Exhibit 10(v)
AFTER RECORDING RETURN TO:
Xxxxxxxxxxx X. Xxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
3500 One Peachtree Center
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
GROUND LEASE
Dated as of July 30, 1997
Between
SCIENTIFIC-ATLANTA, INC.
a Georgia corporation,
as Ground Lessor,
and
WACHOVIA CAPITAL MARKETS, INC.,
a Georgia corporation,
as Ground Lessee
GROUND LEASE
THIS GROUND LEASE (the "Ground Lease") dated as of July 30, 1997 (the
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"Effective Date") is between SCIENTIFIC-ATLANTA, INC., a Georgia corporation
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("Ground Lessor"), and WACHOVIA CAPITAL MARKETS, INC., a Georgia corporation,
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its successors and assigns ("Ground Lessee").
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RECITALS
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WHEREAS, Ground Lessor holds fee simple title to the Site (as hereinafter
defined); and
WHEREAS, Ground Lessor desires to lease to Ground Lessee, and Ground Lessee
desires to lease from Ground Lessor, the Site in accordance with the terms and
conditions set forth in this Ground Lease.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Ground Lessor and
Ground Lessee hereby covenant and agree as follows:
SECTION 1. CERTAIN DEFINED TERMS. All capitalized terms used in this Ground
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Lease and not otherwise defined herein shall have the following meanings:
"Agency Agreement" means that certain Acquisition, Agency, Indemnity
----------------
and Support Agreement dated as of even date herewith between the Ground
Lessor and the Ground Lessee, as the same is amended or otherwise modified
from time to time.
"Arbitration" as defined in Section 12.
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"Award" as defined in Section 8.
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"Condemnation" as defined in Section 8.
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"Default" as defined in Section 11.
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"Effective Date" means the date of this Ground Lease as set forth in
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the first paragraph hereof.
"Event of Default" as defined in Section 11.
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"Ground Lease" means this Ground Lease.
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"Ground Lessee" means Wachovia Capital Markets, Inc., a Georgia
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corporation, the ground lessee under this Ground Lease, and its successors
and assigns.
"Ground Lessor" means Scientific-Atlanta, Inc., a Georgia corporation,
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the ground lessor under this Ground Lease.
"Impositions" means all taxes, assessments, use and occupancy taxes,
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water and sewer charges, charges for public utilities, excises, levies,
license and permit fees and other charges, general and special, ordinary
and extraordinary, foreseen and unforeseen, of any kind and nature
whatsoever, which shall or may during the Term be assessed, levied,
charged, confirmed or imposed upon or accrue or become due or payable out
of or on account of or become a lien on the Site or any portion thereof.
Impositions shall not include any income taxes, capital levy, estate,
succession, inheritance or transfer taxes or similar tax of Ground Lessor,
or any franchise taxes imposed upon any owner of the fee of the Site or any
income, profits or revenue tax, assessment or charge imposed upon the rent
or other benefit received by Ground Lessor under this Ground Lease.
"Lease Years" means successive one (1) year periods during the Term,
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with the first Lease Year commencing on the Effective Date and subsequent
Lease Years commencing on each anniversary of the Effective Date.
"Leasehold Mortgage" as defined in Section 10.
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"Leasehold Mortgagee" as defined in Section 10.
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"Permitted Exceptions" means those matters affecting Ground Lessor's
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title to the Site as set forth in Exhibit "A" mutually agreeable to and
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attached hereto by the Ground Lessor and the Ground Lessee on or prior to
the Lease Commencement Date (defined in the Sublease) and by this reference
made a part hereof, to which Ground Lessee's interest under this Ground
Lease is expressly subject.
"Site" means the land and easements described in Exhibit "B" attached
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hereto and by this reference made a part hereof, including, without
limitation, any and all improvements now or hereafter constructed thereon
and any and all appurtenances thereto.
"Sublease" means that certain Lease Agreement dated as of even date
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herewith between WCMI, as sublessor, and Scientific-Atlanta, Inc., as
sublessee, as the same is amended or otherwise modified from time to time.
"Term" as defined in Section 2.
----
"Third Party Occupancy Period" means the period commencing on the date
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on which WCMI has transferred its interests hereunder to another person or
entity.
"WCMI" as defined in Section 13.
----
"WCMI Occupancy Period" means the period commencing on the latter to
---------------------
occur of (i) the payment of the Final Rent Payment under the Sublease, and
(ii) the surrender of possession of the Site to WCMI, and ending on the
date on which WCMI has transferred its interests hereunder to another
person or entity.
SECTION 2. LEASE OF SITE; TERM.
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(a) Subject to the terms and conditions of this Ground Lease, Ground Lessor
hereby leases to Ground Lessee, and Ground Lessee hereby leases from Ground
Lessor the Site for a period (the "Term") of ninety-nine (99) years commencing
----
on the Effective Date and ending, unless sooner terminated pursuant to the terms
of this Ground Lease, on July 14, 2096.
(b) So long as Ground Lessee observes and performs all of the terms,
covenants and conditions of this Ground Lease to be observed and performed on
Ground Lessee's part, Ground Lessee shall peaceably and quietly enjoy the Site,
subject to the terms and conditions of this Ground Lease and subject to the
Permitted Exceptions, and Ground Lessee's possession shall not be disturbed by
anyone.
(c) Upon termination of this Ground Lease in accordance with the terms of
this Ground Lease, Ground Lessee's rights in the Site created in this Ground
Lease shall revert to Ground Lessor, and Ground Lessee shall no longer have any
rights or obligations with respect to the Site.
(d) Ground Lessor will grant or join in granting and, if necessary,
modifying such rights-of-way, easements and other interests as may be required
to provide the Site with ingress and egress, and electric, telephone, gas,
water, sewer and other public utilities necessary to the operation of the Site
(including any improvements hereafter erected thereon). Any such easements shall
be in such locations as the Ground Lessor may
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reasonably determine to be appropriate in order to permit the use and
development of the property owned by the Ground Lessor adjacent to the Site.
SECTION 3. Rent. Upon the earlier to occur of (x) that date which is 6 months
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after the end of the Exclusivity Period, or (y) the commencement of any Third
Party Occupancy Period, Ground Lessee shall pay to Ground Lessor rental for the
use and occupancy of the Site in an amount equal to a fair market rental as
agreed upon by the Ground Lessor and the Ground Lessee and documented by an
amendment to this Ground Lease (the "Rent"). In the event that the Ground Lessor
and the Ground Lessee are unable to agree on the amount of Rent within 15 days,
the amount of Rent shall be determined by arbitration in accordance with the
terms of Section 12 of this Ground Lease.
SECTION 4. Impositions. (a) After the commencement of the WCMI Occupancy
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Period and during any Third Party Occupancy Period, in addition to the Rent,
during the Term, Ground Lessee will pay or cause to be paid, subject to the
Ground Lessee's contest rights under Section 4(b) hereof, all Impositions
imposed upon or levied or assessed against the Site or any portion thereof, or
against the Ground Lessor in connection with the transactions contemplated by
this Ground Lease, or imposed or levied upon, assessed against or measured by
any Rent or other sums payable hereunder, or any sums levied in connection with
the execution, delivery or recording hereof, and will furnish to the Ground
Lessor upon request copies of official receipts or other proof evidencing such
payment; provided, however, that the Ground Lessee shall not be obligated to pay
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(i) any Impositions that are based upon or measured by the Ground Lessor's
overall net income, or which are in substitution for, or relieve the Ground
Lessor from, any actual Imposition based upon or measured by the Ground Lessor's
overall net income; (ii) Impositions constituting franchise taxes imposed on
Ground Lessor by the jurisdiction under the laws of which Ground Lessor is
organized or qualified or any political subdivision thereof; or (iii) any
Impositions attributable to the gross negligence or willful misconduct of the
Ground Lessor. The Ground Lessee further agrees that, subject to its rights
under Section 4(b), it will, at its expense, do all things required to be done
by the Ground Lessor in connection with the levy, assessment, billing or payment
of any Impositions that it is required to pay pursuant to the preceding
sentence, and is hereby authorized by the Ground Lessor to act for and on behalf
of the Ground Lessor in any and all such respects and to prepare and file, on
behalf of the Ground Lessor, all tax returns and reports required to be filed by
the Ground Lessor (other than federal income tax returns and documents related
thereto) concerning the Facility. The Ground Lessee's payment and other
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obligations under this Section 4 shall survive the termination of this Ground
Lease.
(b) Notwithstanding any other provision of this Ground Lease to the
contrary, after prior written notice to the Ground Lessor and provided there is
no material risk of sale, forfeiture or loss of the Site or any material part
thereof or interest therein, the Ground Lessee may at its expense contest any
Imposition or any nonconsensual lien which it is required to pay or comply with
hereunder, by appropriate proceedings conducted in good faith and with due
diligence, so long as such proceedings are effective to prevent the collection
of such Imposition or lien from the Ground Lessor or against the Site or any
part thereof; provided, however, that the actions of the Ground Lessee, as
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authorized by this Section 4(b), shall be subject to the express written consent
of the Ground Lessor if such actions would subject the Ground Lessor or the Site
or any part thereof to any liability or loss not indemnified in full by the
Ground Lessee hereunder or any sanction, criminal or otherwise, for failure to
pay any such Imposition or to comply with such requirement. The Ground Lessee
will pay, and save the Ground Lessor harmless against, all losses, judgments and
reasonable costs, including attorneys' fees and expenses, in connection with any
such contest and will, promptly after the final determination of such contest,
comply with such requirements and pay and discharge the amounts which shall be
imposed or determined to be payable therein, together with all penalties, costs
and expenses incurred in connection therewith. The Ground Lessee shall prevent
any foreclosure, judicial sale, taking, loss or forfeiture of the Site or any
part thereof, or any interference with or deductions from any Rent or any other
sum required to be paid by the Ground Lessee hereunder by reason of such
nonpayment or nondischarge of an Imposition, or noncompliance with a requirement
contemplated herein. The Ground Lessor shall cooperate with the Ground Lessee
in any contest and shall allow the Ground Lessee to conduct such contest (in the
name of the Ground Lessor, if necessary) at the Ground Lessee's sole cost and
expense; and the Ground Lessee shall indemnify and hold the Ground Lessor
harmless from and against all liabilities, costs and expenses in connection with
such contest. The Ground Lessee shall notify the Ground Lessor of each such
proceeding within ten (10) days after the commencement thereof, which notice
shall describe such proceeding in reasonable detail.
SECTION 5. Improvement of Site.
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(a) Ground Lessee shall have the right, at Ground Lessee's expense, from
time to time to construct improvements to become part of the Site. Ground
Lessee shall have the right, at Ground Lessee's expense, to demolish and remove
any existing
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improvements on the Site and any improvements hereafter erected, from time to
time, on the Site. The salvage, if any, which Ground Lessee may be able to
recover from such demolition shall belong to Ground Lessee.
(b) Any improvements erected on the Site during the Term after the
commencement of the WCMI Occupancy Period and during any Third Party Occupancy
Period shall be and remain the property of the Ground Lessee then in possession
of the Site, and Ground Lessee shall retain all rights to depreciation
deductions and tax credits arising from the ownership thereof. Upon termination
of this Ground Lease, all such improvements shall be and become a part of the
realty and the property of Ground Lessor (except for any termination followed by
a substitute lease from Ground Lessor to the Leasehold Mortgagee as hereinafter
provided).
SECTION 6. Use of Premises; Repairs; Alterations.
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(a) Ground Lessee may use the Site, including any improvements now or
hereafter erected thereon, for (i) the occupation and use of the Site for
commercial office space and light assemblage in compliance with all applicable
laws and insurance policy requirements.
(b) Ground Lessee will obey and comply with in all material respects all
lawful requirements, rules, regulations and ordinances of all legally
constituted authorities, existing at any time during the Term, in any way
affecting the Site or the use of the Site or any demolition, excavation or
construction being done on the Site or in any way affecting this Ground Lease.
The right to contest the validity thereof in good faith is hereby reserved to
Ground Lessee.
(c) Ground Lessee accepts the Site in its present condition and as suited
for the use intended by Ground Lessee. Ground Lessor shall not be required to
make any repairs or improvements to the Site during the term of this Ground
Lease, or in any manner to supply maintenance for the Site or any improvements
thereon.
SECTION 7A. Insurance. After the commencement of the WCMI Occupancy Period and
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during any Third Party Occupancy Period:
(a) The Ground Lessee will, at its own expense, purchase and maintain,
or cause to be purchased and maintained, throughout the Term, with financially
sound and reputable insurance companies, insurance with respect to its business
and the Site in at least such amounts and against at least such risks (including
on all its property, and public liability and worker's compensation) as are
usually insured against in the same general
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area by companies of established repute engaged in the same or similar business.
(b) The Ground Lessee shall bear all risk of loss, whether by
condemnation, casualty, theft, taking, confiscation or otherwise, with respect
to the Site or any part thereof, at all times during the Term.
(c) So long as no Default shall have occurred and be continuing, any
payments, whether constituting insurance proceeds, amounts paid by any
governmental authority or otherwise, received by the Ground Lessee or the Ground
Lessor upon the occurrence of any loss with respect to the Site or part thereof
(other than as a result of a casualty), whether as a result of casualty, theft,
taking or other confiscation, shall be applied in payment for necessary repairs
and replacement to the Site to the extent permitted under the terms of this
Ground Lease, or to the extent the costs of such repairs and replacement shall
have been paid by the Ground Lessee, to the extent permitted under the terms of
this Ground Lease, to reimburse the Ground Lessee. The Ground Lessee shall be
entitled to retain any excess funds remaining after necessary repairs and
replacements have been completed and all costs therefor paid in full. Upon the
occurrence of any Default, the Ground Lessor shall be entitled to receive and
retain any such payments for application to the obligations of the Ground Lessee
hereunder.
SECTION 7B. Hazardous Materials. The Ground Lessee shall not place,
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manufacture or store or permit to be placed, manufactured or stored any
Hazardous Materials on the Site, except for reasonable quantities of necessary
supplies for use by the Ground Lessee in the ordinary course of business and
stored, used and disposed in accordance with applicable Laws. "Hazardous
Materials" means (a) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act of 1976, as amended from time to time, and
regulations promulgated thereunder; (b) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, and regulations promulgated thereunder; (c)
any substance the presence of which on any property now or hereafter owned or
acquired by the Ground Lessee is prohibited by any applicable law similar to
those set forth in this definition; and (d) any other substance which by Law
requires special handling in its collection, storage, treatment or disposal.
During any Third Party Occupancy Period, and during the WCMI Occupancy Period in
the event WCMI occupies the Site as a tenant, the Ground Lessee shall defend,
indemnify and hold harmless the Ground Lessor and its agents, employees,
trustees, successors and assigns from any and all claims which may now or in the
future (whether before or after the termination of this
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Ground Lease) be asserted as a result of the presence of any Hazardous Materials
on the Site unless caused by the Ground Lessor's gross negligence or wilful
misconduct. The Ground Lessee acknowledges and agrees that this indemnification
shall survive the termination of this Ground Lease.
SECTION 8. Condemnation. At any time during which the Sublease is in effect
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(i) in the event of a Loss Event (defined in the Sublease), upon payment by the
Ground Lessor of either (A) the Purchase Price (defined in the Sublease) for the
Site, or (B) the payment of the Termination Value (defined in the Sublease),
then this Ground Lease shall terminate, and (ii) any and all Awards (defined
below) received with respect to any Condemnation (defined below) shall be
applied in accordance with Sections 14 and 15 of the Sublease. After the
commencement of the WCMI Occupancy Period and during any Third Party Occupancy
Period, if during the Term, the Site or any part thereof be condemned or taken
(a "Condemnation") by the United States, the State of Georgia, or any
subdivision or municipality thereof, or any corporation, public or private, or
by any other body having power of eminent domain, then:
(a) The court in such Condemnation shall, if not prohibited by law, be
required to make separate awards ("Award" or "Awards") to Ground Lessor and
Ground Lessee and Ground Lessor and Ground Lessee agree to require such action
by the court. This paragraph shall be construed as superseding any statutory
provisions now in force or hereafter enacted concerning Condemnation proceedings
to the extent permitted by law.
(b) If such court is prohibited by law from making separate Awards to
Ground Lessor and Ground Lessee or declines to do so, and if all of the Site or
such portion thereof, as makes the residue of the Site of substantially no
commercial value is so condemned, the Award in such Condemnation proceeding
shall be divided between Ground Lessor and Ground Lessee, as follows:
(i) The following values shall be determined as of the time of
Condemnation by agreement of the parties or by Arbitration:
(x) The value of the Site excluding the value of buildings and
improvements thereon. In determining the value of the Site,
the Rent payable hereunder by Ground Lessee had there been
no Condemnation and the fact that any buildings or
improvements on the Site would belong to Ground Lessor upon
the expiration of the Term shall be taken into
consideration.
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(y) The value of the improvements placed on the Site by
Lessee. In determining the value of such improvements,
the obligation of Ground Lessee to pay the Rent
hereunder had there been no Condemnation and the fact
that such improvements would belong to Ground Lessor
upon the expiration of the Term shall be taken into
consideration.
(ii) The Ground Lessor shall receive that percentage of the
total Award which the value of the Site as determined in
subparagraph (x) above bears to the sum of the values of
the Site and improvements as determined in subparagraphs
(x) and (y) above.
(iii) The Ground Lessee shall receive the remainder of such
Award.
(c) If such court is prohibited by law from making separate Awards
to Ground Lessor and Ground Lessee or declines to do so, and if the residue of
the Site after such Condemnation is of some commercial value, then the Award in
such Condemnation proceeding shall be divided between Ground Lessor and Ground
Lessee, as follows:
(i) The following amounts shall be determined by agreement of
the parties or by Arbitration:
(x) The difference between the value of the Site
immediately prior to such Condemnation and the value
of the residue of such Site; the value of the Site, in
each instance excluding the value of the building and
improvements thereon. In determining said difference
the abatement of Rent otherwise payable by Ground
Lessee, as hereinafter provided, and the loss of
Ground Lessor's right to any improvements so Condemned
upon the expiration of the Term shall be taken into
consideration.
(y) The difference between the value of the improvements
placed on the Site by Ground Lessee immediately prior
to such Condemnation and the value of the residue of
said improvements after such Condemnation. In
determining this difference, the abatement of Rent, if
any, otherwise payable by Ground Lessee hereunder, as
hereinafter provided, and Ground Lessor's right to any
such
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buildings or improvements so Condemned upon the expiration
of the Term shall be taken into consideration.
(ii) Ground Lessor shall receive that percentage of the total Award
which the amount determined under subparagraph (x) above bears
to the sum of the amounts determined under subparagraphs (x)
and (y) above.
(iii) The Ground Lessee shall receive the remainder of such award.
(d) If all of the Site, or such portion thereof as makes the residue of
substantially no commercial value, is so Condemned, this Ground Lease shall
automatically terminate on the date of Condemnation. In the event that such
residue of the Site is of some commercial value, then the percentage which the
value of said residue bears to the value of the Site immediately prior to such
Condemnation, shall be determined by agreement of the parties or by Arbitration,
and that percentage of the Rent otherwise payable under this Ground Lease shall
thereafter be payable as the Rent hereunder.
(e) Any other provision of this Ground Lease to the contrary
notwithstanding, should there be in existence at the time of any such
Condemnation any Leasehold Mortgage, then the Leasehold Mortgagee shall be
entitled to receive all such Awards up to the full amount due the Leasehold
Mortgagee under its Leasehold Mortgage (including, without limitation, all
principal, interest, fees, prepayment fees, late payments and curative
advances), before either Ground Lessor or Ground Lessee shall be entitled to
receive any such Award. Any such Award received by the Leasehold Mortgagee shall
be deducted first from the portion of the Award otherwise payable to Ground
Lessee and any excess due the Leasehold Mortgagee shall be deducted from the
portion of the Award otherwise payable to Ground Lessor.
Section 9. Assignments And Subleases.
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(a) Prior to the WCMI Occupancy Period, Ground Lessee shall not make any
assignment, sublease or other conveyance of the Site or of Ground Lessee's
interest in this Ground Lease, except as permitted in the Credit Agreement
(defined in the Sublease).
(b) After commencement of the WCMI Occupancy Period and during any Third
Party Occupancy Period, upon prior written notice to Ground Lessor, Ground
Lessee is hereby authorized to sell or assign its leasehold estate in its
entirety or for any portion of the unexpired Term at any time, without the
necessity
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of obtaining any further consent or approval of Ground Lessor. Any purchaser or
assignee of Ground Lessee's leasehold estate, immediate or remote, unless
restrained by the muniments of title under which he holds, shall have like power
of sale, assignment and transfer. If any such sale or assignment shall be
evidenced by an instrument in writing, properly executed and acknowledged by all
of the parties thereto and duly recorded in the Office of the Clerk of the
Superior Court of Gwinnett County, Georgia, wherein and whereby the grantee or
assignee assumes all of the obligations of Ground Lessee hereunder and if a copy
of such instrument is delivered to Ground Lessor, the grantor or assignor shall
be relieved from all further liability hereunder, and the grantee or assignee
shall hold the leasehold estate and all of the rights of the Ground Lessee in
and to the Site in accordance with the terms and conditions of this Ground
Lease. Ground Lessee shall have the right to sublet all or any portion of the
Site as Ground Lessee may deem proper, it being expressly understood and agreed
that any such subletting shall have no effect on the obligations and covenants
imposed hereunder upon Ground Lessee.
Section 10. Leasehold Mortgages.
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(a) Solely to the extent required by the terms of the Credit Agreement and
the Operative Documents, Ground Lessee shall at all times have the right to
encumber by the Mortgage (defined in the Credit Agreement; hereinafter, the
"Leasehold Mortgage") as security for any debt, all of Ground Lessee's right,
title and interest hereunder including, without limiting the generality of the
foregoing, its right to use and occupy the Site together with its rights and
interests in and to all buildings, improvements, and fixtures now or hereafter
placed on the Site; in all respects, however (except as herein expressly
provided), subordinate and inferior to Ground Lessor's rights, title,
privileges, liens and interests as provided in this Ground Lease; and Ground
Lessee shall, in no event, have the right to, in any way, encumber Ground
Lessor's fee simple title and reversionary interest in and to the Site. Ground
Lessee shall not amend or otherwise modify the Leasehold Mortgage except as
permitted by the Credit Agreement or the Operative Documents.
(b) The Agent (defined in the Credit Agreement) as mortgagee under the
Leasehold Mortgage (the "Leasehold Mortgagee") may, at its option, at any time
before this Ground Lease shall have been terminated, pay any amount or do any
act or thing required of Ground Lessee by the terms of this Ground Lease and
shall be thereby subrogated to any and all of the rights of Ground Lessee under
the terms and provisions of this Ground Lease; and all payments so made and all
acts or things so done and performed by the Leasehold Mortgagee shall be as
effective to prevent a forfeiture of the rights of Ground Lessee as the same
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would have been if done and performed by Ground Lessee instead of the Leasehold
Mortgagee.
(c) In the event of the termination of this Ground Lease or of any new
lease made pursuant to the provisions of this paragraph (e) prior to its stated
expiration date, Ground Lessor will notify the Leasehold Mortgagee and certify
in writing to the Leasehold Mortgagee all amounts then due to Ground Lessor
under this Ground Lease (or such new lease), and Ground Lessor will enter into a
new lease of the Site with the Leasehold Mortgagee (or its designee or nominee)
for the remainder of the Term, to commence as of the date of the termination of
this Ground lease (or any new lease) at the same Rent and upon all of the other
terms, provisions, covenants and agreements in this Ground Lease contained, upon
condition that (i) the Leasehold Mortgagee shall make written request to Ground
Lessor for such new lease not later than thirty (30) days from the date such
notice by Ground Lessor is given to the Leasehold Mortgagee, (ii) the Leasehold
Mortgagee shall pay to Ground Lessor at the time of the execution and delivery
of said new lease all sums which, as at the date of execution and delivery of
such new lease, were past due and owing under this Ground Lease, and (iii) such
new lease shall require the lessee thereunder to perform any obligation of
Ground Lessee under this Ground Lease not then performed.
(d) Ground Lessor will not modify, amend, cancel or accept a surrender of
this Ground Lease, nor shall this Ground Lease be terminated by Ground Lessee
(including a termination pursuant to the express provisions hereof), nor shall
Ground Lessee elect any option granted to it under this Ground Lease, without
the prior written consent of all the Leasehold Mortgagee. Any such modification,
amendment, cancellation, surrender, termination or option election without the
written consent of the Leasehold Mortgagee shall be void and of no force or
effect.
(e) No union of the interests of Ground Lessor and Ground Lessee shall
result in a merger of this Ground Lease and the fee interests in the Site
without the prior written consent of the Leasehold Mortgagee.
Section 11. Default - Forfeiture - Termination.
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(a) This Ground Lease is granted on the condition that if an Event of
Default shall occur, and in accordance with the terms and provisions hereof, a
Default shall then occur, this Ground Lease may be terminated.
(b) There shall be an event of default, (an "Event of Default") only if
and when:
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(i) there shall have been a failure to pay, when due, any item of
Rent herein provided to be paid by Ground Lessee to Ground Lessor, or any
item of Impositions required by the terms of this Ground Lease to be paid
by Ground Lessee; or
(ii) there shall have been a failure to comply with any provision
hereof; or
(iii) the Ground Lessee shall have commenced a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to
the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or shall take any corporate action to
authorize any of the foregoing; or
(iv) an involuntary case or other proceeding shall be commenced
against the Ground Lessee seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of sixty (60)
days, or an order for relief shall be entered against the Ground Lessee
under the federal bankruptcy laws as now or hereafter in effect.
Before a Default shall ripen from or out of any of the foregoing Events of
Default, there shall have been:
(i) given to Ground Lessee and to the Leasehold Mortgagee a notice of
the failure to pay, when due, any item of Rent at least thirty (30) days in
advance of a Default becoming effective and a notice of any other Event of
Default in writing at least (A) ninety (90) days in advance of a Default
becoming effective during the WCMI Occupancy Period, and (B) forty-five
(45) days in advance of a Default becoming effective during any Third Party
Occupancy Period; and
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(ii) no cure of the Event of Default specified in said notice, which
cure, however, may be effected during the period of said notice by the
payment of any money which would have avoided the Event of Default, if made
in due course. If and whenever any such Event of Default, of which notice
shall have been given, shall have thus been cured within the applicable
notice periods described in clause (i) above, there shall be no Default,
but if not cured as provided in this paragraph, then upon the expiration of
such applicable notice periods, a Default shall exist.
(c) A Default having occurred, then and in any such event Ground Lessor
shall have the right, at its election, upon giving ten (10) days' notice of such
election:
(i) As Ground Lessee's legal representative, without terminating this
Ground Lease, to enter upon and rent the Site at the best price obtainable
by reasonable effort without advertisement and by private negotiations and
for any term and on such conditions as Ground Lessor deems proper. Ground
Lessee shall be liable to Ground Lessor for the deficiency, if any, between
the Rent hereunder and the price obtained by Ground Lessor on reletting; or
(ii) to terminate this Ground Lease and to enter into and upon the
Site and take possession of the same, and Ground Lessor may hold and retain
the Site as of its first or former estate.
After commencement of the WCMI Occupancy Period and during any Third Party
Occupancy Period, after a Default shall have occurred with respect to any
payment obligations hereunder, the Ground Lessee shall pay to the Ground Lessor,
upon demand by Ground Lessor, a late charge not to exceed 4% of the amount of
such payment.
Provided, however, in the event that any Default or Event of Default hereunder
has occurred as a result of (i) Ground Lessor's failure to comply with the terms
of the Sublease or the Agency Agreement, or (ii) a Default or Event of Default
having occurred under the Sublease (as both terms are defined in the Sublease),
then the Ground Lessor shall not be permitted to exercise any rights or remedies
under this Section 11 with respect to such Default or Event of Default
hereunder. The foregoing proviso shall not apply to the Ground Lessor's exercise
of any such rights or remedies against the Ground Lessee (A) arising during the
WCMI Occupancy Period in the event that the Agency Agreement has been
terminated, or (B) during any Third Party Occupancy Period.
14
(c) Upon the expiration of the Term of this Ground Lease, or upon the
prior termination of this Ground Lease from any cause, all rights of the Ground
Lessee, and all persons whomsoever claiming by, through or under Ground Lessee,
whether by grant, assignment, Leasehold Mortgage, sublease, foreclosure
proceedings or other conveyance or encumbrance to the Site, including all
improvements thereon, shall eo instante, wholly cease and terminate; and the
-- --------
Site, including all improvements thereon, shall thence forward constitute and
belong to and be the absolute property of Ground Lessor, Ground Lessor's
successors and assigns, without further act or conveyance, and without liability
to make compensation to Ground Lessee or to anyone whatever, and free and
discharged from all and every lien, encumbrance and charge of any character
created or attempted to be created by Ground Lessee at any time.
SECTION 12. Arbitration. If the parties are unable to agree on any matter,
-----------
which, in accordance with the terms of this Ground Lease, is to be settled by
arbitration ("Arbitration"), then such Arbitration proceeding shall be conducted
in the following manner:
(a) A party shall notify the other in writing of the exact matter in
dispute and of the name of the arbitrator appointed by the party giving such
notice. Within ten (10) days after receipt of such notice, the party so
receiving it shall, in writing, notify the other party of an arbitrator
appointed by it. Within thirty (30) days after the appointment of the second
arbitrator, the arbitrators so appointed shall determine the matter in dispute,
or failing so to do shall jointly appoint a third arbitrator. If the two
arbitrators are unable to determine the matter in dispute or agree upon a third
arbitrator within thirty (30) days after the appointment of the second
arbitrator, then both parties or either of them shall immediately, by petition
to the senior Judge of the Superior Court of Gwinnett County, Georgia, request
the appointment of five (5) persons, each of whom shall be qualified to serve as
a third arbitrator, and none of whom shall have any interest in or be in any way
affiliated with or related to either party as a stockholder, officer, employee,
or agent of any party, or a relative of any such person. From the five (5)
persons thus appointed, Ground Lessor and Ground Lessee shall, within fifteen
(15) days after such appointment, alternately strike two names each, Ground
Lessee striking one first. The remaining person shall act as the third
arbitrator. If either party shall fail or refuse to appoint an arbitrator within
the time provided, then the other party shall petition the then senior Judge of
the Superior Court of Gwinnett County, Georgia, to appoint an arbitrator for
such party and any arbitrator so appointed shall be considered as having been
appointed by the party so failing or refusing to appoint an
15
arbitrator. If either party shall fail or refuse within the time provided to
strike from the list of the five (5) persons appointed by the court as set forth
above, the other party shall proceed to select the third arbitrator from said
list.
(b) After a third arbitrator has been appointed as provided above, the
arbitrators shall hold such meeting as any party may reasonably request and at
such meetings, hear and consider any evidence which a party desires to present.
Within thirty (30) days after the appointment of the third arbitrator, the
arbitrators shall make their determinations.
(c) All determinations made by the arbitrators shall be in writing, signed
by at least two arbitrators. Such written determinations shall be in all
respects final and no party shall have any right to appeal therefrom to the
courts or otherwise.
(d) Each party shall pay the fees and expenses of the arbitrator appointed
by it. The fees and expenses of the third arbitrator shall be divided equally
between Ground Lessor and Ground Lessee.
SECTION 13. Limited Liability of Wachovia Capital Markets, Inc. ("WCMI").
------------------------------------------------------------
Anything in this Ground Lease to the contrary notwithstanding, after such time
as WCMI shall have expended, directly or indirectly, at least $100,000 toward
improvement of the Site (including both "hard" costs and "soft" costs), all
claims, demands or causes of action, whether reduced to judgment or not, which
Ground Lessor may then or at any time thereafter have against WCMI for the
payment of Rent or any other amounts which may become due hereunder, or because
of WCMI's failure to comply with any provision hereof, shall be enforceable
solely against WCMI's right, title and interest under this Ground Lease, and no
other property of WCMI shall be subject to any such claim, demand or cause of
action, nor shall Ground Lessor have the right to force WCMI by mandatory
injunction or by extraordinary remedy personally to perform any of the covenants
or agreements of this Ground Lease. Any provision of the Ground Lease to the
contrary notwithstanding, WCMI at its sole option shall be entitled upon sixty
(60) days prior written notice to Ground Lessor to terminate the Ground Lease
effective immediately following the expiration of such sixty (60) day notice
period; provided, however, this Section 13 shall not inure to the benefit of any
assignee of WCMI (other than any Affiliate (defined in the Sublease) of WCMI or
any Person approved by the Ground Lessor) and any such assignee shall remain
fully liable for the payment of Rent and all other amounts which may become due
hereunder and all other obligations of the Ground Lessee hereunder.
16
Section 14. Estoppel Certificates. Each party agrees from time to time, upon
---------------------
no less than ten (10) days' prior notice from the other, to execute, acknowledge
and deliver, without charge, to the other party, or to any person designated by
the other party, a statement in writing certifying that this Ground Lease is
unmodified and in full force and effect (or if there have been modifications,
identifying the same by the date thereof and specifying the nature thereof),
that to the knowledge of such party no uncured default or event of default
exists hereunder (or if any such uncured default or event of default does exist,
specifying the same) and the dates to which the Rent and other sums and charges
payable hereunder have been paid.
Section 15. Notices. Except as otherwise provided herein, all notices and
-------
other communications provided for hereunder shall be in writing (including
telecopier and other readable communication) and mailed by certified mail,
return receipt requested, telecopied or otherwise transmitted or delivered, if
to the Ground Lessor, at Xxx Xxxxxxxxxx Xxxxxxx, Xxxxx, Xxxxxxxx, Xxxxxxx 00000-
2967, Attention: Xxxxxx X. Xxxxxx, Telecopier: (000) 000-0000, with a copy to
Ground Lessor at its address but to the Attention of Xxxxxxx Xxxxx, Esq.,
Telecopier (000) 000-0000 and a copy to Xxxxxxx X. Xxxxxxxxx, Esq., Paul,
Hastings, Xxxxxxxx & Xxxxxx, Xxxxx 0000, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000, Telecopier (000)000-0000; and if to the Ground Lessee, at 000 Xxxxxxxxx
Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Operations Manager, Telecopier:
(000) 000-0000; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall, if so mailed, telecopied or otherwise
transmitted, be effective when received, if mailed, or when the appropriate
answer back or other evidence of receipt is given, if telecopied or otherwise
transmitted, respectively.
Section 16. Severability. If any provision hereof or the application thereof
------------
to any Person or circumstance shall be invalid or unenforceable, then the
remaining provisions or the application of such provisions to persons or
circumstances other than those as to which it is invalid or enforceable, shall
continue to be valid and enforceable.
Section 17. Governing Law. This Ground Lease shall be governed by, interpreted
-------------
under and construed in accordance with the laws of the State of Georgia.
Section 18. Counterparts. This Ground Lease may be executed in any number of
------------
counterparts, each of which shall be an original, and all of which together
shall constitute but one and the same instrument.
17
Section 19. Successors and Assigns. This Ground Lease shall be binding upon
----------------------
and inure to the benefit of Ground Lessor and Ground Lessee and their respective
heirs, successors and assigns.
IN WITNESS WHEREOF, this instrument has been executed under seal as of date
first written above.
GROUND LESSOR:
Signed, sealed and delivered
in the presence of: SCIENTIFIC-ATLANTA, INC.,
/s/ Xxxxxxx X. Xxxxx, Xx. a Georgia corporation
------------------------------------
Witness
/s/ Xxxxx X. Xxxxxxx By: /s/ X. X. Xxxxxx
------------------------------------ -----------------------------------
Notary Public Name: Xxxxxx X. Xxxxxx
---------------------------------
Title: Senior Vice President-Finance,
--------------------------------
Chief Financial Officer &
--------------------------------
Treasurer
--------------------------------
My Commission Expires:
September 26, 1999
------------------------------------ [CORPORATE SEAL]
[NOTARY SEAL]
GROUND LESSEE:
Signed, sealed and delivered
in the presence of: WACHOVIA CAPITAL MARKETS, INC.,
a Georgia corporation
/s/ Xxxxx X. XxXxxxx
------------------------------------
Witness
/s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------ --------------------------------
Notary Public Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Senior Vice President
-----------------------------
My Commission Expires:
August 2, 1998
------------------------------------
[NOTARY SEAL]
18
EXHIBITS TO THIS AGREEMENT ARE NOT FILED WITH THIS EXHIBIT 10(v),
BUT ARE AVAILABLE UPON REQUEST.
