in the Participation Agreement, dated as of August 26, 2002, by and
between Transamerica Equipment Financial Services Corporation and Seller, and
the Participation Agreement, dated as of August 27, 2002, by and between UPS
Capital Corporation, a Delaware corporation, and Seller (such 12.684%
partnership interest, the "Cylinder Head Interest"; and such Participation
Agreements, the "Cylinder Head Agreements");
WHEREAS, the Seller and the Buyer are among the parties to that certain Purchase
and Sale Agreement dated as of May
, 2004 (the "Purchase Agreement") (each
capitalized term used in this Agreement which is not defined herein shall have
the meaning ascribed to such term in the Purchase Agreement); and
WHEREAS, pursuant to the Purchase Agreement, the Seller has agreed to grant to
the Buyer the rights provided for under this Agreement with respect to the
Bethlehem Interest and the Cylinder Head Interest (collectively, the "Seller
Interests", and each individually, a "Seller Interest") as a condition precedent
to the Buyer's obligation to close under the Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1
SECTION 1
PURCHASE OPTION
1.1
PURCHASE OPTION.
THE SELLER HEREBY GRANTS TO THE BUYER THE RIGHT
TO PURCHASE FROM THE SELLER (THE "PURCHASE OPTION") ON MARCH 21, 2005 (THE
"PURCHASE DATE") ALL (BUT NOT LESS THAN ALL) OF THE SELLER'S RIGHT, TITLE AND
INTEREST IN, TO AND UNDER EITHER OR BOTH OF THE SELLER INTERESTS IN ACCORDANCE
WITH AND SUBJECT TO THE TERMS AND CONDITIONS OF THIS SECTION 1.
1.2
EXERCISE OF PURCHASE OPTION.
(A)
IF THE BUYER ELECTS TO EXERCISE THE PURCHASE OPTION WITH RESPECT TO ONE OR
MORE OF THE SELLER INTERESTS, THE BUYER SHALL DELIVER WRITTEN NOTICE OF SUCH
ELECTION (A "BUYER ELECTION NOTICE") TO THE SELLER DURING THE PERIOD BEGINNING
SIXTY (60) DAYS PRIOR TO THE PURCHASE DATE AND ENDING THIRTY (30) DAYS PRIOR TO
THE PURCHASE DATE (THE "BUYER EXERCISE PERIOD") INDICATING WHICH OF THE SELLER
INTERESTS IT IS ELECTING TO PURCHASE.
(B)
ANY BUYER ELECTION NOTICE SHALL BE DELIVERED TO THE SELLER IN THE MANNER
AND AT THE ADDRESS FOR NOTICES FOR THE SELLER SET FORTH IN SECTION 12.3 OF THE
PURCHASE AGREEMENT.
(C)
THE PURCHASE OPTION WILL BECOME NULL AND VOID WITH RESPECT TO A SELLER
INTEREST IF THE BUYER DOES NOT INCLUDE SUCH SELLER INTEREST IN A BUYER ELECTION
NOTICE DURING THE BUYER ELECTION PERIOD OR IF THE PURCHASE OPTION CLOSING (AS
DEFINED BELOW) DOES NOT OCCUR WITH RESPECT TO SUCH SELLER INTEREST ON THE
PURCHASE DATE.
THE PURCHASE OPTION SHALL BE DEEMED TO BE NULL AND VOID AB
INITIO (I) AS TO THE BETHLEHEM INTEREST IN THE EVENT THAT EITHER BUYER OR SELLER
HAS ELECTED IN WRITING, PURSUANT TO SECTION 5.2(D)(I) OF THE PURCHASE AGREEMENT,
TO REFUSE AN EQUITABLE ASSIGNMENT OF THE SPECIFIED FINANCING AND LEASE ASSET OR
EQUITY ASSET THAT CONSISTS OF AN INTEREST IN THE SAME UNDERLYING ASSET OR ENTITY
AS THE BETHLEHEM INTEREST (THE "RELATED BETHLEHEM ASSET"), AND (II) AS