonable
discretion;


 


(b)           the rights of any
sublessee or assignee under a sublease or an assignment expressly permitted by
the terms of the Lease for no longer than the duration of the Lease;


 


A-22

















 


(c)           Liens for Taxes that
either are not yet due or are being contested in accordance with the provisions
of Section 13.1 of the Lease;


 


(d)           Liens arising by
operation of law, materialmen’s, mechanics’, workmen’s, repairmen’s,
employees’, carriers’, warehousemen’s and other like Liens relating to the
construction of the Improvements or in connection with any Modifications or
arising in the ordinary course of business for amounts that either are not more
than sixty (60) days past due or are being diligently contested in good faith
by appropriate proceedings, so long as such proceedings satisfy the conditions
for the continuation of proceedings to contest Taxes set forth in Section 13.1
of the Lease;


 


(e)           Liens of any of the
types referred to in clause (d) above that have been bonded for not less than
the full amount in dispute (or as to which other security arrangements
satisfactory to the Lessor and the Agent have been made), which bonding (or
arrangements) shall comply with applicable Legal Requirements, and shall have
effectively stayed any execution or enforcement of such Liens;


 


(f)            Liens arising out
of judgments or awards with respect to which appeals or other proceedings for
review are being prosecuted in good faith and for the payment of which adequate
reserves have been provided as required by GAAP or other appropriate provisions
have been made, so long as such proceedings have the effect of staying the
execution of such judgments or awards and satisfy conditions equivalent to
those for the continuation of proceedings to contest Taxes set forth in Section
13.1 of the Lease; and


 


(g)           Liens arising under
Section 8.5 of the Participation Agreement and zoning restrictions; and


 


(h)           Liens in favor of
municipalities to the extent agreed to by the Lessor.


 


“Permitted
Securitization Transaction” shall mean any Securitization Transaction; provided
that such Securitization Transaction is either (i) nonrecourse to the Lessee
and its Subsidiaries and is on market terms and conditions or (ii) (A) the
Agent shall be reasonably satisfied with the structure and documentation for
any such transaction and that the terms of such transaction entered into after
the Initial Closing Date, including the discount applicable to the receivables
which are the subject of such financing and any termination events, shall be
(in the good faith understanding of the Agent) consistent with those prevailing
in the market at the time of commitment thereto for similar transactions
involving a receivables originator/servicer of similar credit quality and a
receivables pool or other similar characteristics and (B) the
documentation for such transaction shall not be amended or modified in a way
which is materially detrimental to the Secured Parties without the prior
written approval of the Agent.


 


“Person” shall
mean any individual, corporation, partnership, limited liability company, joint
venture, association, joint stock company, trust, unincorporated organization,
governmental authority or any other entity.


 


“Plan” shall mean any employee benefit plan (as defined in
Section 3(3) of ERISA) which is covered by ERISA and with respect to which
Lessee, any Subsidiary of Lessee or any ERISA Affiliate is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed to
be) an “employer” within the meaning of Section 3(5) of ERISA.


 


“Plans and
Specifications” shall mean, with respect to Improvements, the plans and
specifications for such Improvements to be constructed or already existing, as
such Plans and Specifications may be amended, modified or supplemented from
time to time in accordance with the terms of the Operative Agreements.


 


“Prime Lending
Rate” shall have the meaning given to such term in the definition
of ”ABR”.


 


“Property”
shall mean, with respect to each Permitted Facility that is (or is to be)
acquired, constructed and/or renovated pursuant to the terms of the Operative
Agreements, the Land and each item of Equipment and the various Improvements,
in each case located on such Land, including without limitation each
Construction Period Property, and each Property for which the Basic Term has
commenced.


 


A-23

















 


“Property
Acquisition Cost” shall mean the cost to the Lessor to purchase a Property on a
Property Closing Date.


 


“Property
Closing Date” shall mean the date on which the Lessor purchases a Property or,
with respect to the first Advance, the date on which the Lessor seeks
reimbursement for Property previously purchased by the Lessor.


 


“Property
Cost” shall mean with respect to a Property the aggregate amount (and for the
various items and occurrences giving rise to such amounts including without
limitation the Hard Costs and the Soft Costs) of the Loan Property Cost plus
the Holder Property Cost for such Property (as such amounts shall be increased
equally among all Properties respecting the Holder Advances and the Loans
extended from time to time to pay for the Transaction Expenses, fees, expenses
and other disbursements referenced in Sections 7.1(a), 7.1(b) and 7.2 of
the Participation Agreement and indemnity payments pursuant to Section 11.8 of
the Participation Agreement).


 


“Purchase
Option” shall have the meaning given to such term in Section 20.1 of the Lease.


 


“Rating
Agencies” shall mean Moody’s and S&P or, in each case, any successor
nationally recognized statistical rating organization.


 


“Register” shall
have the meaning given to such term in Section 9.9 of the Credit Agreement.


 


“Regulation D”
shall mean Regulation D of the Board of Governors of the Federal Reserve System
(or any successor), as the same may be modified and supplemented and in effect
from time to time.


 


“Release”
shall mean any release, pumping, pouring, emptying, injecting, escaping,
leaching, dumping, seepage, spill, leak, flow, discharge, disposal or emission
of a Hazardous Substance.


 


“Renewal Term”
shall have the meaning given to such term in Section 2.2 of the Lease.


 


“Rent” shall
mean, collectively, the Basic Rent and the Supplemental Rent, in each case
payable under the Lease.


 


“Rent
Commencement Date” shall mean, regarding each Property, the Completion Date.


 


“Reportable Event” shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice requirement
has been waived by regulation.


 


“Requested
Funds” shall mean any funds requested by the Lessee or the Construction Agent,
as applicable, in accordance with Section 5 of the Participation Agreement.


 


“Requisition”
shall have the meaning given to such term in Section 4.2 of the Participation
Agreement.


 


“Responsible
Officer” shall mean the Chairman or Vice Chairman of the Board of Directors,
the Chairman or Vice Chairman of the Executive Committee of the Board of
Directors, the President, any Senior Vice President or Executive Vice
President, any Vice President, the Corporate Secretary, any Assistant Corporate
Secretary, the Treasurer, or any Assistant Treasurer, or the Director of
Corporate Finance and Banking, except that when used with respect to the Trust
Company or the Owner Trustee, “Responsible Officer” shall also include the
Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust Officer,
the Controller and any Assistant Controller or any other officer of the Trust
Company or the Owner Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.


 


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“S&P”
shall mean Standard and Poor’s Rating Group, a division of The McGraw Hill
Companies, Inc. and any successor thereto.


 


“Sabre” shall
mean Sabre Inc., a Delaware corporation, and its successors and permitted
assigns.


 


“Sale Date”
shall have the meaning given to such term in Section 22.1(a) of the Lease.


 


“Sale Notice”
shall mean a notice given to the Lessor in connection with the election by the
Lessee of its Sale Option.


 


“Sale Option”
shall have the meaning given to such term in Section 20.1 of the Lease.


 


“Sale Proceeds
Shortfall” shall mean the amount by which the proceeds of a sale described in
Section 22.1 of the Lease are less than the Limited Recourse Amount with
respect to the Properties if it has been determined that the Fair Market Sales
Value of the Properties at the expiration of the term of the Lease has been
impaired by greater than ordinary wear and tear during the Term of the Lease.


 


“Scheduled
Interest Payment Date” shall mean (a) as to
any Eurodollar Loan or Eurodollar Holder Advance, the last day of the Interest
Period applicable to such Eurodollar Loan or Eurodollar Holder Advance (or
respecting any Eurodollar Loan or Eurodollar Holder Advance having an Interest
Period of six (6) months or twelve (12) months, the three (3) month anniversary
of such Interest Period), (b) as to any ABR Loan or any ABR Holder Advance, the
fifth Business Day after the end of each calendar quarter and (c) as to all
Loans and Holder Advances, the date of any voluntary or involuntary payment,
prepayment, return or redemption, and the Expiration Date, as the case
may be.


 


“Secured
Parties” shall have the meaning given to such term in the Security Agreement.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended, together with the rules
and regulations promulgated thereunder.


 


“Securitization
Receivables” shall have the meaning assigned to such term in the definition of
“Securitization Transaction”.


 


“Securitization
Subsidiary” shall have the meaning assigned to such term in the definition of
“Securitization Transaction”.


 


“Securitization
Transaction” shall mean any financing transaction or series of financing
transactions that have been or may be entered into by Lessee or any of its
Consolidated Subsidiaries pursuant to which such entity may sell, convey or
otherwise transfer to a Subsidiary or an Affiliate of Lessee (a “Securitization
Subsidiary”), or any other Person, or may grant a security interest in, any
accounts receivable, notes receivable, rights to future lease payments or
residuals or other similar rights to payment (the “Securitization
Receivables”) (whether such Securitization Receivables are then existing or
arising in the future) of such entity, and any assets related thereto,
including without limitation, all security interests in merchandise or services
financed thereby, the proceeds of such Securitization Receivables, and other
assets which are customarily sold or in respect of which security interests are
customarily granted in connection with securitization transactions involving
such assets.


 


“Security
Agreement” shall mean the Security Agreement dated on or about the Initial
Closing Date between the Lessor and the Agent, for the benefit of the Secured
Parties, and accepted and agreed to by the Lessee.


 


“Security
Documents” shall mean the collective reference to the Security Agreement, the
Mortgage Instruments, to the extent the Lease is construed as a security
instrument by a court of competent jurisdiction, the Lease, the UCC Financing
Statements and all other security documents hereafter delivered to the Agent granting
a lien on any asset or assets of any Person to secure the obligations and
liabilities of the Lessor under the Credit Agreement and/or under any of the
other Credit Documents or to secure any guarantee of any such obligations and
liabilities.


 


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“Single Employer Plan” shall mean any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.


 


“Soft Costs”
shall mean all costs which are ordinarily and reasonably incurred in relation
to the acquisition, development, design, installation, construction,
improvement and testing of the Properties other than Hard Costs, including
without limitation structuring fees, syndication fees, administrative fees, Attorney
Costs, other professional fees, upfront fees, brokers’ fees, Transaction
Expenses, fees and expenses related to appraisals, title examinations, title
insurance, document recordation, surveys, environmental site assessments,
geotechnical soil investigations and similar costs and professional fees
customarily associated with a real estate closing, the Lender Unused Fee, the
Holder Unused Fee, fees and expenses of the Owner Trustee payable or
reimbursable under the Operative Agreements, costs and expenses incurred
pursuant to Sections 7.3(a) and 7.3(b) of the Participation Agreement and other
similar costs of a nature ordinarily and reasonably incurred in connection with
construction of any Property.


 


“Spin-Off
Transaction” shall mean the spin-off of the Parent from AMR Corporation.


 


“Subject
Properties” shall mean have the
meaning given to such term in Section 6.2(y)(i) of the Participation Agreement.


 


“Subsidiary”
shall mean, as to any Person, (a) any corporation more than fifty percent (50%)
of whose Capital Stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (b) any partnership, association, limited liability
company, joint venture or other entity in which such Person directly or
indirectly through Subsidiaries has more than fifty percent (50%) equity
interest at any time.  Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in any
Operative Agreement shall refer to a Subsidiary or Subsidiaries of the Lessee
or the Parent, as the context of usage in the particular provision requires.


 


“Supplemental
Amounts” shall have the meaning given to such term in Section 9.18 of the
Credit Agreement.


 


“Supplemental
Rent” shall mean all amounts, liabilities and obligations (other than Basic
Rent) which the Lessee assumes or agrees to pay to the Lessor, the Trust
Company, the Holders, the Agent, the Lenders or any other Person under the
Lease or under any of the other Operative Agreements including without
limitation payments of the Termination Value and the Maximum Residual Guarantee
Amount and all indemnification amounts, liabilities and obligations.


 


“Support Obligations” shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Funded Debt of any other
Person in any manner, whether direct or indirect, and including without
limitation any obligation, whether or not contingent, (i) to purchase any such
Funded Debt or any property constituting security therefor, (ii) to advance or
provide funds or other support for the payment or purchase of any such Funded
Debt or to maintain working capital, solvency or other balance sheet condition
of such other Person (including without limitation keep well agreements,
maintenance agreements, comfort letters or similar agreements or arrangements)
for the benefit of any holder of Funded Debt of such other Person, (iii) to
lease or purchase property, securities or services primarily for the purpose of
assuring the holder of such Funded Debt, or (iv) to otherwise assure or hold
harmless the holder of such Funded Debt against loss in respect thereof.  The amount of any Support Obligation
hereunder shall (subject to any limitations set forth therein) be deemed to be
an amount equal to the outstanding principal amount (or maximum principal
amount, if larger) of the Funded Debt in respect of which such Support
Obligation is made.


 


“Taxes” shall
have the meaning given to such term in the definition of “Impositions”.


 


“Term” shall
mean the Basic Term and each Renewal Term, if any.


 


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“Termination
Date” shall have the meaning given to such term in Section 16.2(a) of the
Lease.


 


“Termination
Notice” shall have the meaning specified in Section 16.1 of the Lease.


 


“Termination
Value” shall mean the sum of (a) either (i) with respect to all Properties, an
amount equal to the aggregate outstanding Property Cost for all the Properties,
in each case as of the last occurring Payment Date, or (ii) with respect to a
particular Property, an amount equal to the Property Cost allocable to such
Property, plus (b) respecting the amounts described in each of the foregoing
subclause (i) or (ii), as applicable, any and all accrued but unpaid interest
on the Loans and any and all undistributed Holder Yield on the Holder Advances
related to the applicable Property Cost, plus (c) to the extent the same is not
duplicative of the amounts payable under clause (b) above, all other Rent and
other amounts then due and payable or accrued under the Agency Agreement, Lease
and/or under any other Operative Agreement (including without limitation
amounts under Sections 11.1 and 11.2 of the Participation Agreement and all
costs and expenses referred to in clause FIRST of Section 22.2 of the
Lease).


 


“Tranche A
Commitments” shall mean the obligation of the Tranche A Lenders to make the
Tranche A Loans to the Lessor in an aggregate principal amount at any one (1)
time outstanding not to exceed the aggregate of the amounts set forth opposite
each Tranche A Lender’s name on Schedule 2.1 to the Credit Agreement, as
such amount may be increased or reduced from time to time in accordance with
the provisions of the Operative Agreements; except that no Tranche A Lender
shall be obligated to make Tranche A Loans in excess of such Tranche A
Lender’s share of the Tranche A Commitments as set forth adjacent to such
Tranche A Lender’s name on Schedule 2.1 to Credit Agreement.


 


“Tranche A
Lenders” shall mean the several banks and other financial institutions from
time to time party to the Credit Agreement that commit to make the
Tranche A Loans.


 


“Tranche A
Loans” shall mean the Loans made pursuant to the Tranche A Commitment.


 


“Tranche A
Note” shall have the meaning given to such term in Section 2.2 of the Credit
Agreement.


 


“Tranche B
Commitments” shall mean the obligation of the Tranche B Lenders to make the
Tranche B Loans to the Lessor in an aggregate principal amount at any one (1)
time outstanding not to exceed the aggregate of the amounts set forth opposite
each Tranche B Lender’s name on Schedule 2.1 to the Credit Agreement, as
such amount may be increased or reduced from time to time in accordance with
the provisions of the Operative Agreements; except that no Tranche B Lender
shall be obligated to make Tranche B Loans in excess of such Tranche B
Lender’s share of the Tranche B Commitments as set forth adjacent to such
Tranche B Lender’s name on Schedule 2.1 to Credit Agreement.


 


“Tranche B
Lenders” shall mean the several banks and other financial institutions from
time to time party to the Credit Agreement that commit to make the
Tranche B Loans.


 


“Tranche B
Loan” shall mean the Loans made pursuant to the Tranche B Commitment.


 


“Tranche B
Note” shall have the meaning given to such term in Section 2.2 of the Credit
Agreement.


 


“Transaction
Expenses” shall mean all Soft Costs and all other costs and expenses incurred
in connection with the preparation, execution and delivery of the Operative
Agreements and the transactions contemplated by the Operative Agreements
including without limitation all costs and expenses described in Section 7.1
and 7.2 of the Participation Agreement and the following:


 


(a)           Attorney Costs for
the Lessee, the Construction Agent, the Owner Trustee and the Agent in
negotiating the terms of the Operative Agreements and the other transaction
documents, preparing for the closings under, and rendering opinions in
connection with, such transactions and in rendering other services customary
for counsel representing parties to transactions of the types involved in the
transactions contemplated by the Operative Agreements;


 


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(b)           the reasonable fees,
out-of-pocket expenses and disbursements of accountants for the Lessee or the
Construction Agent in connection with the transaction contemplated by the
Operative Agreements;


 


(c)           any and all other
reasonable fees, charges or other amounts payable to the Lenders, the Agent,
the Holders, the Owner Trustee or any broker which arises under any of the
Operative Agreements;


 


(d)           any other reasonable
fees, out-of-pocket expenses, disbursement or cost of any party to the
Operative Agreements; and


 


(e)           any and all Taxes
and fees incurred in recording or filing any Operative Agreement or any other
transaction document, any deed, declaration, mortgage, security agreement,
notice or financing statement with any public office, registry or governmental
agency in connection with the transactions contemplated by the Operative
Agreement.


 


“Trust” shall
mean the TSG Trust 1999-1.


 


“Trust
Agreement” shall mean the Trust Agreement dated on or about the Initial Closing
Date between the Holders and the Owner Trustee.


 


“Trust
Company” shall mean First Security Bank, National Association, in its
individual capacity, and any successor owner trustee under the Trust Agreement
in its individual capacity.


 


“Trust Estate”
shall have the meaning given to such term in Section 2.2 of the Trust
Agreement.


 


“TSG Trust
1999-1” shall mean the grantor trust created pursuant to the terms and
conditions of the Trust Agreement.


 


“Type” shall
mean, as to any Loan, whether it is an ABR Loan or a Eurodollar Loan.


 


“UCC Financing
Statements” shall mean collectively the Lender Financing Statements and the
Lessor Financing Statements.


 


“Unanimous
Vote Matters” shall have the meaning given to such term in Section 12.4 of the
Participation Agreement.


 


“Undeveloped
Property” shall have the meaning given to such term in Section 5.3(t) of the
Participation Agreement.


 


“Unfunded
Amount” shall have the meaning given to such term in Section 3.2 of the Agency
Agreement.


 


“Unfunded
Liability” shall mean, with respect to any Plan, at any time, the amount (if
any) by which (a) the present value of all benefits under such Plan exceeds
(b) the fair market value of all Plan assets allocable to such benefits,
all determined as of the then most recent valuation date for such Plan, but
only to the extent that such excess represents a potential liability of the
Company or any member of the Controlled Group to the PBGC or such Plan under
Title IV of ERISA.


 


“Uniform
Commercial Code” and “UCC” shall mean the Uniform Commercial Code as in effect
in any applicable jurisdiction.


 


“Unused Fee”
shall mean, collectively, the Holder Unused Fee and the Lender Unused Fee.


 


“Unused Fee
Payment Date” shall mean the fifth Business Day following the end of each
calendar quarter and the fifth Business Day after the Commitment Period, or
such earlier date as the Commitments shall terminate as provided in the Credit
Agreement or the Holder Commitment shall terminate as provided in the Trust
Agreement.


 


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“U.S. Person”
shall have the meaning given to such term in Section 11.2(e) of the
Participation Agreement.


 


“U.S. Taxes”
shall have the meaning given to such term in Section 11.2(e) of the
Participation Agreement.


 


“Withholdings”
shall have the meaning given to such term in Section 11.2(e) of the
Participation Agreement.


 


“Work” shall
mean the furnishing of labor, materials, components, furniture, furnishings,
fixtures, appliances, machinery, equipment, tools, power, water, fuel, lubricants,
supplies, goods and/or services with respect to any Property.


 


“Year 2000
Compliant” shall have the meaning given to such term in Section 6.2(v) of the
Participation Agreement.


 


“Year 2000
Problem” shall mean the risk that computer applications used by the Lessee, any
of its Subsidiaries or any supplier, vendor or customer of the Lessee or any of
its Subsidiaries may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after December 31,
1999.


 


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