EXHIBIT 10.2
______________________________________
LEASE
Dated as of March 27, 1998
between
CREDIT SUISSE LEASING 92A, L.P., as Lessor,
and
REEBOK INTERNATIONAL LTD., as Lessee
______________________________________
ALL RIGHT, TITLE AND INTEREST OF LESSOR UNDER THIS LEASE AND THE
PROPERTY SUBJECT HERETO HAVE BEEN AND WILL BE ASSIGNED BY CREDIT
SUISSE LEASING 92A, L.P., TO, AND ARE SUBJECT TO A LIEN IN FAVOR
OF CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS NEW YORK
BRANCH("ADMINISTRATIVE AGENT") UNDER THAT CERTAIN MORTGAGE,
ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE
FILING STATEMENT (AS SUCH AGREEMENTS AND INSTRUMENTS MAY BE
AMENDED AND/OR SUPPLEMENTED TO THE EXTENT PERMITTED THEREBY), FOR
THE BENEFIT OF THE PARTICIPANTS REFERRED TO IN SUCH SECURITY
INSTRUMENTS. 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 AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY
INTEREST IN THIS LEASE MAY BE CREATED THROUGH THE TRANSFER OR
POSSESSION OF ANY COUNTERPART HEREOF OTHER THAN THE ORIGINAL
EXECUTED COUNTERPART NO. 1", WHICH SHALL BE IDENTIFIED AS THE
COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY LESSEE ON
OR FOLLOWING THE SIGNATURE PAGE THEREOF.
SEE SECTION 20.18 FOR THE NATURE OF THIS TRANSACTION AND
INTENTION OF THE PARTIES.
THIS COUNTERPART IS [NOT] THE ORIGINAL EXECUTED COUNTERPART
NO. 1.
TABLE OF CONTENTS
(Lease)
Page
||
ARTICLE I
DEFINITIONS; LESSEE LIABILITY. . . . . . . . . . . . . . 1
ARTICLE II
LEASE OF SITES; LEASE TERM . . . . . . . . . . . . . . . 2
SECTION 2.1. Acceptance and Lease of Property
and Facilities. . . . . . . . . . . . . . . . 2
SECTION 2.2. Acceptance Procedure . . . . . . . . . . . . . 2
SECTION 2.3. Lease Term . . . . . . . . . . . . . . . . . . 2
SECTION 2.4. Lease Extension. . . . . . . . . . . . . . . . 2
ARTICLE III
OTHER PROPERTY . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV
RENT . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 4.1. Basic Rent . . . . . . . . . . . . . . . . . . 3
SECTION 4.2. Supplemental Rent. . . . . . . . . . . . . . . 3
SECTION 4.3. Manner of Payment. . . . . . . . . . . . . . . 4
SECTION 4.4. Late Payment . . . . . . . . . . . . . . . . . 4
SECTION 4.5. Net Lease; No Setoff; etc. . . . . . . . . . . 5
ARTICLE V
UTILITY CHARGES . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI
SALE, RETURN AND PURCHASE OPTIONS. . . . . . . . . . . . . 7
SECTION 6.1. Purchase Option. . . . . . . . . . . . . . . . 7
SECTION 6.2. Remarketing Option . . . . . . . . . . . . . . 7
SECTION 6.3. Procedures for Sale of the Property. . . . . . 9
SECTION 6.4. Exercise of Options; Failure to Elect. . . . . 11
SECTION 6.5. Return of Property . . . . . . . . . . . . . . 11
SECTION 6.6. Remarketing Failure to Sell Property . . . . . 12
ARTICLE VII CONDITION AND USE OF PROPERTY. . . . . . . . . . 13
SECTION 7.1. Waivers. . . . . . . . . . . . . . . . . . . . 13
ARTICLE VIII LIENS; EASEMENTS . . . . . . . . . . . . . . . . 15
SECTION 8.1. Liens. . . . . . . . . . . . . . . . . . . . . 15
SECTION 8.2. No Lessor Consent or Liability . . . . . . . . 15
SECTION 8.3. Easements; Amendments to Underlying Lease. . . 15
ARTICLE IX MAINTENANCE AND REPAIR; ALTERATIONS AND
ADDITIONS. . . . . . . . . . . . . . . . . . . 17
SECTION 9.1. Maintenance and Repair;
Compliance With Law . . . . . . . . . . . . . 17
SECTION 9.2. No Alteration or Construction. . . . . . . . . 18
SECTION 9.3. Financing of Modifications . . . . . . . . . . 20
SECTION 9.4. Permitted Contests . . . . . . . . . . . . . . 23
ARTICLE X USE . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE XI INSURANCE . . . . . . . . . . . . . . . . . . . . . 24
SECTION 11.1. Required Coverages . . . . . . . . . . . . . . 24
SECTION 11.2. Delivery of Insurance Certificates . . . . . . 25
ARTICLE XII ASSIGNMENT AND SUBLEASING . . . . . . . . . . . . 26
ARTICLE XIII LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE . . . . 27
SECTION 13.1. Event of Loss; Condemnation or Casualty. . . . 27
SECTION 13.2. Application of Payments Relating
to an Event of Loss . . . . . . . . . . . . . 28
SECTION 13.3. Application of Certain Payments
Relating to a Condemnation. . . . . . . . . . 28
SECTION 13.4. Casualty . . . . . . . . . . . . . . . . . . . 28
SECTION 13.5. Other Dispositions . . . . . . . . . . . . . . 28
SECTION 13.6. Negotiations . . . . . . . . . . . . . . . . . 29
SECTION 13.7. No Rent Abatement. . . . . . . . . . . . . . . 29
ARTICLE XIV NON-INTERFERENCE. . . . . . . . . . . . . . . . . 29
SECTION 14.1. Non-Interference . . . . . . . . . . . . . . . 29
SECTION 14.2. Certain Duties and Responsibilities of Lessor. 30
ARTICLE XV INSPECTION AND REPORTS . . . . . . . . . . . . . . 30
SECTION 15.1. Inspection . . . . . . . . . . . . . . . . . . 30
SECTION 15.2. Reports. . . . . . . . . . . . . . . . . . . . 31
ARTICLE XVI OWNERSHIP, GRANT OF SECURITY INTEREST
AND FURTHER ASSURANCES. . . . . . . . . . . . . . 31
SECTION 16.1. Grant of Security Interest . . . . . . . . . . 31
SECTION 16.2. Release of Liens; Transfer of Property . . . . 32
SECTION 16.3. Attorney-in-Fact . . . . . . . . . . . . . . . 32
ARTICLE XVII LEASE EVENTS OF DEFAULT. . . . . . . . . . . . . 33
ARTICLE XVIII ENFORCEMENT . . . . . . . . . . . . . . . . . . 37
SECTION 18.1. Remedies . . . . . . . . . . . . . . . . . . . 37
SECTION 18.2. Proceeds of Sale; Deficiency . . . . . . . . . 42
SECTION 18.3. Grant and Foreclosure on Lessee s Estate . . . 42
SECTION 18.4. Remedies Cumulative; No Waiver; Consents . . . 42
ARTICLE XIX RIGHT TO PERFORM FOR LESSEE . . . . . . . . . . . 43
ARTICLE XX MISCELLANEOUS . . . . . . . . . . . . . . . . . . 43
SECTION 20.1. Binding Effect; Successors and
Assigns; Survival . . . . . . . . . . . . . . 43
SECTION 20.2. Severability . . . . . . . . . . . . . . . . . 44
SECTION 20.3. Notices. . . . . . . . . . . . . . . . . . . . 44
SECTION 20.4. Amendment; Complete Agreements . . . . . . . . 44
SECTION 20.5. Headings . . . . . . . . . . . . . . . . . . . 44
SECTION 20.6. Original Lease . . . . . . . . . . . . . . . . 45
SECTION 20.7. GOVERNING LAW. . . . . . . . . . . . . . . . . 45
SECTION 20.8. Discharge of Lessee's Obligations by Its
Affiliates . . . . . . . . . . . . . . . . . . 45
SECTION 20.9. Liability of Lessor Limited. . . . . . . . . . 45
SECTION 20.10. Estoppel Certificates. . . . . . . . . . . . . 46
SECTION 20.11. No Joint Venture . . . . . . . . . . . . . . . 46
SECTION 20.12. No Accord and Satisfaction . . . . . . . . . . 47
SECTION 20.13. No Merger. . . . . . . . . . . . . . . . . . . 47
SECTION 20.14. Survival . . . . . . . . . . . . . . . . . . . 47
SECTION 20.15. Enforcement of Certain Warranties. . . . . . . 47
SECTION 20.16. Investment of Security Funds . . . . . . . . . 48
SECTION 20.17. Recording of Lease Supplements or Memoranda. . 48
SECTION 20.18. Nature of Transaction. . . . . . . . . . . . . 49
||
SCHEDULE I - Description of Property Delivered on Documentation
Date
THIS LEASE dated as of March 27, 1998 (as amended,
supplemented, or otherwise modified from time to time, this
"Lease"), between CREDIT SUISSE LEASING 92A, L.P., as Lessor
("Lessor") and REEBOK INTERNATIONAL LTD., as Lessee ("Lessee")
amends and restates in its entirety the Agreement to Lease dated
as of August 20, 1997 between Credit Suisse Leasing 92A, L.P., as
Lessor, and Reebok International Ltd., as Lessee.
R E C I T A L S
A. Lessee has previously entered into that certain
Purchase and Sale Agreement dated as of August 20, 1996 (the
"Purchase Agreement"), by and between Lessee, as purchaser, and
Instron Realty Trust, as seller ("Seller"), wherein Seller has
agreed to sell to Lessee, and Lessee has agreed to purchase from
Seller, that certain unimproved Property located in Canton,
Norfolk County, Massachusetts, more particularly described in
Exhibit A attached to the Agreement to Lease (the "Property"),
upon the terms and conditions set forth in the Purchase
Agreement.
B. Lessee desires to enter into the Overall Transaction
for the purpose of financing the acquisition of the Property and
construction of a facility thereon.
C. Subject to the terms and conditions of this Lease, on
the Documentation Date, Lessor will lease the Property to the
Lessee for the Lease Term pursuant to this Lease.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, hereby
agree as follows:
ARTICLE I
DEFINITIONS; LESSEE LIABILITY
For all purposes hereof, the capitalized terms used herein
and not otherwise defined shall have the meanings assigned
thereto in Appendix 1 to that certain Participation Agreement
dated as of March 27, 1998, among Lessee, Lessor, Administrative
Agent and Lenders identified therein (the "Participation
Agreement"). All obligations imposed on the Lessee in this Lease
shall be the full recourse liability of the Lessee.
ARTICLE II
LEASE OF SITES; LEASE TERM
SECTION 2.1. Acceptance and Lease of Property and
Facilities. On the Documentation Date, Lessor, subject to the
satisfaction or waiver of the conditions set forth in Article III
of the Participation Agreement, hereby agrees to purchase and
accept delivery on such Documentation Date of the Property to be
delivered on such Documentation Date pursuant to the terms of the
Participation Agreement and simultaneously to lease such Property
to Lessee hereunder, and Lessee, subject to the satisfaction or
waiver of the conditions set forth in Article III of the
Participation Agreement, hereby agrees, expressly for the direct
benefit of Lessor, to lease commencing on such Documentation Date
from Lessor for the Lease Term, such Property to be delivered on
such Documentation Date.
SECTION 2.2. Acceptance Procedure. Lessor hereby
authorizes one or more employees of Lessee, to be designated by
Lessee, as the authorized representative or representatives of
Lessor to accept delivery of the Property identified on the
Documentation Date. Lessee hereby agrees that such acceptance of
delivery by such authorized representative or representatives
shall, without further act, constitute the irrevocable acceptance
by Lessee of the Property and any improvement built or to be
built thereon for all purposes of this Lease and the other
Operative Documents on the terms set forth therein and herein.
SECTION 2.3. Lease Term. Unless earlier terminated, the
term of this Lease shall consist of (a) a base term (the "Base
Term"), commencing on and including the Documentation Date and
ending on the sixth anniversary of the Documentation Date (the
"Base Term Expiration Date") and (b) each Renewal Term, if agreed
upon (the Base Term and each Renewal Term, if any, collectively
the "Lease Term").
SECTION 2.4. Lease Extension. Lessee may elect to extend
this Lease(a "Renewal Option"), with the consent of Lessor, for
an additional two-year renewal term (the "Renewal Term"),
commencing immediately following expiration of the preceding
term, each such renewal option not to be exercised more than five
(5) times, and such renewals being further subject to the
coterminous extension of the maturity date of the Loan Agreement;
provided that Lessee's election to extend the Lease for a Renewal
Term shall be null and void and of no force or effect unless, as
of the last day of the Base Term, Lessee shall have
satisfactorily fulfilled each of the terms and conditions
respecting the Renewal Term set forth in Section 6.4 and Section
2.8 of the Participation Agreement.
ARTICLE III
OTHER PROPERTY
Lessee may from time to time own or hold under lease from
Persons other than Lessor and/or finance and secure under the
UCC, furniture, inventory, machinery, trade fixtures and
equipment located on or about the Property that is not subject to
this Lease. Lessor shall from time to time, upon the reasonable
request, and at the cost and expense of Lessee, which request
shall be accompanied by such supporting information and documents
as Lessor may reasonably require, promptly acknowledge in writing
to Lessee or other Persons that the particular items of
furniture, inventory, machinery, trade fixtures and equipment in
question are not part of the related Property and that, subject
to the rights of Lessor under any other Operative Documents,
Lessor does not own or have any other right or interest in or to
such furniture, inventory, machinery, trade fixtures and
equipment.
ARTICLE IV
RENT
SECTION 4.1. Basic Rent. Lessee shall pay to Lessor
installment payments of Basic Rent during the Base Term and, if
applicable, each Renewal Term then in effect, on each Rent
Payment Date. Each installment of Basic Rent shall be in an
amount equal to the sum of Interest and Yield due and payable to
the Participants on such date by the Lessor.
SECTION 4.2. Supplemental Rent. Lessee shall pay to
Lessor, or to whomever shall be entitled thereto as expressly
provided herein or in any other Operative Document (and Lessor
hereby directs Lessee, on behalf of Lessor, to so pay any such
other Person), any and all Supplemental Rent promptly as the same
shall become due and payable and, in the event of any failure on
the part of Lessee to pay any Supplemental Rent, Lessor shall
have all rights, powers and remedies provided for herein or by
law or in equity or otherwise in the case of nonpayment of Basic
Rent. Lessee hereby reaffirms its obligation to pay as
Supplemental Rent any and all Additional Costs (other than
Additional Costs incurred in connection with a Loan Event of
Default where no Lease Event of Default then exists).
SECTION 4.3. Manner of Payment. As long as any obligations
remain outstanding under the Loan Agreement, Basic Rent and
Supplemental Rent shall be paid on the due date therefor to
Lessor (or, in the case of Supplemental Rent, to such Person as
may be entitled thereto) at such place as Lessor (or such other
Person) shall specify in writing to Lessee at least two (2)
Business Days prior to the due date therefor. Lessor shall
notify Lessee of the applicable LIBO Rate or the ABR promptly
upon the determination thereof. Each payment of Rent shall be
made by Lessee prior to 11:00 a.m. Boston, Massachusetts time
(and payments made after such time shall be deemed to have been
made on the next day) at the place of payment in funds consisting
of lawful currency of the United States of America which (in the
case of any amount payable to Lessor) shall be immediately
available on the scheduled date when such payment shall be due,
unless (a) with respect to Basic Rent determined by reference to
the LIBO Rate, the definition of "Interest Period" requires
otherwise or (b) with respect to all other Rent, the scheduled
date shall not be a Business Day, in which case such payment
shall be made on the next succeeding Business Day (unless the
result of such extension would be to carry such payment into the
next calendar month, in which event such payment shall be made on
the next preceding Business Day). The provisions of the
foregoing sentence of this Section 4.3 shall be applicable only
to Basic Rent and to Supplemental Rent payable to, or on behalf
of, or for the account of, Lessor.
SECTION 4.4. Late Payment. If any Basic Rent shall not be
paid when due, Lessee shall pay to Lessor, or if any Supplemental
Rent payable to or on behalf of or for the account of Lessor is
not paid when due, Lessee shall pay to whomever shall be entitled
thereto, in each case as Supplemental Rent, interest at the
Overdue Rate (to the maximum extent permitted by law) on such
overdue amount from and including the due date thereof (not
including any applicable grace period) to but excluding the
Business Day of payment thereof at the Overdue Rate.
SECTION 4.5. Net Lease; No Setoff; etc. This Lease is 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 Lessee's obligation to pay all such
amounts, throughout the Lease Term is absolute and unconditional.
The 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 the Property, or any
failure of the Property to comply with all Applicable Law,
including any inability to occupy or use the Property by reason
of such non-compliance; (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 Lessor, any Administrative
Agent or any Lender; (f) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation
or other like proceedings relating to Lessee, Lessor, any
Administrative Agent, any Lender or any other Person, or any
action taken with respect to this Lease by any trustee or
receiver of Lessee, Lessor, any Administrative 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 Lessor, or any Lender; (h) any failure on the part of
Lessor to perform or comply with any of the terms of this Lease,
any other Operative Document or of any other agreement whether or
not related to the Overall Transaction; (i) any invalidity or
unenforceability or disaffirmance against or by Lessee of this
Lease or any provision hereof or any of the other Operative
Documents or any provision of any thereof; (j) the impossibility
of performance by Lessee, Lessor or both; (k) any action by any
court, administrative agency or other Authority; (l) 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. Except as
specifically set forth in Section 6.1 or Article XIII of this
Lease, this Lease shall be noncancellable by Lessee for any
reason whatsoever, and Lessee, to the extent permitted by
Applicable Laws, 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 expressly provided in Section 6.1 or Article
XIII or XVIII of this Lease, Lessee shall, unless prohibited by
Applicable Law, nonetheless pay to 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,
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 Lessor, Administrative Agent or
any party to any agreements related thereto for any reason
whatsoever. Lessee assumes the sole responsibility for the
condition, use, operation, maintenance, and management of the
Property and Lessor shall have no responsibility in respect
thereof and shall have no liability for damage to the property of
Lessee or any subtenant of Lessee on any account or for any
reason whatsoever other than by reason of Lessor's willful
misconduct or gross negligence or breach of any of its
obligations under this Lease.
ARTICLE V
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 Lease Term. Lessee shall be entitled to
receive any credit or refund with respect to any utility charge
paid by Lessee and the amount of any credit or refund received by
Lessor on account of any utility charges paid by Lessee, net of
the costs and expenses reasonably 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
(except pursuant to Section 6.2, in which case Lessee shall be
solely responsible for all such charges) shall be adjusted and
prorated on a daily basis between Lessor and Lessee, and each
party shall pay or reimburse the other for each party's pro rata
share thereof.
ARTICLE VI
SALE, RETURN AND PURCHASE OPTIONS
SECTION 6.1. Purchase Option. At any time prior to the end
of the Lease Term, Lessee, at its option, will have the right
(its "Purchase Option") to purchase all (but not less than all)
of the Property at a price equal to the Lease Balance plus all
other amounts then due and payable by Lessee under the Operative
Documents (the "Purchase Option Price"). If Lessee shall have
elected the Purchase Option, Lessor shall, upon receipt of
payment in full from Lessee of the Purchase Option Price in
immediately available funds, transfer all of its right, title and
interest in and to the Property to Lessee or its designee, in
accordance with Section 16.2. Lessee, at its option, will have
the right to designate a third Person or Persons to take title to
the Property; provided that (i) Lessee shall continue to be bound
by the exercise of the Purchase Option and (ii) no such
assignment shall release Lessee from its obligations under this
Article VI and Lessee shall remain primarily liable to Lessor
for the payment of all amounts due under this Article VI in
respect of the Purchase Option. Lessee may revoke its notice
with respect to its election to exercise the Purchase Option at
any time prior to the beginning of the last year of the Lease
Term, upon three (3) days notice. Upon delivering such notice of
revocation, Lessee may continue the Lease for the Lease Term.
SECTION 6.2. Remarketing Option. If no Lease Default or
Lease Event of Default shall have occurred and be continuing,
then Lessee, at its own cost and expense, may elect to remarket
all (but not less than all) of the Property subject to the
Lease and, in accordance with Section 6.3, as nonexclusive agent
for Lessor, use best commercial efforts to cause the Property
to be sold on the last day of the Lease Term for cash to a
purchaser or purchasers not affiliated in any way with Lessee
(the "Remarketing Option") if the following conditions are
satisfied:
(a) no sooner than eighteen months and no later than
365 days prior to the Base Term Expiration Date or a Renewal
Term Expiration Date, Lessee gives written notice of its
election of the Remarketing Option;
(b) no Event of Loss exists;
(c) within five (5) Business Days after such notice of
its election of the Remarketing Option, Lessee executes and
delivers an escrow, pledge and security agreement (the "Sale
Deposit Escrow Agreement") with Administrative Agent and an
escrow holder selected by Administrative Agent and
reasonably acceptable to Lessee, which Sale Deposit Escrow
Agreement shall be in form and substance acceptable to
Administrative Agent and shall include provisions consistent
with the provisions of Section 6.3 and pursuant thereto,
Lessee shall contemporaneously make a security deposit
in an account maintained with the Administrative Agent or
its designee (the "Sale Deposit") in cash equal to the
Guaranteed Residual Amount for the Property;
(d) Lessor shall have received, at Lessee's sole cost
and expense, evidence satisfactory to Lessor and Lenders
that Lessor holds good title to the Property, free and clear
of all Liens other than Permitted Liens;
(e) Lessor shall have received, at Lessee's sole cost
and expense, a report in scope and content satisfactory to
Lessor and Lenders to the effect that the Property
has been maintained in all material respects throughout the
Lease Term in accordance with the standards of this Lease
and that the remaining useful life and utility of the
Property have not been compromised.
(f) Lessor shall have received evidence reasonably
satisfactory to Lessor and Lenders that all required
Authorizations in respect of the Property are valid and in
full force and effect and there are no violations of such
Authorizations that could have an adverse effect upon the
parties or upon the Property and no event of Force Majeure
exists that prevents, in any material respect, Lessee from
performing its obligations thereunder;
(g) on or before the Termination Date or the then
applicable Renewal Term Expiration Date, as applicable,
Lessee shall have vacated the Property and supplied to
Lessor an Environmental Audit reasonably satisfactory in
scope and content to Lessor and Lenders disclosing no
material or significant environmental conditions or damage
to the Property and conducted by an independent
environmental engineering firm selected by Lessor and
reasonably acceptable to Lessee; and
(h) on the Termination Date, Lessee shall have paid to
Lessor in immediately available funds all unpaid Basic Rent
and Supplemental Rent;
(i) on the Termination Date, no asbestos or
polychlorinated biphenyls (PCBs) shall be maintained on, or
used, stored or located on, above or under the Property;
and
(j) during the Remarketing Period, but in any event
not later than the Termination Date, Lessee shall pay on
demand therefor Related Sales Expenses to the Lessor, any
Lender or Administrative Agent, as applicable; and
any failure of Lessee to timely so elect the Remarketing
Option or any failure of Lessee to fulfill the obligations
specified in this Section 6.2 by the date set forth in the
applicable condition or, in the absence of an expressed
date, the last day of the Lease Term, shall terminate the
Remarketing Option, and Lessee shall purchase the Property
for the Purchase Option Price. Whether or not the Property
is sold by the last day of the Lease Term pursuant to the
Remarketing Option, Lessor shall withdraw the Sale Deposit
and any earnings thereon on the last day of the Lease Term
and apply such amounts in accordance with Section 2.4 of
the Loan Agreement.
SECTION 6.3. Procedures for Sale of the Property.
(a) If the Remarketing Option is timely elected, during
the period commencing on the date one year prior to the scheduled
end of the Lease Term (the "Remarketing Period") Lessee, on
behalf of Lessor, shall use best commercial efforts, as
nonexclusive agent for Lessor, to obtain the highest cash bids
for the purchase of the Property and, in the event it receives
any bid with respect to the Property, Lessee shall, within five
(5) Business Days after receipt thereof but at least thirty (30)
Business Days prior to the last day of the Lease Term, certify to
Lessor and Administrative Agent in writing (the "Certification
Notice") the amount and terms of such bid, including the proposed
sale date, and the name and address of the party or parties (who
shall not be Lessee or any Affiliate of Lessee or any Person with
whom Lessee has an understanding or arrangement regarding the
future use of the Property by Lessee or such Affiliate, but who
may be Lessor, any Affiliate thereof or any Person contacted by
Lessor) submitting such bid. Lessee shall bear its own expenses
and pay, as Supplemental Rent, the Related Sales Expenses of
Lessor, the Administrative Agent and each Lender in connection
with any such bidding and sale process pursuant to this Section
6.3, as well as all costs and expenses incurred by any party
(including a buyer or potential buyer) to place the Property
in the condition required by Sections 6.5 and 9.1. All amounts
from time to time held pursuant to Section 6.2(c) shall be
invested at the direction of Lessee (or upon the occurrence and
during the continuance of a Lease Event of Default or a Lease
Default, at the direction of the Administrative Agent) in
Permitted Investments. All net interest earned on such Permitted
Investments shall be held in escrow for the account of Lessor
pursuant to the Sale Deposit Escrow Agreement and shall
constitute part of the Sale Deposit. Upon termination of the
Sale Deposit Escrow Agreement, after payment by Lessee of all
amounts owed by Lessee under this Lease and the other Operative
Documents, any remaining amount of such interest shall be
remitted to Lessee.
(b) After the Lessee shall have certified to Lessor all
bids received with respect to the Property, Lessor or any
Affiliate of Lessor, or any Person contacted by Lessor may
submit a further binding bid or bids (subject to customary
conditions precedent to closing) to Lessee not later than thirty
(30) Business Days after the receipt of the last delivered
Certification Notice for such Property to Lessor. If Lessor,
Administrative Agent or any Affiliate of Lessor or any Person
contacted by any of the foregoing shall not have submitted
further bids to Lessee with respect to the Property, and provided
that no Lease Default or Lease Event of Default shall have
occurred and be continuing on the date of the proposed sale and
no Event of Loss shall have occurred with respect to such
Property, Lessee shall consummate the sale of the Property
to the highest all cash bidder therefor on the date specified by
Lessee in the related Certification Notice, which date shall be a
date not later than the last day of the Lease Term. Upon
consummation of the sale, Lessee shall cause buyer to pay all
gross proceeds from the sale to Lessor (the "Proceeds"). Upon
the receipt of such Proceeds by the Lessor and satisfaction of
each of the conditions set forth in Section 6.2, including
withdrawal of the Sale Deposit (i) Lessor shall remit to Lessee
the excess, if any, of (A) the sum of the Proceeds and the
Guaranteed Residual Amount (which amount shall be withdrawn from
the escrow account maintained pursuant to Section 6.2(c)) over
(B) the sum of the Lease Balance, all accrued and unpaid Interest
and Yield and all other amounts then due and payable by Lessee
under the Operative Documents. In such case, the sum of Proceeds
and the Guaranteed Residual Amount retained by Lessor shall be
applied in accordance with Section 3 of the Loan Agreement. If
the amount in Clause (A) above is less than the amount in Clause
(B) above, Lessee will not receive any such amount and the amount
in Clause (A) will be applied in accordance with Section 3 of the
Loan Agreement and (ii) Lessor shall transfer all of Lessor's
right, title and interest in such Property to the highest bidder
in accordance with Section 16.2.
(c) If Lessee exercises the Remarketing Option, Lessor may,
at its option, if the aggregate Proceeds and Guaranteed Residual
Amounts are not reasonably anticipated to exceed the Lease
Balance on the last day of the Lease Term, request Lessee to
engage an appraiser of nationally recognized standing, at
Lessee's expense, to determine (by appraisal methods reasonably
satisfactory to both Lessor and Lessee and complying with
generally accepted appraisal procedures for the type of property
being appraised) the Fair Market Sales Value of the Property sold
pursuant to the Remarketing Option. If the aggregate Proceeds
from sales of Property pursuant to the Remarketing Option are
less than the Fair Market Sales Value of such Property as
determined by the foregoing appraisal and such deficiency is
determined to be the result of one or more sales below the Fair
Market Sales Value of such Property, and Lessor has not received
aggregate Proceeds and Guaranteed Residual Amounts in an amount
at least equal to the Lease Balance, Lessee shall have the
absolute obligation to pay to Lessor, as Supplemental Rent, such
shortfall (i.e., the appraised Fair Market Sales Value less the
Proceeds, but not in excess of the outstanding Lease Balance
(after payment of Proceeds and the Guaranteed Residual Amounts to
Lessor)).
SECTION 6.4. Exercise of Options; Failure to Elect. Lessee
shall give irrevocable written notice to Lessor not less than 365
days prior to the Base Term Expiration Date or Renewal Term
Expiration Date, as the case may be, that Lessee intends to
exercise its Purchase Option, Remarketing Option or Renewal
Option (to the extent available). If Lessee shall fail to
deliver such written notice in the time required, Lessee shall be
deemed to have elected the Purchase Option under Section 6.1.
Lessee's election (or deemed election) of the Purchase Option
will be irrevocable at the time it is made (or deemed made). If
Lessee has elected the Remarketing Option under Section 6.2, such
option shall be automatically revoked and such election shall be
deemed of no effect if, on or after the date Lessee elects such
option, there exists or occurs a Lease Event of Default
or Lease Default or Lessee shall fail in any manner fully to
comply with this Article VI, including the conditions set forth
in Section 6.2, in which case Lessee shall be automatically
deemed to have elected the Purchase Option pursuant to Section
6.1.
SECTION 6.5. Return of Property. Lessee shall cooperate
with the independent buyer of the Property in order to facilitate
the ownership and operation by such buyer of the Property after
the Termination Date, including providing all books, reports and
records regarding the maintenance, repair and ownership of the
Property and all know-how, 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 Governmental Action. The
obligations of Lessee under this Section 6.5 shall survive the
expiration or termination of this Lease. Unless Lessee shall
have exercised or been deemed to have exercised its Purchase
Option not less than 180 days prior to the Termination Date,
Lessor shall at Lessee's expense be entitled to perform an
investigation, including obtaining reports of engineers and other
experts as to the condition and state of repair and maintenance
required by this Section 6.5 and as to the compliance with
Environmental Laws applicable to the Property, as it deems
appropriate. Lessee, at its sole cost and expense, shall cause
the repair or other remediation of any discrepancies between the
actual condition of the Property and the condition required under
this Lease, such repair or remediation to be completed not later
than the earlier of the expiration of this Lease and the date the
Property is sold pursuant to the Remarketing Option.
SECTION 6.6. Remarketing Failure to Sell Property. If
Lessee shall exercise the Remarketing Option and neither Lessee
nor Lessor shall sell the Property on or before the last day of
the Lease Term in accordance with and subject to the provisions
of Sections 6.3 and 6.5, then Lessee and Lessor hereby agree as
follows:
(a) After the last day of the Lease Term, Lessor shall
have the right, but not the obligation, to sell the
Property for such purchase price and upon such terms as
Lessor shall determine in its sole discretion. If
Lessor shall elect to sell the Property after the
expiration of the Lease Term, Lessor shall notify Lessee,
and Lessee shall have the right to cause any Person to
submit a bid to Lessor not later than twenty (20) Business
Days prior to the date Lessor desires to sell the Property
(as set forth in the notice thereof to Lessee); provided,
however, that Lessor shall have the right, in its sole
discretion, from time to time, to defer such proposed sale
date, in which event, the right of Lessee to cause any
Person to submit a bid to Lessor shall be extended to the
date that is twenty (20) Business Days prior to the revised
proposed sale date. At no time shall Lessor be obligated to
accept any bid for the sale of the Property (whether such
bid was obtained by Lessee or otherwise) or to consummate
any proposed sale.
(b) Contemporaneously with the consummation of any
sale of the unsold Property by Lessor pursuant to this
Section 6.6, (i) Lessee will transfer all of Lessee's
right, title and interest in the Property to be transferred
to the buyer; (ii) Lessor shall exercise such rights as it
has to cause such Property to be released from the
Lien of the Mortgage and shall, without recourse or warranty
(except as to the absence of Lessor Liens), transfer by
quitclaim Lessor's right, title and interest in and to the
Property for cash to such purchaser; and (iii) Lessor shall
remit to Lessee the excess, if any, of (a) the Proceeds
received by Lessor from the sale of the Property over (b)
the sum of the then current Lease Balance plus all unpaid
Interest and Yield on the daily outstanding Lease Balance
from the last day of the Lease Term through the payment
date.
(c) To the greatest extent permitted by law,
Lessee hereby unconditionally and irrevocably waives, and
releases Lessor from, any right to require Lessor to sell
the Property at all or for any minimum purchase price or on
any particular terms and conditions. Lessee hereby agrees
that if Lessee shall elect the Remarketing Option, its
ability to sell the Property on or prior to the expiration
of the Lease Term and its right thereafter to cause the
Person to submit a bid to Lessor pursuant to this Section
6.6(c) in the event Lessor shall elect to sell the Property,
shall constitute full and complete protection of Lessee's
interest hereunder.
ARTICLE VII
CONDITION AND USE OF PROPERTY
SECTION 7.1. Waivers. LESSEE ACKNOWLEDGES AND AGREES THAT,
ALTHOUGH LESSOR WILL OWN AND HOLD TITLE TO THE PROPERTY, LESSEE
IS SOLELY RESPONSIBLE UNDER THE TERMS OF THE CONSTRUCTION AGENCY
AGREEMENT FOR THE DESIGN, DEVELOPMENT, BUDGETING AND CONSTRUCTION
OF THE FACILITY AND ANY MODIFICATIONS THERETO. The Property is
let by Lessor "AS IS" in its present or then condition, as the
case may be, subject to (a) any rights of any parties in
possession thereof, (b) the state of the title thereto existing
at the Documentation Date, (c) any state of facts which an
accurate survey or physical inspection might show (including any
survey delivered on the Documentation Date, any Advance Date or
the Completion Date), (d) all Applicable Law, and (e) any
violations of Applicable Law which may exist at the commencement
of the Lease Term. Lessee has examined the Property and (insofar
as Lessor is concerned) has found the same to be satisfactory.
NEITHER LESSOR, THE ADMINISTRATIVE AGENT NOR ANY LENDER HAS MADE
OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO HAVE ANY LIABILITY
WHATSOEVER AS TO THE TITLE TO THE PROPERTY OR THE FACILITY OR
TO THE VALUE, MERCHANTABILITY, HABITABILITY, CONDITION, OR
FITNESS FOR USE OF THE PROPERTY OR THE FACILITY, OR ANY PART
THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY OR THE FACILITY,
OR ANY PART THEREOF, AND NEITHER LESSOR, THE ADMINISTRATIVE AGENT
NOR ANY LENDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREIN OR THE FAILURE OF THE PROPERTY OR THE FACILITY,
OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS, except
that Lessor hereby represents and warrants that the
Property is and shall be free of Lessor Liens. Lessee initially
selected the Property. Lessee has been afforded full opportunity
to inspect the Property, is satisfied with the results of its
inspections and is entering into this Lease solely on the basis
of the results of its own inspections, and all risks incident to
the matters discussed in the preceding sentence, as between
Lessor, Administrative Agent and the Lenders, on the one hand,
and Lessee, on the other, are to be borne by Lessee. Except
to the extent otherwise expressly stated, the foregoing
provisions are intended to be a complete exclusion and negation
of any representations or warranties by Lessor, Administrative
Agent or any Lender, express or implied, with respect to the
Property or the Facility (or any interest therein), that may
arise pursuant to any law now or hereafter in effect or
otherwise. Lessor shall have no responsibility or liability to
Lessee or any other Person with respect to any of the following:
(w) any liability, loss or damage caused or alleged to be caused
directly or indirectly by the Property or by any inadequacy
thereof, deficiency or defect therein or by any other
circumstances in connection therewith; (x) the use, operation or
performance of the Property or any of the risks relating thereto;
(y) any interruption of service, business or anticipated profits
or consequential damages; or (z) the delivery, operation,
servicing, maintenance, repair, improvement or replacement of the
Property. The Property described herein is in good order and
condition, prepared to conform to specifications applicable
thereto and all government standards and requirements reasonably
interpreted as being applicable thereto and is in all respects
satisfactory to Lessee, and Lessee will not assert any claim of
any nature whatsoever against Lessor based on any of the
foregoing matters.
ARTICLE VIII
LIENS; EASEMENTS
SECTION 8.1. Liens. Subject to Section 9.4, Lessee shall
not directly or indirectly create, incur, assume or suffer to
exist any Lien, defect, attachment, levy, title retention
agreement or claim upon or with respect to the Property, any
Basic Rent or Supplemental Rent, title thereto, or any interest
therein, including all Liens which arise out of the possession,
use, occupancy or construction of a Facility on the Land or
by reason of labor or materials furnished or claimed to have been
furnished to Lessee, or any of its contractors or the
Administrative Agent or by reason of the financing of any
Alterations constructed by or for the benefit of Lessee, except
in all cases Permitted Liens. With respect to all Liens in or
with respect to the Property, other than Permitted Liens,
Lessee shall promptly, but not later than thirty (30)
days after the filing thereof, at its own expense, take such
action as may be necessary duly to discharge or eliminate or bond
in a manner reasonably satisfactory to Lessor any such Lien if
the same shall arise at any time.
SECTION 8.2. No Lessor Consent or Liability. Nothing
contained in this Lease shall be construed as constituting the
consent or request of the Lessor, expressed or implied, to or for
the performance by any contractor, mechanic, laborer,
materialman, supplier or vendor of any labor or services or for
the furnishing of any materials for any construction, alteration,
addition, repair or demolition of or to the Property or any part
thereof. NOTICE IS HEREBY GIVEN THAT NEITHER LESSOR NOR ANY
LENDER 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 LESSOR
IN AND TO THE PROPERTY OR ANY PART THEREOF.
SECTION 8.3. Easements; Amendments to Underlying Lease.
Subject to Section 3.4 of the Construction Agency Agreement
(which shall take precedence over these provisions during the
Construction Period), at the request of Lessee, Lessor shall,
from time to time during the Lease Term and upon at least thirty
(30) days' prior written notice from Lessee and receipt of the
materials specified in the next succeeding sentence, consent to
and join in any (i) grant of easements, licenses, rights of way,
party wall rights and other rights in the nature of easements,
with or without consideration, (ii) release, amendment or
termination of easements, licenses, rights of way, party wall
rights or other rights in the nature of easements which are for
the benefit of the Property or any portion thereof, with or
without consideration, (iii) dedication or transfer of portions
of the Property for road, highway or other public purposes, with
or without consideration, (iv) execution of petitions to have
the Property or any portion thereof annexed to any municipal
corporation or utility district, (v) execution of agreements for
the use and maintenance of common areas, for reciprocal rights of
parking, ingress and egress and amendments to any covenants and
restrictions affecting the Property or any portion thereof, with
or without consideration, (vi) request to any Authority for
platting or subdivision or replatting or resubdivision approval
with respect to the Property or any portion thereof or any parcel
of Property of which the Property or any portion thereof forms a
part or a request for any variance from zoning, (vii) creation of
a governmental special benefit district for public improvements
and collection of special assessments in connection therewith, in
lump sum or installments, and (viii) execution and delivery of
any instrument appropriate to confirm or effect such grant,
release, dedication, transfer request or such other matter,
document or proceeding. Lessor's obligations pursuant to the
preceding sentence shall be subject to the requirements that:
(a) any such action shall be at the sole cost and expense
of Lessee, and Lessee shall pay all reasonable out-of-pocket
costs of Lessor and Administrative Agent in connection therewith
(including the reasonable fees of attorneys, architects,
engineers, planners, appraisers and other professionals retained
by Lessor in connection with any such action);
(b) Lessee shall have delivered to Lessor a certificate of
a Responsible Officer of Lessee stating that:
(1) such action will not cause the Property or any
portion thereof to fail to comply in any respect with the
provisions of this Lease or any other Operative Documents
and in any material respect with all Applicable Law
(including all applicable zoning, planning, building and
subdivision ordinances, all applicable restrictive covenants
and all applicable architectural approval requirements);
(2) all governmental consents or approvals required to
be obtained prior to such action have been obtained, and all
filings required prior to such action have been made;
(3) this Lease and Lessee's obligations hereunder
shall continue in full force and effect, without abatement,
suspension, deferment, diminution, reduction, counterclaim,
setoff, defense or deduction;
(4) such action will not materially reduce the fair
market value, utility, remaining economic useful life or
residual value of the Property or of Lessor's interest
therein;
(5) such action will not impose or create any
liability or obligation on Lessor in connection therewith
which Lessee shall not have paid or performed or undertaken
to pay or perform;
(6) such action will not result in any material
down-zoning of the Property or any portion thereof or a
material reduction in the maximum density or development
rights available to the Property under all Applicable Law;
(7) all consideration received in connection with such
action shall be paid to Lessee; and
(8) no Lease Default or Lease Event of Default shall
have occurred and be continuing. Without limiting the
effectiveness of the foregoing, the Lessor shall, upon the
request of Lessee and at Lessee's sole cost and expense,
execute and deliver any instruments necessary or appropriate
to confirm any such grant, release, dedication, transfer,
annexation or amendment to any Person permitted under
this Section 8.3.
ARTICLE IX
MAINTENANCE AND REPAIR;
ALTERATIONS AND ADDITIONS
SECTION 9.1. Maintenance and Repair; Compliance With Law.
Lessee, at its own expense, shall at all times (a) maintain
the portion of the Facility used as office space as a Class A
office building and the other portions of the Property shall be
kept, in each case in good and safe repair and condition, subject
to ordinary wear and tear; (b) except to the extent that Section
9.4 shall apply, maintain, manage and monitor the Property in
accordance with all Applicable Law, whether or not such
maintenance requires structural modifications; (c) comply with
the standards imposed by any insurance policies required to be
maintained hereunder which are in effect at any time with respect
to the Property or any part thereof; (d) maintain, manage and
monitor the Property in accordance with all applicable contracts,
including service contracts and insurance contracts; and (e) make
all necessary or appropriate repairs and replacements to the
Property or any part thereof which may be required to keep
the Property in the condition required by the preceding clauses
(a) through (d), whether interior or exterior, structural or
nonstructural, ordinary or extraordinary, foreseen or unforeseen,
and including repairs, replacements and renewals that would
constitute capital expenditures under GAAP if incurred by an
owner of property. Lessee waives any right that it may now have
or hereafter acquire to (x) require Lessor to maintain, repair,
replace, alter, remove or rebuild all or any part of the
improvements on the Property or (y) make repairs at the expense
of Lessor pursuant to any Applicable Law or other agreements.
SECTION 9.2. No Alteration or Construction. (a) At
Lessee s own cost and expense, (i) Lessee shall make alterations,
renovations, improvements and additions to the Property or any
part thereof and substitutions and replacements therefor
(collectively, "Modifications") so long as such Modifications are
(A) made to repair or maintain the Property in the condition
required by Section 9.1; (B) necessary in order for the Property
to be in compliance with Applicable Law; or (C) necessary to
restore the Property to its condition existing prior to a
Casualty or Condemnation; and (ii) so long as no Lease Event of
Default or Lease Default has occurred and is continuing, Lessee
may undertake Modifications on the Property so long as such
Modifications comply with Applicable Law and with Section 9.1 and
subsection (b) of this Section 9.2.
(b) The making of any Modifications must be in compliance
with the following requirements:
(1) No such Modifications with a cost exceeding
$500,000 (other than nonstructural modifications) shall be
made or undertaken except upon not less than thirty days'
prior written notice to Lessor.
(2) Lessee shall not make any Modifications in
violation of the terms of any restriction, easement,
condition or covenant or other matter affecting title to the
Property.
(3) No Modifications shall be undertaken until Lessee
shall have procured and paid for, so far as the same may be
required from time to time, all permits and authorizations
relating to such Modifications of all municipal and other
Authorities having jurisdiction over the Property. Lessor,
at Lessee's expense, shall join in the application for any
such permit or authorization and execute and deliver any
document in connection therewith, whenever such joinder is
necessary or advisable.
(4) The Modifications shall be completed in a
commercially reasonable period in a good and workmanlike
manner and in compliance with all Applicable Law then in
effect and the standards imposed by any insurance policies
required to be maintained hereunder.
(5) All Modifications, whether structural or
nonstructural, (other than Modifications required by
Applicable Law) shall, when completed, be of such a
character as to not (i) materially adversely affect the fair
market value, utility, remaining economic useful life or
residual value of the Property from its fair market value,
utility, remaining economic useful life or residual value
immediately prior to the making thereof or, in the case of
Modifications being made by virtue of a Casualty or
Condemnation, immediately prior to the occurrence of such
Casualty or Condemnation or (ii) result in any loss or
modification of any manufacturer's or contractor's warranty.
(6) Lessee shall have made adequate arrangements for
payment of the cost of all Modifications when due so that
the Property shall at all times be free of Liens for labor
and materials supplied or claimed to have been supplied to
the Property, other than Permitted Liens; provided, that
Lessee shall have the right to contest the amount claimed by
any such supplier of labor or materials in accordance with
the applicable provisions of Section 9.5.
(c) Title to Modifications shall without further act vest
in Lessor and shall be deemed to constitute a part of the related
Property and be subject to this Lease in the following cases:
(1) such Modifications shall be in replacement of or in
substitution for a portion of the Facilities and/or the
Property;
(2) such Modifications shall be required to be made
pursuant to the terms of Section 9.2(a)(i); or
(3) such Modifications shall be Nonseverable.
Lessee, at Lessor's request, shall execute and deliver any deeds,
bills of sale, assignments or other documents of conveyance
reasonably necessary to evidence the vesting of title in and to
such Modifications to Lessor.
If such Modifications are not within any of the categories
set forth in clauses (a) through (c) of this Section 9.2,
then title to such Modifications shall vest in Lessee and such
Modifications shall not be deemed to be Modifications which are
part of the Property.
All Modifications to which Lessee shall have title may, so
long as removal thereof shall not result in the violation of any
Applicable Law and no Lease Event of Default or Lease Default is
continuing, be removed at any time by Lessee. Any such
Modifications shall be removed by Lessee at its expense if Lessor
shall so request prior to the return of the Property to Lessor or
sale of the Property in accordance with this Lease, and Lessee
shall at its expense repair any damage to the Property caused by
the removal of such Modifications. Lessor (or the purchaser of
the applicable Property) may purchase from Lessee Modifications
(if not already owned by Lessor) which Lessee notifies Lessor
that Lessee intends to remove from the Property prior to the
return of the Property to Lessor or sale of the Property, which
purchase shall be at the Fair Market Sales Value of such
Modifications. Title to any Lessee Modifications shall vest in
Lessor (or the purchaser of the applicable Property) if not
removed from the Property by Lessee prior to the return of the
Property to Lessor or sale of the Property.
SECTION 9.3. Financing of Modifications.
(a) Lessee may from time to time, so long as no Event of
Default or Default shall have occurred and be continuing, request
Lessor to arrange for construction or permanent financing of any
proposed Modifications to the Property or any part thereof,
provided that such Modifications shall not include Modifications
required under any provision of this Lease to replace the
Facility or any part existing on the Closing Date, including
those required under Section 13, and further provided, that
Lessee delivers an Officer's Certificate stating that (i) the
estimated costs and expenses of such proposed Modifications are
equal to or greater than $10,000,000, (ii) such proposed
Modifications benefit the Property and are of a consistent or
otherwise appropriate character and use as the Property, (iii)
the amount of the requested financing does not exceed the
estimated costs and expenses incurred or to be incurred in
connection with such proposed Modifications (which amount shall
not include any leasehold improvement costs), and (iv) such
proposed Modifications, if completed in accordance with the Plans
and Specifications therefor, will increase the Fair Market Sales
Value of the Property by an amount at least equal to the amount
of the proposed financing (such Fair Market Sales Value to be
determined by an appraisal to be provided by an appraiser
selected by Lessor, which appraisal and appraiser shall be
reasonably satisfactory to Lessee). Such request shall set forth
in reasonable detail a brief narrative of such proposed
Modifications and shall be accompanied by Plans and
Specifications therefor. As soon as reasonably practical and in
any event within thirty (30) days after receipt by Lessor of such
Officer's Certificate from Lessee, Lessor shall notify Lessee
either (x) that Lessor does not wish to arrange such construction
and/or permanent financing or (y) that Lessor does wish to
arrange such construction and/or permanent financing (and setting
forth the terms of Lessor's proposal therefor). In the latter
event, Lessor and Lessee shall (subject to the provisions of the
Loan Agreement if at the time in effect) (A) offer to the Lenders
the opportunity to participate in such construction and/or
permanent financing, and in the event that the Lenders agree to
participate in such financing, arrange for the issuance of
additional secured notes requested by Lessee, to be issued
pursuant to the Loan Agreement on terms satisfactory to Lessee,
Lessor, and the Lenders, (B) whether or not the Lenders agree to
participate in such financing, cooperate to arrange such
financing on mutually satisfactory terms (which terms shall
include at least the items set forth in Section 9.3(c) and shall
not provide for the indebtedness in connection with such
financing to be secured by a Lien on the Property, except in the
case of any such Indebtedness owed to the Lenders unless Lessee
and Lessor shall otherwise agree in writing) and (C) negotiate
appropriate amendments to this Lease and any of the other
Operative Documents as may be necessary or appropriate in
connection therewith. Neither Lessor nor Lessee shall incur any
liability if financing cannot for any reason whatsoever be
arranged in accordance with this Section 9.3.
(b) If Lessor does not deliver a proposal for such
construction and/or permanent financing to Lessee within 30 days
after receipt of Lessee's request therefor, or having done so, if
Lessor is unable to arrange such financing within 60 days after
Lessee's acceptance of Lessor's proposal, Lessee shall have the
option, exercisable at any time by irrevocable notice to Lessor
(an "Exercise Notice"), to:
(i) request the Lenders to arrange for or participate
in such financing, and in the event that the Lenders agree
to do so, Lessor shall issue additional secured notes
requested by Lessee, to be issued pursuant to the Loan
Agreement on terms satisfactory to Lessor and the Lenders;
or
(ii) (x) finance the construction of such
Modification with indebtedness not secured by a Lien on the
Property or (y) pay for the construction of such
Modification without incurring indebtedness; or
(iii) provided that the Lenders have not agreed to
finance such Modification pursuant to clause (i), purchase
the Property as provided in Section 6.1;
it being understood that any financing arranged or made by Lessee
and the Lenders pursuant to clause (i) above shall, at the option
of the Lessor, include equity financing involving the sale of an
equity portion in an amount not more than 5% of the cost or Fair
Market Sales Value of the Modification, whichever is less.
(c) Certain Conditions of Financing. If any Modification
is financed pursuant to this Section 9.3:
(i) the maturity date of such financing shall in no
event be later than the last day of the Base Term, or any
Renewal Term if Lessee shall have given Lessor irrevocable
notice of its intention to lease the Property during such
Renewal Term pursuant to Section 2.4; and
(ii) Basic Rent, the Purchase Option and the
Guaranteed Residual Amount shall be adjusted in a manner
mutually acceptable to Lessor, the Lenders and Lessee.
(d) Lessee's Certificate. Within 90 days after substantial
completion of any alteration financing pursuant to this Section
9.3, Lessee shall deliver to Lessor an Officer's Certificate
stating the actual cost of such Modification.
(e) Payment of Expenses. Lessee shall pay all costs and
expenses associated with any request for financing pursuant to
the provisions of this Section 9.3 and, within 30 days after
request therefor by Lessor, shall reimburse Lessor and the
Lenders for all reasonable out-of-pocket expenses incurred by
Lessor or the Lenders in connection with any such financing
pursuant to the provisions of this Section 9.3.
SECTION 9.4. Permitted Contests. Without limiting Lessee's
obligations under the second sentence of Section 8.1, Lessee
shall not be obligated to discharge any Lien under Section 8.1 or
comply with Applicable Law so long as it is engaged with respect
thereto in a Permitted Contest. Lessee shall provide Lessor with
notice of any Permitted Contest in detail sufficient to enable
Lessor to ascertain whether such contest may have an effect of
the type described in the definition of "Permitted Lien."
Lessor will not be required to join in any proceedings
pursuant to this Section 9.4 unless a provision of any Applicable
Law requires, or, in the good faith opinion of Lessee, it is
helpful to Lessee that such proceedings be brought by or in the
name of Lessor; and in that event Lessor will join in the
proceedings or permit them or any part thereof to be brought in
its name if and so long as no Lease Event of Default or Lease
Default has occurred and is continuing and Lessee pays all
related expenses.
ARTICLE X
USE
The Property shall be used during the Construction Period in
a manner consistent with the Construction Agency Agreement, and
thereafter, Lessee will use and operate various designated
portions of the Property for office space, fitness and recreation
facilities, cafeteria, multi-purpose auditorium, biomechanical
laboratories, model shop and showrooms or for any purpose related
or ancillary to the several aforementioned functions of the
Facility throughout the Lease Term, except for interruptions for
Modifications or due to Casualty, Condemnation or Force Majeure.
Notwithstanding the foregoing, Lessee shall not use the Property
or any part thereof for any purpose or in any manner that would
materially adversely affect the fair market value, utility,
remaining useful life or residual value of the Property or that
would create a materially increased risk of environmental
liability or that would violate or conflict with, or constitute
or result in a violation or default under (a) any Applicable Law
whether now existing or hereafter in effect, foreseen or
unforeseen, except to the extent permitted by Section 9.4,
(b) any insurance policies required by Article 11, or (c) any
Operative Document. Lessee shall pay, or cause to be paid, all
charges and costs required in connection with the use of the
Property as contemplated by this Lease and the Construction
Agency Agreement. Lessee shall not commit or permit any waste of
the Property or any part thereof.
ARTICLE XI
INSURANCE
SECTION 11.1. Required Coverages. Commencing immediately
after the expiration or termination of the Construction Period,
Lessee will cause to be carried and maintained with respect to
the Property insurance consistent and on a parity with Class A
office buildings of similar size, age, use and location. Lessee
shall also carry such other insurance as is usually carried by
such corporations in the same general area engaged in the same or
a similar business, provided that in any event Lessee will
maintain:
(a) Commercial General Liability Insurance. Combined
single limit insurance, with minimum limits of liability of not
less than One Million Dollars ($1,000,000) per occurrence, and
Nine Million Dollars ($9,000,000) excess of such coverage,
against claims for bodily injury, death or third-party property
damage occurring on, in or about the Property (contractual
liability exclusions deleted), personal injury (contractual
liability exclusions deleted), contractual liability specifically
insuring (to the extent permitted by law) the indemnifying
portions of this Lease, owner's protective liability, and broad
form property damage.
(b) Property Insurance. All risk property insurance
against loss or damage covering the Property or any portion
thereof (as defined below) in an amount that at no time, on a
replacement cost basis, is less than the replacement cost of the
improvements to the Property.
Such insurance shall be written by reputable insurance
companies that are financially sound and solvent and otherwise
reasonably appropriate considering the amount and type of
insurance being provided by such companies. Any insurance
company selected by Lessee shall be rated in A.M. Best's
Insurance Guide or any successor thereto and shall have an A.M.
Best rating consistent with Lessee's normal practice for similar
types of insurance (or if there be none, an organization having a
similar national reputation) or be otherwise reasonably
acceptable to Lessor. In the case of liability insurance
maintained by Lessee, it shall name Administrative Agent,
together with Lessor as additional insureds and, in the case of
property insurance maintained by Lessee, it shall name
Administrative Agent as sole loss payee with respect to payments
in excess of $5,000,000, it being understood that all payments of
$5,000,000 or less may be made payable to the Lessee. Each
policy referred to in this Section 11.1(b) shall provide that:
(i) it will not be canceled, materially modified insofar as it
relates to the Property or its limits reduced, or allowed to
lapse without renewal, except after not less than 30 days' prior
written notice to Lessor; (ii) the interests of Lessor shall not
be invalidated by any act or negligence of or breach of warranty
or representation by Lessee or any Person having an interest in
the Property; (iii) such insurance is primary with respect to any
other insurance carried by or available to Lessor; (iv) in
connection with insurance maintained under Section 11.1(b) only,
the insurer shall waive any right of subrogation, setoff,
counterclaim, or other deduction, whether by attachment or
otherwise, against Lessor; and (v) in connection with insurance
maintained under Section 11.1(a) only, such policy shall contain
a cross-liability clause providing for coverage of Lessor as if
separate policies had been issued to Lessor. Lessee will notify
Lessor promptly of any policy cancellation, reduction in policy
limits, material modification or amendment which adversely
affects the required coverages.
SECTION 11.2. Delivery of Insurance Certificates. On or
before the Documentation Date, Lessee shall deliver to Lessor
certificates of insurance reasonably satisfactory to Lessor
evidencing the existence of all insurance required to be
maintained hereunder and setting forth the respective coverages,
limits of liability, carrier, policy number and period of
coverage. Thereafter, throughout the Lease Term, at the time
each of Lessee's insurance policies is scheduled to expire (but
in no event less frequently than once each year), Lessee shall
deliver to Lessor certificates of insurance evidencing that all
insurance required by Section 11.1 to be maintained by Lessee
with respect to the Property is in effect.
ARTICLE XII
ASSIGNMENT AND SUBLEASING
(a) Subject to permitted mergers and consolidations under
Section 5.2 of the Participation Agreement and Section 12(b)
below, Lessee may not, without the prior written consent of
Lessor, assign, mortgage, pledge or sublease, in whole or in
part, any of its right, title or interest in, to or under this
Lease or any portion of the Property to any Person at any
time, and any such assignment, mortgage, pledge or sublease shall
be void. Lessee may, however, assign its right, title or
interest in, to or under this Lease with respect to the Property
to a Wholly-owned Domestic Subsidiary that becomes a Lessee
hereunder pursuant to a Lease amendment and in accordance with
Article VIII of the Participation Agreement. Any such
Wholly-owned Domestic Subsidiary that becomes a Lessee hereunder
shall remain a Wholly-owned Domestic Subsidiary of the Lessee for
so long as it is a Lessee.
(b) Lessee may not sublease any of its right, title or
interest in, to or under this Lease or any portion of the
Property to any Person at any time, and any such sublease shall
be void, unless Lessee shall obtain the prior written consent of
Administrative Agent and Participants, which consent shall not be
unreasonably withheld; provided, however, that their withholding
of such consent shall not be deemed unreasonable if, for purposes
of illustration and not in limitation, (a) the proposed subtenant
is engaged in a business or conducts activities which might be
hazardous to any Person or property, in each case in
Administrative Agent's sole judgment, or (b) the proposed
subtenant has requirements for which the Property is not suited
or which are contrary to, or might cause Lessor or the Property
to be in violation of, any Applicable Laws; provided further
that, without such consent of the Administrative Agent or
Participants, Lessee (i) may enter into a sublease or subleases
for all or any portion of the Property with a Wholly-owned
Domestic Subsidiary, and (ii) if no Lease Event of Default has
occurred and is continuing, may enter into a Sublease or
Subleases for any portion of the Property with any Person, in
each case provided that (A) all obligations of Lessee under this
Lease shall continue in full effect as obligations of a principal
and not of a guarantor or surety, as though no sublease had been
made; (B) such sublease (or any other sublease entered pursuant
to this Article XII) shall be expressly subject and subordinate
to this Lease, the Loan Agreement, the Mortgage and the other
Operative Documents, and the term of any such sublease shall not
extend beyond the scheduled term of this Lease; (C) such sublease
shall not affect the liability of Lessee as to the Lease or any
other Operative Documents; and (D) at any time after the end of
the Construction Period, no more than 20% of the aggregate gross
square footage of the Property subject to this Lease shall be
subject to Subleases with Persons who are not Affiliates of
Lessee. Any such permitted sublease is hereinafter referred to
as a "Sublease"). The sublessee under any Sublease described in
this Article XII shall hereinafter be referred to as a
"Subtenant."
Regardless of Lessor's consent, no subletting shall release
Lessee of Lessee's obligation or alter the primary liability of
Lessee to pay Rent hereunder (including Basic Rent and
Supplemental Rent) and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of Rent by Lessor
from any other Person shall not be deemed to be a waiver by
Lessor of any provision hereof. Lessor may proceed directly
against Lessee without the necessity of exhausting remedies
against said successor.
ARTICLE XIII
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
SECTION 13.1. Event of Loss; Condemnation or Casualty.
(a) If an Event of Loss shall occur, Lessee shall give
Lessor and Administrative Agent prompt written notice of such
occurrence and the date thereof and Lessee shall purchase the
Property from Lessor on the first to occur of (i) the first Rent
Payment Date occurring at least 30 days on or after the Event of
Loss and (ii) the Termination Date, at a purchase price equal to
the sum of (A) the then outstanding Lease Balance, plus (B) all
accrued but unpaid Rent, plus (C) all other sums due and payable
by Lessee to Lessor with respect to the Property under this Lease
or any of the other Operative Documents.
(b) Upon payment in full of all amounts payable pursuant to
Section 13.1(a), (i) the Lease Term shall end and (ii) the
obligations of Lessee hereunder with respect to the Property
(other than any obligations expressed herein as surviving
termination of this Lease) shall terminate as of the date of such
payment.
SECTION 13.2. Application of Payments Relating to an Event
of Loss. All Loss Proceeds received at any time for the Property
then held by Lessor, Lessee or Administrative Agent from any
Authority or other Person with respect to any Event of Loss shall
be promptly remitted to Lessor and, in the event Lessee purchases
the affected Property pursuant to Section 13.1(a), shall be
applied against the purchase price payable by Lessee pursuant to
Section 13.1(a), and any such Loss Proceeds remaining thereafter
shall be paid over to, or retained by, Lessee, or as Lessee may
direct.
SECTION 13.3. Application of Certain Payments Relating to a
Condemnation. In case of a requisition for temporary use of all
or a portion of the Property which is not an Event of Taking,
this Lease shall remain in full force and effect, without any
abatement or reduction of Rent, and the Net Condemnation Proceeds
for the Property shall, subject to Section 13.3, be paid to
Lessee, except that any portion of such Net Condemnation Proceeds
that was awarded with respect to the time period after the
expiration or termination of the Lease Term (unless Lessee
shall have exercised or be deemed to have exercised an option to
purchase the Property) shall be paid to Lessor.
SECTION 13.4. Casualty. As soon as practicable after a
Casualty, Lessee shall repair and rebuild the affected portions
of the Property suffering such Casualty (or cause such affected
portions to be repaired and rebuilt) to the condition required to
be maintained by Section 9.1; provided, that the value and
functional capability of such item as restored is at least
equivalent to the value and functional capability of such item as
in effect immediately prior to the occurrence of such Casualty.
Any Loss Proceeds in excess of $5,000,000 for the Property
received with respect to any Casualty shall be paid over to or
retained by Lessor until Lessee repairs and rebuilds (or causes
to be repaired and rebuilt) the affected portions of the
applicable Property in accordance with the conditions set forth
in this Section 13.4; such amounts shall be paid out by Lessor as
repair and rebuilding progresses, subject to delivery to Lessor
of receipted invoices, bills of sale and lien releases; any
proceeds less than such amounts shall be paid to or retained by
the Lessee to repair and rebuild the Property.
SECTION 13.5. Other Dispositions. Notwithstanding the
foregoing provisions of this Article XIII, as long as a Lease
Default or a Lease Event of Default shall have occurred and be
continuing, any amount that would otherwise be payable to or for
the account of, or that would otherwise be retained by, Lessee
pursuant to this Article XIII shall be paid to Lessor as security
for the obligations of Lessee under this Lease, shall be invested
by Lessor in accordance with Section 20.17 in Permitted
Investments and, if a Lease Default or a Lease Event of Default
is continuing, may be applied to the obligations of Lessee
hereunder, and, at such time thereafter as no Lease Default or
Lease Event of Default shall be continuing, such amount and gain
thereon shall be paid promptly to Lessee to the extent not
previously applied in accordance with the terms of this Lease.
SECTION 13.6. Negotiations. In the event any part of the
Property becomes subject to condemnation or requisition
proceedings, Lessee shall give notice thereof to Lessor
promptly after Lessee has knowledge thereof and, to the extent
permitted by any Applicable Law, Lessee shall control the
negotiations with the relevant Authority unless a Lease Default
or Lease Event of Default shall be continuing, in which case
Lessor shall control such negotiations; provided that in any
event Lessor may participate at Lessor's expense (or if a Lease
Default or Lease Event of Default shall be continuing, at
Lessee's expense) in such negotiations; and provided in all
cases, that no settlement will be made without Lessor's
prior written consent, not to be unreasonably withheld.
Lessee shall give to Lessor such information, and copies of such
documents, which relate to such proceedings, or which relate to
the settlement of amounts due under insurance policies required
by Article XI, and are in the possession of Lessee, as are
reasonably requested by Lessor or Administrative Agent. If the
proceedings relate to an Event of Taking, Lessee shall act
diligently in connection therewith.
SECTION 13.7. No Rent Abatement. Rent shall not ▇▇▇▇▇
hereunder by reason of any Event of Loss, any Casualty, or any
Condemnation of the Property, and Lessee shall continue to
perform and fulfill all of Lessee's obligations, covenants and
agreements hereunder notwithstanding such Event of Loss,
Casualty, or Condemnation until the Termination Date.
ARTICLE XIV
NON-INTERFERENCE
SECTION 14.1. Non-Interference. Lessor covenants that it
will not take or cause to be taken any affirmative act that
interferes in Lessee's use of the Property in accordance with
this Lease during the Lease Term, so long as no Lease Event of
Default has occurred and is continuing; it being agreed that
Lessee's remedies for breach of the foregoing covenant shall be
limited to a claim for damages or the commencement of proceedings
to enjoin such breach. Such right is independent of, and shall
not affect, Lessor's rights otherwise to initiate legal action to
enforce the obligations of Lessee under this Lease.
SECTION 14.2. Certain Duties and Responsibilities of
Lessor. Except during the continuance of a Lease Event of
Default, Lessor undertakes to perform such duties and only such
duties as are specifically set forth herein and in the other
Operative Documents, and no implied covenants or obligations
shall be read into this Lease against Lessor, and Lessor agrees
that it shall not, nor shall it have a duty to, manage, control,
use, sell, maintain, insure, register, lease, operate, modify,
dispose of or otherwise deal with the Property in any manner
whatsoever, except as required by the terms of the Operative
Documents and as otherwise provided herein.
ARTICLE XV
INSPECTION AND REPORTS
SECTION 15.1. Inspection. Upon five (5) Business Days
prior notice to Lessee, by Lessor or Administrative Agent, Lessor
and/or Administrative Agent and their respective authorized
representatives (the "Inspecting Parties") may inspect (a) the
Property and (b) the books and records of Lessee relating
directly and primarily to the Property and make copies and
abstracts therefrom, but only after material related to matters
other than the Property shall have been redacted therefrom. All
such inspections shall be at the expense and risk of the
Inspecting Parties, except that if a Lease Event of Default
or Lease Default has occurred and is continuing, Lessee shall
reimburse the Inspecting Parties for the reasonable costs of such
inspections and such inspection shall be at Lessee's risk. Lessee
shall furnish to the Inspecting Parties statements accurate in
all material respects regarding the condition and state of repair
of the Property, all at such times and as often as may be
reasonably requested. No inspection shall unreasonably interfere
with Lessee's use of the Property. None of the Inspecting
Parties shall have any duty to make any such inspection or
inquiry, and none of the Inspecting Parties shall incur any
liability or obligation by reason of not making any such
inspection or inquiry. None of the Inspecting Parties
shall incur any liability or obligation by reason of making any
such inspection or inquiry unless and to the extent, so long as
no Lease Event of Default has occurred and is continuing at the
time of inspection, such Inspecting Party causes damage to the
Property or any interest therein of Lessee or any other Person
during the course of such inspection.
SECTION 15.2. Reports. To the extent permissible under
Applicable Law, Lessee shall prepare and file in timely fashion,
or, where Lessor shall be required to file, Lessee shall prepare
and make available to Lessor within a reasonable time prior to
the date for filing and Lessor shall file, any reports with
respect to the condition or operation of the Property that shall
be required to be filed with any Authority.
ARTICLE XVI
OWNERSHIP, GRANT OF SECURITY INTEREST
AND FURTHER ASSURANCES
SECTION 16.1. Grant of Security Interest. Title to the
Property shall remain in Lessor, as security for the obligations
of Lessee hereunder and under each of the other Operative
Documents to which it is a party until such time as
Lessee shall have fulfilled all of its obligations hereunder and
under such other Operative Documents. Lessee hereby assigns,
grants and pledges to Lessor for the benefit of Administrative
Agent a security interest in and Lien against all of Lessee's
right, title and interest, whether now or hereafter existing or
acquired, in the Property, any deposit account in the name of
Lessee maintained with the Administrative Agent or its designee
and proceeds therefrom, to secure the payment and performance of
all obligations of Lessee now or hereafter existing under this
Lease or any other Operative Document. Lessee shall, at its
expense, do any further act and execute, acknowledge, deliver,
file, register and record any further documents which Lessor
or Administrative Agent may reasonably request in order to
protect its title to and perfected Lien on the Property, subject
to no Liens other than Permitted Liens, and Lessor's rights and
benefits under this Lease. Lessee shall promptly and duly
execute and deliver to Lessor such documents and assurances and
take such further actions as Lessor may from time to time
reasonably request in order to carry out more effectively the
intent and purpose of this Lease and the other Operative
Documents, to establish and protect the rights and remedies
created or intended to be created in favor of Lessor hereunder
and thereunder, and to establish, perfect and maintain the right,
title and interest of Lessor in and to the Property, subject to
no Lien other than Permitted Liens, or of such financing
statements or fixture filings or other documents with respect
hereto as Lessor or Administrative Agent may from time to time
reasonably request, and Lessee agrees to execute and deliver
promptly such of the foregoing financing statement and fixture
filings or other documents as may require execution by Lessee. To
the extent permitted by Applicable Law, Lessee hereby authorizes
any such financing statement and fixture filings to be filed
without the necessity of the signature of Lessee.
SECTION 16.2. Release of Liens; Transfer of Property. Upon
Lessee's request, Lessor shall at such time as all of the
obligations of Lessee under this Lease or any other Operative
Documents have been indefeasibly paid or performed in full (other
than Lessee's contingent obligations, if any, under Article
VII of the Participation Agreement) execute and deliver
termination statements and other appropriate documentation
reasonably requested by Lessee, all at Lessee's expense, to
evidence Lessor's release of its Lien against the Property.
Whenever pursuant to any provision of this Lease Lessor is
required to transfer the Property to Lessee or to an independent
third party, such transfer shall be made at Lessee's expense by
the quitclaim transfer of all of Lessor's right, title and
interest in and to such Property on an "as is, where is, with all
faults" basis free and clear of all Lessor Liens and otherwise
without recourse, representation or warranty of any kind, and
together with the due assumption by Lessee (or such third party)
of, and due release of Lessor from, all obligations relating to
such Property or the Operative Documents. At the request of
Lessor, Lessee will transfer all of its right, title and interest
in the Property to the buyer. Any provision in this Lease or
other Operative Document to the contrary notwithstanding, Lessor
shall not be obligated to make any such transfer until Lessor
has received all Rent and other amounts due and owing hereunder.
SECTION 16.3. Attorney-in-Fact. Lessee hereby irrevocably
appoints Administrative Agent as Lessee's attorney-in-fact, with
full authority in the place and stead of Lessee and in the name
of Lessee or otherwise, from time to time in Lessor's discretion,
upon the occurrence and during the continuance of a Lease Event
of Default, to take any action (including any action that
Lessee is entitled to take) and to execute any instrument which
Lessor may deem necessary or advisable to accomplish the purposes
of this Lease (subject to any limitations set forth in the
Operative Documents), including, without limitation:
(a) to ask, demand, collect, ▇▇▇ for, recover,
compromise, receive and give acquittance and receipts for
money due and to become due under or in connection with the
Property;
(b) to receive, endorse and collect any drafts or
other instruments, documents and chattel paper in connection
with the foregoing clause (a);
(c) to file any claim or take any action or institute
any proceedings which Lessor may deem to be necessary or
advisable for the collection thereof or to enforce
compliance with the terms and conditions of the Lease; and
(d) to perform any affirmative obligations of
Lessee hereunder.
Lessee hereby acknowledges, consents and agrees that the power of
attorney granted pursuant to this Section 16.3 is irrevocable and
coupled with an interest.
ARTICLE XVII
LEASE EVENTS OF DEFAULT
The occurrence of any one or more of the following events,
whether any such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in
compliance with any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body, shall constitute "Lease Events of Default":
(a) Lessee shall fail to make any payment of: (i)
Basic Rent when due and such failure shall continue for a
period of five (5) days, (ii) amounts payable pursuant to
the exercise of the Purchase Option, the Remarketing Option
or Section 13.1(a), when due, or (iii) Supplemental Rent
(other than Supplemental Rent payable under clause
(ii)) when due and such failure shall continue for a period
of five days after receipt of written notice thereof from
Administrative Agent or Lessor;
(b) Lessee shall fail to maintain insurance as
required by Section 11.1 or shall default in the performance
or observance of any other term, covenant, condition or
agreement on its part to be performed or observed under
Article XI and such failure shall continue for ten (10)
days after written notice to Lessee thereof from
Administrative Agent or Lessor;
(c) any representation or warranty by Lessee in any
Operative Document or in any certificate, document or
financial or other statement delivered to Lessor pursuant
to any Operative Document shall have been incorrect in any
material respect when made, shall result in a Material
Adverse Effect, and, if curable, shall continue for a period
of 35 days after written notice to Lessee from any
Participant or the Administrative Agent;
(d) Lessee shall fail to perform or observe any
covenant, condition, or agreement (not included in any other
clause of this Article XVII) to be performed or observed by
it hereunder or in any other Operative Document and such
failure shall continue unremedied for 35 days if using due
diligence after the earlier of (i) the date upon which a
Responsible Officer of Lessee has actual knowledge thereof
and (ii) the date upon which written notice thereof is
delivered to Lessee from any Participant or Administrative
Agent; except that if the failure is capable of being
remedied, no such failure shall constitute a Lease Event of
Default so long as Lessee is diligently proceeding to cure
such failure, but in no event shall the failure continue
unremedied for a period of 180 days from the notice referred
to above;
(e) (i) Lessee or any Material Subsidiary shall
generally fail to pay, or admit in writing its inability to
pay, its debts as they become due, or shall voluntarily
commence any case or proceeding or file any petition under
any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, or similar law seeking to have an
order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent or seeking
dissolution, liquidation, reorganization, arrangement,
adjustment, winding-up, composition or other relief with
respect to it or its debts or the appointment of a receiver,
trustee, custodian or liquidator for itself or for all or
a substantial portion of its property, assets or business,
or to effect a plan or other arrangement with its creditors,
or shall file any answer admitting the jurisdiction of the
court and the material allegations of any involuntary
petition filed against it in any bankruptcy, insolvency or
similar case or proceeding, or shall be adjudicated
bankrupt, or shall make a general assignment for the benefit
or creditors, or shall consent to, or acquiesce in the
appointment of, a receiver, trustee, custodian or liquidator
for itself or a substantial portion of its property, assets
or business; (ii) corporate action shall be taken by
Lessee or any Material Subsidiary for the purpose of
effectuating any of the foregoing; (iii) involuntary
proceedings or an involuntary petition shall be commenced or
filed against Lessee or any Material Subsidiary under any
existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, or similar law or seeking the
dissolution, liquidation, reorganization, arrangement,
adjustment, winding-up, composition or other relief with
respect to it or its debts of Lessee or the appointment of a
receiver, trustee, custodian or liquidator for Lessee or for
a substantial part of the property, assets or business of
Lessee, or any writ, judgment, warrant of attachment,
execution or similar process shall be issued or levied
against all or a substantial part of the property, assets or
business of Lessee, and such proceedings or petition shall
not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be
released, vacated or fully bonded, within 60 days after
commencement, filing or levy, as the case may be;
or (iv) either Lessee or any Material Subsidiary shall take
any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth
in clauses (i), (ii) or (iii) above;
(f) One or more judgments or decrees, which shall
not have been vacated, discharged, paid in full, stayed
or bonded pending appeal within the time required by the
terms of such judgment, shall be entered against Lessee or
any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance where the
insurer has admitted liability under the policy or has
agreed in writing to pay in full the claim) of $10,000,000
or more;
(g) Lessee or any of its Affiliates shall directly or
indirectly contest the validity of any Operative Document in
any manner in any court of competent jurisdiction or the
Lien granted by this Lease or the Mortgage or the Guaranty
shall no longer be in full force or effect;
(h) Lessee or any of its Subsidiaries shall (i)
default in any payment of principal of or interest of any
Indebtedness (other than the Loans) or in the payment of any
Guarantee Obligation, beyond the period of grace (not to
exceed 60 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to
any such Indebtedness or Guarantee Obligation or contained
in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such
Guarantee Obligation (or Administrative Agent on behalf of
such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice or the passage of time if
required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become
payable; provided, however, that no Lease Event of Default
shall exist under this paragraph unless the aggregate amount
of Indebtedness and/or Guarantee Obligations in respect of
which any default or other event or condition referred to in
this paragraph shall have occurred shall be equal to at
least $10,000,000;
(i) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any "accumulated
funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan
or any Lien in favor of the PBGC or a Plan shall arise on
the assets of the Lessee or any Commonly Controlled Entity,
(iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Participants,
likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v)
Lessee or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Required Participants is
likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other adverse event or
condition shall occur or exist with respect to a Plan; and
in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or
conditions, if any, could reasonably be expected to involve
an aggregate amount of liability to the Company or any
Material Subsidiary in excess of
$10,000,000;
(j) (i) Any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended, but other than the Fireman Group) (A)
shall have acquired beneficial ownership of 20% or more of
any outstanding class of Capital Stock having ordinary
voting power in the election of directors of Lessee or (B)
shall obtain the power (whether or not exercised) to elect a
majority of the Lessee's directors or (ii) the Board of
Directors of the Lessee shall not consist of a majority of
Continuing Directors; "Continuing Directors" shall mean the
directors of the Lessee on the date hereof and each other
director, if such other director's nomination for election
to the Board of Directors of the Lessee is recommended by a
majority of the then Continuing Directors;
(k) A Construction Agency Event of Default has
occurred; or
(l) Lessee shall default in the observance or
performance of any Agreement contained in Sections 5.6, 5.18
or 5.19 of the Participation Agreement.
ARTICLE XVIII
ENFORCEMENT
SECTION 18.1. Remedies. Upon the occurrence of any Lease
Event of Default and at any time thereafter so long as the same
shall be continuing, Lessor may, at its option, by notice to
Lessee pursuant to Article XVI, declare this Lease to be in
default (except that no notice shall be required and this Lease
shall be deemed in default upon the occurrence of a Lease Event
of Default under Article XVII(e) or (g)), and at any time
thereafter Lessor may, so long as such Lease Event of Default is
continuing, do one or more of the following as Lessor in its sole
discretion from time to time shall determine, to the extent
permitted by Applicable Law:
(a) Lessor may terminate this Lease and Lessee's right
to possession of the Property as of the date specified in
such notice; however, (i) no judicial proceedings,
reletting, reentry or taking of possession of the Property
by Lessor will be construed as an election on Lessor's part
to terminate this Lease unless a written notice of such
intention is given to Lessee, (ii) notwithstanding any
judicial proceedings, reletting, reentry or taking of
possession, Lessor may at any time thereafter elect to
terminate this Agreement for a continuing Lease Event of
Default, and (iii) no act or thing done by Lessor or the
Administrative Agent, representatives or employees and no
agreement accepting a surrender of the Property shall be
valid unless the same shall be made in writing and executed
by Lessor;
(b) Lessor may (i) demand that Lessee, and Lessee
shall upon the written demand of Lessor, return the Property
promptly to Lessor in the manner and condition required by,
and otherwise in accordance with all of the provisions of,
Section 9.1 as if the Property were being returned at the
end of the Lease Term, and Lessor shall not be liable for
the reimbursement of Lessee for any costs and expenses
incurred by Lessee in connection therewith, or (ii) without
prejudice to any other remedy which Lessor may have for
possession of the Property, enter upon the Property and take
immediate possession of (to the exclusion of Lessee) the
Property or any part thereof and expel or remove Lessee and
any other Person who may be occupying the Property, with or
without judicial process, all without liability to Lessor
for or by reason of such entry or taking of possession,
whether for the restoration of damage to property caused by
such taking or otherwise and, in addition to Lessor's other
damages, Lessee shall be responsible for the reasonably
necessary costs and expenses of reletting, including
broker's fees attributable to the balance of the Lease Term
and for future reletting and the costs of any alterations or
repairs made by Lessor. The provisions of this Section
17.1(b) shall be deemed to satisfy all requirements or
provisions of Applicable Law, if any, which may require
Lessor to provide a notice to Lessee of Lessor's intention
to re-enter the Property and any such requirements or
provisions are hereby waived by Lessee;
(c) Lessor may sell all or any part of the Property at
public or private sale, as Lessor may determine, free and
clear of any rights of Lessee and without any duty to
account to Lessee with respect to such action or inaction
(except to the extent required by clause (f) below if Lessor
shall elect to exercise its rights thereunder) in which
event Lessee's obligation to pay Basic Rent hereunder for
periods commencing after the date of such sale shall be
terminated or proportionately reduced, as the case may be
(except to the extent that Basic Rent is to be included in
computations under clauses (e) or (f) below if Lessor shall
elect to exercise its rights thereunder);
(d) Lessor may, at its option, without terminating
this Agreement, terminate Lessee's right to possession only,
and continue to collect all Basic Rent, Supplemental Rent,
and all other amounts due Lessor (together with all costs of
collection) and enforce Lessee's obligations under this
Agreement as and when the same becomes due, or are to be
performed, and at the option of Lessor, Lessor may, in its
sole and absolute discretion, make such reasonable
alterations and necessary repairs in order to relet the
Property, and relet the Property or any part thereof for
such term or terms (which may be for a term extending beyond
the Lease Term) and at such rental or rentals and upon such
other terms and conditions as Lessor in its reasonable
discretion may deem advisable; and upon each such reletting
all rentals actually received by Lessor from such reletting
after deducting costs of alterations, brokerage and
attorneys' fees shall be applied to Lessee's obligations
(including the Lease Balance) in accordance with Article V
of the Participation Agreement. If such rent received from
such reletting during any Lease Term shall be less than the
Rent to be paid during that Lease Term by Lessee hereunder,
Lessee shall pay any deficiency, as calculated by Lessor, to
Lessor on the next Rent Payment Date in such Lease Term;
(e) Lessor may enforce the Lien given hereunder
pursuant to Section 16.1, the Uniform Commercial Code or any
other law;
(f) If Lessee has breached this Lease and abandoned
the Property, this Lease shall continue in effect for so
long as Lessor does not terminate Lessee's right to
possession, and Lessor may enforce all of Lessor's
rights and remedies under this Lease, including the right to
recover the Rent hereunder (including Basic Rent and
Supplemental Rent) as it becomes due under this Lease.
Lessee's right to possession shall not be deemed to have
been terminated by Lessor except pursuant to clause (i)
above. The following do not constitute a termination of
Lessee's right to possession:
(A) Acts of maintenance or preservation or
efforts to relet the Property;
(B) The appointment of a receiver upon the
initiative of Lessor to protect Lessor's interest under
this Lease;
(C) Reasonable withholding of consent to an
assignment or subletting, or terminating a subletting
or assignment by Lessee;
(g) In the event that Lessor elects to continue this
Lease in full force and effect, Lessor may enforce all its
rights and remedies under this Lease, including, but not
limited to, the right to recover Rent hereunder
(including Basic Rent and Supplemental Rent) as it becomes
due. During the continuance of a Lease Event of Default,
Lessor may enter the Property in accordance with applicable
law without terminating this Lease and sublet all or any
part of the Property for Lessee's account to any Person,
for such term (which may be a period beyond the remaining
Lease Term), at such rents and on such other terms and
conditions as are commercially reasonable. In the event of
any such subletting, rents received by Lessor from such
subletting shall be applied (i) first, to the payment of the
reasonable costs incurred by Lessor in maintaining,
preserving, altering and preparing the Property for
subletting and other costs of subletting, including, but not
limited to, brokers' commissions and attorneys' fees; (ii)
second, to the payment of Rent hereunder (including Basic
Rent and Supplemental Rent) then due and payable; (iii)
third, to the payment of future Rent hereunder (including
Basic Rent and Supplemental Rent) as the same may become due
and payable hereunder; (iv) fourth, to the payment of all
other obligations of Lessee hereunder and under the other
Operative Documents; and (v) fifth, the balance, if any,
shall be paid to Lessee upon (but not before) expiration of
the Lease Term. If the rents received by Lessor from such
subletting, after application as provided above, are
insufficient in any period to pay the Rent (including Basic
Rent and Supplemental Rent) due and payable hereunder for
such period, Lessee shall pay such deficiency to Lessor
upon demand. Notwithstanding any such subletting for
Lessee's account without termination, Lessor may at any time
thereafter, by written notice to Lessee, elect to terminate
this Lease by virtue of a previous Lease Event of Default;
(h) Lessor may, whether or not Lessor shall have
exercised or shall thereafter at any time exercise any of
its rights under clauses (b), (c) or (d) of this Section
17.1 with respect to the Property, demand, by written notice
to Lessee specifying a Rent Payment Date (the "Final Rent
Payment Date") not earlier than 10 days after the date of
such notice, that Lessee pay to Lessor, and Lessee shall pay
to Lessor, on the Final Rent Payment Date (in lieu of Basic
Rent due after the Final Rent Payment Date) an amount equal
to the sum of (A) all accrued and unpaid Rent due and unpaid
to and including the Final Rent Payment Date plus (B) the
Lease Balance computed as of the Final Rent Payment Date,
and upon payment of such amount, and the amount of any
unpaid Rent referred to above plus all other sums due and
payable by Lessee to Lessor (and interest at the Overdue
Rate on the amount payable under this clause (h) from the
Final Rent Payment Date to the date of actual payment),
Lessor shall transfer by quitclaim to Lessee all of Lessor's
right, title and interest in and to the Property without
recourse or warranty, but free and clear of Lessor's Liens;
(i) If Lessor shall have sold the Property pursuant to
clause (c) above, Lessor, in lieu of exercising its rights
under clause (h) above, may, if it shall so elect, demand
that Lessee pay to Lessor, and Lessee shall pay to Lessor,
on the date of such sale (in lieu of Basic Rent due for
periods commencing on or after the Rent Payment Date
coinciding with such date of sale (or, if the sale date is
not a Rent Payment Date, the Rent Payment Date next
preceding the date of such sale)), an amount equal to the
sum of (A) all Rent due and unpaid to and including such
Rent Payment Date, plus (B) the amount of any excess of the
Lease Balance, computed as of such date, over the net
proceeds of such sale (i.e., after deduction from gross
proceeds of all costs related to the sale incurred by
Lessor, and Lessee, all transfer and other taxes imposed in
connection with the sale and all other costs, charges, title
insurance premiums and fees paid to third Persons in
connection with such sale), together with interest at the
Overdue Rate on such excess from such Rent Payment Date to
the date of sale, plus (C) interest at the Overdue Rate on
all of the foregoing amounts from the date of such sale
until the date of payment;
(j) Lessor may exercise any other right or remedy that
may be available to it under Applicable Law or in equity, or
proceed by appropriate court action (legal or equitable) to
enforce the terms or to recover damages for the breach
hereof. Separate suits may be brought to collect any such
damages for any portion of the Lease Term, and such suits
shall not in any manner prejudice Lessor's right to collect
any such damages for any subsequent portion of the Lease
Term, or Lessor may defer any such suit until after the
expiration of the Lease Term or any Renewal Term, in which
event such suit shall be deemed not to have accrued until
the expiration of the Lease Term, or such Renewal Term;
or
(k) Lessor may retain and apply against Lessor's
damages all sums which Lessor would, absent such Lease Event
of Default, be required to pay to, or turn over to, Lessee
pursuant to the terms of this Lease.
SECTION 18.2. Proceeds of Sale. All payments received and
amounts held or realized by Lessor at any time when a Lease Event
of Default shall have occurred and be continuing and after the
Lease Balance shall have been accelerated pursuant to Article
XVIII as well as all payments or amounts then held or
thereafter received by Lessor, except for rents received by
Lessor from subletting pursuant to Section 18.1(d), shall be
distributed forthwith upon receipt by Lessor in accordance with
Section 2.6 of the Participation Agreement.
SECTION 18.3. Grant and Foreclosure on Lessee's Estate.
Notwithstanding any other remedies set forth in this Lease, the
following shall apply:
(a) Title to the Property shall remain in Lessor, as
security for the obligations of Lessee under the Lease and
under each of the other Operative Documents to which it is a
party until such time as Lessee shall have fulfilled all of
its obligations under the Lease and under such other
Operative Documents. Lessee hereby assigns, grants,
mortgages, warrants and pledges with mortgage covenants to
the Lessor a mortgage lien and security interest in and
against all of Lessee's right, title and interest, if any,
whether now or hereafter existing or acquired, in the
Property and the other Collateral to secure the payment and
performance of all obligations of Lessee now or hereafter
existing or acquired, in the Property and the other
Collateral to secure the payment and performance of all
obligations of Lessee now or hereafter existing under this
Lease or any other Operative Document. This grant of
mortgage is on the Statutory Condition. Lessee shall, at
its expense, do any further act and execute, acknowledge,
deliver, file, register and record any further documents
which any Participant may reasonably request in order to
protect its title to and perfected Lien in the Property and
the other Collateral, subject to no Liens other than
Permitted Liens, and Lessor's rights and benefits under the
Lease. Lessee shall promptly and duly execute and deliver
to Lessor such documents and assurances and take such
further actions as any Participant may from time to time
reasonably request in order to carry out more effectively
the intent and purpose of this Lease, the mortgage granted
hereunder and the other Operative Documents, to establish
and protect the rights and remedies created or intended to
be created in favor of Lessor hereunder and thereunder, and
to establish, perfect and maintain the right, title and
interest of Lessor in and to the Property and the other
Collateral, subject to no Lien other than Permitted Liens,
or of such mortgages, financing statements or fixture
filings or other documents with respect hereto as any
Participant may from time to time reasonably request, and
Lessee agrees to execute and deliver promptly such of the
foregoing mortgages, financing statements and fixture
filings or other documents as may require execution by
Lessee. To the extent permitted by Applicable Law, Lessee
hereby authorizes any such mortgages, financing statement
and fixture filings to be filed without the necessity of the
signature of Lessee. Upon Lessee's request, Lessor shall at
such time as all of the obligations of Lessee under the
Lease or any other Operative Documents have been
indefeasibly paid or performed in full (other than Lessee's
contingent obligations, if any, under Article VII of the
Participation Agreement) execute and deliver termination
statements and other appropriate documentation reasonably
requested by Lessee, all at Lessee's expense, to evidence
Lessor's release of its Lien against the Collateral.
(b) Lessee hereby irrevocably appoints Lessor as
Lessee's attorney-in-fact, with full authority in the place
and stead of Lessee and in the name of Lessee or otherwise,
from time to time in Lessor's discretion, to execute any
instrument which Lessor may deem necessary or advisable to
accomplish the purposes of the Lease (subject to any
limitations set forth in the Operative Documents), and upon
the occurrence and during the continuance of a Lease Event
of Default, to take any action (including any action that
Lessee is entitled to take), including, without limitation:
(i) to ask, demand, collect, ▇▇▇ for, recover,
compromise, receive and give acquittance and receipts
for money due and to become due under or in connection
with the Property and the other Collateral;
(ii) to receive, endorse and collect any drafts
or other instruments, documents and chattel paper in
connection with the foregoing clause (a);
(iii) to file any claim or take any action or
institute any proceedings which Lessor may deem to be
necessary or advisable for the collection thereof or to
enforce compliance with the terms and conditions of the
Lease; and
(iv) to perform any affirmative obligations of
Lessee under the Lease, including the execution of
mortgages, financing statements and other documents.
Lessee hereby acknowledges, consents and agrees that the
power of attorney granted pursuant to this Section 4 is
irrevocable and coupled with an interest.
(c) Lessor and the Lessee agree that upon the
occurrence of a Lease Event of Default, the Lessor may
exercise the Statutory Power of Sale, and may proceed by a
suit or suits in equity or at law, whether for a foreclosure
hereunder, or for the sale of the Property and the other
Collateral, or against the Lessee on a recourse basis for
the Lease Balance and all other amounts due from Lessee
under the Lease, or for the specific performance of any
covenant or agreement herein contained or in aid of the
execution of any power herein granted, or for the
appointment of a receiver pending any foreclosure hereunder
or the sale of the Property and the other Collateral, or for
the enforcement of any other appropriate legal or equitable
remedy, and at any foreclosure sale Lessor may become the
purchaser, and in such case for the purpose of making
settlement for or payment of the purchase price, shall be
entitled to offset any claims for the amounts due hereunder
and under the Operative Documents in order that they may be
credited as paid on the purchase price. Lessee hereby
grants to Lessor a Statutory Power of Sale, and hereby
assents to the passage of a decree for the sale of the
Property upon the occurrence of a Lease Event of Default.
Any sale made pursuant to the Statutory Power of Sale shall
be made in accordance with Massachusetts General Laws
Chapter 183, Section 21.
(d) Upon the occurrence of a Lease Event of Default,
Lessor, as a matter of right and without notice to Lessee or
anyone claiming under Lessee, and without regard to the then
value of the Property or the Collateral or the interest of
Lessee therein, shall have the right to apply to any court
having jurisdiction to appoint a receiver or receivers of
the Property and Collateral, and Lessee hereby irrevocably
consents to such appointment and waives notice of any
application therefor. Any such receiver or receivers shall
have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of Lessor in
case of entry as provided in the Lease and shall continue as
such and exercise all such powers until the latest to occur
of (i) the date of confirmation of sale of the Property and
Collateral; (ii) the disbursement of all proceeds of the
Property and Collateral collected by such receiver and the
payment of all expenses incurred in connection therewith; or
(iii) the termination of such receivership with the consent
of Lessor or pursuant to an order by a court of competent
jurisdiction.
(e) This instrument will be deemed given to secure not
only existing amounts due hereunder and under the Operative
Documents, but also future advances, whether such advances
are obligatory or to be made at the option of the
Participants or otherwise, to the same extent as if such
future advances were made on the date of execution of this
instrument. To the fullest extent permitted by law, the
Lien of this instrument shall be valid as to all such
indebtedness, including all future advances, from the time
this instrument is recorded. Notwithstanding anything in
this instrument to the contrary, the maximum principal
amount of Indebtedness secured by this instrument at any one
time shall not exceed One Hundred Fifty Million and No/100
Dollars ($150,000,000) in principal amount, plus all accrued
but unpaid Rent, plus all cost of enforcement and collection
of this instrument, the Notes and the other Operative
Documents, plus the total amount of any advances made
pursuant thereto to protect the collateral and the security
interest and Lien created hereby, together with interest and
yield on all of the foregoing as provided in the Operative
Documents.
(f) Without in any way limiting or restricting any of
Lessor's rights, remedies, powers and authorities under this
instrument, and in addition to all of such rights, remedies,
powers, and authorities, the Lessor shall also have and may
exercise any and all rights, remedies, powers and
authorities which the holder of a mortgage is permitted to
have or exercise under the Statutory Power of Sale.
(g) The Lessee, on behalf of itself and all Persons
now or hereafter interested in the Property and the other
Collateral, voluntarily and knowingly hereby waives, to the
fullest extent permitted by Applicable Law, any and all
rights to reinstatement or redemption and any and all other
rights under all present and future appraisement, homestead,
moratorium, valuation, exemption, stay, extension, and
redemption statutes, laws or equities now or hereafter
existing, and hereby further waives the pleading of any
statute of limitations as a defense to any and all
indebtedness secured by this instrument, and the Lessee
agrees that no defense, claim or right based on any thereof
will be asserted, or may be enforced, in any action
enforcing or relating to this instrument. Without limiting
the generality of the preceding sentence, the Lessee, on its
own behalf and on behalf of each and every Person acquiring
any interest in or title to the Property subsequent to the
date of this instrument, hereby irrevocably waives any and
all rights of reinstatement or redemption from sale under
any order, judgment or decree of foreclosure of this
instrument or under any power contained herein or under any
sale pursuant to any statute, order, judgment or decree of
foreclosure of any court.
SECTION 18.4. Remedies Cumulative; No Waiver; Consents. To
the extent permitted by, and subject to the mandatory
requirements of, Applicable Law, each and every right, power and
remedy herein specifically given to Lessor or otherwise in this
Lease shall be cumulative and shall be in addition to every other
right, power and remedy herein specifically given or now or
hereafter existing at law, in equity or by statute, and each and
every right, power and remedy whether specifically herein given
or otherwise existing may be exercised from time to time and as
often and in such order as may be deemed expedient by Lessor,
and the exercise or the beginning of the exercise of any power or
remedy shall not be construed to be a waiver of the right to
exercise at the same time or thereafter any right, power or
remedy. No delay or omission by Lessor in the exercise of any
right, power or remedy or in the pursuit of any remedy shall
impair any such right, power or remedy or be construed to be a
waiver of any default on the part of Lessee or be an acquiescence
therein. Lessor's consent to any request made by Lessee shall
not be deemed to constitute or preclude the necessity for
obtaining Lessor's consent, in the future, to all similar
requests. No express or implied waiver by Lessor of any Lease
Event of Default shall in any way be, or be construed to be, a
waiver of any future or subsequent Lease Default or Lease Event
of Default. To the extent permitted by Applicable Law, Lessee
hereby waives any rights now or hereafter conferred by statute or
otherwise that may require Lessor to sell, lease or otherwise use
the Property or any part thereof in mitigation of Lessor's
damages upon the occurrence of a Lease Event of Default or that
may otherwise limit or modify any of Lessor's rights or remedies
under this Article XVIII.
ARTICLE XIX
RIGHT TO PERFORM FOR LESSEE
If Lessee shall fail to perform or comply with any of
its agreements contained herein, Lessor may, but shall not be
obligated to, on five (5) Business Days' prior notice to
Lessee (except in the event of an emergency, in which case only
one Business Day's prior notice shall be required), perform or
comply with such agreement, and Lessor shall not thereby be
deemed to have waived any default caused by such failure, and the
amount of such payment and the amount of the expenses of
Lessor (including reasonable attorneys' fees and expenses)
incurred in connection with such payment or the performance of or
compliance with such agreement, as the case may be, together with
interest thereon at the Overdue Rate, shall be deemed
Supplemental Rent, payable by Lessee to Lessor upon demand;
provided that in the case of an emergency Lessee shall permit
Lessor so to perform or comply on less than one Business Day's
notice unless Lessee has a good faith reason not to permit Lessor
to do so.
ARTICLE XX
MISCELLANEOUS
SECTION 20.1. Binding Effect; Successors and Assigns;
Survival. The terms and provisions of this Lease, and the
respective rights and obligations hereunder of Lessor and
Lessee shall be binding upon them and their respective
successors, legal representatives and assigns (including, in the
case of Lessor, any Person to whom Lessor may transfer the
Property or any interest therein in accordance with the
provisions of this Lease or any of the other Operative
Documents), and inure to their benefit and the benefit of their
respective permitted successors, legal representatives and
assigns.
SECTION 20.2. Severability. Any provision of this
Lease that shall be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction, and Lessee shall remain liable to perform its
obligations hereunder except to the extent of such
unenforceability. To the extent permitted by Applicable Law,
Lessee hereby waives any provision of law that renders any
provision hereof prohibited or unenforceable in any respect.
SECTION 20.3. Notices. Unless otherwise specified herein,
all notices, requests, demands or other communications to or upon
the respective parties hereto shall be in writing and shall be
delivered and shall be deemed to have been given in accordance
with Section 9.3 of the Participation Agreement.
SECTION 20.4. Amendment; Complete Agreements. Neither this
Lease nor any of the terms hereof may be terminated, amended,
supplemented, waived or modified orally, but only by an
instrument in writing signed by the party against which the
enforcement of the termination, amendment, supplement, waiver or
modification shall be sought. This Lease, together with the
other Operative Documents, is intended by the parties as a final
expression of their agreement and as a complete and exclusive
statement of the terms thereof, all negotiations, considerations
and representations between the parties having been incorporated
herein and therein. No course of prior dealings between the
parties or their officers, employees, Administrative Agent
or Affiliates shall be relevant or admissible to supplement,
explain, or vary any of the terms of this Lease, the Fee Letter
or any other Operative Document. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior
agreement between the parties or their Affiliates shall not be
relevant or admissible to determine the meaning of any of the
terms of this Lease, the Fee Letter or any other Operative
Document. No representations, undertakings, or agreements have
been made or relied upon in the making of this Lease other than
those specifically set forth in the Operative Documents.
SECTION 20.5. Headings. The Table of Contents and headings
of the various Articles and Sections of this Lease are for
convenience of reference only and shall not modify, define or
limit any of the terms or provisions hereof.
SECTION 20.6. Original Lease. The single executed original
of this Lease containing the receipt of Lessor therefor on or
following the signature page thereof shall be the "original
executed counterpart" of this Lease. To the extent that this
Lease constitutes chattel paper, as such term is defined in the
Uniform Commercial Code as in effect in any applicable
jurisdiction, no security interest in this Lease may be created
through the transfer or possession of any counterpart other than
the "original executed counterpart".
SECTION 20.7. GOVERNING LAW. THIS LEASE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES EXCEPT
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
SECTION 20.8. Discharge of Lessee's Obligations by
Its Affiliates. Lessor agrees that performance of any of
Lessee's obligations hereunder by one or more of its Affiliates
or one or more sublessees of the Property or any part thereof
shall constitute performance by Lessee of such obligations to the
same extent and with the same effect hereunder as if such
obligations were performed by Lessee, but no such performance
shall excuse Lessee from any obligation not performed by it or on
its behalf under this Lease or any other Operative Document.
SECTION 20.9. Liability of Lessor Limited. All payments to
be made by Lessor in respect of the Loans, the Notes and the Loan
Agreement shall be made only from certain payments received under
the Lease and certain proceeds of the Property and only to the
extent that Lessor shall have received sufficient payments from
such sources to make payments in respect of the Loans. Each
Participant agrees that it will look solely to such sources of
payments to the extent available for distribution to such
Participant as herein provided and that neither Lessor nor
Administrative Agent is or shall be personally liable to any
other Participant for any amount payable hereunder or under any
Note. Nothing in the Loan Agreement, the Notes or any other
Operative Document shall be construed as creating any liability
(other than for willful misconduct or gross negligence) of Lessor
to pay any sum or to perform any covenant, either express or
implied, in the Lease, the Loan Agreement, the Notes or any other
Operative Documents (all such liability, if any, being expressly
waived by Lessee, Participants and Administrative Agent) and that
each Participant and each Administrative Agent, on behalf of
itself and its successors and assigns, agrees in the case of any
liability of Lessor hereunder or thereunder (except for such
liability attributable to its willful misconduct or gross
negligence) that it will look solely to those certain payments
received under the Lease and those certain proceeds of the
Property, provided, however, that Lessor shall in any event be
liable with respect to (i) the removal of Lessor's Liens
resulting from claims against or acts or breaches by Lessor or
involving its gross negligence or willful misconduct or (ii)
failure to turn over payments Lessor has received in respect of
Basic Rent; and provided further that the foregoing exculpation
of Lessor shall not be deemed to be exculpations of Lessee or any
other Person.
SECTION 20.10. Estoppel Certificates. Each party hereto
agrees that at any time and from time to time during the Lease
Term, it will promptly, but in no event later than fifteen (15)
days after request by the other party hereto, execute,
acknowledge and deliver to such other party or to any prospective
purchaser (if such prospective purchaser has signed a commitment
letter or letter of intent to purchase the
Property or any part thereof, assignee or mortgagee or third
party designated by such other party, a certificate stating
that this Lease is unmodified and in force and effect (or if
there have been modifications, that this Lease is in force and
effect as modified, and identifying the modification agreements);
the date to which Basic Rent has been paid; in the case of an
estoppel certificate to be given by Lessor, whether or not there
is any existing default by Lessee in the payment of Basic Rent
or any other sum of money hereunder, and whether or not there is
any other existing Lease Default or Lease Event of Default
with respect to which a notice of default has been served, and,
if there is any such default, specifying the nature and extent
thereof; in the case of an estoppel certificate to be given by
Lessee, whether or not, to the knowledge of Lessee after due
inquiry and investigation, there are any purported setoffs,
defenses or counterclaims against enforcement of the obligations
to be performed hereunder existing in favor of Lessee; and other
items that may be reasonably requested; provided that no such
certificate may be requested unless the requesting party has a
good faith reason for such request.
SECTION 20.11. No Joint Venture. Any intention to create a
joint venture or partnership relation between Lessor and Lessee
is hereby expressly disclaimed.
SECTION 20.12. No Accord and Satisfaction. The acceptance
by Lessor of any sums from Lessee (whether as Basic Rent or
otherwise) in amounts which are less than the amounts due and
payable by Lessee hereunder is not intended, nor shall be
construed, to constitute an accord and satisfaction of any
dispute between Lessor and Lessee regarding sums due and payable
by Lessee hereunder, unless Lessor specifically deems it as such
in writing.
SECTION 20.13. No Merger. In no event shall the leasehold
estate of Lessee hereunder, or the rights and interests of the
holder of any Notes secured by a Lien in this Lease, merge with
any interests, estates or rights of Lessor in or to the Property,
it being understood that such leasehold estate of Lessee
hereunder, and the rights and interests of the holder of any
Notes secured by a Lien in this Lease, shall be deemed to be
separate and distinct from Lessor's interests, estates and rights
in or to the Property, notwithstanding that any such interests,
estates or rights shall at any time or times be held by or vested
in the same Person.
SECTION 20.14. Survival. All claims pertaining to the
representations, warranties, and covenants of Lessee under
Articles II, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XV, XVII
and XVIII shall survive the expiration or termination of this
Lease. The extension of any applicable statute of limitations by
Lessor, Lessee or any other Indemnitee shall not affect such
survival.
SECTION 20.15. Enforcement of Certain Warranties.
(a) Unless a Lease Event of Default shall have occurred and
be continuing, Lessor authorizes Lessee (directly or through
Administrative Agents), at Lessee's expense, to assert, during
the Lease Term, all of Lessor's rights (if any) under any
applicable warranty and any other claim that Lessee or Lessor may
have under the warranties provided to Lessor in connection with
the purchase of the Property and Lessor agrees to cooperate, at
Lessee's expense, with Lessee and its Administrative Agents in
asserting such rights. Any amount recovered by Lessee under any
such warranties shall be paid to Lessee.
(b) Notwithstanding the foregoing provisions of this
Section 20.15, so long as a Lease Event of Default or Lease
Default shall have occurred and be continuing, any amount that
would otherwise be retained by Lessee pursuant to Section
20.15(a) shall be paid to Lessor as security for the obligations
of Lessee under this Lease, shall be invested by Lessor in
accordance with Section 20.16 in Permitted Investments and, if a
Lease Event of Default or Lease Default is continuing, may be
applied to the obligations of Lessee hereunder, and, at such time
thereafter as no Lease Event of Default or Lease Default shall be
continuing, such amount and gain thereon shall be paid promptly
to Lessee to the extent not previously applied in accordance with
the terms of this Lease.
SECTION 20.16. Investment of Security Funds. Any amounts
not payable to Lessee and paid to or retained by Lessor pursuant
to any provision hereof solely because a Lease Event of Default
or Lease Default shall have occurred and be continuing or because
Lessee shall not have performed in full its obligations under
Article XIII shall be held by Lessor as security for the
obligations of Lessee under this Lease and the other Operative
Documents. At such time as no Lease Event of Default or Lease
Default, or failure to perform shall be continuing, such amounts,
net of any amounts previously applied to Lessee's obligations
hereunder or under any other Operative Documents, shall be paid
to Lessee. Any such amounts which are held pending payment to
Lessee or application hereunder shall be invested by Lessor as
directed from time to time in writing by Lessee (provided,
however, if a Lease Event of Default or Lease Default has
occurred and is continuing, it will be directed by Lessor), and
at the expense and risk of Lessee, in Permitted Investments. Any
gain (including interest received) realized as the result of any
such investment (net of any fees, commissions and other expenses,
if any, incurred in connection with such investment) shall be
applied from time to time in the same manner as the principal
invested. Lessee will promptly pay to Lessor, on demand, the
amount of any loss realized as the result of any such investment
(together with any fees, commissions and other expenses, if any,
incurred in connection with such investment), such amount to be
held, paid and applied in the same manner as other amounts
subject to this Section 20.16.
SECTION 20.17. Recording of Lease. Lessor and Lessee shall
execute, acknowledge and cause to be recorded this Lease in the
official records of each County where the Property(s) +that are
the subject of this Lease are located.
SECTION 20.18. Nature of Transaction.
It is the intent of the parties hereto that: (i) the
transaction contemplated hereby preserves ownership in the
Property to Lessee for purposes of Federal and state income tax
and bankruptcy purposes, (ii) Lessee, pursuant to the Lease,
grants a security interest or lien, as the case may be, in the
Property and the other Collateral to the Lessor, (iii) for
purposes of Federal and state income tax and bankruptcy purposes,
among others, the payment by Lessee of Basic Rent shall be
treated as payments of interest, and the payment by Lessee of any
amounts in respect of the Lease Balance shall be treated as
repayments of principal, and (iv) the Assignment of Lease creates
a lien and security interest in the Lease, subject to certain
limited exceptions. Nevertheless, Lessee acknowledges and agrees
that neither Lessor nor Administrative Agent has provided or will
provide tax, accounting or legal advice to Lessee regarding the
Overall Transaction or made any representations or warranties
concerning the tax, accounting or legal characteristics of the
Operative Documents and that Lessee has obtained and relied upon
such tax, accounting and legal advice concerning the Operative
Documents as it deems appropriate.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have each caused this
Lease to be duly executed and delivered by their respective
officers thereunto duly authorized as of the day and year first
above written.
CREDIT SUISSE LEASING 92A, L.P.,
as Lessor
Attest:
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
Name Printed ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
Name Printed:
Title: Title: VP
REEBOK INTERNATIONAL LTD.,
as Lessee
Attest:
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
Name Printed Name Printed ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Title: Treasurer
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
The foregoing Lease was acknowledged before me, the
undersigned Notary Public, in the County of NEW YORK,
State of New York, this 26th day of March, 1998, by
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, as Vice Presidents* of
CREDIT SUISSE LEASING 92A, L.P. on behalf of the partnership.
[Notarial Seal]
/s/ ▇▇▇▇▇ ▇▇▇▇
Notary Public
My commission expires:________________ ▇▇▇▇▇ ▇▇▇▇
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in New York County
Commission Expires March 30, 1998
*of CREDIT SUISSE FIRST BOSTON the General Partner
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
The foregoing Lease was acknowledged before me, the
undersigned Notary Public, in the County of New York, State of
New York, this 26th day of March, 1998, by
▇▇▇ ▇. ▇▇▇▇▇▇▇, as Treasurer of REEBOK INTERNATIONAL LTD.,
a Massachusetts corporation, on behalf of the corporation.
[Notarial Seal]
/s/ ▇▇▇▇▇ ▇▇▇▇
Notary Public
My commission expires: ▇▇▇▇▇ ▇▇▇▇
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in New York County
Commission Expires March 30, 1998
SCHEDULE I
PARCEL 1:
A certain parcel of land located on ▇▇▇▇▇▇ Street, in the
Town of Canton, Norfolk County, Massachusetts, being shown as Lot
A on a plan entitled "Subdivision Plan of Land in Canton
Massachusetts, Prepared for Instron Corporation". Said Plan is
dated August 7, 1997 and recorded in Norfolk County Registry
of Deeds as Plan No. 39 of 1998 in Plan Book 453.
PARCEL 2:
Non-Exclusive Vehicular Driveway Easement, Utility,
Drainage Line, Facility and Equipment Line, and Landscaping
Easement rights created pursuant to that Declaration of
Restrictions, Covenants and Easements dated as of March 27, 1998,
by and between Instron Realty Trust, Credit Suisse Leasing 92A,
L.P. and Reebok International Ltd. recorded in the Norfolk County
Registry of Deeds as Instrument No. 40850 and with the Norfolk
County Registry District of the Land Court as Document No.
787799, noted on Certificate of Title No. 65669.
