1
Exhibit 10.17
Appendix A
EXECUTION COPY
APPENDIX A
to
Participation Agreement,
Master Lease,
Lease Supplements
Loan Agreement,
Pledge Agreement,
Lessor Mortgages, and
Guaranty
DEFINITIONS AND INTERPRETATION
A. Interpretation. In each Operative Document, unless a clear contrary
intention appears:
(i) the singular number includes the plural number and
vice versa;
(ii) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by the Operative Documents, and reference to a Person in a
particular capacity excludes such Person in any other capacity or
individually;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative
Document), document or instrument means such agreement, document or
instrument as amended or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms of the
other Operative Documents and reference to any promissory note includes
any promissory note which is an extension or renewal thereof or a
substitute or replacement therefor;
(v) reference to any Applicable Law means such Applicable Law as
amended, modified, codified, replaced or reenacted, in whole or in part,
and in effect from time to time, including rules and regulations
promulgated thereunder and reference to any section or other provision
of any Applicable Law means that provision of such Applicable Law from
time to time in effect and constituting the substantive amendment,
modification, codification, replacement or reenactment of such section
or other provision;
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(vi) reference in any Operative Document to any Article, Section,
Appendix, Schedule or Exhibit means such Article or Section thereof or
Appendix, Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar import
shall be deemed references to an Operative Document as a whole and not
to any particular Article, Section or other provision thereof;
(viii) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding
such term; and
(ix) relative to the determination of any period of time, "from"
means "from and including" and "to" means "to but excluding".
B. Computation of Time Periods. For purposes of computation of periods
of time under the Operative Documents, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding."
C. Accounting Terms and Determinations. In each Operative Document,
unless expressly otherwise provided, accounting terms shall be construed and
interpreted, and accounting determinations and computations shall be made, in
accordance with GAAP.
D. Conflict in Operative Documents. If there is any conflict between any
Operative Documents, such Operative Document shall be interpreted and construed,
if possible, so as to avoid or minimize such conflict but, to the extent (and
only to the extent) of such conflict, the Participation Agreement shall prevail
and control.
E. Legal Representation of the Parties. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring the Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
F. Defined Terms. Unless a clear contrary intention appears, terms
defined herein have the respective indicated meanings when used in each
Operative Document.
"Acquisition Date" is defined in Section 2.2 of the Participation
Agreement.
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"Additional Collateral" means any of the following obligations which
have been issued or guaranteed by the United States of America or an agency
thereof and having a remaining maturity of three years or less:
(i) all allotments, accretions, offers, rights, benefits and
advantages whatsoever at any time accruing, offered or arising in
respect of or incidental to the same or in respect of or incidental to
any securities, rights, moneys or other property previously accruing,
offered or arising as mentioned in this sub-clause (i); and
(ii) all proceeds of sale, dividends, interest and other
distributions or income hereafter paid or payable or made in respect of
the same or the securities, rights, moneys or other property falling
within sub-clause (i) above or deriving from any investment of any such
dividends, interest and other distributions or income; also includes
(without limitation):
(a) obligations of the United States of America having
a maturity of not more than one (1) year from the
date of issue and commonly known as "treasury
bills";
(b) obligations of the United States of America having
a maturity greater than one year, but no more than
ten (10) years, from the date of issue and commonly
known as "treasury notes";
(c) obligations of the United States of America having
a maturity date in excess of ten (10) years, from
the date of issue and commonly known as "treasury
bonds";
(d) U.S. Treasury Securities converted by the
Department of the Treasury into Separate Trading of
Registered Interest and Principal of
Securities;
(e) obligations of Federal agencies of the government
of the United States of America which are backed as
to payment of interest and principal by the full
faith and credit of the United States of America;
and
(f) repurchase agreements of government securities
described in sections (a) through
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(e) above with dealers approved by the Lessor.
"Adjusted EBITDA" is defined in Section 10.1(f)(iii) of the
Participation Agreement
"Advance" means an advance of funds by the Lessor and the Agent to the
Lessee pursuant to Article III of the Participation Agreement.
"Affiliate" means, when used with respect to any Person, any other
Person directly or indirectly Controlling or Controlled by or under direct or
indirect common control with such Person.
"After Tax Basis" means, with respect to any payment to be received, the
amount of such payment increased so that, after deduction of the amount of all
taxes required to be paid by the recipient (less any tax savings realized and
the present value of any tax savings projected to be realized by the recipient
as a result of the payment of the indemnified amount) with respect to the
receipt by the recipient of such amounts, such increased payment (as so reduced)
is equal to the payment otherwise required to be made.
"Agent" means The Sumitomo Bank, Limited, San Francisco Branch, in its
capacity as Agent, and any successors or assigns in such capacity.
"Alternate Base Rate" shall mean, for any day, the Federal Funds Rate
for such day plus 1/2 of 1%. In the event that on any day the Agent determines
that the Federal Funds Rate is not available, then for each such day the
Alternate Base Rate shall mean the rate of interest from time to time
established by the Agent as its prime commercial lending rate (which rate is not
intended to be the lowest rate of interest charged by the Agent in connection
with extensions of credit to debtors) (the "Prime Rate"). Each change in any
interest rate provided for herein based upon the Alternate Base Rate resulting
from a change in the Alternate Base Rate shall take effect at the time of such
change in the Alternate Base Rate.
"Alternate Base Rate Loan(s)/Lessor Amount(s)" means a Loan or Lessor
Amount, as the case may be, bearing interest at the Alternate Base Rate.
"Applicable Law" means all existing and future applicable laws, rules,
regulations (including Hazardous Materials Laws) statutes, treaties, codes,
ordinances, permits, certificates, orders and licenses of and interpretations
by, any Governmental
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Authority, and applicable judgments, decrees, injunctions, writs, orders or like
action of any court, arbitrator or other administrative, judicial or
quasi-judicial tribunal or agency of competent jurisdiction (including those
pertaining to health, safety or the environment (including, without limitation,
wetlands) and those pertaining to the construction, use or occupancy of any
Property) or in each case affecting the Lessee, any Property or any material
interests in any other kind of property or asset, whether real, personal or
mixed, or tangible or intangible, of the Lessee.
"Appraisal" means, with respect to each Property, an appraisal, prepared
by a reputable appraiser selected by the Agent and the Lessor, which Appraisal
complies in all material respects 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 Requirements
of Law addressed to the Lessor and Lessee, and will appraise the Fair Market
Sales Value of such Property as of the Acquisition Date (or, in the case of the
Appraisal delivered with respect to certain Improvements on City Center II, as
of the Completion Date) and as of the Expiration Date for the applicable Base
Lease Term.
"Appurtenant Rights" means, with respect to any Land, (i) all
agreements, easements, rights of way or use, rights of ingress or egress,
privileges, appurtenances, tenements, hereditaments and other rights and
benefits at any time belonging or pertaining to such Land or the Improvements
thereon, including, without limitation, the use of any streets, ways, alleys,
vaults or strips of land adjoining, abutting, adjacent or contiguous to such
Land and (ii) all permits, licenses and rights, whether or not of record,
appurtenant to such Land.
"Architect" means (a) with respect to City Center II, Erlich Rominger or
(b) Hellmuth, Obata + Kassabaum, or such other Person who shall, with the prior
consent of the Lessor, have been designated by the Construction Agent to act as
the architect for purposes of the Construction.
"Assignment of Lease and Rent" means the Amended and Restated Assignment
of Lease and Rent dated as of February 9, 1999, and all supplements thereto,
from the Lessor, as assignor, to the Lenders, as assignees.
"Available Construction Commitment" means with respect to City Center
II, as the case may be, at any time, an amount equal to the excess, if any, of
(a) the amount of the Construction Commitment Amount over (b) the aggregate
original principal
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amount of all Construction Advances for such Property (including all
Construction Advances made for the purpose of financing Capitalized Interest,
Commitment Fees and the Arrangement Fee).
"Bank" is defined in the Credit Agreement.
"Bankruptcy Code" is defined in Section 6.1(e) of the Loan Agreement.
"Basic Rent" means, for each Property, the sum of (i) the Lender Basic
Rent and (ii) the Lessor Basic Rent, calculated as of the applicable date on
which Basic Rent is due.
"Basic Rent Payment Date" means each Scheduled Payment Date during the
Base Lease Term.
"Base Lease Term" is defined in Section 2.3 of the Master Lease.
"Bill of Sale" is defined in Section 2.1(j) of the Participation
Agreement.
"Borrower" is defined in the Credit Agreement.
"Break Costs" means an amount equal to the amount, if any, required to
compensate any Participant for any additional losses (including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or funds acquired by such Participant to fund its
obligations under the Operative Documents) it may reasonably incur as a result
of (v) the Lessee's payment of Rent other than on a Basic Rent Payment Date, (x)
any Advance not being made on the date specified therefor in the applicable
Funding Request as a result of any act or omission of Lessee (other than as a
result of a breach by such Participant, as the case may be, of its or any other
Participants obligation under Section 3.1, 3.2 or 3.3, as the case may be, of
the Participation Agreement to make Advances to the Lessee or make Lessor
Amounts or Loans available to the Lessor), (y) the Lessee's payment of the Lease
Balance on any date other than a Basic Rent Payment Date which date is not also
the end of the applicable Interest Period, or (z) as a result of any conversion
of the LIBO Rate in accordance with Section 13.7 of the Participation Agreement.
A statement as to the amount of such loss, cost or expense, prepared in good
faith and in reasonable detail and submitted by such Participant, as the case
may be, to the Lessee, shall be presumed correct and binding on the Lessee
absent demonstrable error.
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"Business Day" means (i) each day which is not a day on which banks in
New York, New York and San Francisco, California, are generally authorized or
obligated, by law or executive order, to close and (ii) any day which is a
Business Day under clause (i) and is also a day on which dealings in Dollars are
carried on in the London interbank eurodollar market.
"Capitalized Interest" means, for each Construction Payment Date during
the Construction Commitment Period, an amount equal to (a) the aggregate
outstanding Property Improvement Costs on such date multiplied by (b) the LIBO
Rate (Reserve Adjusted) plus, a margin of 0.275% or, with respect to City Center
II, (i) .20% on any unused portion of the Loan Commitment or ((ii) .80% on any
unused portion of the Lessor Commitment, multiplied by (c) the number of days
elapsed since the immediately preceding Construction Payment Date (or, in the
case of the first Construction Payment Date, the number of days elapsed since
the first Construction Advance), divided by (d) 360.
"Capital Lease" means any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on a balance
sheet of the lessee in accordance with GAAP.
"Capital Lease Obligations" means the capitalized lease obligations
relating to a Capital Lease determined in accordance with GAAP.
"Casualty" means any damage or destruction of all or any portion of a
Property as a result of a fire or other casualty.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. Sections 9601 et. seq., as amended by the
Superfund Amendments and Reauthorization Act of 1986.
"Certifying Party" is defined in Section 22.1 of the Master Lease.
"Change of Control" means with respect to the Lessee that any person or
group of persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities and Exchange
Commission under said Act) of 49% or more of the outstanding shares of Voting
stock of the Lessee.
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"City Center I" means the Property consisting of the Land and
Improvements covered by Lease Supplement No. 2 dated as of October 22, 1996.
"City Center II" means the Property consisting of the Land and
Improvements covered by Lease Supplement No. 4 together with all Improvements
thereto constructed pursuant to the Construction Agency Agreement.
"City Center V" means the Property consisting of (a) the Land and
Improvements covered by Lease Supplement No. 3 dated as of February 5, 1997,
together with (b) all Improvements thereon constructed pursuant to the
Construction Agency Agreement.
"Claims" means any and all obligations, liabilities, losses, actions,
suits, judgments, penalties, fines, claims, demands, settlements, costs and
expenses (including, without limitation, reasonable legal fees and expenses) of
any nature whatsoever.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute thereto.
"Collateral Agent" means Donaldson, Lufkin & Jenrette Securities
Corporation, as Collateral Agent under the Pledge Agreement, and its permitted
successors and assigns.
"Commitment" means (i) as to any Lender, the Loan Commitment, and (ii)
as to the Lessor, the Lessor Commitment.
"Commitment Percentage" means, with respect to any Property, as to (i)
each Lender, its pro rata share of the Lenders' Percentage with respect to such
Property, and (ii) the Lessor, an amount, expressed as a percentage, equal to
100% minus such applicable Lenders' Percentage.
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Company within the meaning
of Section 4001 of ERISA or is part of a group which includes the Company and
which is treated as a single employer under Section 414 of the Code.
"Condemnation" means, with respect to any Property, any condemnation,
requisition, confiscation, seizure or other taking or sale of the use, access,
occupancy, easement rights or title to such 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 an action by a Governmental
Authority to change the grade of, or
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widen the streets adjacent to, such Property or alter the pedestrian or
vehicular traffic flow to such Property so as to result in change in access to
such Property, or by or on account of an eviction by paramount title or any
transfer made in lieu of any such proceeding or action. A "Condemnation" shall
be deemed to have occurred on the earliest of the dates that use, occupancy or
title vests in the condemning authority.
"Construction" means the construction and installation of all
Improvements contemplated by the Plans and Specifications.
"Construction Advance" means each Advance made by the Lessor and the
Agent to the Construction Agent for the purpose of paying Property Improvement
Costs with respect to City Center II, as the case may be.
"Construction Agency Agreement" means, with respect to City Center II,
the Construction Agency Agreement between the Lessor and the Construction Agent
in the form of Exhibit G to the Participation Agreement.
"Construction Agency Agreement Event of Default" means a "Construction
Agency Agreement Event of Default" as defined in Section 5.1 of the Construction
Agency Agreement.
"Construction Agent" means Symantec Corporation, as
construction agent under the Construction Agency Agreement.
"Construction Commitment Amount" means $17,282,002 with respect to City
Center II.
"Construction Commitment Period" with respect to City Center II, means
the period commencing on the Restructuring Date and ending on (but excluding)
the earliest of (w) the date of Substantial Completion of City Center II, (x)
the date of termination of the City Center II Construction Agency Agreement (y)
the date when the City Center II Construction Commitment Amount has been fully
funded and (z) the date which is twelve (12) months after the Restructuring
Date.
"Construction Documents" is defined in Section 2.4 of the
Construction Agency Agreement.
"Construction Payment Date" means (a) the 15th day of each calendar
month, commencing with the 15th day of March, 1997, and (b) the last day of the
Interim Lease Term (provided, that if such day is not a Business Day, such
Construction Payment Date shall be extended to the next succeeding Business
Day).
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"Construction Period Guarantee Amount" means with respect to City Center
II, as of any date of determination, 89.9% of Project Cost.
"Control" means (including the correlative meanings of the terms
"controlled by" and "under common control with"), as used with respect to any
Person, the possession directly or indirectly, of the power to direct or cause
the direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Credit Agreement" means the Second Amended and Restated Credit
Agreement between the Lessee and Bank of America National Trust and Savings
Association dated as of March 28, 1996, and any successor agreement thereto or
replacement agreement thereof, as each may be from time to time amended,
modified or supplemented.
"Custody Agreement" means the letter agreement between the Lessor and
the Collateral Agent with respect to the Additional Collateral.
"Deed" means a grant deed with respect to the real property comprising
the applicable Property, in conformity with Applicable Law and appropriate for
recording with the applicable Governmental Authorities, conveying fee simple
title to such real property to the Lessor, subject only to Permitted Liens.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Deficiency Date" is defined in Section 6.1 of the Participation
Agreement.
"Deficiency Collateral" is defined in Section 6.1 of the Participation
Agreement.
"Documentation Date" is defined in Section 2.1 of the Participation
Agreement.
"Dollars" and "$" mean dollars in lawful currency of the United States
of America.
"End of the Term Report" is defined in Section 13.2(a) of the
Participation Agreement.
"Environmental Audit" means, with respect to each Property, a Phase One
environmental site assessment (the scope and performance of which meets or
exceeds the then most current ASTM
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Standard Practice E1527 for Environmental Site Assessments: Phase One
Environmental Site Assessment Process) of such Property.
"Environmental Violation" means any activity, occurrence or condition
that violates or results in non-compliance with any Hazardous Materials Law.
"Equipment" means equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased, leased or
otherwise acquired by the Lessor using the proceeds of the Loans or the Lessor
Amounts and now or subsequently attached to, contained in or used or usable in
any way in connection with any operation or letting of a Property, including but
without limiting the generality of the foregoing, all screens, awnings, shades,
blinds, curtains, draperies, artwork, carpets, rugs, storm doors and windows,
shelving, display cases, counters, furniture and furnishings, heating,
electrical, switch gear, uninterrupted power supply, and mechanical equipment,
lighting, switchboards, plumbing, ventilation, air conditioning and air-cooling
apparatus, refrigerating, and incinerating equipment, escalators, generators,
elevators, loading and unloading equipment and systems, stoves, ranges, laundry
equipment, cleaning systems (including window cleaning apparatus), telephones,
communication systems (including satellite dishes and antennae), televisions,
computers, 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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"ERISA Affiliate" means each entity required to be aggregated with the
Lessee pursuant to the requirements of Section 414(b) or (c) of the Code.
"ERISA Group" means the Lessee and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with Lessee, are treated as a single employer
under Section 414 of the Code.
"Event of Default" means a Lease Event of Default or a Loan
Agreement Event of Default.
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"Excess Casualty/Condemnation Proceeds" means the excess, if any, of (x)
the aggregate of all awards, compensation or insurance proceeds payable in
connection with a Casualty or Condemnation minus (y) the Property Balance paid
by the Lessee pursuant to Article XV of the Master Lease with respect to such
Casualty or Condemnation.
"Excess Sales Proceeds" means the excess, if any, of (x) the aggregate
of all proceeds received by the Lessor in connection with any sale of the
Property pursuant to the Lessor's exercise of remedies under Section 16.2 of the
Master Lease or the Lessee's exercise of the Remarketing Option under Article XX
of the Master Lease, less all fees, costs and expenses of the Lessor in
connection with the exercise of its rights and remedies thereunder, minus (y)
the Lease Balance.
"Exchange Request" means an exchange request substantially in the form
of Exhibit A-1 of the Participation Agreement.
"Expiration Date" means, with respect to the Master Lease, unless the
Master Lease shall have been earlier terminated in accordance with the
provisions of the Master Lease or other Operative Documents, the seventh (7th)
anniversary of the Documentation Date.
"Expiration Date Purchase Obligation" means the Lessee's obligation,
pursuant to Section 18.2 of the Master Lease, to purchase all (but not less than
all) of the Properties on the Expiration Date.
"Fair Market Sales Value" means, with respect to any Property, the
amount, which in any event shall not be less than zero, that would be paid in
cash in an arm's-length transaction between an informed and willing purchaser
and an informed and willing seller, neither of whom is under any compulsion to
purchase or sell, respectively, for the ownership of such Property. The Fair
Market Sales Value of any Property shall be determined based on the assumption
that, except for purposes of Article XVI of the Master Lease and Section 13.2 of
the Participation Agreement, such Property is in the condition and state of
repair required under Section 9.1 of the Master Lease and the Lessee is in
compliance with the other requirements of the Operative Documents relating to
the condition of the Property.
"Federal Funds Rate" means, for any day or period, as applicable, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) at
which Federal funds in the amount equal to the principal amount as to which such
rate is offered in
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the interbank market to The Sumitomo Bank, Limited, acting through its New York
branch, for such period as of 11:00 A.M. New York time on such day for such day
or such period, as applicable.
"Fees" means the fees payable pursuant to the Fee Letter.
"Fee Letter" means the fee agreement dated February 9, 1999 between the
Lessee and the Lessor.
"Fixed Charge Coverage Ratio" means the ratio of Consolidated Net Income
Available for Fixed Charges to Consolidated Fixed Charges.
"Force Majeure Event" means any event (the existence of which was not
known and could not have been discovered through the exercise of due diligence
by the Lessee or the Construction Agent prior to the Restructuring Date) beyond
the control of the Lessee and the Construction Agent, including, but not limited
to, strikes, lockouts, adverse soil conditions, acts of God, adverse weather
conditions, inability to obtain labor or materials, government activities, civil
commotion and enemy action; but excluding any event, cause or condition that
results from the Construction Agent's financial condition or failure to pay or
any event, cause or condition which could have been avoided or which could be
remedied through the exercise of commercially reasonable efforts or the
commercially reasonable expenditure of funds.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"Funding Date" means (a) each Acquisition Date and (b) each date on
which a Construction Advance is made.
"Funding Office" means the office of each Participant identified on
Schedule II to the Participation Agreement as its Funding Office.
"Funding Request" is defined in Section 3.4(a) of the Participation
Agreement.
"GAAP" means United States generally accepted accounting principles
(including principles of consolidation), in effect from time to time.
"Governmental Action" means 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
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Authority, or required by any Applicable Law, and shall include, without
limitation, all environmental and operating permits and licenses that are
required for the full use, occupancy, zoning and operation of any Property.
"Governmental Authority" means 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.
"Gross Remarketing Proceeds" is defined in Section 20.1(k) of the Master
Lease.
"Guarantee Obligation" means as to any Person (the "guaranteeing
person"), any obligation of (i) the guaranteeing person or (ii) another Person
(including, without limitation, any bank under any letter of credit) to induce
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments or documents
for deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Lessee in good
faith.
"Guaranty" means the Amended and Restated Guaranty dated as of February
9, 1999, made by the Lessee in favor of the Agent, for the benefit of the
Lenders.
"Hazardous Activity" means any activity, process, procedure or
undertaking that directly or indirectly (i) produces, generates or creates any
Hazardous Material; (ii) causes or results in (or threatens to cause or result
in) the Release of any Hazardous Material into the environment (including air,
water vapor, surface water, groundwater, drinking water, land
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(including surface or subsurface), plant, aquatic and animal life); (iii)
involves the containment or storage of any Hazardous Material; or (iv) would be
regulated as hazardous waste treatment, storage or disposal within the meaning
of any Hazardous Materials Law.
"Hazardous Materials" means any hazardous, toxic or dangerous materials,
substances, chemicals, wastes or pollutants that from time to time are defined
by or pursuant to or are regulated under any Hazardous Materials Laws, including
asbestos, polychlorinated biphenyls, petroleum, petroleum derivatives or
by-products, other hydrocarbons, urea formaldehyde and any material, substance,
pollutant or waste that is defined as a hazardous waste under RCRA or defined as
a hazardous substance under CERCLA.
"Hazardous Materials Laws" means all federal, state, regional, county or
local laws, statutes, rules, regulations or ordinances, now or hereafter in
effect, relating to the generation, recycling, use, reuse, sale, storage,
handling, transport, treatment or disposal of Hazardous Materials, including
CERCLA, RCRA, the Clean Air Act, 42 U.S.C. Section 7401, et seq. ("CAA"), the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq. ("TSCA") and any
rules, regulations and guidance documents promulgated or published thereunder,
and any state, regional, county or local statute, law, rule, regulation or
ordinance now or hereafter in effect that relates to public health, safety or
the discharge, emission or disposal of Hazardous Materials in or to air, water,
land or groundwater, to the withdrawal or use of groundwater, to the use,
handling or disposal of asbestos, polychlorinated biphenyls, petroleum,
petroleum derivatives or by-products, other hydrocarbons or urea formaldehyde,
to the treatment, storage, disposal or management of Hazardous Materials, to
exposure to Hazardous Materials or to the transportation, storage, disposal,
management or release of gaseous or liquid substances, and any regulation,
order, injunction, judgment, declaration, notice or demand issued thereunder.
"Impositions" means any and all liabilities, losses, expenses and costs
of any kind whatsoever for fees, taxes, levies, imposts, duties, charges,
assessments or withholdings of any nature whatsoever ("Taxes") (including,
without limitation, (i) real and personal property taxes, including personal
property taxes on any property covered by any Lease that is classified by
Governmental Authorities as personal property, and real estate or ad valorem
taxes in the nature of property taxes; (ii) sales taxes, use taxes and other
similar taxes (including rent taxes and intangibles taxes); (iii) any excise
taxes; (iv) real estate
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Appendix A
transfer taxes, conveyance taxes, mortgage taxes, intangible taxes, stamp taxes
and documentary recording taxes and fees; (v) taxes that are or are in the
nature of franchise, income, value added, gross receipts, privilege and doing
business taxes, license and registration fees; and (vi) assessments on any
Property, including all assessments for public improvements or benefits, whether
or not such improvements are commenced or completed within the Lease Term), and
in each case all interest, additions to tax and penalties thereon, which at any
time may be levied, assessed or imposed by any Federal, state or local authority
upon or with respect to (a) any Tax Indemnitee, any Property or any part thereof
or interest therein, or the Lessee or any sublessee or user of any Property; (b)
the financing, refinancing, demolition, construction, substitution, subleasing,
assignment, control, condition, occupancy, servicing, maintenance, repair,
ownership, possession, purchase, rental, lease, activity conducted on, delivery,
insuring, use, operation, improvement, transfer, return or other disposition of
such Property or any part thereof or interest therein; (c) the Notes or other
Indebtedness with respect to any Property or any part thereof or interest
therein or transfer thereof; (d) the rentals, receipts or earnings arising from
any Property or any part thereof or interest therein; (e) the Operative
Documents or any payment made or accrued pursuant thereto; (f) the income or
other proceeds received with respect to any Property or any part thereof or
interest therein upon the sale or disposition thereof; (g) any contract relating
to the construction, acquisition or delivery of the Improvements or any part
thereof or interest therein; (h) the issuance of the Notes; or (i) otherwise in
connection with the transactions contemplated by the Operative Documents.
Notwithstanding anything in the first paragraph of this definition
(except as provided in the final paragraph of this definition) the term
"Imposition" shall not mean or include:
(i) Taxes and impositions (other than Taxes that are, or are in the nature of,
sales, use, rental, transfer or property taxes) that are imposed by any
Governmental Authority and that are based upon or measured by or with respect to
the gross or net income or gross or net receipts (including, without limitation,
any minimum taxes, income or capital gains taxes, withholding taxes or taxes on,
measured by or with respect to or in the nature of capital, net worth, excess
profits, items of tax preference, capital stock, franchise, business privilege
or doing business taxes) and any interest, additions to tax, penalties or other
charges in respect thereof; provided that this clause (i) shall not be
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Appendix A
interpreted to prevent a payment from being made on an After Tax Basis if such
payment is otherwise required to be so made;
(ii) any Tax or imposition to the extent, but only to such
extent, it relates to any act, event or omission that occurs, or relates
to a period, after the termination of the Master Lease (but not any Tax
or imposition that relates to any period prior to the termination of the
Master Lease with respect to the Property to which such Imposition
relates);
(iii) any Tax or imposition for so long as, but only for so long
as, it is being contested in accordance with the provisions of Section
13.5(b) of the Participation Agreement, provided that the foregoing
shall not limit any Lessee's obligation under Section 13.5(b) of the
Participation Agreement to advance to such Tax Indemnitee amounts with
respect to Taxes that are being contested in accordance with Section
13.5(b) of the Participation Agreement or any expenses incurred by such
Tax Indemnitee in connection with such contest;
(iv) any interest, additions to tax or penalties imposed on a Tax
Indemnitee as a result of a breach by such Tax Indemnitee of its
obligations under Section 13.5(e) of the Participation Agreement as a
result of a Tax Indemnitee's failure to file any return or other
documents timely and as prescribed by applicable law; provided that this
clause (iv) shall not apply (x) if such interest or penalties arise as a
result of a position taken (or requested to be taken) by the Lessee in a
contest controlled by the Lessee under Section 13.5(b) of the
Participation Agreement or (y) if such failure is attributable to a
failure by the Lessee to fulfill its obligations under the Master Lease
with respect to any such return;
(v) any Taxes or impositions imposed on a Tax Indemnitee, to the
extent such Tax Indemnitee actually receives a credit (or otherwise has
a reduction in a liability for Taxes) in respect thereof against Taxes
that are not indemnified under the Participation Agreement (but only to
the extent such credit is not taken into account in calculating the
indemnity payment on an After Tax Basis);
(vi) Taxes imposed on or with respect to or payable by any Tax
Indemnitee based on, measured by or imposed with respect to any fees
received by such Tax Indemnitee;
(vii) any Taxes imposed against or payable by a Tax Indemnitee
resulting from, or that would not have been
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Appendix A
imposed but for, the gross negligence or willful misconduct of such Tax
Indemnitee;
(viii) Taxes imposed on or payable by a Tax Indemnitee to the
extent such Taxes result from or would not have been imposed but for, a
breach by the Tax Indemnitee or any Affiliate thereof of any
representations, warranties or covenants set forth in the Operative
Documents (unless such breach is caused by any Lessee's breach of its
representations, warranties or covenants set forth in the Operative
Documents);
(ix) Taxes to the extent resulting from such Tax Indemnitee's
failure to comply with the provisions of Section 13.5(b) of the
Participation Agreement, which failure precludes or materially adversely
affects the ability to conduct a contest pursuant to Section 13.5(b) of
the Participation Agreement (unless such failure is caused by the
Lessee's breach of its obligations);
(x) with respect to each Property, Taxes which are included in
applicable Property Acquisition Costs if and to the extent actually
paid;
(xi) Taxes that would have been imposed in the absence of the
transactions contemplated by the Operative Documents and Taxes imposed
on or with respect to or payable as a result of activities of a Tax
Indemnitee or Affiliate thereof unrelated to the transactions
contemplated by the Operative Documents;
(xii) Taxes imposed on or with respect to or payable by a Tax
Indemnitee resulting from, or that would not have been imposed but for
the existence of, any Lessor Lien created by or through such Tax
Indemnitee or an Affiliate thereof and not caused by acts or omissions
of any Lessee, unless required to be removed by any Lessee;
(xiii) Any Tax imposed against or payable by a Tax Indemnitee to
the extent that the amount of such Tax exceeds the amount of such Tax
that would have been imposed against or payable by such Tax Indemnitee
(or, if less, that would have been subject to indemnification under
Section 13.5 of the Participation Agreement) if such Tax Indemnitee were
not a direct or indirect successor, transferee or assign of one of the
original Tax Indemnitees; provided, however, that this exclusion (xiii)
shall not apply if such direct or indirect successor, transferee or
assign acquired its
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Appendix A
interest as a result of a transfer while an Event of Default shall have
occurred and is continuing;
(xiv) Taxes imposed on or with respect to or payable by a Tax
Indemnitee that would not have been imposed but for an amendment,
supplement, modification, consent or waiver to any Operative Document
not initiated, requested or consented to by any Lessee unless such
amendment, supplement, modification, consent or waiver (A) arises due
to, or in connection with there having occurred, an Event of Default or
(B) is required by the terms of the Operative Documents or is executed
in connection with any amendment to the Operative Documents required by
law;
(xv) Taxes in the nature of intangibles, stamp, documentary or
similar Taxes;
(xvi) Taxes imposed on or with respect to or payable by a Tax
Indemnitee or any Affiliate because such Tax Indemnitee or any Affiliate
thereof is not a United States person within the meaning of Section
7701(a)(30) of the Code; and
(xvii) Any tax imposed by its express terms in lieu of or in
substitution for a Tax not subject to indemnity pursuant to the
provisions of Section 13.5 of the Participation Agreement.
Notwithstanding the foregoing, the exclusions from the definition of Impositions
set forth in clauses (i), (ii), (v), (vii), (xii) and (xvi) (to the extent that
any such tax is imposed by its express terms in lieu of or in substitution for a
Tax set forth in clauses (i), (ii), (v), (vii), (xii) and (xvi)) above shall not
apply (but the other exclusions shall apply) to any Taxes or any increase in
Taxes imposed on a Tax Indemnitee net of any decrease in taxes realized by such
Tax Indemnitee, to the extent that such tax increase or decrease would not have
occurred if on the Acquisition Date the Lessor had advanced funds to the Lessee
in the form of a loan secured by the applicable Property in an amount equal to
the applicable Property Balance, with debt service for such loan equal to the
Basic Rent payable on each Scheduled Payment Date and a principal balance at the
maturity of such loan in an amount equal to the then outstanding amount of the
Advances at the end of the term of the Master Lease.
"Improvements" means all buildings, structures, Fixtures, Equipment, and
other improvements of every kind existing at any time and from time to time on
or under any Land, or any parcel of Land to be acquired pursuant to the terms of
the Operative
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Documents, together with any and all appurtenances to such buildings, structures
or improvements, including sidewalks, utility pipes, conduits and lines, parking
areas and roadways, and including all Modifications and other additions to or
changes in the Improvements at any time.
"Improvements Closing Date" is defined in Section 3.1 of Master
Amendment No. 1.
"Indebtedness" means, of any Person at any date, (i) all indebtedness of
such Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), (ii) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (iii) all obligations of such Person as lessee under Capital
Leases, (iv) all obligations of such Person in respect of acceptances issued or
created for the account of such Person, (v) all liabilities secured by any Lien
on any property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof, (vi) 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), (vii) all obligations of such Person under take-or-pay or
similar arrangements or under commodities agreements, (viii) all Guarantee
Obligations of such Person, (ix) all obligations of such Person in respect of
interest rate protection agreements, foreign currency exchange agreements,
commodity purchase or option agreements or other interest or exchange rate or
commodity price hedging agreements, and (x) all contingent or non-contingent
obligations of such Person in respect of letters of credit issued or bankers'
acceptances created for the account of such Person.
"Indemnitee" means each Lender, the Lessor, the Collateral Agent, their
respective Affiliates and their respective successors, assigns, directors,
shareholders, partners, officers, employees and agents.
"Insolvency" means, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent" means pertaining to a condition of Insolvency.
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Appendix A
"Insurance Requirements" means all terms and conditions of any insurance
policy either required by the Master Lease to be maintained by the Lessee and
all requirements of the issuer of any such policy.
"Interest Period" means,
(a) initially, the period commencing on each Acquisition
Date and ending on the fifteenth (15th) day of January, 1997; and
(b) and thereafter, each period commencing on the last day
of the preceding Interest Period applicable to such Loan or
Lessor Amount and the date falling three (3) six (6), nine (9) or
twelve (12) months from the first day of such Interest Period,
pursuant to a written notice to the Lessor and the Agent (the
"Interest Period Selection Notice") delivered no later than 10:00
a.m. three Business Days prior to the commencement of the
Interest Period to be selected. In the event the Lessee has not
delivered an Interest Period Selection Notice to the Lessor and
the Agent within the required period of time, it shall be deemed
to have selected an Interest Period of three (3) months.
The foregoing provisions relating to Interest Periods are subject
to the following:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall
end on the immediately preceding Business Day; and
(iii) any Interest Period that would otherwise extend
beyond the Maturity Date shall end on the Maturity Date.
"Interim Lease Term" is defined in Section 2.3 of the Master Lease.
"Interim Term" means the period commencing on and including the
Restructuring Date to the earlier of the date of (x) Substantial Completion of
City Center II or (y) termination of the Construction Agency Agreement with
respect to City Center II.
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"Land" means each parcel of real property described on Schedule I to any
Lease Supplement, and includes all Appurtenant Rights attached thereto.
"Lease" means, collectively, the Master Lease and each Lease Supplement.
"Lease Balance" means, as of any date of determination, an amount equal
to the sum of the Loan Balance and the Lessor Balance and all other amounts
owing by the Lessee under the Operative Documents (including without limitation,
accrued and unpaid Rent and Supplemental Rent, if any).
"Lease Default" means any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute a Lease Event of
Default.
"Lease Event of Default" means a "Lease Event of Default" as defined in
Section 16.1 of the Master Lease.
"Lease Supplement" means each Lease Supplement substantially in the form
of Exhibit A to the Master Lease, executed by the Lessee and Lessor, dated as of
the Acquisition Date or Improvements Closing Date, as applicable and covering
the Land and/or Improvements identified on Schedule I thereto.
"Lease Term" means the period commencing on the first day of the Base
Lease Term and ending on the Expiration Date.
"Lender Basic Rent" means the sum of Lender Basic Rent
(Interest) plus Lender Basic Rent (Principal).
"Lender Basic Rent (Interest)" means, as determined as of any Basic Rent
Payment Date, the interest due on the Loans, determined in accordance with
Section 2.4 of the Loan Agreement and excluding any interest at the applicable
Overdue Rate on any installment of Basic Rent not paid when due and any fine,
penalty, interest or cost assessed or added under any agreement with a third
party for nonpayment or late payment of Basic Rent.
"Lender Basic Rent (Principal)" means, with respect to any Basic Rent
Payment Date, the amount indicated on the Master Rent Schedule under the Lease,
as adjusted from time to time in accordance with the Lease.
"Lenders' Percentage" is set forth with respect to each Property in the
Lease Supplement relating thereto.
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Appendix A
"Lenders" means, collectively, the various financial institutions as are
or may from time to time become parties to the Loan Agreement.
"Lessee" means Symantec Corporation, a Delaware corporation, as lessee
under the Lease, and its successors and assigns expressly permitted under the
Operative Documents.
"Lessor" means Sumitomo Bank Leasing and Finance, Inc., a Delaware
corporation.
"Lessor Amount" is defined at Section 3.2 of the Participation
Agreement.
"Lessor Balance" means as of any date of determination an amount equal
to the sum of the outstanding Lessor Amounts together with all accrued and
unpaid Yield thereon.
"Lessor Basic Rent" means the sum of Lessor Basic Rent (Yield) plus
Lessor Basic Rent (Amortization).
"Lessor Basic Rent (Amortization)" means, with respect to any Basic Rent
Payment Date, the amount indicated on the Master Rent Schedule under the Lease,
as adjusted from time to time in accordance with the Lease.
"Lessor Basic Rent (Yield)" means the amount of accrued Yield due on the
Lessor Amounts, determined in accordance with Section 4.1 of the Participation
Agreement as of any Basic Rent Payment Date and excluding any interest at the
applicable Overdue Rate on any installment of Lessor Basic Rent not paid when
due and any fine, penalty, interest or cost assessed or added under any
agreement with a third party for nonpayment or late payment of Lessor Basic
Rent.
"Lessor Commitment" means the Commitment of the Lessor in the amount set
forth on Schedule I of the Participation Agreement, as such Schedule may be
amended from time to time.
"Lessor Financing Statements" means UCC financing statements
appropriately completed and executed for filing in the applicable jurisdiction
in order to protect the Lessor's interest under the Master Lease and the Lease
Supplements to the extent the Master Lease and Lease Supplements are security
agreements with respect to personal property.
"Lessor Lien" means any Lien, true lease or sublease or disposition of
title arising as a result of (a) any claim against any Participant not resulting
from the transactions contemplated
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Appendix A
by the Operative Documents, (b) any act or omission of the any Participant which
is not required or permitted by the Operative Documents or is in violation of
any of the terms of the Operative Documents, (c) any claim against any
Participant, with respect to Taxes or Transaction Expenses against which Lessee
is not required to indemnify any Participant, in its individual capacity,
pursuant to Article IX 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 or the Operative Documents other
than the transfer of title to or possession of the Properties by the Lessor
pursuant to and in accordance with the Master Lease, the Loan Agreement or the
Participation Agreement or pursuant to the exercise of the remedies set forth in
Section 16.2 of the Master Lease.
"Lessor Margin" means, with respect to any Property, the amount set
forth in the applicable Lease Supplement therefor.
"Lessor Mortgage" means, with respect to any Property, the Lease
Supplement for such Property and any and all other security instruments in
appropriate recordable form in each relevant jurisdiction sufficient to grant to
the Lessor a first priority Lien on such Property.
"Letter of Credit" means a commercial or standby letter of credit issued
under the Letter of Credit Facility.
"Letter of Credit Facility" means the letter of credit facility
described in section 2.03 of the Credit Agreement.
"Letter of Credit Obligations" means the sum of (a) the undrawn amount
of all outstanding Letters of Credit, (b) the amount of all unreimbursed
drawings under Letters of Credit, (c) the amount of all outstanding drafts
accepted under Letters of Credit, and (d) the amount of all unreimbursed
payments of drafts accepted under Letters of Credit.
"Leverage Ratio" means the ratio of Consolidated Funded Debt to
Consolidated Net Worth.
"LIBO Rate" means, relative to any Loan or Lessor Amount for any
Interest Period, the rate determined by the Agent to be the average (rounded
upward, if necessary to the nearest multiple of one sixteenth of one percent) of
the offered rates per annum for deposits in Dollars for the particular Interest
Period that appears on the Reuters Screen LIBO Page (or any successor page), or
if such offered rate is not available, then the rate per annum at which deposits
in Dollars for the particular Interest Period
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Appendix A
are offered by The Sumitomo Bank, Limited's London Branch to prime banks in the
London interbank market, in each case at 11:00 a.m. (London time) two Business
Days prior to the beginning of such Interest Period.
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan or Lessor
Amount for any Interest Period, a rate per annum (rounded upwards, if necessary,
to the nearest 1/16 of 1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) -------------------------------
1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period will be
determined by the Agent, on the basis of the LIBOR Reserve Percentage in effect
on, and the applicable LIBO Rate obtained by the Agent, two Business Days before
the first day of such Interest Period. In the event that the Lessor or any
Lender requires payment of such additional amount calculated with respect to the
LIBOR Reserve Percentage, such party (x) shall so notify the Lessee, and (y)
shall furnish to the Lessee at least five Business Days prior to each date on
which Rent is payable a certificate setting forth the amount to which it is then
entitled to be paid (which shall be consistent with its good faith estimate of
the level at which the related reserves are maintained by it). Each such
certificate shall be accompanied by such information as the Lessee may
reasonably request as to the computation set forth therein.
"LIBO Rate (Reserve Adjusted) Loan(s)/Lessor Amount(s)" means a Loan or
Lessor Amount, as the case may be, bearing interest at the LIBO Rate (Reserve
Adjusted).
"LIBOR Reserve Percentage" means, relative to any Interest Period, the
reserve percentage (expressed as a decimal) equal to the maximum aggregate
reserve requirements (including all basic, emergency, supplemental, marginal and
other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements) specified under regulations issued
from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period.
"Lien" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, easement, servitude or charge of any kind, including, without
limitation, any irrevocable license, conditional sale or other title retention
agreement, any lease in
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Appendix A
the nature thereof, or any other right of or arrangement with any creditor to
have its claim satisfied out of any specified property or asset with the
proceeds therefrom prior to the satisfaction of the claims of the general
creditors of the owner thereof, whether or not filed or recorded, or the filing
of, or agreement to execute as "debtor", any financing or continuation statement
under the Uniform Commercial Code of any jurisdiction or any federal, state or
local lien imposed pursuant to any Environmental Law.
"Loan Agreement" means the Amended and Restated Loan Agreement, dated as
of February 9, 1999, among the Lessor, as borrower thereunder, the Lenders, and
the Agent.
"Loan Agreement Event of Default" is defined in Section 5 of
the Loan Agreement.
"Loan Balance" means as of any date of determination an amount equal to
the sum of the outstanding Loans together with all accrued and unpaid interest
thereon.
"Loan Commitment" means the Commitment of each Lender in the amount set
forth on Schedule I to the Participation Agreement.
"Loan Documents" means the Loan Agreement and the Notes.
"Loan Margin" means, with respect to any Property, the amount set forth
in the Lease Supplement therefor.
"Loans" is defined in Section 2.1 of the Loan Agreement.
"Marketing Period" means the period commencing on the date six months
prior to the Expiration Date and ending on the Expiration Date.
"Master Amendment No. 1" means the Master Amendment No. 1 dated
as of March 3, 1997, among the Lessee, the Lessor, the Lenders and
the Agent, amending the Participation Agreement, Appendix A to the
Participation Agreement, the Master Lease, the Loan Agreement and the
Assignment of Lease and Rent.
"Master Lease" means the Amended and Restated Master Lease and Open End
Mortgage, dated as of February 9, 1999, between the Lessor and the Lessee, as
may be supplemented.
"Master Rent Schedule" means the Master Rent Schedule attached to each
Lease Supplement as adjusted in accordance with the terms of the Master Lease.
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Appendix A
"Material" and "Materially" mean material to (i) the ability of the
Lessee to perform its obligations under the Operative Documents to which it is a
party, or (ii) the value or condition of any Property.
"Material Adverse Effect" means a material adverse effect on (i) the
business, financial position or results of operations of the Lessee and its
Subsidiaries taken as a whole, (ii) the ability of the Lessee to perform any
material obligation under the Operative Documents or (iii) the material rights
and remedies of the Lenders and the Lessor under the Operative Documents.
"Material Assets" means with respect to any Person all material
interests in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"Maturity Date" means (a) with respect to City Center I and City Center
II, February 1, 2006 or (b) with respect to the Loans and the Lessor Amounts
(other than those for City Center I and City Center II), the seventh (7th)
anniversary of the Documentation Date.
"Maximum Commitment Amount" means an amount equal to $94,000,000.00.
"Minimum Working Capital" means, at any date, Consolidated Current
Assets minus Consolidated Current Liabilities
"Modifications" is defined in Section 10.1 of the Master Lease.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA and subject to Title IV thereof, that (a) is
maintained by the Lessee or an ERISA Affiliate and at least one Person other
than the Lessee and its ERISA Affiliates or (b) was so maintained previously,
but is not currently maintained by the Lessee or its ERISA Affiliates, and in
respect of which the Lessee or an ERISA Affiliate would still
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Appendix A
have liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"Net Proceeds" means all amounts received by the Lessor in connection
with any Casualty or Condemnation or any sale of the Property pursuant to the
Lessor's exercise of remedies under Section 16.2 of the Master Lease or the
Lessee's exercise of the Remarketing Option under Article XX of the Master
Lease, and all interest earned thereon, less the expense of claiming and
collecting such amounts, including all costs and expenses in connection
therewith for which the Lessor or any Participant is entitled to be reimbursed
pursuant to the Lease.
"Notes" is defined in Section 2.4 of the Loan Agreement.
"Operative Documents" means the following:
(a) the Participation Agreement;
(b) the Master Lease;
(c) each Lease Supplement;
(d) the Loan Agreement;
(e) the Guaranty;
(f) the Pledge Agreement;
(g) each Note;
(h) the Assignment of Lease and Rent;
(i) each Deed;
(j) the Lessor Mortgages;
(k) the Lessor Financing Statements;
(l) the Custody Agreement; and
(m) the Construction Agency Agreement.
As any of the foregoing have been amended and restated.
"Outside Completion Date" means with respect to City Center V, the date
occurring twenty-four (24) months after the Improvements Closing Date and with
respect to City Center II, the date occurring twelve (12) months after the
Restructuring Date as such period may be extended by the occurrence of one or
more Force Majeure Events.
"Overdue Rate" means, with respect to any Loan or Lessor Amount, the
Alternate Base Rate for such Loan or Lessor Amount plus two percent (2%).
"Participants" means, collectively, each Lender and the Lessor,
and their successor and assigns.
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Appendix A
"Participation Agreement" means the Amended and Restated Participation
Agreement dated as of February 9, 1999 among Lessee, as the Lessee and the
Lessor, the Lenders and the Agent.
"Participant Balance" means, with respect to any Participant as of any
date of determination: (i) with respect to any Lender, an amount equal to the
aggregate outstanding Loans of such Lender, together with all accrued and unpaid
interest thereon or (ii) with respect to the Lessor, an amount equal to the
aggregate outstanding Lessor Amounts of the Lessor, together with all amounts of
accrued and unpaid Yield thereon.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means, with respect to any Property, any of the
following:
(i) the respective rights and interests of the parties to the
Operative Documents as provided in the Operative Documents;
(ii) the rights of any sublessee under a sublease permitted by
the terms of the Master Lease;
(iii) Liens for Taxes that either are not yet due or are being
contested in accordance with the provisions of Section 12.1 of the
Master Lease;
(iv) Liens arising by operation of law, materialmen's,
mechanics', workers', repairmen's, employees', carriers', warehousemen's
and other like Liens relating any Modifications or arising in the
ordinary course of business for amounts that either are not more than 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 12.1 of the Master Lease;
(v) Liens of any of the types referred to in clause (iv) above
that have been bonded for not less than the full amount in dispute (or
as to which other security arrangements reasonably satisfactory to the
Lessor have been made), which bonding (or arrangements) shall comply
with applicable Requirements of Law, and has effectively stayed any
execution or enforcement of such Liens;
(vi) Liens arising out of judgments or awards with respect to
which appeals or other proceedings for review are
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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 the
conditions for the continuation of proceedings to contest set forth in
Section 12.1 of the Master Lease;
(vii) easements, rights of way and other encumbrances on title to
real property pursuant to Section 11.2 of the Master Lease;
(viii) Liens created by the Lessee with the consent of the
Lessor; and
(ix) Liens described on the title insurance policy delivered with
respect to such Property pursuant to Section 2.1(q) of the Participation
Agreement other than Liens described in clause (iv) or (vi) above that
are not removed within forty (40) days of their origination.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
Governmental Authority or any other entity.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Plans and Specifications" means the plans and specifications for the
construction and installation of Improvements for City Center II, as more
particularly described in Schedule 2 to the Construction Agency Agreement.
"Pledge Agreement" means the Amended and Restated Pledge Agreement,
dated as of February 9, 1999, by and among the Lessee, as pledgor, the Agent, as
pledgee, and the Collateral Agent.
"Prime Construction Contract" means the contracts between the
Construction Agent and the Prime Contractor for the Construction of City Center
II, as amended from time to time in accordance with the Construction Agency
Agreement.
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"Prime Contractor" means the contractor designated as such in the Prime
Construction Contract(s) or such other Person who shall, with the prior consent
of the Lessor, have been designated by the Construction Agent to act as the
general contractor for purposes of the Construction.
"Project Cost" means the Property Balance with respect to City Center II
minus the sum of (x) the Arrangement Fees paid with respect to City Center II,
(y) capitalized Yield with respect to City Center II and (z) premiums for
casualty insurance covering the Interim Term paid with respect to City Center
II.
"Property" means (i) the Lessor's interest in any Land, either as owner
in fee simple, and (ii) all of the Improvements at any time located on or under
such Land.
"Property Acquisition Costs" means, with respect to any Property, the
amount of the Advance funded to the Lessee or its designees for the purpose of
acquiring such Property, paying the amount of the pro rata portion of the Fees
attributable thereto, and paying the Transaction Expenses relating to such
funding and acquisition, as such amount is set forth in the Funding Request
relating to the acquisition of such Property.
"Property Balance" means, with respect to any Property, an amount equal
to the outstanding principal amount of the Loans and Lessor Amounts related to
such Property, and all accrued and unpaid interest and Yield thereon, and any
Supplemental Rent related thereto.
"Property Improvement Costs" means out-of-pocket costs of the
Construction Agent incurred and properly payable under the Construction
Documents in accordance with the Operative Documents.
"Property Legal Requirements" means all Federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting any Property, the
Improvements or the demolition, use or alteration thereof, whether now or
hereafter enacted and in force, including any that require repairs,
modifications or alterations in or to any Property or in any way limit the use
and enjoyment thereof (including all building, zoning and fire codes and the
Americans with Disabilities Act of 1990, 42 U.S.C. Section 1201 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 all Hazardous Materials Laws), and all permits, certificates of
occupancy, licenses, authorizations and
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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, the Appurtenant Rights and any easements,
licenses or other agreements entered into pursuant to Section 11.2 of the Master
Lease.
"Purchase Notice" means an irrevocable written notice by the Lessee
delivered to the Lessor pursuant to Section 18.1 of the Master Lease, notifying
the Lessor of the Lessee's intention to exercise its option pursuant to such
Section, and identifying the Property or Properties to be purchased in
accordance therewith and the proposed purchase date therefor.
"Purchase Option" means the Lessee's option to purchase a Property in
accordance with the provisions of Section 18.1 of the Master Lease.
"Purchase Option Price" is defined in Section 18.1 of the Master Lease.
"RCRA" means the Resource Conservation and Recovery Act of 1976, as
amended by the Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. Section
6901 et seq.
"Release" means any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Material.
"Remarketing Option" is defined in Section 20.1 of the Master Lease.
"Rent" means, collectively, the Basic Rent and the Supplemental Rent, in
each case payable under the Master Lease.
"Requesting Party" is defined in Section 27.1 of the Master Lease.
"Required Modification" is defined in clause (i) of Section 10.1 of the
Master Lease.
"Required Lenders" is defined in Section 5.2 of the Loan Agreement.
"Required Participants" means, at any time, (i) Lenders holding at least
51% of the aggregate outstanding principal amount of Loans, or if no Loans are
then outstanding, 51% of the aggregate amount of the Lenders' Commitments,
together with (ii) the Lessor.
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"Requirement of Law" means, as to any Person, (a) the partnership
agreement, certificate of incorporation, bylaws or other organizational or
governing documents of such Person, (b) any federal, state or local law, treaty,
ordinance, rule or regulation and (c) any order, decree or determination of a
court, arbitrator or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Responsible Officer" means the President and Chief Executive Officer,
Executive Vice President, the Treasurer, any Vice President or any Assistant
Treasurer, Secretary or any Assistant Secretary of the of the Lessee.
"Responsible Officer's Certificate" means a certificate signed by any
Responsible Officer, which certificate shall certify as true and correct the
subject matter being certified to in such certificate.
"Restricted Investments" is defined in Section 10.1(f) of the
Participation Agreement.
"Restructuring Date" means the date on which the Lessor's interests in
City Center V are exchanged for City Center II.
"Scheduled Payment Date" means the fifteenth (15th) day of each January,
April, July, and October; provided, however,
(i) if any Scheduled Payment Date would otherwise end on a
day that is not a Business Day, such Scheduled Payment Date shall
be extended to the next succeeding Business Day unless the result
of such extension would be to cause such Scheduled Payment Date
into occur in another calendar month in which event such
Scheduled Payment Date shall end on the immediately preceding
Business Day; and
(iii) any Scheduled Payment Date that would otherwise
occur after the Maturity Date shall occur on the Maturity Date.
"Securities Act" means the Securities Act of 1933, as amended, together
with the rules and regulations promulgated thereunder.
"Shortfall Amount" means, as of the Expiration Date, an amount equal to
(i) the Lease Balance, minus (ii) the Loan Balance received by the Lessor from
the Lessee pursuant to Section 20.1(k) of the Lease, minus (iii) the aggregate
amount of
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Appendix A
the highest, binding, written, unconditional, irrevocable offer to purchase each
Property obtained by each Lessee pursuant to Section 20.1(f) of the Lease;
provided, however, that if the sale of the Properties to the Person submitting
such offer is not consummated on or prior to the Expiration Date, then the term
"Shortfall Amount" shall mean an amount equal to (i) the Lease Balance, minus
(ii) the Loan Balance received by the Lessor pursuant to Section 20.1(k) of the
Lease.
"Significant Condemnation" means (a) a Condemnation that involves a
taking of the Lessor's entire title to the related Land, or (b) a Condemnation
that in the reasonable, good faith judgment of the Agent and the Lessor (i)
renders the related Property unsuitable for continued use as property of the
type of such Property immediately prior to such Condemnation, or (ii) is so
substantial in nature that restoration of the related property to substantially
its condition as it existed immediately prior to such Condemnation (y) would be
impracticable or impossible, or (z) cost in excess of 10% of the outstanding
Lease Balance for such Property.
"Solvent" means with respect to any Person on a particular date, that on
such date (i) the fair value of the property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (ii) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (iii) such Person is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (iv) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (v) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged. In computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability taking into account any
subrogation and contribution rights.
"Submitted Financial Statements" means the financial statements of the
Lessee for the fiscal year ended April 1, 1998,
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Appendix A
which were audited by Ernst & Young, copies of which have been delivered to the
Lessor, the Agent and each Lender.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of:
(a) the outstanding capital stock having Voting Power to elect a
majority of the Board of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might having Voting Power upon the occurrence of
any contingency),
(b) the interest in the capital or profits of such partnership or
joint venture, or
(c) the beneficial interest of such trust or estate,
is at the time directly or indirectly owned by such Person, by such Person and
one or more of its Subsidiaries or by one or more of such Person's Subsidiaries.
"Substantial Completion" means such time as the conditions set forth in
Section 2.4 of the Participation Agreement shall have been satisfied with
respect to City Center II.
"Supplemental Rent" means all amounts, liabilities and obligations
(other than Basic Rent) which Lessee assumes or agrees to pay to Lessor or any
other Person under the Master Lease, or under any of the other Operative
Documents, including, without limitation, Fees, Break Costs, the Loan Balance,
the Shortfall Amount, amounts due pursuant to Section 13.2 of the Participation
Agreement, payments pursuant to Sections 15.2 of the Master Lease and Articles
XVIII and XX of the Master Lease and all amounts payable to the Collateral Agent
under Section 7 of the Custody Agreement.
"Surplus Collateral" is defined in Section 6.2 of the Participation
Agreement.
"Tangible Net Worth" means the gross book value of the assets of the
Lessee (exclusive of goodwill, patents, trademarks, trade names, organization
expense, treasury stock, unamortized debt discount and expense, deferred income
taxes, deferred charges and other like intangibles) less (a) reserves applicable
thereto and (b) all liabilities (including accrued and deferred income taxes and
subordinated liabilities).
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Appendix A
"Tax Indemnitee" means each Lender and the Lessor.
"Taxes" is defined in the definition of Impositions.
"Termination Date" is defined in Section 15.3 and Section 16.2(e) of the
Master Lease.
"Termination Notice" is defined in Section 15.1 of the Master Lease.
"Transaction Expenses" means all costs and expenses incurred in
connection with the preparation, execution and delivery of the Operative
Documents and the transactions contemplated by the Operative Documents including
without limitation:
(a) the reasonable fees, out-of-pocket expenses and disbursements
of Mayer, Brown & Platt, special counsel for the Lessor, the Lenders and
the Lessor, and such other fees, expenses and disbursements of counsel
for the Lessee in negotiating the terms of the Operative Documents and
the other transaction documents, preparing for the closing 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 Documents;
(b) the reasonable fees, out-of-pocket expenses and disbursements
of any law firm or other external counsel of each of the Lessor and each
Lender in connection with (1) any amendment, supplement, waiver or
consent with respect to any Operative Documents requested or approved by
the Lessee and (2) any enforcement of any rights or remedies against the
Lessee in respect of the Operative Documents;
(c) any and all Taxes and fees incurred in recording, registering
or filing any Operative Document 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
Documents;
(d) any title fees, premiums and escrow costs and other expenses
relating to title insurance or other insurance and the closings
contemplated by the Operative Documents;
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Appendix A
(e) all expenses relating to all Environmental Audits; and
(f) fees and other expenses relating to Appraisals.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the present value of all benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), 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 a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Uniform Commercial Code" and "UCC" means the Uniform Commercial Code as
in effect in any applicable jurisdiction.
"Voting Power" means, with respect to securities issued by any Person,
the combined voting power of all securities of such person which are issued and
outstanding at the time of determination and which are entitled to vote in the
election of directors of such Person, other than securities having such power
only by reason of the happening of a contingency.
"World Headquarters" means the Property consisting of the Land and
Improvements covered by Lease Supplement No. 1.
"Yield" is defined in Section 4.1(a) of the Participation
Agreement.
"Yield Rate" means, at the option of the Lessee, the sum of (i) the
Alternate Base Rate, or (ii) the LIBO Rate (Reserve Adjusted), plus the Lessor
Margin, as the case may be.
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