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EXHIBIT 10.95
ANNEX A
TO PARTICIPATION AGREEMENT
RULES OF USAGE AND DEFINITIONS
RULES OF USAGE
The following rules of usage shall apply to this Annex 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 defined
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
and permitted assigns and transferees.
E. Except as otherwise expressly provided, reference to any agreement
means such agreement as amended, modified, extended or supplemented 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. 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 construing and
interpretation of the Operative Agreements and any amendments or exhibits
thereto.
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DEFINITIONS
"ABR" shall mean, for any day, a rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1.0%) equal to the greatest of (a) the Base
Rate in effect on such day, and (b) the Federal Funds Effective Rate in effect
on such day plus fifty (50) basis points (0.50%). For purposes hereof, "BASE
RATE" shall mean the rate of interest per annum publicly announced from time to
time by The Bank of Nova Scotia as its base rate in effect in the United States
at its principal office in New York City (the Base Rate not being intended to be
the lowest rate of interest charged by The Bank of Nova Scotia in connection
with extensions of credit to debtors); each change in the Base Rate shall be
effective on the date such change is publicly announced as effective. "FEDERAL
FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Agent from three Federal funds
brokers of recognized national standing selected by it. If for any reason the
Agent shall have determined that it is unable to ascertain the Federal Funds
Effective Rate for any reason, including the inability or failure of the Agent
to obtain sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Base Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Base Rate or the Federal Funds Effective
Rate, respectively.
"ABR HOLDER ADVANCES" shall mean those Holder Advances the Holder Yield
applicable to which is based upon the ABR.
"ABR LOANS" shall mean those Loans the rate of interest applicable to
which is based upon the ABR.
"ACCOUNT" shall mean the account designated by Agent to which all
payments of Basic Rent and of Supplemental Rent shall be made. The Account shall
be as set forth on Schedule 1.9 to the Participation Agreement or as otherwise
designated in writing by Agent.
"ACQUISITION" shall mean any transaction, or any series of related
transactions by which Lessee or any of its Subsidiaries directly or indirectly
(a) acquire all or substantially all of any ongoing business or all or
substantially all of the assets of any corporation, limited liability company,
partnership, joint venture, firm, association or division of any of the
foregoing, whether through purchase of assets, merger or otherwise, (b) acquire
(in one transaction or as the most recent transaction in a series of
transactions) control of at least a majority of the stock of a corporation
having ordinary voting power for the election of directors of such corporation
or (c) acquires control of fifty percent (50.0%) or more of the ownership
interest in any other type of entity listed in this definition.
"ADJUSTED EBITDA" shall mean the sum of the following, as determined for
Lessee and its Subsidiaries on a consolidated basis in accordance with GAAP,
where applicable, as of the last day of each Fiscal Quarter: (a) aggregate net
income for the immediately preceding
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four (4) Fiscal Quarters ending as of that day plus (1) to the extent deducted
from gross revenues in computing such net income (A) interest expense, (B) tax
expense, (C) depreciation, amortization of goodwill, software development
expenses and other intangibles of any kind and (D) post-closing, non-cash
restructuring charges taken in conjunction with, and within three (3) months
following the closing of, each Acquisition minus (2) (A) software development
expenses capitalized during such period and minus (B) capital expenditures
during such period.
"ADJUSTED LIBOR" shall mean, as applicable to any Interest Period a rate
per annum equal to the quotient obtained (rounded upwards, if necessary, to the
nearest 1/16 of 1.0%) by dividing (a) the applicable LIBOR for such Interest
Period by (b) 1.00 minus a percentage (expressed as a decimal) equal to the then
current maximum Eurocurrency Reserve Requirements.
"ADVANCE" or "ADVANCES" shall mean a Loan and a Holder Advance, or Loans
and Holder Advances, as applicable, in each case made pursuant to Section 1 of
the Participation Agreement to pay Project Costs.
"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"AFTER TAX BASIS" shall mean, 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 (calculated at the maximum marginal rate
then generally applicable to U.S. corporations) 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" shall mean The Bank of Nova Scotia, in its capacity as the agent
on behalf and for the benefit of the Lenders, and, with respect to the Security
Documents, in its capacity as agent on behalf and for the benefit of the Lenders
and the Holders, to the extent of each such Person's respective interest
therein, and in its capacity as the Sole Lead Arranger.
"AGGREGATE COMMITMENT AMOUNT" shall mean, on any date, up to
$65,000,000, as such amount may have been reduced pursuant to the terms and
conditions contained in the Participation Agreement.
"APPLICABLE MARGIN" shall mean as to any Loan, thirty (30) basis points
(0.30%) per annum, and as to any Holder Advance, one hundred (100) basis points
(1.00%) per annum.
"APPRAISAL" shall mean, with respect to any Property, an appraisal of
the Property, prepared by a reputable independent appraiser acceptable to the
Agent, as if improved in accordance with the applicable Plans and
Specifications, which, in the judgment of the Agent in consultation with its
counsel, as of each Property Closing Date, 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
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Requirements. The Appraisal shall state the Fair Market Sales Value of such
Property and an estimate of the value thereof at the end of the Term.
"APPRAISAL PROCEDURE" shall have the meaning given such term in Section
21.4 of the Lease.
"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 or the Improvements, including the use of any streets, ways, alleys,
vaults or strips of land adjoining, abutting, adjacent or contiguous to the
Land, and (b) all permits, licenses and rights, whether or not of record,
appurtenant to the Land.
"ASSIGNMENT OF LEASE" shall mean, individually and collectively, each
Assignment of Leases and Rents, dated as of the applicable Property Closing
Date, executed by the Trust in favor of the Agent, on behalf and for the benefit
of the Lenders and the Holders, as amended, supplemented, modified or restated
from time to time in accordance with the terms thereof or any other Operative
Agreement.
"ASSIGNMENT OF PURCHASE AGREEMENT" shall mean, individually and
collectively, each Assignment of Purchase Agreement, dated as of the applicable
Property Closing Date, between the Lessee and the Trust.
"AVAILABLE COMMITMENTS" shall mean the sum of the Available Lender
Commitments and the Available Holder Commitments.
"AVAILABLE HOLDER COMMITMENT" shall mean, as to each Holder at any time,
an amount equal to the excess, if any, of (a) the amount of such Holder's Holder
Commitment over (b) the aggregate amount of the Holder Advances made by the
Holder as of such date (whether or not any amount of the Holder Advances have
been repaid).
"AVAILABLE LENDER COMMITMENT" shall mean, as to any Lender at any time,
an amount equal to the excess, if any, of (a) the amount of such Lender's Lender
Commitment over (b) the aggregate principal amount of all Loans made by such
Lender as of such date (whether or not any such Loans have been repaid).
"BANKRUPTCY EVENT" shall mean a Default or Event of Default described in
Sections 17.1(f) or (g) of the Lease.
"BASE RATE" shall have the meaning set forth in the definition of the
term "ABR."
"BASIC RENT" shall mean the sum of (a) the Debt Basic Rent and (b) the
Lessor Basic Rent, calculated as of the applicable date on which Basic Rent is
due.
"BOARD" shall mean the Board of Governors of the Federal Reserve System
of the United States (or any successor).
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"BORROWER" shall mean the Trust, in its capacity as borrower under the
Credit Agreement.
"BUDGET" shall mean, with respect to any Property, the Estimated Project
Costs to be incurred in connection therewith, attached as Schedule 3 to the
applicable Construction Agency Agreement Supplement, as modified from time to
time in accordance with the terms of the Construction Agency Agreement or any
other Operative Agreement.
"BUILDINGS" shall mean the collective reference to the office and other
commercial buildings to be constructed on the Land, together with any Equipment.
"BUILD-TO-SUIT PROPERTY" shall mean any Property on which Improvements
are contemplated and/or are currently under construction.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York or Wilmington, Delaware are
authorized or required by law to close, and in the case of a LIBOR Advance, any
day on which dealings in Dollar deposits are carried on in the interbank
Eurodollar market and on which commercial banks are open for domestic business
in the location of the Agent's LIBOR office, which currently is London.
"CAPITAL LEASE" shall mean, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is, or is required to be, accounted for as a capital lease
on the balance sheet of that Person.
"CAPITALIZED HOLDER YIELD" shall mean, as of any date, an amount equal
to Holder Yield, which amount has been capitalized pursuant to Section 1.6 of
the Participation Agreement.
"CAPITALIZED INTEREST" shall mean, as of any date, an amount equal to
interest on the Loans, which amount has been capitalized pursuant to Section
2.3(b) of the Credit Agreement.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all obligations under Capital
Leases of any Person, in each case taken at the amount thereof accounted for as
liabilities in accordance with GAAP.
"CASH BALANCE" shall mean, as determined at any time for the Lessee and
its Subsidiaries on a consolidated basis in accordance with GAAP, the sum of (a)
the unrestricted, unencumbered cash at such time and (b) the market value of
unrestricted, unencumbered cash equivalents and short-term marketable
securities.
"CASUALTY" shall mean any damage or destruction of all or any portion of
any Property as a result of fire or other casualty.
"CERCLA" shall mean 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.
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"CERTIFICATE" shall have the meaning set forth in Article I of the Trust
Agreement.
"CLAIMS" shall mean any and all actions, suits, penalties, claims and
demands and reasonable out-of-pocket liabilities, losses, costs and expenses
(including reasonable attorney's fees and expenses) of any nature whatsoever.
"CLOSING DATE" shall mean the date on which the conditions precedent to
the Lenders' obligation to make the initial Loans and the Holders' obligation to
make the initial Holder Advances set forth in Section 5.1 of the Participation
Agreement are satisfied or waived; provided, however, that the Closing Date
shall not occur later than April 9, 2001.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute thereto.
"COLLATERAL" shall mean all assets of the Lessor or the Lessee, now
owned or hereafter acquired, upon which a Lien is purported to be created by the
Security Documents, and shall include all Collateral and Pledged Collateral
under the Pledge Agreement.
"COLLATERAL AGENT" shall mean The Bank of Nova Scotia, acting in its
capacity as such under the Pledge Agreement, and any successor Collateral
Agreement appointed pursuant to the Pledge Agreement.
"COLLATERAL ASSIGNMENT OF OPTION" shall mean the collateral assignment
of option relating to the Springfield Property.
"COMMITMENT" shall mean, (a) as to any Lender, the obligation of such
Lender to make Loans to the Lessor under the Credit Agreement in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 2.1 to the Credit Agreement, and (b) as
to any Holder, the obligation of the Holder to make the Holder Advances under
the Participation Agreement in an aggregate amount at any one time outstanding
not to exceed the amount set forth opposite such Holder's name on Schedule 1.2
to the Participation Agreement.
"COMMITMENT FEE" shall mean a fee calculated by applying a rate per
annum of thirty (30) basis points (0.30%) to the undrawn Aggregate Commitment
Amount.
"COMMITMENT PERCENTAGE" shall mean, as to any Participant at any time,
the percentage which such Participant'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
Participant's Loans or aggregate amount of such Participant's Holder Advances
then outstanding constitutes of the aggregate principal amount of all Loans and
aggregate amount of all Holder Advances then outstanding).
"COMMITMENT PERIOD" shall mean the period from and including the Closing
Date to but not including the earliest of (a) the final Completion Date, (b) the
Commitment Termination Date, (c) the date on which an acceleration occurs
pursuant to Section 17 of the Lease or (d) the Commitments are terminated
pursuant to Article IV or V of the Construction Agency Agreement or Article XVI
or XVII of the Lease.
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"COMMITMENT TERMINATION DATE" shall mean the date which is one (1) year
and one hundred eighty-two (182) days after the Closing Date.
"COMMONLY CONTROLLED ENTITY" shall mean an entity, whether or not
incorporated, which is under common control with the Lessee within the meaning
of Section 4001 of ERISA or is part of a group which includes the Lessee and
which is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of determining liability under Section 412 of the Code,
which is treated as a single employer under Section 414(b), (c), (m) or (o) of
the Code.
"COMPANY OBLIGATIONS" shall mean and include all liabilities and
obligations owed by the Lessee under any of the Operative Agreements of every
kind and description and however arising (whether direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter arising),
including the obligation of the Lessee to pay Rent, to pay the Maximum Residual
Guarantee Amount, indemnity amounts, the Purchase Option Price and/or Lease
Balance and to pay all interest, fees, charges, expenses and attorneys' fees
chargeable to the Lessee or payable by the Lessee under the Operative
Agreements.
"COMPLETION" shall mean, with respect to any Improvements constructed on
any Property, the time at which the conditions set forth in Section 5.4 of the
Participation Agreement shall have been satisfied.
"COMPLETION DATE" shall mean, with respect to any Property, the date on
which Completion has occurred.
"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
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 widen the streets adjacent to, any Property, or alter
the pedestrian or vehicular traffic flow to any Property so as to result in a
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.
"CONSENT TO ASSIGNMENT OF LEASES AND RENTS" shall mean the Consent to
Assignment of Leases and Rents, dated as of the applicable Property Closing
Date, from the Lessee to the Agent, as it may be amended, supplemented, modified
or restated from time to time in accordance with the terms thereof or of any
other Operative Agreement.
"CONSENT TO CONTRACT ASSIGNMENT" shall mean the Consent to Contract
Assignment, dated as of the Closing Date, from the Construction Agent to the
Agent, as it may be amended, supplemented, modified or restated from time to
time in accordance with the terms thereof or of any other Operative Agreement.
"CONSTRUCTION AGENCY AGREEMENT" shall mean the Construction Agency
Agreement, dated as of March 30, 2001, between the Construction Agent and the
Trust, as the same may be amended, supplemented, modified or restated from time
to time in accordance with the terms thereof or of any other Operative
Agreement.
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"CONSTRUCTION AGENCY AGREEMENT EVENT OF DEFAULT" shall have the meaning
set forth in Section 5.1 the Construction Agency Agreement.
"CONSTRUCTION AGENCY AGREEMENT SUPPLEMENT" shall mean any Construction
Agency Agreement Supplement, dated as of the applicable Property Closing Date,
between the Construction Agent and the Trust, covering the development of the
Property described therein, as the same may be amended, supplemented, modified
or restated from time to time in accordance with the terms thereof or of any
other Operative Agreement.
"CONSTRUCTION AGENT" shall mean Symantec Corporation, a Delaware
corporation, as construction agent under the Construction Agency Agreement.
"CONSTRUCTION COMMENCEMENT DATE" shall mean, with respect to any
Property, the date on which construction of the Improvements to be built thereon
commences.
"CONSTRUCTION CONTRACT" shall mean each contract or agreement relating
to the construction of the Improvements on any Property or the procurement
and/or supply of Equipment or supplies utilized in connection therewith entered
into by Lessee or Construction Agent.
"CONSTRUCTION PERIOD" shall mean, with respect to any Property, the
period commencing on the initial Property Closing Date and ending on the earlier
to occur of (a) the final Completion Date and (b) the Commitment Termination
Date.
"CONSTRUCTION PERIOD MAXIMUM RECOURSE AMOUNT" shall mean, with respect
to any Property, as of any date with respect to any such Property, an amount
equal to the sum of (a) the then-expended Property Acquisition Costs, if any,
plus (b) 89.95% of the Project Costs properly capitalized as "Project Costs"
under GAAP incurred as of such date (after having adjusted Project Costs for any
Force Majeure Costs as provided in the definition of "Force Majeure Costs," for
any Rent paid on Advances made in respect of Force Majeure Costs and for the
remediation of any Force Majeure Event), minus any payments previously paid by
the Construction Agent which have been future valued to such point in time.
"CONTINGENCY RESERVE" means, with respect to the Budget, line items
identified as the "contingency reserve" for any Property.
"CONTINGENT OBLIGATIONS" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other monetary obligations ("PRIMARY OBLIGATIONS") of any other
Person in any manner, whether directly or indirectly, including any obligation
of such Person, whether or not contingent, (a) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(b) to advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation, (d) the face
amount of all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder, or (e) otherwise to assure or
hold harmless the owner of such primary
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obligation against loss in respect thereof; provided, however, that the term
Contingent Obligation shall not include (x) endorsements of instruments for
deposit or collection in the ordinary course of business or (y) guarantees made
by a Person of the obligations of a Subsidiary or Affiliate of such Person which
do not constitute Indebtedness of such Subsidiary or Affiliate and are incurred
in the ordinary course of business of such Subsidiary or Affiliate. The amount
of any Contingent Obligation shall be deemed to be an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"CONTRACT ASSIGNMENT" shall mean the Contract Assignment, dated as of
the Closing Date, executed by the Lessor in favor of the Agent, for the benefit
of the Lenders and the Holders, as it may be amended, supplemented, modified or
restated from time to time in accordance with the terms thereof or of any other
Operative Agreement.
"CONTRACTUAL OBLIGATION" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL" shall mean (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, and such Person is
consolidated in the financial statements of such controlling person in
accordance with GAAP.
"CREDIT AGREEMENT" shall mean the Credit Agreement, dated as of March
30, 2001, among the Lenders, the Trust and the Agent, as it may be amended,
supplemented, modified or restated from time to time in accordance with the
terms thereof or of any other Operative Agreement.
"CREDIT AGREEMENT EVENT OF DEFAULT" shall have the meaning set forth in
Section 6.1 of the Credit Agreement.
"CREDIT DOCUMENTS" shall mean the Credit Agreement, the Notes, the
Lease, the Participation Agreement and the Security Documents.
"DEBT BASIC RENT" shall mean the interest due on the Loans on any
Specified Interest Payment Date pursuant to the Participation Agreement.
"DEED" shall mean those deeds, dated as of each Property Closing Date,
conveying the Property or Properties, as applicable, from the existing owner of
such Property or Properties to the Lessor.
"DEED OF TRUST" shall mean, individually or collectively, the deeds of
trust, mortgages, fixture filings and/or other security documents determined
appropriate by the Agent, or required by the rules of local jurisdictions, dated
as of each Property Closing Date, encumbering the
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Property and the Lease thereon, executed by the Lessor in favor of the Agent (in
form and substance appropriate for recording), as the same may be supplemented,
amended, modified or restated from time to time in accordance with the Operative
Agreement.
"DEFAULT" shall mean any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Event of Default.
"DEPOSITORY BANK" shall have the meaning set forth in Section 1.2.11 of
the Pledge Agreement.
"DEPOSIT DATE" shall have the meaning set forth in Section 4.4 of the
Participation Agreement.
"DEPOSIT TAKER" shall have the meaning set forth in Section 1.2.9 of the
Pledge Agreement.
"DOLLARS" and "$" shall mean dollars in lawful currency of the United
States of America.
"ELIGIBLE LENDER" and "ELIGIBLE HOLDER" shall mean (a) a commercial bank
organized under the laws of the United States, or any State thereof, and having
combined capital and surplus of $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development ("OECD"), or a political subdivision of any
such country, and having a combined capital and surplus of $100,000,000;
provided, however, that such bank is acting through a branch or agency located
in the country in which it is organized or another country which is also a
member of the OECD or the Cayman Islands; provided, further, that such bank is
entitled to a zero percent (0.0%) United States withholding tax rate; (c) the
central bank of any country which is a member of the OECD (provided that such
bank is entitled to a zero percent (0.0%) United States withholding tax rate);
(d) a finance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) organized under the laws of the
United States, or any state thereof, that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and having a combined capital and surplus of $100,000,000; (e) an insurance
company organized under the laws of the United States, or any state thereof, and
having a combined capital and surplus of $100,000,000; (f) any Lender party to
this Agreement; (g) any Affiliate of a Lender; and (h) any other Person approved
by the Agent, Lessee, and the Borrower, such approval not to be unreasonably
withheld; provided, however, that an Affiliate of the Lessee shall not qualify
as an Eligible Lender or Eligible Holder.
"EMPLOYEE BENEFIT PLAN" shall mean an employee benefit plan (within the
meaning of Section 3(3) of ERISA, including any multiemployer plan (within the
meaning of Section 3(37)(A) of ERISA)), or any "PLAN" as defined in Section
4975(e)(1) of the Code and as interpreted by the Internal Revenue Service and
the Department of Labor in rules, regulations, releases or bulletins in effect
on March 30, 2001.
"ENVIRONMENTAL AUDIT" shall mean, (a) with respect to the Springfield
Property, the Phase I Environmental Site Assessment, dated February 6, 2001, and
any additional environmental studies or audits prepared by the Environmental
Engineer relating to such
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Property, and (b) with respect to any other Property or Properties, the "Phase
I" report relating to such Property or Properties, and any additional
environmental studies or audits prepared by the Environmental Engineer relating
to such Property or Properties.
"ENVIRONMENTAL COSTS" shall have the meaning set forth in Section
17.6(e) of the Lease.
"ENVIRONMENTAL ENGINEER" shall mean (a) with respect to the Springfield
Property, Kleinfelder and (b) with respect to any other Property or Properties,
any other environmental engineer approved by Agent in its sole and absolute
discretion.
"ENVIRONMENTAL LAW" shall mean, whenever enacted or promulgated, any
federal, state, county or local law, statute, ordinance, code, rule, regulation,
license, permit, authorization, approval, covenant, administrative or court
order, judgment, decree, injunction, code or requirement or any agreement with a
Governmental Authority applicable to any Property:
(a) relating to pollution (or the cleanup, removal, remediation
or encapsulation thereof, or any other response thereto), or the regulation or
protection of human health or safety or the environment, including air, water
vapor, surface water, groundwater, drinking water, land (including surface or
subsurface), plant, aquatic and animal life, or
(b) concerning exposure to, or the use, containment, storage,
recycling, treatment, generation, discharge, emission, Release or threatened
Release, transportation, processing, handling, labeling, containment,
production, disposal or remediation of any Hazardous Substance, Hazardous
Condition or Hazardous Activity,
in each case as amended and as now or hereafter in effect, and any
common law or equitable doctrine (including injunctive relief and tort doctrines
such as negligence, nuisance, trespass and strict liability) that may impose
liability or obligations for injuries (whether personal or property) or damages
due to or threatened as a result of the presence of, exposure to, or ingestion
of, any Hazardous Substance, whether such common law or equitable doctrine is
now or hereafter recognized or developed. Applicable laws include CERCLA; the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.;
the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the
Clean Air Act, 42 U.S.C. Sections 7401 et seq.; the National Environmental
Policy Act, 42 U.S.C. Section 4321; the Refuse Act, 33 U.S.C. Sections 401 et
seq.; the Hazardous Materials Transportation Act of 1975, 49 U.S.C. Section
1801-1812; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Sections 136 et
seq.; the Safe Drinking Water Act, 42 U.S.C. Sections 300 et seq.; and the
Occupational Safety and Health Act of 1970, and their state and local
counterparts or equivalents.
"ENVIRONMENTAL VIOLATION" shall mean any activity, occurrence or
condition that violates or results in non-compliance with any Environmental Law
or results in a written complaint or other written claim from a Governmental
Authority with respect to any applicable Environmental Law.
"EQUIPMENT" shall mean equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased, leased or
otherwise acquired by using
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the proceeds of the Loans and the Holder Advances and now or subsequently
attached to, contained in or used or usable in any way in connection with any
operation or letting of any Property, including but without limiting the
generality of the foregoing, all screens, awnings, shades, blinds, curtains,
draperies, artwork, toilets, carpets, rugs, storm doors and windows, shelving,
furniture and furnishings, 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, 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.
"EQUITY PROCEEDS" shall mean the aggregate cash proceeds from and after
March 30, 2001 from the sale of any equity interests in the Lessee or its
Subsidiaries in a public offering, but not including the issuance of any stock
issued in connection with acquisitions of other entities or purchased by
employees of the Lessee or its Subsidiaries or its Affiliates.
"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(b) or (c) of the Code.
"ESTIMATED PROJECT COSTS" shall mean 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 Improvements for any Property,
including Project Costs comprised of Capitalized Interest and Capitalized Holder
Yield during the Construction Period.
"EUROCURRENCY RESERVE REQUIREMENTS" shall mean for any day as applied to
a LIBOR Loan or LIBOR Holder Advance, the aggregate (without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on
such day (including 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 for
eurocurrency funding (currently referred to as "EUROCURRENCY LIABILITIES" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"EVENT OF DEFAULT" shall mean a Lease Event of Default, a Construction
Agency Agreement Event of Default, or a Credit Agreement Event of Default.
"EXCEPTED PAYMENTS" shall mean:
(a) all indemnity payments (including indemnity payments made
pursuant to Section 11 of the Participation Agreement), whether made by
adjustment to Basic Rent or otherwise, to which any Indemnified Person is
entitled; provided, that during the Construction Period, indemnity payments made
to the Lessor pursuant to Sections 11.1(b), 11.2, 11.3(a),
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11.6(a) and 11.8(a) of the Participation Agreement for Losses of the Lessor
arising out of its indemnification obligations under Section 11.11 of the
Participation Agreement shall not constitute Excepted Payments;
(b) any amounts (other than Basic Rent, Lease Balance, Permitted
Lease Investment Balance or Purchase Option Price) payable under any Operative
Agreement to reimburse the Lessor or any of its Affiliates (including the
reasonable expenses of the Lessor 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 any Holder by any transferee of the
interest of such Holder as the purchase price of such Holder's interest in the
Holder Advances (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 Lessee;
(e) any insurance proceeds under policies maintained by Lessor;
(f) Transaction Expenses or other amounts or expenses paid or
payable to or for the benefit of the Lessor;
(g) all right, title and interest of the Lessor to any Property,
any portion thereof or any other property to the extent any of the foregoing has
not been otherwise purchased by the Lessee or a third party pursuant to the
terms of the Lease;
(h) all payments in respect of the Holder Advances and the Holder
Yield;
(i) any payments in respect of interest to the extent
attributable to payments referred to in clauses (a) through (h) above; and
(j) any rights of the Lessor to demand, collect, xxx for or
otherwise receive and enforce payment of any of the foregoing amounts.
"EXCULPATED PERSON" shall have the meaning set forth in Section 9.15 of
the Credit Agreement.
"EXPIRATION DATE" shall mean, with respect to the Lease, the earlier of
the date the Lease shall have been terminated in accordance with the provisions
of the Lease or any of the other Operative Agreements and the Maturity Date.
"FAIR MARKET SALES VALUE" shall mean 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 any Property. Fair Market Sales Value shall
be determined based on the assumption that, except for purposes of Section 21.3
of the Lease, each Property is in the condition and state of repair required
under
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Section 10.1 of the Lease and that the Lessee is in compliance with the other
requirements of the Operative Agreements.
"FEDERAL FUNDS EFFECTIVE RATE" shall have the meaning set forth in the
definition of the term "ABR."
"FEE LETTER" shall mean the fee letter dated as of February 22, 2001
among the Lessee, Scotiabanc Inc. and The Bank of Nova Scotia.
"FINAL POST-CONSTRUCTION TERM COMMENCEMENT DATE" shall mean the later to
occur of (a) the Post-Construction Term Commencement Date of the Springfield
Property and (b) the Post-Construction Term Commencement Date of the Newport
News Property.
"FINANCING PARTY" shall mean, collectively, the Agent, each Holder and
each Lender.
"FISCAL QUARTER" shall mean each fiscal quarter of the Lessee ending on
the Friday closest to the last day of each June, September, December and March.
"FIXTURES" shall mean all fixtures relating to the Buildings or the
other Improvements, including all components thereof, located in or on the
Buildings or the other Improvements, together with all replacements,
modifications, alterations and additions thereto.
"FORCE MAJEURE COSTS" shall mean all losses, costs and expenses arising
out of a Force Majeure Event, less the amount of all proceeds paid to the Lessor
or the Agent under any builder's risk or force majeure insurance policies
maintained under the Construction Agency Agreement with respect to such Force
Majeure Event and exclusive of any Rent payable on Advances made to pay such
losses, costs and expenses.
"FORCE MAJEURE EVENT" shall mean the occurrence of one or more of the
following events during the Construction Period that causes damage to any
Property or delay in the construction of the Improvements and that (a) occur
beyond the direct or indirect control of the Lessee (including any
subcontractors or Lessee Persons acting as the Lessee's agents), (b) are
unrelated to the construction of any Property, and (c) could not have been
avoided by the Lessee or any Lessee Person, including flood, earthquake,
hurricane, cyclone, tornado or other acts of God, civil unrest, insurrection or
other acts of the public enemy.
"FULL RECOURSE CONSTRUCTION PERIOD EVENT OF DEFAULT" means the
occurrence of any of the following:
(a) any fraudulent or illegal act or omission of Lessee,
Construction Agent, any Lessee Person or any of their respective Affiliates in
connection with (i) the negotiation, execution, delivery, consummation and/or
performance of any Operative Agreement or any Construction Contract or (ii) the
acquisition, design, development, construction, installation or operation of any
Property;
(b) the misapplication of any Advance or any portion thereof or
any other funds made available to Lessee or Construction Agent or any of their
respective Affiliates under any Operative Agreement;
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(c) a Bankruptcy Event; or
(d) Lessee, Construction Agent or any Lessee Person or any of
their respective Affiliates shall willfully breach any of their respective
obligations, covenants, representations or warranties under any Operative
Agreement or any Construction Contract or other contractual agreement or
Governmental Action relating to any Property, or any construction or development
thereof.
"FUNDING DATE" shall mean a Business Day on which the Lessor, on behalf
of the Construction Agent, requests the Lenders pursuant to a Requisition
delivered to the Trust and the Agent pursuant to Section 4.2 of the
Participation Agreement to advance funds representing Loans and the Holders to
contribute funds representing Holder Advances in accordance with the
Participation Agreement, in each case in order to fund Project Costs and all
requirements for such Advances have been met.
"GAAP" shall mean United States generally accepted accounting principles
(including principles of consolidation), in effect from time to time,
consistently applied.
"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
all environmental and operating permits and licenses that are required for the
full use, occupancy, zoning and operation of each Property.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, county,
municipal or other local governmental authority or judicial or regulatory
agency, board, body, commission, instrumentality, court or quasi-governmental
authority.
"GRANTEE" shall mean the Agent.
"GRANTOR" shall mean the Lessor.
"HAZARDOUS ACTIVITY" shall mean any activity, process, procedure or
undertaking that directly or indirectly (a) produces, generates or creates any
Hazardous Substance; (b) causes or results in the Release of any Hazardous
Substance into the environment (including air, water vapor, surface water,
groundwater, drinking water, land (including surface or subsurface), plant,
aquatic and animal life); (c) involves the containment or storage of any
Hazardous Substance; or (d) would be regulated as hazardous waste treatment,
storage or disposal within the meaning of any Environmental Law.
"HAZARDOUS CONDITION" shall mean any condition that violates or that
results in noncompliance with or a violation of any Environmental Law.
"HAZARDOUS SUBSTANCE FACILITY" shall mean a facility used for the
treatment, storage or disposal of Hazardous Substances.
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"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 or (b) 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" shall mean, individually and collectively, the various banks,
financial institutions and institutional lenders or their investment affiliates
party to the Participation Agreement from time to time as holders of
Certificates.
"HOLDER ADVANCE" shall have the meaning set forth in Section 1.2 of the
Participation Agreement.
"HOLDER COMMITMENT FEE" shall mean a fee, payable during the
Construction Period, calculated by applying a rate per annum of thirty (30)
basis points (0.30%) to the Aggregate Commitment Amount.
"HOLDER COMMITMENTS" shall mean the Holders' commitments as set forth on
Schedule 1.2 to the Participation Agreement.
"HOLDER YIELD" shall have the meaning set forth in Section 1.5(a) of the
Participation Agreement.
"IMPOSITIONS" shall mean, except to the extent described in the second
paragraph of this definition 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 (a) real and
personal property taxes, including 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, mortgage
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 all assessments for public improvements
or benefits, whether or not such improvements are commenced or completed within
the Term; and (g) any tax, Lien, assessment or charge 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 (i) any Property or any part thereof or
interest therein; (ii) the purchase, sale, leasing, subleasing, financing,
refinancing, demolition, construction, alteration, substitution, subleasing,
assignment, control, condition, occupancy, servicing, maintenance, repair,
ownership, possession, activity conducted on, delivery, insuring, use,
operation, improvement, transfer of title, return or other disposition of any
Property or any part thereof or interest therein; (iii) the Loans or the Holder
Advances or any part thereof or interest therein; (iv) the rentals, receipts or
earnings arising from any Property or
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any part thereof or interest therein; (v) the Operative Agreements, the
performance thereof, or any payment made or accrued pursuant thereto; (vi) the
income or other proceeds received with respect to any Property or any part
thereof or interest therein upon the sale or disposition thereof; (vii) any
contract relating to the construction, acquisition or delivery of the
Improvements or any part thereof or interest therein; or (viii) otherwise in
connection with the transactions contemplated by the Operative Agreements.
Notwithstanding the preceding paragraph, the term "IMPOSITION" shall not
mean nor include nor be deemed to include the following (except to the extent
that such Taxes apply in consequence of the Lease being treated other than as a
loan for such Tax purposes and exceed the amount of such Taxes that would have
applied if the Lease had been so treated as a loan):
(a) Taxes and impositions (other than Taxes that are, or are in
the nature of, sales, use, transfer or property taxes) that are imposed on an
Indemnified Person by the United States federal or any foreign government that
are based on or measured by the net income (including taxes based on capital
gains and minimum taxes) of such Person; provided, that this clause (a) 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;
(b) Taxes and impositions (other than Taxes that are, or are in
the nature of, sales, use, transfer or property taxes) that are imposed by any
state or local jurisdiction or taxing authority within any state or local
jurisdiction and that are franchise taxes or are based upon or measured by net
income or net receipts; provided, that this clause (b) 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 (anything to the contrary notwithstanding,
nothing in the Operative Agreements shall be construed to impose upon Lessee any
liability for Taxes imposed upon an Indemnified Person to the extent imposed
with respect to any activities of such Indemnified Person other than under the
transactions contemplated by the Operative Agreements);
(c) 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 11.3(f)
of the Participation Agreement;
(d) any Taxes which are imposed on an Indemnified Person as a
result of the gross negligence or willful misconduct of such Indemnified Person
itself or its Affiliates (as opposed to gross negligence or willful misconduct
imputed to such Indemnified Person), but not Taxes imposed as a result of
ordinary negligence of such Indemnified Person and Taxes imposed as a result of
any breach by an Indemnified Person or its Affiliate of any provision of the
Operative Documents;
(e) any Tax or imposition to the extent, but only to such extent,
it relates to any act, event or omission that occurs after the termination of
the Lease and redelivery or sale of the Properties in accordance with the terms
of the Lease (but not any Tax or imposition that relates to any period prior to
such termination and redelivery);
(f) any interest, additions to tax or penalties imposed on an
Indemnified Person as a result of a breach by such Indemnified Person of its
obligations under Section 11.3(c)
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of the Participation Agreement or as a result of an Indemnified Person's failure
to file any return or other documents timely and as prescribed by applicable
law;
(g) any Impositions imposed upon an Indemnified Person with
respect to any voluntary transfer, sale, financing or other voluntary
disposition of any interest in any Property or any part thereof, or any interest
therein or any interest or obligation under the Operative Agreements or from any
sale, assignment, transfer or other disposition of any interest in an
Indemnified Person or any Affiliate thereof (other than any transfer in
connection with (i) the exercise by the Lessee of its Purchase Option or any
termination option or other purchase of any Property by the Lessee, (ii) the
occurrence of an Event of Default, (iii) a Casualty or Condemnation affecting
any Property or any part thereof, or (iv) any sublease, modification or addition
to any Property by the Lessee);
(h) 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 Agreement not initiated,
requested or consented to by the Lessee unless such amendment, supplement,
modification, consent or waiver (i) arises due to, or in connection with there
having occurred, an Event of Default, or (ii) is required by the terms of the
Operative Agreements or is executed in connection with any amendment to the
Operative Agreements required by law;
(i) Taxes imposed on or with respect to or payable by an
Indemnified person or any Affiliate because such Indemnified Person or any
Affiliate thereof is not a United States person within the meaning of Section
7701(a)(30) of the Code;
(j) Taxes that would have been imposed in the absence of the
transactions contemplated by the Operative Agreements; or
(k) Any Tax imposed in lieu of or in substitution for any of the
foregoing.
"IMPROVEMENTS" shall mean the Buildings and all other buildings,
structures, Fixtures, Equipment, and other improvements of every kind financed
by the Participants and existing at any time and from time to time on or under
the Land, 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 additions to or changes in the
Improvements at any time.
"IMPROVEMENTS INVESTMENT BALANCE" shall mean the aggregate amount of
Advances made for Project Costs in respect of the Improvements, plus the
interest and Holder Yield allocated to such Improvements, as allocated in
relation to the values set forth in the Appraisal.
"IN BALANCE" means that, with respect to the Budget, (a) the undisbursed
portion of the Budget shall be sufficient to complete construction of each
Property pursuant to the Construction Contracts prior to the Commitment
Termination Date and to pay all Project Costs and (b) the undisbursed portion of
each item described in the Budget, plus the reserve for that item, plus the
Contingency Reserve for each Property (to the extent such reserve or Contingency
Reserve has not theretofore been set aside by the Construction Agent for the
payment of overruns in other
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cost categories or change orders or amendments permitted pursuant to Section 3.2
of the Construction Agency Agreement) shall be sufficient to pay in full the
costs to which each such amount in the Budget is allocated and to complete
construction of each such item in accordance with the Construction Contracts.
"INDEBTEDNESS" shall mean as to any Person, (a) all indebtedness of such
Person for borrowed money; (b) the deferred purchase price of assets or services
which in accordance with GAAP would be shown on the liability side of the
balance sheet of such Person; (c) the face amount of all letters of credit
issued for the account of such Person and, without duplication, all drafts drawn
thereunder; (d) all indebtedness of a second Person secured by any Lien on any
property owned by such first Person, whether or not such indebtedness has been
assumed; (e) all Capitalized Lease Obligations of such Person; (f) all
obligations of such Person to pay a specified purchase price for goods or
services whether or not delivered or accepted, e.g., take-or-pay and similar
obligations; (g) all obligations of such Person under Interest Rate Agreements;
(h) all Off-Balance Sheet Debt; and (i) without duplication, all Contingent
Obligations of such Person, provided that Indebtedness shall not include trade
payables and accrued expenses relating to employees, in each case arising in the
ordinary course of business.
"INDEMNIFIED PERSON" shall mean the Lessor, the Agent, each Lender, each
Holder, the Collateral Agent, the Trustees, the Trust Company, the Deposit
Taker, the Depositary Bank and their respective successors, assigns, directors,
shareholders, partners, officers, employees, agents, representatives and
Affiliates.
"INSURANCE REQUIREMENTS" shall mean all terms and conditions of any
insurance policy required by the Lease or the Construction Agency Agreement to
be maintained by the Lessee or the Construction Agent and all requirements of
the issuer of any such policy.
"INSOLVENT" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"INTEREST PERIOD" shall mean, with respect to any LIBOR Loans or LIBOR
Holder Advances:
(a) the period commencing on the Advance date with respect to
such LIBOR Loans or LIBOR Holder Advances and ending one (1), three (3) or six
(6) months thereafter, as selected by the Borrower in its Interest Period
Selection Notice given with respect thereto; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such LIBOR Loan or LIBOR
Holder Advances and ending one (1), three (3) or six (6) months thereafter, as
selected by the Lessor, on behalf of the Lessee, in an Interest Period Selection
Notice given to the Agent not less than three (3) Business Days prior to the
last day of the then current Interest Period with respect thereto;
provided, that the foregoing provisions relating to Interest Periods are subject
to the following:
(c) if any Interest Period pertaining to a LIBOR Loan or LIBOR
Holder Advances 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
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carry such Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day;
(d) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date; and
(e) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"INTEREST PERIOD SELECTION NOTICE" shall mean a notice duly executed by
a responsible officer of the Lessee containing the information specified in the
Requisition.
"INTEREST RATE AGREEMENT" shall mean any interest rate swap agreement,
interest rate cap agreement, interest rate dollar agreement, interest rate
futures contract, interest rate option contract or other similar agreement or
arrangement designed to protect any Person against fluctuations in interest
rates.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of 1940,
as amended, together with the rules and regulations promulgated thereunder.
"LAND" shall mean the parcels of real property described on Schedule I
to each Lease Supplement and all Appurtenant Rights attached thereto.
"LAND INVESTMENT BALANCE" shall mean the aggregate amount of Advances
made for Project Costs in respect of the Land, plus the interest and Holder
Yield attributable to the Land as allocated in relation to the values set forth
in the Appraisal.
"LEASE" shall mean the Master Lease, dated as of March 30, 2001, between
the Lessor and the Lessee, together with any Lease Supplements thereto, as
amended, supplemented, modified or restated from time to time in accordance with
the terms thereof or of any other Operative Agreement.
"LEASE BALANCE" shall mean, as of any date of determination, an amount
equal to the sum of the Lease Balance Debt and the Lease Balance Equity and all
other amounts owing by the Lessee under the Operative Agreements (including
accrued and unpaid Basic Rent, capitalized Commitment Fees, Capitalized
Interest, Capitalized Holder Yield and Supplemental Rent, if any).
"LEASE BALANCE DEBT" shall mean, as of any date of determination, an
amount equal to the sum of the outstanding Loans together with all accrued and
unpaid interest thereon pursuant to the Participation Agreement.
"LEASE BALANCE EQUITY" shall mean, as of any date of determination, an
amount equal to the sum of the outstanding Holder Advances together with all
accrued and unpaid Holder Yield thereon pursuant to the Participation Agreement.
20.
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"LEASE EVENT OF DEFAULT" shall have the meaning set forth in Section
17.1 of the Lease.
"LEASE PAYMENT OBLIGATIONS" shall have the meaning set forth in Section
17.6 of the Lease.
"LEASE RATE" shall mean (a) the sum of the Adjusted LIBOR plus the
Applicable Margin, or (b) if, pursuant to the Participation Agreement, the
Holder Advances or the Loans may not bear Holder Yield or interest, as the case
may be, based upon LIBOR, then the sum of the ABR plus the Applicable Margin.
"LEASE SUPPLEMENT" shall mean each Lease Supplement substantially in the
form of Exhibit A to the Lease, together with all attachments and schedules
thereto, as such Lease Supplement may be supplemented, amended or modified from
time to time.
"LEGAL REQUIREMENTS" shall mean all Federal, state, county, municipal
and other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting any Property or the demolition,
construction, renovation, 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 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 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, the Appurtenant
Rights and any easements, licenses or other agreements entered into pursuant to
Section 12.2 of the Lease.
"LENDER" shall mean, individually and collectively, the various banks,
financial institutions and other institutional lenders party to the Credit
Agreement from time to time.
"LENDER COMMITMENT" shall have the meaning set forth in Section 2 of the
Credit Agreement.
"LENDER FINANCING STATEMENTS" shall mean UCC financing statements
appropriately completed and executed for filing in the appropriate state and
county offices in the states in which any Property is located in order to
perfect a security interest in favor of the Agent in such of the Property as is
personal property, as the same may be amended from time to time.
"LESSEE" shall mean Symantec Corporation, a Delaware corporation, as
lessee under the Lease.
"LESSEE PERSONS" shall mean the Lessee, the Construction Agent, any of
their Affiliates and any other Person having direct or indirect control or
supervisory responsibility in respect of the construction of any Property, and
all contractors and subcontractors under any Construction Contract.
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"LESSOR" shall mean the Trust and its successors and assigns.
"LESSOR BASIC RENT" shall mean the Holder Yield due on the Holder
Advances on any Scheduled Interest and Yield Payment Date pursuant to the
Participation Agreement and the Lease.
"LESSOR FINANCING STATEMENTS" shall mean UCC financing statements
appropriately completed and executed for filing in the appropriate state and
county offices in the states in which any Property is located in order to
protect the Lessor's interest under the Lease to the extent the Lease is a
security agreement, as the same may be supplemented, amended or modified from
time to time, and as the same shall be assigned to the Agent pursuant to
appropriate UCC financing statements.
"LESSOR LIEN" shall mean 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 by the Operative Agreements, (b)
any act or omission of any Participant, 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 any Participant with respect to Taxes or Transaction
Expenses against which the Lessee is not required to indemnify such Participant
pursuant to the Participation Agreement or (d) any claim against any Participant
arising out of any transfer by such Participant of all or any portion of the
interest of such Participant in any Property or the Operative Agreements other
than the transfer of title to or possession of any Property by such Participant
pursuant to and in accordance with the Lease or the Participation Agreement or
pursuant to the exercise of the remedies set forth in Article 17 of the Lease.
"LESSOR PARTY" shall have the meaning set forth in Section 11.1(b) of
the Participation Agreement.
"LESSOR REMARKETING FEE" means, in the event the Lessor elects to
remarket any Property on behalf of the Lessee following an election by the
Lessee to, or requirement by the Lessor that the Lessee shall, remarket the
Property under any of Sections 16.1, 17.2 or 21.1 of the Lease or Sections
4.2(b), 5.3 or 5.5 of the Construction Agency Agreement, an amount equal to six
percent (6.0%) of the projected Fair Market Value of the Property, as improved
pursuant to the applicable Plans and Specifications, shown on the Appraisal
delivered pursuant to Section 5.2(e) of the Participation Agreement.
"LIBOR" shall mean with respect to an Interest Period for each LIBOR
Loan or LIBOR Holder Advance, the rate per annum equal to the mid-morning
average of the London Interbank Offered Rate published by the British Banker's
Association (rounded upwards, if necessary, to the nearest 1/16 of 1.0%) on the
day which is two (2) Business Days prior to the beginning of such Interest
Period.
"LIBOR ALTERNATIVE" shall have the meaning set forth in Section 11.4 of
the Participation Agreement.
"LIBOR HOLDER ADVANCES" shall mean the portion of the Holder Advances,
the Holder Yield applicable to which is based upon LIBOR.
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"LIBOR LOANS" shall mean Loans the rate of interest applicable to which
is based upon LIBOR.
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset,
and (c) in the case of securities, any purchase option, call or similar right of
a third party (excluding rights of first refusal) with respect to such
securities.
"LIMITED RECOURSE AMOUNT" shall mean, with respect to any Property on
any date, the amount equal to the Lease Balance with respect to such Property on
such date, less the Maximum Residual Guarantee Amount as of such date with
respect to such Property.
"LOANS" shall have the meaning set forth in Section 2 of the Credit
Agreement.
"MAJORITY SECURED PARTIES" shall mean, at any time, those Lenders whose
Lender Commitments aggregate at least 51% of the Commitment Percentages of all
Lenders.
"MARKETING PERIOD" shall mean, if the Lessee has not given the Maturity
Date Election Notice in accordance with Section 20.2 of the Lease and if no
Renewal Term has been negotiated pursuant to Section 14.1 of the Participation
Agreement, (a) the period commencing on the date which is one hundred eighty
(180) days prior to the Maturity Date and ending on the Maturity Date or (b) in
connection with a remarketing of the Properties pursuant to the Construction
Agency Agreement or Article XVI of the Lease, the period commencing on the date
selected by the Agent and ending one hundred eighty (180) days thereafter.
"MATERIAL ADVERSE EFFECT" shall mean (a) a materially adverse effect on
the business, assets, operations, prospects or condition (financial or
otherwise) of the Lessee and its Subsidiaries taken as a whole or (b) a material
impairment of the ability of the Lessee to perform its obligations under any
Operative Agreement to which it is or will be a party.
"MATERIAL SUBSIDIARY" shall mean, with respect to the Lessee, any
Subsidiary, as of the end of any Fiscal Quarter (a) the assets of which
constituted five percent (5%) or more of the assets of the Lessee and its
Subsidiaries on a consolidated basis as of the end of such Fiscal Quarter or (b)
the gross revenues of which constituted five percent (5%) or more of the gross
revenues of the Lessee and its Subsidiaries on a consolidated basis as of the
end of such Fiscal Quarter.
"MATURITY DATE" shall mean, with respect to the Loans and the Holder
Advances, the date which is six (6) years and one hundred eighty-two (182) days
after the Closing Date.
"MATURITY DATE ELECTION NOTICE" shall have the meaning set forth in
Section 20.2 of the Lease.
"MATURITY DATE PURCHASE OPTION" shall mean the Lessee's Purchase Option
to purchase the Properties on the Maturity Date in accordance with Section 20.2
of the Lease.
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"MAXIMUM RESIDUAL GUARANTEE AMOUNT" for each Property shall mean an
amount equal to the sum of (a) the applicable Land Investment Balance plus (b)
the product of the applicable Improvements Investment Balance to the extent of
Project Costs properly capitalized as "Project Costs" under GAAP incurred as of
such date (after having adjusted Project Costs for any Force Majeure Costs as
provided in the definition of "Force Majeure Costs," for any Rent paid on
Advances made in respect of Force Majeure Costs and for the remediation of any
Force Majeure Event) times the Maximum Residual Percentage.
"MAXIMUM RESIDUAL PERCENTAGE" for each Property shall have the meaning
set forth in each Lease Supplement.
"MEMORANDUM OF LEASE" shall mean the Memoranda of Lease referenced in
Section 30.8 of the Lease.
"MODIFICATIONS" shall have the meaning set forth in Section 11.1(a) of
the Lease.
"MORTGAGED PROPERTY" shall have the meaning set forth in Section 7.2(c)
of the Lease.
"MULTIEMPLOYER PLAN" shall mean a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NET PROCEEDS" shall mean all amounts paid in connection with any
Casualty or Condemnation, and all interest earned thereon, less the expense of
claiming and collecting such amounts, including all reasonable costs and
expenses in connection therewith for which the Lenders or Lessor are entitled to
be reimbursed pursuant to the Lease.
"NET SALE PROCEEDS SHORTFALL" shall mean the amount by which the
aggregate proceeds obtained from the sale of the Properties described in Section
21.1 of the Lease (net of all expenses of sale) are less than the Limited
Recourse Amount for the Properties.
"NEWPORT NEWS PROPERTY" shall mean the Build-to-Suit Property located in
Newport News, Virginia.
"NONRECOURSE PORTION" shall mean that portion of the Lease Balance, if
any, equal to the aggregate of all Force Majeure Costs; provided, that
notwithstanding anything contained in the Lease or elsewhere in the Operative
Agreements, the Nonrecourse Portion shall not be a recourse obligation of the
Lessee but shall be recourse only to the Properties and the other Collateral,
exclusive of the Pledged Collateral.
"NOTES" shall have the meaning set forth in Section 2.2 of the Credit
Agreement.
"OBLIGATIONS" shall mean the collective reference to (a) the unpaid
principal of and interest on the Loans and all other obligations and liabilities
of the Lessor to the Lenders (including interest accruing at the then applicable
rate provided in the Credit Agreement after the Maturity Date and interest
accruing at the then applicable rate provided in the Credit Agreement after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Lessor, whether or not a
claim for post-filing or
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post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in connection with, the
Participation Agreement or any other document made, delivered or given in
connection therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including all
reasonable fees and disbursements of counsel to the Lenders that are required to
be paid by the Lessor pursuant to the terms of any Operative Agreements), (b)
all amounts payable by the Lessee under any of the Operative Agreements
(including indemnities) to the Agent, the Lenders and the Lessor, and (c) the
unpaid Holder Advances and Holder Yield payable thereon and all other
obligations and liabilities from the Lessee to the Lessor and Holders (including
interest accruing at the then applicable rate provided in the Trust Agreement
after the Maturity Date and interest accruing at the then applicable rate
provided in the Trust Agreement after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to the Lessee, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred, which may
arise under, out of, or in connection with, the Trust Agreement or any other
document made, delivered or given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including all reasonable fees and disbursements of
counsel to the Lessor and Holders that are required to be paid by the Lessee
pursuant to the terms of any Operative Agreements).
"OFF-BALANCE SHEET DEBT" shall mean, for the Lessee and its Subsidiaries
at any date, the maximum amount of that portion of the rental payments
(including basic, supplemental and additional rent) representing payments of
principal or equity contributions and not interest required to be made by the
Lessee and any of its Subsidiaries under any synthetic lease or other
off-balance sheet financing arrangement, including in the amount of such
payments the maximum amount of all payments (including payments of termination
value) representing payments of principal or equity contributions and not
interest required to be made in connection with any purchase of the property or
assets subject thereto by the Lessee or any of its Subsidiaries at the
expiration of the term of such lease or arrangement.
"OFFICER'S CERTIFICATE" shall mean a certificate signed by any
individual holding the office of vice president or higher; provided, however,
that with respect to the Trust, "Officer's Certificate" shall mean a certificate
signed by a Responsible Officer of the Trustees.
"OPERATIVE AGREEMENTS" shall mean the following:
(a) the Assignment of Lease;
(b) the Assignments of Purchase Agreement;
(c) the Collateral Assignment of Option;
(d) the Consent to Contract Assignment;
(e) the Consent to Lease Assignment;
(f) the Construction Agency Agreement;
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(g) the Construction Contracts;
(h) the Contract Assignment;
(i) the Credit Agreement;
(j) the Deeds;
(k) the Deeds of Trust;
(l) the Holder Certificates;
(m) the Lease, each Lease Supplement and each Memorandum of
Lease;
(n) the Notes;
(o) the Participation Agreement;
(p) the Pledge Agreement.
(q) the Property Purchase Agreements;
(r) the Requisitions;
(s) the Trust Agreement; and
(t) the UCC Financing Statements.
"OVERDUE RATE" shall mean two percent (2.0%) in excess of the interest
rate or Lease Rate then in effect, or, if less, the maximum amount permitted to
be charged under applicable law.
"PARTICIPANTS" shall mean, collectively, the Agent, each Lender, each
Holder, the Lessor and their successors and assigns.
"PARTICIPATION AGREEMENT" shall mean the Participation Agreement, dated
as of March 30, 2001, among the Lessee, the Construction Agent, the Trust,
Wilmington Trust Company, the Holders, the Lenders, Fuji Bank, Limited, as
documentation agent, KeyBank National Association, as syndication agent, and the
Agent, as it may be amended, supplemented, modified or restated from time to
time in accordance with the terms thereof or of any other Operative Agreement.
"PAYMENT DATE" shall mean each Specified Interest Payment Date and any
other date on which a payment is otherwise due under the terms of the
Participation Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
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"PERMITTED EXCEPTIONS" shall mean all (a) non-monetary encumbrances,
exceptions, restrictions, easements, rights of way, servitudes, encroachments
and irregularities in title (including matters shown on the survey of each
Property referred to in Section 5.2 of the Participation Agreement), (b)
encumbrances otherwise permitted pursuant to the terms of the Operative
Agreements, including Section 12.2 of the Lease, and (c) Liens for taxes that
are either not yet due and payable or are being contested in good faith by
appropriate proceedings and for the payment of which adequate reserves have been
set aside, (d) Liens arising by operation of law, materialmen's, mechanics',
workers', repairmen's, employees', carriers', warehousemen's and other like
Liens relating to any Improvements or arising in the ordinary course of business
for amounts that either are not more than sixty (60) days past due or are being
contested in good faith by appropriate proceedings and for the payment of which
adequate reserves have been set aside, (e) Liens of the types referred to in
clause (d) that have been bonded for not less than the full amount in dispute
(or as to which other security arrangements reasonably satisfactory to the Agent
have been made), which bonding (or arrangements) shall comply with all Legal
Requirements, and has effectively stayed any execution and enforcement of such
Liens, and (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 set aside, so long as such
proceedings have the effect of staying the execution of such judgments or
awards; in each case of clauses (a) through (f), other than Liens which, in the
reasonable assessment of the Lessor, materially impair the use of any Property
for its intended purpose.
"PERMITTED LEASE INVESTMENT BALANCE" shall mean, as of any date of
determination, the difference between (a) the Lease Balance and (b) (i) to the
extent funded by the Participants under the Construction Agency Agreement and
the Participation Agreement, the sum of all Force Majeure Costs, plus (ii) to
the extent not so funded, the sum of all Force Majeure Costs, as determined
pursuant to an Appraisal by an appraiser acceptable to the Agent. Such Appraisal
shall show the diminution in the Fair Market Sales Value of the affected
Property resulting from the Force Majeure Event giving rise to such Force
Majeure Costs; provided, that such diminution shall not exceed the cost to
repair any damage to the affected portion of such Property resulting from such
Force Majeure Event.
"PERMITTED PARCEL" shall mean any commercial property approved by Agent
in its sole discretion and in any event shall include the Springfield Property
and the Newport News Property.
"PERSON" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization, governmental authority or any other entity.
"PLAN" shall mean an Employee Benefit Plan.
"PLANS AND SPECIFICATIONS" shall mean the plans and specifications for
the Improvements to be constructed on each Property, as such Plans and
Specifications may be amended, modified or supplemented from time to time in
accordance with the terms of the Operative Agreements.
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"PLEDGE AGREEMENT" shall mean the Pledge and Security Agreement, dated
as of the March 30, 2001, between the Lessee and the Collateral Agent as such
Pledge Agreement may be amended, supplemented, modified or restated from time to
time in accordance with the terms of the Operative Agreements.
"PLEDGED CDS" shall have the meaning set forth in Section 1.2.25 of the
Pledge Agreement.
"PLEDGED COLLATERAL" shall have the meaning set forth in Section 2.1 of
the Pledge Agreement.
"POST-CONSTRUCTION TERM COMMENCEMENT DATE" shall mean, regarding each
Build-to-Suit Property, its Completion Date.
"PROJECT COSTS" shall mean, individually with respect to each Property
and collectively with respect to all Properties, as the context shall require,
all costs and expenses incurred by the Construction Agent or Lessor or otherwise
expended prior to the Completion Date in connection with the acquisition and
development of the Land and the design and construction of the Buildings and any
other Improvements, including Property Acquisition Costs, all professional fees
and other soft costs incurred in connection therewith, Transaction Expenses and
other pre-closing and closing costs incurred by Construction Agent or Lessor in
connection with the transactions contemplated by the Operative Agreements and
Capitalized Interest and Capitalized Holder Yield during the Construction
Period, as the same are reflected in the Budget prepared in accordance with the
Construction Agency Agreement.
"PROJECTED COMPLETION VALUE" shall mean the estimated value of any
Improvements assuming such Improvements are completed in accordance with the
Plans and Specifications, as established by an Appraisal.
"PROPERTY" or "PROPERTIES" shall mean, with respect to each individual
Permitted Parcel that is acquired, improved, and/or developed pursuant to the
terms of the Operative Agreements, the Lessor's fee interest in the Land and all
of the Improvements at any time located thereon or thereunder and collectively,
all such Permitted Parcels, as the context shall require.
"PROPERTY ACQUISITION COST" shall mean the cost to the Lessor to acquire
the Land and the Improvements and other costs incurred in connection therewith,
including all professional fees and permitting, survey, title and other similar
costs.
"PROPERTY CLOSING DATE" shall mean, as to any Permitted Parcel, the date
on which the Lessor purchases such Permitted Parcel and all of the conditions
precedent set forth in Section 5.2 of the Participation Agreement are satisfied.
"PROPERTY PURCHASE AGREEMENT" shall mean (a) with respect to the
Springfield Property, the Purchase Agreement dated as of January 12, 2001 by and
between Sony Music Entertainment Inc. and the Lessee, as amended by that certain
First Amendment to Purchase Agreement dated as of March 30, 2001 and (b) with
respect to any other Property or Properties, any other property purchase
agreement involving any Permitted Parcel.
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"PURCHASE NOTICE" shall have the meaning set forth in Section 20.1 of
the Lease.
"PURCHASE OPTION" shall have the meaning set forth in Section 20.1 of
the Lease.
"PURCHASE OPTION PRICE" shall have the meaning set forth in Section 20.1
of the Lease.
"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 mean any renewal term extended in accordance with
the terms of Section 14.1 of the Participation Agreement.
"RENT" shall mean, collectively, the Basic Rent and the Supplemental
Rent, in each case payable under the Lease.
"REPORTABLE EVENT" shall mean a "reportable event" described in Section
4043(b) of ERISA as to which the thirty (30) day notice period has not been
waived.
"REQUIRED HOLDERS" shall have the meaning set forth in Section 1.1 of
the Trust Agreement.
"REQUIREMENT OF LAW" shall mean, as to any Person, the certificate or
articles of incorporation, bylaws, articles of association or other
organizational or governing documents of such Person, and any law, treaty, rule
or regulation or determination of an arbitrator or a court 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.
"REQUISITION" shall have the meaning set forth in Section 4.2 of the
Participation Agreement.
"RESPONSIBLE OFFICER" shall mean, with respect to the Trustees, any
officer within the Corporate Trust Administration office of the Trustees with
direct responsibility for the administration of the Trust and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of, and familiarity with, the particular
subject.
"SCHEDULED INTEREST AND YIELD PAYMENT DATE" shall mean (a) as to any ABR
Loan or ABR Holder Advances, the last day of each month to occur while such
Loans or Holder Advances are outstanding and the Maturity Date, and (b) as to
any LIBOR Loan or LIBOR Holder Advances, the last day of each Interest Period
and the Maturity Date.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"SECURITY DOCUMENTS" shall mean the collective reference to the Lease,
the Pledge Agreement, the Deeds of Trust, the Assignment of Lease, and all other
security documents
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hereafter delivered to the Lessor or Agent granting a Lien on any asset or
assets of any Person to secure the Obligations of the Lessee or Lessor or to
secure any guarantee of any such obligations and liabilities.
"SIGNIFICANT CASUALTY" shall mean a Casualty that in the reasonable,
good faith judgment of the Agent either (a) renders any Property unsuitable for
continued use as a commercial property of the type of such Property immediately
prior to such Casualty, or (b) is so substantial in nature that restoration of
such Property to substantially its condition as existed immediately prior to
such Casualty would be impracticable or impossible.
"SIGNIFICANT CONDEMNATION" shall mean a Condemnation that in the
reasonable, good faith judgment of the Agent either (a) renders any Property
unsuitable for continued use as commercial property of the type of such Property
immediately prior to such Condemnation, or (b) is such that restoration of such
Property to substantially its condition as existed immediately prior to such
Condemnation would be impracticable or impossible.
"SIGNIFICANT EVENT" shall mean (a) a Significant Casualty, (b) a
Significant Condemnation, (c) an event where the restoration of any Property
subject to a Casualty or Condemnation shall not be completed prior to the
earlier of (i) the 180th day prior to the Expiration Date or (ii) twelve (12)
months following the occurrence of such Casualty or Condemnation, or (d) the
occurrence of an Environmental Violation where the costs to clean up or
remediate the same are reasonably estimated by the Lessee to exceed $3,000,000.
"SINGLE EMPLOYER PLAN" shall mean any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"SPECIFIED INTEREST PAYMENT DATE" shall mean (a) any Scheduled Interest
and Yield Payment Date, and (b) any date on which interest is payable pursuant
to Section 2.7(d) of the Credit Agreement and Section 1.5(c) of the
Participation Agreement in connection with any prepayment of the Loans or Holder
Advances.
"SPRINGFIELD PROPERTY" shall mean the Build-to-Suit Property located in
Springfield, Oregon.
"SUBJECT CONTRACTS" shall have the meaning set forth in Section 7.2(c)
of the Lease.
"SUBJECT LEASES" shall have the meaning set forth in Section 7.2(c) of
the Lease.
"SUBSIDIARY" shall mean, with respect to any Person (herein referred to
as the "PARENT"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than fifty percent (50.0%) of the equity or more than fifty percent (50.0%) of
the ordinary voting power or more than fifty percent (50.0%) of the general
partnership interests are, at the time any determination is being made, owned,
controlled or held, or (b) which is, at the time any determination is made,
otherwise Controlled by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
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"SUPPLEMENTAL RENT" shall mean all amounts, liabilities and obligations
(other than Basic Rent) which Lessee assumes or agrees to pay to the Lessor or
any other Lease or under any of the other Operative Agreements.
"TANGIBLE NET WORTH" shall mean, as determined at any time for Lessee
and its Subsidiaries on a consolidated basis in accordance with GAAP, 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).
"TAXES" shall have the meaning set forth in the definition of
"IMPOSITIONS."
"TERM" shall mean the period commencing on the Closing Date and ending
on the date which is six (6) years and one hundred eighty-two (182) days after
the Closing Date.
"TERM COMMENCEMENT DATE" shall have the meaning set forth in Section 2.2
of the Lease.
"TERMINATION DATE" shall have the meaning set forth in Section 16.2(a)
of the Lease.
"TERMINATION NOTICE" shall have the meaning set forth in Section 16.1(a)
of the Lease.
"TITLE COMPANY" shall mean (a) with respect to the Springfield Property,
Western Pioneer Title Company and (b) with respect to any other Property or
Properties, such other title insurance company reasonably acceptable to the
Agent.
"TOTAL CONDEMNATION" shall mean a Condemnation that involves a taking of
the Lessor's entire title to any Property.
"TRANSACTION EXPENSES" shall mean:
(a) the reasonable out-of-pocket expenses, disbursements or costs
of the Agent, the Trustees and the Lessor incurred in connection with the
consummation of the transactions contemplated by the Operative Agreements,
including all reasonable fees, expenses and disbursements of such parties' legal
counsel;
(b) any and all Taxes and fees incurred in recording or filing
any Operative Agreement or any other transaction document, any deed,
declaration, deed of trust, security agreement, notice or financing statement
with any public office, registry or governmental agency in connection with the
transactions contemplated by the Operative Agreements;
(c) any real estate brokers' fees and any and all stamp, transfer
and other similar taxes, fees and excises, if any, including any interest and
penalties, which are payable in connection with the acquisition of any Property;
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(d) all reasonable out-of-pocket costs and expenses incurred in
connection with the enforcement or preservation of any rights under the
Operative Agreements, including the fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to the Agent, the Lessor
and each Participant;
(e) all reasonable out-of-pocket costs and expenses incurred in
connection with any amendment, supplement or modification to the Operative
Agreements requested by the Lessee and any other documents prepared in
connection therewith, and the consummation and administration of the
transactions contemplated thereby, including the reasonable fees and
disbursements of counsel to the Agent, the Lessor and each Participant; and
(f) all reasonable out-of-pocket costs and expenses incurred by
the Agent, the Lessor and each Participant, in connection with any purchase of
any Property by the Lessee or sale of the Properties to any third party pursuant
to the Lease.
"TRANSACTIONS" shall have the meaning set forth in Section 6.3(d) of the
Participation Agreement.
"TRUST" shall mean The Symantec 2001 Trust, a Delaware statutory
business trust.
"TRUST AGREEMENT" shall mean the Trust Agreement, dated as of March 30,
2001, among the Holders and Wilmington Trust Company, as it may be amended,
supplemented, modified or restated from time to time in accordance with the
terms thereof or of any other Operative Agreement.
"TRUSTEES" shall have the meaning set forth in the Trust Agreement.
"TRUST ESTATE" shall have the meaning set forth in Section 4.1(b) of the
Trust Agreement.
"TRUST COMPANY" or "TRUST COMPANIES" shall mean, individually and
collectively, Wilmington Trust Company and any co-trustee of the Trust serving
as such for purposes of the law of the jurisdiction in which any Property is
located, or any successor or substitute trustee per the terms of the Trust
Agreement (including Wilmington Trust FSB), who, in the case of an institutional
trustee, is a Person incorporated in the United States not meeting the
conditions for financial statement consolidation pursuant to the FASB Emerging
Issues Task Force Issue No. 90-15 or any related pronouncement, directive, issue
or rule of any accounting or financial reporting authority.
"UCC FINANCING STATEMENTS" shall mean collectively the Lender Financing
Statements and the Lessor Financing Statements.
"UNANIMOUS VOTE MATTERS" shall have the meaning set forth in Section
13.4 of the Participation Agreement.
"UNIFORM COMMERCIAL CODE" and "UCC" shall mean the Uniform Commercial
Code as in effect from time to time in any applicable jurisdiction.
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"VALUE" shall have the meaning set forth in Section 1.2.33 of the Pledge
Agreement.
"WILMINGTON TRUST COMPANY" shall mean Wilmington Trust Company, a
banking corporation organized under the laws of the State of Delaware and the
initial Trustee.
"WILMINGTON TRUST FSB" shall mean Wilmington Trust FSB, a federal
savings bank.
"YIELD RATE" shall mean the Adjusted LIBOR or the ABR, as applicable,
plus the Applicable Margin.
33.
