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Recording requested by, and when |
recorded, please return to: |
|
McGuire, Woods, Battle & Xxxxxx LLP |
00 Xxxx Xxxxxx Xxxxx x
Xxxxx 0000 x
Xxxxxxx, Xxxxxxxx 00000 |
|
ATTN: X. Xxxx Xxxxx, Esq. |
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(Space Above this line Reserved
for Recorder's Use Only)
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LEASE
between
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent Lessor for the Lessors,
and
WIND RIVER SYSTEMS, INC.,
as Lessee
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Dated as of November 30, 1999
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This Lease is subject to a security interest in favor of Deutsche Bank AG, New
York and/or Cayman Islands Branch as agent (the "Agent"), under a Credit
Agreement, dated as of November 30, 1999, among Deutsche Bank AG, New York
Branch, the Lenders, and the Agent, as amended or supplemented. This Lease has
been executed in several counterparts. To the extent, if any, that this Lease
constitutes chattel paper (as such term is defined in the Uniform Commercial
Code of the State of California), no security interest in 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
Page
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ARTICLE I.........................................................................................................1
1.1 DEFINITIONS.......................................................................................1
ARTICLE II........................................................................................................1
2.1 PROPERTY..........................................................................................1
2.2 LEASE TERM........................................................................................1
2.3 TITLE.............................................................................................1
2.4 LEASE SUPPLEMENT..................................................................................1
2.5 EACH LESSOR TO HAVE AN UNDIVIDED INTEREST.........................................................1
ARTICLE III.......................................................................................................2
3.1 RENT; CAPITALIZED INTEREST........................................................................2
3.2 PAYMENT OF BASIC RENT.............................................................................2
3.3 SUPPLEMENTAL RENT.................................................................................2
3.4 PERFORMANCE ON A NON-BUSINESS DAY.................................................................3
3.5 METHOD OF PAYMENT.................................................................................3
ARTICLE IV........................................................................................................3
4.1 UTILITY CHARGES...................................................................................3
ARTICLE V.........................................................................................................4
5.1 QUIET ENJOYMENT...................................................................................4
ARTICLE VI........................................................................................................4
6.1 NET LEASE; NO SETOFF; ETC.........................................................................4
6.2 NO TERMINATION OR ABATEMENT.......................................................................5
ARTICLE VII.......................................................................................................5
7.1 OWNERSHIP OF THE PROPERTY.........................................................................5
7.2 LIENS AND SECURITY INTERESTS......................................................................6
ARTICLE VIII......................................................................................................8
8.1 CONDITION OF THE PROPERTY.........................................................................8
8.2 POSSESSION AND USE OF THE PROPERTY................................................................9
ARTICLE IX........................................................................................................9
9.1 COMPLIANCE WITH LEGAL REQUIREMENTS AND INSURANCE REQUIREMENTS.....................................9
ARTICLE X.........................................................................................................9
10.1 MAINTENANCE AND REPAIR; RETURN....................................................................9
10.3 RIGHT OF INSPECTION..............................................................................10
10.4 ENVIRONMENTAL INSPECTION.........................................................................11
i
TABLE OF CONTENTS
(continued)
Page
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ARTICLE XI.......................................................................................................11
11.1 MODIFICATIONS, SUBSTITUTIONS AND REPLACEMENTS....................................................11
ARTICLE XII......................................................................................................12
12.1 WARRANTY OF TITLE................................................................................12
12.2 GRANTS AND RELEASES OF EASEMENTS.................................................................13
ARTICLE XIII.....................................................................................................14
13.1 PERMITTED CONTESTS OTHER THAN IN RESPECT OF IMPOSITIONS..........................................14
ARTICLE XIV......................................................................................................14
14.1 PUBLIC LIABILITY AND WORKERS' COMPENSATION INSURANCE.............................................14
14.2 HAZARD AND OTHER INSURANCE.......................................................................15
14.3 COVERAGE.........................................................................................15
ARTICLE XV.......................................................................................................16
15.1 CASUALTY AND CONDEMNATION........................................................................16
15.2 ENVIRONMENTAL MATTERS............................................................................17
15.3 NOTICE OF ENVIRONMENTAL MATTERS..................................................................18
ARTICLE XVI......................................................................................................18
16.1 TERMINATION UPON CERTAIN EVENTS..................................................................18
16.2 TERMINATION PROCEDURES...........................................................................20
ARTICLE XVII.....................................................................................................20
17.1 LEASE EVENTS OF DEFAULT..........................................................................20
17.2 FINAL LIQUIDATED DAMAGES.........................................................................22
17.3 LEASE REMEDIES...................................................................................23
17.4 WAIVER OF CERTAIN RIGHTS.........................................................................28
17.5 ASSIGNMENT OF RIGHTS UNDER CONTRACTS.............................................................29
17.6 POWER OF SALE AND FORECLOSURE....................................................................29
17.7 REMEDIES CUMULATIVE..............................................................................32
17.8 LESSEE'S RIGHT TO CURE...........................................................................32
ARTICLE XVIII....................................................................................................33
18.1 AGENT LESSOR'S RIGHT TO CURE LESSEE'S LEASE DEFAULTS.............................................33
ARTICLE XIX......................................................................................................33
19.1 PROVISIONS RELATING TO LESSEE'S TERMINATION OF THIS LEASE OR EXERCISE OF PURCHASE OPTIONS........33
ARTICLE XX.......................................................................................................33
20.1 PURCHASE OPTION..................................................................................33
20.2 MATURITY DATE PURCHASE OPTION....................................................................34
ii
TABLE OF CONTENTS
(continued)
Page
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20.3 EXTENSION OF EXPIRATION DATE.....................................................................34
ARTICLE XXI......................................................................................................34
21.1 SALE PROCEDURE...................................................................................34
21.2 APPLICATION OF PROCEEDS OF SALE..................................................................35
21.3 INDEMNITY FOR EXCESSIVE WEAR.....................................................................35
21.4 APPRAISAL PROCEDURE..............................................................................36
21.5 CERTAIN OBLIGATIONS CONTINUE.....................................................................36
ARTICLE XXII.....................................................................................................36
22.1 HOLDING OVER.....................................................................................36
ARTICLE XXIII....................................................................................................37
23.1 RISK OF LOSS.....................................................................................37
ARTICLE XXIV.....................................................................................................37
24.1 SUBLETTING AND ASSIGNMENT........................................................................37
24.2 SUBLEASES........................................................................................38
ARTICLE XXV......................................................................................................38
25.1 ESTOPPEL CERTIFICATES............................................................................38
ARTICLE XXVI.....................................................................................................38
26.1 NO WAIVER........................................................................................38
ARTICLE XXVII....................................................................................................38
27.1 ACCEPTANCE OF SURRENDER..........................................................................38
ARTICLE XXVIII...................................................................................................39
28.1 NO MERGER OF TITLE...............................................................................39
ARTICLE XXIX.....................................................................................................39
29.1 NOTICES..........................................................................................39
ARTICLE XXX......................................................................................................40
30.1 MISCELLANEOUS....................................................................................40
30.2 AMENDMENTS AND MODIFICATIONS.....................................................................40
30.3 SUCCESSORS AND ASSIGNS...........................................................................40
30.4 HEADINGS AND TABLE OF CONTENTS...................................................................40
30.5 COUNTERPARTS.....................................................................................41
30.6 GOVERNING LAW....................................................................................41
30.7 LIMITATIONS ON RECOURSE..........................................................................41
30.8 RECORDATION OF LEASE.............................................................................41
30.9 PRIORITY.........................................................................................41
iii
TABLE OF CONTENTS
(continued)
Page
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ARTICLE XXXI.....................................................................................................41
31.1 GROUND LEASE.....................................................................................41
iv
TABLE OF CONTENTS
(continued)
Page
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Exhibits
Exhibit A Lease Supplement
v
LEASE (this "LEASE"), dated as of November 30, 1999, between DEUTSCHE BANK
AG, NEW YORK BRANCH, a duly licensed branch of Deutsche Bank AG, a German
corporation, having its principal office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000 as agent for the Lessors (in such capacity, the "AGENT LESSOR"), and
WIND RIVER SYSTEMS, INC., a Delaware corporation, having its principal office at
000 Xxxx Xxxxx Xxx, Xxxxxxx, Xxxxxxxxxx 00000, as lessee (the "LESSEE").
In consideration of the mutual agreements herein contained, and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1 DEFINITIONS. Capitalized terms used but not otherwise defined in this
Lease have the respective meanings specified in Annex A to the Participation
Agreement dated as of the date hereof among Lessee, the Lessors, Agent, the
Lenders named therein, Agent Xxxxxx and the Arranger.
ARTICLE II
2.1 PROPERTY. Subject to the terms and conditions hereinafter set forth and
contained in the Lease Supplement relating to the Property, Agent Lessor hereby
leases to Lessee, and Lessee hereby leases from Agent Lessor, the Property.
2.2 LEASE TERM. The Property is leased for the Term, unless extended or
earlier terminated in accordance with the provisions of this Lease.
2.3 TITLE. The Property is leased to Lessee without any representation or
warranty, express or implied, by Agent Xxxxxx and subject to the rights of
parties in possession, the existing state of title (including, without
limitation, the Permitted Exceptions), the terms of the Ground Lease and all
applicable Legal Requirements. Lessee shall in no event have any recourse
against Agent Xxxxxx for any defect in title to the Property.
2.4 LEASE SUPPLEMENT. On the Property Closing Date, Lessee and Agent Xxxxxx
shall each execute and deliver a Lease Supplement for the Property to be leased
on such date in substantially the form of EXHIBIT A hereto and thereafter the
Property shall be subject to the terms of this Lease.
2.5 EACH LESSOR TO HAVE AN UNDIVIDED INTEREST. Each party to this Lease
hereby acknowledges that Section 16.13 of the Participation Agreement applies in
full force and effect to this Lease, the Lease Supplement and each other
Operative Agreement.
ARTICLE III
3.1 RENT; CAPITALIZED INTEREST. (a) On each applicable Payment Date during
the Term and on any date when this Lease shall terminate, Lessee shall pay Basic
Rent for the Property.
(b) (i) Capitalized Interest shall be due and payable during the
Construction Period, on each applicable Payment Date and on any date which this
Lease shall terminate, in the
manner set forth in Sections 2.3 and 2.4 of Credit Agreement and 2.7 of the
Participation Agreement and (ii) thereafter, Basic Rent shall be due and payable
in lawful money of the United States and shall be paid by wire transfer of
immediately available funds on the due date therefor to such account or accounts
at such bank or banks or to such other Person or in such other manner as Agent
Lessor shall from time to time direct.
(c) Neither Lessee's inability or failure to take possession of all, or any
portion, of the Property when delivered by Agent Xxxxxx, nor Agent Lessor's
inability or failure to deliver all or any portion of the Property to Lessee,
whether or not attributable to any act or omission of Lessee or any act or
omission of Agent Lessor, or for any other reason whatsoever, shall delay or
otherwise affect Xxxxxx's obligation to pay Rent in accordance with the terms of
this Lease.
3.2 PAYMENT OF BASIC RENT. Basic Rent shall be paid absolutely net to Agent
Lessor, so that this Lease shall yield to Agent Lessor the full amount thereof,
without setoff, deduction or reduction.
3.3 SUPPLEMENTAL RENT. (a) Lessee shall pay to Agent Lessor or the Person
entitled thereto any and all Supplemental Rent promptly as the same shall become
due and payable, and if Lessee fails to pay any Supplemental Rent, Agent 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. Lessee shall pay to
Agent Lessor as Supplemental Rent, among other things, on demand, to the extent
permitted by applicable Requirements of 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 Agent 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 Xxxxxx's obligations to pay Basic Rent
hereunder shall not limit or modify the obligations of Lessee with respect to
Supplemental Rent. Unless expressly provided otherwise in this Lease or any
other Operative Agreement, in the event of any failure on the part of Lessee to
pay and discharge any Supplemental Rent as and when due, Lessee shall also
promptly pay and discharge any fine, penalty, interest or cost which may be
assessed or added for nonpayment or late payment of such Supplemental Rent, all
of which shall also constitute Supplemental Rent.
(b) Lessee shall make a payment of Supplemental Rent equal to the Maximum
Residual Guarantee Amount or the Construction Period Maximum Recourse Amount in
accordance with Section 21.1(c) hereof or Article IV or V of the Agency
Agreement, if applicable.
3.4 PERFORMANCE ON A NON-BUSINESS DAY. If any payment is required hereunder
on a day that is not a Business Day, then such payment shall be due on the next
succeeding Business Day (subject to the definition of the term "Interest
Period").
3.5 METHOD OF PAYMENT. Each payment of Rent payable by Lessee to Agent
Lessor under this Lease or any other Operative Agreement shall be made by Lessee
to Agent as assignee of Agent Lessor under the Assignment of Lease (or, if the
Loans and all other amounts owing to
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the Lenders under the Credit Agreement and the other Operative Agreements have
been paid in full and all Commitments of the Lenders have been permanently
terminated, to Agent Lessor) prior to 12:00 (Noon), (New York time) to the
Account in immediately available funds consisting of lawful currency of the
United States of America on the date when such payment shall be due. Payments
received after 12:00 (Noon), (New York time) on the date due shall for the
purpose of Section 17.1 be deemed received on such day; provided, however, that
for the purposes of the second sentence of Section 3.3, such payments shall be
deemed received on the next succeeding Business Day and shall accrue interest at
the Overdue Rate as provided in such Section 3.3.
ARTICLE IV
4.1 UTILITY CHARGES. 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 Construction
Period and the Term, provided, that such charges paid during the Construction
Period shall be reimbursable as Project Costs through Advances subject to the
terms and conditions of the Operative Agreements. Lessee shall be entitled to
receive any credit or refund with respect to any utility charge paid by Xxxxxx
and the amount of any credit or refund received by Agent Lessor on account of
any utility charges paid by Xxxxxx, net of the costs and expenses incurred by
Lessor in obtaining such credit or refund, shall be promptly paid over to
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 Agent Xxxxxx and Lessee, and each party
shall pay or reimburse the other for each party's pro rata share thereof.
ARTICLE V
5.1 QUIET ENJOYMENT. So long as no Lease Event of Default shall have
occurred and be continuing, Lessee shall peaceably and quietly have, hold and
enjoy the Property for the Term, free of any claim or other action by Agent
Lessor or the Lessors or anyone rightfully claiming by, through or under Agent
Lessor or the Lessors with respect to any matters arising from and after the
Property Closing Date. Such right of quiet enjoyment is independent of, and
shall not affect the rights of Agent Lessor or the Lessors (or anyone claiming
by, through or under Agent Lessor or the Lessors) otherwise to initiate legal
action to enforce, the obligations of Lessee under this Lease.
ARTICLE VI
6.1 NET LEASE; NO SETOFF; ETC. This Lease shall constitute a net lease and,
notwithstanding any other provision of this Lease, it is intended that Basic
Rent and Supplemental Rent shall be paid without counterclaim, setoff, deduction
or defense of any kind and without abatement, suspension, deferment, diminution
or reduction of any kind, and Xxxxxx's obligation to pay all such amounts,
throughout the Term, is absolute and unconditional. The
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obligations and liabilities of Lessee hereunder shall in no way be released,
discharged or otherwise affected for any reason, including, without limitation,
to the maximum extent permitted by law: (a) any defect in the condition,
merchantability, design, construction, quality or fitness for use of any portion
of the Property, or any failure of the Property to comply with all Legal
Requirements, including any inability to occupy or use the Property by reason of
such noncompliance; (b) any damage to, abandonment, loss, contamination of or
Release from or destruction of or any requisition or taking of the Property or
any part thereof, including eviction; (c) any restriction, prevention or
curtailment of or interference with any use of the Property or any part thereof,
including eviction; (d) any defect in title to or rights to the Property or any
Lien on such title or rights or on the Property; (e) any change, waiver,
extension, indulgence or other action or omission or breach in respect of any
obligation or liability of or by any Lessor, Agent Lessor, Agent or any Lender;
(f) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceedings relating to Lessee, any
Lessor, Agent Lessor, Agent, any Lender or any other Person, or any action taken
with respect to this Lease by any trustee or receiver of Lessee, any Lessor,
Agent Lessor, Agent, any Lender or any other Person, or by any court, in any
such proceeding; (g) any claim that Lessee has or might have against any Person,
including, without limitation, any Lessor, Agent Lessor, Agent or any Lender;
(h) any failure on the part of Agent Lessor or any other Lessor to perform or
comply with any of the terms of this Lease, the Ground Lease, any other
Operative Agreement or of any other agreement; (i) any invalidity or
unenforceability or disaffirmance against or by Lessee of this Lease, the Ground
Lease, or any provision hereof or any of the other Operative Agreements or any
provision of any thereof; (j) the impossibility or illegality of performance by
Xxxxxx, Agent Lessor, Lessors or all of them; (k) any action by any court,
administrative agency or other Governmental Authority; any restriction,
prevention or curtailment of or any interference with the construction on or any
use of the Property or any part thereof; or (m) any other occurrence whatsoever,
whether similar or dissimilar to the foregoing, whether or not Lessee shall have
notice or knowledge of any of the foregoing. This Lease shall be noncancellable
by Lessee for any reason whatsoever except as expressly provided herein, and
Lessee, to the extent permitted by Legal Requirements, waives all rights now or
hereafter conferred by statute or otherwise to quit, terminate or surrender this
Lease, or to any diminution, abatement or reduction of Rent payable by Lessee
hereunder. If for any reason whatsoever this Lease shall be terminated in whole
or in part by operation of law or otherwise, except as otherwise expressly
provided herein, Lessee shall, unless prohibited by any Requirements of Law,
nonetheless pay to Agent Lessor (or, in the case of Supplemental Rent, to
whomever shall be entitled thereto) an amount equal to each Rent payment at the
time and in the manner that such payment would have become due and payable under
the terms of this Lease if it had not been terminated in whole or in part, and
in such case, so long as such payments are made and no Lease Event of Default
shall have occurred and be continuing, Agent Lessor will deem this Lease to have
remained in effect. Each payment of Rent made by Lessee hereunder shall be final
and, absent manifest error in the computation of the amount thereof, Lessee
shall not seek or have any right to recover all or any part of such payment from
any Lessor, Agent Lessor, Agent, any Lender or any party to any agreements
related thereto for any reason whatsoever. Lessee assumes the sole
responsibility for the
-4-
condition, use, operation, maintenance, and management of the Property and
neither Agent Lessor nor any Lessor shall have any responsibility in respect
thereof or any liability for damage to the property of Lessee or any subtenant
of Lessee on any account or for any reason whatsoever.
6.2 NO TERMINATION OR ABATEMENT. Lessee shall remain obligated under this
Lease in accordance with its terms and shall not take any action to terminate,
rescind or avoid this Lease, notwithstanding any action for bankruptcy,
insolvency, reorganization, liquidation, dissolution, or other proceeding
affecting any Participant, or any action with respect to this Lease which may be
taken by any trustee, receiver or liquidator of any Participant or by any court
with respect to any Participant, except as otherwise expressly provided herein.
Lessee hereby waives all right (i) to terminate or surrender this Lease, except
as otherwise expressly provided herein, or (ii) to avail itself of any
abatement, suspension, deferment, reduction, setoff, counterclaim or defense
with respect to any Rent. Lessee shall remain obligated under this Lease in
accordance with its terms and Lessee hereby waives 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, Lessee shall be bound by all of the terms and conditions
contained in this Lease.
ARTICLE VII
7.1 OWNERSHIP OF THE PROPERTY. The parties hereto intend that (i) for
financial accounting purposes with respect to Lessee, Agent Lessor, the Lessors
and the Lenders (A) this Lease will be treated as an "operating lease" pursuant
to Statement of Financial Accounting Standards (SFAS) No. 13, as amended, (B)
Agent Lessor will be treated as the owner and lessor of the Property and (C)
Lessee will be treated as the lessee of the Property, but (ii) for federal,
state and local income tax and all other purposes (A) this Lease will be treated
as a financing arrangement, (B) the Lessors and the Lenders will be treated as
lenders making loans to Lessee in an amount equal to the sum of the Lessor
Contributions and the outstanding principal amount of the Loans, which loans are
secured by the Land and the Property, and (C) Lessee will be treated as the
owner of the Land and the Property and will be entitled to all tax benefits
ordinarily available to an owner of land and property like the Land and the
Property for such tax purposes.
7.2 LIENS AND SECURITY INTERESTS. (a) The parties hereto further intend and
agree that, for the purpose of securing Xxxxxx's obligations for the repayment
of the above-described loans, (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 and a real property mortgage or deed of trust, as
applicable; (ii) the conveyance provided for in Article II shall be deemed a
grant of a security interest in and a mortgage lien on Xxxxxx's beneficial
ownership interest in the Land and the Property (including the right to exercise
all remedies as are contained in the Deed of Trust upon the occurrence of a
Lease Event of Default) 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, for the benefit of the Agent Lessor to
-5-
secure Xxxxxx's payment of all amounts owed by Lessee under this Lease and the
other Operative Agreements and Agent Lessor holds title to the Property so as to
create and grant a first lien and prior security interest in the Property (A)
pursuant to this Lease for the benefit of the Agent under the Assignment of
Lease, to secure to the Agent the obligations of Lessee under the Lease and (B)
pursuant to the Deed of Trust to secure to Agent the obligations of the Agent
Lessor under the Deed of Trust and the Notes; (iii) the possession by Agent
Lessor or any of its agents of notes and such other items of property 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 Lessee shall be deemed to have been given for the purpose of
perfecting such security interest under applicable law. The parties hereto
shall, to the extent consistent with this Lease, take such actions 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. Nevertheless,
Xxxxxx acknowledges and agrees that neither any Lessor, Agent Lessor, Agent, or
any Lender has provided or will provide tax, accounting or legal advice to
Lessee regarding this Lease, the Operative Agreements or the transactions
contemplated hereby and thereby, or made any representations or warranties
concerning the tax, accounting or legal characteristics of the Operative
Agreements, and that Lessee has obtained and relied upon such tax, accounting
and legal advice concerning the Operative Agreements as it deems appropriate.
(b) The parties hereto further intend and agree that in the event 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 affecting any party
hereto, the transactions evidenced by this Lease shall be regarded as loans made
by an unrelated third party lender to Lessee.
(c) Specifically, but without limiting the foregoing or the generality of
Section 7.1, Lessee hereby grants, bargains, sells, warrants, conveys, aliens,
remises, releases, assigns, sets over and confirms to Agent Lessor all of
Xxxxxx's right, title, and interest in and to the following (collectively, the
"MORTGAGED PROPERTY"): (i) Xxxxxx's leasehold interest in the Ground Lease, (ii)
the Land and the Property and Appurtenant Rights relating thereto and all
proceeds, both cash and noncash thereof; (iii) all easements, rights-of-way,
strips and gores of land, vaults, streets, ways, alleys, passages, sewer rights,
waters, water courses, water rights, minerals, flowers, shrubs, crops, trees,
timber and other emblements now or hereafter located on the Land or under or
above the same or any part or parcel thereof, and all estates, rights, titles,
interests, tenements, hereditaments and appurtenances, reversions and remainders
whatsoever, in any way belonging, relating or appertaining to the Land and the
Property or any part thereof, or which hereafter shall in any way belong, relate
or be appurtenant thereto, whether now owned or hereafter acquired by Lessee;
(iv) all right, title and interest of Lessee in all furnishings, furniture,
fixtures, machinery, apparatus, Equipment, fittings, appliances, building
supplies and
-6-
materials, chattels, goods, consumer goods, farm products, inventory,
warranties, chattel paper, documents, accounts, general intangibles, trade
names, trademarks, servicemarks, logos (including any names or symbols by which
the Property is known) and goodwill related thereto, and all other articles of
personal property of every kind and nature whatsoever, tangible or intangible,
now, heretofore or hereafter acquired with any proceeds of the Advances and now,
heretofore or hereafter (A) arising out of or related to the ownership of the
Property, or (B) located in, on or about the Property, or (C) used or intended
to be used with or in connection with the construction, use, operation or
enjoyment of the Property; (v) all right, title and interest of Lessee in any
and all leases, rental agreements and arrangements of any sort now or hereafter
affecting the Property or any portion thereof and providing for or resulting in
the payment of money to Lessee for the use of the Property or any portion
thereof, whether the user enjoys the Property or any portion thereof as tenant
for years, licensee, tenant at sufferance or otherwise, and irrespective of
whether such leases, rental agreements and arrangements be oral or written, and
including any and all extensions, renewals and modifications thereof (the
"SUBJECT LEASES") and guaranties of the performance or obligations of any
tenants or lessees thereunder, together with all income, rents, issues, profits
and revenues from the Subject Leases (including all tenant security deposits and
all other tenant deposits, whether held by Lessee or in a trust account, and all
other deposits and escrow funds relating to any Subject Leases), and all the
estate, right, title, interest, property, possession, claim and demand
whatsoever at law, as well as in equity, of Lessee of, in and to the same;
provided, however, that although this Lease contains (and it is hereby agreed
that this Lease contains) a present, current, unconditional and absolute
assignment of all of said income, rents, issues, profits and revenues, Lessee
shall collect and apply such rental payments and revenues as provided in the
Lease and the other Operative Agreements (vi) all right, title and interest of
Lessee to and under all agreements, management contracts, consents,
authorizations, certificates and other rights of every kind and character of any
Governmental Authority affecting the Property, to the extent the same are
transferable, service contracts, utility contracts, leases of equipment,
documents and agreements relating to the construction of any Improvements
(including any and all construction contracts, architectural contracts,
engineering contracts, designs, plans, specifications, drawings, surveys, tests,
reports, bonds and governmental approvals) and all other contracts, licenses and
permits now or hereafter affecting the Property or any part thereof and all
guaranties and warranties with respect to any of the foregoing (the "SUBJECT
CONTRACTS"); (vii) all right, title and interest of Lessee in any insurance
policies or binders now or hereafter relating to the Property, including any
unearned premiums thereon, as further provided in this Lease; (viii) all right,
title and interest of Lessee in any and all awards, payments, proceeds and the
right to receive the same, either before or after any foreclosure hereunder, as
a result of any temporary or permanent injury or damage to, taking of or
decrease in the value of the Property by reason of casualty, condemnation or
otherwise as further provided in this Lease; (ix) all right, title and interest
of Lessee in all utility, escrow and all other deposits (and all letters of
credit, certificates of deposit, negotiable instruments and other rights and
evidence of rights to cash) now or hereafter relating to the Property or the
purchase, construction or operation thereof; (x) all claims and causes of action
arising from or otherwise related to any of the foregoing, and all rights and
judgments related to any legal
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actions in connection with such claims or causes of action; and (xi) all
Modifications, extensions, additions, improvements, betterments, renewals and
replacements, substitutions, or proceeds of any of the foregoing, and all
inventory, chattel paper, documents, instruments, Equipment, fixtures, farm
products, consumer goods, general intangibles and other property of any nature
constituting proceeds acquired with proceeds of any of the property described
hereinabove; all of which foregoing items are hereby declared and shall be
deemed to be a portion of the security for the indebtedness and Advances herein
described, a portion of the above described collateral being located upon the
Land.
ARTICLE VIII
8.1 CONDITION OF THE PROPERTY. XXXXXX ACKNOWLEDGES AND AGREES THAT IT IS
RENTING THE PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) BY AGENT XXXXXX AND SUBJECT 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 LEGAL REQUIREMENTS WHICH MAY EXIST ON THE DATE HEREOF. NEITHER ANY
LESSOR, AGENT LESSOR, AGENT NOR ANY LENDER HAS MADE OR SHALL BE DEEMED TO HAVE
MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED, INCLUDING THE
CONDITION OF ANY IMPROVEMENTS THEREON, THE SOIL CONDITION, OR ANY ENVIRONMENTAL
OR HAZARDOUS MATERIAL CONDITION) OR SHALL BE DEEMED TO HAVE ANY LIABILITY
WHATSOEVER AS TO THE TITLE, VALUE, HABITABILITY, USE, CONDITION, DESIGN,
OPERATION, OR FITNESS FOR USE OF THE PROPERTY (OR ANY PART THEREOF), OR ANY
OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PROPERTY (OR ANY PART THEREOF) AND NEITHER ANY LESSOR, AGENT
XXXXXX, AGENT NOR ANY LENDER 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 LEGAL REQUIREMENT.
8.2 POSSESSION AND USE OF THE PROPERTY. The Property shall be used in a
manner consistent with the Agency Agreement and, after the Completion Date, as
office buildings and in compliance with the Ground Lease. Lessee shall pay, or
cause to be paid, all charges and costs required in connection with the use of
the Property. Lessee shall not commit or permit any waste of the Property or any
part thereof.
ARTICLE IX
9.1 COMPLIANCE WITH LEGAL REQUIREMENTS AND INSURANCE REQUIREMENTS. Subject
to the terms of Article XIII relating to permitted contests, Lessee, at its sole
cost and expense, shall (a) comply with all Legal Requirements (including all
Environmental Laws) and Insurance
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Requirements relating to the Property, including the use, construction,
operation, maintenance, repair and restoration thereof, whether or not
compliance therewith shall require structural or extraordinary changes in the
Improvements or interfere with the use and enjoyment of the Property, and (b)
procure, maintain and comply in all material respects with all licenses,
permits, orders, approvals, consents and other authorizations required for the
construction, renovation, use, maintenance and operation of the Property and for
the use, operation, maintenance, repair and restoration of the Improvements;
provided that costs incurred by the Lessee during the Construction Period under
this Section 9.1 shall be reimbursable as Project Costs through Advances,
subject to the terms and conditions of the Operative Agreements.
ARTICLE X
10.1 MAINTENANCE AND REPAIR; RETURN. 10.2 Lessee, at its sole cost and
expense, shall maintain the Property in good condition (ordinary wear and tear
excepted) and make all necessary repairs thereto, of every kind and nature
whatsoever, whether interior or exterior, ordinary or extraordinary, structural
or nonstructural or foreseen or unforeseen, in each case as required by all
Legal Requirements and Insurance Requirements and on a basis reasonably
consistent with the operation and maintenance of commercial properties
comparable in type and location to the Property subject, however, to the
provisions of Article XV with respect to Condemnation and Casualty.
(a) Agent 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.
Agent Lessor shall not be required to maintain, repair or rebuild all or any
part of the Property, and Lessee waives the right to (i) require Agent Lessor to
maintain, repair, or rebuild all or any part of the Property, or (ii) make
repairs at the expense of Agent Lessor pursuant to the Ground Lease or any Legal
Requirement, Insurance Requirement, contract, agreement, covenants, condition or
restriction at any time in effect.
(b) Lessee shall, upon the expiration or earlier termination of the Term or
the Construction Period with respect to the Property not including a purchase
thereof by Xxxxxx, vacate, surrender and transfer the Property to Agent Lessor
or, at Agent Xxxxxx's request, the independent purchaser thereof, at Xxxxxx's
own expense, free and clear of all Liens other than Permitted Liens and Lessor
Liens, in as good condition as it was on the Completion of the Improvements
thereon or on such termination date, if during the Construction Period, ordinary
wear and tear during the Term excepted, and in compliance with all Legal
Requirements and the other requirements of this Lease and the Agency Agreement
(and in any event without (x) any asbestos installed or maintained in any part
of the Property, (y) any polychlorinated byphenyls (PCBs) in, on or used, stored
or located at the Property, and (z) any other Hazardous Substances). Lessee
shall cooperate with any independent purchaser of the Property in order to
facilitate the ownership or leasing and operation by such purchaser of the
Property after such expiration or earlier termination of the Term or the
Construction Period, including providing all
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books, reports and records regarding the maintenance, repair and ownership of
the Property and all data and technical information relating thereto, granting
or assigning all licenses necessary for the operation and maintenance of the
Property and cooperating in seeking and obtaining all necessary licenses,
permits and approvals of Governmental Authorities. Lessee shall have also paid
the total cost for the completion of all Modifications commenced prior to such
expiration or earlier termination of the Term. The obligation of Lessee under
this Section 10.1(c) shall survive the expiration or termination of this Lease.
10.3 RIGHT OF INSPECTION. During the Construction Period and the Term,
Agent Lessor, any Lessor, Agent or any Lender may, each not more than twice each
year unless a Lease Event of Default exists, at reasonable times and with
reasonable prior notice, enter upon, inspect and examine at its own cost and
expense (unless a Lease Event of Default exists, in which case the out-of-pocket
costs and expenses of such parties shall be paid by Lessee), the Property.
Lessee shall furnish to Agent Lessor statements, no more than once per year,
accurate in all material respects, regarding the condition and state of repair
of the Property. Agent Lessor shall have no duty to make any such inspection or
inquiry and shall not incur any liability or obligation by reason of not making
any such inspection or inquiry.
10.4 ENVIRONMENTAL INSPECTION. Upon surrender of possession of the
Property, on not more than 120 days nor less than 30 days prior to the
Expiration Date or earlier termination of the Term or the Construction Period
(unless Lessee has previously irrevocably exercised the Purchase Option or
Maturity Date Purchase Option or the Construction Period is being followed by
the Term), Lessee shall, at its sole cost and expense (which, if paid during the
Construction Period, shall be reimbursable by Lessor, subject to the terms and
conditions of the Operative Agreements), provide to Agent Lessor a report by an
environmental consultant selected by Lessee and reasonably satisfactory to Agent
Lessor certifying that Hazardous Substances have not at any time during the Term
or the Construction Period been generated, used, treated or stored on,
transported to or from, Released at, on or from or deposited at or on the
Property other than (i) as necessary to use, operate, maintain, repair and
restore the Property and (ii) in full compliance with all Environmental Laws,
and no portion of the Property has been used for such purposes other than in
full compliance with all Environmental Laws. If such is not the case, the report
shall set forth a remedial response plan relating to the Property (which
remedial response plan, if required by any Environmental Law or Governmental
Authority, shall be approved by the appropriate Governmental Authority). Such
remedial response plan shall include, but shall not be limited to, plans for
full response, remediation, removal, or other corrective action, and the
protection, or mitigative action associated with the protection, of natural
resources including wildlife, aquatic species, and vegetation associated with
the Property, as required by all applicable Environmental Laws. If such report
includes a remedial response plan, Xxxxxx shall promptly deposit funds in escrow
with the Agent sufficient to ensure the full execution and implementation of
such plan.
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ARTICLE XI
11.1 MODIFICATIONS, SUBSTITUTIONS AND REPLACEMENTS. So long as no Lease
Event of Default has occurred and is continuing, Lessee, at its sole cost and
expense, may at any time and from time to time make alterations, renovations,
improvements and additions to the Property or any part thereof (collectively,
"MODIFICATIONS"); PROVIDED, that: (i) except for any Modification required to be
made pursuant to a Legal Requirement or an Insurance Requirement, no
Modification, individually, or when aggregated with any (A) other Modification
or (B) grant, dedication, transfer or release pursuant to Section 12.2, shall
materially impair the value of the Property or the utility or useful life of the
Property from that which existed immediately prior to such Modification; (ii)
the Modification shall be performed expeditiously and in a good and workmanlike
manner; (iii) Lessee shall comply with all Legal Requirements (including all
Environmental Laws) and Insurance Requirements applicable to the Modification,
including the obtaining of all permits and certificates of occupancy, and the
structural integrity of the Property shall not be adversely affected; (iv)
Lessee shall maintain or cause to be maintained builders' risk insurance at all
times when a Modification is in progress; (v) subject to the terms of Article
XIII relating to permitted contests, Lessee shall pay all costs and expenses and
discharge any Liens arising with respect to the Modification; (vi) such
Modifications shall comply with Sections 8.2 and 10.1 and shall not change the
primary character of the Property; and (vii) no Improvements shall be
demolished. All Modifications (other than those that may be readily removed
without impairing the value, utility or remaining useful life of the Property)
shall remain part of the Improvements and shall be subject to this Lease, and
title thereto shall immediately vest in Agent Lessor. So long as no Lease Event
of Default has occurred and is continuing, Lessee may place upon the Property
any inventory, trade fixtures, machinery, equipment or other property belonging
to Lessee or third parties and may remove the same at any time during the term
of this Lease; PROVIDED that such inventory, trade fixtures, machinery,
equipment or other property, or their respective operations, do not materially
impair the value, utility or remaining useful life of the Property.
(a) Following the Completion Date with respect to the Property, Lessee
shall notify Agent Lessor of the undertaking of any construction, repairs or
alterations to the Property the cost of which is anticipated to exceed $500,000.
Prior to undertaking any such construction or alterations, Lessee shall deliver
to Agent Lessor (i) a brief narrative of the work to be done and a copy of the
plans and specifications relating to such work; and (ii) an Officer's
Certificate stating that such work when completed will not impair the value,
utility or remaining useful life of the Property. Agent Lessor, by itself or its
agents, shall have the right, but not the obligation, from time to time to
inspect such construction to ensure that the same is completed consistent with
such plans and specifications.
(b) Following the Completion Date with respect to the Property, Lessee
shall not without the consent of Agent Lessor undertake any construction or
alterations to the Property if such construction or alterations cannot, in the
reasonable judgement of Agent Lessor, be completed on or prior to the date that
is twelve months prior to the Expiration Date.
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ARTICLE XII
12.1 WARRANTY OF TITLE. (a) Lessee agrees that, except as otherwise
provided herein and subject to the terms of Article XIII relating to permitted
contests, 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 any
Modifications or any Lien, attachment, levy or claim with respect to the Rent or
with respect to any amounts held by Agent or the Defeasance Deposit Depositary
Bank pursuant to the Credit Agreement or the Defeasance Deposit Agreement, other
than with respect to the Property only, Permitted Liens. Lessee shall promptly
notify Agent Lessor in the event it receives actual knowledge that a Lien (other
than a Permitted Lien) exists with respect to the Property or that a Lien exists
with respect to the Rent or the Collateral.
(b) Nothing contained in this Lease shall be construed as constituting the
consent or request of Agent Xxxxxx, 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 AGENT XXXXXX, AGENT,
ANY LESSOR NOR ANY LENDER IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING THE
PROPERTY OR ANY PART THEREOF THROUGH OR UNDER LESSEE, AND THAT NO MECHANIC'S OR
OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT
THE INTEREST OF XXXXXX 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, Agent Lessor and each Lessor hereby consents to the
following actions by Xxxxxx, in the name and stead of Agent Lessor and the
Lessors, but at Lessee's sole cost and expense: (a) the granting (prior to the
Lien of the Deed of Trust) of easements, licenses, rights-of-way and other
rights and privileges in the nature of easements reasonably necessary or
desirable for the construction, use, repair, renovation or maintenance of the
Property as herein provided; (b) the release (free and clear of the Lien of the
Deed of Trust) of existing easements or other rights in the nature of easements
which are for the benefit of the Property or adjacent properties (owned by the
Lessee); (c) the dedication or transfer (prior to the Lien of the Deed of Trust)
of unimproved portions of the Property for road, highway or other public
purposes; (d) the execution of petitions to have the Property annexed to any
municipal corporation or utility district; and (e) the execution of amendments
to any covenants and restrictions affecting the Property; PROVIDED, that in each
case Lessee shall have delivered to Agent Lessor an Officer's Certificate
stating that: (i) such grant, release, dedication or transfer does not
materially impair the value, utility or remaining useful life of the Property,
(ii) such grant, release, dedication or transfer is necessary in connection with
the construction, use, maintenance, alteration, renovation or improvement of the
Property or adjacent properties (owned by the Lessee), (iii) Lessee shall remain
obligated under this Lease
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and under any instrument executed by Xxxxxx consenting to the assignment of
Agent Xxxxxx's or any Xxxxxx's interest in this Lease as security for
indebtedness, in each such case in accordance with their terms, as though such
grant, release, dedication or transfer, had not been effected and (iv) Lessee
shall pay and perform any obligations of Agent Lessor or any Lessor under such
grant, release, dedication or transfer. Without limiting the effectiveness of
the foregoing, provided that no Lease Event of Default shall have occurred and
be continuing, Agent Lessor shall, upon the request of Xxxxxx, and at Xxxxxx's
sole cost and expense, execute and deliver any instruments necessary or
appropriate to confirm any such grant, release, dedication or transfer to any
Person permitted under this Section.
ARTICLE XIII
13.1 PERMITTED CONTESTS OTHER THAN IN RESPECT OF IMPOSITIONS. Except to the
extent otherwise provided for in Section 12.3(f) of the Participation Agreement,
Lessee, on its own or on Agent Lessor's and the Lessors' behalf but at 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 Legal Requirement, or utility
charges payable pursuant to Section 4.1 or any Lien, attachment, levy,
encumbrance or encroachment, and Agent Xxxxxx 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 Rent, the Collateral,
any Lessor, Agent, Agent Lessor and the Lenders; (b) there shall be no risk of
the imposition of a Lien (other than a Permitted Lien) on the Property, or any
Lien on any Rent or the Collateral, and no part of the Property nor any Rent or
any of the Collateral would be in any danger of being sold, forfeited, lost or
deferred; (c) at no time during the permitted contest shall there be a risk of
the imposition of criminal liability or civil liability on any Lessor, Agent,
Agent Lessor or any Lender for failure to comply therewith; and (d) in the event
that, at any time, there shall be a material risk of extending the application
of such item beyond the Expiration Date, then Lessee shall deliver to Agent
Lessor an Officer's Certificate certifying as to the matters set forth in
clauses (a), (b) and (c) of this Section 13.1. Agent Xxxxxx, at Xxxxxx's sole
cost and expense, shall execute and deliver to Lessee such authorizations and
other documents as may reasonably be required in connection with any such
contest and, if reasonably requested by Xxxxxx, shall join as a party therein at
Xxxxxx's sole cost and expense.
ARTICLE XIV
14.1 PUBLIC LIABILITY AND WORKERS' COMPENSATION INSURANCE. During the Term,
Xxxxxx shall procure and carry, at Xxxxxx's sole cost and expense, commercial
general liability insurance for claims for injuries or death sustained by
persons or damage to property while on the Property. Such insurance shall be on
terms and in amounts that are no less favorable than insurance maintained by
owners of similar properties, that are in accordance with normal industry
practice. The policy shall be endorsed to name each Lessor, Agent Xxxxxx, Agent
and each Lender as
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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 any Lessor, Agent Lessor, Agent
or any Lender may have in force. Lessee shall, in the operation of the Property,
comply with the applicable workers' compensation laws and protect each Lessor,
Agent Lessor, Agent and each Lender against any liability under such laws.
14.2 HAZARD AND OTHER INSURANCE. (a) During the Term, Lessee shall keep the
Property insured against loss or damage by fire and other risks on terms and in
amounts that are no less favorable than insurance maintained by owners of
similar properties, that are in accordance with normal industry practice, are in
amounts equal to the actual replacement cost of the Improvements. So long as no
Lease Event of Default exists, any loss payable under the insurance policy
required by this Section will be paid to and adjusted solely by Xxxxxx, subject
to Article XV. So long as no Lease Event of Default exists, any loss payable
under any title insurance policy covering the Property will be paid to and
adjusted solely by Xxxxxx, subject to Article XV.
(b) If at any time during the Term the area in which the Property is
located is designated a "flood-prone" area pursuant to the Flood Disaster
Protection Act of 1973 or any amendments or supplements thereto, then Lessee
shall comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973, as may be amended. In addition, Xxxxxx will
fully comply with the requirements of the National Flood Insurance Act of 1968
and the Flood Disaster Protection Act of 1973, as each may be amended from time
to time, and with any other Legal Requirement concerning flood insurance to the
extent that it applies to the Property.
14.3 COVERAGE. Lessee shall furnish Agent Lessor with certificates showing
the insurance required under Sections 14.1 and 14.2 to be in effect and naming
Agent Lessor as loss payee with respect to property insurance and Agent, the
Lenders, Agent Lessor and the Lessors as an additional insured with respect to
liability insurance and showing the mortgagee endorsement required by Section
14.3(c). All such insurance shall be at the cost and expense of Lessee. Such
certificates shall include a provision in which the insurer agrees to endeavor
to provide thirty (30) days' advance written notice by the insurer to Agent
Xxxxxx and Agent in the event of cancellation or modification of such insurance.
If a Lease Event of Default has occurred and is continuing and Lessor so
requests, Lessee shall deliver to Agent Lessor copies of all insurance policies
required by this Lease.
(a) Lessee agrees that the insurance policy or policies required by this
Lease shall include an appropriate clause pursuant to which such policy shall
provide that it will not be invalidated should Lessee waive, in writing, prior
to a loss, any or all rights of recovery against any party for losses covered by
such policy. Lessee hereby waives any and all such rights against each Lessor,
Agent Lessor, Agent and each Lender to the extent of payments made under such
policies.
(b) All insurance policies required by Section 14.2 shall include a "New
York" or standard form mortgagee endorsement in favor of the Agent.
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(c) Neither Agent Lessor nor any Lessor shall carry separate insurance
concurrent in kind or form or contributing in the event of loss with any
insurance required under this Lease except that Agent Lessor and any Lessor may
carry separate liability insurance so long as (i) Lessee's insurance is
designated as primary and in no event excess or contributory to any insurance
such party may have in force which would apply to a loss covered under Lessee's
policy and (ii) each such insurance policy will not cause Lessee's insurance
required under this Lease to be subject to a coinsurance exception of any kind.
(d) Lessee shall pay as they become due all premiums for the insurance
required by this Lease, shall renew or replace each policy prior to the
expiration date thereof and shall promptly deliver to Agent Lessor and Agent
certificates for renewal and replacement policies.
ARTICLE XV
15.1 CASUALTY AND CONDEMNATION. (a) Subject to the provisions of this
Article XV and Article XVI (in the event Lessee delivers, or is obligated to
deliver, a Termination Notice), and prior to the occurrence and continuation of
a Lease Event of Default, Lessee shall be entitled to receive (and Agent Lessor
and each Lessor hereby irrevocably assigns to Lessee all of Agent Lessor's and
such Lessor's right, title and interest during such time in) any award,
compensation or insurance proceeds to which Lessee or Agent Lessor may become
entitled by reason of their respective interests in the Property (i) if during
the Term all or a portion of the Property is damaged or destroyed in whole or in
part by a Casualty or (ii) if during the Term 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 Default shall have occurred and be
continuing such award, compensation or insurance proceeds shall be paid directly
to Agent Lessor or, if received by Lessee, shall be held in trust for Agent
Lessor, and shall be paid over by Lessee to Agent Lessor, and PROVIDED FURTHER
that in the event of any Casualty or Condemnation during the Term, the estimated
cost of restoration of which is in excess of $5,000,000, any such award,
compensation or insurance proceeds shall be paid directly to Agent Lessor, or if
received by Lessee, shall be held in trust for Agent Xxxxxx and shall be paid
over by Lessee to Agent Xxxxxx. Unless the Lease has been terminated pursuant to
ARTICLE XVI, following a Casualty or Condemnation during the Construction
Period, the Lessee shall comply with the provisions of Section 3.3 of the Agency
Agreement.
(b) So long as no Lease Event of Default has occurred and is continuing,
during the Term, Lessee may appear in any proceeding or action to negotiate,
prosecute, adjust or appeal any claim for any award, compensation or insurance
payment on account of any such Casualty or Condemnation and shall pay all
expenses thereof; PROVIDED that if the estimated cost of restoration of the
Property or the payment on account of such title defect is in excess of
$5,000,000, then Agent Lessor shall be entitled to participate in any such
proceeding or action. At Lessee's reasonable request, and at Xxxxxx's sole cost
and expense, Agent Xxxxxx and Agent shall participate in any such proceeding,
action, negotiation, prosecution or adjustment which the
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Lessee is entitled to control. Agent Lessor, each Lessor and Lessee agree that
this Lease shall control the rights of Agent Xxxxxx, the Lessors and Lessee in
and to any such award, compensation or insurance payment.
(c) If any party shall receive notice of a Casualty or a possible
Condemnation of the Property or any interest therein, such party, as the case
may be, shall give notice thereof to Agent Xxxxxx, Lessee and to Agent promptly
after the receipt of such notice.
(d) In the event of a Casualty or receipt of notice by Lessee or Agent
Lessor of a Condemnation, Lessee shall, not later than thirty (30) days after
such occurrence, deliver to Agent Lessor and the Agent an Officer's Certificate
stating that either (i) (x) such Casualty is not a Significant Casualty or (y)
such Condemnation is neither a Total Condemnation nor a Significant Condemnation
and that this Lease shall remain in full force and effect with respect to the
Property and, at Xxxxxx's sole cost and expense, Lessee shall promptly and
diligently restore the Property in accordance with the terms of Section 15.1 (e)
or (ii) this Lease shall terminate with respect to the Property in accordance
with Section 16.1.
(e) If pursuant to this Section 15.1, this Lease shall continue in full
force and effect following (i) a Casualty which occurs during the Construction
Period and which arises from the fraud, misapplication of funds, illegal acts or
willful misconduct or bankruptcy of the Lessee or (ii) a Casualty or
Condemnation which occurs at any time during the Term, Lessee shall, at its sole
cost and expense, promptly and diligently repair any damage to the Property
caused by such Casualty or Condemnation in conformity with the requirements of
Sections 10.1 and 11.1 using the as-built plans and specifications for the
Property (as modified to give effect to any subsequent Modifications, any
Condemnation affecting the Property and all applicable Legal Requirements) so as
to restore the Property to the same condition, operation, function and value as
existed immediately prior to such Casualty or Condemnation. In such event, title
to the Property shall remain with Agent Xxxxxx.
(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 Lessee's
obligations to pay Rent pursuant to Section 3.1.
15.2 ENVIRONMENTAL MATTERS. (a) Promptly upon Xxxxxx's actual knowledge of
the presence of Hazardous Substances in any portion of the Property in
concentrations and conditions that constitute an Environmental Violation, Lessee
shall notify Agent Lessor and Agent in writing of such condition. In the event
of such Environmental Violation, Lessee shall, not later than thirty (30) days
after Xxxxxx has actual knowledge of such Environmental Violation, either
deliver to Agent Lessor and Agent an Officer's Certificate and a Termination
Notice with respect to the Property pursuant to Section 16.1, if applicable, or,
at Lessee's sole cost and expense, promptly and diligently undertake any
response, clean up, remedial or other
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action necessary to remove, cleanup or remediate the Environmental Violation in
accordance with the terms of Section 9.1. If Lessee does not deliver a
Termination Notice with respect to the Property pursuant to Section 16.1, Lessee
shall, upon completion of remedial action by Xxxxxx, cause to be prepared by an
environmental consultant reasonably acceptable to Agent Lessor and Agent a
report describing the Environmental Violation and the actions taken by Lessee
(or its agents) in response to such Environmental Violation, and a statement by
the consultant that the Environmental Violation has been remedied in full
compliance with applicable Environmental Laws.
15.3 NOTICE OF ENVIRONMENTAL MATTERS. Promptly, but in any event within
five (5) Business Days from the date Lessee has actual knowledge thereof, Lessee
shall provide to Agent Lessor and Agent 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 Xxxxxx's
proposed response thereto. In addition, Lessee shall provide to Agent Lessor and
Agent, within five (5) Business Days of receipt, copies of all written
communications with any Governmental Authority relating to any Environmental
Violation in connection with the Property. Lessee shall also promptly provide
such detailed reports of any such environmental claims as reasonably may be
requested by Agent Xxxxxx and Agent.
ARTICLE XVI
16.1 TERMINATION UPON CERTAIN EVENTS. If either: (i) Agent Lessor, any
Lessor or Lessee shall have received notice of a Total Condemnation; or (ii)
Lessee or Agent Lessor or any Lessor shall have received notice of a
Condemnation, and Xxxxxx shall have delivered to Agent Lessor and Agent an
Officer's Certificate that such Condemnation is a Significant Condemnation; or
(iii) a Casualty occurs, and Lessee shall have delivered to Agent Lessor and
Agent an Officer's Certificate that such Casualty is a Significant Casualty; or
(iv) an Environmental Violation occurs or is discovered and Lessee shall have
delivered to Lessor an Officer's Certificate stating that, in the reasonable,
good-faith judgment of Lessee, the cost to remediate the same will exceed
$5,000,000; or (v) if during the Term a Casualty occurs with respect to the
Property or Lessee receives notice of a Condemnation with respect to the
Property, and following such Casualty or Condemnation, the Property cannot
reasonably be restored on or before the date which is twelve months prior to the
Maturity Date to substantially the same condition as existed immediately prior
to such Casualty or Condemnation or before such day the Property is not in fact
so restored, and Lessee shall have delivered on Officer's Certificate to Agent
Lessor and Agent to such effect; then, Lessee shall, within thirty (30) days
after Xxxxxx receives notice of a Total Condemnation pursuant to the preceding
clause (i) or simultaneously with the delivery of the Officer's Certificate
pursuant to the preceding clause (ii), (iii) (iv) or (v) deliver a notice of
termination of this Lease to Agent Lessor (a "Termination Notice"):
(a) in the case of an event described in (i) clause (i), (ii) (iii) or (v)
above which occurs during the Term or the Construction Period due to fraud,
misapplication of funds, illegal acts or willful misconduct or bankruptcy of
Lessee or (ii) clause (iv) above, which occurs at any
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time during the Construction Period or the Term, Lessee shall be obligated to
purchase Agent Lessor's interest in the Property on or prior to the earlier of
the Maturity Date and the date occurring one hundred eighty (180) days after the
date of the Termination Notice by paying Agent Lessor, for the account of
Lessors, an amount (offsetting, at the option of Lessee, against such amount the
aggregate amount of the Defeasance Deposit Collateral) equal to (x) the Lease
Balance on such termination date PLUS (y) all accrued and unpaid Capitalized
Interest and Basic Rent due and owing on such date, PLUS (z) all Supplemental
Rent due and owing on such date and Agent Lessor shall, as set forth in Section
16.2, transfer to Lessee on such date of payment all of Agent Lessor's interest
in the Property;
(b) in the case of an event described in (i) clause (i), (ii) or (iii)
above, which occurs during the Construction Period and which arises from the
acts or omissions of Lessee (other than for any reasons set forth in CLAUSE (a)
above), while located on, in the possession of, controlling, or acting or
failing to act with respect to the Property, or (ii) clause (i), (ii), (iii) or
(v) above which occurs during the Term and is not due to fraud, misapplication
of funds, illegal acts or willful misconduct or bankruptcy of Lessee, Lessee
shall be obligated to pay to Agent Lessor, for the account of Lessors, on or
prior to the earlier of the Maturity Date and the date occurring one hundred
eighty (180) days after the date of the Termination Notice, an amount
(offsetting, at the option of Lessee, against such amount the aggregate amount
of the Defeasance Deposit Collateral) equal to (x) all accrued and unpaid
Capitalized Interest and Basic Rent due and owing on such date plus (y) all
Supplemental Rent due and owing on such date, PLUS (z) at the option of Lessee
(1) the Lease Balance on such date (in which case Agent Lessor shall, as set
forth in Section 19.1, transfer to Lessee on such date all of Agent Lessor's
interest in the Property) or (2) (A) if during the Construction Period, an
amount equal to the Construction Period Maximum Recourse Amount on such date, or
(B) if during the Term, the Maximum Residual Value Guarantee Amount plus all
amounts due under Section 21.3 of this Lease for excessive wear and tear, which
sum shall equal the Lease Balance on such date, in which event Lessee shall
remarket the Property for Lessors, at the request of Agent Lessor, in accordance
with Section 21.1(b) of the Lease, any proceeds received shall be applied in the
manner set forth in Section 13.4 of the Participation Agreement, and, if Lessee
shall have paid an amount equal to the Lease Balance pursuant to this clause
(B), Agent Lessor shall convey the Property to Lessee (or its designee), all in
accordance with Section 19.1; and
(c) in the case of an event described in clause (i), (ii) or (iii) above
which occurs during the Construction Period and which does not arise from the
acts or omissions of Lessee while located on, in possession of, controlling, or
acting or failing to act with respect to the Property or from the fraud,
misapplication of funds, illegal acts or willful misconduct of Lessee, Lessee
shall make payments to Agent Lessor, for the account of Lessors, on or prior to
the date occurring one hundred eighty (180) days after date of the Termination
Notice, of an amount (offsetting, at the option of Lessee, against such amount
the aggregate amount of the Defeasance Deposit Collateral) equal to the sum of
(x) all Supplemental Rent otherwise due and owing on such date PLUS (y) at
Lessee's option, if it wishes to purchase Agent Lessor's interest in the
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Property, the Lease Balance on such date (in which case Agent Lessor shall, as
set forth in Section 16.2, transfer to Lessee on such date all of Agent Lessor's
interest in the Property); PROVIDED that if Lessee elects not to purchase Agent
Lessor's interest in the Property, Lessee shall return the Property to Agent
Lessor (or to any other Person specified by Agent Lessor in compliance with
Section 10.1(c)), and Agent Lessor shall be entitled to retain all insurance and
condemnation proceeds with respect to such Significant Casualty or Significant
Condemnation and Xxxxxx shall remarket the Property for Lessors, if requested by
Agent Lessor, in accordance with Section 21.1(b) of this Lease and any proceeds
received shall be applied in the matter set forth in Section 13.4 of the
Participation Agreement.
16.2 TERMINATION PROCEDURES. On the date of the payment by Lessee of the
Lease Balance and all other amounts due in accordance with the Termination
Notice or in accordance with Section 16.1 (such date, the "TERMINATION DATE"),
this Lease shall terminate and Agent Lessor shall convey the property to Lessee
(or Xxxxxx's designee) all in accordance with Section 19.1.
ARTICLE XVII
17.1 LEASE EVENTS OF DEFAULT. If any one or more of the following events
(each a "LEASE EVENT OF DEFAULT") shall occur:
(a) Lessee shall fail to make payment of (i) any Capitalized Interest,
Basic Rent or any Supplemental Rent representing amounts owed under the Credit
Agreement or the other Credit Documents within five (5) Business Days after the
same has become due and payable or (ii) any Construction Period Maximum Recourse
Amount, Maximum Residual Guarantee Amount, Purchase Option Price or Termination
Value after the same has become due and payable; or
(b) Lessee shall fail to make payment of any other Supplemental Rent due
and payable within five (5) Business Days after receipt of notice thereof; or
(c) Lessee shall fail to maintain insurance as required by Article XIV of
this Lease; or
(d) Lessee shall fail to observe or perform any term, covenant or condition
of Lessee (other than those set forth in Section 17.1(a), (b), (c), (e) or (k)
hereof) set forth in the following Sections and Articles of (i) this Lease:
Sections 2.1, 2.2, 2.3, 2.4, 3.1, 3.2, 3.3, 3.4, 3.5, 4.1, 6.1, 6.2, Article
VII, Article VIII, Article IX, Article X, Article XI, Article XII, Article XIII,
Article XIV, Article XV, Article XVI, Sections 17.2, 17.3, 17.3, 17.5, 17.6,
Article XVIII, Article XIX, Article XX, Article XXI, Article XXII, Article
XXIII, Article XXIV, Article XXV, Section 30.7, Section 30.8, Article XXXI; (ii)
the Participation Agreement: Sections 2.4, 2.5, 2.8, 3.1, 3.3, 4.2, 5.2, 5.3,
8.1, 8.2, 8.3, 9.5, 11.1, 12.1, 12.2, 12.3, 12.4, 12.6, 12.7, 12.8, 12.9, 15.1,
16.1, 16.2, 16.3, 16.10, 16.11, 16.12; (iii) the Defeasance Deposit Agreement:
Sections 1, 2, 3, 4, 6, 7; (iv) the Control Agreement: Section 3; (v) the Ground
Lease: Sections 1, 2, 4, 5, 6, 8(c), 10, 13, 14, 15, 16, 17, 18, 19, 20, 23;
(vi) Lessee's Consent to Assignment of Leases and Rents: Sections 1,
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2, 3, 5; and (vii) Lessee's Consent to Assignment of Contracts: Sections 1, 2,
3, 5; in each case, which failure, if capable of cure, continues for thirty (30)
days (or five (5) Business Days in the case of Xxxxxx's failure to observe or
perform the terms, covenants and conditions contained in Section 3(a) of the
Defeasance Deposit Agreement) after written notice thereof to Lessee by Agent
Lessor; or any representation or warranty by Lessee set forth in this Lease or
in any other Operative Agreement 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 unless capable of cure and cured within thirty
(30) days after written notice thereof to Lessee by Agent Lessor; or
(e) an Agency Agreement Event of Default shall have occurred and be
continuing; or
(f) Lessee shall (i) admit in writing its inability to pay its debts
generally as they become due, (ii) file a petition under the United States
bankruptcy laws or any other applicable insolvency law or statute of the United
States of America or any State or Commonwealth thereof, (iii) make a general
assignment for the benefit of its creditors, (iv) consent to the appointment of
a receiver of itself or the whole or any substantial part of its property, (v)
fail to cause the discharge of any custodian, trustee or receiver appointed for
Lessee or the whole or a substantial part of its property within sixty (60) days
after such appointment, or (vi) file a petition or answer seeking or consenting
to reorganization under the United States bankruptcy laws or any other
applicable insolvency law or statute of the United States of America or any
State or Commonwealth thereof; or
(g) insolvency proceedings or a petition under the United States bankruptcy
laws or any other applicable insolvency law or statute of the United States of
America or any State or Commonwealth thereof shall be filed against Lessee and
not dismissed within sixty (60) days from the date of its filing, or a court of
competent jurisdiction shall enter an order or decree appointing, without the
consent of Lessee, a receiver of Lessee or the whole or a substantial part of
its property, and such order or decree shall not be vacated or set aside within
sixty (60) days from the date of the entry thereof; or
(h) there shall be entered against Lessee or any Subsidiary one or more
judgments or decrees in an aggregate amount at any one time outstanding in
excess of $5,000,000, and such judgments or decrees shall not have been
satisfied, vacated, discharged, or stayed or bonded pending appeal within thirty
(30) days from entry thereof; or
(i) with respect to any Plan (other than a Multiemployer Plan) as to which
Lessee or any ERISA Affiliate of Lessee may have any liability, there shall
exist, for a period of thirty (30) days, a deficiency which is $5,000,000 or
more in the Plan assets available to satisfy the benefits guaranteeable under
ERISA with respect to such Plan, and (i) steps are undertaken to terminate such
Plan or (ii) such Plan is terminated or (iii) any Reportable Event which
presents a material risk of termination with respect to such Plan shall occur;
or
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(j) the Lessee or any of its Subsidiaries (i) shall default in the payment
when due, whether at stated maturity or otherwise, of principal, interest or
rent in respect of Indebtedness or Off Balance Sheet Debt of $5,000,000 or more;
or (ii) shall fail to perform or observe any other condition or covenant, or any
other event shall occur or condition exist, under any agreement or instrument
relating to any such Indebtedness or Off Balance Sheet Debt of $5,000,000 or
more, if the effect of any such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or Off Balance Sheet Debt or
beneficiary or beneficiaries of such Indebtedness or Off Balance Sheet Debt (or
a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness or Off Balance Sheet Debt to be
declared to be due and payable prior to its stated maturity, or cash collateral
in respect thereof to be demanded; or
(k) a Ground Lease Event of Default shall have occurred and be continuing
or Lessee shall fail to comply with its covenants set forth in Section 31.1
hereof; or the Ground Lease shall, in whole or in part, terminate, cease to be
effective or cease to be the legal, valid and binding obligation of Lessee;
then, in any such event, Agent Lessor may, in addition to the other rights and
remedies provided for in this Article XVII and in Section 18.1, terminate the
Commitments and rescind or terminate this Lease by giving Lessee five (5)
Business Days' notice of such termination, and this Lease and the Commitments
shall terminate. Lessee shall, to the fullest extent permitted by law, pay as
Supplemental Rent all costs and expenses incurred by or on behalf of Lessor,
including fees and expenses of counsel, as a result of any Lease Event of
Default hereunder.
17.2 FINAL LIQUIDATED DAMAGES. If a Lease Event of Default shall have
occurred and be continuing, Agent Lessor shall have the right (subject to the
provisions of Section 5.3 of the Agency Agreement if the Lease Event of Default
occurs during the Construction Period) to recover, by demand to Lessee and at
Agent Lessor's election, and Lessee shall pay to Agent Lessor, as and for final
liquidated damages, but exclusive of the indemnities payable under Section 12 of
the Participation Agreement, and in lieu of all damages beyond the date of such
demand, the sum of (a) the Termination Value, plus (b) all other amounts owing
in respect of Rent and Supplemental Rent theretofore accruing under this Lease
(offsetting, at the option of Agent Lessor, against such amount the aggregate
amount of the Defeasance Deposit Collateral). Notwithstanding the foregoing, if
this Lease is being terminated on the basis of a Lease Event of Default under
(i) Section 17.1(d) solely as a result of Lessee's failure to perform or observe
any term, covenant or condition of Lessee listed in any of clauses (i)-(vii) of
such Section, which term, covenant or condition would, under the response to
Question 2 of EITF 97-1 of the Emerging Issues Task Force of the Financial
Accounting Standards Board, be classified as a non-performance-related default
covenant that would affect the lease classification under FASB 13 because one or
more of the four conditions set forth in the response to such question is not
met; or (ii) Section 17.1(j) solely as a result of the occurrence of a material
adverse change under any such Indebtedness or Off Balance Sheet Debt, then in
each case Lessee shall only be
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obligated to pay the Maximum Residual Guarantee Amount upon such termination,
but the Security Documents shall continue and remain in full force and effect in
accordance with their terms after such payment with respect to the remainder of
the Termination Value. Upon payment of the amount specified pursuant to the
first sentence of this Section 17.2, Lessee shall be entitled to receive from
Agent Lessor, at Xxxxxx's request and cost, an assignment of Agent Xxxxxx's
right, title and interest in the Property, the Improvements, Fixtures and
Modifications, in each case in recordable form and otherwise in conformity with
local custom and free and clear of the Lien of the Deed of Trust and any Lessor
Liens. Lessee (or Xxxxxx's designee) shall execute and deliver to Agent Lessor
an assumption of all of Agent Xxxxxx's obligations under the Ground Lease. The
Property shall be conveyed to Lessee (or Xxxxxx's designee) "AS IS" and in its
then present physical condition. If any statute or rule of law shall limit the
amount of such final liquidated damages to less than the amount agreed upon,
Agent Lessor shall be entitled to the maximum amount allowable under such
statute or rule of law; PROVIDED, that Lessee shall not be entitled to receive
an assignment of Lessor's interest under the Ground Lease, if any, or in the
Property, the Improvements, the Fixtures and the Modifications unless Lessee
shall have paid in full the Termination Value of the Property and all such Rent
and Supplemental Rent and any proceeds received from any sale or disposition of
the Property shall be applied in the manner set forth in Section 13.6 of the
Participation Agreement.
17.3 LEASE REMEDIES. Agent Lessor and Lessee intend that for commercial law
and bankruptcy law purposes, this Lease will be treated as a financing
arrangement, as set forth in Article VII. If, as a result of applicable state
law, which cannot be waived, this Lease is deemed to be a lease of the Property,
rather than a financing arrangement, and Agent Xxxxxx is unable to enforce the
remedies set forth in Section 17.2, the following remedies shall be available to
Agent Lessor (subject to the provisions of Section 5.3 and 5.4 of the Agency
Agreement if the Lease Event of Default occurs during the Construction Period):
(a) SURRENDER OF POSSESSION. If a Lease Event of Default shall have
occurred and be continuing, and whether or not this Lease shall have been
terminated pursuant to Section 17.1, Lessee shall, upon thirty (30) days written
notice, surrender to Agent Xxxxxx possession of the Property and Xxxxxx shall
quit the same. Agent Lessor may enter upon and repossess the Property by such
means as are available at law or in equity, and may remove Lessee and all other
Persons and any and all personal property and Xxxxxx's equipment and personalty
and severable Modifications from the Property. Agent Lessor shall have no
liability by reason of any such entry, repossession or removal performed in
accordance with applicable law.
(b) RELETTING. If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated pursuant to
Section 17.1, Agent Lessor may, but shall be under no obligation to, relet all,
or any portion, of the Property, for the account of Lessee or otherwise, for
such term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the Term) and on such conditions
(which may include concessions or free rent) and for such purposes as Agent
Lessor may reasonably determine, and Agent Lessor may collect, receive and
retain the rents resulting from such reletting which rents shall be applied
against amounts owing by Xxxxxx. Agent Lessor shall not
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be liable to Lessee for any failure to relet the Property or for any failure to
collect any rent due upon such reletting.
(c) DAMAGES. None of (a) the termination of this Lease pursuant to Section
17.1; (b) the repossession of the Property; or (c) except to the extent required
by applicable law, the failure of Agent Lessor to relet all, or any portion, of
the Property, the reletting of all or any portion thereof, nor the failure of
Agent Lessor to collect or receive any rentals due upon any such reletting shall
relieve Lessee of its liability and obligations hereunder, all of which shall
survive any such termination, repossession or reletting. If any Lease Event of
Default shall have occurred and be continuing and notwithstanding any
termination of this Lease pursuant to Section 17.1, Lessee shall forthwith pay
to Agent Lessor all Capitalized Interest and Basic Rent and other sums due and
payable hereunder or under the Operative Agreements to and including the date of
such termination. Thereafter, on the days on which the Basic Rent, Capitalized
Interest or Supplemental Rent, as applicable, are payable under this Lease or
would have been payable under this Lease if the same had not been terminated
pursuant to Section 17.1 and until the end of the Term or what would have been
the Term in the absence of such termination, Lessee shall pay Agent Lessor, as
current liquidated damages (it being agreed that it would be impossible
accurately to determine actual damages) an amount equal to the Capitalized
Interest, Basic Rent and Supplemental Rent that are payable under this Lease or
under the Operative Agreements or would have been payable by Lessee hereunder or
under the Operative Agreements if this Lease had not been terminated pursuant to
Section 17.1, less the net proceeds, if any, which are actually received by
Agent Lessor with respect to the period in question of any reletting of the
Property or any portion thereof (offsetting, at the option of Agent Lessor,
against such amount the aggregate amount of the Defeasance Deposit Collateral);
PROVIDED that Lessee's obligation to make payments of Basic Rent, Capitalized
Interest and Supplemental Rent under this Section 17.3(c) shall continue only so
long as Agent Lessor shall not have received the amounts specified in Section
17.2 or Section 17.3(d). In calculating the amount of such net proceeds from
reletting, there shall be deducted all of Agent Xxxxxx's, Agent's and any
Lender's expenses in connection therewith, including repossession costs,
brokerage commissions, fees and expenses for counsel and any necessary repair or
alteration costs and expenses reasonably incurred in preparation for such
reletting and all damages, costs and expenses incurred by Agent Lessor under the
Ground Lease. To the extent Agent Xxxxxx receives any damages pursuant to this
Section 17.3(c), such amounts shall be regarded as amounts paid on account of
Rent.
(d) ACCELERATION OF RENT. If a Lease Event of Default shall have occurred
and be continuing, and this Lease shall not have been terminated pursuant to
Section 17.1, and whether or not Agent Lessor shall have collected any current
liquidated damages pursuant to Section 17.3(c), Agent Lessor may upon written
notice to Lessee accelerate all payments of Capitalized Interest, Basic Rent due
hereunder and, upon such acceleration, Lessee shall immediately pay Agent
Lessor, as and for final liquidated damages and in lieu of all current
liquidated damages on account of such Lease Event of Default beyond the date of
such acceleration (it being agreed that it would be impossible accurately to
determine actual damages) an amount equal to the sum
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of (a) all Capitalized Interest and Basic Rent (assuming interest at a rate per
annum equal to the Overdue Rate), as applicable, due from the date of such
acceleration until the end of the Term, PLUS (b) the Maximum Residual Guarantee
Amount or Construction Period Maximum Recourse Amount that would be payable
under Section 21.1(c) or under the Agency Agreement assuming the proceeds of the
sale pursuant to such Section 21.1(c) are equal to zero, which sum is then
discounted to present value at a rate equal to the blended Lessor Yield and the
interest on the Loans applicable to the Property on such date (offsetting, at
the option of Agent Lessor, against such amount the aggregate amount of the
Defeasance Deposit Collateral). Following payment of such amount by Xxxxxx,
Lessee will be permitted to stay in possession of the Property for the remainder
of the Term, subject to the terms and conditions of this Lease, including the
obligation to pay Supplemental Rent, provided that no further Lease Event of
Default shall occur and be continuing, following which Agent Lessor shall have
all the rights and remedies set forth in this Article XVII (but not including
those set forth in this Section 17.3). If any statute or rule of law shall limit
the amount of such final liquidated damages to less than the amount agreed upon,
Agent Lessor shall be entitled to the maximum amount allowable under such
statute or rule of law.
(e) SUBLETTING OF THE PROPERTY. In addition to the other rights and
remedies set forth herein, Agent 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 Xxxxxx and exercise all of Agent Xxxxxx's
rights and remedies under this Lease, including, without limitation, the
right to recover Capitalized Interest, Basic Rent and Supplemental Rent from
Lessee as it becomes due under this Lease, even though Lessee shall have
breached this Lease and abandoned the Property. Acts of maintenance or
preservation, or efforts by Agent Lessor or on Agent Xxxxxx's behalf to relet
the Property, or the appointment of a receiver upon the initiative of Agent
Lessor to protect Agent Xxxxxx's interest under this Lease shall not
constitute a termination of Xxxxxx's right to possession of the Property;
provided, however, that the foregoing enumeration shall not be construed as
in any way limiting the actions Agent Lessor may take without terminating
Xxxxxx's right to possession. In furtherance of the rights hereby granted to
Agent Lessor, and to the extent, permitted by law, Lessee hereby appoints
Agent 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 Lessee) and to alter the Property in such manner
as Agent 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 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 Agent Lessor in its
sole discretion may deem advisable, and with the right to make alterations
and repairs to the Property; and Xxxxxx agrees to pay to Agent Xxxxxx on
demand all reasonable
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expenses incurred by Agent Xxxxxx 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. Agent Lessor shall be Xxxxxx's agent and representative on the
Property in respect of all matters arising under or in connection with any such
sublease made for Lessee by Agent Xxxxxx. Under each such sublease, 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. Xxxxxx
further agrees to pay to Agent Xxxxxx, following the date of such subletting, to
and including the date provided in this Lease for the expiration of the Lease
Term, the sums of money which would have been payable by Lessee as Basic Rent
and Supplemental Rent, deducting only the net amount of rent, if any, which
Agent Lessor shall actually receive (after deducting from the gross receipts the
expenses, costs and payments of Agent Lessor which in accordance with the terms
of this Lease would have been borne by Xxxxxx) in the meantime from and by any
such subletting of the Property, and Xxxxxx hereby agrees to remain liable for
all sums otherwise payable by Lessee under this Lease, including, but not
limited to, the expenses of Agent Lessor aforesaid, as well as for any
deficiency aforesaid. Agent Lessor shall have the right from time to time to
begin and maintain successive actions or other legal proceedings against 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 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 Agent 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, Agent Lessor
shall retain the right to and may at any time thereafter elect to terminate this
Lease or Xxxxxx's right to possession of the Property for any previous breach
which remains uncured or for any subsequent breach by giving Xxxxxx written
notice thereof as herein provided, and in such event Lessee shall forfeit any
rights or interest under any such sublease and thereafter the obligations of any
such sublessee shall run directly to Agent Lessor for its own account. Upon
application by Agent Xxxxxx, a receiver may be appointed to take possession of
the Property, exercise all rights granted to Agent Xxxxxx as agent and
attorney-in-fact for Lessee set forth in this Section 17.3(e) and apply any
rentals collected from the Property as hereinabove provided. No taking of
possession of the Property or other act by Agent Xxxxxx as the agent and
attorney-in-fact for Lessee pursuant to the foregoing provisions, nor any
subletting by Agent Lessor for Lessee pursuant to the foregoing provisions, nor
any such appointment of a receiver shall constitute or be construed as an
election by Agent Lessor to terminate this Lease or Xxxxxx's right to possession
of the Property unless a written notice of such intention be given to Lessee.
(f) REPOSSESSION AND RECOVERABLE AMOUNTS. In the event of any termination
of the Term or the Agency Agreement pursuant to Section 17.1 or Article V of the
Agency Agreement or as permitted by law, Xxxxxx shall quit and surrender the
Property to Agent Xxxxxx, and Agent
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Lessor may without further notice enter upon, reenter, possess and repossess the
same by summary proceedings, ejectment or otherwise, and again have, repossess
and enjoy the same as if this Lease had not been made, and in any such event
neither Lessee nor any Person claiming through or under Lessee by virtue of any
law or an order of any court shall be entitled to possession or to remain in
possession of the Property but shall forthwith quit and surrender the Property,
and Agent Lessor shall, notwithstanding any other provision of this Lease, be
entitled to recover from Lessee the aggregate of all amounts Agent Lessor is
permitted to recover from Lessee, including:
(i) the worth at the time of award, as computed below, of the unpaid
rent (including, without limitation, Capitalized Interest, Basic Rent and
Supplemental Rent) which had been earned at the time of termination of this
Lease or the Agency Agreement;
(ii) the worth at the time of award of the amount by which the unpaid
rent (including, without limitation, Basic Rent, Capitalized Interest and
Supplemental Rent) which would have been earned after the time of
termination of this Lease or the Agency Agreement until the time of award
exceeds the amount of such rental loss that Lessee proves could have been
reasonably avoided;
(iii) the worth at the time of award of the amount by which the unpaid
rent (including, without limitation, Basic Rent, Capitalized Interest and
Supplemental Rent) for the balance of the Construction Period (to the
Outside Completion Date) and the Term after the time of award exceeds the
amount of such rental loss for said balance of the Construction Period and
the Term that Lessee proves could be reasonably avoided; and
(iv) any other amount necessary to compensate Agent Lessor and each
Lessor for all the detriment proximately caused by Xxxxxx's failure to
perform its obligations under this Lease or the Agency Agreement or which
in the ordinary course of things would be likely to result therefrom;
including without limitation any loss or damage arising out of the failure
of Agent Lessor or any Lessor to receive the benefit of the performance by
Lessee of any obligation to purchase the Property under the provisions of
this Lease or the Agency Agreement. Xxxxxx acknowledges and agrees that, in
reliance upon this Lease and Xxxxxx's covenants and agreements hereunder
and the creditworthiness and financial condition of Lessee, Agent Xxxxxx
has entered into certain special transactions to finance the costs of
leasing the Land and constructing the Improvements and, in connection with
such financing transactions, Agent Lessor and each Lessor have incurred and
will continue to incur indebtedness and liabilities under and pursuant to
the Participation Agreement and the other Operative Agreements. Xxxxxx
acknowledges and agrees that a Lease Event of Default will cause Agent
Lessor and each Lessor substantial damage and detriment due to its
obligations and liabilities under the
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Participation Agreement and the other Operative Agreements, including,
without limitation, the failure of Agent Xxxxxx and each Lessor to be fully
compensated for the Advances made to Lessee. Accordingly, in order to
compensate Agent Lessor for all detriment proximately caused by Xxxxxx's
failure to perform its obligations under this Lease, Agent Lessor shall be
permitted to recover from Lessee, without limitation, all amounts necessary
for Agent Lessor to be fully compensated for all of the Advances made to
the Lessee.
The "worth at the time of award," of the amounts referred to in the
foregoing subsections 17.3(f) (i) and (ii) shall be computed by allowing
interest at the Overdue Rate (or at the highest rate permitted by applicable
law, whichever is less) on each rental installment from the date the same was
due hereunder to the time of award. The "worth at the time of award" of the
amount referred to in the foregoing subparagraph (iii) shall be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of New
York at the time of the award plus one percent (1%). As used herein, the term
"time of award" shall mean either (A) the date upon which Lessee pays to Agent
Lessor the amount recoverable by Agent Xxxxxx as hereinabove set forth or (B)
the date of entry of any determination, order or judgment of any court, other
legally constituted body, or any arbitrator(s), determining the amount
recoverable, whichever first occurs. If the time of award is determined under
clause (B), above, then the amount recoverable by Agent Lessor hereunder shall
bear interest from the time of award until paid at the Overdue Rate (or at the
highest rate permitted by applicable law, whichever is less). Nothing herein
contained shall limit or prejudice the right of Agent Xxxxxx, and Agent Lessor
is hereby expressly granted the right, in any bankruptcy or reorganization or
insolvency proceedings, to prove for and obtain as damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law whether such amount shall be greater or less than the amounts referred to
above.
17.4 WAIVER OF CERTAIN RIGHTS. If this Lease shall be terminated pursuant
to Section 17.1, 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; and (d) any other rights which might otherwise limit or
modify any of Agent Lessor's rights or remedies under this Article XVII.
17.5 ASSIGNMENT OF RIGHTS UNDER CONTRACTS. If a Lease Event of Default
shall have occurred and be continuing, and whether or not this Lease shall have
been terminated pursuant to Section 17.1, Lessee shall upon Agent Xxxxxx's
demand immediately assign, transfer and set over to Agent Lessor all of Lessee's
right, title and interest in and to each agreement executed by Lessee in
connection with the construction, renovation, development, use or operation of
the Property (including, without limitation, all right, title and interest of
Lessee with respect to all warranty, performance, service and indemnity
provisions), as and to the extent that the same relate to the construction,
renovation, and operation of the Property.
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17.6 POWER OF SALE AND FORECLOSURE. Subject to ARTICLE XXI below, in the
event that a court of competent jurisdiction rules that this Lease constitutes a
mortgage, deed of trust or other secured financing, and subject to the
availability of such remedy under applicable law, then the Agent Lessor and the
Lessee agree that the Lessee hereby mortgages and grants to Agent Lessor a Lien
against the Land and the Property WITH POWER OF SALE, for the purpose of
securing all of Lessee's obligations hereunder (including the payment of
Capitalized Interest, Basic Rent, Supplemental Rent and the Termination Value or
Purchase Option Price) (collectively, the "LEASE PAYMENT OBLIGATIONS"). In each
case, upon the occurrence of any Lease Event of Default which is continuing, the
Agent Lessor shall have the power and authority, to the extent provided by law,
to exercise the following rights and remedies:
(a) To declare the Lease Payment Obligations immediately due and payable;
(b) With or without notice, and without releasing Lessee from any
obligation hereunder, to cure any default of Xxxxxx and, in connection
therewith, to enter upon the Property and to perform such acts and things as
Agent Lessor deems necessary or desirable to inspect, investigate, assess and
protect the Property, including, without limitation of any of its other rights:
to obtain a court order to enforce Agent Lessor's right to enter and inspect the
Property pursuant to California Civil Code Section 2929.5, to which the decision
of Agent Xxxxxx as to whether there exists a release or threatened release of a
Hazardous Substance onto the Property shall be deemed reasonable and conclusive
as between the parties hereto; to have a receiver appointed pursuant to
California Code of Civil Procedure Section 564 to enforce Agent Xxxxxx's right
to enter and inspect the Property for Hazardous Substances; to appear in and
defend any action or proceeding purporting to affect the Property or the rights
or powers of Agent Lessor hereunder; to pay, purchase, contest or compromise any
encumbrance, charge, lien or claim of lien which, in the judgment of Agent
Xxxxxx, is prior or superior hereto, the judgment of Agent Lessor being
conclusive as between the parties hereto; to pay any premiums or charges with
respect to insurance required to be carried hereunder; and to employ counsel,
accountants, contractors and other appropriate persons to assist Agent Lessor;
(c) To commence and maintain an action or actions in any court of competent
jurisdiction to foreclose this instrument as a mortgage or to obtain specific
enforcement of the covenants of Lessee hereunder, and Xxxxxx 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, Lessee waives the defense of laches and any applicable statute of
limitations;
(d) Agent 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 Land and 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 Agent Lessor's judgment, to protect or enhance the
security hereof; to
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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
Xxxxxx's obligations hereunder and under the Operative Agreements. All sums
realized by Agent Lessor under this Section 17.6(d), less all costs and expenses
incurred by it under this Section 17.6(d), including attorneys' fees, and less
such sums as Agent Lessor deems appropriate as a reserve to meet future expenses
under this Section 17.6(d), shall be applied on any Lease Payment Obligations
secured hereby in such order as Agent Lessor shall determine. Neither
application of said sums to said indebtedness nor any other action taken by
Agent Lessor under this Section 17.6(d) shall cure or waive any Lease Event of
Default or notice of default hereunder or nullify the effect of any such notice
of default. Agent Xxxxxx, or any employee or agent of Agent Xxxxxx, 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;
(e) To execute a written notice of such Lease Event of Default and of its
election to cause the Property to be sold to satisfy the obligations secured
hereby. Agent Xxxxxx 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, Agent 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 Agent 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 Lease Payment Obligations hereby secured being the equivalent
of cash for purposes of said sale). If the Land and/or the Property consist of
several lots, parcels, or items of property, Agent Lessor may: (i) designate the
order in which such lots, parcels, or items 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 Agent Lessor deems in its
best interest. Lessee shall have no right to direct the order in which the Land
and the Property is sold. Agent Lessor may postpone sale of all or any portion
of the Land and 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 preceding postponement. Agent 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 or facts shall be conclusive proof of the truthfulness thereof. Any
person, including Agent Lessor or Lessee may purchase at such sale.
In connection with any sale or sales hereunder, Agent 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
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any personal property or fixtures hereunder shall be conducted in any manner
permitted by the UCC.
After deducting all costs, fees and expenses of Agent Xxxxxx and of this
trust, including all costs of evidence of title and attorneys' fees in
connection with sale, Agent 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;
(f) To resort to and realize upon the Property and any other security now
or hereafter held by Agent Lessor in such order and manner as Agent Lessor may,
in its 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;
(g) To commence and maintain an action or actions in any court of competent
jurisdiction pursuant to California Code of Civil Procedure Section 736, whether
commenced prior to foreclosure of the Property or after foreclosure of the
Property, and to seek the recovery of any and all costs, damages, expenses,
fees, penalties, fines, judgments, indemnification payments to third parties,
and other out-of-pocket costs or expenses actually incurred by Agent Lessor
(collectively, the "ENVIRONMENTAL COSTS") incurred or advanced by Agent Lessor
relating to the cleanup, remediation or other response action required by
Applicable Law or which Agent Lessor believes necessary to protect its interest
in the Property, it being conclusively presumed between Agent Lessor and Lessee
that all such Environmental Costs incurred or advanced by Agent Lessor relating
to the cleanup, remediation or other response action of or to the Property were
made by Agent Lessor in good faith. All Environmental Costs incurred by Agent
Lessor pursuant to this Section 17.6(g) (including, without limitation, court
costs, consultants' fees and attorneys' fees, whether incurred in litigation or
not and whether before or after judgment) shall bear interest at the Overdue
Rate from the date of expenditure until said sums have been paid. Agent Lessor
shall be entitled to bid, at the sale of the Property held pursuant to Section
17.6(e) above, the amount of said costs, expenses and interest in addition to
the amount of the other Lease Payment Obligations hereby secured as a credit
bid, the equivalent of cash. For the purposes of any action brought under this
Section 17.6(g), Lessee hereby waives the defense of laches and any applicable
statute of limitations; and
(h) To waive its lien against the Property or any portion thereof,
whether fixtures or personal property, to the extent such property is found
to be environmentally impaired in accordance with California Code of Civil
Procedure Section 726.5 and to exercise any and all rights and remedies of an
unsecured creditor against Lessee and all of Lessee's assets and property for
the recovery of any deficiency and Environmental Costs, including, but not
limited to, seeking an attachment order pursuant to California Code of Civil
Procedure Section 483.010. As between Agent Xxxxxx and Lessee, for purposes
of California Code of Civil Procedure
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Section 726.5, Lessee shall have the burden of proving that Lessee or any
related party (or any affiliate or agent of Lessee or any related party) was
not in any way negligent in permitting the release or threatened release of
the Hazardous Substance. For the purposes of any action brought under this
paragraph, Lessee hereby waives the defense of laches and any applicable
statute of limitations.
(i) All costs and expenses incurred by Agent Lessor pursuant to this
Section 17.6 (including without limitation court costs, consultants' fees and
attorneys' fees, whether incurred in litigation or not and whether before or
after judgment) shall bear interest at the Overdue Rate, from the date of
expenditure until said sums have been paid. Agent Lessor shall be entitled to
bid, at the sale of the Property held pursuant to subsection 17.4(e) above, the
amount of said costs, expenses and interest in addition to the amount of the
other Lease Payment Obligations hereby secured as a credit bid, which shall be
deemed the equivalent of cash.
(j) Lessee hereby waives any right to require that any security given
hereunder or under any other agreement securing the Lease Payment Obligations be
marshalled and further waives any right otherwise available in respect to
marshalling of assets which secure any Lease Payment Obligation or to require
Agent Lessor to pursue its remedies against any such assets.
17.7 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.
17.8 XXXXXX'S RIGHT TO CURE. Notwithstanding any provision contained in
this Lease or any other Operative Agreement, if a Lease Event of Default has
occurred and is continuing, Lessee shall have the right to cure such Lease Event
of Default by exercising its Purchase Option at any time prior to such time as a
foreclosure upon or sale of the Property has been completed.
ARTICLE XVIII
18.1 AGENT XXXXXX'S RIGHT TO CURE LESSEE'S LEASE DEFAULTS. Agent Lessor,
without waiving or releasing any obligation or Lease Event of Default, may (but
shall be under no obligation to) remedy any Lease Event of Default for the
account and at the sole cost and expense of Lessee, including the failure by
Lessee to maintain any insurance required by Article XIV, and may, to the
fullest extent permitted by law, and notwithstanding any right of quiet
enjoyment in favor of 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 Lessee. All out-of-pocket costs and
expenses so incurred (including the 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 Lessor, shall be paid by Lessee to Agent Lessor on demand
as Supplemental Rent.
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ARTICLE XIX
19.1 PROVISIONS RELATING TO XXXXXX'S TERMINATION OF THIS LEASE OR EXERCISE
OF PURCHASE OPTIONS. In connection with any termination of this Lease with
respect to the Property pursuant to the terms of Section 16.1 or 16.2 or Article
XVII if the Property is being purchased by Lessee (or its designee), or in
connection with Lessee's exercise of its Purchase Option or Maturity Date
Purchase Option, upon the date on which this Lease is to terminate with respect
to the Property or upon the Expiration Date with respect to the Property, and
upon tender by Lessee of the Lease Balance and the other amounts set forth in
Section 16.1, 17.2, 20.1 or 20.2, as applicable:
(a) Lessor shall execute and deliver to Lessee (or to Xxxxxx's designee) at
Xxxxxx's cost and expense an assignment of Agent Xxxxxx's entire interest in the
Property, in each case in recordable form and otherwise in conformity with local
custom and free and clear of the Lien of the Deed of Trust and any Lessor Liens;
and
(b) The Property shall be conveyed to Lessee or its designee "AS IS" and in
its then present physical condition.
ARTICLE XX
20.1 PURCHASE OPTION. Subject to Article XVII Lessee shall have the option
(exercisable by giving Agent Lessor irrevocable written notice (the "PURCHASE
NOTICE") of Lessee's election to exercise such option not less than thirty (30)
days prior to the date of purchase pursuant to such option) to purchase the
Property on the date specified in such Purchase Notice at a price equal to the
Termination Value plus all accrued and unpaid Capitalized Interest and Basic
Rent plus any Supplemental Rent due and owing on such date of purchase
(offsetting, at the option of Lessee, against such amount the aggregate amount
of the Defeasance Deposit Collateral) (the "PURCHASE OPTION PRICE") (which the
parties do not intend to be a "bargain" purchase price) of the Property. If
Lessee exercises its option to purchase the Property pursuant to this Section
20.1 (the "PURCHASE OPTION"), Lessor shall transfer to Lessee or Lessee's
designee all of Lessor's right, title and interest in and to the Property as of
the date specified in the Purchase Notice upon receipt of the Purchase Option
Price and all Rent and other amounts then due and payable under this Lease and
any other Operative Agreement, in accordance with Section 19.1.
20.2 MATURITY DATE PURCHASE OPTION. Not less than twelve months prior to
the Maturity Date, Lessee may give Agent Lessor and Agent irrevocable written
notice (the "MATURITY DATE ELECTION NOTICE") that Lessee is electing to exercise
the Maturity Date Purchase Option or its option to remarket the Property
pursuant to Section 21.1. If Lessee does not give a Maturity Date Election
Notice on or before the date twelve months prior to the Maturity Date, then
Lessee shall be deemed to have exercised its Maturity Date Purchase Option. If
Xxxxxx has elected, or is deemed to have elected, to exercise the Maturity Date
Purchase Option, then on the Maturity Date Lessee shall pay to Agent Lessor an
amount equal to the Termination Value for the Property plus all accrued and
unpaid Capitalized Interest and Basic Rent plus any
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Supplemental Rent due and owing on such date of purchase (offsetting, at the
option of Lessee, against such amount the aggregate amount of the Defeasance
Deposit Collateral) (which the parties do not intend to be a "bargain" purchase
price) and, upon receipt of such amount plus all Rent and other amounts then due
and payable under this Lease and any other Operative Agreement, Agent Lessor
shall transfer to Lessee or Lessee's designee all of Agent Lessor's and the
Lessors' right, title and interest in and to the Property in accordance with
Section 19.1.
20.3 EXTENSION OF EXPIRATION DATE. Lessee may extend the Expiration Date
and the Maturity Date subject to, and in accordance with, the terms and
conditions of Section 15 of the Participation Agreement.
ARTICLE XXI
21.1 SALE PROCEDURE. (a) (i) Provided that no Lease Default or Lease Event
of Default shall have occurred and be continuing, at the expiration of the Term,
unless Lessee shall have (A) elected to extend the Expiration Date, (B) elected
(or be deemed to have elected) to purchase the Property and paid the Purchase
Option Price with respect thereto, or (C) otherwise terminated this Lease with
respect thereto and paid the Termination Value or Lease Balance with respect
thereto, Lessee may elect to remarket the Property as provided in Section 20.2,
or (ii) if Lessee elects or is required to remarket the Property pursuant to
Section 4.2 of the Agency Agreement or Section 16.1 of this Lease, in each case
Lessee shall (x) pay to Agent Lessor the Maximum Residual Guarantee Amount or
Construction Period Recourse Amount, as the case may be, for the Property
(offsetting, at the option of Lessee, against such amount the aggregate amount
of the Defeasance Deposit Collateral), and (y) sell the Property to one or more
third parties for cash in accordance with Section 21.1(b).
(b) During the Marketing Period, Lessee, as nonexclusive broker for Agent
Lessor, shall use its best efforts to obtain bids for the cash purchase of the
Property for the highest price available in the relevant market, shall notify
Agent Lessor promptly of the name and address of each prospective purchaser and
the cash price which each prospective purchaser shall have offered to pay for
the Property and shall provide Agent Lessor with such additional information
about the bids and the bid solicitation procedure as Agent Lessor may request
from time to time. Agent Lessor may reject any and all bids and may assume sole
responsibility for obtaining bids by giving Xxxxxx written notice to that
effect; PROVIDED, HOWEVER, that notwithstanding the foregoing, Agent Lessor may
not reject a bid if such bid is greater than or equal to the sum of the Limited
Recourse Amount and all costs and expenses of sale and is a bona fide offer by a
third party purchaser who is not an Affiliate of Lessee. If the price which a
prospective purchaser shall have offered to pay for all or any of the Property
is less than the sum of the Limited Recourse Amount and all costs and expenses
of sale, Agent Lessor may elect to retain the Property by giving Xxxxxx at least
two Business Days' prior written notice of Agent Xxxxxx's election to retain the
Property, and upon receipt of such notice, Lessee shall surrender the Property
to Agent Lessor pursuant to Section 10.1(c). Unless Agent Xxxxxx shall have
elected to retain the Property pursuant to the preceding sentence, Agent Lessor
shall sell the Property free of any Lessor Liens attributable to it, without
recourse or warranty, for cash to the purchaser or
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purchasers identified by Lessee or Agent Lessor, as the case may be, and Xxxxxx
shall surrender the Property to such purchaser in the condition specified in
Section 10.1.
(c) On the date during the Marketing Period on which the Property is sold
pursuant to Section 21.1(b), or on the Maturity Date if the Property remains
unsold, Lessee shall pay to Agent Lessor the Maximum Residual Guarantee Amount
for the Property (after taking into account the application of the proceeds of
such sale pursuant to the terms of this Lease, the Credit Agreement and the
Participation Agreement and offsetting, at the option of Lessee, against such
amount the aggregate amount of the Defeasance Deposit Collateral) plus all
accrued and unpaid Capitalized Interest and Basic Rent plus any Supplemental
Rent due and owing on such date of purchase.
21.2 APPLICATION OF PROCEEDS OF SALE. Agent Lessor shall apply the proceeds
of sale of the Property pursuant to the provisions of the Participation
Agreement.
21.3 INDEMNITY FOR EXCESSIVE WEAR. If the proceeds of the sale described in
Section 21.1(b) with respect to the Property, less all expenses incurred by
Agent Lessor in connection with such sale, shall be less than the Limited
Recourse Amount for the Property at the time of such sale and if it shall have
been determined (pursuant to the Appraisal Procedure) that the Fair Market Sales
Value of the Property shall have been impaired by greater than expected wear and
tear during the Term, Lessee shall pay to Agent Lessor within ten (10) days
after receipt of Lessor's written statement (i) the amount of such excess wear
and tear determined by the Appraisal Procedure or (ii) the amount of the Net
Sale Proceeds Shortfall, whichever amount is less; provided, that in the case of
a remarketing during the Term pursuant to Section 16.1(b)(z)(2)(B) the amount of
such excess wear and tear shall be equal to the Net Sales Proceeds Shortfall, if
any, and Lessee shall pay such amount to Agent Lessor.
21.4 APPRAISAL PROCEDURE. For determining the Fair Market Sales Value of
the Property or any other amount which may, pursuant to any provision of any
Operative Agreement, be determined by an appraisal procedure, Agent Lessor
and Lessee shall use the following procedure (the "APPRAISAL PROCEDURE").
Agent Lessor and Lessee shall endeavor to reach a mutual agreement as to such
amount for a period of ten (10) days from commencement of the Appraisal
Procedure, and if they cannot agree within ten (10) days, then two qualified
appraisers, one chosen by Lessee and one chosen by Agent Lessor, shall
mutually agree thereupon, but if either party shall fail to choose an
appraiser within twenty (20) days after notice from the other party of the
selection of its appraiser, then the appraisal by such appointed appraiser
shall be binding on Lessee and Agent Lessor. If the two appraisers cannot
agree within twenty (20) days after both shall have been appointed, then a
third appraiser shall be selected by the two appraisers or, failing agreement
as to such third appraiser within thirty (30) days after both shall have been
appointed, by the American Arbitration Association. The decisions of the
three appraisers shall be given within twenty (20) days of the appointment of
the third appraiser and the decision of the appraiser most different from the
average of the other two shall be discarded and such average shall be binding
on Agent Lessor and Lessee; PROVIDED that if the highest appraisal and the
lowest appraisal are equidistant from the third appraisal, the third
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appraisal shall be binding on Agent Lessor and Lessee. The fees and expenses of
all of the appraisers shall be paid by Xxxxxx.
21.5 CERTAIN OBLIGATIONS CONTINUE. During the Marketing Period, the
obligation of Lessee to pay Rent with respect to the Property (including the
installment of Basic Rent due on the Maturity Date) shall continue undiminished
until payment in full to Agent Lessor of the sale proceeds, the Maximum Residual
Guarantee Amount, if any, the amount due under Section 21.3, if any, and all
other amounts due to Agent Lessor with respect to the Property. Agent Lessor
shall have the right, but shall be under no duty, to solicit bids, to inquire
into the efforts of Xxxxxx to obtain bids or otherwise to take action in
connection with any such sale, other than as expressly provided in this Article
XXI.
ARTICLE XXII
22.1 HOLDING OVER. If 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 Lessee), such possession shall be as a tenancy at
sufferance during which time Lessee shall continue to pay Supplemental Rent that
would be payable by Lessee hereunder were the Lease then in full force and
effect with respect to the Property and Lessee shall continue to pay Basic Rent
at an annual rate equal to the rate payable hereunder immediately preceding such
expiration or earlier termination; PROVIDED, HOWEVER, that from and after the
sixtieth (60th) day Lessee shall remain in possession of the Property after such
expiration or earlier termination, Lessee shall pay Basic Rent at an annual rate
equal to two hundred percent (200%) of the Basic Rent payable hereunder
immediately preceding such expiration or earlier termination. Such Basic Rent
shall be payable from time to time upon demand by Agent Xxxxxx. During any
period of tenancy at sufferance, 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 XXII shall
constitute the consent, express or implied, of Agent Lessor to the holding over
of Lessee after the expiration or earlier termination of this Lease as to the
Property and nothing contained herein shall be read or construed as preventing
Agent Lessor from maintaining a suit for possession of the Property or
exercising any other remedy available to Agent Lessor at law or in equity.
ARTICLE XXIII
23.1 RISK OF LOSS. During the Term, the risk of loss of or decrease in the
enjoyment and beneficial use of the Property as a result of the damage or
destruction thereof by Casualty, Condemnation, Environmental Violations or
otherwise is assumed by Xxxxxx, and Agent Lessor shall in no event be answerable
or accountable therefor. During the Construction Period, the risk of loss of or
decrease in the enjoyment and beneficial use of the Property as a result of the
damage or destruction thereof by Casualty, Condemnation, Environmental
Violations or otherwise shall be assumed by the Lessee to the extent provided in
Articles XV and XVI.
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ARTICLE XXIV
24.1 SUBLETTING AND ASSIGNMENT. Lessee may not assign this Lease or any of
its rights or obligations hereunder in whole or in part. Lessee may, without the
consent of Agent Xxxxxx, sublease the Property or a portion thereof to any
Person. No sublease or other relinquishment of possession of the Property shall
in any way discharge or diminish any of Lessee's obligations to Agent Lessor
hereunder and Xxxxxx shall remain directly and primarily liable under this Lease
as to the Property, or any portion thereof, so sublet. Any sublease of the
Property shall be made subject to and subordinate to this Lease and to the
rights of Agent Lessor hereunder, and shall expressly provide for the surrender
of the Property after a Lease Event of Default hereunder.
24.2 SUBLEASES. Promptly following the execution and delivery of any
sublease permitted by this Article XXIV, Xxxxxx shall deliver a copy of such
executed sublease to Agent Lessor and Agent.
ARTICLE XXV
25.1 ESTOPPEL CERTIFICATES. At any time and from time to time upon not less
than twenty (20) days' prior request by Agent Lessor, Lessee shall furnish to
Agent Lessor a certificate signed by an individual having the office of vice
president or higher in Lessee 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 Agent Xxxxxx 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 Agent Lessor may reasonably request. Any such certificate
furnished pursuant to this Article XXV may be relied upon by Agent Xxxxxx, and
any existing or prospective mortgagee, purchaser or lender, and any accountant
or auditor, of, from or to Agent Lessor (or any Affiliate thereof).
ARTICLE XXVI
26.1 NO WAIVER. No failure by Agent Lessor or 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 XXVII
27.1 ACCEPTANCE OF SURRENDER. Except as otherwise expressly provided in
this Lease, no surrender to Agent Xxxxxx of this Lease or of all or any portion
of the Property or of any interest therein shall be valid or effective unless
agreed to and accepted in writing by Agent
-36-
Lessor and, prior to the payment or performance of all obligations under the
Credit Documents, Agent, and no act by Agent Lessor or Agent or any
representative or agent of Agent Lessor or Agent, other than a written
acceptance, shall constitute an acceptance of any such surrender.
ARTICLE XXVIII
28.1 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, (b) the fee estate in the Property, except as may
expressly be stated in a written instrument duly executed and delivered by the
appropriate Person, or (c) a beneficial interest in Agent Lessor.
ARTICLE XXIX
29.1 NOTICES. Unless otherwise specifically provided herein, all notices,
consents, directions, approvals, instructions, requests and other communications
required or permitted by the terms hereof to be given to any Person shall be
given in writing by nationally recognized courier service and any such notice
shall become effective one Business Day after delivery to such nationally
recognized courier service specifying overnight delivery and shall be directed
to the address of such Person as indicated:
If to Lessee:
Wind River Systems, Inc.
000 Xxxx Xxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Telephone No.: (000)000-0000
Telecopy No.: (000)000-0000
If to Agent Lessor:
Deutsche Bank AG, New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Operations Administrator
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to the Agent:
-37-
Deutsche Bank AG, New York and/or
Cayman Islands Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Operations Administrator
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
or such additional parties and/or other address as such party may hereafter
designate.
ARTICLE XXX
30.1 MISCELLANEOUS. Anything contained in this Lease to the contrary
notwithstanding, all claims against and liabilities of Lessee or Agent 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
Lessee provided in this Lease, including any right or option described in
Articles XV, XVI, XX or XXI, 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
founder of the Standard Oil Company, known to be alive on the date of the
execution and delivery of this Lease.
30.2 AMENDMENTS AND MODIFICATIONS. Neither this Lease nor any provision
hereof may be amended, waived, discharged or terminated except by an instrument
in writing signed by Agent Xxxxxx and Lessee.
30.3 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.
30.4 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.
30.5 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.
30.6 GOVERNING LAW. THIS LEASE HAS BEEN DELIVERED IN, AND SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE, EXCEPT AS TO MATTERS RELATING TO THE CREATION, PERFECTION AND
ENFORCEMENT OF
-38-
LIENS AND SECURITY INTERESTS AND THE EXERCISE OF REMEDIES WITH RESPECT THERETO,
WHICH SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE IN WHICH THE PROPERTY IS LOCATED.
30.7 LIMITATIONS ON RECOURSE. Except as expressly set forth in the
Operative Agreements, Xxxxxx agrees to look solely to Agent Xxxxxx's estate and
interest in the Property, the proceeds of sale thereof, any insurance proceeds
or any other award or any third party proceeds received by Agent Lessor in
connection with the Property for the collection of any judgment requiring the
payment of money by Agent Lessor in the event of liability by Agent Lessor, and
no other property or assets of Agent Lessor, the Lessors or any shareholder,
owner or partner (direct or indirect) thereof, or any director, officer,
employee, beneficiary, Affiliate of any of the foregoing shall be subject to
levy, execution or other enforcement procedure for the satisfaction of Xxxxxx's
remedies under or with respect to this Lease, the relationship of Agent Xxxxxx
and Lessee hereunder or Xxxxxx's use of the Property or any other liability of
Agent Lessor to Lessee; PROVIDED that nothing in this Section shall be construed
to impair or limit the rights of Lessee against Agent Lessor under the Operative
Agreements. Nothing in this Section shall be interpreted so as to limit the
terms of Section 6.1 or 6.2.
30.8 RECORDATION OF LEASE. This Lease and each Lease Supplement shall be
recorded in the jurisdiction in which the Property covered by such Lease
Supplement is located, at Lessee's sole cost and expense.
30.9 PRIORITY. On and prior to the Maturity Date, the Deed of Trust shall
be subject and subordinate to this Lease and following the Maturity Date, the
Deed of Trust shall be senior to this Lease without any further act by any
Person.
ARTICLE XXXI
31.1 GROUND LEASE. During the Term, Xxxxxx shall observe and perform all of
the obligations of Agent Lessor under the Ground Lease (including, without
limitation, the construction obligations and the payment of all rent and other
amounts thereunder) and, in connection therewith, shall, prior to the occurrence
and continuation of a Lease Event of Default, have the benefit of all of Agent
Xxxxxx's rights as lessee under the Ground Lease.
[signature page follows]
-39-
IN WITNESS WHEREOF, the parties have caused this Lease be duly executed and
delivered as of the date first above written.
WIND RIVER SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance, Chief
Financial Officer and Secretary
DEUTSCHE BANK AG, NEW YORK BRANCH
as Agent Lessor for the Lessors
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged on this 30th day of November, 1999.
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN
ISLANDS BRANCH, as the Agent for the
Lenders
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
LEASE
IN WITNESS WHEREOF, the parties have caused this Lease be duly executed and
delivered as of the date first above written.
WIND RIVER SYSTEMS, INC.
By:
---------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
as Agent Lessor for the Lessors
By: /s/ Xxxx X. X. Xxxxxx
---------------------------------------
Name: Xxxx X. X. Xxxxxx
Title: Assistant Vice President
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged on this 30th day of November, 1999.
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN
ISLANDS BRANCH, as the Agent for the
Lenders
By: /s/ Xxxx X. X. Xxxxxx
---------------------------------------
Name: Xxxx X. X. Xxxxxx
Title: Assistant Vice President
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
LEASE
STATE OF CALIFORNIA )
) SS.:
COUNTY OF ALAMEDA )
Before me, the undersigned, a Notary Public in and for the State and County
aforesaid, personally appeared Xxxxxxx X. Xxxxxx, with whom I am personally
acquainted (or proved to me on the basis of satisfactory evidence), and who,
upon oath, acknowledged himself to be the Vice President of Finance and Chief
Financial Officer of WIND RIVER SYSTEMS, INC., the within named bargainor, a
Delaware corporation, and that he as such Vice President of Finance and Chief
Financial Officer, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as such Vice President of Finance and Chief Financial
Officer.
WITNESS my hand and seal, at office, on this the 24th day of November,
1999.
/s/ Xxxxxx XxXxxxxx
------------------------------
Notary Public
My Commission Expires:
\[Seal] XXXXXX X. XXXXXXXX \
June 29, 2003 \ Commission #1226853 \
---------------------------- \ Notary Public - California \
\ Alameda County \
\ My Comm. Expires Jun 29, 2003 \
LEASE
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Before me, the undersigned, a Notary Public within and for the State and
County aforesaid, personally appeared Xxxx Xxxxxx and Xxxxx Xxxxx, with whom I
am personally acquainted (or proved to me on the basis of satisfactory
evidence), and who, upon oath, acknowledged themselves to be a Assistant Vice
President and Vice President, respectively, of DEUTSCHE BANK AG, NEW YORK
BRANCH, the within named bargainor, a bank, and that they as such Assistant Vice
President and Vice President, respectively, being duly authorized so to do,
executed the foregoing instrument for the purposes therein contained by signing
the name of the bank by themselves as such Assistant Vice President and Vice
President, respectively.
WITNESS my hand and seal, at office, on this the 29th day of November,
1999.
/s/ Xxxxxx X. Xxxxx
------------------------------
Notary Public
My Commission Expires:
XXXXXX X. XXXXX
August 29, 2000 Notary Public, State of New York
---------------------------- No. 00-0000000
Qualified in New York County
Commission expires August 29, 2000
LEASE
ILLEGIBLE NOTARY SEAL DECLARATION (GOVERNMENT CODE 27361.7)
I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH
THIS STATEMENT IS ATTACHED READS AS FOLLOWS:
NAME OF NOTARY: DE XXXX X. XXXXXXXX
DATE COMMISSION EXPIRES: JUNE 29, 2003
STATE: CALIFORNIA COUNTY: ALAMEDA
PLACE OF EXECUTION OF THIS DECLARATION: CITY OF OAKLAND, ALAMEDA COUNTY,
CALIFORNIA
DATE: DECEMBER 1, 1999
SIGNATURE: /s/ Xxxx X. Xxxxxxx
-----------------------------
XXXX X. XXXXXXX
AGENT FOR: FIRST AMERICAN TITLE GUARANTY COMPANY
------------------------------------- ----------------------------------------
Recording requested by, and when |
recorded, please return to: |
|
McGuire, Woods, Battle & Xxxxxx LLP |
00 Xxxx Xxxxxx Xxxxx x
Xxxxxxx, Xxxxxxxx 00000 |
|
ATTN: X. Xxxx Xxxxx, Esq. |
------------------------------------- ----------------------------------------
(Space Above this line Reserved
for Recorder's Use Only)
EXHIBIT A
LEASE SUPPLEMENT NO. ____
THIS LEASE SUPPLEMENT NO. ___ (this "LEASE SUPPLEMENT") dated as of
__________________, between Deutsche Bank AG, New York Branch, a duly licensed
branch of Deutsche Bank AG, a German corporation, as agent for the Lessors (in
such capacity, the "AGENT LESSOR"), and Wind River Systems, Inc., a Delaware
corporation, as lessee (the "LESSEE").
WHEREAS, Agent Xxxxxx is the owner of a leasehold interest in the Property
described on Schedule I hereto (the "LEASED PROPERTY") and wishes to lease the
same to 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:
1. DEFINITIONS; RULES OF USAGE. For purposes of this Lease Supplement,
capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in Appendix A to the Participation Agreement, dated as
of November __, 1999, among Lessee, the Lessors, Agent Lessor, Agent, the
Lenders and the Arranger.
2. THE PROPERTY. Attached hereto as Schedule I is the description of the
Leased Property. Effective upon the execution and delivery of this Lease
Supplement by Agent Xxxxxx and Lessee, the Leased Property shall be subject to
the terms and provisions of the Lease.
3. 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.
4. 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 created through the transfer or
possession of any counterpart other than the Original Executed Counterpart.
5. GOVERNING LAW. THIS LEASE HAS BEEN DELIVERED IN, AND SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE, EXCEPT AS TO MATTERS RELATING TO THE CREATION, PERFECTION AND
ENFORCEMENT OF LIENS AND SECURITY INTERESTS AND THE EXERCISE OF REMEDIES WITH
RESPECT THERETO, WHICH SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
6. 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.
7. RECORDATION. Agent Xxxxxx and Lessee agree that this Lease Supplement
No. ____ shall be recorded at Xxxxxx's sole cost and expense as required under
the Lease.
[signature page follows]
-2-
IN WITNESS WHEREOF, the parties have caused this Lease Supplement No. _ be
duly executed and delivered as of the date first above written.
WIND RIVER SYSTEMS, INC.
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance and
Chief Financial Officer
DEUTSCHE BANK AG, NEW YORK BRANCH
as Agent Lessor for the Lessors
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
STATE OF CALIFORNIA )
) SS.:
COUNTY OF SANTA XXXXX )
Before me, the undersigned, a Notary Public in and for the State and County
aforesaid, personally appeared Xxxxxxx X. Xxxxxx, with whom I am personally
acquainted (or proved to me on the basis of satisfactory evidence), and who,
upon oath, acknowledged himself to be the Vice President of Finance and Chief
Financial Officer of WIND RIVER SYSTEMS, INC., the within named bargainor, a
Delaware corporation, and that he as such Vice President of Finance and Chief
Financial Officer, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as such Vice President of Finance and Chief Financial
Officer.
WITNESS my hand and seal, at office, on this the ____ day of November,
1999.
------------------------------
Notary Public
My Commission Expires:
----------------------------
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Before me, the undersigned, a Notary Public within and for the State and
County aforesaid, personally appeared ______________________ and
____________________, with whom I am personally acquainted (or proved to me on
the basis of satisfactory evidence), and who, upon oath, acknowledged themselves
to be a ______________________ and _________________, respectively, of DEUTSCHE
BANK AG, NEW YORK BRANCH, the within named bargainor, a bank, and that they as
such ________________________ and ___________________, respectively, being duly
authorized so to do, executed the foregoing instrument for the purposes therein
contained by signing the name of the bank by themselves as such
_____________________ and ___________________, respectively.
WITNESS my hand and seal, at office, on this the __ day of November, 1999.
------------------------------
Notary Public
My Commission Expires:
----------------------------
Receipt of this original counterpart of the foregoing Lease
Supplement is hereby acknowledged on this _____ day of __________________, ____.
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN
ISLANDS BRANCH, as the Agent for the Lenders
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
