Prepared by XXXXXXX CORPORATION xxx.xxxxxxxxxxxxxx.xxx
GROUND LEASE
dated as of October 22, 1999
between
ADC
TELECOMMUNICATIONS, INC.,
as Landlord,
and
LEASE
PLAN NORTH AMERICA, INC.,
not in its individual capacity,
except as otherwise expressly stated herein,
but solely as Agent Lessor,
as Tenant
TABLE OF CONTENTS
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| Page
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| 1.
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| Land
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| 1
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| 2.
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| Term and Use
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| 1
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| 3.
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| Ground Lease Rent
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| 1
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| 4.
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| Improvements
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| 2
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| 5.
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| Real Estate Taxes
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| 3
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| 6.
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| Utilities
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| 3
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| 7.
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| Insurance
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| 4
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| 8.
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| Indemnity
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| 4
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| 9.
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| Repairs
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| 4
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| 10.
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| Compliance with Laws and Ordinances
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| 4
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| 11.
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| Landlord's Access to Land
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| 5
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| 12.
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| Assignment and Subletting
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| 5
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| 13.
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| Performance by Subtenants and Occupancy Tenants
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| 5
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| 14.
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| Casualty and Condemnation
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| 5
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| 15.
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| Ground Lease Events of Default
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| 6
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| 16.
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| Tenant's Right to Mortgage
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| 7
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| 17.
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| Landlord's Right to Mortgage
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| 9
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| 18.
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| Landlord's and Tenant's Certificates
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| 9
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| 19.
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| Quiet Enjoyment
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| 9
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| 20.
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| Recording of Xxxxxxxxxx
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| 00
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| 00.
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| Inability to Perform
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| 10
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| 22.
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| Notices
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| 10
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| 23.
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| Tenant's Right of First Refusal; Option to Xxxxxxxx
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| 00
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| 00.
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| Xxxxx
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| 00
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| 00.
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| Liability of Tenant
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| 12
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| 26.
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| No Merger of Title
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| 12
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| 27.
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| Landlord's Right to Cure
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| 13
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| 28.
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| Miscellaneous
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| 13
Exhibit A — Legal
Description of Land
Exhibit B — Form of Memorandum of Ground Lease
Exhibit C — Material Contract Terms
GROUND LEASE
THIS GROUND LEASE (this "Ground Lease") is made as of October 22, 1999, by and between ADC
TELECOMMUNICATIONS, INC., a Minnesota corporation (in its capacity as landlord hereunder, "Landlord") and LEASE PLAN NORTH AMERICA, INC.,
not in its individual capacity, except as expressly stated herein, but solely as Agent Lessor (in its capacity as tenant hereunder, "Tenant"). 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 the date
hereof, among Tenant, Landlord, ABN AMRO Bank, N. V., as Administrative Agent ("Administrative Agent"), and the Persons Named on Schedule I
Thereto, as Participants (as amended, restated or otherwise modified from time to time, the "Participation Agreement").
W I T N E S S E T H:
A. Landlord
is the fee simple owner of the land legally described on Exhibit A
attached hereto and made a part hereof (together with all rights-of-way or use, easements, servitudes, licenses, tenements, driveways,
approaches, pavements, hereditaments, curbs and street front privileges and appurtenances thereunto belonging but excluding the Improvements (as hereinafter defined), the
"Land") located in the State of Minnesota, County of Hennepin.
B. Landlord
and Tenant desire to enter into a ground lease of the Land.
C. Concurrently
herewith, Tenant is entering into that certain Lease dated as of the date hereof (as amended, restated or otherwise modified from time to time, the
"Lease"), by and between Tenant, as Lessor, and Landlord, as Lessee, pursuant to which Tenant, as Lessor under the Lease, subleases to Landlord, as
Lessee under the Lease, the interest in the Land granted herein for the Lease Term (as defined in the Lease).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to enter into this Ground Lease, as follows:
1. Land. Landlord, for and in consideration of the rents herein reserved and of the agreements herein
contained on the part of Tenant to be kept, observed and performed, does by these presents demise and lease to Tenant, and Tenant hereby hires and lets from Landlord, the Land, subject to the
exceptions set forth in the Owner's Policy.
2. Term and Use. To have and to hold, for any and all lawful purposes, for a term of forty
(40) years, commencing on the date hereof and expiring on the fortieth anniversary of the date hereof, both days inclusive. Notwithstanding anything herein to the contrary, from and after the
Transition Date (as defined in Section 15(f)), this Ground Lease may be terminated by Tenant at any time, without penalty, upon
not less than ten (10) days notice to Landlord.
3. Ground Lease Rent. The total rent for the term of this Ground Lease ("Ground
Lease Rent") is $100.00. Landlord acknowledges receipt of the sum of $100.00, which represents a prepayment of the Ground Lease Rent due hereunder during the term hereof. Such
Ground Lease Rent shall be absolutely net to Landlord.
Notwithstanding
the foregoing, from and after the Transition Date, the annual Ground Lease Rent shall be based on the Fair Market Rent (defined below), as prorated for any partial
year or month, in monthly installments payable in advance beginning on the Transition Date and thereafter on the first day of each calendar month. As used herein, the term
"Fair Market Rent" shall mean, as of and
following the Transition Date, the prevailing market rate per rentable square foot per annum (on a triple net basis) for a comparable ground lease (assuming the Land is unimproved) in the county in
which the Land is located where (i) the tenant is a fully creditworthy tenant, (ii) the lessor and the lessee each are acting prudently and knowledgeably, (iii) the lessor and the
lessee are well informed or advised and acting in their respective best interests, (iv) the lessor and the lessee have each considered the location and other aspects of the Land, and
(v) the rent is not affected by undue stimulus.
Fair
Market Rent shall be determined as of the Transition Date and each third (3rd) anniversary date thereof (each, a "Determination
Date"), such determination to be made pursuant to the terms, conditions and time periods set forth below with each such determination becoming effective only for the periods
following the applicable Determination Date. Landlord and Tenant shall use their best efforts to agree as to the Fair Market Rent within thirty (30) days after each Determination Date. If the
parties are unable to agree upon the Fair Market Rent within thirty (30) days after a Determination Date, the Fair Market Rent shall be determined in the same manner as "Appraised Value" is
determined under the second and third paragraphs of Section 23(b), except that the term "Appraised Value" wherever it appears in
such section shall be replaced with the term "Fair Market Rent," and the term "value" wherever it appears in such section shall be replaced with the term "rent amount." Until such Fair Market Rent is
determined as provided above, Tenant shall pay (i) with respect to the period commencing immediately after the Transition Date, $100.00 per month or such other amount as it believes represents
the Fair Market Rent, and (ii) with respect to any other period following the third (3rd) anniversary date of the Transition Date, the Fair Market Rent as in effect immediately prior to the
most recent Determination Date. If Fair Market Rent is ultimately established at a higher amount than the amount then being paid by Tenant, then within thirty (30) days of the determination of
such Fair Market Rent as provided above, Tenant shall pay the Fair Market Rent accrued from the Determination Date to the date of such payment less any amounts already paid, plus interest on the
unpaid amount at an interest rate equal to the "Prime Rate" as published from time to time in the Eastern edition of The Wall Street
Journal. Each change in such interest rate due to a change in such Prime Rate shall take effect simultaneously with such change in such Prime Rate without notice. If the Prime
Rate shall be in violation of any usury or similar law, then the Prime Rate shall be reduced to the extent necessary to comply with any applicable usury or similar law.
4. Improvements. Without Landlord's consent, Tenant shall have the right, at any time and from time to
time, to erect, construct, and install on the Land any and all buildings, structures and other improvements, including, but not limited to, the Financed Improvements and any and all utility lines,
pipes, connections and fixtures (herein sometimes collectively called "Improvements") and any and all machinery, equipment, signs, trade fixtures,
furniture, furnishings, appointments and other personal property to be located therein and utilized in connection with the use and operation thereof
("Personalty"). Without Landlord's consent, Tenant shall also have the right to change, alter, raze, remove or add to any Improvements, or any part
thereof, now existing or hereafter erected, constructed or installed on the Land and remove the Personalty installed or placed in, on, or about the Improvements and the Land. Notwithstanding the
foregoing, so long as the Lease is in effect, Tenant's rights hereunder shall be subject to the restrictions of the Lease.
Landlord
acknowledges and agrees that title to the existing Improvements and Personalty and all future Improvements and Personalty (including the Financed Improvements) is and shall
remain in Tenant during the term of this Ground Lease, provided that all Improvements and Personalty which are not
removed by the Tenant within ninety (90) days following the expiration or termination of this Ground Lease shall become the property of Landlord, and if so requested by Landlord, Tenant shall
execute, acknowledge and deliver to Landlord a proper instrument in writing, releasing and quitclaiming to
Landlord all right, title and interest of Tenant in and to the Improvements and Personalty remaining on the Land.
In
the event Landlord shall fail or refuse to sign and deliver any application for building and other permits required, if any, for the erection, construction and installation of
Improvements (if same is required to be signed by Landlord) within ten (10) days after Tenant submits same to Landlord for execution, for all building and other permits and licenses necessary
for the erection, construction and installation of the Improvements, or for the use and operation of the Land and for certificates of occupancy, then Tenant shall have the right and authority to sign
any such application in the name of
the Landlord. This provision shall constitute an irrevocable power-of-attorney coupled with an interest, but only for these purposes.
5. Real Estate Taxes. During the term of this Ground Lease, Tenant will pay all real estate taxes and
assessments, both general and special, which shall become due and payable solely with respect to the Land during the term of this Ground Lease. If any such tax or assessment may, at the option of the
taxpayer, be paid in installments, Tenant may exercise the option to pay the same in installments. If Tenant shall elect to pay any such tax or assessment on the installment basis, then Tenant will
pay only those installments which become due and payable during the term of this Ground Lease. All real estate taxes and assessments that shall be assessed with respect to the fiscal tax years falling
wholly or partially within the first and last calendar years of the term of this Ground Lease shall be apportioned pro rata between Landlord and Tenant on a per diem basis in accordance with the
respective numbers of days in such fiscal tax years during which this Ground Lease is in effect. All real estate taxes and assessments which Tenant agrees to pay pursuant to this Ground Lease, and
that are not paid when due, may be paid by Landlord, in which event such amount shall be reimbursed by Tenant to Landlord, on demand, and shall become additional rent hereunder, and shall accrue
interest at the Overdue Rate from the date paid by Landlord.
Tenant,
at its expense, shall have the right to contest or review by legal, administrative or other proceedings the amount or validity of any such tax or assessment imposed against
the Land. Nothing contained herein shall imply any right on the part of Tenant to postpone such payment unless such proceedings or security given shall stay the collection thereof and the sale of the
Land to satisfy same. Landlord, at Tenant's request, shall join in any such proceedings, but Landlord shall not be liable for any expenses in connection therewith. The proceedings referred to herein
shall include, but shall not be limited to, appropriate appeals from any judgments, decrees or orders made in any such proceedings. In the event of any reduction, cancellation or discharge of such
taxes or assessments as a result of such proceedings, and if Tenant had not already paid same, then Tenant will do so forthwith as they are finally levied, assessed or imposed. If there shall be any
refund payable by the Governmental Authority with respect thereto, Tenant shall be entitled to receive and retain same.
Nothing
contained herein shall obligate Tenant to pay any income, inheritance, estate, gift, succession, sales, use, revenue or transfer tax (or any substitution therefor) of, or
levied or assessed against Landlord; nor any other tax, assessment, charge or levy (or any substitution therefor) against Landlord with respect to or because of the rent and other income derived by
Landlord under this Ground Lease; nor shall Tenant be deemed obligated to pay any personal property, corporation, franchise, capital stock, payroll, excise, privilege or any other tax of similar
nature (or any substitution therefor) which may be levied or assessed against Landlord.
6. Utilities. Tenant will pay all charges for sewer usage or rental, refuse removal, and utilities,
including gas, water and electricity, consumed at the Improvements during the term of this Ground Lease as the same shall become due and payable.
Tenant
shall have the right to grant any easements, rights of way and licenses required by any public or quasi-public utility company with respect to the construction, operation and
use of the Improvements and Personalty. Landlord shall execute any instruments any such public or quasi-public utility companies may reasonably request or require from
Landlord; provided, however, that in each case, such easement, right of way or license (i) does not materially impair the value,
utility and remaining useful life of the Land, (ii) is reasonably necessary in connection with the construction, operation or use of the Improvements and the Personalty and (iii) does
not cause the Land or any portion thereof to fail to comply with all material requirements of law. If Landlord shall fail to execute and deliver same, Tenant shall have the right and authority to
execute same in the name of Landlord as if a legal power-of-attorney coupled with an interest had this day been executed by Landlord in favor of Tenant, but only for these
purposes.
7. Insurance.
(a) Tenant
shall, at its sole cost and expense, at all times during the term hereof maintain and/or cause to be maintained, in full force and effect, comprehensive
general liability insurance in amounts customarily obtained for comparable properties covering Tenant's operations at the Land, including Landlord as an additional insured. Tenant shall deliver to
Landlord a certificate from each insurance carrier as to each such insurance policy.
(b) Tenant,
or its designee, shall have the sole and exclusive right (without the participation of Landlord) to adjust and settle any and all claims under insurance
policies obtained by Tenant or those claiming by or through Tenant in connection with or relating to the Land and Improvements and to receive the proceeds of any such claims.
8. Indemnity.
(a) Subject
to Section 8(c) below, Landlord shall not be liable for any loss,
damage, death or injury of any kind or character to persons or property, arising from any use of the Land, or any part thereof, or caused by any defect in any building, structure or other Improvement
thereon or in any other facility thereof, or caused by or arising from any act or omission of Tenant, or any of its agents, employees, sublessees, licensees or invitees, or by or from any accident on
the Land or any fire or other casualty thereon.
(b) Subject
to Section 8(c) below, Tenant shall indemnify, defend and hold
harmless Landlord from and against any and all claims arising from Tenant's use of the Land, or from the conduct of Tenant's business, or from any activity, work or things done, permitted or suffered
by Tenant in or about the Land or elsewhere, and shall further indemnify, defend and hold harmless Landlord from and against any and all claims arising from any breach or default in the performance of
any obligation on Tenant's part to be performed under the terms of this Ground Lease, or arising from any negligence of Tenant, or any of Tenant's agents, contractors, subtenants or employees, and
from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claims or any action or proceeding brought against Landlord by reason of any such claims, and
Tenant, upon notice from Landlord, shall defend the same, at Tenant's expense, by counsel satisfactory to Landlord. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk
of damage to property or injury to persons, in, upon or about the Land and the Improvements arising from any cause, and Tenant hereby waives all claims in respect thereof against Landlord.
(c) Notwithstanding
anything herein to the contrary, Landlord shall be liable for its own negligence, willful misconduct or for any breach of any covenant,
representation or warranty herein.
9. Repairs. So long as there exist any Improvements on the Land, Tenant, at its expense, will keep and
maintain the Improvements in good and safe order, condition and repair, ordinary wear and tear excepted. Landlord shall not be required to furnish any services or facilities to the Land, except as
otherwise set forth herein.
Tenant,
at its expense, will keep clean and free from dirt, snow, ice, rubbish, obstructions and encumbrances the sidewalks, areas, alleys and curbs in front of or adjacent to the
Land.
10. Compliance with Laws and Ordinances. Tenant will comply with all federal, state, county and city
laws, ordinances and regulations of any duly constituted authority affecting the Land, except where the failure would not have a material adverse effect, individually or in the aggregate, on the Land.
Tenant, at its expense, shall have the right to contest or review by legal, administrative or other proceedings the validity of any such law, ordinance and regulation, or the application thereof.
During such proceedings, compliance with any such law, ordinance or regulation may be deferred by Tenant
upon the condition that Tenant will secure the cost of complying with same to Landlord in such manner as Landlord may reasonably request. Landlord shall join in such proceedings if necessary to do so
in order to prosecute such proceedings properly, but Landlord shall not be liable for any expenses in connection therewith. The proceedings referred to herein shall include, but shall not be limited
to, appropriate appeals from any judgments, decrees or orders made in any such proceedings.
11. Landlord's Access to Land. Landlord will have access to the Land, at its own risk and expense, at
any and all reasonable times during the term of this Ground Lease for the purpose of examining and inspecting the same upon reasonable prior notice.
12. Assignment and Subletting. Tenant, with the express written consent of Landlord during the term of
the Lease and without the consent of Landlord after the term of the Lease, at any time and from time to time during the term of this Ground Lease, shall have the right to assign this Ground Lease, and
its rights hereunder and its interest in the Improvements, and to sublet all or any part of the Land and lease the Improvements, or any portion thereof. In the event this Ground Lease shall be
assigned by Tenant, then all liabilities and obligations on the part of Tenant accruing after such assignment shall terminate, provided
that any such assignee shall execute an instrument in writing assuming all of those liabilities and obligations imposed upon Tenant hereunder which accrue after
the effective date of such assignment and deliver the same to Landlord. Tenant shall give notice to Landlord of any assignment or subletting of all the Property. Nothing contained herein, however,
shall be construed to release Tenant from any liability or obligation which accrued prior to the effective date of such assignment. Notwithstanding the foregoing, so long as the Lease is in effect,
Tenant will not assign its interests hereunder to the extent prohibited by the Lease.
13. Performance by Subtenants and Occupancy Tenants. Landlord shall accept performance by any subtenant
or occupant of any of the terms and provisions of this Ground Lease required to be performed by Tenant with the same force and effect as though performed by Tenant.
14. Casualty and Condemnation. If any buildings, structures or other Improvements located on the Land,
or any part thereof, shall be damaged or destroyed by fire or other casualty, Tenant's obligations under this Ground Lease shall not be affected. Except as set forth in Section 9, following any
casualty on the Land, Tenant shall have no obligation to restore, repair or rebuild any Improvements on the Land.
As
used herein, a "Significant Condemnation" shall mean taking of title to the Land or the Improvements resulting in the loss or use of
possession of a material portion of the Improvements or
the Land as reasonably determined in good faith by the Tenant; provided, however, that so long as the Lease shall remain in effect with respect to
the Land, a "Significant Condemnation"
shall be deemed to have occurred (and shall only be deemed to have occurred) upon the occurrence of a "Significant Condemnation" as defined in the Lease.
In
the event of a Significant Condemnation, the entire award, or the aggregate of any separate awards, shall be apportioned as follows:
i. There
shall be first paid any and all costs, fees and expenses reasonably incurred by Landlord and Tenant in connection with the collection thereof;
ii. Any
balance of the award shall be paid to Tenant (and if the Lease is then in effect, the same shall be distributed in accordance with the Lease) for (a) all
amounts owing to Tenant under the Lease or, if the Lease is no longer in effect, for all amounts which would have been owing to Tenant under the Lease assuming that (i) the Lease was still in
full force and effect and (ii) had been in full force and effect during the entire period in which it was not in effect, and assuming further that for purposes of making such calculation the
interest rate to be used is the Overdue Rate, and (b) for all amounts by which the value of the Improvements as determined in such condemnation proceeding exceeds such amounts
in clause (a) above, and the balance of the award
after payment to Tenant of the amounts specified in clauses (a) and (b) above shall be paid to Landlord;
and
this Ground Lease shall remain in full force and effect; provided, however, that at any time thereafter Tenant shall have the right
in its sole discretion to terminate this Ground Lease shall terminate on the following date: (x) if the Lease is in effect on the date of the Significant Condemnation, the date the Lease
terminates with respect to the Land and Improvements pursuant to Section 14.1 of the Lease and ADC shall have performed all of its obligations thereunder, including (without limitation) its
obligations under Section 14.1 thereof and (y) in all other cases on the date of such Significant Condemnation, and in either case the Ground Lease Rent and other charges shall be
apportioned and paid to the date of such Significant Condemnation. The provisions of this Section 14 as to the
apportionment of any such awards shall survive such termination.
In
the event of a condemnation or exercise of eminent domain that is not a Significant Condemnation, there shall be no abatement of Ground Lease Rent and the entire award, or the
aggregate of the separate awards to Landlord and Tenant, as the case may be (less costs, fees and expenses reasonably incurred by Landlord and Tenant in connection with the collection thereof) shall
be paid to Tenant for (a) all amounts owing to Tenant under the Lease or, if the Lease is no longer in effect, for all amounts which would have been owing to Tenant under the Lease assuming
that (i) the Lease was still in full force and effect and (ii) had been in full force and effect during the entire period in which it was not in effect, and assuming further that for
purposes of making such calculation the interest rate to be used is the Overdue Rate, and (b) for all amounts by which the value of the Improvements as determined in such condemnation
proceeding exceeds such amounts in clause (a) above, and the balance of the award after payment to Tenant of the
amounts specified in clauses (a) and (b) above shall be paid to Landlord.
15. Ground Lease Events of Default.
(a) Tenant
agrees that the following shall be considered a "Ground Lease Event of Default": Tenant shall default in any
of the covenants or agreements herein contained to be kept, observed and performed by Tenant, and such default shall continue for thirty (30) days after notice thereof in writing from Landlord
to Tenant; provided, however, that if such default is of a nature that
it cannot be reasonably cured
within such 30-day period, then Tenant shall have such time as is reasonably required to cure such default.
(b) Upon
the occurrence of any Ground Lease Event of Default, it shall be lawful for Landlord, at its election, to declare the term ended and either with or without
process of law, to re-enter and to expel, remove and put out, Tenant and re-enter the Land again to repossess and enjoy the same, without such re-entry and
repossession working a discharge of the rents unpaid and the covenants unperformed by Tenant prior to such re-entry.
(c) The
foregoing provisions for the termination of this Ground Lease for any default in any of its covenants shall not operate to exclude or suspend any other remedy
of Landlord for breach of any of such covenants or for the recovery of unpaid accrued Ground Lease Rent, but Tenant shall not be liable for any Ground Lease Rent or other obligations which would have
accrued under this Ground Lease after the date of such termination had this Ground Lease not been terminated.
(d) Subject
to the limitation set forth herein, no remedy herein reserved to Landlord shall be considered exclusive of any other remedy, but the same shall be
cumulative and shall be in addition to every other remedy existing at law or in equity, and every remedy given by this Ground Lease to Landlord may be exercised from time to time and as often as
occasion may arise. Reasonable attorneys' fees and other expenses incurred by Landlord by reason of any Ground
Lease Event of Default of Tenant, or by others holding under Tenant, shall be payable upon demand.
(e) Notwithstanding
anything to the contrary contained herein, Landlord's rights and remedies and Tenant's obligations and liabilities are subject to the provisions
of Section 25 of this Ground Lease.
(f) Notwithstanding
anything in this Ground Lease to the contrary, prior to the date ("Transition Date") that
(i) ADC has acquired the Tenant's interest in this Ground Lease pursuant to the Purchase Option or (ii) the Completion Date shall have occurred and a Person (other than an Indemnitee)
has acquired the Tenant's interest in this Ground Lease and possession of the Premises, as a result of a "Lease Event of Default" or "Construction Agency Event of Default" and the Lease Balance has
been paid in full or (iii) a third party has acquired the Tenant's interest in this Ground Lease and possession of the Premises as a result of a sale of the Premises pursuant to the Sale
Option:
(A) Landlord
will look solely to ADC, as lessee under the Lease (whether or not the Base Term has commenced), directly for the performance of all Tenant's obligations
and liabilities under this Ground Lease, including, without limitation, Tenant's indemnification obligations hereunder; provided,
however, that in the event of any conflict between any obligation of Tenant under this Ground Lease and the obligation of ADC as Lessee under the Lease and the other Operative
Documents (excluding this Ground Lease), nothing herein is intended to amend the Lease or any such other Operative Document or reduce or limit ADC's obligations or expand ADC's rights as Lessee or
Construction Agent thereunder;
(B) Neither
Agent Lessor, Administrative Agent nor any other Indemnitee (as defined in Appendix 1 to the Participation Agreement) shall have liability to
Landlord for any obligations or liabilities of Tenant arising or accruing hereunder, including, without limitation, for any indemnity obligation hereunder;
(C) Landlord
shall not have any right to declare a "Ground Lease Event of Default" hereunder or exercise any right or remedy against Tenant in respect thereof nor shall
any "Ground Lease Event of Default" be deemed to exist hereunder; to the extent that any of Tenant's obligations hereunder are
not performed by ADC or Tenant when and as required hereby, then so far as Tenant is concerned the Tenant's obligation to perform the same for the benefit of the Landlord shall be deemed waived; and
(D) Tenant's
right to quiet and peaceful enjoyment of the Land shall not be disturbed.
Except
to the extent that Landlord may have otherwise agreed in writing, no waiver by Landlord of any breach by Tenant of any of its obligations, agreements or covenants hereunder
shall be deemed to be a waiver of any subsequent breach of the same, or any other obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for such breach by Tenant be
deemed a waiver by Landlord of its rights or remedies with respect to such breach.
16. Tenant's Right to Mortgage. Tenant may at any time and from time to time (and as many times as it
desires) mortgage, hypothecate or pledge this Ground Lease and the leasehold estate created hereby and the interest of Tenant in and to this Ground Lease, together with Tenant's right, title and
interest in the Improvements and Personalty and Tenant's interest in any and all subleases and in and to all rents due or to become due thereunder (herein called a "Leasehold
Mortgage"; and the holder of any such Leasehold Mortgage, whether or not the same is recorded of record, is herein called a "Leasehold
Mortgagee").
Landlord
and Tenant agree that so long as any such Leasehold Mortgage exists:
A. Landlord
will simultaneously mail to any Leasehold Mortgagee a copy of any notice given by Landlord to Tenant at the address given by such Leasehold Mortgagee to
Landlord for the receipt of such notice.
B. Landlord
and Tenant acknowledge that the defaults or other events described in Section 15
may be classified as (i) "Curable Defaults" and
(ii) "Non-Curable Defaults." The Non-Curable Defaults are any defaults which are by their nature not susceptible of being
cured by a third person such as the Leasehold Mortgagee; and the Curable Defaults are all other defaults.
C. If
a Curable Default occurs and if, prior to the expiration of the applicable grace period provided for
in Section 15, the Leasehold Mortgagee shall give to Landlord written notice that it intends to undertake a curing of all Curable
Defaults and within such grace period the Leasehold Mortgagee commences upon a curing and thereafter pursues to conclusion the curing of all Curable Defaults continuously and diligently in good faith,
then Landlord will not take action to effect a termination of this Ground Lease or to re-enter or take possession of the Land as a consequence of such Curable Default. However, if
(i) a Curable Default is of such a nature that the curing thereof cannot be effected by the Leasehold Mortgagee until it shall have obtained possession of the Land and (ii) prior to the
effective date of a termination of this Ground Lease by Landlord or Landlord's re-entering or taking possession of the Land pursuant to the provisions
of Section 15, the Leasehold Mortgagee shall give to Landlord written notice that it intends to institute foreclosure or other
legal proceedings or to exercise any of its remedies under the Leasehold Mortgage concerned in order to gain possession of the Land and within such grace period takes action to institute such
remedies, then Landlord will not take any action to effect a termination of this Ground Lease or to re-enter or take possession of the Land as a consequence of such Curable Default so long
as such Leasehold Mortgagee shall continue to pursue its remedies under the Leasehold Mortgage (except during any such time it may be stayed or otherwise legally prevented from doing so) and cure all
other Curable Defaults (if any) which may occur from time to time and which are susceptible of being cured by the Leasehold Mortgagee without its obtaining possession of the Land and such Leasehold
Mortgagee shall upon taking possession of the Land cure such Curable Defaults within the period reasonably required to cure the same.
D. If
a Non-Curable Default occurs and (i) the Leasehold Mortgagee shall then be in the process of curing all then existing Curable Defaults
pursuant to the provisions of subsection (C) above and (ii) the Leasehold Mortgagee shall give to Landlord written notice that it intends to
institute foreclosure or other legal proceedings or to exercise any of its remedies under the Leasehold Mortgage concerned in order to gain possession of the Land, then Landlord will not take any
action to effect a termination of this Ground Lease or to re-enter or take possession of the Land as a consequence of such Non-Curable Default so long as such Leasehold
Mortgagee shall continue diligently to prosecute its remedies under the Leasehold Mortgage (except during any such time it may be stayed or otherwise legally prevented from doing so) and cure all
Curable Defaults (if any) which may occur from time to time and which are susceptible of being cured by the Leasehold Mortgagee without its obtaining possession of the Land and such Leasehold
Mortgagee shall upon taking possession of the Land cure such Curable Defaults within the period reasonably required to cure the same.
E. In
the event a Leasehold Mortgagee or its designee designated for that purpose acquires the Improvements and the leasehold estate pursuant to any proceedings for
foreclosure of such Leasehold Mortgage, or by a voluntary assignment or transfer of this Ground Lease and the leasehold estate and the Improvements in lieu of foreclosure or otherwise, the Leasehold
Mortgagee or its designee or assignee as aforesaid shall be deemed an assignee of all the rights of Tenant under this Ground Lease.
F. If
this Ground Lease shall be rejected or disaffirmed pursuant to any bankruptcy law or other law affecting creditors' rights or if this Ground Lease is terminated
for any other reason whatsoever, Landlord will enter into a new lease of the Land with the Leasehold Mortgagee or its designee not less than ten (10) nor more than thirty (30) days after
the request of the Leasehold Mortgagee referred to below, for the remainder of the term of this Ground Lease effective as of the date of such rejection or disaffirmance or termination, upon all the
terms and provisions contained in this Ground Lease; provided that (i) the Leasehold Mortgagee makes a written request to Landlord for such new
Ground Lease within ninety (90) days after the effective date of such rejection or disaffirmance or termination, as the case may be, and such written request is accompanied by a copy of such
new lease, duly executed and acknowledged by the Leasehold Mortgagee or its designee and (ii) upon taking possession of the Land the Leasehold Mortgagee cures any outstanding Curable Defaults
within the period reasonably required to cure the same. Any new lease made pursuant to this paragraph shall have the same priority with respect to other interests in the Land as this Ground Lease. The
provisions of this paragraph shall survive the rejection or disaffirmance or termination of this Ground Lease and shall continue in full force and effect thereafter to the same extent as if this
paragraph were a separate and independent contract made by Landlord and the Leasehold Mortgagee.
G. So
long as a Leasehold Mortgage is in effect (i) Landlord will not accept a voluntary surrender of this Ground Lease and (ii) the Ground Lease shall
not be modified in any material respect without, in each case, the prior written consent of the Leasehold Mortgagee. Any violation of this paragraph shall be void.
The
provisions of this Section 16 are for the benefit of any Leasehold Mortgagee and may be relied upon and shall be enforceable
by any Leasehold Mortgagee. No Leasehold Mortgagee shall be liable upon the covenants, agreements or obligations of Tenant contained in this Ground Lease, except as expressly provided herein.
Landlord
shall execute any instruments any such Leasehold Mortgagee may reasonably request or require from Landlord, with respect to the provisions of
this Section 16.
17. Landlord's Right to Mortgage. Subject to the restrictions and limitations of the Lease, Landlord
shall have the right to place a mortgage or other lien on the Land or Landlord's interest in this Ground Lease at any time during the term of this Ground
Lease; provided, however, that any such mortgage shall at all times be junior and subordinate to (a) this Ground Lease and any
amendments, modifications, replacements or substitutions thereof, including, without limitation, any new lease entered into in accordance
with Section 16 hereof, and the mortgage shall so expressly state and (b) the rights and interests under the liens granted
to Agent Lessor and the Participants under the Operative Documents.
18. Landlord's and Tenant's Certificates. Landlord and Tenant, on written request from each other,
shall execute and deliver to the other party or any Leasehold Mortgagee or prospective purchaser, if so requested, without charge, a certificate certifying that this Ground Lease is in full force and
effect, and whether it has been modified (and if there have been modifications, stating them), and whether or not the party executing the certificate knows of any default, breach or violation by the
other party under any of the terms of this Ground Lease, and such other matters as may reasonably be requested.
19. Quiet Enjoyment. Landlord agrees that during the term of this Ground Lease and following the
Transition Date, so long as no Ground Lease Event of Default exists, Tenant's quiet and peaceful enjoyment of the Land shall not be disturbed or interfered with by Landlord or any other person or
party, except any person or party (excluding ADC or its Affiliates) claiming by, through or under Tenant.
20. Recording of Memorandum. Upon the execution hereof, Landlord and Tenant shall execute and deliver a
memorandum hereof in substantially the form of Exhibit B attached hereto, and Landlord (as its expense) shall record such memorandum in
the real estate records of the state and county in which the Land is located.
21. Inability to Perform. Anything in this Ground Lease to the contrary notwithstanding, Tenant's
inability to fulfill any of Tenant's agreements and undertakings under this Ground Lease shall not be considered Ground Lease Events of Default if Tenant is prevented or delayed from so doing by
reason of a Force Majeure Event.
22. Notices. Unless otherwise specified herein, all notices, requests, demands or other communications
to or upon the respective parties hereto shall be made in writing and shall be deemed to have been given (i) in the case of notice by letter, the earlier of when delivered to the addressee by
hand or courier if delivered on a business day and, if not delivered on a business day, the first business day thereafter or on the third business day after depositing the same in the mails,
registered or certified mail, postage prepaid, return receipt requested, addressed as provided below or at such other address within the continental United States as any party may notify the other
party as specified herein, and (ii) in the case of notice by facsimile, when receipt is confirmed if delivered on a business day and, if not delivered on a business day, the first business day
thereafter, addressed as provided below or at such other address within the continental United States as any party may notify the other party as specified herein. Copies of all notices given by
facsimile shall be contemporaneously sent by overnight courier.
If
to Landlord:
ADC
Telecommunications, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If
to Tenant:
Lease
Plan North America, Inc.
c/o ABN AMRO Bank, N. A., as Administrative Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
23. Tenant's Right of First Refusal; Option to Purchase.
(a) Notwithstanding
anything herein to the contrary, Tenant's option under this Section 23(a) may not be
exercised before the earliest of (x) twenty (20) years from the date hereof, (y) the exercise by Landlord of its Sale Option under the Lease and (z) the expiration or
termination of the Lease. Tenant may exercise its option under this Section 23(a) at any time during the term of this Ground Lease (subject to
the first sentence of this Section 23(a)). Landlord may not sell the Land during the Term of the Lease. If at any time during the Term of the
Lease Landlord shall receive a bona fide offer (whether or not solicited by the Landlord) from a person not an affiliate of Landlord for the purchase
from it of the Land and desires to sell it upon the terms offered, it shall first advise the Tenant in writing of the material terms of the offer together with a notice regarding Tenant's rights under
this Section 23, and Tenant shall have thirty (30) days from the
date of receipt of said written information to notify Landlord that it will purchase the Land on the same terms. In the absence of such notification by Tenant, Landlord may sell the Land on terms
substantially no more favorable to the offeror within three (3) months from the date it notified Tenant of such offer. If Tenant fails to do so, the right granted to Tenant hereby shall
continue and be reinstated. If Tenant desires to purchase the Land, it shall accompany its notice of intent to purchase with (i) an xxxxxxx money deposit payable to Landlord equal to the sum
(if any) offered as an xxxxxxx money deposit by the offeror, and (ii) a contract executed by Tenant including the same material terms as the offer, which shall require a closing on the later of
the closing date, if any, specified in the offer and forty-five (45) business days following notification of Tenant's agreement to purchase. At closing, Landlord shall convey the
Land by limited warranty deed to or upon the instructions of Tenant. Unless the Tenant shall expressly specify in a recorded written instrument to the contrary, there shall be no merger of the fee and
leasehold interests. No reorganization, recapitalization, merger, or like transaction involving a disposition with or without value to an affiliate of Landlord shall be deemed subject to Tenant's
right of first refusal. Regardless of whether Tenant exercises its rights under this Section 23(a), any transfer of Landlord's
interest in the Land shall be made subject to this Ground Lease, the Operative Documents and the terms and conditions hereof and thereof. This right of first refusal shall terminate upon the
expiration of this Ground Lease.
(b) Notwithstanding
anything herein to the contrary, Tenant's option under this Section 23(b) may not be
exercised before the earliest of (x) twenty (20) years from the date hereof, and (y) the expiration or termination of the Lease. Landlord hereby grants to Tenant an option to
purchase the Land at a price equal to the Appraised Value (hereinafter defined) of the Land (excluding the value of any Improvements). Tenant may exercise this option at any time during the term of
this Ground Lease (subject to the first sentence of this Section 23(b) |