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EXHIBIT 10.70
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LEASE
between
SCOTIABANC INC.,
AS LESSOR,
and
XXX RESEARCH CORPORATION,
AS LESSEE
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Dated as of January 10, 2000
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LEASE
BETWEEN
SCOTIABANC INC.
AND
XXX RESEARCH CORPORATION
This LEASE (this "LEASE"), dated as of January 10, 2000, between
SCOTIABANC INC., having an office at 000 Xxxxxxxxx Xxxxxx XX, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000, as lessor ("LESSOR"), and XXX RESEARCH CORPORATION, a
Delaware corporation, having its principal office at 0000 Xxxxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000, as lessee ("LESSEE").
In consideration of the mutual agreements herein contained, and
of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
-
- DEFINITIONS. Capitalized terms used but not otherwise defined in this
Lease have the respective meanings specified in Annex A to the
Participation Agreement dated as of the date hereof among Lessee,
Lessor, Agent and the Rent Purchasers named therein.
-
- PROPERTY. Subject to the terms and conditions hereinafter set forth,
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor,
the Property more fully described in Schedule 1 to the Lease Supplement.
- LEASE TERM. The Property is leased for the Term, unless extended or
earlier terminated in accordance with the provisions of this Lease.
- TITLE. The Property is leased to Lessee without any representation or
warranty, express or implied, by Lessor and subject to the rights of
parties in possession, the existing state of title (including, without
limitation, the Permitted Exceptions) and all applicable Legal
Requirements. Lessee shall in no event have any recourse against Lessor
for any defect in title to the Property except for the failure of Lessor
to remove Lessor Liens at the expiration or earlier termination of this
Lease.
- LEASE SUPPLEMENT. On the Funding Date, Lessee and Lessor shall each
execute and deliver a Lease Supplement [Land] and Lease Supplement
[Improvements] for the Property to be leased on such date in
substantially the form of Exhibit A hereto and thereafter the Property
shall be subject to the terms of this Lease.
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-
- RENT.
- On each applicable Payment Date and on any date when this Lease shall
terminate, Lessee shall pay Basic Rent for the Property.
- Basic Rent shall be due and payable in lawful money of the United States
and shall be paid by wire transfer of immediately available funds on the
due date therefor to such account or accounts at such bank or banks or
to such other Person or in such other manner as Lessor shall from time
to time direct.
- Neither Lessee's inability or failure to take possession of all, or any
portion, of the Property when delivered by Lessor, nor Lessor's
inability or failure to deliver all or any portion of the Property to
Lessee, whether or not attributable to any act or omission of Lessee or
any act or omission of Lessor, or for any other reason whatsoever, shall
delay or otherwise affect Lessee's obligation to pay Rent in accordance
with the terms of this Lease.
- PAYMENT OF BASIC RENT. Basic Rent shall be paid absolutely net to
Lessor, so that this Lease shall yield to Lessor the full amount
thereof, without setoff, deduction or reduction.
- SUPPLEMENTAL RENT.
- Lessee shall pay to Lessor or the Person entitled thereto any and all
Supplemental Rent promptly as the same shall become due and payable, and
if Lessee fails to pay any Supplemental Rent, Lessor shall have all
rights, powers and remedies provided for herein or by law or equity or
otherwise in the case of nonpayment of Basic Rent. Lessee shall pay to
Lessor as Supplemental Rent, among other things, on demand, to the
extent permitted by applicable Requirements of Law, interest at the
applicable Overdue Rate on any installment of Basic Rent not paid when
due for the period for which the same shall be overdue and on any
payment of Supplemental Rent not paid when due or demanded by Lessor for
the period from the due date or the date of any such demand, as the case
may be, until the same shall be paid. The expiration or other
termination of Lessee's obligations to pay Basic Rent hereunder shall
not limit or modify the obligations of Lessee with respect to
Supplemental Rent. Unless expressly provided otherwise in this Lease or
any other Operative Agreement, in the event of any failure on the part
of Lessee to pay and discharge any Supplemental Rent as and when due,
Lessee shall also promptly pay and discharge any fine, penalty, interest
or cost which may be assessed or added for nonpayment or late payment of
such Supplemental Rent, all of which shall also constitute Supplemental
Rent.
- Lessee shall make a payment of Supplemental Rent equal to the Maximum
Residual Guarantee Amount in accordance with Section 21.1(c).
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- PERFORMANCE ON A NON-BUSINESS DAY. If any payment is required hereunder
on a day that is not a Business Day, then such payment shall be due on
the next succeeding Business Day (subject to the definition of the term
"INTEREST PERIOD").
- METHOD OF PAYMENT. Each payment of Rent payable by Lessee to Lessor
under this Lease or any other Operative Agreement shall be made by
Lessee to Lessor prior to 10:00 a.m. Pacific Time to the Account in
immediately available funds consisting of lawful currency of the United
States of America on the date when such payment shall be due. Payments
received after 10:00 a.m. Pacific Time on the date due shall for the
purpose of Section 17.1 hereof be deemed received on such day; provided,
however, that for the purposes of the second sentence of Section 3.3(a),
such payments shall be deemed received on the next succeeding Business
Day and shall accrue interest at the Overdue Rate as provided in such
Section 3.3(a).
-
- 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
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 incurred by Lessor in
obtaining such credit or refund, shall be promptly paid over to Lessee.
All charges for utilities imposed with respect to the Property for a
billing period during which this Lease expires or terminates shall be
adjusted and prorated on a daily basis between Lessor and Lessee, and
each party shall pay or reimburse the other for each party's pro rata
share thereof.
-
- QUIET ENJOYMENT. So long as no Event of Default shall have occurred and
be continuing, Lessee shall peaceably and quietly have, hold and enjoy
the Property for the Term, free of any claim or other action by Lessor
or anyone rightfully claiming by, through or under Lessor with respect
to any matters arising from and after the Closing Date. Such right of
quiet enjoyment is independent of, and shall not affect the rights of
Lessor (or anyone claiming by, through or under Lessor) otherwise to
initiate legal action to enforce, the obligations of Lessee under this
Lease.
-
- NET LEASE; NO SETOFF; ETC. This Lease shall constitute a net lease and,
notwithstanding any other provision of this Lease, it is intended that
Basic Rent and Supplemental Rent shall be paid without counterclaim,
setoff, deduction or defense of any kind and without abatement,
suspension, deferment, diminution or reduction of any kind, and Lessee's
obligation to pay all such amounts, throughout the 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,
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design, construction, quality or fitness for use of any portion of the
Property, or any failure of the Property to comply with all Legal
Requirements, including any inability to occupy or use the Property by
reason of such noncompliance; (b) any damage to, abandonment, loss,
contamination of or Release from or destruction of or any requisition or
taking of the Property or any part thereof, including eviction; (c) any
restriction, prevention or curtailment of or interference with any use
of the Property or any part thereof, including eviction; (d) any defect
in title to or rights to the Property or any Lien on such title or
rights or on the Property; (e) any change, waiver, extension, indulgence
or other action or omission or breach in respect of any obligation or
liability of or by Lessor or any Rent Purchaser; (f) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceedings relating to Lessee, Lessor, Agent
or any Rent Purchaser, or any action taken with respect to this Lease by
any trustee or receiver of Lessee, Lessor, Agent any Rent Purchaser or
any other Person, or by any court, in any such proceeding; (g) any claim
that Lessee has or might have against any Person, including, without
limitation, Lessor, Agent or any Rent Purchaser; (h) any failure on the
part of Lessor to perform or comply with any of the terms of this Lease,
any other Operative Agreement or of any other agreement; (i) any
invalidity, unenforceability or disaffirmance against or by Lessee of
this Lease, or any of the other Operative Agreements, or any provision
hereof or thereof; (j) the impossibility or illegality of performance by
Lessee, Lessor or either of them; (k) any action by any court,
administrative agency or other Governmental 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. This Lease shall be noncancellable by Lessee for any
reason whatsoever except as expressly provided herein, and Lessee, to
the extent permitted by Legal Requirements, waives all rights now or
hereafter conferred by statute or otherwise to quit, terminate or
surrender this Lease, or to any diminution, abatement or reduction of
Rent payable by Lessee hereunder. If for any reason whatsoever this
Lease shall be terminated in whole or in part by operation of law or
otherwise, except as otherwise expressly provided herein, Lessee shall,
unless prohibited by any Requirements of Law, nonetheless pay to Lessor
(or, in the case of Supplemental Rent, to whomsoever 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 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 or any Rent
Purchaser 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 or any liability for
damage to the property of Lessee or any subtenant of Lessee on any
account or for any reason whatsoever. Nothing in this Article 6 shall
relieve Lessor from liability to Lessee arising from the gross
negligence or willful misconduct of, or breach of its obligations by,
Lessor hereunder.
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- NO TERMINATION OR ABATEMENT. Lessee shall remain obligated under this
Lease in accordance with its terms and shall not take any action to
terminate, rescind or avoid this Lease, notwithstanding any action for
bankruptcy, insolvency, reorganization, liquidation, dissolution or
other proceeding affecting any Participant, or any action with respect
to this Lease which may be taken by any trustee, receiver or liquidator
of any Participant or by any court with respect to any Participant,
except as otherwise expressly provided herein. Lessee hereby waives all
right (i) to terminate or surrender this Lease, except as otherwise
expressly provided herein, or (ii) to avail itself of any abatement,
suspension, deferment, reduction, setoff, counterclaim or defense with
respect to any Rent. Lessee shall remain obligated under this Lease in
accordance with its terms and Lessee hereby waives any and all rights
now or hereafter conferred by statute or otherwise to modify or to avoid
strict compliance with its obligations under this Lease. Notwithstanding
any such statute or otherwise, Lessee shall be bound by all of the terms
and conditions contained in this Lease.
-
- OWNERSHIP OF THE PROPERTY. The parties hereto intend that (a) for
financial accounting purposes with respect to Lessee, Lessor, Agent and
Rent Purchasers (i) this Lease will be treated as an "operating lease"
pursuant to Statement of Financial Accounting Standards (SFAS) No. 13,
as amended, (ii) Lessor will be treated as the owner and lessor of the
Property, and (iii) Lessee will be treated as the lessee of the
Property, but (a) for federal, state and local income tax and all other
purposes (i) this Lease will be treated as a financing arrangement, (ii)
Lessor and Rent Purchasers will be treated as lenders making loans to
Lessee in an amount equal to the sum of the Lessor Contribution and the
Rent Purchaser Advances, which loans are secured by the Property, and
(iii) Lessee will be treated as the owner of the Property and will be
entitled to all tax benefits ordinarily available to an owner of land
and improvements like the Property for such tax purposes.
- LIENS AND SECURITY INTERESTS.
- The parties hereto further intend and agree that, for the purpose of
securing Lessee's obligations for the repayment of the above-described
loans, (i) this Lease shall also be deemed to be a security agreement
and financing statement within the meaning of Article 9 of the Uniform
Commercial Code and a real property mortgage or deed of trust, as
applicable; (ii) Lessee grants to Lessor a security interest in Lessee's
interest in the Trust Property (defined in subsection 7.2(c) below);
(iii) the conveyance provided for in Article 2 shall be deemed a grant
of a security interest in Lessee's beneficial ownership interest in the
Property and all proceeds of the conversion, voluntary or involuntary,
of the foregoing into cash, investments, securities or other property,
whether in the form of cash, investments, securities or other property,
for the benefit of Lessor to secure Lessee's payment of all amounts owed
by Lessee under this Lease and the other Operative Agreements and Lessor
holds title to the Property so as to create and grant a first lien and
prior security interest in the Property pursuant to this Lease for the
benefit of Lessor to secure to Lessor the obligations of Lessee under
the Lease; (iv) the possession by Lessor or any of its agents of notes
and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to
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be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the Uniform Commercial
Code; and (v) notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from financial
intermediaries, bankers or agents (as applicable) of Lessee shall be
deemed to have been given for the purpose of perfecting such security
interest under applicable law. In such event, Lessor shall have all of
the rights, powers and remedies of a grantee and a secured party
available under applicable law, including, without limitation, judicial
or nonjudicial foreclosure or power of sale, as and to the extent
available under applicable law. The filing of this Lease (or a
memorandum hereof) shall be deemed to constitute the filing of a deed to
secure debt and the filing of any financing statement in connection with
this Lease shall be deemed to constitute the filing of a financing
statement to perfect the deed to secure debt and security interests in
the Property as aforesaid to secure the payment of all amounts due from
time to time from Lessee to Lessor under this Lease and the other
Operative Documents. If this transaction is treated as a financing, the
obligation arising hereunder shall be with full recourse to Lessee and
shall not be treated as recourse only to the Property. To the fullest
extent permitted by applicable law, Lessor and Lessee intend that the
Property (other than the Land) be and remain at all times personal
property regardless of the manner or extent to which any of the Property
(other than the Land) may be attached or affixed to any real property.
Except as required by applicable law, Lessee shall not under any
circumstances take any action or make any filing or recording which
could cause the Property (other than the Land) to be deemed to be real
property or permit any Person to obtain any interest in the Property
(other than the Land) as a result of the Property (other than the Land)
being deemed to be in whole or in part real property. This Lease secures
and shall be security for any and all future advances made by Lessor to
Lessee. Nothing contained herein shall be deemed an obligation on the
part of Lessor to make any further advances. The parties hereto shall,
to the extent consistent with this Lease, take such actions as may be
necessary to ensure that, if this Lease were deemed to create a security
interest in the Property in accordance with this Section 7.2, such
security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such
throughout the Term. Nevertheless, Lessee acknowledges and agrees that
neither Lessor nor any Rent Purchaser has provided nor will provide tax,
accounting or legal advice to Lessee regarding this Lease, the Operative
Agreements or the transactions contemplated hereby and thereby, or made
any representations or warranties concerning the tax, accounting or
legal characteristics of the Operative Agreements, and that Lessee has
obtained and relied upon such tax, accounting and legal advice
concerning the Operative Agreements as it deems appropriate.
- The parties hereto further intend and agree that in the event of any
insolvency or receivership proceedings or a petition under the United
States bankruptcy laws or any other applicable insolvency laws or
statutes of the United States of America or any State or Commonwealth
thereof affecting any party hereto, the transactions evidenced by this
Lease shall be regarded as loans made by an unrelated third party lender
to Lessee.
- Specifically, but without limiting the foregoing or the generality of
Section 7.1, Lessee, as trustor, hereby grants, bargains, sells,
warrants, conveys, aliens, remises, releases, assigns, sets over and
confirms to Lessor, as beneficiary, WITH POWER OF SALE, AND RIGHT OF
ENTRY AND INSPECTION, all of Lessee's present and future right,
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title, and interest in and to the following (collectively, the "TRUST
Property"): (i) the Land and the Property and Appurtenant Rights
relating thereto and all proceeds, both cash and noncash thereof; (ii)
all easements, rights-of-way, strips and gores of land, vaults, streets,
ways, alleys, passages, sewer rights, waters, water courses, water
rights, minerals, flowers, shrubs, crops, trees, timber and other
emblements now or hereafter located on the Land or under or above the
same or any part or parcel thereof, and all estates, rights, titles,
interests, tenements, hereditaments and appurtenances, reversions and
remainders whatsoever, in any way belonging, relating or appertaining to
the Land and the Property or any part thereof, or which hereafter shall
in any way belong, relate or be appurtenant thereto, whether now owned
or hereafter acquired by Lessee; (iii) all articles of personal property
of every kind and nature whatsoever, tangible or intangible, now,
heretofore or hereafter acquired with any proceeds of the Advances and
now, heretofore or hereafter (A) arising out of or related to the
ownership of the Property, or (B) located in, on or about the Property,
or (C) used or intended to be used with or in connection with the
construction, use, operation or enjoyment of the Property; (iv) all
right, title and interest of Lessee in any and all leases, rental
agreements and arrangements of any sort now or hereafter affecting the
Property or any portion thereof and providing for or resulting in the
payment of money to Lessee for the use of the Property or any portion
thereof, whether the user enjoys the Property or any portion thereof as
tenant for years, licensee, tenant at sufferance or otherwise, and
irrespective of whether such leases, rental agreements and arrangements
be oral or written, and including any and all extensions, renewals and
modifications thereof (the "SUBJECT LEASES") and guaranties of the
performance or obligations of any tenants or lessees thereunder,
together with all income, rents, issues, profits and revenues from the
Subject Leases (including all tenant security deposits and all other
tenant deposits, whether held by Lessee or in a trust account, and all
other deposits and escrow funds relating to any Subject Leases), and all
the estate, right, title, interest, property, possession, claim and
demand whatsoever at law, as well as in equity, of Lessee of, in and to
the same; provided, however, that although this Lease contains (and it
is hereby agreed that this Lease contains) a present, current,
unconditional and absolute assignment of all of said income, rents,
issues, profits and revenues, Lessee shall collect and apply such rental
payments and revenues as provided in the Lease and the other Operative
Agreements; (v) all right, title and interest of Lessee to and under all
agreements, management contracts, consents, authorizations, certificates
and other rights of every kind and character of any Governmental
Authority affecting the Property, to the extent the same are
transferable, service contracts, utility contracts, leases of equipment,
documents and agreements relating to the construction of any
Improvements (including any and all construction contracts,
architectural contracts, engineering contracts, designs, plans,
specifications, drawings, surveys, tests, reports, bonds and
governmental approvals) and all other contracts, licenses and permits
now or hereafter affecting the Property or any part thereof and all
guaranties and warranties with respect to any of the foregoing (the
"SUBJECT CONTRACTS"); (vi) all right, title and interest of Lessee in
any insurance policies or binders now or hereafter relating to the
Property, including any unearned premiums thereon, as further provided
in this Lease; (vii) all right, title and interest of Lessee in any and
all awards, payments, proceeds and the right to receive the same, either
before or after any foreclosure hereunder, as a result of any temporary
or permanent injury or
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damage to, taking of or decrease in the value of the Property by reason
of casualty, condemnation or otherwise as further provided in this
Lease; (viii) all right, title and interest of Lessee in all utility,
escrow and all other deposits (and all letters of credit, certificates
of deposit, negotiable instruments and other rights and evidence of
rights to cash) now or hereafter relating to the Property or the
purchase, construction or operation thereof; (ix) all claims and causes
of action arising from or otherwise related to any of the foregoing, and
all rights and judgments related to any legal actions in connection with
such claims or causes of action; and (x) all Modifications, extensions,
additions, improvements, betterments, renewals and replacements,
substitutions, or proceeds of any of the foregoing, and all property of
any nature constituting proceeds acquired with proceeds of any of the
property described hereinabove; all of which foregoing items are hereby
declared and shall be deemed to be a portion of the security for the
indebtedness and Advances herein described, a portion of the above
described collateral being located upon the Land.
-
- CONDITION OF THE PROPERTY. LESSEE ACKNOWLEDGES AND AGREES THAT IT IS
RENTING THE PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR
COVENANT (EXPRESS OR IMPLIED) BY LESSOR AND SUBJECT TO (A) THE EXISTING
STATE OF TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF, (C)
ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT
SHOW, AND (D) VIOLATIONS OF LEGAL REQUIREMENTS WHICH MAY EXIST ON THE
DATE HEREOF. NEITHER LESSOR NOR ANY PARTICIPANT HAS MADE OR SHALL BE
DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED, INCLUDING THE CONDITION OF ANY IMPROVEMENTS THEREON, THE SOIL
CONDITION, OR ANY ENVIRONMENTAL OR HAZARDOUS MATERIAL CONDITION) OR
SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE, VALUE,
HABITABILITY, USE, CONDITION, DESIGN, OPERATION OR FITNESS FOR USE OF
THE PROPERTY (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION,
WARRANTY OR COVENANT WHATSOEVER (EXPRESS OR IMPLIED), WITH RESPECT TO
THE PROPERTY (OR ANY PART THEREOF) AND NEITHER LESSOR NOR ANY
PARTICIPANT SHALL BE LIABLE FOR ANY LATENT, HIDDEN OR PATENT DEFECT
THEREIN OR THE FAILURE OF THE PROPERTY, OR ANY PART THEREOF, TO COMPLY
WITH ANY LEGAL REQUIREMENT.
- POSSESSION AND USE OF THE PROPERTY. The Property shall be used for
office, manufacturing and research and development purposes. Lessee
shall pay, or cause to be paid, all charges and costs required in
connection with the use of the Property. Lessee shall not commit or
permit any waste of the Property or any part thereof.
-
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- COMPLIANCE WITH LEGAL REQUIREMENTS AND INSURANCE REQUIREMENTS. Subject
to the terms of Article 13 relating to permitted contests, Lessee, at
its sole cost and expense, shall (a) comply with all Legal Requirements
(including all Environmental Laws) and Insurance Requirements relating
to the Property, including the use, construction, operation,
maintenance, repair and restoration thereof, whether or not compliance
therewith shall require structural or extraordinary changes in the
Improvements or interfere with the use and enjoyment of the Property,
and (b) procure, maintain and comply in all material respects with all
licenses, permits, orders, approvals, consents and other authorizations
required for the construction, renovation, use, maintenance and
operation of the Property and for the use, operation, maintenance,
repair and restoration of the Improvements.
-
- MAINTENANCE AND REPAIR; RETURN.
- Lessee, at its sole cost and expense, shall maintain the Property in
good condition (ordinary wear and tear excepted) and make all necessary
repairs thereto, of every kind and nature whatsoever, whether interior
or exterior, ordinary or extraordinary, structural or nonstructural or
foreseen or unforeseen, in each case as required by all Legal
Requirements and Insurance Requirements and on a basis reasonably
consistent with the operation and maintenance of commercial properties
comparable in type and location to the Property subject, however, to the
provisions of Article 15 with respect to Condemnation and Casualty.
- Lessor's obligation to make the Lessor Contribution is as set forth in
Section 2.1 of the Participation Agreement. Under no circumstances shall
Lessor itself be required to build any Improvements on the Property,
make any repairs, replacements, alterations or renewals of any nature or
description to the Property, make any expenditure whatsoever in
connection with this Lease or maintain the Property in any way. Lessor
shall not be required to maintain, repair or rebuild all or any part of
the Property, and Lessee waives the right to (i) require Lessor to
maintain, repair or rebuild all or any part of the Property, or (ii)
make repairs at the expense of Lessor pursuant to any Legal Requirement,
Insurance Requirement, contract, agreement, covenants, condition or
restriction at any time in effect.
- Lessee shall, upon the expiration or earlier termination of the Term
with respect to the Property not including a purchase thereof by Lessee,
vacate, surrender and transfer the Property to Lessor or, at Lessor's
request, the independent purchaser thereof, at Lessee's own expense,
free and clear of all Liens other than Permitted Liens and Lessor Liens,
in as good condition as it was on the Closing Date, ordinary wear and
tear excepted, and in compliance with all Legal Requirements and the
other requirements of this Lease (and in any event without (x) any
asbestos installed or maintained in any part of the Property, (y) any
polychlorinated biphenyls (PCBs) in, on or used, stored or located at
the Property, and (z) any other Hazardous Substances). Lessee shall
cooperate with any independent purchaser of the Property in order to
facilitate the ownership or leasing and operation by such purchaser of
the Property after such expiration or earlier termination of the Term,
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including providing all books, reports and records regarding the
maintenance, repair and ownership of the Property and all data and
technical information relating thereto, granting or assigning all
licenses necessary for the operation and maintenance of the Property and
cooperating in seeking and obtaining all necessary licenses, permits and
approvals of Governmental Authorities. Lessee shall have also paid the
total cost for the completion of all Modifications commenced prior to
such expiration or earlier termination of the Term. The obligation of
Lessee under this Section 10.1(c) shall survive the expiration or
termination of this Lease.
- RIGHT OF INSPECTION. Lessor or any Rent Purchaser may, each not more
than twice each year unless an Event of Default exists, at reasonable
times, and with reasonable prior written notice and in a manner which
minimizes the disruption of Lessee's use of the Property, enter upon,
inspect and examine at its own cost and expense (unless an Event of
Default exists, in which case the out-of-pocket costs and expenses of
such parties shall be paid by Lessee), the Property. Lessee shall
furnish to Lessor statements, no more than once per year, accurate in
all material respects, regarding the condition and state of repair of
the Property. Lessor shall have no duty to make any such inspection or
inquiry and shall not incur any liability or obligation by reason of not
making any such inspection or inquiry.
- ENVIRONMENTAL INSPECTION. Upon surrender of possession of the Property,
or not more than one hundred twenty (120) days nor less than thirty (30)
days prior to the Expiration Date or earlier termination of the Term
(unless Lessee has previously irrevocably exercised the Purchase Option
or Maturity Date Purchase Option), Lessee shall, at its sole cost and
expense, provide to Lessor a report by an environmental consultant
selected by Lessee and reasonably satisfactory to Lessor certifying that
there has been no Release at, on or from the Property and Hazardous
Substances have not at any time during the Term been generated, used,
treated or stored on, transported to or from, or deposited at or on the
Property other than (a) as necessary to use, operate, maintain, repair
and restore the Property and (b) in full compliance with all
Environmental Laws, and no portion of the Property has been used for
such purposes other than in full compliance with all Environmental Laws.
If such is not the case, the report shall set forth a remedial response
plan relating to the Property (which remedial response plan, if required
by any Environmental Law or Governmental Authority, shall be approved by
the appropriate Governmental Authority). Such remedial response plan
shall include, if relevant, but shall not be limited to, plans for full
response, remediation, removal or other corrective action, and the
protection, or mitigative action associated with the protection, of
natural resources including wildlife, aquatic species and vegetation
associated with the Property, as required by all applicable
Environmental Laws. If such report includes a remedial response plan,
Lessee shall promptly deposit funds in escrow with Lessor sufficient to
ensure the full execution and implementation of such plan.
10.
12
-
- MODIFICATIONS, SUBSTITUTIONS AND REPLACEMENTS.
- So long as no Event of Default has occurred and is continuing, Lessee,
at its sole cost and expense, may at any time and from time to time make
alterations, renovations, improvements and additions to the Property or
any part thereof (collectively, "MODIFICATIONS"); provided, that: (i)
except for any Modification required to be made pursuant to a Legal
Requirement or an Insurance Requirement, no Modification, individually,
or when aggregated with any (A) other Modification or (B) grant,
dedication, transfer or release pursuant to Section 12.2, shall impair
the value of the Property or the utility or useful life of the Property
from that which existed immediately prior to such Modification; (ii) the
Modification shall be performed expeditiously and in a good and
workmanlike manner; (iii) Lessee shall comply with all Legal
Requirements (including all Environmental Laws) and all Insurance
Requirements applicable to the Modification, including the obtaining of
all permits and certificates of occupancy, and the structural integrity
of the Property shall not be adversely affected; (iv) Lessee shall
maintain or cause to be maintained builders' risk insurance at all times
when a Modification is in progress; (v) subject to the terms of Article
13 relating to permitted contests, Lessee shall pay all costs and
expenses and discharge any Liens arising with respect to the
Modification; (vi) such Modifications shall comply with Sections 8.2 and
10.1 and shall not change the primary character of the Property; and
(vii) the Improvements shall not be demolished in total in the making of
the Modification. All Modifications (other than those that may be
readily removed without impairing the value, utility or remaining useful
life of the Property) shall remain part of the Improvements and shall be
subject to this Lease, and title thereto shall immediately vest in
Lessor. So long as no Event of Default has occurred and is continuing,
Lessee may place upon the Property any inventory, trade fixtures,
machinery, equipment or other property belonging to Lessee or third
parties and may remove the same at any time during the term of this
Lease; provided that such inventory, trade fixtures, machinery,
equipment or other property, or their respective operations, do not
materially impair the value, utility or remaining useful life of the
Property.
- Lessee shall notify Lessor of the undertaking of any construction,
repairs or alterations to the Property the cost of which is anticipated
to exceed $1,000,000. Prior to undertaking any such construction or
alterations, Lessee shall deliver to Lessor (i) a brief narrative of the
work to be done and a copy of the plans and specifications relating to
such work; and (ii) an Officer's Certificate stating that such work when
completed will not impair the value, utility or remaining useful life of
the Property. Lessor, by itself or its agents, shall have the right, but
not the obligation, from time to time to inspect such construction to
ensure that the same is completed consistent with such plans and
specifications.
- Lessee shall not, without the consent of Lessor, undertake any
construction or alterations to the Property if such construction or
alterations cannot, in the reasonable judgement of Lessor, be completed
on or prior to the date that is one hundred eighty (180) days prior to
the Expiration Date.
11.
13
-
- WARRANTY OF TITLE.
- Lessee agrees that, except as otherwise provided herein and subject to
the terms of Article 13 relating to permitted contests, Lessee shall not
directly or indirectly create or allow to remain, and shall promptly
discharge at its sole cost and expense, any Lien, defect, attachment,
levy, title retention agreement or claim, other than a Lessor Lien, upon
the Property or any Modifications or any Lien, attachment, levy or claim
with respect to the Rent or with respect to any amounts held by Lessor
or the Collateral Agent pursuant to the Participation Agreement or the
Pledge Agreement, other than with respect to the Property only,
Permitted Liens. Lessee shall promptly notify Lessor in the event it
receives actual knowledge that a Lien (other than a Permitted Lien)
exists with respect to the Property or that a Lien exists with respect
to the Rent or the Collateral.
- Nothing contained in this Lease shall be construed as constituting the
consent or request of 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 PARTICIPANT IS OR SHALL BE LIABLE FOR
ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO LESSEE,
OR TO ANYONE HOLDING THE PROPERTY OR ANY PART THEREOF THROUGH OR UNDER
LESSEE, AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR,
SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR
IN AND TO THE PROPERTY.
- GRANTS AND RELEASES OF EASEMENTS. Provided that no Event of Default
shall have occurred and be continuing and subject to the provisions of
Articles 8, 9, 10 and 11, Lessor hereby consents to the following
actions by Lessee, in the name and stead of Lessor, but at Lessee's sole
cost and expense: (a) the granting of easements, licenses, rights-of-way
and other rights and privileges in the nature of easements and incurring
of other obligations of Lessee reasonably necessary or desirable for the
development, construction, use, repair, renovation or maintenance of the
Property as herein provided; (b) the release of existing easements or
other rights in the nature of easements which are for the benefit of the
Property or adjacent properties (owned by Lessee); (c) the dedication or
transfer of unimproved portions of the Property for road, highway or
other public purposes; (d) the execution of petitions to have the
Property annexed to any municipal corporation or utility district; and
(e) the execution of amendments to any covenants and restrictions
affecting the Property; provided, that in each case Lessee shall have
delivered to Lessor an Officer's Certificate stating that: (i) such
grant, release, dedication or transfer does not materially impair the
value, utility or remaining useful life of the Property, (ii) such
grant, release, dedication or transfer is necessary in connection with
the construction, use, maintenance, alteration, renovation or
improvement of the Property or adjacent properties (owned or leased by
Lessee), (iii) Lessee shall remain obligated under this Lease and under
any instrument executed by Lessee consenting to the assignment of
Lessor's interest in this Lease as security for indebtedness, in each
such
12.
14
case in accordance with their terms, as though such grant, release,
dedication or transfer, had not been effected, and (iv) Lessee shall pay
and perform any obligations of Lessor under such grant, release,
dedication or transfer. Without limiting the effectiveness of the
foregoing, provided that no Event of Default shall have occurred and be
continuing, Lessor shall, upon the request of Lessee, and at Lessee's
sole cost and expense, promptly execute and deliver any instruments
necessary or appropriate to confirm any such grant, release, dedication
or transfer to any Person permitted under this Section 12.2.
-
- PERMITTED CONTESTS OTHER THAN IN RESPECT OF IMPOSITIONS. Except to the
extent otherwise provided for in Section 11.2(f) of the Participation
Agreement, Lessee, on its own or on Lessor's behalf but at Lessee's sole
cost and expense, may contest, by appropriate administrative or judicial
proceedings conducted in good faith and with due diligence, the amount,
validity or application, in whole or in part, of any Legal Requirement
or utility charges payable pursuant to Section 4.1, or any Lien,
attachment, levy, encumbrance or encroachment, and Lessor agrees not to
pay, settle or otherwise compromise any such item, provided that (a) the
commencement and continuation of such proceedings shall suspend the
collection thereof from, and suspend the enforcement thereof against,
the Property, the Rent, the Collateral, Lessor, Agent and Rent
Purchasers; (b) there shall be no risk of the imposition of a Lien
(other than a Permitted Lien) on the Property, or any Lien on any Rent
or the Collateral, and no part of the Property nor any Rent nor any of
the Collateral would be in any danger of being sold, forfeited, lost or
deferred; (c) at no time during the permitted contest shall there be a
risk of the imposition of criminal liability or civil liability on
Lessor or any Participant for failure to comply therewith; and (d) in
the event that, at any time, there shall be a material risk of extending
the application of such item beyond the Expiration Date, then Lessee
shall deliver to Lessor an Officer's Certificate certifying as to the
matters set forth in clauses (a), (b) and (c) of this Section 13.1.
Lessor, at Lessee's sole cost and expense, shall execute and deliver to
Lessee such authorizations and other documents as may reasonably be
required in connection with any such contest and, if reasonably
requested by Lessee, shall join as a party therein at Lessee's sole cost
and expense.
-
- PUBLIC LIABILITY AND WORKERS' COMPENSATION INSURANCE. During the Term,
Lessee shall procure and carry, at Lessee's sole cost and expense,
commercial general liability insurance for claims for injuries or death
sustained by persons or damage to property while on the Property. Such
insurance shall be on terms and in amounts that are no less favorable
than insurance maintained by owners of similar properties, that are in
accordance with normal industry practice. The policy shall be endorsed
to name Lessor and each Rent Purchaser as additional insureds. The
policy shall also specifically provide that the policy shall be
considered primary insurance which shall apply to any loss or claim
before any contribution by any insurance which Lessor or any Rent
Purchaser may have in force. Lessee shall, in the operation of the
Property, comply with the applicable workers' compensation laws and
protect Lessor and each Rent Purchaser against any liability under such
laws.
13.
15
- HAZARD AND OTHER INSURANCE.
- During the Term, Lessee shall keep the Property insured against loss or
damage by fire, earthquake and other risks on terms and in amounts that
are no less favorable than insurance maintained by owners of similar
properties, that are in accordance with normal industry practice, and
are in amounts at least equal to the Lease Balance and in the case of
earthquake coverage, with a deductible which is commercially reasonable
for the geographical location of the property. So long as no Event of
Default exists, any loss payable under the insurance policy required by
this Section 14.2 will be paid to and adjusted solely by Lessee, subject
to Article 15. So long as no Event of Default exists, any loss payable
under any title insurance policy covering the Property will be paid to
and adjusted solely by Lessee, subject to Article 15.
- If at any time during the Term the area in which the Property is located
is designated a "flood-prone" area pursuant to the Flood Disaster
Protection Act of 1973 or any amendments or supplements thereto, then
Lessee shall comply with the National Flood Insurance Program as set
forth in the Flood Disaster Protection Act of 1973, as may be amended.
In addition, Lessee will fully comply with the requirements of the
National Flood Insurance Act of 1968 and the Flood Disaster Protection
Act of 1973, as each may be amended from time to time, and with any
other Legal Requirement concerning flood insurance to the extent that it
applies to the Property.
- COVERAGE.
- Lessee shall furnish Lessor with certificates showing the insurance
required under Sections 14.1 and 14.2 to be in effect and naming Lessor
as loss payee with respect to property insurance and Lessor and each
Rent Purchaser as an additional insured with respect to liability
insurance and showing the mortgagee endorsement required by Section
14.3(c). All such insurance may be maintained under blanket policies and
shall be at the cost and expense of Lessee and provided by nationally
recognized, financially sound insurance companies having a rating by
A.M. Best's Key Rating Guide of at least an A and a Financial
Performance Rating of at least VIII. Such certificates shall include a
provision in which the insurer agrees to provide thirty (30) days'
advance written notice by the insurer to Lessor (on behalf of the
beneficiaries of such insurance coverage) in the event of cancellation
or material alteration of such insurance. If an Event of Default has
occurred and is continuing and Lessor so requests, Lessee shall deliver
to Lessor copies of all insurance policies required by this Lease.
- Lessee agrees that the insurance policy or policies required by this
Lease shall include an appropriate clause pursuant to which such policy
shall provide that it will not be invalidated should Lessee waive, in
writing, prior to a loss, any or all rights of recovery against any
party for losses covered by such policy. Lessee hereby waives any and
all such rights against Lessor and each Rent Purchaser to the extent of
payments made under such policies.
- All insurance policies required by Section 14.2 shall include a "New
York" or standard form mortgagee endorsement in favor of Lessor.
14.
16
- Neither Lessor nor any Rent Purchaser shall carry separate insurance
concurrent in kind or form or contributing in the event of loss with any
insurance required under this Lease except that Lessor and any Rent
Purchaser may carry separate liability insurance so long as (i) Lessee's
insurance is designated as primary and in no event excess or
contributory to any insurance such party may have in force which would
apply to a loss covered under Lessee's policy and (ii) each such
insurance policy will not cause Lessee's insurance required under this
Lease to be subject to a coinsurance exception of any kind.
- Lessee shall pay as they become due all premiums for the insurance
required by this Lease, shall renew or replace each policy prior to the
expiration date thereof, shall promptly deliver to Lessor and Rent
Purchaser certificates for renewal and replacement policies, and
otherwise maintain the coverage required by this Lease without any lapse
in coverage.
-
- CASUALTY AND CONDEMNATION.
- Subject to the provisions of this Article 15 and Article 16 (in the
event Lessee delivers, or is obligated to deliver, a Termination
Notice), and prior to the occurrence and continuation of an Event of
Default, Lessee shall be entitled to receive (and Lessor hereby
irrevocably assigns to Lessee all of Lessor's right, title and interest
during such time in) any award, compensation or insurance proceeds to
which Lessee or Lessor may become entitled by reason of their respective
interests in the Property (i) if all or a portion of the Property is
damaged or destroyed in whole or in part by a Casualty or (ii) if the
use, access, occupancy, easement rights or title to the Property or any
part thereof is the subject of a Condemnation; provided, however, if a
Default shall have occurred and be continuing, such award, compensation
or insurance proceeds shall be paid directly to Lessor or, if received
by Lessee, shall be held in trust for Lessor, and shall be paid over by
Lessee to Lessor; and provided, further, that in the event of any
Casualty or Condemnation, the estimated cost of restoration of which is
in excess of $3,000,000, any such award, compensation or insurance
proceeds shall be paid directly to Lessor, or if received by Lessee,
shall be held in trust for Lessor and shall be paid over by Lessee to
Lessor, subject to disbursement in full to Lessee in accordance with
Section 15.1(d) or (e), as applicable.
- So long as no Event of Default has occurred and is continuing, Lessee
may appear in any proceeding or action to negotiate, prosecute, adjust
or appeal any claim for any award, compensation or insurance payment on
account of any such Casualty or Condemnation and shall pay all expenses
thereof; provided that if the estimated cost of restoration of the
Property or the payment on account of such title defect is in excess of
$3,000,000, then Lessor shall be entitled to participate in any such
proceeding or action. At Lessee's reasonable request, and at Lessee's
sole cost and expense, Lessor shall participate in any such proceeding,
action, negotiation, prosecution or adjustment. Lessor and Lessee agree
that this Lease shall control the rights of Lessor, Participants and
Lessee in and to any such award, compensation or insurance payment.
15.
17
- If any party shall receive notice of a Casualty or a possible
Condemnation of the Property or any interest therein, such party, as the
case may be, shall give notice thereof to Lessor and Lessee promptly
after the receipt of such notice.
- In the event of a Casualty or receipt of notice by Lessee or Lessor of a
Condemnation, Lessee shall, not later than thirty (30) days after such
occurrence, deliver to Lessor an Officer's Certificate stating that
either (i) (x) such Casualty is not a Significant Casualty or (y) such
Condemnation is neither a Total Condemnation nor a Significant
Condemnation and that this Lease shall remain in full force and effect
with respect to the Property and, at Lessee's sole cost and expense,
Lessee shall promptly and diligently restore the Property in accordance
with the terms of Section 15.1(e) or (ii) this Lease shall terminate
with respect to the Property in accordance with Section 16.1.
- If pursuant to Section 15.1(d), this Lease shall continue in full force
and effect following a Casualty or Condemnation with respect to the
Property, Lessee shall, at its sole cost and expense, promptly and
diligently repair any damage to the Property caused by such Casualty or
Condemnation in conformity with the requirements of Sections 10.1 and
11.1 using the as-built plans and specifications for the Property (as
modified to give effect to any subsequent Modifications, any
Condemnation affecting the Property and all applicable Legal
Requirements) so as to restore the Property to the same condition,
operation, function and value as existed immediately prior to such
Casualty or Condemnation. In such event, title to the Property shall
remain with Lessor.
- In no event shall a Casualty or Condemnation with respect to which this
Lease remains in full force and effect under this Section 15.1 affect
Lessee's obligations to pay Rent pursuant to Section 3.1.
- Notwithstanding anything to the contrary set forth in Section 15.1(a) or
Section 15.1(e), if during the Term a Casualty occurs with respect to
the Property or Lessee receives notice of a Condemnation with respect to
the Property, and following such Casualty or Condemnation, the Property
cannot reasonably be restored on or before the date which is one hundred
eighty (180) days prior to the Maturity Date to substantially the same
condition as existed immediately prior to such Casualty or Condemnation
or before such day the Property is not in fact so restored, then Lessee
shall exercise its Purchase Option with respect to the Property on the
next Payment Date or irrevocably agree in writing to exercise the
Maturity Date Purchase Option with respect to the Property, and in
either such event such remaining Casualty or Condemnation proceeds shall
be paid to Lessor, which shall pay such funds to Lessee upon the closing
of the purchase of the Property on the Maturity Date.
- ENVIRONMENTAL MATTERS. Promptly upon Lessee's actual knowledge of the
presence of Hazardous Substances in any portion of the Property in
concentrations and conditions that constitute an Environmental
Violation, Lessee shall notify Lessor in writing of such condition. In
the event of such Environmental Violation, Lessee shall, not later than
thirty (30) days after Lessee has actual knowledge of such Environmental
Violation, either deliver to Lessor an Officer's Certificate and a
Termination Notice with respect to the Property pursuant to Section
16.1, if applicable, or, at Lessee's sole cost and expense,
16.
18
promptly and diligently undertake any response, clean up, remedial or
other action necessary to remove, cleanup or remediate the Environmental
Violation in accordance with the terms of Section 9.1. If Lessee does
not deliver a Termination Notice with respect to the Property pursuant
to Section 16.1, Lessee shall, upon completion of remedial action by
Lessee, cause to be prepared by an environmental consultant reasonably
acceptable to Lessor a report describing the Environmental Violation and
the actions taken by Lessee (or its agents) in response to such
Environmental Violation, and a statement by the consultant that the
Environmental Violation has been remedied in full compliance with
applicable Environmental Laws.
- NOTICE OF ENVIRONMENTAL MATTERS. Promptly, but in any event within five
(5) Business Days from the date Lessee has actual knowledge thereof,
Lessee shall provide to Lessor written notice of any material pending or
threatened claim, action or proceeding involving any Environmental Law
or any Release on or in connection with the Property. All such notices
shall describe in reasonable detail the nature of the claim, action or
proceeding and Lessee's proposed response thereto. In addition, Lessee
shall provide to Lessor, within five (5) Business Days after receipt,
copies of all written communications with any Governmental Authority
relating to any Environmental Violation in connection with the Property.
Lessee shall also promptly provide such detailed reports of any such
environmental claims as reasonably may be requested by Lessor.
-
- TERMINATION UPON CERTAIN EVENTS.
- If: (i) Lessor or Lessee shall have received notice of a Total
Condemnation; or (ii) Lessee or Lessor shall have received notice of a
Condemnation, and Lessee shall have delivered to Lessor an Officer's
Certificate that such Condemnation is a Significant Condemnation; or
(iii) a Casualty occurs, and Lessee shall have delivered to Lessor an
Officer's Certificate that such Casualty is a Significant Casualty; or
(iv) an Environmental Violation occurs or is discovered and Lessee shall
have delivered to Lessor an Officer's Certificate stating that, in the
reasonable, good-faith judgment of Lessee, the cost to remediate the
same will exceed $3,000,000; then Lessee shall, within thirty (30) days
after Lessee receives notice of a Total Condemnation pursuant to the
preceding clause (i), or simultaneously with the delivery of the
Officer's Certificate pursuant to the preceding clause (ii), (iii) or
(iv), deliver a notice of termination of this Lease to Lessor in the
form described in Section 16.2(a) (a "TERMINATION NOTICE").
- PROCEDURES.
- A Termination Notice shall contain: (i) notice of termination of this
Lease on a date not more than thirty (30) days after Lessor's receipt of
such Termination Notice (the "TERMINATION DATE"); (ii) a binding and
irrevocable agreement of Lessee to pay the Termination Value and
purchase the Property on such Termination Date; and (iii) the Officer's
Certificate described in Section 16.1.
17.
19
- On the Termination Date, Lessee shall pay to Lessor the Termination
Value for the Property, plus all amounts owing in respect of Rent for
such Property (including Supplemental Rent) theretofore accruing and
Lessor shall convey the Property to Lessee (or Lessee's designee) all in
accordance with Section 19.1.
-
- EVENTS OF DEFAULT. If any one or more of the following events (each an
"EVENT OF DEFAULT") shall occur:
- Lessee shall fail to make payment of (i) any Basic Rent within three (3)
days after the same has become due and payable, (ii) the Maximum
Residual Guarantee Amount, Purchase Option Price or Termination Value
after the same has become due and payable or (iii) any Supplemental Rent
other than as provided in clause (ii) within three (3) days after
receipt of notice thereof; or
- Lessee shall fail to maintain insurance as required by Article 14 of
this Lease; or
- Lessee shall fail to observe or perform any term, covenant or condition
of Lessee under this Lease, the Participation Agreement or any other
Operative Agreement to which it is a party (specifically including
without limitation, that affirmative covenant of Lessee set forth in
Section 9.3(f) of the Participation Agreement, but other than those set
forth in Section 17.1(a) or (b), hereof) which failure, if capable of
cure, continues for thirty (30) days after written notice thereof to
Lessee by Lessor (provided that, in the event such cure cannot be
reasonably completed within such 30-day period, then Lessee shall have
such additional time as shall be reasonably necessary, so long as Lessee
commences such cure within such 30-day period and diligently thereafter
prosecutes same to completion) or any representation or warranty by
Lessee set forth in this Lease or in any other Operative Agreement or in
any document entered into in connection herewith or therewith or in any
document, certificate or financial or other statement delivered in
connection herewith or therewith shall be false or inaccurate in any
material way when made or deemed made; or
- Lessee shall (i) admit in writing its inability to pay its debts
generally as they become due, (ii) file a petition under the United
States bankruptcy laws or any other applicable insolvency law or statute
of the United States of America or any State or Commonwealth thereof,
(iii) make a general assignment for the benefit of its creditors, (iv)
consent to the appointment of a receiver of itself or the whole or any
substantial part of its property, (v) fail to cause the discharge of any
custodian, trustee or receiver appointed for Lessee or the whole or a
substantial part of its property within sixty (60) days after such
appointment, or (vi) file a petition or answer seeking or consenting to
reorganization under the United States bankruptcy laws or any other
applicable insolvency law or statute of the United States of America or
any State or Commonwealth thereof; or
- insolvency proceedings or a petition under the United States bankruptcy
laws or any other applicable insolvency law or statute of the United
States of America or any State or Commonwealth thereof shall be filed
against Lessee and not dismissed within sixty (60)
18.
20
days from the date of its filing, or a court of competent jurisdiction
shall enter an order or decree appointing, without the consent of
Lessee, a receiver of Lessee or the whole or a substantial part of its
property, and such order or decree shall not be vacated or set aside
within sixty (60) days from the date of the entry thereof; or
- Lessee shall fail to (i) provide the Collateral in accordance with the
terms of the Operative Agreements, or (ii) replenish the Collateral as
required by the terms of the Operative Agreements; or
- there shall be entered against Lessee or any Subsidiary one or more
judgments or decrees in an aggregate amount at any one time outstanding
in excess of $10,000,000, and such judgments or decrees shall not have
been satisfied, vacated, discharged, or stayed or bonded pending appeal
within sixty (60) days from entry thereof; or
- with respect to any Plan (other than a Multiemployer Plan) as to which
Lessee or any ERISA Affiliate of Lessee may have any liability, there
shall exist, for a period of thirty (30) days, a deficiency which is
material to the consolidated financial condition of Lessee and its
Subsidiaries in the Plan assets available to satisfy the benefits
guaranteeable under ERISA with respect to such Plan, and (i) steps are
undertaken to terminate such Plan, (ii) such Plan is terminated, or
(iii) any Reportable Event which presents a material risk of termination
with respect to such Plan shall occur; or
- Lessee or any of its Subsidiaries (i) shall default in the payment
beyond any applicable grace period, whether at stated maturity or
otherwise, of principal, interest or rent in respect of Indebtedness in
excess of $10,000,000, including, without limitation, the Credit
Facility and the Subordinated Notes; or (ii) shall fail to perform or
observe any other condition or covenant, such that an event of default
shall occur or exist, under any agreement or instrument relating to any
such Indebtedness; or
- Any Operative Agreement shall cease to be in full force and effect or
Lessee or any Person acting by or on behalf of Lessee shall deny or
disaffirm its obligations thereunder or contest the validity of any
Operative Agreement or any Lien granted thereunder in any respect,
either directly or indirectly; or
- (i) any Person or two (2) or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of voting stock of Lessee (or other
securities convertible into such voting stock) representing greater than
fifty percent (50%) of the combined voting power of all voting stock of
Lessee; or (ii) the first day on which a majority of the members of the
board of directors of Lessee are not Continuing Directors. A "Continuing
Director" shall mean any director who is either (A) a member of such
board of directors on the Closing Date or (B) nominated or elected to
such board of directors with the approval of a majority of the
Continuing Directors who were members of such board at the time of such
nomination or election; or (iii) any Person or two (2) or more Persons
acting in concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation,
will result in its or their acquisition of, the power to exercise,
19.
21
directly or indirectly, a controlling influence over the management or
policies of Lessee, or control over voting stock of Lessee (or other
securities convertible into such securities) representing more than
fifty percent (50%) of the combined voting power of all voting stock of
Lessee;
then, in any such event, Lessor may, in addition to the other
rights and remedies provided for in this Article 17 and in Section 18.1,
terminate this Lease by giving Lessee three (3) Business Days' notice of such
termination, and this Lease shall terminate. Lessee shall, to the fullest extent
permitted by law, pay as Supplemental Rent all costs and expenses incurred by or
on behalf of Lessor, including fees and expenses of counsel, as a result of any
Event of Default hereunder. A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A
POWER OF SALE MAY ALLOW LESSOR TO TAKE THE PROPERTY AND SELL THE PROPERTY
WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE OF AN EVENT
OF DEFAULT.
- FINAL LIQUIDATED DAMAGES. If an Event of Default shall have occurred and
be continuing, Lessor shall have the right to recover, by demand to
Lessee and at Lessor's election, and Lessee shall pay to Lessor,
exclusive of the indemnities payable under Section 11 of the
Participation Agreement, and in lieu of all damages beyond the date of
such demand, the sum of (a) the Termination Value, plus (b) all other
amounts owing in respect of Rent and Supplemental Rent theretofore
accruing under this Lease. Upon payment of the amount specified pursuant
to the first sentence of this Section 17.2, Lessee shall be entitled to
receive from Lessor, at Lessee's request and cost, an assignment of
Lessor's right, title and interest in the Property, the Improvements,
the Fixtures and the Modifications, in each case in recordable form and
otherwise in conformity with local custom and free and clear of any
Lessor Liens. The Property shall be conveyed to Lessee (or Lessee's
designee) "AS IS" and in its then present physical condition. If any
statute or rule of law shall limit the amount of such final liquidated
damages to less than the amount agreed upon, Lessor shall be entitled to
the maximum amount allowable under such statute or rule of law; provided
that Lessee shall not be entitled to receive an assignment of Lessor's
interest in the Property, the Improvements, the Fixtures and the
Modifications unless Lessee shall have paid in full the Termination
Value of the Property and all such Rent and Supplemental Rent.
- LEASE REMEDIES. Lessor and Lessee intend that for commercial law and
bankruptcy law purposes, this Lease will be treated as a financing
arrangement, as set forth in Article 7. If, as a result of applicable
state law, which cannot be waived, this Lease is deemed to be a lease of
the Property, rather than a financing arrangement, and Lessor is unable
to enforce the remedies set forth in Section 17.2, the following
remedies shall be available to Lessor:
- SURRENDER OF POSSESSION. If an Event of Default shall have occurred and
be continuing, and whether or not this Lease shall have been terminated
pursuant to Section 17.1, Lessee shall, upon thirty (30) days' written
notice, surrender to Lessor possession of the Property and Lessee shall
quit the same. Lessor may enter upon and repossess the Property by such
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means as are available at law or in equity, and may remove Lessee and
all other Persons and any and all personal property and Lessee's
equipment and personality and severable Modifications from the Property.
Lessor shall have no liability by reason of any such entry, repossession
or removal performed in accordance with applicable law.
- RELETTING. If an Event of Default shall have occurred and be continuing,
and whether or not this Lease shall have been terminated pursuant to
Section 17.1, Lessor may, but shall be under no obligation to, relet
all, or any portion, of the Property, for the account of Lessee or
otherwise, for such term or terms (which may be greater or less than the
period which would otherwise have constituted the balance of the Term)
and on such conditions (which may include concessions or free rent) and
for such purposes as Lessor may reasonably determine, and Lessor may
collect, receive and retain the rents resulting from such reletting
which rents shall be applied against amounts owing by Lessee. Lessor
shall not be liable to Lessee for any failure to relet the Property or
for any failure to collect any rent due upon such reletting.
- DAMAGES. None of (i) the termination of this Lease pursuant to Section
17.1; (ii) the repossession of the Property; or (iii) except to the
extent required by applicable law, the failure of Lessor to relet all,
or any portion, of the Property, the reletting of all or any portion
thereof, nor the failure of Lessor to collect or receive any rentals due
upon any such reletting shall relieve Lessee of its liability and
obligations hereunder, all of which shall survive any such termination,
repossession or reletting. If any Event of Default shall have occurred
and be continuing and notwithstanding any termination of this Lease
pursuant to Section 17.1, Lessee shall forthwith pay to Lessor all Basic
Rent and other sums due and payable hereunder or under the Operative
Agreements to and including the date of such termination. Thereafter, on
the days on which the Basic Rent or Supplemental Rent, as applicable,
are payable under this Lease or would have been payable under this Lease
if the same had not been terminated pursuant to Section 17.1 and until
the end of the Term or what would have been the Term in the absence of
such termination, Lessee shall pay Lessor, as current liquidated damages
(it being agreed that it would be impossible accurately to determine
actual damages) an amount equal to the Basic Rent and Supplemental Rent
that are payable under this Lease or under the Operative Agreements or
would have been payable by Lessee hereunder or under the Operative
Agreements if this Lease had not been terminated pursuant to Section
17.1, less the net proceeds, if any, which are actually received by
Lessor with respect to the period in question of any reletting of the
Property or any portion thereof; provided that Lessee's obligation to
make payments of Basic Rent and Supplemental Rent under this Section
17.3(c) shall continue only so long as Lessor shall not have received
the amounts specified in Section 17.2 or Section 17.3(d). In calculating
the amount of such net proceeds from reletting, there shall be deducted
all of Lessor's and any Rent Purchaser's reasonable expenses in
connection therewith, including repossession costs, brokerage
commissions, fees and expenses for counsel and any necessary repair or
alteration costs and expenses reasonably incurred in preparation for
such reletting. To the extent Lessor receives any damages pursuant to
this Section 17.3(c), such amounts shall be regarded as amounts paid on
account of Rent.
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- ACCELERATION OF RENT. If an Event of Default shall have occurred and be
continuing, and this Lease shall not have been terminated pursuant to
Section 17.1, and whether or not Lessor shall have collected any current
liquidated damages pursuant to Section 17.3(c), Lessor may upon written
notice to Lessee accelerate all payments of Basic Rent due hereunder
and, upon such acceleration, Lessee shall immediately pay Lessor, as and
for final liquidated damages and in lieu of all current liquidated
damages on account of such Event of Default beyond the date of such
acceleration (it being agreed that it would be impossible accurately to
determine actual damages) an amount equal to the sum of (i) all Basic
Rent (assuming interest at a rate per annum equal to the Overdue Rate
and including any charges for funding losses), as applicable, due from
the date of such acceleration until the end of the Term, plus (ii) the
Maximum Residual Guarantee Amount that would be payable under Section
21.1(c) assuming the proceeds of the sale pursuant to such Section
21.1(c) are equal to zero, which sum is then discounted to present value
at a rate equal to the rate then being paid on United States treasury
securities with maturities corresponding to the then remaining Term.
Following payment of such amount by Lessee, Lessee will be permitted to
stay in possession of the Property for the remainder of the Term,
subject to the terms and conditions of this Lease, including the
obligation to pay Supplemental Rent, provided that no further Event of
Default shall occur and be continuing, following which Lessor shall have
all the rights and remedies set forth in this Article 17 (but not
including those set forth in this Section 17.3). If any statute or rule
of law shall limit the amount of such final liquidated damages to less
than the amount agreed upon, Lessor shall be entitled to the maximum
amount allowable under such statute or rule of law.
- SUBLETTING OF THE PROPERTY. In addition to the other rights and remedies
set forth herein, Lessor shall have the right to continue this Lease in
effect and, to enforce, by suit or otherwise, all covenants and
conditions hereof to be performed or complied with by Lessee and
exercise all of Lessor's rights and remedies under this Lease,
including, without limitation, the right to recover Basic Rent and
Supplemental Rent from Lessee as it becomes due under this Lease, even
though Lessee shall have breached this Lease and abandoned the Property.
Acts of maintenance or preservation, or efforts by Lessor or on Lessor's
behalf to relet the Property, or the appointment of a receiver upon the
initiative of Lessor to protect Lessor's interest under this Lease shall
not constitute a termination of Lessee's right to possession of the
Property; provided, however, that the foregoing enumeration shall not be
construed as in any way limiting the actions Lessor may take without
terminating Lessee's right to possession. In furtherance of the rights
hereby granted to Lessor, and to the extent, permitted by law, Lessee
hereby appoints Lessor its agent and attorney-in-fact, which appointment
shall be deemed to be coupled with an interest and is irrevocable, with
power of substitution, to enter the Property upon an Event of Default
hereunder and remove therefrom all persons and property (with the right
to store such property on the Property in a public warehouse or
elsewhere at the cost and risk and for the account of Lessee) and to
alter the Property in such manner as Lessor may deem necessary or
advisable so as to put the Property in good order and to make the same
rentable and from time to time sublet the Property or any part thereof
for such term or terms whether or not extending beyond the then current
term of this Lease (but such sublease may provide for a new and
successive lease to commence immediately upon the
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termination of this Lease), at such rentals and upon such other terms as
Lessor in its sole discretion may deem advisable, and with the right to
make alterations and repairs to the Property; and Lessee agrees to pay
to Lessor on demand all reasonable expenses incurred by Lessor in such
subletting, and in altering, repairing and putting the Property in good
order and condition, and in reletting the same, including fees of
attorneys and architects, and all other reasonable expenses or
commissions. Lessor shall be Lessee's agent and representative on the
Property in respect of all matters arising under or in connection with
any such sublease made for Lessee by Lessor. Under each such sublease,
Lessee shall retain the right to enter upon and use the Property,
subject to the terms and conditions of such sublease and the rights of
the sublessee thereunder. Lessee further agrees to pay to Lessor,
following the date of such subletting, to and including the date
provided in this Lease for the expiration of the Lease Term, the sums of
money which would have been payable by Lessee as Basic Rent and
Supplemental Rent, deducting only the net amount of rent, if any, which
Lessor shall actually receive (after deducting from the gross receipts
the expenses, costs and payments of Lessor which in accordance with the
terms of this Lease would have been borne by Lessee) in the meantime
from and by any such subletting of the Property, and Lessee hereby
agrees to remain liable for all sums otherwise payable by Lessee under
this Lease, including, but not limited to, the expenses of Lessor
aforesaid, as well as for any deficiency aforesaid. Lessor shall have
the right from time to time to begin and maintain successive actions or
other legal proceedings against Lessee for the recovery of such
deficiency, expenses or damages or for a sum equal to any installments
of Basic Rent or Supplemental Rent and other sums payable hereunder, and
to recover the same upon the liability of Lessee herein provided, which
liability it is expressly covenanted shall survive the commencement or
determination of any action to secure possession of the Property.
Nothing herein contained shall be deemed to require Lessor to wait to
begin such action or other legal proceedings until the date when this
Lease would have expired by limitation had there been no such Event of
Default. Notwithstanding any such subletting without termination,
pursuant to the terms hereof, Lessor shall retain the right to and may
at any time thereafter elect to terminate this Lease or Lessee's right
to possession of the Property for any previous breach which remains
uncured or for any subsequent breach by giving Lessee written notice
thereof as herein provided, and in such event Lessee shall forfeit any
rights or interest under any such sublease and thereafter the
obligations of any such sublessee shall run directly to Lessor for its
own account. Upon application by Lessor, a receiver may be appointed to
take possession of the Property, exercise all rights granted to Lessor
as agent and attorney-in-fact for Lessee set forth in this Section
17.3(e) and apply any rentals collected from the Property as hereinabove
provided. No taking of possession of the Property or other act by Lessor
as the agent and attorney-in-fact for Lessee pursuant to the foregoing
provisions, nor any subletting by Lessor for Lessee pursuant to the
foregoing provisions, nor any such appointment of a receiver shall
constitute or be construed as an election by Lessor to terminate this
Lease or Lessee's right to possession of the Property unless a written
notice of such intention be given to Lessee.
- REPOSSESSION AND RECOVERABLE AMOUNTS. In the event of any termination of
the Term pursuant to Section 17.1 or as permitted by law, Lessee shall
quit and surrender the Property to Lessor, and Lessor may without
further notice enter upon, reenter, possess and repossess the same by
summary proceedings, ejectment or otherwise, and again have,
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repossess and enjoy the same as if this Lease had not been made, and in
any such event neither Lessee nor any Person claiming through or under
Lessee by virtue of any law or an order of any court shall be entitled
to possession or to remain in possession of the Property but shall
forthwith quit and surrender the Property, and Lessor shall,
notwithstanding any other provision of this Lease, be entitled to
recover from Lessee the aggregate of all amounts Lessor is permitted to
recover from Lessee, including:
- the worth at the time of award, as computed below, of the unpaid
rent (including, without limitation, Basic Rent and Supplemental
Rent) which had been earned at the time of termination of this
Lease;
- the worth at the time of award of the amount by which the unpaid
rent (including, without limitation, Basic Rent and Supplemental
Rent) which would have been earned after the time of termination
of this Lease until the time of award exceeds the amount of such
rental loss that Lessee proves could have been reasonably
avoided;
- the worth at the time of award of the amount by which the unpaid
rent (including, without limitation, Basic Rent and Supplemental
Rent) for the balance of the Term after the time of award exceeds
the amount of such rental loss for said balance of the Term that
Lessee proves could be reasonably avoided; and
- any other amount necessary to compensate Lessor for all the
detriment proximately caused by Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom; including without
limitation any loss or damage arising out of the failure of
Lessor to receive the benefit of the performance by Lessee of any
obligation to purchase the Property under the provisions of this
Lease. Lessee acknowledges and agrees that, in reliance upon this
Lease and Lessee's covenants and agreements hereunder and the
creditworthiness and financial condition of Lessee, Lessor has
entered into certain special transactions to finance the costs of
acquiring the Land and the Improvements and, in connection with
such financing transactions, Lessor has incurred and will
continue to incur indebtedness and liabilities under and pursuant
to the Participation Agreement and the other Operative
Agreements. Lessee acknowledges and agrees that an Event of
Default will cause Lessor substantial damage and detriment due to
its obligations and liabilities under the Participation Agreement
and the other Operative Agreements, including, without
limitation, the failure of Lessor to be fully compensated for the
Advances made to Lessee. Accordingly, in order to compensate
Lessor for all detriment proximately caused by Lessee's failure
to perform its obligations under this Lease, Lessor shall be
permitted to recover from Lessee, without limitation, all amounts
necessary for Lessor to be fully compensated for all of the
Advances made to Lessee.
The "worth at the time of award," of the amounts referred to in
the foregoing subsections 17.3(f) (i) and (ii) shall be computed by allowing
interest at the Overdue Rate (or at the highest rate permitted by applicable
law, whichever is less) on
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each rental installment from the date the same was due hereunder to the time of
award. The "worth at the time of award" of the amount referred to in the
foregoing subsection (iii) shall be computed by discounting such amount at the
discount rate of the Federal Reserve Bank of New York at the time of the award
plus one percent (1%). As used herein, the term "time of award" shall mean
either (A) the date upon which Lessee pays to Lessor the amount recoverable by
Lessor as hereinabove set forth or (B) the date of entry of any determination,
order or judgment of any court, other legally constituted body, or any
arbitrator(s), determining the amount recoverable, whichever first occurs. If
the time of award is determined under clause (B), above, then the amount
recoverable by Lessor hereunder shall bear interest from the time of award until
paid at the Overdue Rate (or at the highest rate permitted by applicable law,
whichever is less). Nothing herein contained shall limit or prejudice the right
of Lessor, and Lessor is hereby expressly granted the right, in any bankruptcy
or reorganization or insolvency proceedings, to prove for and obtain as damages
by reason of such termination, an amount equal to the maximum allowed by any
statute or rule of law whether such amount shall be greater or less than the
amounts referred to above.
- WAIVER OF CERTAIN RIGHTS. If this Lease shall be terminated pursuant to
Section 17.1, Lessee waives, to the fullest extent permitted by law, (a)
any notice of re-entry or the institution of legal proceedings to obtain
re-entry or possession; (b) any right of redemption, re-entry or
repossession; (c) the benefit of any laws now or hereafter in force
exempting property from liability for rent or for debt; and (d) any
other rights which might otherwise limit or modify any of Lessor's
rights or remedies under this Article 17.
- ASSIGNMENT OF RIGHTS UNDER CONTRACTS. If an Event of Default shall have
occurred and be continuing, and whether or not this Lease shall have
been terminated pursuant to Section 17.1, Lessee shall upon Lessor's
demand immediately assign, transfer and set over to Lessor all of
Lessee's right, title and interest in and to each agreement executed by
Lessee in connection with the construction, renovation, development, use
or operation of the Property (including, without limitation, all right,
title and interest of Lessee with respect to all warranty, performance,
service and indemnity provisions), as and to the extent that the same
relate to the construction, renovation, and operation of the Property.
- POWER OF SALE AND FORECLOSURE. Except as expressly provided in this
Lease, for purposes of this Section 17.6, presentment, demand, protest
and all other notices of any kind are hereby expressly waived. In
addition (subject to Article 21 below), upon the occurrence of any Event
of Default, Lessor, as beneficiary, may immediately take such action,
without notice or demand, as it deems advisable to protect and enforce
its rights against Lessee, as trustor, in and to the Trust Property,
including the following actions, at such time and in such manner as
Lessor may determine, in its sole discretion, without impairing or
otherwise affecting the other rights and remedies of Lessor:
- Either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court and without regard to
the adequacy of its security, enter upon and take possession of the
Trust Property or any part thereof, with or without legal
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action, and do any acts which it deems necessary or desirable to
preserve the value, marketability or rentability of the Trust Property,
or any part thereof (including entering into new leases of all or any
part of the Trust Property) and, with or without taking possession of
the Trust Property, xxx for or otherwise collect the rents, issues and
profits thereof, including those past due and unpaid, and apply the
same, less costs and expenses of operation and collection including
reasonable attorneys' fees, to the payment of all of Lessee's
obligations hereunder (including, without limitation, the payment of
Basic Rent, Supplemental Rent and the Termination Value or Purchase
Option Price) (collectively, the "Lease Payment Obligations"), all in
such order as Lessor may determine. The entering upon and taking
possession of the Trust Property, the collection of such rents, issues
and profits and the application thereof as aforesaid, shall not cure or
waive any default or notice of default hereunder or invalidate any act
done in response to such default or pursuant to such notice of default
and, notwithstanding the continuance in possession of the Trust Property
or the collection, receipt and application of rents, issues or profits,
Lessor shall be entitled to exercise every right provided for herein and
the other Operative Documents or by law.
Bring an action in any court of competent jurisdiction to foreclose
on the Trust Property, to appoint a receiver or to enforce any of
the covenants, terms or conditions hereof and Lessor shall have the
right to specific performance, injunction and any other equitable
right or remedy as though other remedies were not provided in this
Lease.
Elect to cause the Trust Property or any part thereof to be sold as
follows, Lessee hereby expressly waiving any right which it may have
to direct the order in which any of the Trust Property may be sold:
(i) Lessor may proceed as if all of the Trust Property were real
property, in accordance with subparagraph (ii) below, or Lessor may
elect to treat any of the Trust Property which consists of personal
property, in accordance with the Section of this Lease entitled
"Security Agreement and Fixture Filing," separate and apart from the
sale of the Land, the remainder of the Trust Property being treated as
real property;
(ii) Lessor may cause any such sale or other disposition to be
conducted immediately following the expiration of any grace period, if
any, herein provided or Lessor may delay any such sale or other
disposition for such period of time as Lessor deems to be in its best
interest. Should Lessor desire that more than one such sale or other
disposition be conducted, Lessor may, at its option, cause the same to
be conducted simultaneously, or successively on the same day, or at such
different days or times and in such order as Lessor may deem to be in
its best interest;
(iii) Should Lessor elect to sell the Trust Property and Lessor
elects to proceed under the laws governing foreclosure of or sales
pursuant to deeds of trust, Lessor (or any trustee designated by Lessor)
shall give such notice of default
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and election to sell as may then be required by law. Thereafter, upon
the expiration of such time and the giving of such notice of sale as may
then be required by law, Lessor (or any trustee designated by Lessor),
at the time and place specified by the notice of sale, shall sell such
Trust Property, or any portion thereof specified by Lessor, at public
auction to the highest bidder for cash in lawful money of the United
States. Lessor may postpone, from time to time, the sale by public
announcement thereof at the time and place noticed therefor. If the
Trust Property consists of several lots or parcels, Lessor may elect to
sell the Trust Property either as a whole or in separate lots or
parcels. If Lessor elects to sell in separate lots or parcels, Lessor
may designate the order in which such lots or parcels shall be offered
for sale or sold. Any person, including Lessee or Lessor, may purchase
at the sale. Upon any sale, Lessor shall execute and deliver to the
purchaser or purchasers a deed or deeds conveying the property so sold,
but without any covenant or warranty whatsoever, express or implied,
whereupon such purchaser or purchasers shall be let into immediate
possession;
(iv) In the event of a sale or other disposition of any such
property, or any part thereof, and the execution of a deed or other
conveyance pursuant thereto, the recitals therein of facts, such as an
Event of Default, the giving of notice of default and notice of sale,
demand that such sale should be made, postponement of sale, terms of
sale, sale, purchase, payments of purchase money, and any other fact
affecting the regularity or validity of such sale or disposition shall
be conclusive proof of the truth of such facts; and any such deed or
conveyance shall be conclusive against all persons as to such facts
recited therein; and
(v) After deducting all costs, fees and expenses of Lessor,
including all costs of evidence of title and attorneys' fees in
connection with sale, Lessor shall apply the proceeds of sale to payment
of all sums so expended under the terms hereof not then repaid; the
payment of all other sums then secured hereby; and the remainder, if
any, to the Person or Persons legally entitled thereto;
- Exercise all other rights and remedies provided herein, in the other
Operative Documents or otherwise available at law or equity.
- With or without notice, and without releasing Lessee from any obligation
hereunder, to cure any default of Lessee and, in connection therewith,
to enter upon the Property and to perform such acts and things as Lessor
deems necessary or desirable to inspect, investigate, assess and protect
the Property, including, without limitation of any of its other rights:
to obtain a court order to enforce Lessor's right to enter and inspect
the Property pursuant to California Civil Code Section 2929.5, to which
the decision of Lessor as to whether there exists a release or
threatened release of a Hazardous Substance onto the Property shall be
deemed reasonable and conclusive as between the parties hereto; to have
a receiver appointed pursuant to California Code of Civil Procedure
Section 564 to enforce Lessor's right to enter and inspect the Property
for Hazardous Substances; to appear in and defend any action or
proceeding purporting to affect the
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Property or the rights or powers of Lessor hereunder; to pay, purchase,
contest or compromise any encumbrance, charge, lien or claim of lien
which, in the judgment of Lessor, is prior or superior hereto, the
judgment of Lessor being conclusive as between the parties hereto; to
pay any premiums or charges with respect to insurance required to be
carried hereunder; and to employ counsel, accountants, contractors and
other appropriate persons to assist Lessor;
- To commence and maintain an action or actions in any court of competent
jurisdiction pursuant to California Code of Civil Procedure Section 736,
whether commenced prior to foreclosure of the Property or after
foreclosure of the Property, and to seek the recovery of any and all
costs, damages, expenses, fees, penalties, fines, judgments,
indemnification payments to third parties, and other out-of-pocket costs
or expenses actually incurred by Lessor (collectively, the
"ENVIRONMENTAL COSTS") incurred or advanced by Lessor relating to the
cleanup, remediation or other response action required by Legal
Requirements or which Lessor believes necessary to protect its interest
in the Property, it being conclusively presumed between Lessor and
Lessee that all such Environmental Costs incurred or advanced by Lessor
relating to the cleanup, remediation or other response action of or to
the Property were made by Lessor in good faith. All Environmental Costs
incurred by Lessor pursuant to this Section 17.6(g) (including, without
limitation, court costs, consultants' fees and attorneys' fees, whether
incurred in litigation or not and whether before or after judgment)
shall bear interest at the Overdue Rate from the date of expenditure
until said sums have been paid. Lessor shall be entitled to bid, at the
sale of the Property held pursuant to Section 17.6(c) above, the amount
of said costs, expenses and interest in addition to the amount of the
other Lease Payment Obligations hereby secured as a credit bid, the
equivalent of cash. For the purposes of any action brought under this
Section 17.6(f), Lessee hereby waives the defense of laches and any
applicable statute of limitations; and
- To waive its lien against the Property or any portion thereof, whether
fixtures or personal property, to the extent such property is found to
be environmentally impaired in accordance with California Code of Civil
Procedure Section 726.5 and to exercise any and all rights and remedies
of an unsecured creditor against Lessee and all of Lessee's assets and
property for the recovery of any deficiency and Environmental Costs,
including, but not limited to, seeking an attachment order pursuant to
California Code of Civil Procedure Section 483.010. As between Lessor
and Lessee, for purposes of California Code of Civil Procedure Section
726.5, Lessee shall have the burden of proving that Lessee or any
related party (or any affiliate or agent of Lessee or any related party)
was not in any way negligent in permitting the release or threatened
release of the Hazardous Substance. For the purposes of any action
brought under this paragraph, Lessee hereby waives the defense of laches
and any applicable statute of limitations.
- All costs and expenses incurred by Lessor pursuant to this Section 17.6
(including without limitation court costs, consultants' fees and
attorneys' fees, whether incurred in litigation or not and whether
before or after judgment) shall bear interest at the Overdue Rate, from
the date of expenditure until said sums have been paid. Lessor shall be
entitled to bid, at the sale of the Property held pursuant to subsection
17.4(c) above, the amount of said costs, expenses and interest in
addition to the amount of the other Lease
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Payment Obligations hereby secured as a credit bid, which shall be
deemed the equivalent of cash.
- In no event shall Lessor (or any trustee designation by Lessor), in the
exercise of the remedies provided in this Section 17.6 (including,
without limitation, in connection with the appointment of a receiver and
the entry of such receiver on to all or any part of the Trust Property),
be deemed a "mortgagee in possession," and Lessor shall not in any way
be made liable for any act, either of commission or omission, in
connection with the exercise of such remedies.
- Lessee hereby waives any right to require that any security given
hereunder or under any other agreement securing the Lease Payment
Obligations be marshaled and further waives any right otherwise
available in respect to marshalling of assets which secure any Lease
Payment Obligation or to require Lessor to pursue its remedies against
any such assets.
- SECURITY AGREEMENT AND FIXTURE FILING.
- It is the intention of the parties hereto that this Lease shall
constitute a Security Agreement within the meaning of the Uniform
Commercial Code (the "UCC") of the State of California. If an Event of
Default shall occur under this Lease, then in addition to having any
other right or remedy available at law or in equity, Lessor shall have
the option of either (i) proceeding under the UCC and exercising such
rights and remedies as may be provided to a secured party by the UCC
with respect to all or any portion of the Trust Property which is
personal property (including, without limitation, taking possession of
and selling such property) or (ii) treating such property as real
property and proceeding with respect to both the real and personal
property constituting the Trust Property in accordance with Lessor's
rights, powers and remedies with respect to the real property (in which
event the default provisions of the UCC shall not apply). If Lessor
shall elect to proceed under the UCC, then ten (10) business days notice
of sale of the personal property shall be deemed reasonable notice and
the reasonable expenses of retaking, holding, preparing for sale,
selling and the like incurred by Lessor shall include, but not be
limited to, attorneys' fees and legal expenses. At Lessor's request,
Lessee shall assemble the personal property and make it available to
Lessor at a place designated by Lessor which is reasonably convenient to
both parties.
- Lessee and Lessor agree, to the extent permitted by law, that this Lease
(or a memorandum thereof) upon recording or registration in the real
estate records of the proper office shall constitute a financing
statement filed as a "fixture filing" within the meaning of Sections
9313 and 9402 of the UCC.
- Lessee, upon request by Lessor from time to time, shall execute,
acknowledge and deliver to Lessor one or more separate security
agreements, in form reasonably satisfactory to Lessor, covering all or
any part of the Trust Property and will further execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, any
financing statement, affidavit, continuation statement or certificate or
other document as Lessor may reasonably request in order to perfect,
preserve, maintain, continue or extend
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the security interest under and the priority of this Lease and such
security instrument. Lessee further agrees to pay to Lessor on demand
all reasonable costs and expenses incurred by Lessor in connection with
the preparation, execution, recording, filing and re-filing of any such
document and all reasonable costs and expenses of any record searches
for financing statements Lessor shall reasonably require. Lessee shall
from time to time, on request of Lessor, deliver to Lessor an inventory
in reasonable detail of any of the Trust Property which constitutes
personal property. If Lessee shall fail to furnish any financing or
continuation statement within ten (10) days after request by Lessor,
then pursuant to the provisions of the UCC, Lessee hereby authorizes
Lessor, without the signature of Lessee, to execute and file any such
financing and continuation statements. The filing of any financing or
continuation statements in the records relating to personal property or
chattels shall not be construed as in any way impairing the right of
Lessor to proceed against any personal property encumbered by this Lease
as real property, as set forth above.
- REMEDIES CUMULATIVE. The remedies herein provided shall be cumulative
and in addition to (and not in limitation of) any other remedies
available at law, equity or otherwise.
- LESSEE'S RIGHT TO CURE. Notwithstanding any provision contained in this
Lease or any other Operative Agreement, if an Event of Default has
occurred and is continuing, Lessee shall have the right to cure such
Event of Default by exercising its Purchase Option at any time prior to
such time as a foreclosure upon or sale of the Property has been
completed.
-
- LESSOR'S RIGHT TO CURE LESSEE'S DEFAULTS. Lessor, without waiving or
releasing any obligation or Event of Default, may (but shall be under no
obligation to) remedy any Event of Default for the account and at the
sole cost and expense of Lessee, including the failure by Lessee to
maintain any insurance required by Article 14, and may, to the fullest
extent permitted by law, and notwithstanding any right of quiet
enjoyment in favor of Lessee, enter upon the Property for such purpose
and take all such action thereon as may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of Lessee. All
out-of-pocket costs and expenses so incurred (including the fees and
expenses of counsel), together with interest thereon at the Overdue Rate
from the date on which such sums or expenses are paid by Lessor, shall
be paid by Lessee to Lessor on demand as Supplemental Rent.
-
- PROVISIONS RELATING TO LESSEE'S TERMINATION OF THIS LEASE OR EXERCISE OF
PURCHASE OPTIONS. In connection with any termination of this Lease with
respect to the Property pursuant to the terms of Section 16.2 or Article
17, or in connection with Lessee's exercise of its Purchase Option or
Maturity Date Purchase Option, upon the date on which this Lease is to
terminate with respect to the Property or upon the Expiration Date with
respect to the Property, and upon tender by Lessee of the amounts set
forth in Section 16.2(b), 17.2, 20.1 or 20.2, as applicable:
30.
32
- Lessor shall execute and deliver to Lessee (or to Lessee's designee) at
Lessee's cost and expense an assignment of Lessor's entire interest in
the Property, in each case in recordable form and otherwise in
conformity with local custom and free and clear of the Lien of this
Lease and any Lessor Liens; and
- The Property shall be conveyed to Lessee "AS IS" and in its then present
physical condition.
-
- PURCHASE OPTION. Subject to Section 17.8, Lessee shall have the option
on any Payment Date (exercisable by giving Lessor irrevocable written
notice (the "PURCHASE NOTICE") of Lessee's election to exercise such
option not less than thirty (30) days prior to the date of purchase
pursuant to such option) to purchase the Property on the date specified
in such Purchase Notice at a price equal to the Termination Value plus
all Basic Rent and Supplemental Rent due and owing on such date of
purchase (the "PURCHASE OPTION PRICE") (which the parties do not intend
to be a "bargain" purchase price) of the Property. If Lessee exercises
its option to purchase the Property pursuant to this Section 20.1 (the
"PURCHASE OPTION"), Lessor shall transfer to Lessee or Lessee's designee
all of Lessor's right, title and interest in and to the Property as of
the date specified in the Purchase Notice upon receipt of the Purchase
Option Price and all Rent and other amounts then due and payable under
this Lease and any other Operative Agreement, in accordance with Section
19.1.
- MATURITY DATE PURCHASE OPTION. Not less than one hundred eighty (180)
days prior to the Maturity Date, Lessee may give Lessor and Agent
irrevocable written notice (the "MATURITY DATE ELECTION NOTICE") that
Lessee is electing to exercise the Maturity Date Purchase Option or its
option to remarket the Property pursuant to Section 21.1. If Lessee does
not give a Maturity Date Election Notice on or before the date one
hundred eighty (180) days prior to the Maturity Date, then Lessee shall
be deemed to have exercised its Maturity Date Purchase Option. If Lessee
has elected, or is deemed to have elected, to exercise the Maturity Date
Purchase Option, then on the Maturity Date Lessee shall pay to Lessor an
amount equal to the Termination Value plus all Basic Rent and
Supplemental Rent due and owing on such date of purchase for the
Property (which the parties do not intend to be a "bargain" purchase
price) and, upon receipt of such amount plus all Rent and other amounts
then due and payable under this Lease and any other Operative Agreement,
Lessor shall transfer to Lessee or Lessee's designee all of Lessor's
right, title and interest in and to the Property in accordance with
Section 19.1.
- EXTENSION OF EXPIRATION DATE. Lessee may extend the Expiration Date and
the Maturity Date subject to, and in accordance with, the terms and
conditions of Section 16 of the Participation Agreement.
31.
33
-
- SALE PROCEDURE.
- Provided that no Default or Event of Default shall have occurred and be
continuing, at the expiration of the Term, unless Lessee shall have (i)
elected to extend the Expiration Date, (ii) elected (or be deemed to
have elected) to purchase the Property and paid the Purchase Option
Price with respect thereto, or (iii) otherwise terminated this Lease
with respect thereto and paid the Termination Value with respect
thereto, Lessee may elect to terminate this Lease and remarket the
Property as provided in Section 20.2, in which event Lessee shall (i)
pay to Lessor the Maximum Residual Guarantee Amount for the Property,
and (ii) sell the Property to one or more third parties for cash in
accordance with Section 21.1(b). In the event that Lessee elects to
terminate the Lease and remarket the Property, Lessee hereby covenants
and agrees that, to the extent the Property is not in compliance with
all Legal Requirements, or would not be in such compliance upon its sale
to a third party, and the cost to put the Property into such compliance
is in excess of $200,000, Lessee shall pay such excess to Lessor
immediately upon demand.
- During the Marketing Period, Lessee, as nonexclusive broker for Lessor,
shall use its best efforts to obtain bids for the cash purchase of the
Property for the highest price available in the relevant market, shall
notify Lessor promptly of the name and address of each prospective
purchaser and the cash price which each prospective purchaser shall have
offered to pay for the Property and shall provide Lessor with such
additional information about the bids and the bid solicitation procedure
as Lessor may request from time to time. Lessor may reject any and all
bids and may assume sole responsibility for obtaining bids by giving
Lessee written notice to that effect; provided, however, that
notwithstanding the foregoing, Lessor may not reject a bid if such bid
is greater than or equal to the sum of the Limited Recourse Amount and
all costs and expenses of sale and is a bona fide offer by a third party
purchaser who is not an Affiliate of Lessee. If the price which a
prospective purchaser shall have offered to pay for all or any of the
Property is less than the sum of the Limited Recourse Amount and all
costs and expenses of sale, Lessor may elect to retain the Property by
giving Lessee at least two (2) Business Days' prior written notice of
Lessor's election to retain the Property, and upon receipt of such
notice, Lessee shall surrender the Property to Lessor pursuant to
Section 10.1(c). Unless Lessor shall have elected to retain the Property
pursuant to the preceding sentence, Lessor shall sell the Property free
of any Lessor Liens attributable to it, without recourse or warranty,
for cash to the purchaser or purchasers identified by Lessee or Lessor,
as the case may be, and Lessee shall surrender the Property to such
purchaser in the condition specified in Section 10.1.
- On the date during the Marketing Period on which the Property is sold
pursuant to Section 21.1(b), or on the Maturity Date if the Property
remains unsold, Lessee shall pay to Lessor the Maximum Residual
Guarantee Amount for the Property.
- APPLICATION OF PROCEEDS OF SALE. Lessor shall apply the proceeds of sale
of the Property pursuant to the provisions of Section 12.4 of the
Participation Agreement; provided, however, upon any sale of the
Property pursuant to this Article 21, the Lessor shall obtain
32.
34
an appraisal which shall allocate the proceeds of such sale between the
Land and the Improvements thereon. To the extent such appraisal
indicates that the respective proceeds received with respect to Land and
Improvements exceeds, after giving effect to the payment required under
Section 21.1(c) hereof, the remaining Land Investment Balance and
Improvements Investment Balance, respectively, such excess shall be
promptly returned to Lessee. In no event shall any excess proceeds
received with respect to the Land be applied to any deficiency with
respect to the Improvements Investment Balance, nor shall any excess
proceeds received with respect to the Improvements be applied to any
deficiency with respect to the Land Investment Balance.
- INDEMNITY FOR EXCESSIVE WEAR. If the proceeds of the sale described in
Section 21.1(b) with respect to the Property, less all expenses incurred
by Lessor in connection with such sale, shall be less than the Limited
Recourse Amount for the Property at the time of such sale and if it
shall have been determined (pursuant to the Appraisal Procedure) that
the Fair Market Sales Value of the Property shall have been impaired by
greater than expected wear and tear during the Term, Lessee shall pay to
Lessor within ten (10) days after receipt of Lessor's written statement
(a) the amount of such excess wear and tear determined by the Appraisal
Procedure or (b) the amount of the Net Sale Proceeds Shortfall,
whichever amount is less.
- APPRAISAL PROCEDURE. For determining the Fair Market Sales Value of the
Property or any other amount which may, pursuant to any provision of any
Operative Agreement, be determined by an appraisal procedure, Lessor and
Lessee shall use the following procedure (the "APPRAISAL PROCEDURE").
Lessor and Lessee shall endeavor to reach a mutual agreement as to such
amount for a period of ten (10) days from commencement of the Appraisal
Procedure, and if they cannot agree within ten (10) days, then two
qualified appraisers, one chosen by Lessee and one chosen by Lessor,
shall mutually agree thereupon, but if either party shall fail to choose
an appraiser within twenty (20) days after notice from the other party
of the selection of its appraiser, then the appraisal by such appointed
appraiser shall be binding on Lessee and Lessor. If the two appraisers
cannot agree within twenty (20) days after both shall have been
appointed, then a third appraiser shall be selected by the two
appraisers or, failing agreement as to such third appraiser within
thirty (30) days after both shall have been appointed, by the American
Arbitration Association. The decisions of the three appraisers shall be
given within twenty (20) days of the appointment of the third appraiser
and the decision of the appraiser most different from the average of the
other two shall be discarded and such average shall be binding on Lessor
and Lessee; provided that if the highest appraisal and the lowest
appraisal are equidistant from the third appraisal, the third appraisal
shall be binding on Lessor and Lessee. The fees and expenses of all of
the appraisers shall be paid by Lessee.
- CERTAIN OBLIGATIONS CONTINUE. During the Marketing Period, the
obligation of Lessee to pay Rent with respect to the Property (including
the installment of Basic Rent due on the Maturity Date) shall continue
undiminished until payment in full to Lessor of the sale proceeds, the
Maximum Residual Guarantee Amount, if any, the amount due under Section
21.3, if any, and all other amounts due to Lessor with respect to the
Property. Lessor shall have the right, but shall be under no duty, to
solicit bids, to inquire into the
33.
35
efforts of Lessee to obtain bids or otherwise to take action in
connection with any such sale, other than as expressly provided in this
Article 21.
-
- HOLDING OVER. If Lessee shall for any reason remain in possession of the
Property after the expiration or earlier termination of this Lease
(unless the Property is conveyed to Lessee), such possession shall be as
a tenancy at sufferance during which time Lessee shall continue to pay
Supplemental Rent that would be payable by Lessee hereunder were the
Lease then in full force and effect with respect to the Property and
Lessee shall continue to pay Basic Rent at an annual rate equal to the
rate payable hereunder immediately preceding such expiration or earlier
termination; provided, however, that from and after the sixtieth (60th)
day Lessee shall remain in possession of the Property after such
expiration or earlier termination, Lessee shall pay Basic Rent at an
annual rate equal to two hundred percent (200%) of the Basic Rent
payable hereunder immediately preceding such expiration or earlier
termination. Such Basic Rent shall be payable from time to time upon
demand by Lessor. During any period of tenancy at sufferance, Lessee
shall, subject to the second preceding sentence, be obligated to perform
and observe all of the terms, covenants and conditions of this Lease,
but shall have no rights hereunder other than the right, to the extent
given by law to tenants at sufferance, to continue its occupancy and use
of the Property. Nothing contained in this Article 22 shall constitute
the consent, express or implied, of Lessor to the holding over of Lessee
after the expiration or earlier termination of this Lease as to the
Property and nothing contained herein shall be read or construed as
preventing Lessor from maintaining a suit for possession of the Property
or exercising any other remedy available to Lessor at law or in equity.
-
- RISK OF LOSS. The risk of loss of or decrease in the enjoyment and
beneficial use of the Property as a result of the damage or destruction
thereof by fire, the elements, casualties, thefts, riots, wars or
otherwise is assumed by Lessee, and Lessor shall in no event be
answerable or accountable therefor.
-
- SUBLETTING AND ASSIGNMENT. Lessee may not assign this Lease or any of
its rights or obligations hereunder in whole or in part. Lessee may,
without the consent of Lessor, sublease the Property or a portion
thereof to any Person. No sublease or other relinquishment of possession
of the Property shall in any way discharge or diminish any of Lessee's
obligations to Lessor hereunder and Lessee shall remain directly and
primarily liable under this Lease as to the Property, or any portion
thereof, so sublet. Any sublease of the Property shall be made subject
to and subordinate to this Lease and to the rights of Lessor hereunder,
and shall expressly provide for the surrender of the Property after an
Event of Default hereunder.
34.
36
- SUBLEASES. Promptly following the execution and delivery of any sublease
permitted by this Article 24, Lessee shall deliver a copy of such
executed sublease to Lessor.
-
- ESTOPPEL CERTIFICATES. At any time and from time to time upon not less
than twenty (20) days' prior request by Lessor, Lessee shall furnish to
Lessor a certificate signed by an individual having the office of vice
president or higher in Lessee certifying that this Lease is in full
force and effect (or that this Lease is in full force and effect as
modified and setting forth the modifications); the dates to which the
Basic Rent and Supplemental Rent have been paid; to the best knowledge
of the signer of such certificate, whether or not Lessor is in default
under any of its obligations hereunder (and, if so, the nature of such
alleged default); and such other matters under this Lease as Lessor may
reasonably request. Any such certificate furnished pursuant to this
Article 25 may be relied upon by Lessor, and any existing or prospective
mortgagee, purchaser or lender, and any accountant or auditor, of, from
or to Lessor (or any Affiliate thereof).
-
- NO WAIVER. No failure by Lessor or Lessee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
upon a default hereunder, and no acceptance of full or partial payment
of Rent during the continuance of any such default, shall constitute a
waiver of any such default or of any such term. To the fullest extent
permitted by law, no waiver of any default shall affect or alter this
Lease, and this Lease shall continue in full force and effect with
respect to any other then existing or subsequent default.
-
- ACCEPTANCE OF SURRENDER. Except as otherwise expressly provided in this
Lease, no surrender to Lessor of this Lease or of all or any portion of
the Property or of any interest therein shall be valid or effective
unless agreed to and accepted in writing by Lessor and no act by Lessor
or any representative or agent of Lessor, other than a written
acceptance, shall constitute an acceptance of any such surrender.
-
- NO MERGER OF TITLE. There shall be no merger of this Lease or of the
leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, in whole or in
part, (a) this Lease or the leasehold estate created hereby or any
interest in this Lease or such leasehold estate, (b) the fee estate in
the Property, except as may expressly be stated in a written instrument
duly executed and delivered by the appropriate Person, or (c) a
beneficial interest in Lessor.
35.
37
-
- NOTICES. Unless otherwise specifically provided herein, all notices,
consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof to be given to
any Person shall be given in writing by nationally recognized courier
service and any such notice shall become effective one Business Day
after delivery to such nationally recognized courier service specifying
overnight delivery and shall be directed to the address of such Person
as indicated:
If to Lessee:
XXX RESEARCH CORPORATION
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Treasurer
Telephone No: (000) 000-0000
Telecopy No: (000) 000-0000
If to Lessor:
Scotiabanc Inc.
000 Xxxxxxxxx Xxxxxx XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Managing Director
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
or such additional parties and/or other address as such party may hereafter
designate.
-
- MISCELLANEOUS. Anything contained in this Lease to the contrary
notwithstanding, all claims against and liabilities of Lessee or Lessor
arising from events commencing prior to the expiration or earlier
termination of this Lease shall survive such expiration or earlier
termination. If any term or provision of this Lease or any application
thereof shall be declared invalid or unenforceable, the remainder of
this Lease and any other application of such term or provision shall not
be affected thereby. If any right or option of Lessee provided in this
Lease, including any right or option described in Articles 15, 16, 20 or
21, would, in the absence of the limitation imposed by this sentence, be
invalid or unenforceable as being in violation of the rule against
perpetuities or any other rule of law relating to the vesting of an
interest in or the suspension of the power of alienation of property,
then such right or option shall be exercisable only during the period
which shall end twenty-one (21) years after the date of death of the
last survivor of the descendants of Xxxxxxxx X. Xxxxxxxxx, the former
President of the United States, Xxxxx Xxxx, the deceased automobile
manufacturer, and Xxxx X. Xxxxxxxxxxx, the founder of the Standard Oil
Company, known to be alive on the date of the execution and delivery of
this Lease.
36.
38
- AMENDMENTS AND MODIFICATIONS. Neither this Lease nor any provision
hereof may be amended, waived, discharged or terminated except by an
instrument in writing signed by Lessor and Lessee.
- SUCCESSORS AND ASSIGNS. All the terms and provisions of this Lease shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
- HEADINGS AND TABLE OF CONTENTS. The headings and table of contents in
this Lease are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
- COUNTERPARTS. This Lease may be executed in any number of counterparts,
each of which shall be an original, but all of which shall together
constitute one and the same instrument.
- GOVERNING LAW. THIS LEASE HAS BEEN DELIVERED IN, AND SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
- ENTIRELY WITHIN SUCH STATE, EXCEPT AS TO MATTERS RELATING TO THE
CREATION, PERFECTION AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS AND
THE EXERCISE OF REMEDIES WITH RESPECT THERETO, WHICH SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE IN WHICH THE
PROPERTY IS LOCATED.
- LIMITATIONS ON RECOURSE. Except as expressly set forth in the Operative
Agreements, Lessee agrees to look solely to Lessor's estate and interest
in the Property, the proceeds of sale thereof, any insurance proceeds or
any other award or any third party proceeds received by Lessor in
connection with the Property for the collection of any judgment
requiring the payment of money by Lessor in the event of liability by
Lessor, and no other property or assets of Lessor or any shareholder,
owner or partner (direct or indirect) thereof, or any director, officer,
employee, beneficiary, Affiliate of any of the foregoing shall be
subject to levy, execution or other enforcement procedure for the
satisfaction of Lessee's remedies under or with respect to this Lease,
the relationship of Lessor and Lessee hereunder or Lessee's use of the
Property or any other liability of Lessor to Lessee; provided that
nothing in this Section 30.7 shall be construed to impair or limit the
rights of Lessee against Lessor under the Operative Agreements. Nothing
in this Section 30.7 shall be interpreted so as to limit the terms of
Section 6.1 or 6.2.
- RECORDATION OF LEASE. A memorandum of this Lease shall be recorded in
the jurisdiction in which the Property is located, at Lessee's sole cost
and expense.
37.
39
IN WITNESS WHEREOF, the parties have caused this Lease be duly executed
and delivered as of the date first above written.
LESSEE: XXX RESEARCH CORPORATION
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
-------------------------------
Title: Treasurer
-------------------------------
LESSOR: SCOTIABANC INC.
By: /s/ F.C.H. Xxxxx
-------------------------------
Name: F.C.H. Xxxxx
-------------------------------
Title: Senior Manager, Loan Operations
-------------------------------
40
EXHIBIT A
LEASE SUPPLEMENT
41
EXHIBIT B
LAND INVESTMENT BALANCE $10,695,405.14
IMPROVEMENTS INVESTMENT BALANCE $16,450,780.11
--------------
$27,146,185.25
==============
42
TABLE OF CONTENTS
PAGE
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article 1..............................................................................
1.1 Definitions.............................................................1
article 2..............................................................................
2.1 Property................................................................1
2.2 Lease Term..............................................................1
2.3 Title...................................................................1
article 3..............................................................................
3.1 Rent....................................................................2
3.2 Payment of Basic Rent...................................................2
3.3 Supplemental Rent.......................................................2
3.4 Performance on a Non-Business Day.......................................2
3.5 Method of Payment.......................................................3
article 4..............................................................................
4.1 Utility Charges.........................................................3
i.
43
TABLE OF CONTENTS
(CONTINUED)
PAGE
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article 5..............................................................................
5.1 Quiet Enjoyment.........................................................3
article 6..............................................................................
6.1 Net Lease; No Setoff; Etc...............................................3
6.2 No Termination or Abatement.............................................4
article 7..............................................................................
7.1 Ownership of the Property...............................................5
7.2 Liens and Security Interests............................................5
article 8..............................................................................
8.1 Condition of the Property...............................................7
8.2 Possession and Use of the Property......................................8
article 9..............................................................................
9.1 Compliance with Legal Requirements and Insurance Requirements...........8
article 10.............................................................................
10.1 Maintenance and Repair; Return..........................................8
ii.
44
TABLE OF CONTENTS
(CONTINUED)
PAGE
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10.2 Right of Inspection.....................................................9
10.3 Environmental Inspection................................................9
article 11.............................................................................
11.1 Modifications, Substitutions and Replacements...........................10
article 12.............................................................................
12.1 Warranty of Title.......................................................11
12.2 Grants and Releases of Easements........................................11
article 13.............................................................................
13.1 Permitted Contests Other Than in Respect of Impositions.................12
article 14.............................................................................
14.1 Public Liability and Workers' Compensation Insurance....................12
14.2 Hazard and Other Insurance..............................................13
14.3 Coverage................................................................13
article 15.............................................................................
15.1 Casualty and Condemnation...............................................14
iii.
45
TABLE OF CONTENTS
(CONTINUED)
PAGE
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15.2 Environmental Matters...................................................15
15.3 Notice of Environmental Matters.........................................16
article 16.............................................................................
16.1 Termination upon Certain Events.........................................16
16.2 Procedures..............................................................16
article 17.............................................................................
17.1 Events of Default.......................................................17
17.2 Final Liquidated Damages................................................19
17.3 Lease Remedies..........................................................19
17.4 Waiver of Certain Rights................................................23
17.5 Assignment of Rights Under Contracts....................................24
17.6 Power of Sale and Foreclosure...........................................24
17.7 Security Agreement and Fixture Filing...................................27
17.8 Remedies Cumulative.....................................................28
17.9 Lessee's Right to Cure..................................................28
iv.
46
TABLE OF CONTENTS
(CONTINUED)
PAGE
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article 18.............................................................................
18.1 Lessor's Right to Cure Lessee's Defaults................................28
article 19.............................................................................
19.1 Provisions Relating to Lessee's Termination of this Lease or
Exercise of Purchase Options............................................29
article 20.............................................................................
20.1 Purchase Option.........................................................29
20.2 Maturity Date Purchase Option...........................................29
20.3 Extension of Expiration Date............................................30
article 21.............................................................................
21.1 Sale Procedure..........................................................30
21.2 Application of Proceeds of Sale.........................................31
21.3 Indemnity for Excessive Wear............................................31
21.4 Appraisal Procedure.....................................................31
21.5 Certain Obligations Continue............................................31
v.
47
TABLE OF CONTENTS
(CONTINUED)
PAGE
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article 22.............................................................................
22.1 Holding Over............................................................32
article 23.............................................................................
23.1 Risk of Loss............................................................32
article 24.............................................................................
24.1 Subletting and Assignment...............................................32
24.2 Subleases...............................................................32
article 25.............................................................................
25.1 Estoppel Certificates...................................................33
article 26.............................................................................
26.1 No Waiver...............................................................33
article 27.............................................................................
27.1 Acceptance of Surrender.................................................33
article 28.............................................................................
28.1 No Merger of Title......................................................33
vi.
48
TABLE OF CONTENTS
(CONTINUED)
PAGE
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article 29.............................................................................
29.1 Notices.................................................................33
article 30.............................................................................
30.1 Miscellaneous...........................................................34
30.2 Amendments and Modifications............................................34
30.3 Successors and Assigns..................................................34
30.4 Headings and Table of Contents..........................................34
30.5 Counterparts............................................................35
30.6 Governing Law...........................................................35
30.7 Limitations on Recourse.................................................35
30.8 Recordation of Lease....................................................35
Exhibit A LEASE SUPPLEMENT.....................................................37
An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
vii.
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TABLE OF CONTENTS
(CONTINUED)
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viii.
