APPENDIX 1
to
Participation Agreement, Master Lease and
Construction Deed of Trust
each dated as of August 22, 1997
(Specialty Storage Product Group Facilities)
DEFINITIONS AND INTERPRETATION
A. Interpretation. In each Operative Document, unless a clear contrary
intention appears:
(i) the singular number includes the plural number and vice
versa;
(ii) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by the Operative Documents, and reference to a Person in a
particular capacity excludes such Person in any other capacity or
individually;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative
Document), document or instrument means such agreement, document or
instrument as amended or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms of the
other Operative Documents and reference to any promissory note includes
any promissory note which is an extension or renewal thereof or a
substitute or replacement therefor;
(v) reference to any Applicable Law means such Applicable Law
as amended, modified, codified, replaced or reenacted, in whole or in
part, and in effect from time to time, including rules and regulations
promulgated thereunder, and reference to any section or other provision
of any Applicable Law means that provision of such Applicable Law from
time to time in effect and constituting the substantive amendment,
modification, codification, replacement or reenactment of such section
or other provision;
(vi) reference in any Operative Document to any Article,
Section, Appendix, Schedule, or Exhibit means such Article or Section
thereof or Appendix, Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar
import shall be deemed references to an Operative Document as a whole
and not to any particular Article, Section or other provision thereof;
(viii) "including" (and with correlative meaning "include")
means including without limiting the generality of any description
preceding such term;
(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time,
"from" means "from and including" and "to" means "to but excluding".
B. Accounting Terms. In each Operative Document, unless expressly
otherwise provided, accounting terms shall be construed and interpreted, and
accounting determinations and computations shall be made, in accordance with
GAAP.
C. Conflict in Operative Documents. If there is any conflict between
any Operative Documents, such Operative Document shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) of such conflict, the Lease shall prevail and
control.
D. Legal Representation of the Parties. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring the Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
E. Defined Terms. Unless a clear contrary intention appears, terms
defined herein have the respective indicated meanings when used in each
Operative Document.
"ABN AMRO" means ABN AMRO Bank N.V., San Francisco International
Branch.
"Account" is defined in Section 3.11 of the Participation Agreement and
in Section 1 of the Cash Collateral Agreement.
"Acquisition Request" is defined in Section 3.3 of the Participation
Agreement.
"Adjusted Percentage" is defined in Section 11.6 of the Participation
Agreement.
"Administrative Agent" means the Administrative Agent under, and as
defined in, the Credit Agreement.
"Administrative Fee" is defined in Section 4.3 of the Participation
Agreement.
"Advance" means an advance of funds by the Lessor pursuant to Section 3
of the Participation Agreement which will be used to pay Land Interest
Acquisition Costs or Property Improvements Costs.
- 2 -
"Affiliate" means, when used with respect to any Person, any other
Person directly or indirectly Controlling or Controlled by or under direct or
indirect common control with such Person.
"After Tax Basis" means, with respect to any payment to be received,
the amount of such payment increased so that, after deduction of the amount of
all taxes required to be paid by the recipient calculated at the then maximum
marginal federal and state income tax rates generally applicable to Persons of
the same type as the recipient (less any tax savings realized as a result of the
payment of the indemnified amount) with respect to the receipt by the recipient
of such amounts, such increased payment (as so reduced) is equal to the payment
otherwise required to be made.
"Agent" means ABN AMRO, as agent for the Participants pursuant to the
Participation Agreement, or any successor or additional agent appointed in
accordance with the terms of the Participation Agreement.
"Agent/Arranger Fee Letter" means the letter from the Arranger to the
Lessee, dated as of August 19, 1997.
"Agent Financing Statements" means UCC financing statements
appropriately completed and executed for filing in the applicable jurisdiction
in order to perfect a security interest in favor of the Agent for the ratable
benefit of the Participants in the Equipment located on the Property or in any
Improvements on the Property.
"Alternate Base Rate" means, for any period, an interest rate per annum
equal to the lower of (i) the Prime Rate or (ii) the Federal Funds Effective
Rate most recently determined by the Agent plus 0.50%. If either of the
aforesaid rates or equivalent changes from time to time after the date of the
Participation Agreement, the Alternate Base Rate shall be automatically
increased or decreased, if appropriate and as the case may be, without notice to
the Lessee or the Lessor, as of the effective time of each change.
"Alternate Basic Rate Advance" means an Advance bearing interest or
Yield determined with reference to the Alternate Base Rate as provided in the
Participation Agreement.
"Applicable Law" means all existing and future applicable laws, rules,
regulations (including Environmental Laws), statutes, treaties, codes,
ordinances, permits, certificates, covenants, restrictions, requirements, orders
and licenses of and interpretations by, any Governmental Authorities, and
applicable judgments, decrees, injunctions, writs, orders or like action of any
court, arbitrator or other administrative, judicial or quasi-judicial tribunal
or agency of competent jurisdiction (including those pertaining to health,
safety or the environment (including, without limitation, wetlands) and those
pertaining to the construction, use or occupancy of the Property) and any
restrictive covenant or deed restriction or easement affecting the Property.
"Applicable Margin" means at any time with respect to any Eurodollar
Rate Advance, either (i) at any time amounts are deposited in an Account subject
to the Cash Collateral Agreement, and with respect to that portion of the
Advances represented by such Collateral, .25% per annum margin
- 3 -
with respect to Tranche A Participation Interests and Tranche B Participation
Interests therein and 1.25% per annum margin with respect to Tranche C
Participation Interests therein, or (ii) at any other time, the per annum margin
which is determined pursuant to the Pricing Grid, and, in each case, added to
the Eurodollar Rate for such Advance.
"Appraisal" means, with respect to the Property, an appraisal, prepared
by a reputable appraiser approved by the Lessor, the Agent and the Required
Participants, which in the judgment of counsel to the Lessor, the Agent and the
Required Participants, 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 Requirements
of Law, which appraisal will (i) appraise the Fair Market Sales Value of the
Property as built in accordance with the Plans and Specifications; on the fifth
anniversary of the Effective Date; as of the commencement of the Renewal Term,
if any; and at the end of the Renewal Term, if any; and (ii) contain an estimate
of the useful life of the Improvements as of each such date, all in a form
satisfactory to the Lessor, the Agent and the Required Participants.
"Appurtenant Rights" means (i) all agreements, easements, rights of way
or use, rights of ingress or egress, privileges, appurtenances, tenements,
hereditaments and other rights and benefits at any time belonging or pertaining
to any Land Interest or the Improvements, including, without limitation, the use
of any streets, ways, alleys, vaults or strips of land adjoining, abutting,
adjacent or contiguous to any Land Interest and (ii) all permits, licenses and
rights, whether or not of record, appurtenant to any Land Interest.
"Arranger" means ABN AMRO North America, Inc.
"Asset Termination Value" means, as of any date of determination, an
amount equal to (i) the sum of (A) the outstanding Advances, (B) all accrued and
unpaid interest on the Advances, and (C) all other amounts owing by the Lessee
under the Operative Documents, less (ii) the sum of all payments received by the
Lessor, the Agent or the Participants on account of payments to reduce Asset
Termination Value, including reductions resulting from payments by the Lessor,
the Lessee or the Guarantor and/or the proceeds from the sale of the Property
and/or amounts realized from the Collateral pursuant to the Cash Collateral
Agreement.
"Assignment and Acceptance" is defined in Section 12.1(b) of the
Participation Agreement.
"Assignment of Construction Documents" means the Assignment of
Construction Documents, dated as of the Effective Date, in the form attached as
Exhibit A to the Construction Agency Agreement.
"Assignment of Lease" means the Assignment of Lease, dated as of the
Effective Date, from the Lessor to the Agent for the benefit of the
Participants, and consented to by the Lessee pursuant to that certain Lessee's
Consent, dated as of the Effective Date (the "Consent to Assignment") by the
Lessee, as obligor, in favor of the Agent for the benefit of the Participants,
in each case in the respective forms set forth in Exhibit L to the Participation
Agreement.
- 4 -
"Assignment of Purchase Agreement" means the Assignment of Certain
Rights under Purchase and Sale Agreement, dated as of the Land Interest
Acquisition Date, by and among the Lessee, as assignor, the Lessor, as assignee
and the Existing Owner, as seller.
"Available Commitments" means as to any Participant at any time, an
amount equal to the excess, if any, of (a) the amount of such Participant's
Commitment over (b) the aggregate amount of its Participation Interest in all
Advances made by the Lessor then outstanding.
"Banks" means the Banks from time to time party to, and as defined in,
the Credit Agreement.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect.
"Basic Rent" means the sum of (i) that portion of the Property
Improvements Costs due on any Payment Date, if any, as set forth on Schedule 1
to the Lease and (ii) the interest or Yield on Advances due on any Payment Date
as set forth in Section 3.8 of the Participation Agreement.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Board" means the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banks in Chicago, Illinois, San Francisco,
California or (if interest is being determined by reference to the Eurodollar
Rate) London, England, are generally authorized or obligated, by law or
executive order, to close.
"Capital Lease" means, 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 Lease Obligations" means any amount payable with respect
to any Capital Lease or any lease of any tangible or intangible property
(whether real, personal or mixed), however denoted, which either (i) is required
by GAAP to be reflected as a liability on the face of the balance sheet of the
lessee thereunder or (ii) based on actual circumstances existing and
ascertainable, either at the commencement of the term of such lease or at any
subsequent time at which any property becomes subject thereto, can reasonably be
anticipated to impose on such lessee substantially the same economic risks and
burdens, having regard to such lessee's obligations and the lessor's rights
thereunder both during and at the termination of such lease, as would be imposed
on such lessee by any lease which is required to be so reflected or by the
ownership of the leased property.
- 5 -
"Cash Collateral" is defined in Section 1 of the Cash Collateral
Agreement.
"Cash Collateral Agreement" means the Cash Collateral Agreement dated
as of the Effective Date among the Lessee, the Lessor, the Agent and the
Participants, in the form of Exhibit S to the Participation Agreement.
"Cash Equivalents" means Investments of the type permitted pursuant to
clauses (i) through (iv), (vi), (viii) and (xviii) in Section 10.1(k) of the
Participation Agreement.
"Casualty" means any damage or destruction of all or any portion of the
Property as a result of a fire or other casualty.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. xx.xx. 9601 et seq., as amended by the
Superfund Amendments and Reauthorization Act of 1986.
"Certifying Party" is defined in Section 26.1 of the Lease.
"Change of Control" means with respect to the Lessee, the occurrence of
any of the following events: (i) any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall (A) acquire beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) of forty percent (40%) or more of the
outstanding Equity Securities of the Lessee entitled to vote for members of the
board of directors, or (B) acquire all or substantially all of the assets of the
Lessee and its Subsidiaries taken as a whole, or (ii) during any period of
fifteen (15) consecutive calendar months, individuals who are directors of the
Lessee on the first day of such period ("Initial Directors") and any directors
of the Lessee who are specifically approved by two-thirds of the directors of
the Lessee who are Initial Directors or previously-approved Approved Directors
("Approved Directors") shall cease to constitute a majority of the Board of
Directors of the Lessee before the end of such period.
"Change of Law" is defined in Section 13.9 of the Participation
Agreement.
"Claims" means any and all obligations, liabilities, losses, actions,
suits, judgments, penalties, fines, claims, demands, settlements, costs and
expenses (including, without limitation, reasonable legal fees and expenses) of
any nature whatsoever, including, as they relate to issues involving any
Environmental Law or Environmental Violation, those matters set forth in Section
13.3 of the Participation Agreement.
"Closing Date" is defined in Section 2 of the Participation Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute thereto.
- 6 -
"Collateral" means the Collateral under the Cash Collateral Agreement.
"Commitment" means (i) as to any Participant, the obligation of such
Participant to purchase a Participation Interest in Advances to be made by the
Lessor under the Participation Agreement, in an aggregate amount at any one time
outstanding not to exceed the amount set forth opposite such Participant's name
on Schedule I to the Participation Agreement, as such amount may be reduced from
time to time in accordance with the provisions of the Participation Agreement,
and (ii) as to the Lessor, the obligation of the Lessor to make Advances from
amounts received from the Participants pursuant to the purchase of Participation
Interests under the Participation Agreement.
"Commitment Fee" is defined in Section 4.1 of the Participation
Agreement.
"Commitment Fee Payment Date" means the last day of each March, June,
September and December during the Commitment Period and the Outside Completion
Date or such earlier date as the Commitments shall terminate as provided in the
Operative Documents.
"Commitment Fee Rate" means, as to each Participant (i) as to such
Participant's 364 Day Commitment and any permitted extension thereof, .125% per
annum and (ii) as to such Participant's Two Year Commitment, the per annum
percentage determined pursuant to the Pricing Grid.
"Commitment Percentage" means, as to any Participant at any time, the
percentage which such Participant's Commitment then constitutes of the aggregate
Commitments of the Participants (or, at any time after the Commitments of the
Participants shall have expired or terminated, the percentage which the
aggregate amount of such Participant's Participation Interest then outstanding
constitutes of the aggregate amount of the Participation Interests then
outstanding).
"Commitment Period" means the period from and including the Effective
Date to but not including the earlier of the Completion Date or the Outside
Completion Date, or such earlier date on which the Commitments shall terminate
as provided in the Operative Documents or such later date as may be provided for
the Completion of construction in the Construction Agency Agreement due to the
existence of a Force Majeure Event.
"Completion" means such time as (i) the conditions set forth in Section
7 of the Participation Agreement are satisfied and (ii) the Improvements are
ready for occupancy.
"Completion Date" means, with respect to the Property, the date on
which Completion of the Improvements on such Property has occurred.
"Compliance Certificate" is defined in Section 10.1(a) of the
Participation Agreement.
"Condemnation" means any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, access, occupancy, easement rights
or title to the Property or any part thereof, wholly or partially (temporarily
or permanently), by or on account of any actual or threatened eminent domain
proceeding or other taking of action by any Person having the power of eminent
- 7 -
domain, including an action by a Governmental Authority to change the grade of,
or widen the streets adjacent to, the Property or alter the pedestrian or
vehicular traffic flow to the Property so as to result in change in access to
the Property, or by or on account of an eviction by paramount title or any
transfer made in lieu of any such proceeding or action. A "Condemnation" shall
be deemed to have occurred on the earliest of the dates that use, occupancy or
title is taken.
"Confidential Information" is defined in Section 15.13 of the
Participation Agreement.
"Consent to Assignment" is defined in the definition of the term
"Assignment of Lease".
"Consent to Construction Agency Agreement Assignment" means the Consent
dated as of the Effective Date by the Lessee to the Construction Agency
Agreement Assignment in the form attached to the Construction Agency Agreement
Assignment.
"Construction Agency Agreement" means the Construction Agency
Agreement, dated as of the Effective Date, between the Lessor and the
Construction Agent, in the form of Exhibit M to the Participation Agreement.
"Construction Agency Agreement Assignment" means the Assignment of
Construction Agency Agreement, dated as of the Effective Date, from the Lessor
to the Agent, for the benefit of the Participants, in the form of Exhibit N to
the Participation Agreement.
"Construction Agency Agreement Event of Default" means a "Construction
Agency Agreement Event of Default" as defined in Section 5.1 of the Construction
Agency Agreement.
"Construction Agent" means the Lessee, as construction agent under the
Construction Agency Agreement.
"Construction Commencement Date" is defined in Section 2.3 of the
Construction Agency Agreement.
"Construction Period" means, with respect to the Property, the period
commencing on the Construction Commencement Date and ending on the earlier of
the Completion Date and the Outside Completion Date for such Property.
"Contingent Obligation" means, with respect to any Person without
duplication, (a) any Guaranty Obligation of that Person; and (b) any direct or
indirect monetary obligation or liability, contingent or otherwise, of that
Person (i) in respect of any letter of credit or similar instrument issued for
the account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings, (ii) to purchase any materials, supplies or other
property from, or to obtain the services of, another Person if the relevant
contract or other related document or obligation requires that payment for such
materials, supplies or other property, or for such services, shall be made
regardless of whether delivery of such materials, supplies or other property is
ever made or tendered, or such services are ever performed or tendered if and to
the extent such obligations are not designated as
- 8 -
accounts payable in accordance with GAAP, or (iii) incurred pursuant to any
interest rate swap, cap or collar agreements, interest rate future or option
contracts, currency swap agreements, currency future or option contracts or
other similar agreements relating to interest rates or currencies. The amount of
any Contingent Obligation shall be deemed equal to the liability in respect
thereof reasonably anticipated in accordance with GAAP.
"Contractual Obligation" of any Person means any indenture, note,
lease, loan agreement, security, deed of trust, mortgage, security agreement,
guaranty, instrument, contract, agreement or other form of contractual
obligation or undertaking to which such Person is a party or by which such
Person or any of its property is bound.
"Control" means (including the correlative meanings of the terms
"controlled by" and "under common control with"), as used with respect to any
Person, the possession directly or indirectly, of the power to direct or cause
the direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Covered Liabilities" is defined in Section 11.6 of the Participation
Agreement.
"Convertible Subordinated Debentures" means (i) the 5% Convertible
Subordinated Notes due 2003 in the original principal amount of $241,350,000
issued by the Lessee pursuant to the Indenture dated February 15, 1996 between
the Lessee and LaSalle National Trust Company, N.A., as Trustee and (ii) the 7%
Convertible Subordinated Notes due 2004 issued by the Lessee pursuant to the
Indenture dated as of August 1, 1997 as supplemented by the Supplemental Trust
Indenture dated as of August 1, 1997 between the Lessee and LaSalle National
Trust Company, N.A.
"Credit Agreement" means that certain Credit Agreement, dated as of
June 6, 1997, among the Lessee, the Banks, ABN AMRO, as syndication agent for
the Banks, Bank of America National Trust and Savings Association, as
documentation agent for the Banks, and Canadian Imperial Bank of Commerce, as
administrative agent for the Banks, as such Credit Agreement is in effect on the
Effective Date.
"Credit Agreement Obligations" means the Obligations under, and as
defined in, the Credit Agreement.
"Credit Documents" means the Credit Documents entered into in
connection with, and as defined in, the Credit Agreement.
"Deed" is defined in Section 6.1(e) of the Participation Agreement.
"Default" means any event or condition which, with the lapse of time or
the giving of notice, or both, would constitute an Event of Default.
"Defaulted Amount" is defined in Section 11.7 of the Participation
Agreement.
- 9 -
"Defaulting Participant" means, at any time, any of the Participants
which at such time has (i) failed to make a payment when due to the Lessor equal
to its Commitment Percentage of an Advance, (ii) has been notified of such
failure by the Lessor, and (iii) has not cured such failure by making such
payment, together with interest at the Late Payment Rate.
"Depositary Bank" is defined in Section 1 of the Cash Collateral
Agreement.
"Designated Payment Date" means the Expiration Date, the Termination
Date or other date of termination of the Lease.
"Disclosure Letter" means the letter from the Lessee to the Lessor and
the Agent, dated the Effective Date, which identifies itself as the "Disclosure
Letter" under the Participation Agreement.
"Dollars" and "$" mean dollars in lawful currency of the United States
of America.
"Domestic Subsidiary" means, with respect to any Person, any Subsidiary
of such Person which is created or organized in the United States or under the
laws of the United States or any state of the United States.
"EBITDA" means, with respect to any Person for any period, the sum of
the following, determined on a consolidated basis in accordance with GAAP where
applicable:
(a) The net income or net loss of such Person and its
Subsidiaries for such period before provision for income taxes;
(b) The sum (to the extent deducted in calculating net income
or loss in clause (a) above) of (i) all Interest Expenses of such Person and its
Subsidiaries accruing during such period and (ii) all depreciation and
amortization of such Person and its Subsidiaries accruing during such period.
"Effective Date" means August 22, 1997.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of section 3(3) of ERISA maintained or contributed to by the Lessee or
any ERISA Affiliate, other than a Multiemployer Plan.
"End of the Term Report" is defined in Section 13.2 of the
Participation Agreement.
"Environmental Audit" means a Phase One environmental site assessment
(the scope and performance of which meets or exceeds ASTM Standard Practice
E1527-93 Standard Practice for Environmental Site Assessments: Phase One
Environmental Site Assessment Process) of the Property to be leased by the
Lessor on the Closing Date or of the Property to be remarketed under the
Remarketing Option under the Lease.
- 10 -
"Environmental Certificate" is defined in Section 6.1 of the
Participation Agreement.
"Environmental Law" means, whenever enacted or promulgated, any
Federal, state, county or local law, statute, ordinance, rule, regulation,
license, permit, authorization, approval, covenant, criteria, guideline,
administrative or court order, judgment, decree, injunction, code or requirement
or any agreement with a Governmental Authority:
(x) relating to pollution (or the cleanup, removal,
remediation or encapsulation thereof, or any other response thereto),
or the regulation or protection of human health, safety or the
environment, including air, water, vapor, surface water, groundwater,
drinking water, land (including surface or subsurface), plant, aquatic
and animal life, or
(y) 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, without limitation, 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,
but are not limited to, CERCLA; the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 et seq.; the Federal Water Pollution Control Act, 33
U.S.C. ss. 1251 et seq.; the Clean Air Act, 42 U.S.C. xx.xx. 7401 et seq.; the
National Environmental Policy Act, 42 U.S.C. ss. 4321; the Refuse Act, 33 U.S.C.
xx.xx. 401 et seq.; the Hazardous Materials Transportation Act of 1975, 49
U.S.C. xx.xx. 1801-1812; the Toxic Substances Control Act, 15 U.S.C. xx.xx. 2601
et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
xx.xx. 136 et seq.; the Safe Drinking Water Act, 42 U.S.C. xx.xx. 300f et seq.;
and the Occupational Safety and Health Act of 1970, each as amended and as now
or hereafter in effect, and their state and local counterparts or equivalents,
including any regulations promulgated thereunder.
"Environmental Violation" means any activity, occurrence or condition
or omission that violates or results in non-compliance with any Environmental
Law.
"Equipment" means equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased by the Lessor
using the proceeds of the Participation Interests in the Advances now or
subsequently attached to, contained in or used or usable in any way in
connection with any operation or letting of the Property, including but without
limiting the generality of the foregoing, all semiconductor manufacturing
equipment, screens, awnings, shades, blinds, curtains, draperies, artwork,
carpets, rugs, storm doors and windows, shelving, counters, 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, cleaning systems
- 11 -
(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.
"Equipment Schedule" means each Equipment Schedule in the form of
Exhibit B to the Lease.
"Equity Securities" of any Person means (a) all common stock, preferred
stock, participations, shares, partnership interests or other equity interests
in such Person (regardless of how designated and whether or not voting or
non-voting) and (b) all warrants, options and other rights to acquire any of the
foregoing, other than convertible debt securities which have not been converted
into common stock, preferred stock, participations, shares, partnership
interests or other equity interests in any such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time or any successor Federal statute.
"ERISA Affiliate" means each entity required to be aggregated with the
Lessee pursuant to the requirements of Section 414(b) or (c) of the Code.
"ERISA Group" means the Lessee and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Lessee, are treated as a single employer
under Section 414 of the Code.
"Eurocurrency Reserve Requirements" means, for any day as applied to an
Advance, the aggregate (without duplication) of the rates (expressed as a
decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed 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.
"Eurodollar Rate" means, with respect to each day during each Interest
Period, the rate per annum determined by the Agent to be the offered rate per
annum at which deposits in Dollars appear with respect to such Interest Period
on the Reuters Screen LIBOR Page (or any successor page), or if such offered
rate is not available, then the rate per annum at which deposits in Dollars
appear with respect to such Interest Period on the Telerate Page 3750 (or any
successor page) in each case as of 11:00 a.m. (London time), two Business Days
prior to the beginning of such Interest Period or in the event that the
foregoing offered rates are not available, then the average (rounded upward to
the nearest whole multiple of one sixteenth of one percent per annum, if such
average is not such a multiple) of the respective rates notified to the Agent by
each of the Participants as the rates at which such Participant's Funding Office
is offered Dollar deposits at or about 11:00 a.m. (London time), two Business
Days prior to the beginning of such Interest Period in the interbank Eurodollar
market
- 12 -
for delivery on the first day of such Interest Period for the number of days
comprised therein in an amount comparable to the amount of the Advances
estimated to be outstanding during such Interest Period.
"Eurodollar Rate Advance" means on Advance bearing interest or Yield
determined with reference to the Eurodollar Rate as provided in the
Participation Agreement.
"Event of Default" means a Lease Event of Default, a Construction
Agency Agreement Event of Default or a Guarantee Event of Default.
"Excepted Payments" means:
(a) all indemnity payments (including indemnity payments made
pursuant to Section 13 of the Participation Agreement) to which the
Lessor, or any of its Affiliates, agents, officers, directors or
employees is entitled;
(b) any amounts (other than Basic Rent or amounts payable by
Lessee pursuant to Section 16.2, Section 16.3, Section 16.4 or Articles
XVII, XX or XXII of the Lease) payable under any Operative Document to
reimburse the Lessor or any of its respective 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 Document, except to the
extent that one or more Participants have indemnified the Lessor with
respect thereto pursuant to the Participation Agreement;
(c) any amount payable to the Lessor by any Participant or
transferee permitted under the Operative Documents of the interest of
the Lessor as the purchase price of such Participant's Participation
Interest;
(d) any insurance proceeds (or payments with respect to risks
self-insured or policy deductibles) under liability policies other than
such proceeds or payments payable to the Agent or the Lessor;
(e) any insurance proceeds under policies maintained by the
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 the
Property or any portion thereof or any other property to the extent any
of the foregoing has been released from the Lien of the Mortgage, the
Assignment of Lease and the Construction Agency Agreement Assignment
pursuant to the terms thereof following the payment of the Participant
Balances of all of the Participants and all amounts due and owing to
the Agent; and
- 13 -
(h) any payments in respect of interest to the extent
attributable to payments referred to in clauses (a) through (g) above.
"Excess Investment" of the Lessor means the excess (if any) of the
outstanding Participant Balance of the Lessor in the Property from time to time
over the amount that would have been the Lessor's Participant Balance if, in
connection with all Advances actually made under the Participation Agreement,
all Participants had paid to the Lessor an amount equal to such Advances times
their respective Commitment Percentages, as such excess may be determined by the
Lessor. Absent the existence of a Defaulting Participant, a failure by
Participant to make a payment required by Section 3.4 or some other unexpected
contingency, it is expected that the Lessor will have no Excess Investment.
"Excess Proceeds" means the excess, if any, of the aggregate of all
awards, compensation or insurance proceeds payable in connection with a Casualty
or Condemnation over the Asset Termination Value paid by the Lessee pursuant to
Articles XIV and XV of the Lease with respect to such Casualty or Condemnation.
"Excess Reimbursement" is defined in Section 11.6 of the Participation
Agreement.
"Executive Officer" means, with respect to the Lessee, the Chairman,
Chief Executive Officer, Chief Operating Officer, President, Chief Financial
Officer, Treasurer, General Counsel or Vice President of Corporate Development
and Planning of the Lessee or any division President or Executive Vice President
of the Lessee (or, if the titles are changed, the persons having similar
responsibilities for the Lessee).
"Existing Financing" means the debt and equity financing provided to
the Existing Owner to purchase and/or construct the Land Interest and any
Improvements.
"Existing Participants" means the lenders and holders of equity
interests under the Existing Financing.
"Existing Owner" means Xxxxxx Holdings LLC, a Colorado limited
liability company.
"Expiration Date" means the later of (i) the fifth anniversary of the
Effective Date or (ii) the scheduled expiration of any Renewal Term, if any.
"Expiration Date Purchase Obligation" means the Lessee's obligation,
pursuant to Section 20.2 of the Lease, to purchase all (but not less than all)
of the Property on the Expiration Date.
"Extension Date" means, if the Extension Fee is payable, the date which
is 364 days after the Effective Date.
- 14 -
"Extension Fee" means an amount equal to (i) 0.125% multiplied by (ii)
the aggregate amount of the 364 Day Commitment that is extended until the Six
Month Termination Date pursuant to Section 3.6 of the Participation Agreement.
"External LC Agreement" means the Credit Agreement, dated as of
September 22, 1995, among the Lessee, The Sumitomo Bank, Limited and other banks
from time to time parties thereto (as amended, modified and supplemented from
time to time in accordance with the Participation Agreement), or such other
agreement between or among the Lessee and any other financial institution or
financial institutions pursuant to which the Lessee may incur Indebtedness under
letters of credit of the type permitted under clause (vi) of Section 10.1(a) of
the Participation Agreement.
"Fair Market Sales Value" means, with respect to the Property, the
amount, which in any event shall not be less than zero, that would be paid in
cash in an arm's-length transaction between an informed and willing purchaser
and an informed and willing seller, neither of whom is under any compulsion to
purchase or sell, respectively, for the ownership of the Property. The Fair
Market Sales Value of the Property shall be determined based on the assumption
that, except for purposes of Article XVII of the Lease and Section 13.2 of the
Participation Agreement, the Property is in the condition and state of repair
required under Section 10.1 of the Lease and the Lessee is in compliance with
the other requirements of the Operative Documents.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to 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 for such 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 quotations for such day on such transaction received by the Agent
from three Federal funds brokers of recognized standing selected by it.
"Financial Statements" means, with respect to any accounting period for
any Person, consolidated statements of income, shareholders' equity and cash
flows of such Person for such period, and a balance sheet of such Person as of
the end of such period, setting forth in each case in comparative form figures
for the corresponding period in the preceding fiscal year if such period is less
than a full fiscal year or, if such period is a full fiscal year, corresponding
figures from the preceding annual audit, all prepared in reasonable detail and
in accordance with GAAP.
"Fixtures" means all fixtures relating to the Improvements, including
all components thereof, located in or on the Improvements which are acquired
with Advances and all replacements and Modifications thereto, other than
Lessee's Property.
"Force Majeure Event" means with respect to the Property any event (the
existence or potentiality of which was not known and could not have been
discovered through the exercise of due diligence by the Lessee prior to the
Closing Date) beyond the reasonable control of the Construction Agent, other
than a Casualty or Condemnation, including, but not limited to, strikes,
lockouts, adverse soil conditions, acts of God, adverse weather conditions,
inability to obtain labor or materials, government activities, civil commotion
and enemy action; but excluding any event, cause
- 15 -
or condition that results from the Construction Agent's financial condition or
failure to pay or any event, causeor condition which could be remedied through
the exercise of commercially reasonable efforts or the commercially reasonable
expenditure of funds.
"Funded Debt" of any Person means, without duplication, Indebtedness of
the type set forth in clauses (a) - (f) of the definition of "Indebtedness" less
Cash or Cash Equivalents used as collateral to secure any such Indebtedness.
"Funding Date" means any Business Day on which Advances are funded
pursuant to the Participation Agreement.
"Funding Losses" means with respect to any repayment, prepayment or
conversion of any Eurodollar Rate Advance, the amount (which shall not be less
than zero) computed in accordance with the following formula:
Funding Losses = (R-T x P x D)
-------------
360
where R = the interest rate or Yield that was or would have been
applicable to such Eurodollar Rate Advance;
T = the Eurodollar Rate for the date of such repayment,
prepayment, conversion, failure to borrow, failure to
contribute or failure to convert for new Eurodollar Rate
Advances, of the same principal amount or equity
contribution made for an assumed Interest Period (the
"Remaining Period") which begins on the date of such
repayment, prepayment, conversion, failure to borrow,
failure to contribute or failure to convert and ends on
the last day of the actual Interest Period that was or
would have been applicable to the Eurodollar Rate
Advance that was repaid, prepaid or converted or that
was not borrowed, contributed or converted;
P = the principal amount of the Eurodollar Rate Advance that
was repaid, prepaid or converted or that was not
borrowed, contributed or converted; and
D = the number of days in the Remaining Period.
"Funding Office" means the office of each Participant identified on
Schedule II to the Participation Agreement as its Funding Office.
"Funding Request" is defined in Section 3.4 of the Participation
Agreement.
"GAAP" means United States generally accepted accounting principles
(including principles of consolidation), in effect from time to time,
consistently applied.
- 16 -
"Governmental Action" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, written
interpretations, decrees, licenses, exemptions, publications, filings, notices
to and declarations of or with, or required by, any Governmental Authority, or
required by any Applicable Law, and shall include, without limitation, all
environmental and operating permits and licenses that are required for the full
use, occupancy, zoning and operation of the Property.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Governmental Charges" means, with respect to any Person, all levies,
assessments, fees, claims or other charges imposed by any Governmental Authority
upon such Person or any of its property or otherwise payable by such Person.
"Gross Proceeds" is defined in Section 22.1(k) of the Lease.
"Guarantee" means the Guarantee executed by the Guarantor in favor of
the Agent, for the benefit of the Participants, in the form of Exhibit O to the
Participation Agreement.
"Guarantee Event of Default" is defined in the Guarantee.
"Guarantor" means Quantum Corporation, a Delaware corporation.
"Guaranty Obligation" means, with respect to any Person, any direct or
indirect liability of that Person with respect to any indebtedness, lease,
dividend, letter of credit or other obligation (the "primary obligations") of
another Person (the "primary obligor"), including any obligation of that Person,
whether or not contingent, (a) to purchase, repurchase or otherwise acquire such
primary obligations or any property constituting direct or indirect security
therefor, or (b) to advance or provide funds (i) for the payment or discharge 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 or any balance sheet item, level of income or financial condition of
the primary obligor, or (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
(except to the extent of the fair market value of such property, securities or
services to be purchased), or (d) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof. The
amount of any Guaranty Obligation shall be deemed equal to the liability in
respect thereof reasonably anticipated under GAAP.
"Hazardous Activity" means any activity, process, procedure or
undertaking that directly or indirectly (i) produces, generates or creates any
Hazardous Substance; (ii) causes or results in (or threatens to cause or result
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); (iii) involves the containment
or storage of any
- 17 -
Hazardous Substance; or (iv) would be regulated as hazardous waste treatment,
storage or disposal within the meaning of any Environmental Law.
"Hazardous Condition" means any condition that violates or threatens to
violate, or that results in or threatens noncompliance with, any Environmental
Law.
"Hazardous Substance" means any of the following: (i) any petroleum or
petroleum product, explosives, radioactive materials, asbestos, formaldehyde,
polychlorinated biphenyls, lead and radon gas; (ii) any substance, material,
product, derivative, compound or mixture, mineral, chemical, waste, gas, medical
waste or pollutant, in each case whether naturally occurring, man-made or the
by-product of any process, that is toxic, harmful or hazardous to the
environment or human health or safety; or (iii) 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.
"Impositions" means, except to the extent described in the following
sentence, any and all liabilities, losses, expenses, costs, charges and Liens of
any kind whatsoever for fees, taxes, levies, imposts, duties, charges,
assessments or withholdings ("Taxes") including (i) 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; (ii) sales taxes,
use taxes and other similar taxes (including rent taxes and intangibles taxes);
(iii) any excise taxes; (iv) real estate transfer taxes, mortgage taxes,
conveyance taxes, stamp taxes and documentary recording taxes and fees; (v)
taxes that are or are in the nature of franchise, income, value added, privilege
and doing business taxes, license and registration fees; (vi) assessments on the
Property, including all assessments for public improvements or benefits, whether
or not such improvements are commenced or completed within the Term; and (vii)
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 (a) the Property or any part thereof or interest therein; (b) the
purchase, sale, leasing, 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 the Property or any part thereof or interest therein; (c)
the Participation Interests with respect to the Property or any part thereof or
interest therein; (d) the rentals, receipts or earnings arising from the
Property or any part thereof or interest therein; (e) the Operative Documents,
the performance thereof, or any payment made or accrued pursuant thereto; (f)
the income or other proceeds received with respect to the Property or any part
thereof or interest therein upon the sale or disposition thereof; (g) any
contract (including the Construction Agency Agreement) relating to the
construction, acquisition or delivery of the Improvements or any part thereof or
interest therein; or (h) otherwise in connection with the transactions
contemplated by the Operative Documents.
- 18 -
The term "Imposition" shall not mean or 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:
(i) 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 Indemnitee 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 (i) shall not be interpreted to prevent a
payment from being made on an After Tax Basis if such payment is
otherwise required to be so made;
(ii) Taxes 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 (ii) shall not be interpreted to prevent a payment from
being made on an After Tax Basis if such payment is otherwise required
to be so made (anything to the contrary notwithstanding, nothing in the
Operative Documents shall be construed to impose upon Lessee any
liability for Taxes imposed upon an Indemnitee to the extent imposed
with respect to any activities of such Indemnitee other than under the
transactions contemplated by the Operative Documents);
(iii) any Tax or imposition for so long as, but only for so
long as, it is being contested in accordance with the provisions of
Section 13.5 of the Participation Agreement;
(iv) any Taxes which are imposed on an Indemnitee as a result
of the gross negligence or wilful misconduct of such Indemnitee itself
(as opposed to gross negligence or wilful misconduct imputed to such
Indemnitee), but not Taxes imposed as a result of ordinary negligence
of such Indemnitee; or
(v) 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 Property 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).
Any Tax excluded from the defined term "Imposition" in any one of the foregoing
clauses (i) through (iv) shall not be construed as constituting an Imposition by
any provision of any other of the aforementioned clauses. For purposes of the
foregoing, taxes based upon or measured by net income shall be deemed to
include, without limitation, any Imposition that qualifies as an "income tax"
within the meaning of United States Treasury Regulation Section 1.901-2.
"Improvements" means all buildings, structures, Fixtures, Equipment,
and other improvements of every kind existing on the Land Interest Acquisition
Date and at any time and from time to time and either constructed pursuant to
the Construction Agency Agreement or those
- 19 -
purchased with amounts advanced by the Participants pursuant to the
Participation Agreement (or those becoming the property of the Lessor pursuant
to Article XI of the Lease) on or under the Land Interest, together with any and
all appurtenances to such buildings, structures, or improvements, including
sidewalks, utility pipes, conduits and lines, parking areas and roadways, and
including all Modifications and other additions to or changes in the
Improvements at any time, other than Lessee's Property.
"Indebtedness" of any Person means, without duplication (in each case,
measured in accordance with GAAP):
(a) All monetary obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments and all other
obligations of such Person for borrowed money;
(b) All monetary obligations of such Person for the deferred
purchase price of property or services (including obligations under
letters of credit and other credit facilities which secured or financed
such purchase price), other than trade payables incurred by such Person
in the ordinary course of its business on ordinary terms;
(c) All monetary obligations of such Person under conditional
sale or other title retention agreements with respect to property
acquired by such Person other than pursuant to leases classified as
operating leases under GAAP (to the extent of the value of such
property if the rights and remedies of the seller or lender under such
agreement in the event of default are limited solely to repossession or
sale of such property);
(d) All monetary obligations of such Person as lessee with
respect to the capitalized portion of Capital Leases of such Person
(other than capitalized interest) calculated in accordance with GAAP;
(e) all monetary obligations of such Person (other than
inchoate indemnity obligations) with respect to any Synthetic Leases;
provided, however, that the amount of monetary obligations for the
purpose of this clause (e) shall be equal to the aggregate present
value of scheduled rental payments under each such Synthetic Lease
(excluding any component thereof in the nature of operating expenses,
taxes or similar obligations), together with the purchase price payable
by such Person at the end of such Synthetic Lease, discounted by the
interest rate implicit in such Synthetic Lease;
(f) all monetary obligations of such Person (other than
inchoate indemnity obligations) with respect to any sale, transfer or
assignment of accounts receivable and related rights and property by
such Person with recourse to such Person;
(g) All monetary obligations of such Person, contingent or
otherwise, under or with respect to letters of credit, banker's
acceptances or other similar facilities;
- 20 -
(h) All monetary obligations of such Person, contingent or
otherwise, under or with respect to interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts or other similar
agreements relating to interest rates or currencies;
(i) All Contingent Obligations of such Person with respect to
the obligations of such Person or other Persons of the types described
in clauses (a) - (h) above; and
(j) All obligations of other Persons of the types described in
clauses (a) - (h) above to the extent secured by (or for which any
holder of such obligations has an existing right, contingent or
otherwise, to be secured by) any Lien in any property (including
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
obligations; provided, however, that the amount of such Indebtedness
under this clause (j) shall be the lesser of (i) the fair market value
of the property subject to such Lien and (ii) the amount of the
monetary obligations of such other Person.
"Indemnitee" means the Lessor, the Agent, the Participants, their
respective Affiliates and their respective successors, assigns, directors,
shareholders, partners, officers, employees and agents.
"Insurance Requirements" means all terms and conditions of any
insurance policy required by the Lease to be maintained by the Lessee, and all
requirements of the issuer of any such policy.
"Interest Expenses" means, with respect to any Person for any period,
the sum, determined on a consolidated basis in accordance with GAAP, of (a) all
interest accruing on the Indebtedness of such Person during such period
(including interest attributable to Capital Leases and financing charges
attributable to Synthetic Leases whether calculated as interest expenses or
rental expenses), (b) all letter of credit fees payable by such Person accruing
during such period and (c) interest or discount associated with Permitted
Receivables Facilities not otherwise included in clause (a) above.
"Interest Payment Advance" means any Advance made to fund the payment
of interest or Yield accruing on the Advances during the Construction Period.
"Interest Period" means, with respect to any Advance:
(a) during the Syndication Period:
(i) initially, the period commencing on the funding with
respect to such Advance and ending one month
thereafter; and
(ii) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such
Advance and ending one month thereafter; and
- 21 -
(b) subsequent to the Syndication Period, each period
commencing on the last day of the next preceding Interest Period
applicable to such Advance and ending one, two, three or six months
thereafter, as selected by the Lessee by irrevocable notice to the
Lessor and 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:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry
such Interest Period into another calendar month in
which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend
beyond the Expiration Date shall end on the
Expiration Date;
(ii) 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 the Interest Period) shall end on
the last Business Day of a calendar month;
(iv) the Lessee shall select Interest Periods so as not to
require a payment or prepayment of any Advance during
an Interest Period for such Advance; and
(v) if the Lessee shall fail to notify the Lessor and the
Agent of the next Interest Period, such Advance shall
automatically convert to an Alternate Base Rate
Advance on the last day of the current Interest
Period therefor.
"Investment" of any Person means any loan or advance of funds by such
Person to any other Person (other than advances to employees of such Person for
moving and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business or the purchase by such Person in the ordinary
course of business of residences for employees in connection with the relocation
by such Person of such employees), any purchase or other acquisition of any
Equity Securities or Indebtedness of any other Person, any capital contribution
by such Person to or any other investment by such Person in any other Person
(including any Guaranty Obligations of such Person and any Indebtedness of such
Person of the type described in clause (j) of the definition of "Indebtedness"
on behalf of any other Person); provided, however, that Investments shall not
include (a) accounts receivable or other indebtedness owed by customers of such
Person which are current assets and arose from sales of inventory or the
performance of services in the ordinary course of such Person's business or (b)
prepaid expenses of such Person incurred and prepaid in the ordinary course of
business.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, together with the rules and regulations promulgated thereunder.
- 22 -
"Land Interest" means fee title to the parcel of real property
described on Schedule 1 of the Lease Supplement and all Appurtenant Rights
attached thereto.
"Land Interest Acquisition Cost" means, with respect to the Property,
the amount funded by the Lessor under the Participation Agreement as the
purchase price of the Land Interest as set forth in the Acquisition Request
therefor, including closing costs and fees in connection therewith.
"Land Interest Acquisition Date" means the date on which the Lessor
acquires the Land Interest, which date shall be specified in the Acquisition
Request.
"Late Payment Rate" means (a) for each day (other than as set forth in
clause (b) of this definition) the Federal Funds Effective Rate or (b) for the
purpose of computing interest on past due payments for each day following the
fifth day after such payments first became due, a rate of two percent (2%) per
annum in excess of the Alternate Base Rate then in effect; provided, the Late
Payment Rate shall not, notwithstanding anything to the contrary herein
contained, exceed the maximum rate of interest permitted by applicable law.
"Lease" means the Master Lease, dated as of the Effective Date, between
the Lessor and the Lessee, together with the Lease Supplement and all Equipment
Schedules thereto.
"Lease Arrangement Fee" is defined in Section 4.2 of the Participation
Agreement.
"Lease Balance" means, as of any date of determination, an amount equal
to (i) the sum of the outstanding amount of the Advances, all accrued and unpaid
interest and Yield on the Advances, and all other amounts owing by the Lessee
under the Operative Documents, less (ii) the sum of all payments received by the
Lessor, the Agent or the Participant on account of payments to reduce the Lease
Balance, including reductions resulting from payments by the Lessor, the Lessee
and the Guarantor, proceeds from the sale of the Property and/or amounts
realized from the Collateral pursuant to the Cash Collateral Agreement.
"Lease Default" means any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute a Lease Event of
Default.
"Lease Event of Default" is defined in Section 17.1 of the Lease.
"Lease Supplement" means the 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.
"Lessee" means Quantum Corporation, a Delaware corporation, as lessee
under the Lease, and its successors and assigns expressly permitted under the
Operative Documents.
- 23 -
"Lessee's Property" is defined in Section 11.1 of the Lease.
"Lessor" means Lease Plan North America, Inc., as Lessor under the
Lease, and its successors and assigns expressly permitted under the Operative
Documents.
"Lessor Financing Statements" means UCC financing statements
appropriately completed and executed for filing in the applicable jurisdiction
in order to protect the Lessor's interest under the Lease to the extent the
Lease is a security agreement.
"Lessor Lien" means any Lien, true lease or sublease or disposition of
title arising as a result of (a) any claim against the Lessor not resulting from
the transactions contemplated by the Operative Documents, (b) any act or
omission of the Lessor which is not required by the Operative Documents or is in
violation of any of the terms of the Operative Documents, (c) any claim against
the Lessor with respect to Taxes or Transaction Expenses against which Lessee is
not required to indemnify the Lessor, pursuant to Sections 9 or 13.5 of the
Participation Agreement or (d) any claim against the Lessor arising out of any
transfer by the Lessor of all or any portion of the interest of the Lessor in
the Property or the Operative Documents other than the transfer of title to or
possession of the Property by the Lessor pursuant to and in accordance with the
Lease or the Participation Agreement or pursuant to the exercise of the remedies
set forth in Article XVII of the Lease.
"Lien" means, with respect to any property, any security interest,
mortgage, pledge, lien or other encumbrance in, of, or on such property or the
income therefrom, including, without limitation, the interest of a vendor or
lessor under a conditional sale agreement, Capital Lease or other title
retention agreement.
"Marketing Period" and "Remarketing Period" mean the period commencing
on the date one hundred eighty (180) days prior to the Expiration Date and
ending on the Expiration Date or such other 180 day period as is referred to in
Section 17.2(h) of the Lease.
"Material", "Materially", and "Material Adverse Effect" mean material
to, or a material adverse effect on, (i) the business, assets, operations or
financial or other condition of the Lessee or the Guarantor and their respective
Subsidiaries taken as a whole, (ii) the ability of the Lessee or the Guarantor
to perform its obligations under any of the Operative Documents, (iii) the value
or condition of the Property or the Lessor's interests therein or title thereto,
or (iv) the rights and remedies of the Lessor, the Agent and the Participants
under the Participation Agreement or any other Operative Document taken as a
whole.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"Material Subsidiaries" means each Subsidiary of the Lessee which has
assets with a total book value greater than ten percent (10%) of the
consolidated total assets of the Lessee and its Subsidiaries, each determined as
of the end of the fiscal quarter immediately preceding the date of
determination.
- 24 -
"Maturity Date" means the fifth anniversary of the Effective Date.
"MKE" means Matsushita-Kotobuki Electronics Industries, Ltd., a
Japanese corporation.
"MKE-Quantum" means MKE-Quantum Components, L.L.C., a Delaware limited
liability company.
"Modifications" is defined in Section 11.1(a) of the Lease.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto that is a nationally-recognized rating agency.
"Mortgage" means, with respect to the Property, a Construction Deed of
Trust, Security Agreement and Financing Statement substantially in the form
attached as Exhibit P to the Participation Agreement, made by the Lessor in
favor of a trustee for the Agent for the benefit of the Participants and
satisfactory in form and substance to the Agent and the Required Participants in
order to create a first priority mortgage lien on the Lessor's fee interest in
the Property and a first priority security interest in the Equipment.
"Mortgage Documents" is defined in Section 6.1 of the Participation
Agreement.
"Mortgage Taxes" is defined in Section 6.1 of the Participation
Agreement.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Net Cure Proceeds" is defined in Section 11.8 of the Participation
Agreement.
"Net Proceeds" means 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 costs and expenses in connection
therewith for which the Agent or the Lessor is entitled to be reimbursed
pursuant to the Lease.
"Net Sales Proceeds" means the Gross Proceeds actually received by the
Lessor upon any sale by the Lessor of any part of the Property pursuant to
Articles XVII or XXII of the Lease, including, without limitation, (i) any such
payments made to the Lessor by the Lessee or any purchaser, (ii) any Shortfall
Amount paid to the Lessor by the Lessee, and (iii) any interest paid by the
Lessee to the Lessor on past due amounts under the Lease; but excluding any
payments applied by the Lessor to pay, or received by the Lessor as
reimbursement for, bona fide costs of the sale and further excluding any excess
net sales proceeds received from a purchaser that the Lessor is required to pay
over to the Lessee. In the event that for any reason whatsoever, including a
default by the
- 25 -
Lessee, the Lessor does not sell the Property pursuant to the Lease on the
Designated Payment Date, "Net Sales Proceeds" shall nonetheless include any
Shortfall Amount actually received by the Lessor. Further, if the Lessor does
not sell the Property pursuant to the Lease, then "Net Sales Proceeds" shall
also include the excess, if any, of:
(A) all rents and all sales, condemnation and insurance
proceeds actually received by the Lessor from any sale or lease after
the Designated Payment Date of any interest in, or because of any
subsequent taking or damage to, the Property; over
(B) the sum of (i) all costs of collecting the rents and
proceeds described in the preceding clause (A) plus (ii) all ad valorem
taxes, insurance premiums and other costs of every kind incurred by the
Lessor with respect to the ownership, operation or maintenance of the
Property.
However, for purposes of computing any excess described in the preceding
sentence, costs described in clause (B) shall not include the Lessor's general
overhead costs or any costs for which the Participants have already paid the
Lessor their Commitment Percentages thereof as required by Section 11.6 of the
Participation Agreement.
"Non-Consenting Participant" means any Participant which has denied, or
is deemed to have denied, an Extension Request pursuant to Section 3.6 of the
Participation Agreement.
"Operative Documents" means the following:
(a) the Participation Agreement;
(b) the Lease and Lease Supplement;
(c) the Guarantee;
(d) the Property Purchase Agreement, the Assignment
of Purchase Agreement and the Deed;
(e) the Construction Agency Agreement;
(f) the Assignment of Lease and each Supplement to the
Assignment of Lease;
(g) the Consent to Assignment;
(h) the Equipment Schedules;
(i) the Mortgage;
(j) the Construction Agency Agreement Assignment;
(k) the Consent to Construction Agency Agreement
Assignment;
(l) the Assignment of Construction Documents; and
(m) the Cash Collateral Agreement.
"Original Executed Counterpart" is defined in Section 31.8 of the
Lease.
"Outside Completion Date" means the second anniversary of the Effective
Date.
- 26 -
"Overdue Rate" means, with respect to the Advances, fees or any other
payment due under the Operative Documents, the interest rate then applicable to
the Advances plus 2% per annum.
"Participant's Letter" is defined in Section 12.1(b) of the
Participation Agreement.
"Participation Agreement" means the Participation Agreement, dated as
of August 22, 1997, among the Lessee, the Lessor, the Participants and the
Agent.
"Participation Interest" means, as to each Participant, a participation
interest in, or in the case of each Tranche C Participant, an equity investment
in, the Lease and the right to receive that percentage of the following payments
actually received by the Lessor from or on behalf of the Lessee as is set forth
on Schedule I to the Participation Agreement, subject to the provisions of
Sections 3.11 - 3.21 and Section 11 of the Participation Agreement: (i) Basic
Rent, (ii) Supplemental Rent, (iii) Asset Termination Value, (iv) Purchase
Option Price, (v) Net Sales Proceeds, (vi) Residual Value Guarantee Amount,
(vii) the Shortfall Amount, and (viii) other payments in respect of indemnities
or pursuant to the Guarantee or the exercise of remedies under the Operative
Documents, excluding, however, (x) any Excepted Payments and (y) as to a
particular Participant, any payments on account of any Advances and any Required
Supplemental Payments (and interest thereon) for which the Lessor has not
received payment from such Participant of such Participant's Commitment
Percentage thereof. For example, if the Lessor elects to pay for insurance
required of the Lessee by the Lease because of the Lessee's failure to obtain
such insurance, the Lessor's receipt of reimbursement for the cost of such
insurance from the Lessee shall be included within "Participation Interest" for
purposes of this Agreement only if such Participant has paid to the Lessor such
Participant's Commitment Percentage of such cost pursuant to Section 11.6 or
Section 11.7 of the Participation Agreement.
"Participants" means ABN AMRO, Lease Plan North America, Inc. and each
Person executing the Participation Agreement or a Participant's Letter as a
Participant and purchasing a Participation Interest in the transactions
contemplated by the Participation Agreement and the other Operative Documents.
"Participant Balance" means for each Participant the sum of its Tranche
A Participation Interest Balance, its Tranche B Participation Interest Balance
and its Tranche C Participation Interest Balance.
"Payment Date" means (a) any Scheduled Payment Date and (b) any date on
which interest or Yield is payable pursuant to Section 3.8(c) of the
Participation Agreement in connection with any prepayment of the Advances.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Exceptions" means (A) the respective rights and interests of
the parties to the Operative Documents as provided in the Operative Documents;
(B) the rights of any sublessee or
- 27 -
assignee under a sublease or an assignment expressly permitted by the terms of
the Lease; (C) Liens for Taxes that either are not yet due or are being
contested in accordance with the provisions of Section 13.1 of the Lease or
Section 13.5 of the Participation Agreement; (D) Liens arising by operation of
law, materialmen's, mechanics', workers', repairmen's, employees', carriers',
warehousemen's and other like Liens in connection with any Modifications or
arising in the ordinary course of business for amounts that either are not more
than 60 days past due or are being diligently contested in good faith by
appropriate proceedings, so long as such proceedings satisfy the conditions for
the continuation of proceedings to contest Taxes set forth in Section 13.1 of
the Lease, and that have been bonded for not less than the full amount in
dispute (or as to which other security arrangements satisfactory to the Lessor
have been made), which bonding (or arrangements) shall comply with applicable
Requirements of Law, and has effectively stayed any execution or enforcement of
such Liens; (E) Liens arising out of judgments or awards with respect to which
appeals or other proceedings for review are being prosecuted in good faith and
for the payment of which adequate reserves have been provided as required by
GAAP or other appropriate provisions have been made, so long as such proceedings
have the effect of staying the execution of such judgments or awards and satisfy
the conditions for the continuation of proceedings to contest set forth in
Section 13.1 of the Lease; (F) all encumbrances, exceptions, restrictions,
easements, rights of way, servitudes, encroachments and irregularities in title,
other than Liens which, in the reasonable assessment of the Agent, do not
materially impair the value of the Property or the use of the Property for its
intended purpose; (G) easements, rights of way and other encumbrances on title
to the Property pursuant to Section 12.2 of the Lease; (H) a Lien consisting of
a deposit or pledge made, in the ordinary course of business, in connection
with, or to secure payment of, obligations under worker's compensation,
unemployment insurance or similar legislation and (I) Liens of the types
described in clauses (i)(x), (ii), (iii), (v), (vii) and (viii) of the
definition of Permitted Liens; provided, however, that Permitted Exceptions
shall in no event include Lessor's Liens.
"Permitted Indebtedness" is defined in Section 10.1(g) of the
Participation Agreement.
"Permitted Investments" is defined in Section 10.1(k) of the
Participation Agreement.
"Permitted Liens" is defined in Section 10.1(h) of the Participation
Agreement.
"Permitted Receivables Facility" means one or more accounts receivable
financing arrangements including (a) the sale of accounts receivables and any
related property by the Lessee and/or any of its Subsidiaries to a financing
party or a special purpose vehicle, and/or (b) the granting of a security
interest in accounts receivable and any related property by the Lessee and/or
any of its Subsidiaries; provided, however, that the aggregate outstanding
advances under such accounts receivables financing arrangements shall not exceed
$200,000,000 at any one time.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
Governmental Authority or any other entity.
- 28 -
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Plans and Specifications" means, with respect to the Property, the
plans and specifications for the Improvements to be constructed on the Property.
"Pricing Grid" means Schedule II to the Participation Agreement.
"Pricing Period" means (a) the period commencing on the date of the
Participation Agreement and ending on September 30, 1997, (b) the period
commencing on October 1, 1997 and ending on November 30, 1997, and (c) each
consecutive three-calendar month period, four-calendar month period,
two-calendar month period or three-calendar month period (as applicable)
thereafter which commences on the day following the last day of the immediately,
preceding three-calendar month period, four-calendar month period, two-calendar
month period or three-calendar month period (as applicable) and ends on the last
day of that time period as follows:
(i) December 1st through February 28th or February
29th (as applicable);
(ii) March 1st through June 30th;
(iii) July 1st through August 31st; and
(iv) September 1st through November 30th.
"Prior Credit Agreement" means that certain Credit Agreement, dated as
of October 4, 1994, as amended, among the Lessee, the banks named therein, ABN,
AMRO, Barclays Bank PLC and Canadian Imperial Bank of Commerce, as managing
agents for the banks, and Canadian Imperial Bank of Commerce, as administrative
agent for the banks.
"Prime Rate" means the per annum rate publicly announced by the Agent
from time to time at its New York Branch. The Prime Rate is determined by the
Agent from time to time as a means of pricing credit extensions to some
customers and is neither directly tied to any external rate of interest or index
nor necessarily the lowest rate of interest charged by the Agent at any given
time for any particular class of customers or credit extensions. Any change in
the Alternative Base Rate resulting form a change in the Prime Rate shall become
effective on the Business Day on which each change in the Prime Rate occurs.
"Property" means (i) the Land Interest and (ii) all of the
Improvements, Equipment and Fixtures at any time located on or under such Land
Interest other than Lessee's Property.
- 29 -
"Property Balance" means, with respect to the Property, as of any date
of determination, an amount equal to (i) the sum of the outstanding amount of
the Advances, all accrued and unpaid interest and Yield on the Advances, and all
other amounts owing by the Lessee under the Operative Documents, less (ii) the
sum of all payments received by the Lessor, the Agent or the Participant on
account of payments to reduce the Property Balance, including reductions
resulting from payments by the Lessor, the Lessee and the Guarantor and/or
proceeds from the sale of the Property and/or amounts realized from the
Collateral pursuant to the Cash Collateral Agreement.
"Property Cost" means, with respect to the Property, the aggregate
amount of the related Land Interest Acquisition Cost and the related Property
Improvements Cost.
"Property Improvements Cost" means, with respect to the Property, the
amount funded to or on behalf of the Construction Agent by the Lessor under the
Participation Agreement and the Construction Agency Agreement to construct any
Improvements, Fixtures or Modifications and to purchase Equipment to be used on
the Property in accordance with the Plans and Specifications therefor and the
Operative Documents, as set forth in the Acquisition Request and Funding
Requests therefor (including interest and Yield on the Advances during the
Construction Period applied to such cost and funded by an Interest Payment
Advance).
"Property Purchase Agreement" means the Purchase and Sale Agreement,
dated as of July, 1997, between the Existing Owner and the Lessee, and assigned
to the Lessor pursuant to the Assignment of Purchase Agreement, providing for
the purchase of the Property by the Lessor on the Land Interest Acquisition
Date.
"Purchase Notice" is defined in Section 20.1 of the Lease.
"Purchase Option" is defined in Section 20.1 of the Lease.
"Purchase Option Price" is defined in Section 20.1 of the Lease.
"Quick Ratio" means, with respect to the Lessee at any time, the ratio,
determined on a consolidated basis in accordance with GAAP, of:
(a) The sum at such time of all (i) cash and Cash
Equivalents of the Lessee and its Subsidiaries (excluding
restricted cash) and (ii) accounts receivable of the Lessee
and its Subsidiaries, less all reserves therefor;
to
(b) The sum at such time of (i) the current
liabilities of the Lessee and its Subsidiaries plus (ii)
long-term Indebtedness secured by account receivables of the
Lessee or its Subsidiaries measured at the lesser of the
amount of such long-term Indebtedness and the book value of
the accounts receivable so encumbered.
- 30 -
"Release" means any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Substance.
"Remarketing Option" is defined in Section 22.1 of the Lease.
"Remarketing Period" is defined in the definition "Marketing Period".
"Renewal Option" is defined in Section 21.1(a) of the Lease.
"Renewal Request" is defined in Section 21.1(a) of the Lease.
"Renewal Response Date" is defined in Section 21.1(a) of the Lease.
"Renewal Term" means, individually, either of the two one-year periods
which immediately follow the fifth anniversary of the Effective Date with
respect to which Lessee has exercised its Renewal Option pursuant to Section
21.1 of the Lease.
"Rent" means, collectively, the Basic Rent and the Supplemental Rent,
in each case payable under the Lease.
"Reportable Event" shall have the meaning given to that term in ERISA
and applicable regulations thereunder.
"Requesting Party" is defined in Section 26.1 of the Lease.
"Required Modification" is defined in Section 11.1(a) of the Lease.
"Required Participants" means, at any time, Participants the Commitment
Percentages of which aggregate at least 66 2/3%.
"Required Supplemental Payments" means all payments of Supplemental
Rent that the Lessee has agreed to pay the Lessor under the Lease and the other
Operative Agreements, other than (i) Commitment Fees, (ii) the Administrative
Fee, (iii) the Lease Arrangement Fee, (iv) Excepted Payments, (v) Residual Value
Guarantee Amount, (vi) Asset Termination Value, (vii) Purchase Option Price and
(viii) interest or Yield accruing on any amount due from the Lessee, which
amount is itself not a Required Supplemental Payment under this definition. For
example, if the Lessor incurs attorneys' fees because of a breach by the Lessee
of the Lease, the payments required of the Lessee by the Lease as reimbursement
for such fees shall constitute a Required Supplemental Payment.
"Requirement of Law" means all Federal, state, county, municipal and
other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting the Property, the Improvements or
the demolition, construction, use or alteration thereof, whether now or
hereafter enacted and in force, including any that require repairs,
modifications or alterations
- 31 -
in or to the 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. ss. 1201 et. seq. and any other similar
Federal, state or local laws or ordinances and the regulations promulgated
thereunder) and any that may relate to environmental requirements (including all
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 the Property, other than Lessor Liens,
the Appurtenant Rights and any easements, licenses or other agreements entered
into pursuant to Section 12.2 of the Lease.
"Residual Value Guarantee Amount" means (i) during the Construction
Period, an amount equal to 89.9 percent of the Lease Balance, and (ii) at all
other times, an amount equal to the aggregate Tranche A Participation Interest
Balances of the Participants holding Tranche A Participation Interests.
"Response Actions" means remove, removal, remedy, and remedial action
as those terms are defined in CERCLA, 42 U.S.C. ss. 9601.
"Responsible Officer" means the President, any Vice President, the
Treasurer or Controller of the Lessee.
"Responsible Officer's Certificate" means a certificate signed by any
Responsible Officer, which certificate shall certify as true and correct the
subject matter being certified to in such certificate.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor thereto that is a
nationally.-recognized rating agency.
"Scheduled Payment Date" means (a) as to interest or Yield on any
Advances having an Interest Period of three months or less, the last day of each
Interest Period, (b) as to interest or Yield on any Advances having an Interest
Period longer than three months, each day which is three months, or a whole
multiple thereof, after the first day of such Interest Period and the last day
of such Interest Period, (c) as to interest or Yield on any Advances bearing
interest at the Alternate Base Rate, the last day of each March, June, September
and December, and (d) as to the principal amount or equity contribution amount
of the Advances, each date indicated on Schedule 1 to the Lease as being a
payment date with respect to such portion of the Property Cost, if any.
"Securities Act" means the Securities Act of 1933, as amended, together
with the rules and regulations promulgated thereunder.
"Security Documents" means the collective reference to the Mortgage,
the Assignment of Lease, the Construction Agency Agreement Assignment, the
Assignment of Construction Documents, the Cash Collateral Agreement and all
other security documents hereafter delivered to the Agent granting a Lien on any
asset or assets of any Person to secure the obligations and
- 32 -
liabilities of the Lessor to the Agent and the Participants under the
Participation Agreement or of the Lessee to the Lessor under the Lease.
"Senior Funded Debt" of any Person means any Funded Debt which is not
Subordinated Debt.
"Senior Funded Debt Ratio" means, with respect to any Person at any
time, the ratio, determined on a consolidated basis in accordance with GAAP, of:
(a) The total Senior Funded Debt of such Person and its
Subsidiaries at such time;
to
(b) The sum at such time of (i) the total Senior Funded Debt
and Subordinated Debt of such Person and its Subsidiaries at such title
plus (ii) the total Tangible Net Worth of such Person and its
Subsidiaries at such time.
"Senior Indebtedness" means, with respect to any Person at any time,
all Indebtedness of such Person other than Subordinated Debt.
"Shortfall Amount" means, as of the Expiration Date, the amount that
the Asset Termination Value will exceed the aggregate of the Gross Proceeds and
the Residual Value Guarantee Amount upon the completion of a sale of the
Property pursuant to Article XXII of the Lease.
"Significant Casualty" means (i) a Casualty that results in an
insurance settlement on the basis of a total loss, or a constructive or
compromised total loss, or (ii) a Casualty that in the reasonable, good faith
judgment of the Lessee (as evidenced by a Responsible Officer's Certificate
delivered to the Lessor pursuant to Section 16.1 of the Lease) either (a)
renders the 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 the Property to substantially its
condition as existed immediately prior to such Casualty would be impracticable
or impossible.
"Significant Condemnation" means (i) a Condemnation that involves a
taking of Lessor's entire title to the related Land Interest, (ii) a
Condemnation that results in loss of possession of the Property by the Lessee
for a period in excess of one hundred eighty (180) consecutive days, or (iii) a
Condemnation that in the reasonable, good faith judgment of the Lessee (as
evidenced by a Responsible Officer's Certificate delivered to the Lessor
pursuant to Section 16.1 of the Lease) either (a) renders the Property
unsuitable for continued use as commercial of the type of such property
immediately prior to such Condemnation or (b) is such that restoration of the
Property to substantially its condition as existed immediately prior to such
Condemnation would be impracticable or impossible.
- 33 -
"Significant Event" means (i) a Significant Casualty, (ii) a
Significant Condemnation, (iii) an event where the restoration of the Property
subject to a Casualty or Condemnation shall not be completed prior to the
earlier of (A) the 180th day prior to the Expiration Date or (B) twelve (12)
months following the occurrence of such Casualty or Condemnation or (iv) the
occurrence of an Environmental Violation where the costs to clean up or
remediate the same are reasonably estimated by the Lessee to exceed $5,000,000.
"Six Month Extension Termination Date" means, if the 364 Day Commitment
is extended pursuant to Section 3.6 of the Participation Agreement, the date
which is six months after the expiration of the 364 Day Commitment.
"Solvent" means, with respect to any Person on any date, that on such
date (a) the fair value of the assets of such Person is greater than the fair
value of the liabilities (including, without limitation, contingent liabilities)
of such Person, as such value is established and liabilities evaluated for
purposes of Section 101 (31) of the Federal Bankruptcy Reform Act of 1978 (12
U.S.C. ss.101, et seq.) and, in the alternative, the California Uniform
Fraudulent Transfer Act, (b) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature and (c) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an unreasonably
small capital.
"Specified Event of Default" is defined in Section 17.1(q) of the
Lease.
"Subordinated Debt" means the Convertible Subordinated Debentures and
any other subordinated debt permitted by Section 10.1(g).
"Subsidiary" of any Person means (a) any corporation of which 50% or
more of the issued and outstanding Equity Securities having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries or (b) any partnership, joint venture,
or other association of which 50% or more of the equity interest having the
power to vote, direct or control the management of such partnership, joint
venture or other association is at the time owned and controlled by such Person,
by such Person and one or more of the other Subsidiaries or by one or more of
such Person's other Subsidiaries and in each case, only if such Person is
included in the Financial Statements of such Person on a consolidated basis.
"Supplemental Rent" means all amounts, liabilities and obligations
(other than Basic Rent) which Lessee assumes or agrees to pay to Lessor or any
other Person under the Lease, or under any of the other Operative Documents,
including, without limitation, payments of the Residual Value Guarantee Amount,
the Shortfall Amount and payments pursuant to Sections 16.2, 16.3. 16.4 or 17.6
of the Lease and Articles XX and XXII of the Lease.
- 34 -
"Supplement to Assignment of Lease" means the Supplement substantially
in the form of Exhibit A to the Assignment of Lease together with all
attachments and schedules thereto, as such Supplement to Assignment of Lease may
be supplemented, amended or modified from time to time.
"Syndication Period" means the period commencing on the Effective Date
and concluding on the earlier of (i) the date which is ninety days after the
Effective Date or (ii) the date on which the Agent has syndicated Participation
Interests to other Participants representing not less than seventy percent (70%)
of the total Commitment set forth on Schedule I to the Participation Agreement.
"Synthetic Lease" means an off-balance sheet financing arrangement for
equipment or real estate which is treated as an operating lease under GAAP but
pursuant to which the lessee of such equipment or real estate has the benefits
and burdens of ownership of the leased equipment or real estate for U.S. tax
purposes.
"Tangible Net Worth" means, with respect to the Lessee and its
Subsidiaries at any time, the remainder at such time, determined on a
consolidated basis in accordance with GAAP, of (a) the total assets of the
Lessee and its Subsidiaries minus (b) the sum (without limitation and without
duplication of deductions) of (i) the total liabilities of the Lessee and its
Subsidiaries, (ii) all reserves established by the Lessee and its Subsidiaries
for anticipated losses and expenses (to the extent not deducted in calculating
total assets in clause (a) above), and (iii) all intangible assets of the Lessee
and its Subsidiaries (to the extent included in calculating total assets in
clause (a) above), including, without limitation, goodwill (including any
amounts, however designated on the balance sheet, representing the cost of
acquisition of businesses and investments in excess of underlying tangible
assets), trademarks, trademark rights, trade name rights, copyrights, patents,
patent rights, licenses, unamortized debt discount, marketing expenses,
organizational expenses, non-compete agreements and deferred research and
development.
"Taxes" is defined in the definition of Impositions.
"Term" is defined in Section 2.3 of the Lease.
"Termination Date" is defined in Section 15.1(d), 16.2(a) and 17.2(e)
of the Lease.
"Termination Notice" is defined in Section 16.1 of the Lease.
"364 Day Commitment" means $53,600,000.
"Total Funded Debt Ratio" means, with respect to the Lessee, as of the
last day of any quarter, the ratio, determined on a consolidated basis in
accordance with GAAP, of (a) the aggregate amount of all Funded Debt of the
Lessee then outstanding on such day to (b) EBITDA of the Lessee for the
consecutive four quarter period ending on such day.
- 35 -
"Transfer" means, with respect to any assets or property, any sale,
lease, transfer or other disposition thereof.
"Two Year Commitment" means $12,400,000. The Two Year Commitment
expires on the earlier of the Completion Date or the Outside Completion Date.
"Tranche A Participants" means those Participants purchasing a Tranche
A Participation Interest in the Advances and maintaining a Tranche A
Participation Interest Commitment.
"Tranche A Participation Interest" means, (i) as to each Tranche A
Participant, such Participant's Tranche A Participation Interest Commitment
Percentage, multiplied by the outstanding amount of all Advances as to which
such Participant has funded its Tranche A Participation Interest Commitment
Percentage under Section 3.4 of the Participation Agreement and (ii) as to all
Tranche A Participants, 85% of all outstanding Advances.
"Tranche A Participation Interest Balance" means for each Tranche A
Participant as of any date of determination an amount equal to (i) the sum of
such Tranche A Participant's Tranche A Participation Interest in all outstanding
Advances, together with all accrued and unpaid interest thereon, and all other
amounts owing by the Lessee to such Tranche A Participant under the Operative
Documents, less (ii) the sum of all payments received by the Tranche A
Participant on account of payments to reduce such Tranche A Participant's
Tranche A Participation Interest, including reductions resulting from payments
by the Lessor, the Lessee and the Guarantor and/or proceeds from the sale of the
Property and/or amounts realized from the Collateral pursuant to the Cash
Collateral Agreement.
"Tranche A Participation Interest Commitment" is defined in Section 3.5
of the Participation Agreement.
"Tranche A Participation Interest Commitment Percentage" means (i) with
respect to all Participants in the aggregate, 85% of the aggregate Commitments,
and (ii) with respect to each Tranche A Participant, the percentage of the
aggregate Commitments set forth after such Participant's Tranche A Participation
Interest Commitment in Schedule I to the Participation Agreement.
"Tranche B Participants" means those Participants purchasing a Tranche
B Participation Interest in the Advances and maintaining a Tranche B
Participation Interest Commitment.
"Tranche B Participation Interest" means, (i) as to each Tranche B
Participant, such Tranche B Participant's Tranche B Participation Interest
Commitment multiplied by the outstanding amount of all Advances as to which such
Participant has funded its Tranche B Participation Interest Commitment
Percentage under Section 3.4 of the Participation Agreement and (ii) as to all
Tranche B Participants, 11.50% of all outstanding Advances.
- 36 -
"Tranche B Participation Interest Balance" means for each Tranche B
Participant as of any date of determination an amount equal to (i) the sum of
such Tranche B Participant's Tranche B Participation Interest in all outstanding
Advances, together with all accrued and unpaid interest thereon, and all other
amounts owing by the Lessee to such Tranche B Participant under the Operative
Documents, less (ii) the sum of all payments received by the Tranche B
Participant on account of payments to reduce such Tranche B Participant's
Tranche B Participation Interest, including reductions resulting from payments
by the Lessor, the Lessee and the Guarantor and/or proceeds from the sale of the
Property and/or amounts realized from the Collateral pursuant to the Cash
Collateral Agreement.
"Tranche B Participation Interest Commitment" is defined in Section 3.5
of the Participation Agreement.
"Tranche B Participation Interest Commitment Percentage" means (i) with
respect to all Participants in the aggregate, 11.50% of the aggregate
Commitments, and (ii) with respect to each Tranche B Participant, the percentage
of the aggregate Commitments set forth after such Participant's Tranche B
Participation Interest Commitment in Schedule I to the Participation Agreement.
"Tranche C Participants" means those Participants purchasing a Tranche
C Participation Interest in the Advances and maintaining a Tranche C
Participation Interest Commitment.
"Tranche C Participation Interest" means, (i) as to each Tranche C
Participant, such Tranche C Participant's Tranche C Participation Interest
Commitment multiplied by the outstanding amount of all Advances as to which such
Participant has funded its Tranche C Participation Interest Commitment
Percentage under Section 3.4 of the Participation Agreement and (ii) as to all
Tranche C Participants 3.50% of all outstanding Advances.
"Tranche C Participation Interest Balance" means for each Tranche C
Participant as of any date of determination an amount equal to (i) the sum of
such Tranche C Participant's Tranche C Participation Interest in all outstanding
Advances, together with all accrued and unpaid Yield thereon, and all other
amounts owing by the Lessee to such Tranche C Participant under the Operative
Documents, less (ii) the sum of all payments received by the Tranche C
Participant on account of payments to reduce such Tranche C Participant's
Tranche C Participation Interest, including reductions resulting from payments
by the Lessor, the Lessee and the Guarantor, proceeds from the sale of the
Property and/or amounts realized from the Collateral pursuant to the Cash
Collateral Agreement.
"Tranche C Participation Interest Commitment" is defined in Section 3.5
of the Participation Agreement.
"Tranche C Participation Interest Commitment Percentage" means (i) with
respect to all Participants in the aggregate, 3.50% of the Aggregate
Commitments, and (ii) with respect to each Tranche C Participant, the percentage
of the Aggregate Commitments set forth after such
- 37 -
Participant's Tranche C Participation Interest Commitment in Schedule I to the
Participation Agreement.
"Transaction Expenses" means the following costs and expenses incurred
by the Lessor, the Agent and, to the extent referred to below, the Participants
in connection with the preparation, execution and delivery of the Operative
Documents and the transactions contemplated by the Operative Documents:
(a) the reasonable fees, out-of-pocket expenses and
disbursements of counsel for each of the Lessor, ABN AMRO and the
Agent, in negotiating the terms of the Operative Documents and the
other transaction documents, preparing for the closing under, and
rendering opinions in connection with, such transactions and in
rendering other services customary for counsel representing parties to
transactions of the types involved in the transactions contemplated by
the Operative Documents;
(b) the reasonable fees, out-of-pocket expenses and
disbursements of counsel of each of the Lessor, ABN AMRO and the Agent
in connection with (1) any amendment, supplement, waiver or consent
with respect to any Operative Documents requested or approved by the
Lessee and (2) any enforcement of any rights or remedies against the
Lessee in respect of the Operative Documents;
(c) any and all Taxes and fees incurred in recording,
registering or filing any Operative Document or any other transaction
document, any deed, declaration, mortgage, security agreement, notice
or financing statement with any public office, registry or governmental
agency in connection with the transactions contemplated by the
Operative Documents;
(d) any title fees, premiums and escrow costs and other
expenses relating to title insurance and the closing contemplated by
the Transaction Documents; and
(e) all expenses relating to all Environmental Audits and
Appraisals.
"Type" means, with respect to any Advance, its nature as an Alternate
Base Rate Advance or a Eurodollar Rate Advance.
"UCC Financing Statements" means collectively the Agent Financing
Statements and the Lessor Financing Statements.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the present value of all benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
- 38 -
"Uniform Commercial Code" and "UCC" means the Uniform Commercial Code
as in effect in any applicable jurisdiction.
"Voting Power" means, with respect to securities issued by any Person,
the combined voting power of all securities of such person which are issued and
outstanding at the time of determination and which are entitled to vote in the
election of directors of such Person, other than securities having such power
only by reason of the happening of a contingency.
"Wholly-Owned Subsidiary" means any Subsidiary in which (other than
directors' qualifying or local ownership shares required by law) 100% of the
issued and outstanding Equity Securities or equity interest (as applicable)
having ordinary voting power to elect a majority of the Board of Directors of
such Subsidiary or direct or control the management of such Subsidiary (as
applicable) is at the time owned and controlled by a Person, by such Person and
one or more of the other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Yield" is defined in Section 3.8(b) of the Participation Agreement.
- 39 -
