Exhibit 10.1
EXECUTION COPY
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Recording requested by, and when
recorded, please return to:
McGuireWoods LLP
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ATTN: W. Xxxx Xxxxx, Esq.
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(Space Above This Line Reserved for Recorder's
Use Only)
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AMENDED AND RESTATED MASTER LEASE
dated as of May 15, 2001
between
ABN AMRO LEASING, INC.,
as the Lessor
and
BEA SYSTEMS, INC.,
as the Lessee
San Jose, California Facility
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This Lease is superior to a deed of trust in favor of ABN AMRO Bank, N.V.,
as Agent (the "Agent") recorded under the Participation Agreement dated as
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of February 13, 2001 among the Lessee, the Lessor, the Participants and the
Agent for the benefit of the Participants. This Lease has been executed in
counterparts. To the extent, if any, that this Lease constitutes chattel
paper (as such term is defined in the Uniform Commercial Code as in effect
in any applicable jurisdiction), no lien on this Lease may be created
through the transfer or possession of any counterpart other than the
original counterpart containing the receipt therefor executed by the Agent
on the signature page hereof.
TABLE OF CONTENTS
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Page
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ARTICLE I............................................................................................................ 2
1.1 Definitions; Interpretation.................................................................................... 2
ARTICLE II........................................................................................................... 2
2.1 Acceptance and Lease of Property............................................................................... 2
2.2 Acceptance Procedure........................................................................................... 2
2.3 Lease Term..................................................................................................... 2
2.4 Title.......................................................................................................... 2
2.5 Appointment.................................................................................................... 2
2.6 Acceptance; Construction....................................................................................... 3
ARTICLE III.......................................................................................................... 3
3.1 Rent........................................................................................................... 3
3.2 Payment of Basic Rent.......................................................................................... 3
3.3 Supplemental Rent.............................................................................................. 3
3.4 Method of Payment.............................................................................................. 4
ARTICLE IV........................................................................................................... 4
4.1 Utility Charges................................................................................................ 4
ARTICLE V............................................................................................................ 4
5.1 Quiet Enjoyment................................................................................................ 4
ARTICLE VI........................................................................................................... 4
6.1 Net Lease...................................................................................................... 4
6.2 No Termination or Abatement.................................................................................... 5
ARTICLE VII.......................................................................................................... 6
7.1 Nature of Transaction; Intent of the Parties................................................................... 6
7.2 UCC Information................................................................................................ 8
ARTICLE VIII......................................................................................................... 9
8.1 Condition of the Property...................................................................................... 9
8.2 Possession and Use of the Property............................................................................. 10
ARTICLE IX........................................................................................................... 10
9.1 Compliance with Requirements of Law and Insurance Requirements................................................. 10
ARTICLE X............................................................................................................ 11
10.1 Maintenance and Repair; Return................................................................................ 11
ARTICLE XI........................................................................................................... 11
11.1 Improvements.................................................................................................. 11
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ARTICLE XII........................................................................................................... 11
12.1 Warranty of Title............................................................................................... 11
12.2 Grants and Releases of Easements................................................................................ 12
ARTICLE XIII.......................................................................................................... 13
13.1 Permitted Contests Other Than in Respect of Indemnities......................................................... 13
ARTICLE XIV........................................................................................................... 13
14.1 General Liability and Workers' Compensation Insurance........................................................... 13
14.2 Reserved........................................................................................................ 14
14.3 Coverage........................................................................................................ 14
ARTICLE XV............................................................................................................ 15
15.1 Casualty and Condemnation....................................................................................... 15
15.2 Environmental Matters........................................................................................... 16
15.3 Notice of Environmental Matters................................................................................. 17
ARTICLE XVI........................................................................................................... 17
16.1 Termination upon Certain Events................................................................................. 17
16.2 Procedures...................................................................................................... 18
16.3 Purchase of Property............................................................................................ 19
ARTICLE XVII.......................................................................................................... 19
17.1 Lease Events of Default......................................................................................... 19
17.2 Remedies........................................................................................................ 22
17.3 Waiver of Certain Rights........................................................................................ 25
17.4 Further Remedies................................................................................................ 25
17.5 Remedies Cumulative............................................................................................. 30
17.6 The Lessee's Right to Cure...................................................................................... 30
ARTICLE XVIII......................................................................................................... 30
18.1 The Lessor's Right to Cure the Lessee's Lease Defaults.......................................................... 30
ARTICLE XIX........................................................................................................... 31
19.1 Provisions Relating to the Lessee's Termination of this Lease or Exercise of
Purchase Option or Obligation and Conveyance Upon Remarketing and
Conveyance Upon................................................................................................. 31
19.1 Certain Other Events............................................................................................ 31
ARTICLE XX............................................................................................................ 32
20.1 Purchase Option................................................................................................. 32
20.2 Expiration Date Purchase Obligation............................................................................. 32
20.3 Acceleration of Purchase Obligation............................................................................. 33
ARTICLE XXI........................................................................................................... 33
21.1 Renewal......................................................................................................... 33
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ARTICLE XXII.......................................................................................................... 34
22.1 Option to Remarket............................................................................................. 34
22.2 Certain Obligations Continue................................................................................... 37
22.3 Support Obligations............................................................................................ 37
ARTICLE XXI........................................................................................................... 38
23.1 Holding Over................................................................................................... 38
ARTICLE XXIV.......................................................................................................... 38
24.1 Risk of Loss................................................................................................... 38
ARTICLE XXV........................................................................................................... 39
25.1 Subletting and Assignment...................................................................................... 39
ARTICLE XXVI.......................................................................................................... 40
26.1 Estoppel Certificates.......................................................................................... 40
ARTICLE XXVII......................................................................................................... 40
27.1 Right to Inspect............................................................................................... 40
27.2 No Waiver...................................................................................................... 40
ARTICLE XXVIII........................................................................................................ 40
28.1 Acceptance of Surrender.......................................................................................... 40
ARTICLE XXIX.......................................................................................................... 41
29.1 No Merger of Title............................................................................................. 41
ARTICLE XXX........................................................................................................... 41
30.1 Notices........................................................................................................ 41
ARTICLE XXXI.......................................................................................................... 42
31.1 Miscellaneous.................................................................................................. 42
31.2 Amendments and Modifications................................................................................... 43
31.3 Successors and Assigns......................................................................................... 43
31.4 Headings and Table of Contents................................................................................. 43
31.5 Counterparts................................................................................................... 43
31.6 GOVERNING LAW.................................................................................................. 43
31.7 Limitations on Recourse........................................................................................ 43
31.8 Original Lease................................................................................................. 43
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APPENDICES
APPENDIX I Definitions and Interpretation
EXHIBITS
EXHIBIT A Lease Supplement
EXHIBIT B Legal Description of Land
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AMENDED AND RESTATED MASTER LEASE
THIS AMENDED AND RESTATED MASTER LEASE (as amended, supplemented or
otherwise modified from time to time, this "Lease"), dated as of May 15, 2001 is
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by and between ABN AMRO LEASING, INC., an Illinois corporation, having its
principal office at 000 X. XxXxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000, as the lessor
(together with its permitted successors and assigns, the "Lessor") and BEA
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SYSTEMS, INC., a Delaware corporation, having its principal office at 0000 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, as the lessee (the "Lessee").
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W I T N E S S E T H:
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A. On the Closing Date the Lessor and the Lessee entered into the Original
Lease and the Lease Supplement pursuant to the Original Participation Agreement;
B. On the Closing Date the parties thereto entered into the Original
Participation Agreement;
C. The Lessee, the Lessor, the Participants and the Agent are entering
into the Amended and Restated Participation Agreement (the "Participation
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Agreement") on the Syndication Closing Date. Pursuant to the Participation
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Agreement, the parties to the Original Lease desire to enter into this Lease for
the purpose of amending and restating the Original Lease in its entirety;
D. WHEREAS, the Lessor purchased the Land Interest on the Land Interest
Acquisition Date, and the Land Interest will be leased to the Lessee subject to
the terms of this Lease;
E. WHEREAS, the Lessor desires to lease to the Lessee and the Lessee
desires to lease from the Lessor, the Property pursuant to this Lease; and
F. WHEREAS, the leasing of the Land Interest is an initial step in what is
intended to be a series of transactions between the Lessor and the Lessee and/or
between the Lessee and a third party. The Land Interest will be subdivided into
three separate parcels, the Lessor (or another third party lessor) will
construct an office building on each such parcel and, upon completion of
construction, each element of the improved Property will be leased to the Lessee
by the Lessor or another third party lessor pursuant to other documentation
satisfactory to such parties.
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that from and after the date hereof the
Original Lease (including all Appendices and Exhibits thereto) shall be, and the
same hereby is, amended and restated in its entirety to read as follows: (and
all references in the Operative Documents to "the Lease" shall be deemed to be
references to this Amended and Restated Master Lease):
ARTICLE I.
1.1 Definitions; Interpretation. Capitalized terms used but not otherwise
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defined in this Lease have the respective meanings specified in Appendix 1 to
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this Lease; and the rules of interpretation set forth in Appendix 1 to this
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Lease shall apply to this Lease.
ARTICLE II.
2.1 Acceptance and Lease of Property. Effective as of the Closing Date,
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the Lessor, subject to the satisfaction or waiver of the conditions set forth in
Section 6 of the Participation Agreement, accepted delivery of the Land Interest
that was delivered on the Land Interest Acquisition Date pursuant to the terms
of the Original Participation Agreement, and leased to the Lessee under the
Lease for the Term (as defined in Section 2.3), the Lessor's interest in such
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Land Interest and the Lessee agreed, expressly for the direct benefit of the
Lessor, to lease commencing on the Lease Commencement Date from the Lessor for
the Term, the Lessor's interest in such Land Interest that was delivered on such
Land Interest Acquisition Date.
2.2 Acceptance Procedure. Under the Original Lease, the Lessor authorized
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one or more employees of the Lessee, designated by the Lessee, as the authorized
representative or representatives of the Lessor to accept delivery on behalf of
the Lessor of the Property identified on the Acquisition Request. The Lessee
hereby agrees that such acceptance of delivery by such authorized representative
or representatives and the execution and delivery by the Lessee on the Land
Interest Acquisition Date of the Lease Supplement in the form of Exhibit A
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hereto (appropriately completed), without further act, constituted the
irrevocable acceptance by the Lessee of the Land Interest which is the subject
thereof for all purposes of this Lease and the other Operative Documents on the
terms set forth therein and herein.
2.3 Lease Term. The term of this Lease (the "Term") with respect to the
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Land Interest shall consist of (i) an agency term (the "Agency Term") beginning
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on the Land Interest Acquisition Date and ending on the earlier of (A) the
Completion of Construction, or (B) the second anniversary of the Closing Date,
and (ii) a basic term (the "Basic Term") commencing on the day following the
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last day of the Agency Term, and ending on the fifth anniversary of the Closing
Date, unless the Term is renewed or earlier terminated in accordance with the
provisions of this Lease.
2.4 Title. The Property is leased to the Lessee without any representation
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or warranty of title, condition of the Property or permitted uses, express or
implied, by the Lessor and subject to the rights of parties in possession, the
existing state of title (including, without limitation, the Permitted
Exceptions) and all applicable Requirements of Law. The Lessee shall in no event
have any recourse against the Lessor for any defect in or exception to title to
the Property, other than for any such defect or exception constituting a Lessor
Lien.
2.5 Appointment. Pursuant to and subject to the terms and conditions set
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forth herein, the Lessor hereby irrevocably designates and appoints the Lessee
as its exclusive agent for the identification and acquisition of the Land
Interest and to oversee the design and construction of those Improvements the
Existing Owner is obligated to design and construct in
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accordance with the Property Purchase Agreement. The Lessor hereby authorizes
the construction of the Improvements by the Existing Owner pursuant to the
Property Purchase Agreement.
2.6 Acceptance; Construction. The Lessee hereby unconditionally agrees to
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act as agent of Lessor in accordance with Section 2.5 above. The Lessee will use
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commercially reasonable efforts to cause the Existing Owner to design and
construct the Improvements to be designed and constructed on the Property in
accordance with the Property Purchase Agreement and equipped in compliance with
all Requirements of Law.
ARTICLE III.
3.1 Rent. (a) During the Term, the Lessee shall pay Basic Rent on each
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Payment Date, on the date required under Section 22.1(i) in connection with the
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Lessee's exercise of the Remarketing Option and on any date on which this Lease
shall terminate. Prior to the Basic Term Commencement Date the Advances shall
accrue interest and yield which shall be capitalized and paid as Advances
pursuant to the Participation Agreement. From and after the Basic Term
Commencement Date, Basic Rent shall be payable in cash.
(b) Neither the Lessee's inability or failure to take possession of
all or any portion of the Property when delivered by the Lessor, nor the
Lessor's inability or failure to deliver all or any portion of the Property to
the Lessee on or before the Lease Commencement Date, whether or not attributable
to any act or omission of the Lessee or any act or omission of the Lessor, or
for any other reason whatsoever, shall delay or otherwise affect the Lessee's
obligation to pay Rent for the Property.
3.2 Payment of Basic Rent. Basic Rent shall be paid absolutely net to the
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Lessor, so that this Lease shall yield to the Lessor the full amount thereof,
without setoff, deduction or reduction, whether or not the Lessee's quiet
possession of the Property is disturbed.
3.3 Supplemental Rent. The Lessee shall pay to the Lessor or the Person
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entitled thereto any and all Supplemental Rent promptly as the same shall become
due and payable, and if the Lessee fails to pay any Supplemental Rent, the
Lessor shall have all rights, powers and remedies provided for herein or by law
or equity or otherwise in the case of nonpayment of Basic Rent. The Lessee shall
pay to the Lessor, as Supplemental Rent, among other things, on demand, to the
extent permitted by Applicable Law, interest at the applicable Overdue Rate on
any installment of Basic Rent not paid when due for the period for which the
same shall be overdue and on any payment of Supplemental Rent not paid when due
or demanded by the Lessor for the period from the due date or the date of any
such demand, as the case may be, until the same shall be paid. The expiration or
other termination of the Lessee's obligations to pay Basic Rent hereunder shall
not limit or modify the obligations of the Lessee with respect to Supplemental
Rent. Unless expressly provided otherwise in this Lease, in the event of any
failure on the part of the Lessee to pay and discharge any Supplemental Rent as
and when due, the Lessee shall also promptly pay and discharge any fine,
penalty, interest or cost which may be assessed or added under any agreement
with a third party for nonpayment or late payment of such Supplemental Rent, all
of which shall also constitute Supplemental Rent.
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3.4 Method of Payment. Each payment of Rent shall be made by the Lessee to
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the Lessor by 12:00 noon, Chicago time at the place of payment designated by
Agent in funds consisting of lawful currency of the United States of America
which shall be immediately available on the scheduled date when such payment
shall be due, unless such scheduled date shall not be a Business Day, in which
case such payment shall be made on the next succeeding Business Day or as
otherwise required by the definition of the term "Interest Period" set forth in
Appendix 1 hereto. Payments initiated after 12:00 noon, Chicago time shall be
deemed received on the next succeeding Business Day for purposes of the second
sentence of Section 3.3 hereof, but shall be deemed received on the same day
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for purposes of Section 17.1 hereof.
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ARTICLE IV.
4.1 Utility Charges. Subject to the Lessee's rights under the terms of
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Article XIII relating to permitted contests, the Lessee shall pay or cause to be
paid all charges for electricity, power, gas, oil, water, telephone, sanitary
sewer service and all other rents and utilities used in or on the Property
during the Term. The Lessee shall be entitled to receive any credit or refund
with respect to any utility charge paid by the Lessee and the amount of any
credit or refund received by the Lessor on account of any utility charges paid
by the Lessee, net of the costs and expenses reasonably incurred by the Lessor
in obtaining such credit or refund, shall be promptly paid over to the Lessee.
All charges for utilities imposed with respect to the Property for a billing
period during which this Lease expires or terminates shall be adjusted and
prorated on a daily basis between the Lessor and the Lessee, and each party
shall pay or reimburse the other for each party's pro rata share thereof, except
that to the extent the Lessee retains possession of the Property after
termination or expiration of this Lease, no such adjustment and proration shall
be made. Prior to the Lease Commencement Date, all amounts payable under this
Section 4.1 shall be capitalized and paid as Advances pursuant to the
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Participation Agreement. After the Lease Commencement Date, such amounts shall
be payable in cash.
ARTICLE V.
5.1 Quiet Enjoyment. Subject to the rights of the Lessor contained in
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Section 17.2 and the other terms of this Lease and so long as no Lease Event of
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Default shall have occurred and be continuing, the Lessee shall peaceably and
quietly have, hold and enjoy the Property for the Term, free of any claim or
other action by the Lessor or anyone rightfully claiming by, through or under
the Lessor (other than the Lessee) with respect to any matters arising from and
after the Lease Commencement Date.
ARTICLE VI.
6.1 Net Lease. This Lease shall constitute a net lease. It is the further
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express intent of the Lessor and the Lessee that the obligations of the Lessor
and the Lessee hereunder shall be separate and independent covenants and
agreements and that the Basic Rent and Supplemental Rent, and all other charges
and sums payable by the Lessee hereunder, shall commence at the times provided
herein and shall continue to be payable in all events unless the obligations to
pay the same shall be terminated pursuant to an express provision in this Lease.
Any present or future law to the contrary notwithstanding, this Lease shall not
terminate, nor shall the Lessee be entitled to any abatement, suspension,
deferment, reduction, setoff, counterclaim, or defense
4
(other than the defense of payment) with respect to the Rent, nor shall the
obligations of the Lessee hereunder be affected (except as expressly herein
permitted and by performance of the obligations in connection therewith) by
reason of: (i) any defect in the condition, merchantability, design,
construction, quality or fitness for use of the Property or any part thereof, or
the failure of the Property to comply with all Requirements of Law and Insurance
Requirements, including any inability to occupy or use the Property by reason of
such non-compliance; (ii) any damage to, removal, abandonment, salvage, loss,
contamination of or Release from, scrapping or destruction of, or any
requisition or taking of the Property or any part thereof; (iii) any
restriction, prevention or curtailment of or interference with any use of the
Property or any part thereof including eviction; (iv) any defect in title to or
rights to the Property or any Lien on such title or rights or on the Property
(other than Lessor Liens); (v) any change, waiver, extension, indulgence or
other action or omission or breach in respect of any obligation or liability of
or by the Lessor, the Agent or any Participant; (vi) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceedings relating to the Lessee, the Lessor, the Agent, any Participant or
any other Person, or any action taken with respect to this Lease by any trustee
or receiver of the Lessee, the Lessor, the Agent, any Participant or any other
Person, or by any court, in any such proceeding; (vii) any claim that the Lessee
has or might have against any Person, including without limitation the Lessor,
any vendor, manufacturer, contractor of or for the Property, the Agent or any
Participant; (viii) any failure on the part of the Lessor to perform or comply
with any of the terms of this Lease, any other Operative Document or any other
agreement; (ix) any invalidity or unenforceability or illegality or
disaffirmance of this Lease, against or by the Lessee or any provision hereof or
any of the other Operative Documents or any provision of any thereof; (x) the
impossibility or illegality of performance by the Lessee, the Lessor or both;
(xi) any action by any court, administrative agency or other Governmental
Authority; (xii) any restriction, prevention or curtailment of or interference
with the construction on or any use of the Property or any part thereof; or
(xiii) any other cause or circumstances whether similar or dissimilar to the
foregoing and whether or not the Lessee shall have notice or knowledge of any of
the foregoing. The parties intend that the obligations of the Lessee hereunder
shall be covenants and agreements that are separate and independent from any
obligations of the Lessor hereunder or under any other Operative Document and
the obligations of the Lessee shall continue unaffected unless such obligations
shall have been modified or terminated in accordance with an express provision
of this Lease.
6.2 No Termination or Abatement. The Lessee shall remain obligated under
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this Lease in accordance with its terms and shall not take any action to
terminate (except as provided herein), rescind or avoid this Lease,
notwithstanding any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution, or other proceeding affecting the Lessor, the Agent,
any Participant or the Lessee or any action with respect to this Lease or any
Operative Document which may be taken by any trustee, receiver or liquidator of
the Lessor, the Agent, any Participant or the Lessee or by any court with
respect to the Lessor, the Agent or any Participant. The Lessee hereby waives,
to the extent permitted by Applicable Law, all right (i) to terminate or
surrender this Lease (except as provided herein) or (ii) to avail itself of any
abatement, suspension, deferment, reduction, setoff, counterclaim or defense
(other than the defense of payment) with respect to any Rent. The Lessee shall
remain obligated under this Lease in accordance with its terms and the Lessee
hereby waives, to the extent permitted by Applicable
5
Law, any and all rights now or hereafter conferred by statute or otherwise to
modify or to avoid strict compliance with its obligations under this Lease.
Notwithstanding any such statute or otherwise, the Lessee shall be bound by all
of the terms and conditions contained in this Lease.
ARTICLE VII.
7.1 Nature of Transaction; Intent of the Parties. (a) It is the intent of
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the parties hereto that: (i) this Lease constitutes an "operating lease"
pursuant to Statement of Financial Accounting Standards No. 13, as amended and
interpreted, for purposes of the Lessee's financial reporting, and (ii) for
purposes of federal, state, local and foreign Taxes, including without
limitation income or franchise taxes (and any other tax imposed on or measured
by income, including any withholding taxes), and documentary, intangibles, and
transfer taxes, the transaction contemplated hereby is a financing arrangement
and preserves ownership in the Property in the Lessee. Each of the Parties
agrees that it will not, nor will any Person controlled by it, or under common
control with it, directly or indirectly, at any time take any action or fail to
take any action with respect to the filing of any Tax return, report or other
statement, including any income or franchise tax return or amended income or
franchise tax return, inconsistent with the intention of the parties expressed
in this Section 5.1(a) unless, in the case of Lessor or any Participant,
required to do so by an appropriate taxing authority or after a clearly
applicable change in law or as a protective response to a proposed adjustment by
a Governmental Authority, provided, however, that if an appropriate taxing
authority shall require Lessor or any Participant to claim any tax attributes or
benefits, such Person shall promptly notify Lessee thereof and shall permit
Lessee to contest such requirement in a manner consistent with the contest
provisions of Section 13.5(f) of the Participation Agreement. Nevertheless, the
Lessee acknowledges and agrees that neither the Agent, the Lessor nor any
Participant has made any representations or warranties to the Lessee concerning
the tax, accounting or legal characteristics of the Operative Documents and that
the Lessee has obtained and relied upon such tax, accounting and legal advice
concerning the Operative Documents as it deems appropriate.
(b) Anything to the contrary in the Operative Documents
notwithstanding, the Lessor and the Lessee intend and agree that with respect to
the nature of the transactions evidenced by this Lease in the context of
federal, state, local and foreign Taxes and in the context of the exercise of
remedies under the Operative Documents, including, without limitation, in the
case of any insolvency or receivership proceedings or a petition under the
United States bankruptcy laws or any other applicable insolvency laws or statute
of the United States of America or any State or Commonwealth thereof or any
foreign country affecting the Lessee, the Lessor, or any Participant or any
enforcement or collection actions arising out of or relating to bankruptcy or
insolvency laws, (i) the transactions evidenced by this Lease shall be deemed to
be loans made by the Lessor and the Participants as unrelated third party
lenders to the Lessee secured by the Property, (ii) the obligations of the
Lessee under this Lease to pay Basic Rent, Supplemental Rent, Asset Termination
Value, Purchase Option Price, Partial Purchase Option Price or the Residual
Value Guarantee Amount in connection with a purchase of the Property pursuant to
this Lease shall be treated as payments of interest on and principal of,
respectively, loans from the Lessor and the Participants to the Lessee, and
(iii) this Lease grants a security interest and mortgage or deed of trust or
lien, as the case may be, in the Property to the Lessor and assigned by the
Lessor to the Agent for the benefit of the Participants to secure the
6
Lessee's performance under and payment of all amounts under this Lease and the
other Operative Documents.
(c) Specifically, without limiting the generality of subsections (a)
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and (b) of this Section 7.1 and Section 7.2, the parties hereto intend and
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agree that, for purposes of filing federal, state and local returns, reports and
other statements relating to income or franchise taxes, or any other taxes
imposed upon or measured by income, (i) the Lessee shall be entitled to take any
deduction, credit, allowance or other reporting position consistent with its
status as owner of the Property; and (ii) neither the Lessor nor any Participant
shall take an initial position on its federal, state and local returns, reports
and other statements relating to income or franchise taxes that is inconsistent
with the Lessee's status as owner of the Property.
(d) [Reserved]
(e) In the event that, after the date hereof, the UCC as enacted and
in effect in any applicable jurisdiction shall be revised or amended or
amendments thereto shall become effective, the Lessee, the Lessor, the Agent and
the Participants shall negotiate in good faith to enter into such amendments to
the Operative Documents as may be reasonably necessary or desirable to reflect
or otherwise address such revisions or amendments.
(f) Specifically, without limiting the generality of subsection (b)
of Section 7.1, in order to secure the Lessee's obligation to pay Basic Rent,
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Supplemental Rent, Asset Termination Value, the Residual Value Guarantee Amount,
the Purchase Option Price, the Partial Purchase Option Price and all other
obligations owing by the Lessee under the Operative Documents (the
"Obligations"), the Lessee hereby reaffirms its grant under the Original Lease
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and grants, conveys, sells, transfers, assigns and sets over unto Chicago Title
Insurance Company, as trustee (as "Trustee") for the benefit of Lessor, WITH
POWER OF SALE and right of entry and possession, all of the Lessee's right,
title and interest in and to the following (collectively, the "Collateral"):
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(i) all right, title and interest of the Lessee in and to the
Property or any part thereof and the reversions, remainders, rents,
issues and profits thereof;
(ii) all right, title and interest of the Lessee in and to all
substitutes and replacements of, and all additions and improvements
to, any Improvements and the Fixtures, subsequently acquired by the
Lessee or constructed, assembled or placed on the Land Interest,
immediately upon such acquisition, release, construction, assembling
or placement, including, without limitation, any and all building
materials whether stored at the Property or offsite, and, in each such
case, without any further mortgage, conveyance, assignment or other
act by the Lessee;
(iii) all right, title and interest of the Lessee in, to and
under all books and records relating to or used in connection with the
operation of the Property or any Fixtures or any part thereof;
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(iv) all right, title and interest of the Lessee in and to all
insurance policies (including title insurance policies) required to be
maintained by the Lessee pursuant to this Lease, including the right
to collect and receive such proceeds; and all awards and other
compensation, including the interest payable thereon and the right to
collect and receive the same, made to the owner of the Property for
the taking by eminent domain, condemnation or otherwise, of all or any
part of the Property or any easement or other right therein;
(v) all right, title and interest of the Lessee in and to (i)
all consents, licenses, building permits, certificates of occupancy
and other governmental approvals relating to construction, completion,
occupancy, use or operation of the Property or any part thereof,
provided that any such consent, license, permit, certificate or
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approval that by its terms or by operation of law would become void,
voidable, terminable or revocable or would result in a breach or
default thereunder or under any applicable law if subjected to the
lien granted pursuant to this clause (v) is expressly excepted and
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excluded from this clause (v) to the extent necessary to avoid such
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result, and (ii) all plans and specifications relating to the
Property, in each case to the extent assignable;
(vi) all Rent and all other rents, payments, purchase prices,
receipts, revenues, issues and profits payable under this Lease or
pursuant to any other lease with respect to the Property;
(vii) all proceeds, both cash and noncash, of the foregoing and
any items acquired in substitution of, or replacement for, any of the
foregoing; and
(viii) all right, title and interest of the Lessee in and to all
of the Operative Documents, including, without limitation, the Lease
Supplement, regardless of whether the interest of the Lessee therein
is that of lessee, sublessee, sublessor or borrower.
7.2 UCC Information.
---------------
(a) Specifically, without limiting the generality of subsection (b)
of Section 7.1, the Lessor and the Lessee further intend and agree that, for the
-----------
purpose of securing the Lessee's obligations for the repayment of the above-
described loans from the Lessor and the Participants to the Lessee, (i) this
Lease shall also be deemed to be a security agreement and financing statement
within the meaning of Article 9 of the Uniform Commercial Code, a fixture filing
and a real property mortgage or deed of trust of the Property; (ii) the
conveyance provided for in Article II shall be deemed to be a reaffirmation by
the Lessee of a grant by the Lessee to the Lessor, assigned by the Lessor to the
Agent for the benefit of the Participants, of a mortgage lien and security
interest in all of the Lessee's right, title and interest in and to the Property
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, investments, securities or other property, whether in the form of
cash, investments, securities or other property (it being understood that the
Lessee hereby mortgages and grants a security interest in the Property to Lessor
to secure such loans); (iii) the possession by the Lessor or any of its agents
of any notes and such other items of the Collateral as constitute instruments,
money, negotiable
8
documents or chattel paper shall be deemed to be "possession by the secured
party" for purposes of perfecting the security interest pursuant to Section 9-
305 of the Uniform Commercial Code; and (iv) notifications to Persons holding
such property, and acknowledgments, receipts or confirmations from financial
intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed
to have been given for the purpose of perfecting such security interest under
Applicable Law. The Lessor and the Lessee shall, to the extent consistent with
this Lease, take such actions and execute, deliver, file and record such other
documents, financing statements, mortgages and deeds of trust as may be
necessary to ensure that, if this Lease were deemed to create a security
interest in the Property in accordance with this Section, such security interest
would be deemed to be a perfected security interest of first priority under
Applicable Law and will be maintained as such throughout the Term.
(b) For the purposes of the security agreement and financing
statement provided herein the following information applies:
(i) Name and Address of BEA Systems, Inc.
Debtor: 0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(ii) Name and Address ABN AMRO Leasing, Inc.
of Secured Party: 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
(iii) Description of the Those items described as Improvements,
types (or items) Fixtures and Equipment and other
by property covered personal property in paragraph 7.1(f)
by this Financing hereof
Statement:
(iv) Description of real See Exhibit D hereto
estate to which collateral ---------
is attached or upon
which it is located:
(v) State of Incorporation Delaware
of Debtor:
ARTICLE VIII.
8.1 Condition of the Property. THE LESSEE ACKNOWLEDGES AND AGREES THAT
-------------------------
ALTHOUGH THE LESSOR WILL HOLD FEE TITLE TO THE PROPERTY, THE LESSEE IS SOLELY
RESPONSIBLE FOR THE PROPERTY. THE LESSEE FURTHER ACKNOWLEDGES AND AGREES THAT IT
IS LEASING THE PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) BY THE LESSOR, THE AGENT OR ANY PARTICIPANT AND IN EACH
CASE SUBJECT
9
TO (A) THE EXISTING STATE OF TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION
THEREOF, (C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION
MIGHT SHOW, AND (D) VIOLATIONS OF REQUIREMENTS OF LAW WHICH MAY EXIST ON THE
DATE HEREOF. NEITHER THE LESSOR, THE AGENT NOR ANY PARTICIPANT HAS MADE OR SHALL
BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE
(INCLUDING BUT NOT LIMITED TO ANY IMPLIED LIABILITY RELATING TO A COVENANT OF
QUIET ENJOYMENT, WHICH THE LESSEE HEREBY EXPRESSLY WAIVES), VALUE, HABITABILITY,
USE, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE PROPERTY (OR ANY
PART THEREOF, INCLUDING ANY IMPROVEMENTS EXISTING THEREON), OR ANY OTHER
REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PROPERTY (OR ANY PART THEREOF, INCLUDING ANY IMPROVEMENTS
EXISTING THEREON) AND NEITHER THE LESSOR, THE AGENT NOR ANY PARTICIPANT SHALL BE
LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE
PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY REQUIREMENT OF LAW.
8.2 Possession and Use of the Property. Subject to the next sentence
----------------------------------
hereof, the Property shall be used in a manner consistent with properties of a
similar nature in the businesses in which the Lessee is engaged or as permitted
in any sublease or assignment allowed by Section 25.1 hereof and in compliance
------------
in all respects with any covenants,conditions and restrictions of record and any
ordinance or law affecting the use and occupancy of the Property; and provided
--------
that such other uses do not increase the liability, directly or indirectly, of
the Lessor or adversely affect the value, utility or remaining useful life of
the Property. The Lessee shall not without written consent of Lessor construct
any Improvements on the Property. Notwithstanding the preceding sentence, the
Lessor hereby consents to the construction by the Existing Owner of all
Improvements which the Existing Owner is required to undertake and complete in
accordance with the Property Purchase Agreement. The Lessor hereby authorizes
the Lessee to, and the Lessee shall, exercise all rights and remedies of the
buyer under the Property Purchase Agreement to enforce the obligations of the
Existing Owner thereunder; provided, that such authority shall terminate upon
the occurrence and during the continuance of an Event of Default. It is intended
that the construction of Improvements (in addition to those the Existing Owner
must complete under the Property Purchase Agreement) will be permitted under the
terms of one or more subsequent leases either with the Lessor or a third party
lessor and not under these Operative Documents. The Property shall not be
abandoned by the Lessee or any permitted assignee or sublessee. The Lessee shall
pay, or cause to be paid, all charges and costs required in connection with the
use of the Property as contemplated by this Lease. The Lessee shall not commit
or permit any waste of the property or any part thereof.
ARTICLE IX.
9.1 Compliance with Requirements of Law and Insurance Requirements.
--------------------------------------------------------------
Subject to the terms of Article XIII relating to permitted contests, the Lessee,
------------
at its sole cost and expense, shall (a) comply with all Requirements of Law and
all Insurance Requirements relating
10
to the Property, including the construction, use, operation, maintenance, repair
and restoration thereof and the remarketing thereof pursuant to Article XXII,
------------
whether or not compliance therewith shall interfere with the use and enjoyment
of the Property, and (b) procure, maintain and comply with all licenses,
permits, orders, approvals, consents and other authorizations required for the
use, maintenance-repair and operation of the Property.
ARTICLE X.
10.1 Maintenance and Repair; Return. (a) The Lessee, at its sole cost and
------------------------------
expense, shall maintain the Property in good condition and repair and make all
necessary repairs thereto, of every kind and nature whatsoever, in each case in
compliance with all applicable Requirements of Law and in compliance with all
Insurance Requirements and on a basis consistent with the operation and
maintenance of commercial properties comparable in type and location to the
Property and in compliance with standard industry practice.
(b) The Lessor shall under no circumstances be required to build any
improvements on the Property, make any repairs, replacements, alterations or
renewals of any nature or description to the Property, make any expenditure
whatsoever in connection with this Lease or maintain the Property in any way.
The Lessor shall not be required to maintain, repair or rebuild all or any part
of the Property, and the Lessee waives any right to (i) require the Lessor to
maintain, repair, or rebuild all or any part of the Property, or (ii) make
repairs at the expense of the Lessor pursuant to any Requirement of Law,
Insurance Requirement, contract, agreement, or covenant, condition or
restriction in effect at any time during the Term.
(c) The Lessee shall, upon the expiration or earlier termination of
this Lease (unless the Property is conveyed to the Lessee as provided herein),
vacate and surrender the Property to the Lessor in its then-current, "AS IS"
condition, subject to the Lessee's obligations under Sections 9.1, 10.1(a),
------------ -------
11.1, 12.1, 15.1(e), 15.2, 22.1 and 23.1.
---- ---- ------- ---- ---- ----
(d) The Lessee warrants that it shall cause any Improvements to be
constructed on the Property to be designed and constructed in a workmanlike
manner and all Requirements of Law and in accordance with all Insurance
Requirements, so that, such Improvements will be fit for their intended purpose.
ARTICLE XI.
11.1 Improvements. The Lessee shall not at any time make any improvements
------------
to the Property or any part thereof except as permitted in Section 2.5, Section
----------- -------
2.6 and Section 8.2.
--- -----------
ARTICLE XII.
12.1 Warranty of Title. (a) The Lessee agrees that except as otherwise
-----------------
provided herein and subject to the terms of Article XIII relating to permitted
------------
contests, the Lessee shall not directly or indirectly create or allow to remain,
and shall promptly discharge at its sole cost and expense, any Lien, defect,
attachment, levy, title retention agreement or claim upon the Property (or the
Lessor's interest therein) or any Lien, attachment, levy or claim with respect
to the Rent
11
or with respect to any amounts held by the Agent pursuant to the Participation
Agreement or the other Operative Documents, other than Permitted Exceptions and
Lessor Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of the Lessor, expressed or implied, to or
for the performance by any contractor, mechanic, laborer, materialman, supplier
or vendor of any labor or services or for the furnishing of any materials for
any construction, alteration, addition, repair or demolition of or to the
Property or any part thereof. NOTICE IS HEREBY GIVEN THAT NEITHER THE LESSOR,
ANY PARTICIPANT NOR THE AGENT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE OR TO ANYONE HOLDING THE
PROPERTY OR ANY PART THEREOF THROUGH OR UNDER THE LESSEE AND THAT NO MECHANIC'S
OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR
AFFECT THE INTEREST OF THE LESSOR IN AND TO THE PROPERTY.
12.2 Grants and Releases of Easements. Provided that no Lease Event of
--------------------------------
Default shall have occurred and be continuing and subject to the provisions of
Articles VIII, IX, X and XI, the Lessor hereby consents in each instance to the
------------- -- - --
following actions by the Lessee, in the name and stead of the Lessor, but at the
Lessee's sole cost and expense: (a) the making of dedications and the granting
of easements, licenses, rights-of-way and other rights and privileges in the
nature of easements reasonably necessary or desirable for the construction of
Improvements planned to be placed upon the Property pursuant to the Property
Purchase Agreement as in effect on the date hereof or as hereafter amended with
Lessor's consent, use, repair, operation or maintenance of the Property as
herein provided; (b) the release of easements, licenses, rights-of-way and other
rights and privileges in the nature of easements which are for the benefit of
the Property; (c) the execution of petitions to have the Property annexed to any
municipal corporation or utility district; and (d) the execution of amendments
to any covenants, restrictions, easements, licenses, rights-of-way, and other
rights and privileges in the nature of easements affecting the Property;
provided, however, in each case the Lessee shall have delivered to the Lessor a
-------- -------
Responsible Officer's Certificate stating that (i) such grant or release does
not materially impair the value, utility and remaining useful life of the
Property, (ii) such grant or release is desirable or reasonably necessary in
connection with the construction of such Improvements, use, operation
maintenance, alteration or improvement of the Property, (iii) the Lessee shall
remain obligated under this Lease and under any instrument executed by the
Lessee consenting to the assignment of the Lessor's interest in this Lease as
security for indebtedness, in each such case in accordance with their terms, as
though such grant or release or transfer, had not been effected, and (iv) the
Lessee shall pay and perform any obligations of the Lessor under such grant or
release, and (v) such easements, rights-of-way and other rights shall be prior
and superior to the Lien of the Mortgage. Without limiting the effectiveness of
the foregoing, provided that no Lease Event of Default shall have occurred and
be continuing, the Lessor shall, upon the request of the Lessee, and at the
Lessee's sole cost and expense, execute and deliver, any instruments necessary
or appropriate to confirm any such grant or release to any Person permitted
under this Section 12.2.
------------
12
ARTICLE XIII.
13.1 Permitted Contests Other Than in Respect of Indemnities. Except to the
-------------------------------------------------------
extent otherwise provided for in Section 13 of the Participation Agreement, the
Lessee, on its own or on the Lessor's behalf but at the Lessee's sole cost and
expense, may contest, by appropriate administrative or judicial proceedings
conducted in good faith and with due diligence, the amount, validity or
application, in whole or in part, of any Requirement of Law, or utility charges
payable pursuant to Section 4.1 or any Lien, attachment, levy, encumbrance or
-----------
encroachment, and the Lessor agrees not to pay, settle or otherwise compromise
any such item, provided that (a) the commencement and continuation of such
--------
proceedings shall suspend the collection thereof from, and suspend the
enforcement thereof against, the Property, the Lessor, the Agent and the
Participants or the Lessee shall have bonded or otherwise secured such amount in
a manner satisfactory to the Lessor and the Agent; (b) there shall be no risk of
the imposition of a Lien as a result of such contest (other than Permitted
Exceptions and, in the case of a contest of a Lien, such Lien being contested)
on the Property and no part of the Property nor any Rent would be in any danger
of being sold, forfeited, lost or deferred as a result of such contest; (c) at
no time during the permitted contest shall there be a risk of the imposition of
criminal liability or material civil liability on the Lessor, the Agent or any
Participant for failure to comply therewith (unless, in the case of civil
liability, the Lessee shall have bonded or otherwise secured such amount in a
manner satisfactory to the Lessor and the Agent); and (d) in the event that, at
any time, there shall be a material risk of extending the application of such
item beyond the end of the Term, then the Lessee shall deliver to the Lessor a
Responsible Officer's Certificate certifying as to the matters set forth in
clauses (a), (b) and (c) of this Section 13.1. The Lessor, at the Lessee's sole
----------- --- --- ------------
cost and expense, shall cooperate in good faith with the Lessee with respect to
any permitted contests conducted by the Lessee pursuant to this Section 13.1 and
------------
shall, at the Lessee's sole cost and expense, execute and deliver to the Lessee
such authorizations and other documents as may reasonably be required in
connection with any such contest and, if reasonably requested by the Lessee,
shall join as a party therein at the Lessee's sole cost and expense.
ARTICLE XIV.
14.1 General Liability and Workers' Compensation Insurance. The Lessee
----------------------------------------------------
shall procure and carry commercial general liability insurance, including
contractual liability, for claims for injuries or death sustained by persons or
damage to property while on the Property and such other general liability
coverages as are ordinarily procured by Persons who own or operate similar
properties and consistent with prudent business practice, which policies shall
include contractual liability endorsements usually and customarily obtained by
lessees of similar projects. Such insurance shall be on terms and in amounts
(which shall be acceptable to the Lessor and in the event of liability insurance
shall be maintained at a level set forth on Schedule 14.2) that are no less
-------------
favorable practice and may be provided under blanket policies maintained by or
on behalf of the Lessee; provided, that during the Agency Term no such policies
--------
shall carry any deductibles. The policy shall be endorsed to name the Lessor,
the Agent and each Participant as additional insureds. The policy shall also
specifically provide that the policy shall be considered primary insurance which
shall apply to any loss or claim before any contribution by any insurance which
the Lessor, the Agent or the
13
Participants may have in force. The Lessee shall, in the construction of any
improvements and the operation of the Property (including in connection with any
Modifications thereof) comply with the applicable workers' compensation laws and
protect the Lessor, the Agent and the Participants against any liability under
such laws.
14.2 Reserved
--------
14.3 Coverage. (a) The Lessee shall furnish the Lessor and the Agent with
---------
(i) certificates of insurance and copies of such policies on the Land Interest
Acquisition Date and, within thirty (30) days after the Closing Date, certified
copies of the insurance policies, showing the insurance required under Section
-------
14.1 to be in effect and naming the Lessor, the Agent and each Participant as
----
additional insureds. Such policies and certificates in respect thereof shall
include a provision for thirty (30) days' advance written notice by the insurer
to the Lessor and the Agent in the event of cancellation of or any significant
reduction in the coverage provided by such insurance.
(b) The Lessee agrees that the insurance policy or policies required
by Section 14.1 shall include (i) an appropriate clause pursuant to which such
------------
policy shall provide that it will not be invalidated should the Lessee waive, in
writing, prior to a loss, any or all rights of recovery against any party for
losses covered by such policy, and that the insurance in favor of the Lessor,
the Agent and the Participants, and their respective rights under and interests
in said policies shall not be invalidated or reduced by any act or omission or
negligence of the Lessee or any other Person having any interest in the
Property, and (ii) a so-called "Waiver of Subrogation Clause". The Lessee hereby
waives any and all such rights against the Lessor, the Agent and the
Participants to the extent of payments made under such policies.
(c) All such insurance shall be written by reputable insurance
companies that are financially sound and solvent and otherwise reasonably
appropriate considering the amount and type of insurance being provided by such
companies. Any insurance company selected by the Lessee which is rated in Best's
Key Rating Guide or any successor thereto (or if there be none, an organization
having a similar national reputation) shall have a general policyholder rating
of "A" and a financial rating of at least 13 in Best's Key Rating Guide or be
otherwise acceptable to the Lessor and the Agent.
(d) The Lessor shall not carry separate insurance concurrent in kind
or form or contributing in the event of loss with any insurance required under
this Article XIV except that the Lessor may carry separate liability insurance
-----------
(at its sole cost) so long as (i) the Lessee's insurance is designated as
primary and in no event excess or contributory to any insurance the Lessor may
have in force which would apply to a loss covered under the Lessee's policy and
(ii) each such insurance policy will not cause the Lessee's insurance required
under this Article XIV to be subject to a coinsurance exception of any kind.
-----------
(e) The Lessee shall pay as they become due all premiums for the
insurance required by Section 14.1 and shall renew or replace each policy prior
------------
to the expiration date thereof; provided, that during the Agency Terms such
--------
premiums shall be funded by the Participants through the Lessor and capitalized
as Advances. At the time each of the Lessee's insurance policies is renewed (but
in no event less frequently than once each year), the Lessee
14
shall deliver to the Lessor and the Agent certificates of insurance with respect
to the insurance policies required by this Article XIV to be maintained by the
-----------
Lessee with respect to the Property.
(f) The Lessee hereby waives, releases and discharges the Lessor, the
Agent and each Participant and their agents and employees from all claims
whatsoever arising out of loss, claim, expense or damage to or destruction
covered or coverable by insurance required under this Article XIV
-----------
notwithstanding that such loss, claim, expense or damage may have been caused by
the Lessor, the Agent or any Participant or any of their agents or employees,
and the Lessee agrees to look to the insurance coverage only in the event of
such loss.
ARTICLE XV.
15.1 Casualty and Condemnation. (a) Subject to the provisions of Article
------------------------- -------
XIV, this Article XV and (in the event the Lessee delivers, or is obligated to
--- ----------
deliver, or the Lessor delivers, a Termination Notice) Article XVI, and prior to
-----------
the occurrence and continuation of a Lease Event of Default, the Lessee shall be
entitled to receive (and the Lessor shall pay over to the Lessee, if received by
the Lessor, and hereby irrevocably assigns to the Lessee all of the Lessor's
right, title and interest in) any award, compensation or insurance proceeds to
which the Lessee or the Lessor may become entitled by reason of their respective
interests in the Property (but not proceeds of any performance bond required to
be obtained by the Existing Owner pursuant to the Property Purchase Agreement)
occurring during the Basic Term (i) if all or a portion of the Property is
damaged or destroyed in whole or in part by a Casualty or (ii) if the use,
access, occupancy, easement rights or title to the Property or any part thereof,
is the subject of a Condemnation; provided, however, if a Lease Event of Default
-------- -------
shall have occurred and be continuing, or if such Casualty or Condemnation
occurs during the Agency Term, such award, compensation or insurance proceeds
shall be paid directly to the Agent or, if received by the Lessee, shall be held
in trust for the Agent, and shall be paid over by the Lessee to the Agent (or,
if the Participation Interests have been fully paid, to the Lessor) and held in
accordance with the terms of this paragraph (a). If, contrary to such
-------------
provision, any such award, compensation or insurance proceeds are paid to the
Lessor or the Lessee rather than to the Agent, the Lessor and the Lessee, as the
case may be, hereby agree to transfer any such payment to the Agent. All
amounts held by the Lessor or the Agent under the preceding sentences on account
of any award or compensation proceeds either paid directly to the Lessor or the
Agent or turned over to the Lessor or the Agent shall either be (i) paid to the
Lessee for the repair of damage caused by such Casualty or Condemnation in
accordance with paragraph (e) of this Section 15.1, or (ii) applied to the
------------- ------------
purchase price of the Property on a Termination Date resulting from a Casualty
or Condemnation in accordance with paragraph (d) of this Section 15.1 or
------------- ------------
paragraph (a) of Section 16.2 or the payment of the Residual Value Guarantee
------------- ------------
Amount pursuant to Section 16.2 or 24.1 and the remaining unpaid portion of the
------------ ----
Lease Balance, with any Excess Proceeds being payable to the Lessee.
(b) [Reserved]
(c) If the Lessor or the Lessee shall receive notice of a Casualty or
of an actual, pending or threatened Condemnation of the Property or any interest
therein, the Lessor or the Lessee, as the case may be, shall give notice thereof
to the other and to the Agent promptly after the receipt of such notice.
(d) In the event of a Casualty or receipt of notice by the Lessee or
the Lessor of a Condemnation, the Lessee may deliver to the Lessor and the Agent
a Termination Notice with respect to the Property pursuant to Section 16.1(a)
---------------
or the Lessor may deliver a Termination Notice pursuant to Section 16.1(b). If
---------------
the Lessee or the Lessor does not deliver a Termination Notice within thirty
(30) days after such occurrence, then this Lease shall (subject to the terms and
conditions thereof) remain in full force and effect, and the Lessee shall, at
the Lessee's sole cost and expense (subject to Section 24.1), promptly and
-----------
diligently restore the Property pursuant to paragraph (e) of this Section 15.1
------------- ------------
and otherwise in accordance with this Lease. If the Lessee delivers a
Termination Notice within thirty (30) days after such occurrence, a Significant
Event shall irrevocably be deemed to have occurred with respect to the Property,
and, in such event, this Lease shall terminate and the Lessee shall purchase the
Property on the next Payment Date (but in no event to exceed thirty (30) days
after such occurrence) (a "Termination Date") pursuant to Article XVI hereof.
----------------- -----------
(e) If pursuant to this Section 15.1 this Lease shall continue in
------------
full force and effect following a Casualty or Condemnation, the Lessee shall, at
its sole cost and expense (subject to Section 24.1) promptly and diligently
------------
repair any damage to the Property caused by such Casualty or Condemnation so as
to restore the Property to at least the same condition, operation, function and
value as existed immediately prior to such Casualty or Condemnation. Upon
completion of such restoration, the Lessee shall furnish the Lessor a
Responsible Officer's Certificate confirming that such restoration has been
completed pursuant to this Lease. In the event of a Condemnation, any award
proceeds paid to the Lessor pursuant to Section 15.1 not applied to reimburse
the Lessee for repairs or restoration expenses shall be applied to prepay the
Lease Balance.
(f) In no event shall a Casualty or Condemnation with respect to
which this Lease remains in full force and effect under this Section 15.1 affect
------------
the Lessee's obligations to pay Rent pursuant to Section 3.1 or to perform its
-----------
obligations and pay any amounts due on the Expiration Date or pursuant to
Articles XIX and XX.
------------ --
(g) Any Excess Proceeds received by the Lessor or the Agent in
respect of a Casualty or Condemnation shall be turned over to the Lessee.
15.2 Environmental Matters. Promptly upon the Lessee's actual knowledge of
---------------------
the presence of Hazardous Substances in any portion of the Property in
concentrations and conditions that constitute or could reasonably be expected to
constitute an Environmental Violation, the Lessee shall notify the Lessor in
writing of such condition. In the event of such Environmental Violation, the
Lessee shall, not later than thirty (30) days after the Lessee has actual
knowledge of such Environmental Violation, either, if such Environmental
Violation is a Significant Event, deliver to the Lessor and the Agent a
Responsible Officer's Certificate and a Termination Notice with respect to the
Property pursuant to Section 16.1(a), or, if such Environmental Violation is not
---------------
a Significant Event, at the Lessee's sole cost and expense, promptly and
diligently commence any Response Actions necessary to investigate, remove, clean
up or remediate the Environmental Violation in accordance with the terms of
Section 9.1. If the Lessee does not deliver a Termination Notice with respect to
-----------
the Property pursuant to Section 16.1(a), the Lessee shall, upon completion of
---------------
Response Actions by the Lessee, cause to be prepared by an environmental
consultant reasonably acceptable to the Lessor a report
16
describing the Environmental Violation and the Response Actions taken by the
Lessee (or its agents) for such Environmental Violation, and a statement by the
consultant that the Environmental Violation has been remedied in compliance in
all material respects with applicable Environmental Law. Each such Environmental
Violation shall be remedied prior to the Expiration Date. Nothing in this
Article XV shall reduce or limit the Lessee's obligations under Sections 13.1,
----------
13.2 or 13.3 of the Participation Agreement.
15.3 Notice of Environmental Matters. Promptly, but in any event within
-------------------------------
thirty (30) Business Days from the date the Lessee has actual knowledge thereof,
the Lessee shall provide to the Lessor written notice of any material pending or
threatened claim, action or proceeding involving any Environmental Law or any
Release on or in connection with the Property. All such notices shall describe
in reasonable detail the nature of the claim, action or proceeding and the
Lessee's proposed response thereto. In addition, the Lessee shall provide to the
Lessor, within thirty (30) Business Days of receipt, copies of all material
written communications with any Governmental Authority relating to any
Environmental Law in connection with the Property. The Lessee shall also
promptly provide such detailed reports of any such Material environmental claims
as may reasonably be requested by the Lessor and the Agent.
ARTICLE XVI.
16.1 Termination upon Certain Events
-------------------------------
(a) If either: (i) during the Basic Term the Lessee or the Lessor
shall have received notice of a Condemnation, and the Lessee shall have
delivered to the Lessor a Responsible Officer's Certificate that such
Condemnation is a Significant Condemnation; or (ii) during the Basic Term a
Casualty occurs, and the Lessee shall have delivered to the Lessor a Responsible
Officer's Certificate that such Casualty is a Significant Casualty; or (iii)
during the Term an Environmental Violation occurs or is discovered and the
Lessee shall have delivered to the Lessor a Responsible Officer's Certificate
stating that, in the reasonable, good-faith judgment of the Lessee, the cost to
remediate the same will cause the same to be a Significant Event, or (iv) if
during the Term the Lessee shall not have delivered a Termination Notice with
respect to such Environmental Violation described in clause (iii) but the
requirements of Section 16.3 are met with respect to such Environmental
Violation; then, the (A) the Lessee shall, simultaneously with the delivery of
the Responsible Officer's Certificate pursuant to the preceding clause (i), (ii)
or (iii) deliver a written notice in the form described in Section 16.2(a) (a
"Termination Notice"), or (B) if clause (iv) is applicable, the Lessor may
------------------
deliver a Termination Notice pursuant to Section 16.3.
(b) If during the Agency Term any of the following shall occur: (i)
a Casualty or Condemnation that Lessor determines is a Significant Casualty or a
Significant Condemnation, (ii) the incurrence by any Lessor Party of any
liabilities, losses, damages or expenses excluded from the Lessee's obligations
under clause (5)(A)(2) of the proviso to Section 13.1 of the Participation
Agreement or under Section 24.1 of this Lease by the proviso to such section, or
------------
(iii) a Lease Event of Default shall occur, the Lessor and the Participants may,
but shall not be required to elect to:
17
(A) deliver a Termination Notice to the Lessee which shall
terminate their Commitments; and
(B) require the Lessee to:
(1) return the Property to the Lessor or remarket the
Property for the Lessor as provided in clause (c) below; and
----------
(2) pay the maximum Residual Value Guarantee Amount or
Asset Termination Value to the Lessor as provided in clause (c)
----------
below, together with the other amounts referred to therein.
(c) The Lessee shall, at the request of the Lessor, (i)(A) return the
Property to the Lessor or a Person designated by the Lessor on a date specified
by the Lessor (which date shall constitute the Termination Date) and/or (B)
remarket the Property for the Lessor as the Lessor's agent subject to the
Lessor's direction and, in each case, comply with Section 19.1(b) and, to the
---------------
extent applicable, Section 19.2, and (ii) pay to the Lessor (A) the maximum
------------
Residual Value Guarantee Amount on the date that is ten (10) days after the date
the Lessor furnishes the Lessee with the Termination Notice that it will require
the Lessee to return or remarket the Property, provided that the Lessor may
--------
recover from the Lessee, and the Lessee shall be obligated to pay to the Lessor
the Asset Termination Value as of such date (notwithstanding the limitation to
maximum Residual Value Guarantee Amount contained in clause (A) above) if a
----------
Lease Event of Default under Section 17.1(f) or (g) shall have occurred or if
--------------- ---
the event described in clause (b)(i) or (ii) above arose out of a Fully
------------- ----
Indemnifiable Event or constituted an Environmental Obligation. If the Lessee
has paid the Residual Value Guarantee Amount as required herein, proceeds from a
sale of the Property pursuant to this Section 16.1(c) or, if not sold as
---------------
provided in this Section 16.1(c), from a sale of the Property occurring
---------------
thereafter, shall be distributed as provided in Section 3.14 of the
Participation Agreement.
16.2 Procedures. (a) A Termination Notice delivered pursuant to Section
---------- -------
16.1(a) shall contain: (i) notice of termination of this Lease with respect to
-------
the Property or the affected portion thereof on a date that is no later than
thirty (30) days after the occurrence of the applicable event described in
clause (i), (ii) or (iii) of Section 16.1(a) (the "Termination Date"), such
---------- ---- ----- --------------- ----------------
termination to be effective upon the Lessee's payment of the Asset Termination
Value (or portion thereof representing the Property Cost of the affected portion
of the Property); and (ii) a binding and irrevocable agreement of the Lessee to
pay the Asset Termination Value and purchase the Property (or such portion
thereof) on the Termination Date.
(b) On the Termination Date, the Lessee shall pay to the Lessor the
Asset Termination Value (or such portion thereof, as applicable), plus all other
amounts owing in respect of Rent for the Property (including Supplemental Rent)
theretofore accruing, and the Lessor shall convey the Lessor's interest in the
Property or such portion thereof to the Lessee (or the Lessee's designee) all in
accordance with Section 19.1 and, to the extent applicable, Section 19.2, as
------------ ------------
well as any Net Proceeds with respect to the Casualty or Condemnation giving
rise to the termination of this Lease with respect to the Property theretofore
received by the Lessor.
18
16.3 Purchase of Property. Upon receipt of any notice pursuant to
--------------------
Section 15.2 or 15.3, the Lessor or the Required Participants, at the Lessee's
------------ ----
expense, shall have the right to select an independent environmental consultant
acceptable to the Lessee, which acceptance shall not be unreasonably withheld or
delayed, to determine the estimated cost of conducting any clean-up or
remediation required as a result of the Environmental Violation disclosed in
such notice. If such independent environmental consultant determines that the
cost of any such clean-up or remediation would exceed fifteen percent (15%) of
the original Property Cost, the Lessor shall, at the direction of the Required
Participants, by written notice require the Lessee to purchase, or arrange for
an Affiliate or other third party to purchase, the Property on the Expiration
Date by delivering a Termination Notice following the requirements of Section
-------
16.2 hereof.
----
ARTICLE XVII.
17.1 Lease Events of Default. The occurrence of any one or more of the
-----------------------
following events (whether such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body) shall constitute a "Lease Event of
--------------
Default":
--------
(a) the Lessee shall fail to make payment of (i) any Basic Rent
(other than a payment of Basic Rent due on the Expiration Date, any Termination
Date or any date on which a payment is required to be made under clause (ii))
-----------
within five (5) Business Days after the same has become due and payable or (ii)
Basic Rent, Purchase Option Price, Partial Purchase Option Price, Asset
Termination Value, or Residual Value Guarantee Amount or other amounts due on
the Expiration Date or the Termination Date, including, without limitation,
amounts due pursuant to Sections 16.2, 16.3, 17.2(h), 20.2, 20.3 or 22.1, after
------------- ---- ------- ---- ---- ----
after the same has become due and payable;
(b) the Lessee shall fail to make payment of any Supplemental Rent
(other than Supplemental Rent referred to in clause (a) of this Section) due and
----------
payable within five (5) Business Days after the same has become due and payable;
(c) the Lessee shall fail to maintain insurance as required by
Article XIV of this Lease;
-----------
(d) the Lessee shall fail to observe or perform any term, covenant
or condition of the Lessee under this Lease, the Participation Agreement or any
other Operative Document to which it is a party other than those described in
Section 17.1(a), (b), (c), (p), or (q) hereof, or any representation or
--------------- --- --- --- ---
warranty set forth in this Lease or in any other Operative Document or in any
document entered into in connection herewith or therewith or in any document,
certificate or financial or other statement delivered in connection herewith or
therewith shall be false or inaccurate in any Material way, and, if such failure
to perform or misrepresentation or breach of warranty is other than with respect
to a covenant or agreement contained in Section 10.1(b) or 10.2 of the
---------------
Participation Agreement, such failure or misrepresentation or breach of warranty
shall remain uncured for a period of 30 days after the earlier of (i) the date
upon which an executive officer of the Lessee has actual knowledge thereof and
(ii) the date upon which the Agent or the Lessor gives notice to the Lessee, or
such longer period as is reasonably necessary
19
to cure such default so long as such default cannot be cured merely by payment
of money and so long as the Lessee shall be diligently prosecuting such cure and
such default is cured within ninety (90) days after the earlier of (i) the date
upon which an
executive officer of the Lessee has actual knowledge thereof and (ii) the date
upon which the Agent or the Lessor gives notice to the Lessee thereof;
(e) the Lessee or any of its Subsidiaries shall fail to make any
payment when due on account of any Indebtedness of such Person (other than
Indebtedness referred to in clauses (a) and (b) of this Section 17.1) and such
----------- --- ------------
failure shall continue beyond any grace period provided with respect thereto, if
the amount of such Indebtedness exceeds $10,000,000 or the effect of such
failure is to cause, or permit the holder or holders thereof to cause,
Indebtedness of Lessee and its Subsidiaries (other than Indebtedness referred to
in clauses (a) and (b) of this Section 17.1) in an aggregate amount exceeding
----------- --- ------------
$10,000,000 to become due or (ii) Lessee or any of its Subsidiaries shall
otherwise fail to observe or perform any agreement, term or condition contained
in any agreement or instrument relating to any Indebtedness of such Person
(other than Indebtedness referred to in clauses (a) and (b) of this Section
----------- --- -------
17.1) and such failure shall continue beyond any grace period provided with
-----
respect thereto, or any other event shall occur or condition shall exist and any
grace period provided with respect thereto shall have expired, if the effect of
such failure, event or condition is to cause, or permit the holder or holders
thereof to cause, after expiration of any such grace period, Indebtedness of
Lessee and its Subsidiaries (other than Indebtedness referred to in clauses (a)
-----------
and (b) of this Section 17.1) in an aggregate amount exceeding $10,000,000 to
---
become due prior to its stated term (and/or to be secured by cash collateral);
(f) (i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Lessee or any of its Subsidiaries
in an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against the Lessee or any of its Subsidiaries under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over the Lessee or any of its Subsidiaries,
or over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of the Lessee or any of its Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of the Lessee or any of its Subsidiaries, and any such event described
in this clause (ii) shall continue for sixty (60) days unless
-----------
dismissed, bonded or discharged;
(g) (i) the Lessee or any of its Subsidiaries shall (i) have an order
for relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or the Lessee or any of its Subsidiaries shall
make any assignment for the benefit of creditors; (ii)
20
be unable, or shall fail generally, or shall admit in writing its inability, to
pay its debts as such debts become due; (iii) be dissolved or liquidated in full
or in part; (iv) become insolvent (as such term may be defined or interpreted
under any applicable statute); or (v) the Board of Directors of the Lessee or
any of its Subsidiaries (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to herein
or in Section 17.1(f);
---------------
(h) (i) one or more judgments, orders, decrees or arbitration
awards requiring Lessee and/or its Subsidiaries to pay an aggregate amount of
$5,000,000 or more (exclusive of amounts covered by insurance issued by an
insurer which is a solvent and unaffiliated insurance company and otherwise
satisfying the requirements set forth in Section 14.3(c)) shall be rendered
against Lessee and/or any of its Subsidiaries in connection with any single or
related series of transactions, incidents or circumstances and the same shall
not be satisfied, vacated or stayed for a period of thirty (30) consecutive days
after the issue of levy; (ii) any judgment, writ, assessment, warrant of
attachment, tax lien or execution or similar process shall be issued or levied
against a substantial part of the Property of Lessee or any of its Subsidiaries
and the same shall not be released, stayed, vacated or otherwise dismissed
within thirty (30) days after issue or levy; or (iii) any other judgments,
orders, decrees, arbitration awards, writs, assessments, warrants of attachment,
tax liens or executions or similar process which, alone or in the aggregate, are
reasonable likely to have a Material Adverse Effect are rendered, issued or
levied;
(i) any Operative Document or any material term thereof shall
cease to be, or be asserted by the Lessee or any of its Subsidiaries not to be,
a legal, valid and binding obligation of the Lessee or any of its Subsidiaries
enforceable in accordance with its terms;
(j) any ERISA Event which constitutes grounds for the
termination of any Employee Benefit Plan by the PBGC or for the appointment of a
trustee by the PBGC to administer any Employee Benefit Plan shall occur, or any
Employee Benefit Plan shall be terminated within the meaning of Title IV of
ERISA or a trustee shall be appointed by the PBGC to administer any Employee
Benefit Plant;
(k) a Change of Control shall occur;
(l) [Reserved.];
(m) the Lessee shall have abandoned or constructively
abandoned all or any material portion of the Property for a period of one
hundred eighty (180) consecutive days which results in the Property not being
properly maintained in accordance with the terms of this Lease;
(n) the Lessee shall have elected to or be required to
purchase the Property pursuant to Sections 16.2 or 16.3 hereof and such purchase
---------------------
shall not have been consummated on the Termination Date pursuant to either such
Section;
(o) [Reserved];
(p) in the event the Lessee is not purchasing the Property
upon the Expiration Date or earlier termination of this Lease, failure to comply
with the return conditions set forth in Sections 19.1(b) and 22.3 hereof; or
---------------- ----
21
(q) any event(s) or condition(s) which has or have a
Material Adverse Effect shall occur and be continuing or exist.
17.2 Remedies. Upon the occurrence of any Lease Event of Default and
--------
at any time thereafter, the Lessor may, so long as such Lease Event of Default
is continuing, do one or more of the following as the Lessor in its sole
discretion shall determine, without limiting any other right or remedy the
Lessor may have on account of such Lease Event of Default (including, without
limitation, the obligation of the Lessee to purchase the Property as set forth
in Section 20.3, but with respect to the Lessee's recourse liability, subject to
------------
the provisions of Section 16.1(b) and (c), if such Event of Default arises
--------------- ---
during the Agency Term):
(a) The Lessor may, by notice to the Lessee, terminate the
Commitments and rescind or terminate this Lease as to all or any portion of the
Property as of the date specified in such notice; however, (i) no reletting,
reentry or taking of possession of the Property (or any portion thereof) by the
Lessor will be construed as an election on the Lessor's part to terminate this
Lease unless a written notice of such intention is given to the Lessee, (ii)
notwithstanding any reletting, reentry or taking of possession, the Lessor may
at any time thereafter elect to terminate this Lease for a continuing Lease
Event of Default, and (iii) no act or thing done by the Lessor or any of its
agents, representatives or employees and no agreement accepting a surrender of
the Property shall be valid unless the same be made in writing and executed by
the Lessor;
(b) The Lessor may (i) demand that the Lessee, and the Lessee
shall upon the written demand of the Lessor, return the Property promptly to the
Lessor in the manner and condition required by, and otherwise in accordance with
all of the provisions of, Articles VIII, IX and X hereof as if the Property were
------------- -- -
being returned at the end of the Term, and the Lessor shall not be liable for
the reimbursement of the Lessee for any costs and expenses incurred by the
Lessee in connection therewith and (ii) without prejudice to any other remedy
which the Lessor may have for possession of the Property, and to the extent and
in the manner permitted by Applicable Law, enter upon the Property and take
immediate possession of (to the exclusion of the Lessee) the Property or any
part thereof and expel or remove the Lessee and any other Person who may be
occupying the Property, by summary proceedings or otherwise, all without
liability to the Lessee for or by reason of such entry or taking of possession,
whether for the restoration of damage to property caused by such taking or
otherwise and, in addition to the Lessor's other damages, the Lessee shall be
responsible for all costs and expenses incurred by the Lessor and/or the Agent
or the Participants in connection with any reletting, including, without
limitation, brokers' fees and all costs of any alterations or repairs made by
the Lessor;
(c) The Lessor may (i) sell all or any part of the Property at
public or private sale, as the Lessor may determine, pursuant to such notices
and procedures as may be required by Applicable Law, free and clear of any
rights of the Lessee and without any duty to account to the Lessee with respect
to such action or inaction or any proceeds with respect thereto (except to the
extent required by clause (ii) below if the Lessor shall elect to exercise its
-----------
rights thereunder) in which event the Lessee's obligation to pay Basic Rent
hereunder for periods commencing after the date of such sale shall be terminated
or proportionately reduced, as the case may be; and (ii) if the Lessor shall so
elect, demand that the Lessee pay to the Lessor, and the Lessee shall pay to the
Lessor, on the date of such sale, as liquidated damages for loss of a bargain
and not as a penalty (the parties agreeing that the Lessor's actual damages
would be difficult to predict, but
22
the aforementioned liquidated damages represent a reasonable approximation of
such amount) (in lieu of Basic Rent due for periods commencing on or after the
Payment Date coinciding with such date of sale (or, if the sale date is not a
Payment Date, the Payment Date next preceding the date of such sale)), an amount
equal to (A) the excess, if any, of (1) the Asset Termination Value calculated
as of such Payment Date (including all Rent due and unpaid to and including such
Payment Date) less the aggregate amount of the Cash Collateral, over (2) the net
proceeds of such sale, if any (that is, after deducting all costs and expenses
incurred by the Lessor, the Agent and the Participants incident to such
conveyance, including, without limitation, repossession costs, brokerage
commissions, prorations, transfer taxes, fees and expenses for counsel, title
insurance fees, survey costs, recording fees, and any repair or alteration
costs); plus (B) interest at the Overdue Rate on the foregoing amount from such
Payment Date until the date of payment; provided, that the Lessor shall deliver
--------
all proceeds from the sale of the Property and other amounts received hereunder
to the Agent for application as provided in Sections 3.14 and 3.17 of the
Participation Agreement.
(d) [Reserved]
(e) Unless the Property has been sold in its entirety, the
Lessor may, subject to Section 17.2(i), whether or not the Lessor shall have
---------------
exercised or shall thereafter at any time exercise any of its rights under
paragraph (b), (c) or (d) of this Section 17.2 with respect to the Property or
------------- --- --- ------------
portions thereof, demand, by written notice to the Lessee specifying a date (a
"Termination Date") not earlier than 10 Business Days after the date of such
----------------
notice, that the Lessee purchase, on such Termination Date, the Property (or the
remaining portion thereof) in accordance with the provisions of Article XIX and
-----------
Section 20.3;
------------
(f) The Lessor may exercise any other right or remedy that may
be available to it under the Operative Documents or otherwise under Applicable
Law, or proceed by appropriate court action (legal or equitable) to enforce the
terms hereof or to recover damages for the breach hereof. Separate suits may be
brought to collect any such damages for any period(s), and such suits shall not
in any manner prejudice the Lessor's right to collect any such damages for any
subsequent period(s), or the Lessor may defer any such suit until after the
expiration of the Term, in which event such suit shall be deemed not to have
accrued until the expiration of the Term;
(g) The Lessor may retain and apply against the Lessor's damages
all sums which the Lessor would, absent such Lease Event of Default, be required
to pay to, or turn over to, the Lessee pursuant to the terms of this Lease;
(h) [Reserved.]
(i) Notwithstanding anything contained in this Lease to the
contrary, in the event that the Lease Event of Default resulting in the exercise
of remedies by the Lessor hereunder is solely a Lease Event of Default described
in Section 17.1(k) or (q), the Lessee shall have the option or, if the Lessor
--------------- ---
terminates this Lease, the Lessee shall be required to elect to (i) remarket the
Property for 180 days after the occurrence of such Event of Default in
accordance with Article XXII hereof (which period shall constitute the Marketing
------------
Period), with the purchase of the Property to be consummated no later than the
date that is 180 days following the
23
occurrence of such Lease Event of Default (which date shall constitute the
Expiration Date if such option is exercised or required to be exercised), or
(ii) exercise its Purchase Option under Section 20.1 hereof, with the purchase
------------
of the Property by the Lessee to be consummated, and the other payments required
thereunder to be made to the Lessor, on the next Payment Date following the
occurrence of such Lease Event of Default (which date shall constitute the
Expiration Date if such option is exercised). The Lessee shall notify the Lessor
within ten (10) days after the occurrence of such Lease Event of Default which
option it is exercising. If the Lessee elects to remarket the Property the
Lessee shall pay to the Lessor (i) the maximum Residual Value Guarantee Amount
on the date the Lessee furnishes such notice of exercise of the Remarketing
Option (or, if the Lessor elects, on the date that is ten (10) Business Days
after the Lessor furnishes the Lessee notice that it will require the Lessee to
remarket or purchase the Property), (ii) all breakage costs incurred by the
Participants for the duration of all then current Interest Periods under the
Participation Agreement with respect to the amount so paid following notices
thereof by the Agent, (iii) Basic Rent when due with respect to the unpaid
portion of the Asset Termination Value for the duration of the 180 day Marketing
Period and (iv) the other payments required under Section 22.1 when required
------------
thereunder and no later than the Expiration Date.
(j) In addition to the other rights and remedies set forth
herein, the Lessor shall have the right to continue this Lease in effect and, as
permitted by Section 1951.4 of the California Civil Code, to enforce, by suit or
otherwise, all covenants and conditions hereof to be performed or complied with
by the Lessee and exercise all of the Lessor's rights and remedies under this
Lease, including, without limitation, the right to recover Basic Rent and
Supplemental Rent from the Lessee as it becomes due under this Lease, even
though the Lessee shall have breached this Lease and abandoned the Property.
Acts of maintenance or preservation, or efforts by the Lessor or on the Lessor's
behalf to relet the Property, or the appointment of a receiver upon the
initiative of the Lessor to protect the Lessor's interest under this Lease shall
not constitute a termination of the Lessee's right to possession of the
Property; provided, however, that the foregoing enumeration shall not be
construed as in any way limiting the actions the Lessor may take without
terminating the Lessee's right to possession. In furtherance of the rights
hereby granted to the Lessor, and to the extent, permitted by law, the Lessee
hereby appoints the Lessor its agent and attorney-in-fact, which appointment
shall be deemed to be coupled with an interest and is irrevocable, with power of
substitution, to enter the Property upon a Lease Event of Default hereunder and
remove therefrom all persons and property (with the right to store such property
on the Property in a public warehouse or elsewhere at the cost and risk and for
the account of the Lessee) and to alter the Property in such manner as the
Lessor may deem necessary or advisable so as to put the Property in good order
and to make the same rentable and from time to time and sublet the Property or
any part thereof for such term or terms whether or not extending beyond the then
current term of this Lease (but such sublease may provide for a new and
successive lease to commence immediately upon the termination of this Lease), at
such rentals and upon such other terms as the Lessor in its sole discretion may
deem advisable, and with the right to make alterations and repairs to the
Property; and the Lessee agrees to pay to the Lessor on demand all reasonable
expenses incurred by the Lessor in such subletting, and in altering, repairing
and putting the Property in good order and condition, and in reletting the same,
including fees of attorneys and architects, and all other reasonable expenses or
commissions. The Lessor shall be the Lessee's agent and representative on the
Property in respect of all matters arising under or in connection with any such
sublease made for the Lessee
24
by the Lessor. Under each such sublease, the Lessee shall retain the right to
enter upon and use the Property, subject to the terms and conditions of such
sublease and the rights of the sublessee thereunder. The Lessee further agrees
to pay to the Lessor, following the date of such subletting, to and including
the date provided in this Lease for the expiration of the Term, the sums of
money which would have been payable by the Lessee as Basic Rent and Supplemental
Rent, deducting only the net amount of rent, if any, which the Lessor shall
actually receive (after deducting from the gross receipts the expenses, costs
and payments of the Lessor which in accordance with the terms of this Lease
would have been borne by the Lessee) in the meantime from and by any such
subletting of the Property, and the Lessee hereby agrees to remain liable for
all sums otherwise payable by the Lessee under this Lease, including, but not
limited to, the expenses of the Lessor aforesaid, as well as for any deficiency
aforesaid. The Lessor shall have the right from time to time to begin and
maintain successive actions or other legal proceedings against the Lessee for
the recovery of such deficiency, expenses or damages or for a sum equal to any
installments of Basic Rent or Supplemental Rent and other sums payable
hereunder, and to recover the same upon the liability of the Lessee herein
provided, which liability it is expressly covenanted shall survive the
commencement or determination of any action to secure possession of the
Property. Nothing herein contained shall be deemed to require the Lessor to wait
to begin such action or other legal proceedings until the date when this Lease
would have expired by limitation had there been no such Lease Event of Default.
Notwithstanding any such subletting without termination, pursuant to the terms
hereof, the Lessor shall retain the right to and may at any time thereafter
elect to terminate this Lease or the Lessee's right to possession of the
Property for any previous breach which remains uncured or for any subsequent
breach by giving the Lessee written notice thereof as herein provided, and in
such event the Lessee shall forfeit any rights or interest under any such
sublease and thereafter the obligations of any such sublessee shall run directly
to the Lessor for its own account. Upon application by the Lessor, a receiver
may be appointed to take possession of the Property, exercise all rights granted
to the Lessor as agent and attorney-in-fact for the Lessee set forth in this
Section 17.2(j) and apply any rentals collected from the Property as hereinabove
---------------
provided. No taking of possession of the Property or other act by the Lessor as
the agent and attorney-in-fact for the Lessee pursuant to the foregoing
provisions, nor any subletting by the Lessor for the Lessee pursuant to the
foregoing provisions, nor any such appointment of a receiver shall constitute or
be construed as an election by the Lessor to terminate this Lease or the
Lessee's right to possession of the Property unless a written notice of such
intention be given to the Lessee.
17.3 Waiver of Certain Rights. If this Lease shall be terminated
------------------------
pursuant to Section 17.2, the Lessee waives, to the fullest extent permitted by
------------
law, (a) any notice of re-entry or the institution of legal proceedings to
obtain re-entry or possession; (b) any right of redemption, re-entry or
repossession; (c) the benefit of any laws now or hereafter in force exempting
property from liability for rent or for debt or limiting the Lessor with respect
to the election of remedies; and (d) any other rights which might otherwise
limit or modify any of the Lessor's rights or remedies under this Article XVII.
------------
17.4 Further Remedies. If the transaction evidenced by this
----------------
Agreement and the other Operative Documents is treated as a loan, upon the
occurrence or existence of any Event of Default and at any time thereafter
unless such Event of Default is waived, the Lessor and the Trustee may with the
consent of the Required Participants, or shall, upon instructions from the
25
Required Participants, exercise any one or more of the following rights and
remedies in addition to those rights and remedies set forth in Section 17.2
------------
(subject, with respect to the Lessee's recourse liability, to the provisions of
Section 16.1(b) and (c) if such Event of Default arises during the Agency Term).
--------------- ---
(a) Acceleration of Obligations. The Lessor may, by written
----------------------------
notice to the Lessee, terminate this Lease and declare all unpaid Obligations
due and payable. On such termination date (which shall then be the Expiration
Date), the Lessee shall pay the Asset Termination Value (subject to Section
-------
17.2(i)), all unpaid Basic Rent accrued through such date, all Supplemental Rent
--------
due and payable on or prior to such date and all other amounts payable by the
Lessee on the Expiration Date pursuant to this Lease and the other Operative
Documents.
(b) Uniform Commercial Code Remedies. The Lessor may exercise
--------------------------------
any or all of the remedies granted to a secured party under any applicable
Uniform Commercial Code.
(c) Judicial Foreclosure. The Lessor may bring an action in any
---------------------
court of competent jurisdiction to foreclose the security interest in the
Property granted to the Lessor by this Lease or any of the other Operative
Documents. Further, Lessor and/or the Trustee may bring an action or actions in
a court of competent jurisdiction to foreclose this instrument as a mortgage and
to obtain specific enforcement of the covenants of the Lessee hereunder, and the
Lessee agrees that such covenants shall be specifically enforceable by
injunction or any other appropriate equitable remedy and that for the purposes
of any suit brought hereunder the Lessee waives the defense of laches and any
applicable statute of limitations.
(d) Power of Sale. The Lessor may cause some or all of the
-------------
Property including any Collateral constituting personal property, including the
Cash Collateral ("Personal Property Collateral"), to be sold or otherwise
----------------------------
disposed of in any combination and in any manner permitted by Applicable Law.
(i) Sales of Personal Property. The Lessor may dispose of
--------------------------
any Personal Property Collateral separately from the sale of the
Collateral constituting real property ("Real Property Collateral"), in
------------------------
any manner permitted by Division 9 of the California Uniform
Commercial Code, including any public or private sale, or in any
manner permitted by any other applicable Governmental Rule. Any
proceeds of any such disposition shall not cure any Event of Default
or reinstate any Obligation for purposes of Section 2924c of the
California Civil Code. In connection with any such sale or other
disposition, the Lessee agrees that the following procedures
constitute a commercially reasonable sale:
(A) The Lessor shall mail written notice of the sale
to the Lessee not later than thirty (30) days prior to such
sale.
(B) Once per week during the three (3) weeks
immediately preceding such sale, the Lessor will publish
notice of the sale in a local daily newspaper of general
circulation.
26
(C) Upon receipt of any written request, the Lessor
will make the Property available to any bona fide
prospective purchaser for inspection during reasonable
business hours.
(D) Notwithstanding, the Lessor shall be under no
obligation to consummate a sale if, in its judgment, none of
the offers received by it equals the fair value of the
Property offered for sale.
(E) If the Lessor so requests, the Lessee shall
assemble all of the Personal Property Collateral and make it
available to the Lessor at the site of the Land Interest.
Regardless of any provision of this Agreement or any other
Operative Document, the Lessor shall not be considered to
have accepted any property other than cash or immediately
available funds in satisfaction of any Obligation, unless
the Lessor has given express written notice of its election
of that remedy in accordance with California Uniform
Commercial Code Section 9505 (or any successor section).
The foregoing procedures do not constitute the only procedures that
may be commercially reasonable.
(ii) Lessor's Sales of Real Property or Mixed Collateral.
---------------------------------------------------
The Lessor may choose to dispose of some or all of the Property which
consists solely of Real Property Collateral in any manner then
permitted by Applicable Law, including without limitation a
nonjudicial trustee's sale pursuant to California Civil Code
(S)(S)2924 et seq. In its discretion, the Lessor may also or
-- ---
alternatively choose to dispose of some or all of the Property, in any
combination consisting of both Real Property Collateral and Personal
Property Collateral, together in one sale to be held in accordance
with the law and procedures applicable to real property, as permitted
by Section 9501(4) (or any successor section) of the California
Uniform Commercial Code. The Lessee agrees that such a sale of
Personal Property Collateral together with Real Property Collateral
constitutes a commercially reasonable sale of the Personal Property
Collateral. (For purposes of this Power of Sale, either a sale of Real
Property Collateral alone, or a sale of both Real Property Collateral
and Personal Property Collateral together in accordance with
California Uniform Commercial Code Section 9501(4) (or any successor
section), will sometimes be referred to as a "Lessor's Sale.")
--------------
(A) Before any Lessor's Sale, the Lessor shall give
such notice of default and election to sell as may then be
required by Applicable Law.
(B) When all time periods then legally mandated have
expired, and after such notice of sale as may then be
legally required has been given, the Lessor shall sell the
property being sold at a public auction to be held at the
time and place specified in the notice of sale.
(C) Neither the Lessor nor the Agent shall have any
obligation to make demand on the Lessee before any Lessor's
Sale.
27
(D) From time to time in accordance with then
Applicable Law, the Lessor may postpone any Lessor's Sale by public
announcement at the time and place noticed for that sale.
(E) At any Lessor's Sale, the Lessor shall sell to the
highest bidder at public auction for cash in lawful money of the
United States.
(F) The Lessor shall execute and deliver to the
purchaser(s) a deed or deeds conveying the Property being sold without
any covenant or warranty whatsoever, express or implied. The recitals
in any such deed of any matters or facts, including any facts bearing
upon the regularity or validity of any Lessor's Sale, shall be
conclusive proof of their truthfulness. Any such deed shall be
conclusive against all Persons as to the facts recited in it.
(e) Foreclosure Sales.
-----------------
(i) Single or Multiple. If the Property consists of more than one
------------------
lot, parcel or item of property, Lessor may:
(A) Designate the order in which the lots, parcels
and/or items shall be sold or disposed of or offered for sale or
disposition; and
(B) Elect to dispose of the lots, parcels and/or items
through a single consolidated sale or disposition to be held or made
under the power of sale granted in Section 17.4(d), or in connection
---------------
with judicial proceedings, or by virtue of a judgment and decree of
foreclosure and sale; or through two or more such sales or
dispositions; or in any other manner the Lessor may deem to be in its
best interests (any such sale or disposition, a "Foreclosure Sale,"
------------------
any two or more, "Foreclosure Sales").
------------------
If the Lessor chooses to have more than one Foreclosure Sale, the Lessor at
its option may cause the Foreclosure Sales to be held simultaneously or
successively, on the same day, or on such different days and at such
different times and in such order as it may deem to be in its best
interests. No Foreclosure Sale shall terminate or affect the security
interests granted to the Lessor in the Property by this Lease or any part
of the Property which has not been sold, until all of the Obligations have
been paid in full.
(ii) Credit Bids. At any Foreclosure Sale, any Person, including the
-----------
Lessor or any Participant, may bid for and acquire the Property or any part
of it to the extent permitted by Applicable Law. Instead of paying cash for
the Property, the Lessor may settle for the purchase price by crediting the
sales price of the Property against the Obligations in any order and
proportions as the Lessor in its sole discretion may choose.
28
(f) Additional Rights and Remedies.
------------------------------
(i) In addition to and without limitation of the rights and remedies
otherwise provided in this Section 17.4, Lessor or its employees, acting by
-------------
themselves or through a court-appointed receiver, may enter upon, possess,
manage, operate, dispose of and contract to dispose of the Property or any
part thereof; negotiate with governmental authorities with respect to the
Property's environmental compliance and remedial measures; contract for
goods and services, hire agents, employees and counsel, make repairs,
alterations and improvements to the Property necessary, in Lessor's
judgment, to protect or enhance the security hereof; to incur the risks and
obligations ordinarily incurred by owners of property (without any personal
obligation on the part of the receiver); and/or to take any and all other
actions which may be necessary or desirable to comply with Lessee's
obligations hereunder and under the Operative Documents. All sums realized
by the Lessor under this Section 17.4(f)(i), less all costs and expenses
------------------
incurred by it under this Section 17.4(f)(i), including attorneys' fees,
------------------
and less such sums as the Lessor deems appropriate as a reserve to meet
future expenses under this Section 17.4(f)(i), shall be applied to any
------------------
Obligations secured hereby in such order as the Lessor shall determine.
Neither application of said sums to said indebtedness nor any other action
taken by the Lessor under this Section 17.4(f)(i) shall cure or waive any
------------------
Event of Default or notice of default hereunder or nullify the effect of
any such notice of default. The Lessor, or any employee or agent of the
Lessor, or a receiver appointed by a court, may take any action or
proceeding hereunder without regard to (i) the adequacy of the security for
the indebtedness secured hereunder, (ii) the existence of a declaration
that the indebtedness secured hereby has been declared immediately due and
payable, or (iii) the filing of a notice of default;
(ii) Lessor shall have the power and authority to execute a written
notice of such Event of Default and, at its election, cause the Property to
be sold to satisfy the Obligations secured hereby. The Lessor shall give
and record such notice as the law then requires as a condition precedent to
a nonjudicial foreclosure sale. When the minimum period of time required by
law after such notice has elapsed, the Lessor, without notice to or demand
upon Lessee except as otherwise required by law, shall sell the Property at
the time and place of sale fixed by it in the notice of sale and in such
order as it or the Lessor may determine, at public auction to the highest
bidder for cash in lawful money of the United States, payable at time of
sale (the Obligations hereby secured being the equivalent of cash for
purposes of said sale). If the Property consists of several lots, parcels,
or items of property, the Lessor may: (i) designate the order in which such
lots, parcels, or items of property shall be offered for sale or sold, or
(ii) elect to sell such lots, parcels or items through a single sale,
through two or more successive sales, or in any other manner the Lessor
deems in its best interest. The Lessee shall have no right to direct the
order in which the Property is sold. The Lessor may postpone sale of all or
any portion of the Property by public announcement at such time and place
of sale, and from time to time thereafter may postpone such sale by public
announcement at such time fixed by the
29
preceding postponement. The Lessor shall deliver to the purchaser at such
sale a deed or other appropriate transfer instrument conveying the Property
or portion thereof so sold, but without any covenant or warranty, express
or implied. The recitals in such deed of any matters of facts shall be
conclusive proof of the truthfulness thereof. Any person, including the
Lessor or the Lessee may purchase at such sale.
In connection with any sale or sales hereunder, the Lessor may elect to
treat any of the Property which consists of a right in action or which is
property that can be severed from the real property covered hereby or any
improvements thereon without causing structural damage thereto as if the same
were personal property or a fixture, as the case may be, and dispose of the same
in accordance with applicable law, separate and apart from the sale of real
property. Any sale of any personal property or fixtures hereunder shall be
conducted in any matter permitted by the California Uniform Commercial Code.
After deducting all costs, fees and expenses of the Lessor and of this
trust, including all costs of evidence of title and attorneys' fees in
connection with sale, the Lessor shall apply the proceeds of sale to payment of
all sums so expended under the terms hereof not then repaid; the payment of all
other sums then secured hereby; and the remainder, if any, to the person or
persons legally entitled thereto;
(iii) Lessor shall have the power and authority to resort to and
realize upon the Property and any other security now or hereafter held
by the Lessor in such order and manner as the Lessor and the Trustee
may, in their sole discretion, determine; and resort to any or all
such security may be taken concurrently or successively and in one or
several consolidated or independent judicial actions or lawfully taken
non-judicial proceedings, or both.
17.5 Remedies Cumulative. The remedies herein provided shall be cumulative
-------------------
and in addition to (and not in limitation of) any other remedies available at
law, equity or otherwise, including, without limitation, any mortgage
foreclosure remedies.
17.6 The Lessee's Right to Cure. Notwithstanding any provision contained
--------------------------
in the Lease or any other Operative Document, if a Lease Event of Default has
occurred and is continuing, the Lessee shall have the right to cure such Lease
Event of Default by exercising its Purchase Option and purchasing the Property
in accordance with Section 20.1 at any time prior to such time as a foreclosure
------------
upon or sale of the Property has been completed.
ARTICLE XVIII.
18.1 The Lessor's Right to Cure the Lessee's Lease Defaults. The Lessor,
------------------------------------------------------
without waiving or releasing any obligation or Lease Event of Default, may (but
shall be under no obligation to) remedy any Lease Default or Lease Event of
Default for the account and at the sole cost and expense of the Lessee,
including the failure by the Lessee to maintain the insurance required by
Article XIV (subject to the limitations set forth in Section 24.1), and may, to
----------- ------------
the fullest extent permitted by law, and notwithstanding any right of quiet
enjoyment in favor of the
30
Lessee, enter upon the Property for such purpose and take all such action
thereon as may be necessary or appropriate therefor. No such entry shall be
deemed an eviction of the Lessee. All out-of-pocket costs and expenses so
incurred (including reasonable fees and expenses of counsel), together with
interest thereon at the Overdue Rate from the date on which such sums or
expenses are paid by the Lessor, shall be paid by the Lessee to the Lessor on
demand (subject to the limitations set forth in Section 24.1), as Supplemental
------------
Rent.
ARTICLE XIX.
19.1 Provisions Relating to the Lessee's Termination of this Lease or
----------------------------------------------------------------
Exercise of Purchase Option or Obligation and Conveyance Upon Remarketing and
-----------------------------------------------------------------------------
Conveyance Upon Certain Other Events. (a) In connection with any termination of
------------------------------------
this Lease pursuant to the terms of Section 16.1, 16.2 or 16.3 (if the Lessee is
------------ ---- ----
obligated to purchase the Property), or in connection with the Lessee's exercise
of its Purchase Option, Partial Purchase Option or Expiration Date Purchase
Obligation, upon the date on which this Lease is to terminate or upon the
Expiration Date, and upon tender by the Lessee of the amounts set forth in
Sections 16.2(b), 20.1, 20.2, 20.3 or 22.1(m) as applicable, the Lessor shall
--------------- ---- ---- ---- -------
execute and deliver to the Lessee (or to the Lessee's designee) at the Lessee's
cost and expense an assignment or transfer without recourse of the Lessor's
right, title and interest in the Property (which shall include a release,
quitclaim and assignment of all of the Lessor's right, title and interest in and
to any Net Proceeds with respect to the Property or such portion thereof not
previously received by the Lessor), subject to the Permitted Exceptions (other
than Lessor Liens and, so long as all amounts required to be paid upon such
termination or exercise have been paid and discharged in full, free of all Liens
created by the Operative Documents) and any encumbrance caused by the fault,
neglect or intention of the Lessee, in recordable form and otherwise in
conformity with local custom and free and clear of any Lessor Liens. The
Property shall be conveyed to the Lessee "AS IS" and in its then present
condition of title and physical condition free of any Lessor Liens and, so long
as all amounts required to be paid upon such termination or exercise have been
paid and discharged in full, free of all Liens created by the Operative
Documents.
(b) If the Lessee properly exercises the Remarketing Option or is
required to remarket the Property or return the Property to the Lessor pursuant
to Section 17.2(i), then the Lessee shall, on the Expiration Date, and at its
---------------
own cost, transfer possession of the Property (or remaining portion thereof) to
the Lessor or the independent purchaser thereof, as the case may be, by
surrendering the same into the possession of the Lessor or such purchaser, as
the case may be, free and clear of all Liens other than Lessor Liens, in good
condition (as modified by Modifications permitted by this Lease), ordinary wear
and tear excepted, in compliance with Applicable Law, and in "broom-swept clean"
condition. The Lessee shall cooperate reasonably with the Lessor and the
independent purchaser of the Property (or remaining portion thereof) in order to
facilitate the purchase by such purchaser of the Property (or remaining portion
thereof) which cooperation shall include the following, all of which the Lessee
shall do on or before the Expiration Date: providing all books and records
regarding the maintenance and ownership of the Property (or remaining portion
thereof) and all know-how, data and technical information relating thereto,
providing a current copy of the "as built" Plans and Specifications for the
Property, granting or assigning (to the extent assignable) all existing licenses
necessary for the operation and maintenance of the Property and cooperating
reasonably in seeking and obtaining all necessary Governmental Action and
complying with the provisions of Section 22.3 hereof.
------------
31
The obligations of the Lessee under this paragraph shall survive the expiration
or termination of this Lease.
ARTICLE XX.
20.1 Purchase Option. (a) Without limitation of the Lessee's purchase
---------------
obligation pursuant to Sections 20.2 or 20.3, unless the Lessee shall have given
------------- ----
notice of its intention to exercise the Remarketing Option and the Lessor shall
have entered into a binding contract to sell the Property, the Lessee shall have
the option (exercisable by giving the Lessor irrevocable written notice (each, a
"Purchase Notice") of the Lessee's election to exercise such option) to
---------------
purchase, or to designate a third party to purchase, (i) all of the Property
(the "Purchase Option") or (ii) any portion of the Land Interest now or
---------------
hereafter constituting a separate legal parcel designated by the Lessee (the
"Partial Purchase Option") provided that the Lessee shall have delivered to the
-----------------------
Lessor with the Purchase Notice a satisfactory appraisal of the Fair Market
Sales Value of the Property as of the purchase date and the Expiration Date,
reflecting the Fair Market Sales Value of the entire Property then remaining
subject to this Lease and of the parcel thereof proposed to be purchased. The
purchase price in respect of the entire Property (the "Purchase Option Price")
---------------------
shall be equal to the Asset Termination Value or, with respect to such portion
of the Property (the "Partial Purchase Option Price"), a price determined by
-----------------------------
multiplying the Asset Termination Value by the percentage that the Fair Market
Sales Value of the portion of the Property subject to the Partial Purchase
Option bears to the Fair Market Sales Value of that portion of the Property
subject to this Lease immediately prior to such purchase, in each case as shown
in such appraisal, plus in each case all other amounts owing in respect of Rent
(including Supplemental Rent) theretofore accruing. The Lessee shall deliver the
Purchase Notice to the Lessor not less than thirty (30) days prior to the
purchase date. If the Lessee exercises its Purchase Option or Partial Purchase
Option, pursuant to this Section 20.1, the Lessor shall transfer, free and clear
------------
of Lessor Liens and Liens under the Operative Documents, to the Lessee or the
Lessee's designee, all of the Lessor's right, title and interest in and to all
or the applicable portion of the Property, as of the date specified in the
Purchase Notice upon receipt of the Purchase Option Price or Partial Purchase
Option Price, as the case may be, and (without duplication) all Rent and all
other amounts then due and payable under this Lease and any other Operative
Document, in accordance with Section 19.1(a). In the event of an exercise of the
---------------
Partial Purchase Option, (i) Lessee or the third party acquiring such property
shall grant any easements reasonably determined to be necessary by Lessor for
the benefit of the remaining Property and the parties will enter into such
amendments to the Operative Documents, and Lessee shall cause any such
amendments to be filed, all as reasonably required by Lessor so as to preserve
the Participants' interests in the retained Property; and (ii) if the Lessor and
the Lessee enter into a replacement synthetic lease facility for any parcel of
the Property to finance the construction of improvements to such parcel
following any exercise of the Partial Purchase Option in a transaction where the
Lessor remains the legal owner and lessor of such parcel, the Lessor and the
Lessee agree that any 3.7(e)(ii) portion capitalized under the Operative
Documents shall not be considered part of the land acquisition costs under such
replacement lease facility.
20.2 Expiration Date Purchase Obligation. Unless (a) the Lessee shall have
-----------------------------------
properly exercised the Purchase Option or the Partial Purchase Option pursuant
to Section 20.1 and purchased all of the Property pursuant thereto, (b) the
------------
Lessee shall have properly exercised
32
the Remarketing Option and shall have fulfilled all of the conditions of clauses
-------
(a) through (j) of Section 22.1 hereof, or (c) the Lessee shall have properly
--- ------------
exercised the Renewal Option pursuant to Section 21.1 and the terms and
------------
conditions of a Renewal Term shall have been agreed upon pursuant to such
Section, then, subject to the terms, conditions and provisions set forth in this
Section 20.2, and in accordance with the terms of Section 19.1(a), the Lessee
------------ --------------
shall purchase from the Lessor, and the Lessor shall assign and convey to the
Lessee without recourse, on the Expiration Date of the Term (as such Term may be
renewed pursuant to Section 21.1) all of the Lessor's right, title and interest
------------
in the Property for an amount equal to the Asset Termination Value (the
"Expiration Date Purchase Obligation"). The Lessee may designate, in a notice
-----------------------------------
given to the Lessor not less than five (5) Business Days prior to the closing of
such purchase (time being of the essence), the transferee or transferees to whom
the conveyance shall be made (if other than to the Lessee), in which case such
conveyance shall (subject to the terms and conditions set forth herein) be made
to such designee; provided, however, that such designation of a transferee or
-------- -------
transferees shall not cause the Lessee to be released, fully or partially, from
any of its obligations under this Lease, including, without limitation, the
obligation to pay the Lessor an amount equal to the Asset Termination Value that
was not fully and finally paid by such designee on such Expiration Date.
20.3 Acceleration of Purchase Obligation. (a) The Lessee shall be
-----------------------------------
obligated to purchase for an amount equal to the Asset Termination Value the
Lessor's interest in the Property (notwithstanding any prior election to
exercise its Purchase Option or Partial Purchase Option pursuant to Section
-------
20.1) (i) automatically and without notice upon the occurrence of any Lease
----
Event of Default specified in clause (f) or (g) of Section 17.1, and (ii) as
---------- --- ------------
provided for at Section 17.2(e) immediately upon written demand of the Lessor
---------------
upon the occurrence of any other Lease Event of Default (except as provided in
Section 17.2(i) and subject to Section 16.1(b) and (c)) with respect to the
--------------- --------------- ---
Lessee's recourse liability if such Lease Event of Default arises during the
Agency Term.
(b) The Lessee shall be obligated to purchase for an amount equal to
the Asset Termination Value (plus all other amounts (without duplication) owing
in respect of Rent (including Supplemental Rent) theretofore accruing)
(offsetting against such amount, subject to the terms of the Cash Collateral
Agreement, the aggregate amount of the Cash Collateral) immediately upon written
demand of the Lessor the Lessor's interest in the Property at any time during
the Term when the Lessor ceases to have title as contemplated by Section 12.1.
------------
ARTICLE XXI.
21.1 Renewal. (a) Subject to the conditions set forth herein, the Lessee
-------
shall have the option (the "Renewal Option") by written request (the "Renewal
-------------- -------
Request") to the Lessor and the Agent (which request the Agent shall promptly
-------
forward to each Participant) given not later than 180 days prior to the Initial
Expiration Date, to renew the Term for an additional one-year period commencing
on the date following the Expiration Date then in effect. No later than the date
(the "Renewal Response Date") which is ninety (90) days after such request has
---------------------
been delivered to each of the Lessor and the Agent, the Lessor will notify the
Lessee in writing (with a copy to Agent) whether or not it consents to such
Renewal Request (which consent may be granted or denied in its sole discretion
and may be conditioned on receipt of such financial information or other
documentation as may be specified by the Lessor including without limitation a
33
satisfactory appraisal of the Property), provided that if the Lessor shall fail
to notify the Lessee on or prior to the Renewal Response Date, it shall be
deemed to have denied such Renewal Request. If the Lessor shall have consented
to the Renewal Request, the Renewal Term contemplated by such request shall
become effective as of the Expiration Date then in effect after the Lessor has
consented to such Renewal Request (each an "Extension Effective Date"); provided
------------------------
that such renewal shall be subject to and conditioned upon the following:
(A) on both the Extension Effective Date and the date of
the Renewal Request, (i) no Lease Default or Lease Event of
Default shall have occurred and be continuing, and (ii) the
Lessor and the Agent shall have received a Responsible Officer's
Certificate of the Lessee as to the matters set forth in clause
------
(i) above,
---
(B) the Lessee shall not have exercised the Remarketing
Option, and
(C) the Participants shall have agreed to extend the
Maturity Date contemporaneously therewith pursuant to Section 3.6
of the Participation Agreement such that the Renewal Term will
expire on the same date as the extended Maturity Date.
(b) Any Renewal Term of this Lease shall be on the same terms and
conditions as are set forth in this Lease for the original Term, with such
modifications thereto, if any, as the parties hereto and to the other Operative
Documents may negotiate based upon the current credit information regarding the
Lessee, interest rates and such other factors as the Lessor may consider
relevant. No more than two Renewal Terms shall be permitted hereunder.
ARTICLE XXII.
22.1 Option to Remarket. Subject to the fulfillment of each of the
------------------
conditions set forth in this Section 22.1, the Lessee shall have the option (the
------------
"Remarketing Option") to market for the Lessor and complete the sale of all, but
------------------
not less than all, of the Lessor's interest in the Property on the Expiration
Date for the Lessor.
The Lessee's effective exercise and consummation of the Remarketing Option
shall be subject to the due and timely fulfillment of each of the following
provisions as of the dates set forth below.
(a) Not later than one hundred eighty (180) days prior to the
Expiration Date, the Lessee shall give to the Lessor written notice of the
Lessee's exercise of the Remarketing Option, which exercise shall be
irrevocable (except by delivery of a Purchase Notice and consummation of
the exercise of the Purchase Option prior to the earlier of (i) the
Expiration Date or (ii) the date on which the Lessor enters into a binding
contract to sell the Property pursuant to the exercise of the Remarketing
Option).
(b) The Lessee shall deliver to the Lessor an Environmental Audit of
the Property together with its notice of exercise of the Remarketing
Option. Such Environmental
34
Audit shall be prepared by an environmental consultant selected by the Lessor
following consultation with the Lessee, in the Lessor's reasonable discretion
and shall contain conclusions reasonably satisfactory to the Lessor as to the
environmental status of the Property. If such Environmental Audit indicates any
material exceptions reasonably requiring remedy or further investigation, the
Lessee shall have also delivered a Phase Two environmental assessment by such
environmental consultant prior to the Expiration Date showing the completion of
the remediation of such exceptions, if any, in compliance with Environmental
Laws or such further investigation as required.
(c) On the date of the Lessee's notice to the Lessor of the Lessee's
exercise of the Remarketing Option, no Lease Event of Default or Lease Default
shall exist, and thereafter, no uncured Lease Event of Default or Lease Default
shall exist.
(d) The Lessee shall have completed in all material respects all
restoration and rebuilding of the Property pursuant to Section 15.1(e) and shall
---------------
have fulfilled in all material respects all of the conditions and requirements
in connection therewith pursuant to said Sections, by the date on which the
Lessor receives the Lessee's notice of the Lessee's exercise of the Remarketing
Option (time being of the essence), regardless of whether the same shall be
within the Lessee's control. The Lessee shall have also paid the cost of all
restoration and remodeling commenced prior to the Expiration Date. The Lessee
shall not have been excused pursuant to Section 13.1 from complying with any
------------
Applicable Law that involved the extension of the ultimate imposition of such
Applicable Law beyond the last day of the Term. Any Permitted Exceptions on the
Property that were contested by the Lessee shall have been removed.
(e) During the Marketing Period, the Lessee shall, as nonexclusive
agent for the Lessor, use commercially reasonable efforts to sell the Lessor's
interest in the Property on or prior to the Expiration Date (without diminishing
the Lessee's obligation to consummate the sale on the Expiration Date) and will
attempt to obtain the highest purchase price therefor and for not less than the
Fair Market Sales Value. The Lessee will be responsible for hiring and
compensating brokers and making the Property available for inspection by
prospective purchasers. The Lessee shall promptly upon request permit inspection
of the Property and any maintenance records relating to the Property by the
Lessor, any Participant and any potential purchasers, and shall otherwise do all
things necessary to sell and deliver possession of the Property to any
purchaser. All such marketing of the Property shall be at the Lessee's sole
expense. The Lessee shall allow the Lessor and any potential qualified purchaser
reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor and the Agent, and
the Lessor will have the right to review the same and the right to submit any
one or more bids. All bids shall be on an all-cash basis unless the Lessor, the
Agent and the Participants shall otherwise agree in their sole discretion. The
Lessee shall procure bids from one or more bona fide prospective purchasers and
shall deliver to the Lessor and the Agent not less than ninety (90) days prior
to the Expiration Date a binding written unconditional (except as set forth
below), irrevocable offer by such purchaser or purchasers offering the highest
bid to purchase the Property. No such purchaser shall be the Lessee, or any
Subsidiary or Affiliate of the Lessee. The written offer must specify the
Expiration Date as the closing date unless the Lessor, the Agent and the
Participants shall otherwise agree in their sole discretion.
35
(g) In connection with any such sale of the Property, the Lessee will
provide to the purchaser all customary "seller's" indemnities, representations
and warranties regarding title, absence of Liens (except Lessor Liens) and the
condition of the Property, as well as such other terms and conditions as may be
negotiated between the Lessee and the purchaser. The Lessee shall have obtained,
at its cost and expense, and with the reasonable cooperation of Lessor, all
required governmental and regulatory consents and approvals and shall have made
all filings as required by Applicable Law in order to carry out and complete the
transfer of the Property. As to the Lessor, any such sale shall be made on an
"as is, with all faults" basis without representation or warranty by the Lessor
other than the absence of Lessor Liens and Liens created by the Operative
Documents. Any agreement as to such sale shall be made subject to the Lessor's
rights hereunder.
(h) The Lessee shall pay directly, and not from the sale proceeds,
all prorations, credits, costs and expenses of the sale of the Property, whether
incurred by the Lessor, the Participants or the Lessee, including without
limitation, the cost of all title insurance, surveys, environmental reports,
appraisals, transfer taxes, the Lessor's, the Participants' and the Agent's
reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow
fees, recording fees, and all applicable documentary and other transfer taxes
(except the foregoing shall not prevent the Lessee from negotiating for the
Person buying the Property to bear some or all of such costs).
(i) The Lessee shall pay to the Agent on the Expiration Date (or to
such other Person as the Lessor shall notify the Lessee in writing, or in the
case of Supplemental Rent, to the Person entitled thereto) an amount equal to
the Residual Value Guarantee Amount, plus (without duplication) all Rent and all
----
other amounts hereunder which have accrued or will accrue prior to or as of the
Expiration Date, in the type of funds specified in Section 3.4 hereof.
-----------
(j) If, within ninety (90) days prior to the Expiration Date, it is
determined (based upon the highest bid by a purchaser to purchase the Property
pursuant to paragraph (f) of this Section 22.1) that there would, after giving
------------- ------------
effect to the proposed sale of the Property, be a Shortfall Amount, the Lessee
(i) shall cause to be delivered to the Lessor and the Agent the End of Term
Report required by Section 13.2 of the Participation Agreement and (ii) shall on
the Expiration Date pay to the Agent (or to such other person as the Lessor
shall notify the Lessee in writing), the amounts (not to exceed the Shortfall
Amount) required to be paid pursuant to Section 13.2 of the Participation
Agreement.
(k) The purchase of the Property shall be consummated on the
Expiration Date following the payment by the Lessee pursuant to paragraphs (i)
--------------
and (j) above and contemporaneously with the Lessee's surrender of the Property
---
pursuant to Section 19.1(b) and the gross proceeds (the "Gross Proceeds") of the
--------------- --------------
sale of the Property (i.e., without deduction for any marketing, closing or
other costs, prorations or commissions) shall be paid directly to the Agent.
(l) The Lessee shall not be entitled to exercise or consummate the
Remarketing Option if a circumstance that would permit the Lessor to require the
Lessee to repurchase the Property under Section 16.3 exists and is continuing.
------- ----
36
(m) No subleases affecting the Property shall be in effect on the
Expiration Date.
(n) If the payment made by the Lessee pursuant to this Section 22.1
is equal to the sum of the Termination Value plus all other amounts owing in
respect of Rent (including Supplemental Rent) theretofore accruing, the Lessor
shall transfer, free and clear of Lessor Liens and Liens under the Operative
Documents to the Lessee's designee, all of the Lessor's right, title and
interest in and to the Property in accordance with Section 19.1(a).
---------------
If one or more of the foregoing provisions shall not be fulfilled as of the
date set forth above, then the Lessor shall declare by written notice to the
Lessee the Remarketing Option to be null and void (whether or not it has been
theretofore exercised by the Lessee) as to the Property, in which event all of
the Lessee's rights under this Section 22.1 shall immediately terminate and the
------------
Lessee shall be obligated to vacate the Property on the Expiration Date and
comply with the obligations set forth in Section 22.3. Except as expressly set
forth herein, the Lessee shall have no right, power or authority to bind the
Lessor in connection with any proposed sale of the Property.
If the Lessee has paid the Residual Value Guarantee Amount as required
herein, proceeds from a sale of the Property pursuant to the Remarketing Option
or, if not sold as provided in this Section 22.1 from a sale of the Property
------------
occurring thereafter shall be distributed as provided in Section 3.14 of the
Participation Agreement.
22.2 Certain Obligations Continue. During the Marketing Period, the
----------------------------
obligation of the Lessee to pay Rent (including the installment of Basic Rent
due on the fifth anniversary of the Closing Date or at the end of any Renewal
Term, as the case may be) shall continue undiminished until payment in full to
the Lessor, for deposit into an account with the Agent, of the Gross Proceeds,
the Residual Value Guarantee Amount and (without duplication) all other amounts
due to the Lessor with respect to the Property under the Operative Documents.
The Lessor shall have the right, but shall be under no duty, to solicit bids, to
inquire into the efforts of the Lessee to obtain bids or otherwise to take
action in connection with any such sale, other than as expressly provided in
this Article XXII.
------------
22.3 Support Obligations. In the event that (A) the Lessee does not elect
-------------------
to purchase the Property on the Expiration Date, (B) this Lease is terminated
without a purchase of the Property by the Lessee as expressly permitted herein,
or (C) pursuant to the Lessor's exercise of remedies under Article XVII, this
------------
Lease is terminated, the Lessee shall, upon the request of the Lessor, exercise
all commercially reasonable efforts to provide the Lessor or other purchaser of
the Property, effective on the Expiration Date or earlier termination of this
Lease, with (i) all permits, certificates of occupancy, governmental licenses
and authorizations necessary to use and operate the Property for its intended
purposes (to the extent such items are transferable), (ii) such easements,
licenses, rights-of-way and other rights and privileges in the nature of an
easement as are reasonably necessary or desirable in connection with the use,
repair, access to or maintenance of the Property, and (iii) any service
agreements, contracts or subcontracts in existence at such time relating to the
use and operation of the Property, in each case to the extent assignable. All
assignments, licenses, easements, agreements and other deliveries required by
clauses (i), (ii) and (iii) of this Section 22.3 shall be in form satisfactory
------------
to the Lessor and shall be fully assignable
37
(including both primary assignments and assignments given in the nature of
security) without payment of any fee, cost or other charge.
ARTICLE XXIII.
23.1 Holding Over. If the Lessee shall for any reason remain in possession
------------
of the Property after the expiration or earlier termination of this Lease
(unless the Property is conveyed to the Lessee), such possession shall be as a
tenancy at sufferance during which time capitalized interest and yield shall
continue to accrue, to the extent such possession occurs prior to the Basic Term
Commencement Date, or the Lessee shall pay as Supplemental Rent, to the extent
such possession occurs from and after the Basic Term Commencement Date, that
would be payable by the Lessee hereunder were the Lease then in full force and
effect and the Lessee shall continue to pay Basic Rent (or capitalized interest
and yield shall continue to accrue) at an annual rate equal to 110% of the
average rate of Basic Rent (or capitalized interest and yield) payable hereunder
during the Basic Term or prior to the Basis Term Commencement Date, as the case
may be. Such Basic Rent shall be payable from time to time upon demand by the
Lessor. During any period of tenancy at sufferance, the Lessee shall, subject to
the second preceding sentence, be obligated to perform and observe all of the
terms, covenants and conditions of this Lease, but shall have no rights
hereunder other than the right, to the extent given by law to tenants at
sufferance, to continue its occupancy and use of the Property. Nothing contained
in this Article XXIII shall constitute the consent, express or implied, of the
-------------
Lessor to the holding over of the Lessee after the expiration or earlier
termination of this Lease (unless the Property is conveyed to the Lessee), and
nothing contained herein shall be read or construed to relieve the Lessee of its
obligations to purchase or remarket the Property on the Expiration Date pursuant
to Article XX or Article XXII or as preventing the Lessor from maintaining a
---------- ------------
suit for possession of the Property or exercising any other remedy available to
the Lessor at law or in equity or hereunder.
ARTICLE XXIV.
24.1 Risk of Loss. The Lessee assumes all risks of loss arising from any
------------
Casualty or Condemnation which arises or occurs prior to the Basic Term
Commencement Date or while the Lessee is in possession of the Property and all
liability for all personal injuries and deaths and damages to property suffered
by any Person or property on or in connection with the Property which arises or
occurs prior to the Basic Term Commencement Date or while the Lessee is in
possession of the Property, except in each case to the extent any such loss or
liability is primarily caused by the gross negligence or willful misconduct of a
Lessor Party; provided, however, that the Lessee shall have no obligation under
-------- -------
this Section 24.1 on account of any such loss or liability arising prior to the
------------
Basic Term Commencement Date, except as follows:
(i) The Lessee shall be liable to the Lessor under this Section
-------
24.1 for all such losses and liabilities Within the Lessee's Control,
----
subject to the following:
(A) if any such loss or liability is not related to an
inability or failure to complete construction of any Improvements
(or if such loss or liability is related to an inability or
failure to complete construction of any Improvements but also
constitutes or arises out of a Fully Indemnifiable
38
Event), the Lessee's obligations in this Section 24.1 shall not
------------
be subject to any monetary limitation; and
(B) if such loss or liability is related to an inability or
failure to complete construction of any Improvements and such
loss or liability does not constitute or arise out of a Fully
Indemnifiable Event, the Lessee's monetary obligation provided in
this Section 24.1, together with all other amounts payable under
------------
clause (5)(A)(ii) of Section 13.1 of the Participation Agreement
or Section 13.10 of the Participation Agreement and any similarly
limited payment obligation of the Lessee in connection with the
return or sale of the Property under this Lease shall not exceed
the maximum Residual Value Guarantee Amount.
(ii) If any Lessor Party incurs any such loss or liability for
which the Lessee is not liable pursuant to this Section 24.1, the
------------
amount of such loss or liability shall, if such Lessor Party shall so
request by a written notice to the Lessor and the Lessor shall give
its prior written consent thereto, be capitalized pursuant to Section
3.7(e)(ii) of the Participation Agreement.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE LESSEE HEREBY WAIVES THE PROVISIONS
OF THE CALIFORNIA CIVIL CODE SECTIONS 1932(1), 1932(2) AND 1933(4), AND ANY AND
ALL OTHER APPLICABLE EXISTING OR FUTURE LAWS, ORDINANCES AND GOVERNMENTAL
REGULATIONS PERMITTING THE TERMINATION OF THIS LEASE AS A RESULT OF THE DAMAGE
OR DESTRUCTION OF THE PROPERTY BY FIRE, THE ELEMENTS, CASUALTIES, THEFTS, RIOTS,
WARS OR OTHERWISE, AND THE LESSOR SHALL IN NO EVENT BE ANSWERABLE OR ACCOUNTABLE
FOR ANY RISK OF LOSS OF OR DECREASE IN THE ENJOYMENT AND BENEFICIAL USE OF THE
PROPERTY AS A RESULT OF ANY SUCH EVENT.
ARTICLE XXV.
25.1 Subletting and Assignment. The Lessee may, without the consent of the
-------------------------
Lessor, sublease the Property or portion thereof to any Person, provided, that
--------
no such sublease shall, in the opinion of the Lessor, adversely affect any of
the Lessor's interests, rights or remedies under the Lease or the Lessor's title
to or interest in the Property. No assignment, sublease or other relinquishment
of possession of the Property shall in any way discharge or diminish any of the
Lessee's obligations to the Lessor hereunder and the Lessee shall remain
directly and primarily liable under this Lease as to the Property, or portion
thereof, so assigned or sublet. Any sublease of the Property shall be made
subject to and subordinated to this Lease and to the rights of the Lessor
hereunder, shall expressly provide for termination at or prior to the earlier of
the applicable Expiration Date or other date of termination of this Lease unless
the Lessee shall have purchased the Property pursuant to Article XX. No assignee
----------
or sublessee shall use the Property in a manner which is substantially different
from the manner in which the Property is used or intended for use by the Lessee
or in any manner not otherwise permitted under Section 8.2, without the prior
-----------
written consent of the Lessor.
39
ARTICLE XXVI.
26.1 Estoppel Certificates. At any time and from time to time upon not
---------------------
less than twenty (20) days' prior request by the Lessor or the Lessee (the
"Requesting Party"), the other party (whichever party shall have received such
----------------
request, the "Certifying Party") shall furnish to the Requesting Party (but not
----------------
more than four times per year unless required to satisfy the requirements of any
sublessees and only to the extent that the required information has been
provided to the Certifying Party by the other party) a certificate signed by an
individual having the office of vice president or higher in the Certifying Party
certifying that this Lease is in full force and effect (or that this Lease is in
full force and effect as modified and setting forth the modifications); the
dates to which the Basic Rent and Supplemental Rent have been paid; to the best
knowledge of the signer of such certificate, whether or not the Requesting Party
is in default under any of its obligations hereunder (and, if so, the nature of
such alleged default); and such other matters under this Lease as the Requesting
Party may reasonably request. Any such certificate furnished pursuant to this
Article XXVI may be relied upon by the Requesting Party, and any existing or
------------
prospective mortgagee, purchaser or lender, and any accountant or auditor, of,
from or to the Requesting Party (or any Affiliate thereof).
ARTICLE XXVII.
27.1 Right to Inspect. During the Term, the Lessee shall upon reasonable
----------------
notice from the Lessor (such notice to be given five (5) Business Days in
advance, except in case of emergency or where a Lease Event of Default has
occurred and is continuing), permit the Lessor, the Agent and their respective
authorized representatives to inspect the Property during normal business hours
and so long as no Event of Default has occurred and is continuing, such
inspections shall be not more than once each quarter, provided that such
inspections shall not unreasonably interfere with the Lessee's business
operations at the Property, and provided, further that the Lessee may, if it so
chooses, be present during such inspections.
27.2 No Waiver. No failure by the Lessor or the Lessee to insist upon the
---------
strict performance of any term hereof or to exercise any right, power or remedy
upon a default hereunder, and no acceptance of full or partial payment of Rent
during the continuance of any such default, shall constitute a waiver of any
such default or of any such term. To the fullest extent permitted by law, no
waiver of any default shall affect or alter this Lease, and this Lease shall
continue in full force and effect with respect to any other then existing or
subsequent default.
ARTICLE XXVIII.
28.1 Acceptance of Surrender. No surrender to the Lessor of this Lease or
-----------------------
of all or any portion of the Property or of any part thereof or of any interest
therein shall be valid or effective unless agreed to and accepted in writing by
the Lessor and, prior to the payment or performance of all obligations under the
Participation Agreement and termination of the Commitments, the Agent, and no
act by the Lessor or the Agent or any representative or agent of the Lessor or
the Agent, other than a written acceptance, shall constitute an acceptance of
any such surrender.
40
ARTICLE XXIX.
29.1 No Merger of Title. There shall be no merger of this Lease or of the
------------------
leasehold estate created hereby by reason of the fact that the same Person may
acquire, own or hold, directly or indirectly, in whole or in part, (a) this
Lease or the leasehold estate created hereby or any interest in this Lease or
such leasehold estate, or (b) any estate of others in the Property created by
any sublease permitted under this Lease, except as may expressly be stated in a
written instrument duly executed and delivered by the appropriate Person.
ARTICLE XXX.
30.1 Notices. All notices, demands, requests, consents, approvals and other
-------
communications hereunder shall be in writing and delivered (i) personally, (ii)
by a nationally recognized overnight courier service, (iii) by mail (by
registered or certified mail, return receipt requested, postage prepaid) or (iv)
by facsimile, addressed to the respective parties, as follows:
If to the Lessee:
BEA Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Vice President of Real Estate and Corporate Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
BEA Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Vice President - Legal
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Lessor:
ABN AMRO Leasing, Inc.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
41
If to the Agent:
ABN AMRO Bank N.V.
Agency Services Department
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxx
Telephone (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
ABN AMRO BANK N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
ABN AMRO Bank N.V.
Credit Administration
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such additional parties and/or other address as such party may hereafter
specify in writing in accordance with this Lease, and shall be effective upon
receipt or refusal thereof.
ARTICLE XXXI.
31.1 Miscellaneous. Anything contained in this Lease to the contrary
-------------
notwithstanding, all claims against and liabilities of the Lessee or the Lessor
arising from events commencing prior to the expiration or earlier termination of
this Lease shall survive such expiration or earlier termination. If any term or
provision of this Lease or any application thereof shall be declared invalid or
unenforceable, the remainder of this Lease and any other application of such
term or provision shall not be affected thereby. If any right or option of the
Lessee provided in this Lease, including any right or option described in
Articles XV, XVI, XX, XXI or XXII, would, in the absence of the limitation
----------- --- -- --- ----
imposed by this sentence, be invalid or unenforceable as being in violation of
the rule against perpetuities or any other rule of law relating to the vesting
of an interest in or the suspension of the power of alienation of property, then
such right or option shall be exercisable only during the period which shall end
twenty-one (21) years after the date of death of the last survivor of the
descendants of Xxxxxxxx X. Xxxxxxxxx, the former president of the United States,
Xxxxx Xxxx, the deceased automobile manufacturer, and Xxxx X. Xxxxxxxxxxx, the
42
founder of the Standard Oil Company, known to be alive on the date of the
execution, acknowledgment and delivery of this Lease.
31.2 Amendments and Modifications. Subject to the requirements,
----------------------------
restrictions and conditions set forth in the Participation Agreement, neither
this Lease, any Lease Supplement nor any provision hereof may be amended,
waived, discharged or terminated except by an instrument in writing in
recordable form signed by the Lessor and the Lessee.
31.3 Successors and Assigns. All the terms and provisions of this Lease
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
31.4 Headings and Table of Contents. The headings and table of contents
------------------------------
in this Lease are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
31.5 Counterparts. This Lease may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
31.6 GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California without reference to
conflicts of law rules.
31.7 Limitations on Recourse. The parties hereto agree that the Lessor
-----------------------
shall have no personal liability whatsoever to the Lessee or its respective
successors and assigns for any claim based on or in respect of this Lease or any
of the other Operative Documents or arising in any way from the transactions
contemplated hereby or thereby; provided, however, that the Lessor shall be
-------- -------
liable in its individual capacity (a) for its own willful misconduct or gross
negligence (or negligence in the handling of funds), (b) for liabilities that
may result from the incorrectness of any representation or warranty expressly
made by it in Section 8.1 of the Participation Agreement or from the failure of
the Lessor to perform its covenants and agreements set forth in Section 10.4(a)
of the Participation Agreement, or (c) for any Taxes based on or measured by any
fees, commission or compensation received by it for acting as the Lessor as
contemplated by the Operative Documents. It is understood and agreed that,
except as provided in the preceding proviso: (i) the Lessor shall have no
personal liability under any of the Operative Documents as a result of acting
pursuant to and consistent with any of the Operative Documents; (ii) all
obligations of the Lessor to the Lessee are solely nonrecourse obligations
except to the extent that it has received payment from others and are
enforceable solely against the Lessor's interest in the Property; and (iii) all
such personal liability of the Lessor is expressly waived and released as a
condition of, and as consideration for, the execution and delivery of the
Operative Documents by the Lessor.
31.8 Original Lease. The single executed original of this Lease marked
--------------
"THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on the signature page
thereof and containing the receipt of the Agent therefor on or following the
signature page thereof shall be the Original Executed Counterpart of this Lease
(the "Original Executed Counterpart"). To the extent that this Lease constitutes
-----------------------------
chattel paper, as such term is defined in the Uniform Commercial Code as in
effect in any applicable jurisdiction, no security interest in
43
this Lease may be created through the transfer or possession of any counterpart
other than the Original Executed Counterpart.
[signature page follows]
44
IN WITNESS WHEREOF, the parties have caused this Lease be duly executed and
delivered as of the date first above written.
BEA SYSTEMS, INC.,
a Delaware corporation, as Lessee
By:______________________________
Name:____________________________
Title:___________________________
45
ABN AMRO LEASING, INC.,
an Illinois corporation, as Lessor
By:_______________________________
Name:_____________________________
Title:____________________________
STATE OF _________ )
) SS.:
COUNTY OF ______ )
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared _______________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged [himself/herself] to be a _______________ of
ABN AMRO LEASING, INC., the within named bargainor, a corporation, and that
[he/she] as such __________________, being duly authorized so to do, executed
the foregoing instrument for the purposes therein contained by signing the name
of the corporation by [himself/herself] as such Vice President.
WITNESS my hand and seal, at office, on this the ____ day of _______,
2001.
______________________________
Notary Public
My Commission Expires:
____________________________
47
STATE OF ___________ )
) SS.:
COUNTY OF _________ )
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared __________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged [himself/herself] to be the _________ of BEA
SYSTEMS, INC., the within named bargainor, a corporation, and that [he/she] as
such _________, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by [himself/herself] as such _________.
WITNESS my hand and seal, at office, on this the ____ day of ______,
2001.
______________________________
Notary Public
My Commission Expires:
____________________________
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of __________________, 2001.
ABN AMRO BANK N.V., as Agent
By:_________________________
Name:_______________________
Title:______________________
By:_________________________
Name:_______________________
Title:______________________
--------------------------------------------------------------------------------------------------
Recording requested by, and when
recorded, please return to:
McGuireWoods LLP
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ATTN: W. Xxxx Xxxxx, Esq.
--------------------------------------------------------------------------------------------------
(Space Above This Line Reserved for Recorder's Use Only)
LEASE SUPPLEMENT NO. 1,
MEMORANDUM OF LEASE, DEED OF TRUST AND SECURITY AGREEMENT
THIS LEASE SUPPLEMENT NO. 1, MEMORANDUM OF LEASE, DEED OF TRUST AND
SECURITY AGREEMENT (this "Lease Supplement") dated as of February 13, 2001
----------------
between ABN AMRO LEASING, INC., an Illinois corporation, not in its individual
capacity but solely as lessor (the "Lessor") and BEA SYSTEMS, INC., a Delaware
------
corporation, as lessee (the "Lessee").
------
WHEREAS, the Lessor is the fee owner of the Land Interest described on
Schedule 1 hereto (the "Land Interest") and wishes to lease the Land Interest to
-------------
the Lessee; and
WHEREAS, the Lessee desires to grant a deed of trust lien on its leasehold
interest in the Land Interest created by the Lease to Chicago Title Company, as
Trustee (the "Trustee") for the benefit of the Lessor to secure the Obligations
-------
(as hereinafter defined) of the Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions; Interpretation. For purposes of this Lease
---------------------------
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix 1 to the Master Lease, dated as
of February 13, 2001, between the Lessee and the Lessor; and the rules of
interpretation set forth in Appendix 1 to the Lease shall apply to this Lease
Supplement.
SECTION 2. Land Interest. Attached hereto as Schedule 1 is the
-------------
description of a certain Land Interest. Effective upon the execution and
delivery of this Lease Supplement by the Lessor and the Lessee, the Property
shall be subject to the terms and provisions of the Lease. Subject to the terms
and conditions of the Lease, the Lessor hereby leases to the Lessee for the Term
(as defined below) of the Lease, the Lessor's interest in the Land Interest, and
the Lessee hereby agrees, expressly for the direct benefit of the Lessor, to
lease from the Lessor for the Term, the Lessor's interest in the Land Interest.
SECTION 3. Parties and Addresses. The Lease is dated as of February 13,
---------------------
2001, between the Lessor, whose principal office is at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 and the Lessee, whose principal office is 0000 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000.
SECTION 4. Lease Term. The term of the Lease (the "Term") shall consist
---------- ----
of an Agency Term beginning on the February 13, 2001 and ending on the earlier
of the Completion of Construction and February 13, 2003, and a Basic Term
commencing on the day following the last day of the Agency Term and ending on
February 13, 2006 unless the Term is renewed or earlier terminated in accordance
with the provisions of the Lease. The Lease contains two option periods of one
year each which gives the Lessee the right, with the Participants' prior written
consent and subject to the terms thereof, to extend the term of the Lease to no
later than February 13, 2008.
SECTION 5. Ownership of the Property.
-------------------------
(a) It is the intent of the parties hereto that: (i) the Lease constitutes
an "operating lease" pursuant to Statement of Financial Accounting Standards No.
13, as amended and interpreted, for purposes of the Lessee's financial
reporting, and (ii) for purposes of federal, state, local and foreign Taxes,
including without limitation income or franchise taxes (and any other tax
imposed on or measured by income, including any withholding taxes), and
documentary, intangibles, and transfer taxes, the transaction contemplated
hereby is a financing arrangement and preserves ownership in the Property in the
Lessee. Each of the Parties agrees that it will not, nor will any Person
controlled by it, or under common control with it, directly or indirectly, at
any time take any action or fail to take any action with respect to the filing
of any Tax return, report or other statement, including any income or franchise
tax return or amended income or franchise tax return, inconsistent with the
intention of the parties expressed in this Section 5.1(a) unless, in the case of
Lessor or any Participant, required to do so by an appropriate taxing authority
or after a clearly applicable change in law or as a protective response to a
proposed adjustment by a Governmental Authority, provided, however, that if an
appropriate taxing authority shall require Lessor or any Participant to claim
any tax attributes or benefits, such Person shall promptly notify Lessee thereof
and shall permit Lessee to contest such requirement in a manner consistent with
the contest provisions of Section 13.5(f). Nevertheless, the Lessee acknowledges
and agrees that neither the Agent, the Lessor nor any Participant has made any
representations or warranties to the Lessee concerning the tax, accounting or
legal characteristics of the Operative Documents and that the Lessee has
obtained and relied upon such tax, accounting and legal advice concerning the
Operative Documents as it deems appropriate.
(b) Anything to the contrary in the Operative Documents notwithstanding,
the Lessor and the Lessee intend and agree that with respect to the nature of
the transactions evidenced by the Lease in the context of federal, state and
local Taxes and in the context of the exercise of remedies under the Operative
Documents, including, without limitation, in the case of any insolvency or
receivership proceedings or a petition under the United States bankruptcy laws
or any other applicable insolvency laws or statute of the United States of
America or any State or Commonwealth thereof or any foreign country affecting
the Lessee, the Lessor, or any Participant or any enforcement or collection
actions arising out of or relating to bankruptcy or insolvency laws, (i) the
transactions evidenced by the Lease shall be deemed to be loans made by the
Lessor and the Participants as unrelated third party lenders to the Lessee
secured by the
2
Property, (ii) the obligations of the Lessee under the Lease to pay Basic Rent,
Supplemental Rent, Asset Termination Value, Purchase Option Price, Partial
Purchase Option Price or Residual Value Guarantee Amount in connection with a
purchase of the Property pursuant to the Lease shall be treated as payments of
interest on and principal of, respectively, loans from the Lessor and the
Participants to the Lessee, and (iii) the Lease grants a security interest and
mortgage or deed of trust or lien, as the case may be, in the Property to the
Lessor and assigned by the Lessor to the Agent for the benefit of the
Participants to secure the Lessee's performance under and payment of all amounts
under the Lease and the other Operative Documents.
(c) Specifically, without limiting the generality of subsections (a) and
-------------------
(b) of this Section 5, the parties hereto intend and agree that, for purposes of
--- ---------
filing federal, state and local returns, reports and other statements relating
to income or franchise taxes, or any other taxes imposed upon or measured by
income, (i) the Lessee shall be entitled to take any deduction, credit,
allowance or other reporting position consistent with its status as owner of the
Property; and (ii) neither the Lessor nor any Participant shall take an initial
position on its federal, state and local returns, reports and other statements
relating to income or franchise taxes that is inconsistent with the Lessee's
status as owner of the Property.
(d) [Reserved.]
(e) In the event that, after the date hereof, the UCC as enacted and in
effect in any applicable jurisdiction shall be revised or amended, the Lessee,
the Lessor, the Agent and the Participants shall negotiate in good faith to
enter into such amendments to the Operative Documents as may be reasonably
necessary or desirable to reflect or otherwise address such revisions or
amendments.
(f) Specifically, without limiting the generality of subsection (b) of this
Section 5, in order to secure the Lessee's obligation to pay Basic Rent,
---------
Supplemental Rent, Asset Termination Value, the Residual Value Guarantee Amount,
the Purchase Option Price, the Partial Purchase Option Price, and all other
obligations owing by the Lessee under the Operative Documents (the
"Obligations"), the Lessee hereby grants, conveys, sells, transfers, assigns and
-----------
sets over unto the Trustee for the benefit of the Lessor, WITH POWER OF SALE and
right of entry and possession, all of the Lessee's right, title and interest in
and to the following (collectively, the "Collateral"):
----------
(i) all right, title and interest of the Lessee in and to the Property
or any part thereof and the reversions, remainders, rents, issues and
profits thereof;
(ii) all right, title and interest of the Lessee in and to all
substitutes and replacements of, and all additions and improvements to, any
Improvements and the Fixtures, subsequently acquired by the Lessee or
constructed, assembled or placed on the Land Interest, immediately upon
such acquisition, release, construction, assembling or placement,
including, without limitation, any and all building materials whether
stored at the Property or offsite, and, in each such case, without any
further mortgage, conveyance, assignment or other act by the Lessee;
3
(iii) all right, title and interest of the Lessee in, to and under
all books and records relating to or used in connection with the operation
of the Property or any Fixtures or any part thereof;
(iv) all right, title and interest of the Lessee in and to all
insurance policies (including title insurance policies) required to be
maintained by the Lessee pursuant to the Lease, including the right to
collect and receive such proceeds; and all awards and other compensation,
including the interest payable thereon and the right to collect and receive
the same, made to the owner of the Property for the taking by eminent
domain, condemnation or otherwise, of all or any part of the Property or
any easement or other right therein;
(v) all right, title and interest of the Lessee in and to (i) all
consents, licenses, building permits, certificates of occupancy and other
governmental approvals relating to construction, completion, occupancy, use
or operation of the Property or any part thereof, provided that any such
--------
consent, license, permit, certificate or approval that by its terms or by
operation of law would become void, voidable, terminable or revocable or
would result in a breach or default thereunder or under any applicable law
if subjected to the lien granted pursuant to this clause (v) is expressly
----------
excepted and excluded from this clause (v) to the extent necessary to avoid
----------
such result, and (ii) all plans and specifications relating to the
Property, in each case to the extent assignable;
(vi) all Rent and all other rents, payments, purchase prices,
receipts, revenues, issues and profits payable under this Lease or pursuant
to any other lease with respect to the Property;
(vii) all proceeds, both cash and noncash, of the foregoing and any
items acquired in substitution of, or replacement for, any of the
foregoing; and
(viii) all right, title and interest of the Lessee in and to all of
the Operative Documents, including, without limitation, the Lease
Supplement, regardless of whether the interest of the Lessee therein is
that of lessee, sublessee, sublessor or borrower.
(g) Specifically, without limiting the generality of subsection (b) of the
Section 5, the Lessor and the Lessee further intend and agree that, for the
---------
purpose of securing the Lessee's obligations for the repayment of the loans from
the Lessor and the Participants to the Lessee, (i) the Lease shall also be
deemed to be a security agreement and financing statement within the meaning of
Article 9 of the Uniform Commercial Code (and specifically, a construction
mortgage, as said term is defined in Section 9-313(1)(c) of the Uniform
Commercial Code), a fixture filing and a real property mortgage or deed of trust
of the Property; (ii) the conveyance provided for in Article II of the Lease
shall be deemed to be a grant by the Lessee to the Lessor and assigned by the
Lessor to the Agent for the benefit of the Participants, of a mortgage lien and
security interest in all of the Lessee's right, title and interest in and to the
Property, except to the extent that all or a portion of the Property is released
from the Lease in accordance with the Operative Documents, and all proceeds of
the conversion, voluntary or involuntary, of the foregoing into cash,
investments, securities or other property, whether in the form of cash,
investments, securities or other property (it being understood that the Lessee
hereby mortgages
4
and warrants and grants a security interest in the Property to Lessor to secure
such loans); (iii) the possession by the Lessor or any of its agents of any
notes and such other items of the Collateral as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the Uniform Commercial Code; and (iv) notifications to Persons
holding such property, and acknowledgments, receipts or confirmations from
financial intermediaries, bankers or agents (as applicable) of the Lessee shall
be deemed to have been given for the purpose of perfecting such security
interest under Applicable Law. The Lessor and the Lessee shall, to the extent
consistent with the Lease, take such actions and execute, deliver, file and
record such other documents, financing statements, mortgages and deeds of trust
as may be necessary to ensure that, if the Lease were deemed to create a
security interest in the Property in accordance with this Section, such security
interest would be deemed to be a perfected security interest of first priority
under Applicable Law and will be maintained as such throughout the Term.
SECTION 6. Lease Events of Default and Remedies. Sections 17.2 through
------------------------------------ ---------------------
17.5 of the Lease, which are hereby incorporated by reference, set forth the
----
remedies available to the Lessor and the Trustee in the event of a Lease Event
of Default.
SECTION 7. Purchase Option. Sections 17.2(i) and Article XX of the Lease
--------------- ---------------- ----------
contain various purchase options which may be exercised by the Lessee during the
term of the Lease subject to the terms and conditions of said Sections of the
Lease.
SECTION 8. Liens. (a) THIS LEASE SUPPLEMENT IS SUPERIOR TO A DEED OF TRUST
-----
IN FAVOR OF ABN AMRO BANK N.V., AS AGENT (THE "AGENT") UNDER THE PARTICIPATION
-----
AGREEMENT DATED AS OF FEBRUARY 13, 2001 AS AMENDED OR SUPPLEMENTED, BETWEEN THE
LESSOR, THE AGENT AND THE TRUSTEE NAMED THEREIN.
(b) NOTICE IS HEREBY GIVEN THAT NEITHER THE LESSOR, ANY PARTICIPANT NOR
THE AGENT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED
OR TO BE FURNISHED TO THE LESSEE, OR TO ANYONE HOLDING THE PROPERTY OR ANY PART
THEREOF THROUGH OR UNDER THE LESSEE, AND THAT NO MECHANICS' OR OTHER LIENS FOR
ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF
THE LESSOR IN AND TO THE PROPERTY.
SECTION 9. Ratification. Except as specifically modified hereby, the
------------
terms and provisions of the Lease are hereby ratified and confirmed and remain
in full force and effect.
SECTION 10. Original Lease Supplement. The single executed original of
-------------------------
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the Original
Executed Counterpart of this Lease Supplement (the "Original Executed
-----------------
Counterpart"). To the extent that this Lease Supplement constitutes chattel
-----------
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be
5
created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT
REFERENCE TO CONFLICTS OF LAW RULES.
SECTION 12. Counterpart Execution. This Lease Supplement may be executed
---------------------
in any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
SECTION 13. Incorporation by Reference. The terms and provisions of the
--------------------------
Lease are incorporated herein as if they were fully set forth herein and are
made a part of this Lease Supplement.
SECTION 14. Receipt. The Lessee hereby declares and acknowledges that the
-------
Lessee has received, without charge, a true copy of the Lease and this Lease
Supplement No. 1.
SECTION 15. Substitution of Trustee. From time to time, by a writing
-----------------------
signed and acknowledged by Lessor and recorded in the Office of the Recorder of
the County in which the Property is situated, Lessor may with the prior written
consent of Lessee, which consent shall not be unreasonably withheld (except that
Lessee's consent shall not be required during the continuance of any Lease Event
of Default) appoint another trustee to act in the place and stead of Trustee or
any successor. Such writing shall refer to this Lease Supplement No. 1,
Memorandum of Lease, Deed of Trust and Security Agreement and set forth the
date, book and page of its recordation. The recordation of such instrument of
substitution shall discharge Trustee herein named and shall appoint the new
trustee as the trustee hereunder with the same effect as if originally named
Trustee herein. A writing recorded pursuant to the provisions of this paragraph
shall be conclusive proof of the proper substitution of such new trustee.
[signature page follows]
6
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
BEA SYSTEMS, INC.,
a Delaware corporation, as Lessee
By:________________________________
Name:______________________________
Title:_____________________________
ABN AMRO LEASING, INC.,
an Illinois corporation, as Lessor
By:________________________________
Name:______________________________
Title:_____________________________
STATE OF _________ )
) SS.:
COUNTY OF _________ )
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared _______________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged [himself/herself] to be a _____________ of ABN
AMRO LEASING, INC., the within named bargainor, a corporation, and that [he/she]
as such _________________, being duly authorized so to do, executed the
foregoing instrument for the purposes therein contained by signing the name of
the corporation by [himself/herself] as such Vice President.
WITNESS my hand and seal, at office, on this the ____ day of
_________, 2001.
______________________________
Notary Public
My Commission Expires:
____________________________
STATE OF _________ )
) SS.:
COUNTY OF _______ )
Before me, the undersigned, a Notary Public in and for the State and
County aforesaid, personally appeared _________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged [himself/herself] to be the _________ of BEA
SYSTEMS, INC., the within named bargainor, a corporation, and that [he/she] as
such _________, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by [himself/herself] as such _________.
WITNESS my hand and seal, at office, on this the ___ day of
__________, 2001.
______________________________
Notary Public
My Commission Expires:
____________________________
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease Supplement is hereby
acknowledged as of February ____, 2001.
ABN AMRO BANK N.V., as Agent
By:____________________________________
Name:__________________________________
Title:_________________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
SCHEDULE 1
TO LEASE SUPPLEMENT NO. 1
-------------------------
Land Interest Description
All that certain property in the City of San Xxxx, County of Santa Xxxxx, State
of California, described as follows:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map", which
Map was filed for record in the Office of the Recorder of the County of Santa
Xxxxx, State of California, on January 30, 2001, in Book 736 of Maps, at pages
30, 31 and 32.
EXHIBIT B TO THE LEASE
LEGAL DESCRIPTION OF LAND INTEREST
All that certain property in the City of San Xxxx, County of Santa Xxxxx, State
of California, described as follows:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map",
which Map was filed for record in the Office of the Recorder of the County
of Santa Xxxxx, State of California, on January 30, 2001, in Book 736 of
Maps, at pages 30, 31 and 32.
EXECUTION COPY
________________________________________________________________________________
APPENDIX 1
to
Amended and Restated Participation Agreement and
Amended and Restated Master Lease, each dated as of May 15, 2001
(San Jose, California Corporate Headquarters Land Acquisition)
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 Documents shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) of such conflict, the Participation Agreement
shall prevail and control.
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. Certain terms not defined herein are used as defined in the
applicable Operative Document.
"Account" is defined in Section 3.10 of the Participation Agreement.
-------
"Accountants" means Ernst & Young LLP or such other firm of independent
-----------
certified public accountants of recognized national standing selected by the
Lessee.
"Acquisition Request" is defined in Section 3.3 of the Participation
-------------------
Agreement.
"Adjusted Percentage" is defined in Section 11.7 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 Property Costs, including
all amounts capitalized under the terms of Section 3.7(e) of the Participation
Agreement.
"Adverse Proceeding" means any action, suit, proceeding (whether
------------------
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of the Lessee or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority
(including any Environmental Claims), whether pending or, to the knowledge of
the Lessee or its Subsidiaries, threatened against or affecting the Lessee or
any of its Subsidiaries or any property of the Lessee or any of its
Subsidiaries.
"Affiliate" shall mean, with respect to any Person, (a) each Person that,
---------
directly or indirectly, owns or controls, whether beneficially or as a trustee,
guardian or other fiduciary, ten percent (10%) or more of any class of Equity
Securities of such Person, (b) each Person that controls, is controlled by or is
under common control with such Person or any Affiliate of such
Person or (c) each of such Person's officers, directors, joint ventures and
partners; provided, however, that in no case shall the Lessor, the Agent or any
-------- -------
Participant be deemed to be an Affiliate of the Lessee or any of its
Subsidiaries for purposes of the Operative Documents. For the purpose of this
definition, "control" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise.
"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
federal and state income tax rates generally applicable to Persons of the same
type as the recipient (less any tax savings realized by the recipient as a
result of the payment of the indemnified amount) with respect to the receipt by
the recipient of such amounts, such increased payment (as so reduced) is equal
to the payment otherwise required to be made. In calculating any tax savings
realized by the recipient as a result of the payment of the indemnified amount,
such savings shall be treated as realized (i) if payment thereof is actually
received by the Indemnitee, or (ii) if at the time of the calculation of the
payment required to be made by the indemnifying party to the Indemnitee, the
Indemnitee shall have filed a tax return on which the item resulting in such
savings shall have been reported, provided however, that if it shall
--------
subsequently be determined that the Indemnitee is not entitled to such savings,
such lost savings shall be treated as an Imposition indemnifiable under the
Operative Documents notwithstanding any exclusion set forth in the definition of
Impositions.
"Agency Term" is defined in Section 2.3 of the Lease.
-----------
"Agent" means ABN AMRO Bank N.V., 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 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 any improvements on the Property.
"Agent Fee" is defined in Section 4.4 of the Participation Agreement.
---------
"Alternate Base Rate" means, for any period, an interest rate per annum
-------------------
equal to the higher of (a) the rate of interest most recently announced by the
Agent in the United States from time to time as its prime rate for calculating
interest on certain loans, which need not be the lowest interest rate charged by
the Agent and (b) the Federal Funds Effective Rate most recently determined by
the Agent plus .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.
"Applicable Law" means all existing and future domestic and foreign
--------------
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
all or any portion of the Property.
"Applicable Margin" means with respect to the Advances (and related
-----------------
purchases of Participation Interests therein) which bear interest or accrue
yield by reference to a Eurodollar Rate, the following respective margin
percentages, expressed in basis points per annum:
-----------------------------------------------------------------------------------------------------------------
Margin over Margin over
Ratio of LIBOR for LIBOR for Margin over LIBOR
Funded Debt/ EBITDA Tranches A-1 and B-1 Tranches A-2 and B-2 for Tranche C
-----------------------------------------------------------------------------------------------------------------
Greater or equal to 2.0x 275 35 375
-----------------------------------------------------------------------------------------------------------------
Greater or equal to 1.5x, but less 225 35 325
than 2.0x
-----------------------------------------------------------------------------------------------------------------
1.0x - 1.5x 200 35 300
-----------------------------------------------------------------------------------------------------------------
Less than 1.0x 175 35 275
-----------------------------------------------------------------------------------------------------------------
"Appraisal" means, with respect to the Property, an appraisal, prepared by
---------
a reputable appraiser approved by the Lessor and the Agent, which in the
judgment of counsel to the Lessor and the Agent, complies with all of the
provisions of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended, the rules and regulations adopted pursuant thereto, and all
other applicable Requirements of Law, which appraisal will appraise the Fair
Market Sales Value of the Property, as of the Land Interest Acquisition Date, as
of the Expiration Date, as of the commencement of any Renewal Term, if any, and
at the end of any Renewal Term, if any.
"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 the Land Interest or any improvements, if any, including, without limitation,
the use of any streets, ways, alleys, passages, sewer rights, waters, water
courses, water rights and powers, vaults or strips of land adjoining, abutting,
adjacent or contiguous to the Land Interest and (ii) all permits, licenses and
rights, whether or not of record, appurtenant to the Land Interest.
"Arranger" means ABN AMRO Bank N.V.
--------
"Arrangement Fee" is defined in Section 4.2 of the Participation Agreement.
---------------
"Asset Termination Value" means as of any date of determination, an amount
-----------------------
equal to the sum of the aggregate outstanding principal amount of the Advances,
all accrued and unpaid interest and yield thereon, and all other amounts owing
by the Lessee under the Operative Documents.
"Assignment and Acceptance" is defined in Section 12.1(b) of the
-------------------------
Participation Agreement.
"Assignment of Lease" means the Assignment of Lease, dated as of the
-------------------
Closing Date, from the Lessor to the Agent for the benefit of the Participants,
together with any supplements thereto, and consented to by the Lessee pursuant
to that certain Lessee's Consent, dated as of the Closing 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 K to
the Participation Agreement.
"Assignment of Purchase Agreement" means the Assignment of Purchase
--------------------------------
Agreement, dated as of the Closing Date, between Lessee and Lessor with respect
to the purchase of the Land Interest under the Property Purchase Agreement.
"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.
"Bankruptcy Code" means Title 11 of the United States Code entitled
---------------
"Bankruptcy," as now or hereafter in effect.
"Basic Rent" means after the Lease Commencement Date, the sum of the
----------
interest and yield on Advances due on any Payment Date as set forth in Section
3.7 of the Participation Agreement.
"Basic Term" is defined in Section 2.3 of the Lease.
----------
"Basic Term Commencement Date" means the first day of the Basic Term.
----------------------------
"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, New York, New York, San
Jose, 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 Asset" shall mean with respect to any Person, any tangible fixed
-------------
or capital asset owned or leased (in the case of a Capital Lease) by such
Person, or any expense incurred by such Person that is required by GAAP to be
reported as a non-current asset on such Person's balance sheet.
"Capital Expenditures" shall mean with respect to any Person and any
--------------------
period, all expenses accrued by such Person during such period for the
acquisition of Capital Assets (including all indebtedness incurred or assumed in
connection with Capital Leases).
"Capital Lease" means, as applied to any Person, any lease of any property
-------------
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is accounted for as a capital lease on the balance sheet of that
Person.
"Cash" means money, currency or a credit balance in any demand or Deposit
----
Account.
"Cash Collateral" means the Collateral, as defined in the Cash Collateral
---------------
Agreement.
"Cash Collateral Agreement" means the Amended and Restated Cash Collateral
-------------------------
Agreement dated as of the Syndication Closing Date among the Lessee, the Lessor
and the Agent in the form of Exhibit L to the Participation Agreement.
"Cash Equivalents" means, as at any date of determination:
----------------
(a) Direct obligations of, or obligations the principal and
interest on which are unconditionally guaranteed by, the
United States of America or obligations of any agency of the
United States of America to the extent such obligations are
backed by the full faith and credit of the United States of
America, in each case maturing within one year from the date
of acquisition thereof,
(b) Certificates of deposit maturing within one year from the date
of acquisition thereof issued by a commercial bank or trust
company organized under the laws of the United States of
America or a state thereof or that is a Participant, provided
that (A) such deposits are denominated in Dollars, (B) such
bank or trust company has capital, surplus and undivided
profits of not less than $1,000,000,000 and (C) such bank or
trust company has certificates of deposit or other debt
obligations rated at least A-I (or its equivalent) by S&P or
P-I (or its equivalent) by Moody's;
(c) Open market commercial paper maturing within 270 days from the
date of acquisition thereof issued by a corporation organized
under the laws of the United States of America or a state
thereof, provided such commercial paper is rated at least A-I
(or its equivalent) by S&P or P-I (or its equivalent) by
Moody's; and
(d) Any repurchase agreement entered into with a commercial bank
or trust company organized under the laws of the United States
of America or a state thereof or that is a Participant,
provided that (A) such bank or trust company has capital,
surplus and undivided profits of not less than $1,000,000,000,
(B) such bank or trust company has certificates of deposit or
other debt obligations rated at least A-1 (or its equivalent)
by S&P or P-1 (or its equivalent) by Moody's, (C) the
repurchase obligations of such bank or trust company under
such repurchase agreement are fully secured by a perfected
security interest in a security or instrument of the type
described in clause (a), (b) or (c) above and (D) such
------ --- --- ---
security or instrument so securing the repurchase obligations
has fair market value at
the time such repurchase agreement is entered into of not less
than 100% of such repurchase obligations.
"Casualty" means any damage to, destruction of or decrease in the value of
--------
all or any portion of the Property as a result of fire, flood, earthquake, or
other natural cause; the actions or inactions of any Person(s) (whether willful
or unintentional and whether or not constituting negligence); or any other
cause.
"CC&Rs" means the declaration of covenants, conditions and restrictions
-----
which is, pursuant to the Property Purchase Agreement, to be recorded against
the Property on the Closing Date.
"CERCLA" means the Comprehensive Environmental Response, Compensation, and
------
Liability Act of 1980, 42 U.S.C. (S)(S) 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" shall mean, with respect to the Lessee, (a) the
-----------------
acquisition after the date hereof by any person or group of persons (within the
meaning of Section 13 or 14 of the Exchange Act) of (i) beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities and Exchange
Commission under the Exchange Act) of twenty-five per cent (25%) or more of the
outstanding Equity Securities of the Lessee entitled to vote for members of the
board of directors, or (ii) all or substantially all of the assets of the Lessee
and its Subsidiaries taken as a whole or (b) during any period of twelve (12)
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 Initial Directors and
previously approved Directors shall cease to constitute a majority of the Board
of Directors of the Lessee before the end of such period.
"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 for which indemnification is
provided pursuant to Section 13.3 of the Participation Agreement.
"Closing Date" means February 13, 2001.
------------
"Code" means the Internal Revenue Code of 1986, as amended from time to
----
time, or any successor statute thereto.
"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 adjusted
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 May 15/th/, August 15/th/, November
---------------------------
15/th/ and February 15/th/ of each year and the last day of the Commitment
Period or such earlier date as the Commitments shall terminate as provided in
the Operative Documents.
"Commitment Fee Rate" means, with respect to the Participation Interests,
-------------------
the following respective commitment fee percentages, expressed in basis points
per annum:
------------------------------------------------------------------------------------
Ratio of Commitment Fee for Commitment Fee for
Funded Debt/ EBITDA Tranches A and B Tranche C
------------------------------------------------------------------------------------
Greater or equal to 2.0x 50 50
------------------------------------------------------------------------------------
Greater or equal to 1.5x, but less
than 2.0x 50 50
------------------------------------------------------------------------------------
1.0x - 1.5x 40 40
------------------------------------------------------------------------------------
Less than 1.0x 30 30
------------------------------------------------------------------------------------
"Commitment Percentage" means, (i) with respect to each Participant, the
---------------------
percentage which such Participant's Commitment constitutes of the aggregate
Commitments of the Participants to purchase a Participation Interest in Advances
as set forth in the column captioned "Commitment Percentage" on Schedule I to
the Participation Agreement (or at any time after the Commitments of the
Participants to purchase a Participation Interest in Advances shall have expired
or terminated, the percentage which the aggregate amount of such Participant's
Advances (or related purchases of Participation Interests therein) then
outstanding constitutes of the aggregate amount of the Advances (or related
purchases of Participation Interests therein) then outstanding).
"Commitment Period" means the period from and including the Syndication
-----------------
Closing Date to but not including the earlier second anniversary of the Closing
Date or such earlier date on which the Commitments shall terminate as provided
in the Operative Documents.
"Completion of Construction" means, as to the Property, the earlier of (A)
--------------------------
the completion of an office building on the relevant parcel of the Property
subject to the Lease, to a condition where such building may, in accordance with
Applicable Law, be lawfully occupied and used by Lessee for the intended use
thereof, or (B) the date on which the aggregate Available Commitments has been
reduced to zero.
"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 portion thereof, wholly or partially (temporarily or
permanently), (i) by or on account of any actual or threatened eminent domain
proceeding or other taking of action by any Person having the power of eminent
domain, but not 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 so long as adequate ingress and egress remains with respect to the
Property, or (ii) 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 15.12 of the Participation
------------------------
Agreement.
"Consent to Assignment" is defined in the definition of the term
---------------------
"Assignment of Lease".
--------------------
"Consolidated Assets" means, at any date of determination, the total assets
-------------------
of the Lessee and its Subsidiaries on a consolidated basis in conformity with
GAAP.
"Consolidated Net Worth" shall mean, with respect to the Lessee at any
----------------------
time, the net worth of the Lessee and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, but with no deduction for in-process
research and development or amortization expense; unless, during any Fiscal
Quarter Lessee had a negative consolidated quarterly net income and such
negative consolidated quarterly net income was caused solely by charges taken
for the purchase of in-process research and development or amortization expense.
"Contingent Obligation" shall mean, with respect to any Person, (a) any
---------------------
Guaranty Obligation of that Person; and (b) any direct or indirect obligation or
liability, contingent or otherwise, of that Person (i) in respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments, (ii) as a partner or
joint venturer in any partnership or joint venture, (iii) 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, or (iv) in respect to any Rate Contract that is not
entered into in connection with a bona fide hedging operation that provides
offsetting benefits to such Person. The amount of any Contingent Obligation
shall (subject, in the case of Guaranty Obligations, to the last sentence of the
definition of "Guaranty Obligation") be deemed equal to the maximum reasonably
anticipated liability in respect thereof, and shall with respect to item (b)(iv)
------------
of this definition be marked to market on a current basis.
"Contractual Obligation" of any Person shall mean 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 Agreement" is defined in the Cash Collateral Agreement.
-----------------
"Convertible Subordinated Debt" means any subordinated Indebtedness issued
-----------------------------
by the Lessee or any of its subsidiaries after the Closing Date that is
convertible into Equity Securities of the Lessee or any of its Subsidiaries,
with or without the payment of additional consideration.
"Covered Liabilities" is defined in Section 11.7 of the Participation
-------------------
Agreement.
"Covered Matters" is defined in Section 13.14 of the Participation
---------------
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.
"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.
"Deposit Account" means a demand, time, savings, passbook or like account
---------------
with a bank, savings and loan association, credit union or like organization,
other than an account evidenced by a negotiable certificate of deposit.
"Designated Payment Date" means the Expiration Date, the Termination Date
-----------------------
or other date of termination of the Lease.
"Document Closing Date" is defined in Section 2 of the Participation
---------------------
Agreement.
"Dollar" and "$" mean dollars in lawful currency of the United States of
------ -
America.
"Domestic Subsidiary" means any Subsidiary organized under the laws of the
-------------------
United States of America, any state thereof or the District of Columbia.
"EBITDA" shall mean, with respect to the Lessee for any period, the sum,
------
determined on a consolidated basis in accordance with GAAP, of the following:
(a) The net income or net loss of the Lessee and its Subsidiaries for
such period before provision for income taxes;
plus
----
(b) The sum (to the extent deducted in calculating net income or loss
in clause a) above) of (i) all Interest Expenses of the Lessee
--------
and its Subsidiaries accruing during such period and (ii) all
depreciation and amortization expenses and in-process research
and development expenses of Lessee and its Subsidiaries accruing
during such period.
"Employee Benefit Plan" means any "employee benefit plan" as defined in
---------------------
Section 3(3) of ERISA which is or was maintained or contributed to by the
Lessee, any of its Subsidiaries or any of their respective ERISA Affiliates.
"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 acquired by the Lessor on the
Land Interest Acquisition Date or of the Property to be remarketed under the
Remarketing Option under the Lease.
"Environmental Certificate" is defined in Section 6.1(c) of the
-------------------------
Participation Agreement.
"Environmental Claim" means any investigation, notice, notice of violation,
-------------------
claim, action, suit, proceeding, demand, abatement order or other order or
directive (conditional or otherwise), by any Governmental Authority or any other
Person, arising (i) pursuant to or in connection with any actual or alleged
violation of any Environmental Law; (ii) in connection with any Hazardous
Substance or any actual or alleged Hazardous Activity; or (iii) in connection
with any actual or alleged damage, injury, threat or harm to health, safety,
natural resources or the environment.
"Environmental Law" means, whenever enacted or promulgated, any applicable
-----------------
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:
(a) relating to pollution (or the cleanup, removal, remediation or
encapsulation thereof, or any other response thereto), or the regulation or
protection of human health, safety or the environment, including air,
water, vapor, surface water, groundwater, drinking water, land (including
surface or subsurface), plant, aquatic and animal life, or
(b) concerning exposure to, or the use, containment, storage,
recycling, treatment, generation, discharge, emission, Release or
threatened Release, transportation, processing, handling, labeling,
containment, production, disposal or remediation of any Hazardous
Substance, Hazardous Condition or Hazardous Activity;
in each case as amended and as now or hereafter in effect, and any common law or
equitable doctrine (including, 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. (S) 6901 et seq.; the Federal Water Pollution Control Act, 33
-- ---
U.S.C. (S) 1251 et seq.; the Clean Air Act, 42 U.S.C. (S)(S) 7401 et seq.; the
-- --- -- ---
National Environmental Policy Act, 42 U.S.C. (S) 4321; the Refuse Act, 33 U.S.C.
(S)(S) 401 et seq.; the Hazardous Materials Transportation Act of 1975, 49
-- ---
U.S.C. (S)(S) 1801-1812; the Toxic Substances Control Act, 15 U.S.C. (S)(S) 2601
et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
-- ---
(S)(S) 136 et seq.; the Safe Drinking Water Act, 42 U.S.C.
-- ---
(S)(S) 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 Obligations" means, collectively, any obligations of the
-------------------------
Lessee with respect to all Claims against, incurred by or suffered by any Lessor
Party, or which adversely affect the Property or any portion thereof or the
value of the Property or such portion, which (i) arise as a result of the breach
by the Lessee of any representation set forth in Section 8.3(i) of the
Participation Agreement or Section 8.4(b) of the Participation Agreement (to the
extent said Section relates to Environmental Laws), (ii) arise as a result of
the failure by the Lessee to comply with any of the covenants set forth in
Section 10.1(a)(vii) of the Participation Agreement or Section 9.1 of the Lease
(to the extent either such Section relates to Environmental Laws), (iii) arise
under Section 13.3 of the Participation Agreement (subject to the proviso to
said Section), or (iv) arise as a result of an Environmental Violation.
"Environmental Violation" means any activity, occurrence or condition or
-----------------------
omission that violates or results in non-compliance with, or could reasonably be
expected to give rise to liability under, any Environmental Law.
"Equity Securities of any Person shall mean (a) all common stock, preferred
-----------------
stock, participations, shares, partnership interests or other equity interests
in and of 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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time or any successor Federal statute.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation
---------------
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Code of which that Person is a member; (ii) any trade or
business (whether or not incorporated) which is a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of the Code
of which that Person is a member; and (iii) any member of an affiliated service
group within the meaning of Section 414(m) or (o) of the Code of which that
Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of the
Lessee or any of its Subsidiaries shall continue to be considered an ERISA
Affiliate of the Lessee or such Subsidiary within the meaning of this definition
with respect to the period such entity was an ERISA Affiliate of the Lessee or
such Subsidiary and with respect to liabilities arising after such period for
which the Lessee or such Subsidiary could be liable under the Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning of Section
-----------
4043 of ERISA and the regulations issued thereunder with respect to any Pension
Plan (excluding those for which the provision for 30-day notice to the PBGC has
been waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Code with respect to any Pension Plan (whether or
not waived in accordance with Section 412(d) of the Code) or the failure to make
by its due date a required installment under Section 412(m) of the Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer
Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a
distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal
by the Lessee, any of its Subsidiaries or any of their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability pursuant to Section
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
would constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on the Lessee, any of its Subsidiaries or any of their respective ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal of the Lessee, any
of its Subsidiaries or any of their respective ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefor, or the
receipt by the Lessee, any of its Subsidiaries or any of their respective ERISA
Affiliates of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
occurrence of an act or omission which could give rise to the imposition on the
Lessee, any of its Subsidiaries or any of their respective ERISA Affiliates of
fines, penalties, taxes or related charges under Chapter 43 of the Code or under
Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of
any Employee Benefit Plan; (ix) the assertion of a material claim (other than
routine claims for benefits) against any Employee Benefit Plan other than a
Multiemployer Plan or the assets thereof, or against the Lessee, any of its
Subsidiaries or any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Code) to qualify under Section
401(a) of the Code, or the failure of any trust forming part of any Pension Plan
to qualify for exemption from taxation under Section 501(a) of the Code; or (xi)
the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Code or
pursuant to ERISA with respect to any Pension Plan.
"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 Telerate Page 3750 (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 Reuters Screen LIBOR Page (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 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 its Participation Interest to be outstanding during such Interest
Period.
"Event of Default" means a Lease 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, provided that indemnity payments made
--------
to the Lessor pursuant to Section 13.13 of the Participation
Agreement for Losses arising out of its indemnification
obligations under Section 13.14 of the Participation Agreement
shall not constitute Excepted Payments;
(b) any amounts (other than Basic Rent or amounts payable by Lessee
pursuant to Section 16.2, Section 16.3 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 purchasing Participant's
Participation Interest;
(d) any insurance proceeds (or payments with respect to risks self-
insured or policy deductibles) to which the Lessor is entitled
under liability policies other than such proceeds or payments
payable to the Agent;
(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
(subject to the Lessee's rights under the Lease) or any portion
thereof or any other property to the extent any of the foregoing
has been released from the Lien of the Mortgage and the
Assignment of Lease 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
(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 the product of (a)
the aggregate amount of such Advances, multiplied by (b) 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 of the Participation Agreement 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 proceeds payable in connection with a Casualty or Condemnation
over the sum of (a) the aggregate Asset Termination Value paid by the Lessee
pursuant to Articles XIV and XV of the Lease with respect to such Casualty or
Condemnation or the Residual Value Guarantee Amount paid by the Lessee pursuant
to Section 16.1(b) or 24.1 of the Lease, plus (b) any unindemnifiable losses,
costs, liabilities or expenses incurred by any Lessor Party (whether or not
capitalized pursuant to Section 3.7(e) of the Participation Agreement) and the
remainder of the Lease Balance remaining unpaid, if any, after any payments made
pursuant to Section 16.1(b) or 24.1 of the Lease.
"Excess Reimbursement" is defined in Section 11.7 of the Participation
--------------------
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations promulgated thereunder.
"Existing Owner" means Agilent Technologies, a Delaware corporation.
--------------
"Expiration Date" means, as of any date of determination, the later of the
---------------
Initial Expiration Date or, if a Renewal Term has been granted, the Extended
Expiration Date then in effect.
"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.
"Extended Expiration Date" means a date following the Initial Expiration
-------------------------
Date, in the event the first or second Renewal Term, as applicable, has been
granted pursuant to Section 21.1 of the Lease, which date shall be as set forth
in the most recent Extension Request delivered by the Agent pursuant to Section
3.6(b) of the Participation Agreement.
"Extended Maturity Date" means a date following the Initial Maturity Date,
----------------------
in the event the Initial Maturity Date has been extended pursuant to Section
3.6(d) of the Participation
Agreement, which date shall be as set forth in the most recent Extension Notice
delivered by the Agent.
"Extension Effective Date" is defined in Section 3.6(b) of the
-------------------------
Participation Agreement and Section 21.1 of the Lease.
"Extension Request" is defined in Section 3.6(b) of the Participation
-----------------
Agreement.
"Extension Response Date" is defined in Section 3.6(b) 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 (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of quotations for such day on such transaction received by the Agent
from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" means that certain commitment and fee letter dated April 4,
----------
2001 between the Agent and the Lessee.
"Financial Officer Certification" means, with respect to any financial
--------------------------------
statement for which such certification is required, the certification of the
chief financial officer, treasurer, vice-president of finance or such other
executive officer of the Lessee designated by the chief financial officer of the
Lessee, that such financial statement fairly presents, in all material respects,
the financial condition of the Lessee and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end
adjustments, as applicable.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
--------------
"Fiscal Year" means the fiscal year of the Lessee and its Subsidiaries
-----------
ending on January 31 of each calendar year.
"Fixtures" means all fixtures relating to the Improvements, if any,
--------
including all components thereof, located in or on the Improvements, together
with all replacements, modifications, alterations and additions thereto.
"Fixed Charges" shall mean, for any period, the sum, without duplication,
-------------
determined on a consolidated basis of (a) Interest Expense of the Lessee and its
Subsidiaries for the four Fiscal Quarters ended as of the last day of such
period, plus (b) all taxes paid or payable in cash by the Lessee and its
----
Subsidiaries to any Governmental Authority during the four Fiscal Quarters ended
as of the last day of such period plus (c) the principal component of all
----
obligations in respect of Capital Leases paid or payable by the Lessee and its
Subsidiaries during the four Fiscal Quarters ended as of the last day of such
period.
"Foreclosure Sale" is defined in Section 17.4 of the Lease.
----------------
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
------------------
Subsidiary.
"Fully Indemnifiable Event" means the occurrence of any of the following
-------------------------
events: (i) a Lease Event of Default specified in Section 17.1(f) or (g) of the
Lease, or (ii) the Lessee has committed fraud, misapplication of funds, illegal
acts or willful misconduct in respect of the Property, the Operative Documents
or any actions or transactions in connection therewith.
"Funded Indebtedness" of any Person shall mean, without duplication:
-------------------
(a) All obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments and all other
obligations of such Person for borrowed money (including
obligations to repurchase receivables and other assets sold
with recourse);
(b) All obligations of such Person for the deferred purchase
price of property or services (including obligations under
letters of credit and other credit facilities which secure
or finance such purchase price and obligations under
"synthetic" leases), other than trade payables incurred by
such Person in the ordinary course of its business on
ordinary terms and overdue.
(c) All obligations of such Person under conditional sale or
other title retention agreements with respect to property
acquired by such Person (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); and
(d) All obligations of such Person as lessee under or with
respect to Capital Leases;
provided, that the principal amount of any Convertible Subordinated Debt shall
--------
be excluded from Funded Indebtedness.
"Funded Indebtedness/EBITDA Ratio" shall mean, with respect to Lessee for
--------------------------------
any period, the ratio determined on a consolidated basis in accordance with
GAAP, of:
(a) the Funded Indebtedness of Lessee and its Subsidiaries on
the last day of such period;
to
--
(b) the EBITDA for such period.
"Funding Date" means any Business Day on which Advances are funded or
------------
deemed funded pursuant to the Participation Agreement.
"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.
"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.
"Gross Proceeds" is defined in Section 22.1(k) of the Lease.
--------------
"Guaranty Obligation" shall mean, 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 obligation 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, 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 stated or determinable amount of the
primary obligation in respect of which such Guaranty Obligation is made or, if
not stated or if indeterminable, the maximum reasonably anticipated liability in
respect thereof.
"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 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.
"Historical Financial Statements" means as of the Syndication Closing Date,
-------------------------------
(i) the audited financial statements of the Lessee and its Subsidiaries, for the
immediately preceding three Fiscal Years, consisting of balance sheets and the
related consolidated statements of income, stockholders' equity and cash flows
for such Fiscal Years, (ii) the unaudited financial statements of the Lessee and
its Subsidiaries as at the most recently ended Fiscal Quarter, consisting of a
balance sheet and the related consolidated statements of income, stockholders'
equity and cash flows for the three-, six- or nine-month period, as applicable,
ending on such date, and, in the case of clauses (i) and (ii), together with a
----------- ----
Financial Officer Certification.
"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 imposed by any Governmental Authority in the United
States ("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, gross or net income, value added, gross receipts, 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 portion thereof or interest therein; (b) the leasing, financing,
refinancing, demolition, construction, substitution, subleasing, assignment,
control, condition, occupancy, servicing, maintenance, repair, ownership,
possession, activity conducted on or in, delivery, insuring, use, operation,
improvement, transfer of title, return or other disposition of the Property or
any portion thereof or interest therein; (c) the Participation Interests with
respect to the Property or any portion thereof or interest therein; (d) the
rentals, receipts or earnings arising from the Property or any portion 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 portion thereof or interest therein
upon the sale or disposition thereof; (g) any contract (including the Property
Purchase Agreement) relating to the construction, acquisition or delivery of any
improvements or any portion thereof or interest therein; or (h) otherwise in
connection with the transactions contemplated by the Operative Documents.
The term "Imposition" shall not mean or include:
(i) Taxes and impositions (other than Taxes that are, or are in the
nature of, sales, use, transfer or property taxes) that are imposed on an
Indemnitee by the United States federal government or any foreign
government that are based on or measured by the net income (including taxes
based on capital gains and minimum taxes and including Taxes which are
expressly in substitution for, or relieve such Indemnitee from, any actual
Taxes based upon or measured by any of the foregoing) 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 and provided, further that this clause (i) shall not
-------- ------- ----------
limit or expand the Lessee's obligations under Section 13.5(e), (g) or (h)
or Section 13.10 of the Participation Agreement; and provided, further,
that this clause (i) shall not limit the Lessee's obligations under
----------
Section 13.5(d) of the Participation Agreement;
(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 (including Taxes which are expressly in
substitution for, or relieve such Indemnitee from, any actual Tax based
upon or measured by any of the foregoing) except that this clause (ii)
-----------
shall not apply to (and thus shall not exclude) any such Taxes and
Impositions imposed on an Indemnitee with respect to the transactions
contemplated by the Operative Documents by a state (or any local taxing
authority thereof or therein) by reason of the transactions contemplated by
the Operative Documents being characterized by such state or local
authority as something other than a loan; provided that this clause (ii)
-------- -----------
shall not be interpreted to prevent a payment from being made on an After
Tax Basis if such payment is otherwise required to be so made;
(iii) any Tax 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);
(iv) 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;
(v) any Taxes which are imposed on an Indemnitee as a result of the
gross negligence or willful misconduct of such Indemnitee itself, but not
Taxes imposed as a result of ordinary negligence of such Indemnitee; or
(vi) Taxes imposed against an Indemnitee with respect to fees or
compensation for services rendered.
Any Tax excluded from the defined term "Imposition" in any one of the foregoing
clauses (i) through (vi) shall not be construed as constituting an Imposition by
----------- ----
any provision of any other of the aforementioned clauses.
"Improvements" means all buildings, structures, Fixtures, equipment, and
------------
other improvements of every kind, if any, existing and/or at any time and from
time to time constructed 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.
"Indebtedness" of any Person shall mean, without duplication:
------------
(a) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments and all other obligations of such Person
for borrowed money (including obligations to repurchase receivables
and other assets sold with recourse);
(b) all obligations of such Person for the deferred purchase price of
property or services (including obligations under letters of credit
and other credit facilities which secure or finance such purchase
price and obligations under "synthetic" leases);
(c) all obligations of such Person under conditional sale or other title
retention agreements with respect to property acquired by such Person
(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 obligations of such Person as lessee under or with respect to
Capital Leases;
(e) all non-contingent payment or reimbursement obligations of such Person
under or with respect to Surety Instruments;
(f) all net obligations of such Person, contingent or otherwise, under or
with respect to Rate Contracts;
(g) all Guaranty Obligations of such Person with respect to the
obligations of other Persons of the types described in clauses (a)-(f)
---------------
above and all other Contingent Obligations of such Person; and
(h) all obligations of other Persons of the types described in clauses
-------
(a)-(f) 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) of such Person, even though such Person has not assumed or
become liable for the payment of such obligations.
"Indemnification Sections" is defined in Section 13.13 of the Participation
------------------------
Agreement.
"Indemnified Party" is defined in Section 13.14(a) of the Participation
-----------------
Agreement.
"Indemnitee" means the Lessor, the Agent, the Participants, their
----------
respective Affiliates and their respective successors, permitted assigns,
directors, shareholders, partners, officers, employees and agents, provided that
--------
in no event shall the Lessee or any of its subsidiaries or affiliates be or be
deemed to be an Indemnitee under the Operative Documents.
"Initial Expiration Date" means the fifth anniversary of the Closing Date.
-----------------------
"Initial Maturity Date" means the fifth anniversary of the Closing Date.
---------------------
"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 Coverage Ratio" shall mean, with respect to the Lessee as of any
-----------------------
day, the ratio, determined on a consolidated basis, of (a) EBITDA for the period
of four consecutive Fiscal Quarters of the Lessee ending on, or most recently
preceding, such day, to (b) Fixed Charges for such period.
"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, without limitation, interest attributable to Capital Leases) plus
----
(b) all fees in respect of outstanding letters of credit payable by such Person
and accruing during such period.
"Interest Payment Advance" means any Advance made to fund the payment of
------------------------
interest or yield accruing on Advances prior to the Basic Term Commencement
Date.
"Interest Period" means, with respect to any Advance based upon the
---------------
Eurodollar Rate:
(a) initially, in the case of the Advance made on, and Advances
outstanding on, the Syndication Closing Date, the period commencing three
Business Days after the date on which the Lessee gives irrevocable written
notice pursuant to Section 3.7(a) of the Participation Agreement of the
Lessee's election to convert such Advances to Eurodollar Rate Advances and
continuing one, two, three or six months thereafter, as selected by the
Lessee in its Funding Request or other notice given with respect thereto,
and, in the case of any other Advance, the period commencing on the Funding
Date with respect to such Advance and ending one month thereafter; and
(b) thereafter, 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 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;
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month;
(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 specify the length of any Interest
Period for any Advance (including an Interest Payment Advance or any amount
capitalized under the terms of Section 3.7(e) of the Participation
Agreement), such Advance shall have an Interest Period of one month until
such time as the Lessee shall specify an Interest Period therefor.
"Investment" of any Person shall mean 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), 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 (h) of the definition of
----------
"Indebtedness" on behalf of any other Person); provided, however, that
Investments shall not include (a) accounts receivable or other indebtedness
owned by customers of such Person which are current assets and arose from sales
of inventory 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.
"Joint Venture" means a joint venture, partnership or other similar
-------------
arrangement, whether in corporate, partnership or other legal form; provided, in
no event shall any corporate Subsidiary of any Person be considered to be a
Joint Venture to which such Person is a party.
"Land Interest" means fee title to the parcel of real property described on
-------------
Schedule I of the Lease Supplement and all Appurtenant Rights attached thereto.
"Land Interest Acquisition Cost" means, with respect to the Land Interest,
------------------------------
the amount funded by the Lessor under the Participation Agreement to pay the
Existing Owner for the purchase price of the Land Interest as set forth in the
Acquisition Request therefor.
"Land Interest Acquisition Date" means February 13, 2001.
------------------------------
"Late Payment Rate" means the Overdue Rate.
-----------------
"Lease" means the Amended and Restated Master Lease, dated as of the
-----
Syndication Closing Date, between the Lessor and the Lessee, together with the
Lease Supplement thereto.
"Lease Balance" means, as of any date of determination, an amount equal to
-------------
the aggregate sum of the outstanding amount of the Advances (including all
amounts capitalized under the terms of Section 3.7(e) of the Participation
Agreement), plus (without duplication) all accrued and unpaid Basic Rent and all
Supplemental Rent owing by the Lessee under the Operative Documents.
"Lease Commencement Date" means the Basic Term Commencement Date.
-----------------------
"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 No. 1, Memorandum of Lease,
----------------
Deed of Trust and Security Agreement in the form attached as Exhibit A to the
Lease, dated as of the Land Interest Acquisition Date, between the Lessor and
the Lessee, together with all attachments and schedules thereto, as such Lease
Supplement may be supplemented, amended or modified from time to time.
"Lessee" means BEA Systems, Inc., a Delaware corporation, as lessee under
------
the Lease, and its successors and assigns expressly permitted under the
Operative Documents.
"Lessor" means ABN AMRO Leasing, Inc., as Lessor under the Lease.
------
"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, and assigned by Lessor to Agent.
"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 Section 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.
"Lessor Losses" is defined in Section 13.13 of the Participation Agreement.
-------------
"Lessor Party" means the Lessor, the Agent and the Participants.
------------
"Lessor's Sale" is defined in Section 17.4 of the Lease.
-------------
"Lien" means any mortgage, deed of trust, pledge, security interest,
----
encumbrance, lien, easement, servitude or charge of any kind, including, without
limitation, any irrevocable license, conditional sale or other title retention
agreement, any lease in the nature thereof, or any other right of or arrangement
with any creditor to have its claim satisfied out of any specified property or
asset with the proceeds therefrom prior to the satisfaction of the claims of the
general creditors of the owner thereof, whether or not filed or recorded, or the
filing of, or agreement to execute as "debtor", any financing or continuation
statement under the Uniform Commercial Code of any jurisdiction or any foreign
or federal, state or local lien imposed pursuant to any Environmental Law.
"Losses" is defined in Section 13.14(b) of the Participation Agreement.
------
"Market Value" means with respect to any Equity Security as of any date of
------------
determination, the last reported sale price during regular trading for such
security on such date on the applicable primary securities exchange or trading
market for such security or, if not so reported, the average of the high bid and
low asked price for such security on such exchange or market.
"Marketing Period" means the period commencing on the date one hundred
----------------
eighty (180) days prior to the Expiration Date and ending on the Expiration
Date.
"Material", "Materially", and "Material Adverse Effect" means a material
-------- ---------- -----------------------
adverse effect upon (i) financial condition of the Lessee and its Subsidiaries,
taken as a whole, (ii) the ability of the Lessee to perform its obligations
under any of the Operative Documents to which it is a party, (iii) the value or
utility of the Property or the Lessor's interests therein or title thereto, or
(iv) the ability of the Lessor, the Agent or the Participants to enforce any of
its rights or remedies under any Operative Document.
"Material Environmental Amount" means an amount payable by the Lessee
-----------------------------
and/or its Subsidiaries in excess of 10% of the original Property Cost for
remedial costs, non-routine compliance costs, compensatory damages, punitive
damages, fines, penalties or any combination thereof.
"Materials of Environmental Concern" means any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means, as of any date of determination, the later of the
-------------
Initial Maturity Date or, if an extension of the Initial Maturity Date has been
granted pursuant to Section 3.6(b) of the Participation Agreement, the Extended
Maturity Date then in effect.
"Modifications" is defined in Section 11.1(a) of the Lease.
-------------
"Moody's" means Xxxxx'x Investor Services, Inc.
-------
"Mortgage" means, with respect to the Property, a Deed of Trust, Security
--------
Agreement, Fixture Filing and Financing Statement substantially in the form
attached as Exhibit O to the Participation Agreement, made by the Lessor to
Chicago Title Insurance Company, as Trustee for the benefit of 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 mortgage lien on the Lessor's
fee interest in the Land Interest thereon.
"Multiemployer Plan" means any Employee Benefit Plan which is a
------------------
"multiemployer plan" as defined in Section 3(37) of ERISA.
"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 Proceeds of Equity Securities" shall mean the aggregate consideration
---------------------------------
received from the sale or issuance of any such Equity Security less the sum of
the actual amount of the customary fees and commissions payable to Persons other
than the issuer of the Equity Security or any Affiliate of such issuer and the
reasonable expenses and other customary costs and expenses directly related to
such sale or issuance that are to be paid by the issuer.
"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 pursuant to Section 13.2 of the
Participation Agreement, and (iii) any interest or yield 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 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 required to be paid pursuant to Section 13.2 of the Participation
Agreement and 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.
"New Participants" means, collectively, the New Tranche A Participants and
----------------
the New Tranche B Participants.
"New Tranche A Participants" means each of the Tranche A Participants
--------------------------
(other than the Original Tranche A Participant) listed on Schedule I of the
Participation Agreement as of the Syndication Closing Date.
"New Tranche B Participants" means each of the Tranche B Participants
--------------------------
(other than the Original Tranche B Participant) listed on Schedule I of the
Participation Agreement as of the Syndication Closing Date.
"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.
"Operating Profit" shall mean, with respect to the Lessee for any period,
----------------
the net result of subtracting from the revenues of the Lessee for such period
the following with respect to the Lessee for such period: (i) cost of goods
sold; (ii) operating expenses; (iii) depreciation; and (iv) amortization, but
with no deduction or addition for the following: (i) in-process research and
development charges; (ii) non-recurring one-time charges; (iii) goodwill
impairment charges; (iv) operating losses derived from an acquired entity; (v)
interest income or interest expense; and (vi) foreign currency transaction gains
or losses.
"Operative Documents" means the following:
-------------------
(a) the Participation Agreement;
(b) the Lease and the Lease Supplement;
(c) the Cash Collateral Agreement and the Control Agreement;
(d) the Property Purchase Agreement, the Assignment of Purchase
Agreement and the Deed;
(e) the Assignment of Lease;
(f) the Consent to Assignment;
(g) the Mortgage; and
(h) the Settlement Statement.
"Original Cash Collateral Agreement" means the Cash Collateral Agreement
----------------------------------
dated as of the Closing Date among the Lessee, the Lessor and the Agent.
"Original Executed Counterpart" is defined in Section 31.8 of the Lease.
-----------------------------
"Original Lease" means the Master Lease, dated as of the Closing Date,
--------------
between the Lessor and the Lessee, together with the Lease Supplement thereto.
"Original Operative Documents" means the Original Participation Agreement
----------------------------
and the other "Operative Documents" as that term is defined in Appendix 1 to the
Original Participation Agreement.
"Original Participants" means the Lessor and ABN AMRO Bank N.V.
---------------------
"Original Participation Agreement" means the Participation Agreement, dated
--------------------------------
as February 13, 2001, among the Lessee, the Lessor, the Original Participants
and the Agent.
"Original Tranche A Participant" means ABN AMRO Bank N.V.
------------------------------
"Original Tranche B Participant" means ABN AMRO Bank N.V.
------------------------------
"Outstanding Tranche A Participation Interests" means the amount of the
---------------------------------------------
outstanding Tranche A Participation Interests as of the Syndication Closing Date
immediately prior to giving effect to the transaction occurring on the
Syndication Closing Date.
"Outstanding Tranche B Participation Interests" means the amount of the
---------------------------------------------
outstanding Tranche B Participation Interests as of the Syndication Closing Date
immediately prior to giving effect to the transaction occurring on the
Syndication Closing Date.
"Overdue Rate" means, with respect to the Advances, fees or any other
------------
payment due under the Operative Documents, the interest or yield rate then
applicable to the Advances plus 2% per annum; provided, the Overdue Rate shall
not, notwithstanding anything to the contrary contained in the Operative
Documents, or exceed the maximum rate of interest permitted by Applicable Law.
"Partial Purchase Option" is defined in Section 20.1 of the Lease.
-----------------------
"Partial Purchase Option Price" is defined in Section 20.1 of the Lease.
-----------------------------
"Participant Balance" means for each Participant the sum of its Tranche A
-------------------
Participant Balance, its Tranche B Participant Balance and its Tranche C
Participant Balance.
"Participant's Letter" is defined in Section 12.1(b) of the Participation
--------------------
Agreement.
"Participants" means the Lessor, ABN AMRO Bank N.V., the New Participants
------------
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.
"Participation Agreement" means the Amended and Restated Participation
-----------------------
Agreement, dated as of the Syndication Closing Date, among the Lessee, the
Lessor, the Participants and the Agent.
"Participation Interest" means, as to each Tranche A Participant and
----------------------
Tranche B Participant, a participation interest or, as to each Tranche C
Participant, an equity interest, in the Advances and 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 under the column heading "Commitments," subject to the
provisions of Sections 3.10 through 3.20 and Section 11 of the Participation
Agreement: (i) Basic Rent, (ii) Supplemental Rent, (iii) Asset Termination
Value, (iv) Purchase Option Price or Partial Purchase Option Price, (v) Net
Sales Proceeds, (vi) Residual Value Guarantee Amount, (vii) any Shortfall Amount
required to be paid pursuant to Section 13.2 of the Participation Agreement, and
(viii) any other payments in respect of indemnities (to the extent such
participant is an Indemnitee) 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 (including any
amounts capitalized under the terms of the Participation Agreement) and interest
or yield thereon for which the Lessor has not received payment from such
Participant of such Participant's Commitment Percentage thereof.
"Payment Date" means (a) any Scheduled Payment Date and (b) any date on
------------
which interest is payable pursuant to Section 3.7(b) 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.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
------------
Plan, which is subject to Section 412 of the Code or Section 302 of ERISA.
"Permitted Exceptions" means (i) Liens of the type described in clause (b)
-------------------- ----------
of the definition of Permitted Liens set forth below, (ii) the respective rights
and interests of the parties to the Operative Documents as provided in the
Operative Documents, including any Lien securing obligations under the Operative
Documents, (iii) statutory Liens of mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law, in each case incurred in the
ordinary course of business (a) for amounts not yet overdue, or (b) for amounts
that are overdue and that (in the case of any such amounts overdue for a period
in excess of five days) are being contested in accordance with the provisions of
Article XIII of the Lease, (iv) Liens and exceptions to title described on the
title insurance policies in respect of the Property delivered, and accepted by
the Agent and the Lessor, on the Land Interest Acquisition Date pursuant to
Section 6.1(g) of the Participation Agreement (including future dedications
under the CC&Rs as in effect on the Closing Date or thereafter approved by the
Agent, (v) leases and licenses in effect with respect to the Property which are
permitted by the Lease, and (vi) all non-monetary encumbrances, exceptions,
restrictions, easements, rights of way, servitudes, encroachments and
irregularities in title, other than any such encumbrances, exceptions,
restrictions, easements, rights of way, servitudes, encroachments and
irregularities in title which, in the reasonable assessment of the Lessor,
materially impair the value of the Property or the use of the Property for its
intended purpose.
"Permitted Liens" means the following Liens, subject however, in the case
---------------
of the Property, to the terms of the Lease:
(a) Liens in favor of the Lessor, the Agent or any Participant under the
Operative Documents;
(b) Liens for taxes, assessments or governmental charges or claims not yet
due or (i) other than in the case of the Property, with respect to
which the Lessee or its Subsidiaries are taking each of the actions
required pursuant to Section 10.1(a)(iii) of the Participation
Agreement, and (ii) in the case of the Property, which are being
properly contested in accordance with Section 13.1 of the Lease, but
only for so long as the requirements of Section 13.1 of the Lease
continue to be satisfied;
(c) statutory Liens of landlords, banks (and rights of set-off), of
carriers, warehousemen, mechanics, repairmen, workmen and materialmen,
and other Liens imposed by law, in each case incurred in the ordinary
course of business (i) for amounts not yet overdue or (ii) for amounts
that are overdue and that are being contested in good faith by
appropriate proceedings, so long as such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made
for any such contested amounts;
(d) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of
tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, trade contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money), so long
as no foreclosure, sale or similar proceedings have been commenced
with respect thereto or on account thereof;
(e) easements, rights-of-way, zoning restrictions, encroachments,
imperfections and other minor defects or irregularities in title,
which, individually or in the aggregate, are not substantial in amount
and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Lessee or any of its Subsidiaries;
(f) Liens on property or assets of any corporation which becomes a
Subsidiary of the Lessee or on any property or assets acquired by the
Lessee or any of its Subsidiaries after the Closing Date, provided
--------
that (A) such Liens exist at the time the stock of said corporation or
assets or property is or are acquired by the Lessee and (B) such Liens
were not created in contemplation of such acquisition by the Lessee or
Subsidiary;
(g) any zoning or similar law or right reserved to or vested in any
Governmental Authority to control or regulate the use of any real
property;
(h) licenses of patents, trademarks and other intellectual property rights
granted by the Lessee or any of its Subsidiaries in the ordinary
course of business and not interfering in any material respect with
the ordinary conduct of the business of the Lessee or such Subsidiary;
(i) judgment liens not constituting a Lease Event of Default pursuant to
Section 17.1(h) of the Lease;
(j) Liens described in Schedule 10.1(b)(ii) to the Participation Agreement
and existing on the Closing Date;
(k) Liens securing Indebtedness (other than Convertible Subordinate Debt)
permitted pursuant to Section 10.1(b)(i)(H), 10.1(b)(i)(I) and
10.1(b)(i)(K) of the Participation Agreement; provided, in the case of
--------
Indebtedness permitted by Section 10.1(b)(i)(H) or Section
10.1(b)(i)(I) of the Participation Agreement, any Lien permitted
hereby shall encumber only the asset acquired with the proceeds of
such Indebtedness and such Liens do not secure any other Indebtedness;
and
(l) any extension or replacement of any of the foregoing in accordance
with the terms thereof;
provided, (i) any Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Code or by ERISA, and (ii) any Lien relating to or imposed in connection with
any Environmental Claim, in each case is expressly prohibited hereunder.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization,
Governmental Authority or any other entity.
"Personal Property Collateral" is defined in Section 17.4 of the Lease.
----------------------------
"Project Costs" means "project costs" within the meaning of such term under
-------------
GAAP in effect on the date of the Participation Agreement.
"Property" means the Land Interest.
--------
"Property Acquisition Cost" means, with respect to any portion of the
-------------------------
Property, the amount funded by the Lessor under the Participation Agreement to
pay the Existing Owner for the purchase price of such portion of the Property as
set forth in the Acquisition Request therefor.
"Property Cost" means with respect to the Property, the aggregate amount of
-------------
the Property Acquisition Costs plus (i) any Transaction Expenses to the extent
----
paid or reimbursed with the proceeds of an Advance, as set forth in the
Acquisition Request and Funding Requests therefor (ii) interest and yield on
the Advances funded by an Interest Payment Advance and amounts funded by one or
more Lessor Parties and capitalized under Section 3.7(e)(iii) of the
Participation Agreement.
"Property Purchase Agreement" means the Purchase and Sale Agreement dated
---------------------------
February 1, 2001, between Existing Owner, as seller, and Lessee, as Buyer, which
has been assigned to Lessor pursuant to the Assignment and Assumption of
Purchase Agreement, including, without limitation, the CC&Rs that were recorded
under the Property Purchase Agreement.
"Purchase Money Indebtedness" means Indebtedness that is secured by (i) a
---------------------------
purchase money security interest pursuant to the UCC or (ii) another lien under
Applicable Law, which Indebtedness secured by such other lien has the
characteristics of the Indebtedness secured by the security interest described
in clause (i) of this definition.
----------
"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.
---------------------
"Qualified Securities" is defined in the Cash Collateral Agreement.
--------------------
"Quick Ratio" shall mean, with respect to the Lessee at any time, the
-----------
ratio, determined on a consolidated basis in accordance with GAAP, of:
(a) the sum (without duplication) of all unencumbered cash, Cash
Equivalents and net accounts receivable of the Lessee and its
Subsidiaries at such time,
to
--
(b) the liabilities of the Lessee and its Subsidiaries at such time
(including liabilities of the Lessee and its Subsidiaries in
connection with synthetic leases and other off-balance sheet Funded
Indebtedness) maturing within one year.
(In calculating the Quick Ratio, Cash Equivalents and short-term
investments shall be marked to market quarterly).
"Rate Contracts" shall mean swap agreements (as that that term is defined
--------------
in Section 101 of the Federal Bankruptcy Reform Act of 1978, as amended) and any
other agreements or arrangements designed to provide protection against
fluctuations in interest or currency exchange rates.
"Real Property Collateral" is defined in Section 17.4 of the Lease.
------------------------
"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.
------------------
"Renewal Effective Date" is defined in Section 21.1(a) of the Lease.
----------------------
"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 a renewal term of one year immediately following the
------------
Initial Expiration Date or the Extended Expiration Date, as the case may be, in
the event the Lessee has exercised a Renewal Option pursuant to Section 21.1 of
the Lease and such Renewal Request has been granted in accordance with the terms
of the Lease.
"Rent" means, collectively, the Basic Rent and the Supplemental Rent, in
----
each case payable under the Lease.
"Replacement Participant" is defined in Section 3.6(c) of the Participation
-----------------------
Agreement.
"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% of the Total Commitments. In the
case of a declaration of an Event of Default arising out of a violation of the
terms and conditions of the Cash Collateral Agreement or action to be taken by
the Agent or the Lessor pursuant thereto, including any action under the Cash
Collateral Agreement or the Control Agreement, Required Participants
means the Tranche A-2 Participants and Tranche B-2 Participants, the Commitment
Percentages of which aggregate to 66 2/3% of the aggregate Tranche A-2
Participation Interest Commitment and the aggregate Tranche B-2 Participation
Interest Commitment.
"Required Value" is defined in Section 1.01 of the Cash Collateral
--------------
Agreement.
"Requirement of Law" means all Federal, foreign, state, county, municipal
------------------
and other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting the Property or the construction or
use or alteration thereof, whether now or hereafter enacted and in force,
including any that require repairs, modifications or alterations 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. (S) 1201 et. seq. and any other similar Federal, foreign, 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, 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, as of any date of determination,
-------------------------------
(A) prior to the Basic Term Commencement Date, an amount equal to the sum of (i)
land acquisition costs for the Property of $298,976,106.21, as derived from the
Settlement Statement, plus (ii) 89.9% of all other properly capitalized Project
Costs as of such date; and (B) from and after the Basic Term Commencement Date,
an amount equal to the Lease Balance, provided, however, that if any amount has
-------- -------
been capitalized pursuant to clause (ii) of Section 3.7(e) of the Participation
-----------
Agreement, then the Residual Value Guarantee Amount shall be recomputed such
that (a) the Lessee is not deemed under GAAP to be the owner of the Property and
(b) from the Lessee's perspective the Lease qualifies as an operating lease in
accordance with GAAP in effect on the date of the Participation Agreement.
"Response Actions" means remove, removal, remedy, and remedial action as
----------------
those terms are defined in CERCLA, 42 U.S.C. (S) 9601.
"Responsible Officer" means, with respect to the Lessee, the chief
-------------------
executive officer, the president, any executive vice president, the chief
financial officer and the treasurer.
"Responsible Officer's Certificate" means a certificate of the Lessee
---------------------------------
signed by any Responsible Officer of the Lessee, which certificate shall certify
as true and correct the subject matter being certified to in such certificate.
"Scheduled Payment Date" means (a) as to any Advance having an Interest
----------------------
Period of one, two or three months, the last day of such Interest Period, and
(b) as to any Advance having an Interest Period longer than three months, the
last day of the first three month period in such Interest Period and the last
day of such Interest Period.
"SEC" means the Securities and Exchange Commission and any successor
---
thereto.
"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 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 liabilities of the Lessor to
the Agent and the Participants under the Participation Agreement or of the
Lessee to the Lessor under the Lease.
"Settlement Statement" means the final settlement statement issued on
--------------------
February 13, 2001 by Chicago Title Company to the Lessor and the Lessee.
"Shortfall Amount" means, as of the Expiration Date, the amount that the
----------------
aggregate Asset Termination Value will exceed the aggregate of the Net Sales
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 by the
Lessee 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 the Lessor's entire title to the 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 by the Lessee to the Lessor pursuant
to Section 16.1 of the Lease) either (a) renders the Property unsuitable for
continued use as commercial property of the type of such property immediately
prior to such Condemnation or (b) is such that restoration of the Property to
substantially its condition as existed immediately prior to such Condemnation
would be impracticable or impossible.
"Significant Event" means, as the case may be, (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 30% of Asset
Termination Value.
"Sub-Participant" "Sub-Participant" is defined in Section 12.2(a) of the
--------------- ---------------
Participation Agreement.
"Subsidiary" of any Person shall mean (a) any corporation of which more
----------
than 50% 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, (b) any partnership, joint venture, or
other Person of which more than 50% of the equity interest having the power to
vote, direct or control the management of such partnership, joint venture,
business trust or other person 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 or (c) any other Person included in the
financial statements of such Person on a consolidated basis. The term
"Subsidiary" as used in the Operative Documents shall refer to a Subsidiary of
the Lessee unless otherwise expressly required.
"Supplemental Rent" means all amounts, liabilities and obligations (other
------------------
than Basic Rent) which the Lessee assumes or agrees to pay to the Lessor or any
other Person under the Lease or any of the other Operative Documents, including,
without limitation, and without duplication, payments of the Residual Value
Guarantee Amount, any Shortfall Amount payable pursuant to Section 13.2 of the
Participation Agreement and payments pursuant to Sections 16.1(b), 16.1(c),
16.2, 16.3, 17.2(i), or 17.6 of the Lease and Articles XX and XXII of the Lease.
"Surety Instruments" shall mean all letters of credit (including standby
------------------
and commercial), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"Syndication Closing Date" is defined in Section 2 of the Participation
------------------------
Agreement.
"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), 16.1(c), 16.2(a) and
----------------
17.2(e) of the Lease.
"Termination Notice" is defined in Section 16.1 of the Lease.
------------------
"Total Commitment" means the amount set forth as such in Schedule I to the
----------------
Participation Agreement or, if such amount is reduced or increased pursuant to
Section 3.6 of the Participation Agreement, the amount as so reduced or
increased.
"Tranche A Participant" means a Tranche A-1 Participant or a Tranche A-2
---------------------
Participant.
"Tranche A Participant Balance" means for any Tranche A Participant as of
-----------------------------
any date an amount equal to the sum of its Tranche A-1 Participant Balance and
its Tranche A-2 Participant Balance.
"Tranche A Participation Interests" means collectively, the Tranche A-1
---------------------------------
Participation Interest and the Tranche A-2 Participation Interest.
"Tranche A Participation Interest Commitment" means collectively, the
-------------------------------------------
Tranche A-1 Participation Interest Commitment and the Tranche A-2 Participation
Interest Commitment.
"Tranche A-1 Participant Balance" means for each Tranche A-1 Participant as
-------------------------------
of any date of determination an amount equal to the sum of such Participant's
Tranche A-1 Participation Interest as of such date in all outstanding Advances,
together with all accrued and unpaid interest thereon and all other amounts owed
to such Tranche A-1 Participant under the Operative Documents.
"Tranche A-1 Participants" means those Participants maintaining a Tranche
------------------------
A-1 Participation Interest Commitment and purchasing a Tranche A-1 Participation
Interest in the Advances.
"Tranche A-1 Participation Interest" means, as to each Tranche A-1
----------------------------------
Participant as of any date of determination, such Participant's Tranche A-1
Participation Interest Commitment Percentage then in effect, multiplied by the
outstanding amount of all Advances as to which such Participant has funded its
Tranche A-1 Participation Interest Commitment Percentage under Section 3.4 of
the Participation Agreement.
"Tranche A-1 Participation Interest Commitment" is defined in Section 3.5
---------------------------------------------
of the Participation Agreement.
"Tranche A-1 Participation Interest Commitment Percentage" means (i) with
--------------------------------------------------------
respect to all Tranche A-1 Participants in the aggregate, and (ii) with respect
to each Tranche A-1 Participant, the percentage of the aggregate Commitments set
forth as such in Schedule I to the Participation Agreement under the column
heading "Commitments."
"Tranche A-1 Proportionate Share" means the percentage of the aggregate
-------------------------------
Commitments set forth in Schedule I to the Participation Agreement.
"Tranche A-2 Participant Balance" means for each Tranche A-2 Participant as
-------------------------------
of any date of determination an amount equal to the sum of such Participant's
Tranche A-2 Participation Interest as of such date in all outstanding Advances,
together with all accrued and unpaid interest thereon and all other amounts owed
to such Tranche A-2 Participant under the Operative Documents.
"Tranche A-2 Participants" means those Participants maintaining a Tranche
------------------------
A-2 Participation Interest Commitment and purchasing a Tranche A-2 Participation
Interest in the Advances.
"Tranche A-2 Participation Interest" means, as to each Tranche A-2
----------------------------------
Participant as of any date of determination, such Participant's Tranche A-2
Participation Interest Commitment Percentage then in effect, multiplied by the
outstanding amount of all Advances as to which such Participant has funded its
Tranche A-2 Participation Interest Commitment Percentage under Section 3.4 of
the Participation Agreement.
"Tranche A-2 Participation Interest Commitment" is defined in Section 3.5
---------------------------------------------
of the Participation Agreement.
"Tranche A-2 Participation Interest Commitment Percentage" means (i) with
--------------------------------------------------------
respect to all Tranche A-2 Participants in the aggregate, and (ii) with respect
to each Tranche A-2 Participant, the percentage of the aggregate Commitments set
forth as such in Schedule I to the Participation Agreement under the column
heading "Commitments."
"Tranche A-2 Proportionate Share" means the percentage of the aggregate
-------------------------------
Commitments set forth in Schedule I to the Participation Agreement.
"Tranche B Participant" means a Tranche B-1 Participant or a Tranche B-2
---------------------
Participant.
"Tranche B Participant Balance" means for any Tranche B Participant as of
-----------------------------
any date an amount equal to the sum of its Tranche B-1 Participant Balance and
its Tranche B-2 Participant Balance.
"Tranche B Participation Interests" means, collectively, the Tranche B-1
---------------------------------
Participation Interest and the Tranche B-2 Participation Interest.
"Tranche B Participation Interest Commitment" means, collectively, the
-------------------------------------------
Tranche B-1 Participation Interest Commitment and the Tranche B-2 Participation
Interest Commitment.
"Tranche B-1 Participant Balance" means for each Tranche B-1 Participant as
-------------------------------
of any date of determination an amount equal to the sum of such Participant's
Tranche B-1 Participation Interest as of such date in all outstanding Advances,
together with all accrued and unpaid interest thereon and all other amounts owed
to such Tranche B-1 Participant under the Operative Documents.
"Tranche B-1 Participants" means those Participants maintaining a Tranche
------------------------
B-1 Participation Interest Commitment and purchasing a Tranche B-1 Participation
Interest in the Advances.
"Tranche B-1 Participation Interest" means, as to each Tranche B-1
----------------------------------
Participant as of any date of determination, such Tranche B-1 Participant's
Tranche B-1 Participation Interest Commitment Percentage then in effect
multiplied by the outstanding amount of all Advances as to which such
Participant has funded its Tranche B-1 Participation Interest Commitment
Percentage under Section 3.4 of the Participation Agreement.
"Tranche B-1 Participation Interest Commitment" is defined in Section 3.5
---------------------------------------------
of the Participation Agreement.
"Tranche B-1 Participation Interest Commitment Percentage" means (i) with
--------------------------------------------------------
respect to all Tranche B-1 Participants in the aggregate, and (ii) with respect
to each Tranche B-1 Participant, the percentage of the aggregate Commitments set
forth as such in Schedule I to the Participation Agreement under the column
heading "Commitments."
"Tranche B-1 Proportionate Share" means the percentage of the aggregate
-------------------------------
Commitments set forth in Schedule I to the Participation Agreement.
"Tranche B-2 Participant Balance" means for each Tranche B-2 Participant as
-------------------------------
of any date of determination an amount equal to the sum of such Participant's
Tranche B-2 Participation Interest as of such date in all outstanding Advances,
together with all accrued and unpaid interest thereon and all other amounts owed
to such Tranche B-2 Participant under the Operative Documents.
"Tranche B-2 Participants" means those Participants maintaining a Tranche
------------------------
B-2 Participation Interest Commitment and purchasing a Tranche B-2 Participation
Interest in the Advances.
"Tranche B-2 Participation Interest" means, as to each Tranche B-2
----------------------------------
Participant as of any date of determination, such Tranche B-2 Participant's
Tranche B-2 Participation Interest Commitment Percentage then in effect
multiplied by the outstanding amount of all Advances as to which such
Participant has funded its Tranche B-2 Participation Interest Commitment
Percentage under Section 3.4 of the Participation Agreement.
"Tranche B-2 Participation Interest Commitment" is defined in Section 3.5
---------------------------------------------
of the Participation Agreement.
"Tranche B-2 Participation Interest Commitment Percentage" means (i) with
--------------------------------------------------------
respect to all Tranche B-2 Participants in the aggregate, and (ii) with respect
to each Tranche B-2 Participant, the percentage of the aggregate Commitments set
forth as such in Schedule I to the Participation Agreement under the column
heading "Commitments."
"Tranche B-2 Proportionate Share" means the percentage of the aggregate
-------------------------------
Commitments set forth in Schedule I to the Participation Agreement.
"Tranche C Equity Interest" means, as to each Tranche C Participant as of
-------------------------
any date of determination, such Tranche C Participant's Tranche C Equity
Interest Commitment Percentage then in effect multiplied by the outstanding
amount of all Advances as to which such Participant has funded its Tranche C
Equity Interest Commitment Percentage under Section 3.4 of the Participation
Agreement.
"Tranche C Equity Interest Commitment" is defined in Section 3.5 of the
------------------------------------
Participation Agreement.
"Tranche C Equity Interest Commitment Percentage" means (i) with respect to
-----------------------------------------------
all Tranche C Participants at any time, 3% of the aggregate Commitments, and
(ii) with respect to each Tranche C Participant, the percentage of the Aggregate
Commitments set forth in Schedule I to the Participation Agreement after such
Participant's Tranche C Equity Commitment.
"Tranche C Participant Balance" means for each Tranche C Participant as of
-----------------------------
any date of determination an amount equal to the sum of such Participant's
Tranche C Equity Interest as of
such date in all outstanding Advances, together with all accrued and unpaid
yield thereon and all other amounts owed to such Tranche C Participant under the
Operative Documents.
"Tranche C Participants" means those Participants maintaining a Tranche C
----------------------
Equity Interest Commitment and purchasing a Tranche C Equity Interest in the
Advances.
"Tranche C Proportionate Share" means the percentage set forth as such in
-----------------------------
Schedule I to the Participation Agreement.
"Transaction Expenses" means all costs and expenses incurred in connection
--------------------
with the preparation, execution and delivery of the Operative Documents and the
transactions contemplated by the Operative Documents including without
limitation:
(a) the reasonable fees, out-of-pocket expenses and disbursements of
counsel for the Lessor 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, and (without duplication) the reasonable allocated cost of
internal legal services and all disbursements of internal counsel of each
of the Lessor, the Participants and the Agent in connection with (1) any
amendment, supplement, waiver or consent with respect to any Operative
Documents, and (2) any enforcement of any rights or remedies against the
Lessee in respect of the Operative Documents;
(c) any other reasonable fees, out-of-pocket expenses, disbursements
or cost of the Lessor or the Agent incurred in connection with the
transactions contemplated by the Operative Documents including any amounts
paid to insurance consultants and the provisions for insurance required
under Section 14.1 of the Lease;
(d) 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;
(e) any title fees, premiums and escrow costs and other expenses
relating to title insurance and the closing contemplated by the Operative
Documents;
(f) all expenses relating to all Environmental Audits;
(g) the Arrangement Fee, the Agent Fee, the Administration Fee, the
Commitment Fees and the Upfront Fees payable to the Participants in respect
of their Commitments; and
(h) any and all Appraisal fees.
"UCC Financing Statements" means collectively the Agent Financing
------------------------
Statements and the Lessor Financing Statements.
"Unencumbered Cash" means with respect to the Lessee, any of Lessee's Cash
-----------------
or Cash Equivalents not encumbered by a Lien.
"Uniform Commercial Code" and "UCC" means the Uniform Commercial Code as in
----------------------- ---
effect in any applicable jurisdiction.
"Unused" means, with respect to the Total Commitment at any time, the
------
remainder of (a) the Total Commitment at such time minus (b) the aggregate
amount of all Advances made prior to such time.
"Upfront Fee" is defined in Section 4.3 of the Participation Agreement.
-----------
"Upfront Fee Payment Date" means (i) with respect to all Participants
------------------------
holding a Tranche A-1 Participation Interest Commitment, a Tranche B-1
Participation Interest Commitment on the Document Closing Date or a Tranche C
Equity Interest Commitment, the Document Closing Date, and (ii) with respect to
each other Participant becoming a Tranche A-1 Participant or Tranche B-1
Participant after the Syndication Closing Date pursuant to a purchase of a
Tranche A-1 Participation Interest or a Tranche B-1 Participation Interest that
is being converted from a Tranche A-2 Participation Interest or a Tranche B-2
Participation Interest in connection with such percentage pursuant to Section
3.7(f)(iii) of the Participation Agreement, the effective date of such purchase
and conversion.
"Upfront Fee Rate" means with respect to the Tranche A-1 Participation
----------------
Interests, Tranche B-1 Participation Interests and Tranche C Equity Interests,
the rate set forth in the Fee Letter.
"Value" is defined in Section 1.01 of the Cash Collateral Agreement.
-----
"Voluntary Retention of the Property" means any election made by the
-----------------------------------
Lessor, either after the occurrence and continuance of a Lease Event of Default
or upon a failure to sell the Property following the Lessee's exercise of the
Remarketing Option, to keep the Property in the event in either such case, the
Lessee has not exercised the Purchase Option and has returned the Property to
the Lessor pursuant to Section 17.2(i) or Section 19.1(b) of the Lease and has
made and caused to be made all payments to the Lessor required by the Operative
Documents (including any Shortfall Amount payable pursuant to Section 13.2 of
the Participation Agreement).
"Wholly-Owned Domestic Subsidiary" means a Domestic Subsidiary of the
--------------------------------
Lessee that is a Wholly-Owned Subsidiary.
"Wholly-Owned Foreign Subsidiary" means a Foreign Subsidiary of the Lessee
-------------------------------
that is a Wholly-Owned Subsidiary.
"Wholly-Owned Subsidiary" means a Subsidiary of the Lessee, at least 99% of
-----------------------
the capital stock of which (other than directors' qualifying shares) is owned by
the Lessee or another Wholly-Owned Subsidiary.
"Within the Lessee's Control" means, with respect to any event or
---------------------------
circumstance, that such event or circumstance was caused by or arose from (a)
any failure by the Lessee to comply with any of its obligations under the
Operative Documents (including all insurance obligations), (b) any
representation or warranty by the Lessee in any Operative Documents not being
true, (c) any negligence or willful misconduct of the Lessee, or (d) any claim
by any third party against the Lessor based upon the action or inaction of the
Lessee, including the Lessee's contractors and subcontractors.
