Exhibit 10.25
SECOND AMENDED AND RESTATED INDENTURE OF LEASE
Dated as of December 14, 2001
between
WEST GREENWICH TECHNOLOGY ASSOCIATES, L.P.,
as Lessor
and
GTECH CORPORATION,
as Lessee
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS ...................................................................... 1
ARTICLE II LEASE OF LEASED PROPERTY ........................................................ 2
Section 2.1. Acceptance and Lease of Leased Property. ........................... 2
Section 2.2. Acceptance .......................................................... 2
ARTICLE III TERM; RENT ..................................................................... 2
Section 3.1. Lease Term .......................................................... 2
Section 3.2. Basic Rent .......................................................... 2
Section 3.3. Additional Rent ..................................................... 2
Section 3.4. Method of Payment ................................................... 2
Section 3.5. Late Payment. ....................................................... 3
Section 3.6. Net Lease; No Setoff, Etc. .......................................... 3
Section 3.7. Certain Taxes. ...................................................... 4
Section 3.8. Utility Charges. .................................................... 5
ARTICLE IV WAIVERS ......................................................................... 5
ARTICLE V LIENS; EASEMENTS; PARTIAL CONVEYANCES ............................................ 6
ARTICLE VI MAINTENANCE AND REPAIR; ALTERATIONS, MODIFICATIONS
AND ADDITIONS .............................................................................. 7
Section 6.1. Maintenance and Repair; Compliance With Law ......................... 7
Section 6.2. Alterations ......................................................... 8
Section 6.3. Title to Alterations. ............................................... 8
ARTICLE VII USE ............................................................................ 9
ARTICLE VIII INSURANCE ..................................................................... 9
Section 8.1. Maintenance of Insurance. ........................................... 9
Section 8.2. Endorsements ........................................................ 11
Section 8.3. Adjustment of Losses ................................................ 12
Section 8.4. Application of Insurance Proceeds. .................................. 12
SECTION 8.5. Additional Insurance. ............................................... 12
ARTICLE IX ASSIGNMENT AND SUBLEASING ....................................................... 13
Section 9.1. Assignment .......................................................... 13
Section 9.2. Subleasing .......................................................... 13
Section 9.3. Mortgage, pledge. ................................................... 13
ARTICLE X LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE ........................................ 13
Section 10.1. Event of Loss ....................................................... 13
Section 10.2. Event of Taking ..................................................... 14
Section 10.3. Casualty; Condemnation .............................................. 15
Section 10.4. Procedure upon Repair and Restoration. .............................. 15
Section 10.5. Verification of Restoration and Rebuilding .......................... 17
Section 10.6. Application of Payments ............................................. 17
Section 10.7. Prosecution of Awards ............................................... 18
Section 10.8. Application of Certain Payments Not Relating to an Event of Taking .. 18
Section 10.9. Other Dispositions. ................................................. 19
Section 10.10. No Rent Abatement ................................................... 19
ARTICLE XI QUIET ENJOYMENT ................................................................. 19
ARTICLE XII EVENTS OF DEFAULT .............................................................. 19
ARTICLE XIII ENFORCEMENT ................................................................... 23
Section 13.1. Remedies ............................................................ 23
Section 13.2. Lessee's Purchase Option. ........................................... 25
Section 13.3. Liquidated Damages. ................................................. 25
Section 13.4. Remedies Cumulative; No Waiver; Consents ............................ 26
ARTICLE XIV SALE OF LEASED PROPERTY ........................................................ 27
Section 14.1. Sale of Leased Property. ............................................ 27
Section 14.2. Signs; Showing. ..................................................... 28
Section 14.3. Lease Termination Adjustment ........................................ 28
Section 14.4. Purchase Procedure. ................................................. 30
Section 14.5. Essence of the Lease. ............................................... 31
Section 14.6. Surrender and Return. ............................................... 31
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ARTICLE XV LESSEE'S EQUIPMENT .............................................................. 32
ARTICLE XVI RIGHT TO PERFORM FOR LESSEE .................................................... 33
ARTICLE XVII MISCELLANEOUS ................................................................. 33
Section 17.1. Reports. ............................................................ 33
Section 17.2. Binding Effect; Successors and Assigns; Survival. ................... 33
Section 17.3. Notices. ............................................................ 34
Section 17.4. Severability. ....................................................... 34
Section 17.5. Amendment; Complete Agreements ...................................... 34
Section 17.6. Construction ........................................................ 34
Section 17.7. Headings. ........................................................... 35
Section 17.8. Counterparts ........................................................ 35
Section 17.9. GOVERNING LAW ....................................................... 35
Section 17.10. Liability of Lessor Limited. ........................................ 36
Section 17.11. Estoppel Certificates. .............................................. 36
Section 17.12. No Joint Venture. ................................................... 37
Section 17.13. No Accord and Satisfaction. ......................................... 37
Section 17.14. No Merger ........................................................... 37
Section 17.15. Survival ............................................................ 37
Section 17.16. Chattel Paper. ...................................................... 37
Section 17.17. Time of Essence. .................................................... 37
Section 17.18. Recordation of Lease. ............................................... 38
Section 17.19. Investment of Security Funds. ....................................... 38
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EXHIBITS
EXHIBIT A Description of Land
EXHIBIT B Form of Memorandum of Lease
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SECOND AMENDED AND RESTATED INDENTURE OF LEASE
by and between
WEST GREENWICH TECHNOLOGY ASSOCIATES, L.P., as "Lessor"
and
GTECH CORPORATION, as "Lessee"
Concerning certain facilities
located on Technology Way in
West Greenwich, Rhode Island
THIS SECOND AMENDED AND RESTATED INDENTURE OF LEASE (as from time to
time amended or supplemented, this "Lease"), dated as of December 14, 2001, is
between WEST GREENWICH TECHNOLOGY ASSOCIATES, L.P. a Rhode Island limited
partnership having its principal place of business at c/o Post Office Square
Funding Inc., c/o KeyBank National Association, 000 Xxxxxx Xxxxxx, Xxxxxxxxx
Xxxx 00000-0000 (together with its successors and permitted assigns hereunder,
"Lessor"), as lessor, and GTECH Corporation, as lessee, a Delaware corporation
having its principal place of business at 00 Xxxxxxxxxx Xxx, Xxxx Xxxxxxxxx,
Xxxxx Xxxxxx 00000 (together with its successors and permitted assigns
hereunder, "Lessee").
RECITALS:
1. The Lessor and Lessee are parties to that certain Amended and Restated
Indenture of Lease dated as of the 26th day of August, 1993, as amended (the
"Original Lease") with respect to certain real property owned by Lessor and
located in West Greenwich, Rhode Island and that certain Memorandum of Lease
filed with the Land Evidence Records for the Town of West Greenwich, Rhode
Island with respect to such property.
2. Lessor, Lessee, Key Corporate Capital Inc., as Administrative Agent, Post
Office Square Funding Inc., as General Partner, the Documentation Agent, the
Syndication Agent and Lenders have entered into that certain Participation
Agreement, dated on even date herewith (the "Participation Agreement"), under
which among other things, Lessor and Lessee have agreed to amend and restate the
Original Lease in its entirety in order to, among other things, reduce the term
of the Lease and modify the Rent payable hereunder and the rights and
obligations of the parties at the end of the term and make such other
modifications to the Original Lease that the parties deem necessary or
appropriate.
NOW, THEREFORE, Lessor and Lessee agree that, effective as of the date
hereof, the Original Lease is hereby amended and restated in its entirety as
follows:
ARTICLE I
DEFINITIONS
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in Appendix A to the Participation Agreement for all purposes
hereof.
ARTICLE II
LEASE OF LEASED PROPERTY
Section 2.1. Acceptance and Lease of Leased Property. Lessor hereby
agrees to accept the Land, as more particularly described on Exhibit A hereto,
and the Building together with any other improvements, additions, buildings,
component parts, other construction now or hereafter located thereon, or which
thereafter may be constructed thereon, and any rights, ways, easements and
servitudes pertaining thereto (the foregoing collectively referred to as the
"Leased Property") thereon, and Lessee hereby agrees to lease from Lessor the
Leased Property.
Section 2.2. Acceptance. Lessor hereby authorizes one or more employees
of Lessee, to be designated by Lessee, as the Responsible Officer or
representatives of Lessor to accept delivery on behalf of Lessor of the Leased
Property, subject to the satisfaction or waiver of the conditions set forth in
Section 3 of the Participation Agreement. Lessee hereby agrees that such
acceptance of delivery by such Responsible Officer or representatives and the
execution and delivery by Lessee on the Closing Date of this Lease and a
Memorandum of Lease shall, without further act, constitute the irrevocable
acceptance by Lessee of the Leased Property for all purposes of this Lease and
the other Operative Documents on the terms set forth therein and herein, and
that the Leased Property shall be deemed to be included in the leasehold estate
of this Lease and shall be subject to the terms and conditions of this Lease as
of the Closing Date.
ARTICLE III
TERM; RENT
Section 3.1. Lease Term. The lease term for the Leased Property (the
"Lease Term") shall commence on the Closing Date and shall end on the Lease
Termination Date.
Section 3.2. Basic Rent. Beginning with and including the first
Scheduled Payment Date occurring after the Closing Date, Lessee shall pay to the
Administrative Agent (as assignee of Lessor) the Basic Rent for the Leased
Property, in installments, payable in arrears on each Scheduled Payment Date
during the Lease Term.
Section 3.3. Additional Rent. Lessee shall pay to the Administrative
Agent, or to whomever shall be entitled thereto as expressly provided herein or
in any other Operative Document, any and all Additional Rent as and when the
same shall become due and payable and in the event of any failure on the part of
Lessee to pay any Additional Rent, the Administrative Agent shall have all
rights, powers and remedies provided for herein or by law or in equity or
otherwise in the case of nonpayment of Basic Rent. All Additional Rent to be
paid pursuant to this Section 3.3 shall be payable in the type of funds and in
the manner set forth in Section 3.4.
Section 3.4. Method of Payment. Basic Rent shall be paid to the
Administrative Agent, and Additional Rent (including, without limitation,
amounts due under Article XIV
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hereof) shall be paid to the Administrative Agent (or to such Person as may be
entitled thereto) or, in each case, to such Person as the Administrative Agent
(or such other Person) shall specify in writing to Lessee, and at such place as
the Administrative Agent (or such other Person) shall specify in writing to
Lessee, which specifications by the Administrative Agent shall be given by the
Administrative Agent at least five (5) Business Days prior to the due date
therefor. Each payment of Rent shall be made by Lessee prior to 11:00 a.m., New
York, New York time, at the place of payment in funds consisting of lawful
currency of the United States of America which shall be immediately available on
the scheduled date when such payment shall be due, unless such scheduled date
shall not be a Business Day, in which case such payment shall be made on the
next succeeding Business Day.
Section 3.5. Late Payment. If any Basic Rent shall not be paid when
due, Lessee shall pay to the Administrative Agent, as Additional Rent, interest
(to the maximum extent permitted by Applicable Law) on such overdue amount from
and including the due date thereof to but excluding the Business Day of payment
thereof at the Overdue Rate.
Section 3.6. Net Lease; No Setoff, Etc. This Lease is a net lease and
notwithstanding any other provision of this Lease, Lessee shall pay all Basic
Rent and Additional Rent, and all costs, charges, taxes, assessments and other
expenses foreseen or unforeseen, for which Lessee or any Indemnitee is or shall
become liable by reason of Lessee's or such Indemnitee's estate, right, title or
interest in the Leased Property, or that are connected with or arise out of the
Transaction, the acquisition, installation, possession, use, occupancy,
maintenance, ownership, leasing, repairs and rebuilding of, or addition to, the
Leased Property or any portion thereof, and any other amounts payable hereunder
and under the other Operative Documents without counterclaim, setoff, deduction
or defense and without abatement, suspension, deferment, diminution or
reduction, and Lessee's obligation to pay all such amounts throughout the Lease
Term is absolute and unconditional. The obligations and liabilities of Lessee
hereunder shall in no way be released, discharged or otherwise affected for any
reason, including without limitation: (a) any defect in the condition,
merchantability, design, quality or fitness for use of the Leased Property or
any part thereof, or the failure of the Leased Property to comply with all
Applicable Law, including any inability to occupy or use the Leased Property by
reason of such non-compliance; (b) any damage to, removal, abandonment, salvage,
loss, contamination of or Release from, scrapping or destruction of or any
requisition or taking of the Leased Property or any part thereof; (c) any
restriction, prevention or curtailment of or interference with any use of the
Leased Property or any part thereof including eviction; (d) any defect in title
to or rights to the Leased Property or any Lien on such title or rights or on
the Leased 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 the Administrative Agent; (f) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceedings relating to Lessee, Lessor, the Administrative Agent or any other
Person, or any action taken with respect to this Lease by any trustee or
receiver of Lessee, Lessor, the Administrative Agent or any other Person, or by
any court, in any such proceeding; (g) any claim that Lessee has or might have
against
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any Person, including without limitation, Lessor, any vendor, manufacturer,
contractor of or for the Building or any part thereof, or the Administrative
Agent; (h) any failure on the part of Lessor to perform or comply with any of
the terns of this Lease or any other Operative Document or of any other
agreement; (i) any invalidity or unenforceability or illegality or disaffirmance
of this Lease against or by Lessee or any provision hereof or any of the other
Operative Documents or any provision of any thereof whether or not related to
the Transaction; (j) the impossibility or illegality of performance by Lessee,
Lessor or both; (k) any action by any court, administrative agency or other
Governmental Authority; (1) any restriction, prevention or curtailment of or
interference with the operation and any use of the Leased Property or any part
thereof, or (m) any other occurrence whatsoever, whether similar or dissimilar
to the foregoing, whether or not Lessee shall have notice or knowledge of any of
the foregoing. Except as specifically set forth in Article XI of this Lease,
this Lease shall be noncancellable by Lessee in any circumstance whatsoever and
Lessee, to the extent permitted by Applicable Law, 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. Each payment of Rent made by Lessee hereunder shall be final and
Lessee shall not seek or have any right to recover all or any part of such
payment from Lessor, the Administrative Agent or any party to any agreements
related thereto for any reason whatsoever. Lessee assumes the sole
responsibility for the condition, use, operation, maintenance, and management of
the Leased Property and Lessor shall have no responsibility in respect thereof
and shall have no liability for damage to the property of either Lessee or any
subtenant of Lessee on any account or for any reason whatsoever, other than
solely by reason of Lessor's willful misconduct or gross negligence.
Section 3.7. Certain Taxes. Without limiting the generality of Sections
3.4 and 3.6 hereof (and without limiting any of Lessee's obligations under
Section 7.4 of the Participation Agreement), Lessee agrees to pay when due all
real estate taxes, personal property taxes, gross sales taxes, including any
sales, transfer, use or lease tax imposed upon the rental payments hereunder or
under a sublease, occupational license taxes, water charges, sewer charges,
assessments of any nature and all other governmental impositions, levies, fees
and charges of every kind and nature whatsoever, whether federal, state or local
(the "Tax(es)"), when the same shall be due and payable without penalty or
interest. It is the intention of the parties hereto that, insofar as the same
may lawfully be done, Lessor shall be, except as specifically provided for
herein, free from all expenses in any way related to the Leased Property and the
use and occupancy thereof. Any tax relating to a fiscal period of any taxing
authority falling partially within and partially outside the Lease Term, shall
be apportioned and adjusted between Lessor and Lessee. Lessee covenants to
furnish Lessor and Administrative Agent, upon Lessor's or Administrative Agent's
request, within forty-five (45) days after the last date when any Tax must be
paid by Lessee as provided in this Section 3.7, official receipts of the
appropriate taxing, authority or other proof satisfactory to Lessor and
Administrative Agent, evidencing the payment thereof.
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Lessee may defer payment of a Tax so long as the validity or the amount
thereof is contested by Lessee with diligence and in good faith; provided,
however, that (i) the commencement and continuation of such proceedings shall
suspend the collection thereof from, and suspend the enforcement thereof
against, Lessor, the Administrative Agent and the Leased Property, (ii) no part
of the Leased Property nor any Basic Rent or Additional Rent shall be in danger
of being sold, forfeited, attached or lost, (iii) there shall not exist because
of such contest (x) any interference with the use and occupancy of the Leased
Property or any part thereof, or (y) any interference with the payment of Basic
Rent or Additional Rent (other than the portion subject to the contest), (iv)
Lessee shall promptly prosecute such contest to a final settlement or
conclusion, or if Lessee deems it advisable to abandon such contest, Lessee
shall promptly pay or perform the obligation which was the subject of such
contest, (v) at no time during the permitted contest shall there be a risk of
the imposition of criminal liability on Lessor, the Administrative Agent or any
Indemnitee for failure to comply therewith, and (vi) any such contest must be
completed and/or the related tax paid in full prior to the commencement of the
Remarketing Period.
Section 3.8. Utility Charges. Lessee agrees to pay or cause to be paid
as and when the same are due and payable all charges for gas, water, sewer,
electricity, lights, heat, power, telephone or other communication service and
all other utility services used, rendered or supplied to, upon or in connection
with the Leased Property.
ARTICLE IV
WAIVERS
During the Lease Term, Lessor's interest in the Leased Property is
demised and let by Lessor "AS IS" subject to (a) the rights of any parties in
possession thereof, (b) the state of the title thereto existing at the time
Lessor acquired its interest in the Leased Property, (c) any state of facts
which an accurate survey or physical inspection might show (including the survey
delivered on the Closing Date), (d) all Applicable Law, and (e) any violations
of Applicable Law which may exist upon or subsequent to the commencement of the
Lease Term. LESSEE ACKNOWLEDGES THAT, ALTHOUGH LESSOR MAY OWN AND HOLD TITLE TO
THE LEASED PROPERTY, LESSOR IS NOT RESPONSIBLE FOR THE DESIGN, DEVELOPMENT AND
CONSTRUCTION OF THE BUILDING OR ANY ALTERATIONS. NEITHER LESSOR NOR THE
ADMINISTRATIVE AGENT HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO HAVE ANY LIABILITY
WHATSOEVER AS TO THE VALUE, MERCHANTABILITY, TITLE, HABITABILITY, CONDITION,
DESIGN, OPERATION, OR FITNESS FOR USE OF THE LEASED PROPERTY (OR ANY PART
THEREOF), OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE LEASED PROPERTY (OR ANY PART THEREOF), ALL SUCH
WARRANTIES BEING HEREBY DISCLAIMED, AND NEITHER LESSOR NOR THE ADMINISTRATIVE
AGENT SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE
FAILURE OF
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THE LEASED PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAW. As
between Lessor and Lessee, Lessee has been afforded full opportunity to inspect
the Leased Property, is satisfied with the results of its inspections of such
Leased Property and is entering into this Lease solely on the basis of the
results of its own inspections and all risks incident to the matters discussed
in the two preceding sentences, as between Lessor or the Administrative Agent on
the one hand, and Lessee, on the other, are to be borne by Lessee. The
provisions of this Article IV have been negotiated, and, except to the extent
otherwise expressly stated, the foregoing provisions are intended to be a
complete exclusion and negation of any representations or warranties by Lessor
or the Administrative Agent, express or implied, with respect to the Leased
Property, that may arise pursuant to any law now or hereafter in effect, or
otherwise.
ARTICLE V
LIENS; EASEMENTS; PARTIAL CONVEYANCES
Except for Permitted Liens and Lessor Liens, Lessee shall not directly
or indirectly create, incur or assume, or permit to exist, any Lien on or with
respect to the Leased Property or any other property subject to the Memorandum
of Lease, the title thereto, or any interest therein, including any Liens which
arise out of or by reason of (i) the possession, use, occupancy, construction,
repair or rebuilding of the Leased Property, (ii) labor or materials furnished
or claimed to have been furnished to Lessee, or any of its contractors or
agents, (iii) the financing of any personalty or equipment purchased or leased
by Lessee from third parties and not financed by Lessor or (iv) Alterations
constructed by Lessee.
Notwithstanding the foregoing paragraph, at the request of Lessee,
Lessor shall, from time to time during the Lease Term and upon reasonable
advance written notice from Lessee, and receipt of the materials specified in
the next succeeding sentence, consent to and join in any (i) grant of easements,
licenses, rights of way and other rights in the nature of easements, including,
without limitation, utility easements which in each case facilitate Lessee's
use, development and construction of the Leased Property, (ii) release or
termination of easements, licenses, rights of way or other rights in the nature
of easements which release and terminations are for the benefit of the Land or
the Building or any portion thereof, (iii) dedication or transfer of portions of
the Land, not improved with a building, for road, highway or other public
purposes, provided the same are for the benefit of the Land or Building, (iv)
execution of agreements for ingress and egress and amendments to any covenants
and restrictions affecting the Land or the Building or any portion thereof and
(v) request to any Governmental Authority for platting or subdivision or
replatting or resubdivision approval with respect to the Land or any portion
thereof or any parcel of land of which the Land or any portion thereof forms a
part or a request for any variance from zoning or other governmental
requirements. Lessor's obligations pursuant to the preceding sentence shall be
subject to the requirements that:
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(a) any such action shall be at the sole cost and expense of
Lessee and Lessee shall pay all reasonable out-of-pocket costs of
Lessor, the Partners, the Administrative Agent and the Lenders, in
connection therewith (including, without limitation, the reasonable
fees of attorneys, architects, engineers, planners, appraisers and
other professionals reasonably retained by Lessor, the Partners, the
Administrative Agent or the Lenders in connection with any such
action);
(b) Lessee shall have delivered to Lessor, the Lenders and the
Administrative Agent a certificate of a Responsible Officer of Lessee
stating that
(1) such action will not cause the Leased
Property or any portion thereof to fail to comply in
any respect with the provisions of the Lease or any
other Operative Documents, or in any respect with
Applicable Law; and
(2) such action will not materially reduce
the Fair Market Sales Value, utility or useful life
of the Leased Property, or any portion thereof nor
Lessor's interest therein; and
(c) in the case of any release or conveyance, if Lessor or the
Administrative Agent so reasonably requests, Lessee will cause to be
issued and delivered to Lessor by the Title Insurance Company an
endorsement to the Title Policy pursuant to which the Title Insurance
Company agrees that its liability for the payment of any loss or damage
under the terms and provisions of the Title Policy will not be affected
by reason of the fact that a portion of the real property referred to
in Schedule A of the Title Policy has been released or conveyed by
Lessor.
ARTICLE VI
MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS
Section 6.1. Maintenance and Repair; Compliance With Law. Lessee, at
its own expense, shall at all times (a) maintain the Leased Property in good
repair and condition and in the same condition as on the Closing Date (subject
to ordinary wear and tear), in accordance with prudent industry standards for
first class office space, computer software and hardware research and
development and light manufacturing and related purposes, and, in any event, in
no less a manner as other similar office, computer software and hardware
research and development and light manufacturing facilities owned or leased by
Lessee or its Affiliates, (b) make and complete all Alterations in accordance
with Applicable Laws and Insurance Requirements, (c) maintain (whether or not
such maintenance requires structural modifications or Alterations), operate and
otherwise keep the Leased Property in compliance with all Applicable Laws and
Insurance Requirements, and (d) make all material repairs, replacements and
renewals of the Leased Property or any part thereof
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which may be required to keep the Leased Property in the condition required by
the preceding clauses (a), (b) and (c). Lessee shall perform the foregoing
maintenance obligations regardless of whether the Leased Property is occupied or
unoccupied. Lessee waives any right that it may now have or hereafter acquire to
(i) require Lessor or the Administrative Agent to maintain, repair, replace,
alter, remove or rebuild all or any part of the Leased Property or (ii) make
repairs at the expense of Lessor or the Administrative Agent pursuant to any
Applicable Law or other agreements or otherwise. NEITHER LESSOR NOR THE
ADMINISTRATIVE AGENT SHALL BE LIABLE TO LESSEE OR TO ANY CONTRACTORS,
SUBCONTRACTORS, LABORERS, MATERIALMEN, SUPPLIERS OR VENDORS FOR SERVICES
PERFORMED OR MATERIAL PROVIDED ON OR IN CONNECTION WITH ANY LEASED PROPERTY OR
ANY PART THEREOF. Neither Lessor nor the Administrative Agent shall be required
to maintain, alter, repair, rebuild or replace the Leased Property in any way.
Section 6.2. Alterations. Lessee may, without the consent of Lessor,
General Partner or the Administrative Agent, at Lessee's own cost and expense,
make Alterations provided that:
(a) no Alteration shall be made if it would materially and
adversely affect the marketability, Fair Market Sales Value, utility,
useful life or residual value of the Leased Property or any part
thereof from that which existed immediately prior to such Alteration;
(b) the Alteration shall be done in a good and workmanlike
manner;
(c) the Alteration shall comply in all material respects with
all Insurance Requirements and Applicable Law (including all
Environmental Laws) applicable to such Alteration, including the
obtaining of any necessary permits;
(d) subject to the terms of Section 3.7 relating to permitted
contests, Lessee shall pay all costs and expenses and shall discharge
(or cause to be insured or bonded over) within sixty (60) days after
the same shall be filed (or otherwise become effective) any Liens
arising with respect to the Alteration; and
(e) If Lessee reasonably expects the cost of any Alteration to
exceed $2,000,000, a description of the work to be performed in
connection with such Alterations shall be delivered prior to
commencement thereof to the General Partner and Administrative Agent;
and if Lessee reasonably expects the cost of such Alteration to exceed
$4,000,000, Lessee shall obtain prior written approval (which approval
shall not be unreasonably withheld) of General Partner and the
Administrative Agent.
Section 6.3. Title to Alterations. Title to all Alterations which are
non-severable shall, without further act, vest in Lessor and shall be deemed to
constitute a part of the Leased Property and be subject to this Lease, provided
that Lessee shall have the right to
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remove trade fixtures, personal property and equipment which (a) are not
required by any Applicable Law or Insurance Requirement, and (b) are readily
removable without impairing the Fair Market Sales Value, utility, remaining
useful life or residual value of the Leased Property.
ARTICLE VII
USE
Lessee may use the Leased Property or any part thereof only as first
class office space, computer software and hardware research and development and
light manufacturing facilities, including a fitness center and kitchen and
cafeteria for employees, and related purposes and in a manner consistent with
the standards applicable to properties of a similar nature in the geographic
area in which such Leased Property is located provided, that, in no event shall
Lessee use the Leased Property if such use materially adversely affects the Fair
Market Sales Value, utility, remaining useful life or residual value of such
Leased Property, or violates or conflicts with, or constitutes or results in a
default under, any Applicable Law or any Insurance Requirements. Lessee shall
not commit or permit any waste of the Leased Property or any part thereof.
ARTICLE VIII
INSURANCE
Section 8.1. Maintenance of Insurance. The Lessee shall maintain
insurance as set forth herein.
(a) Commercial Liability Insurance. During the Lease Term, the
Lessee shall procure and carry or cause to be procured and carried, at
Lessee's sole cost and expense, commercial general liability insurance
(including contractual liability (specifically covering this Lease),
cross liability, legal liability, and premises operations) for damages
arising during the Lease Term from the acts or omissions of Lessee, its
agents, contractors and invitees, while located on, in possession of,
or controlling or acting or failing to act with respect to the Leased
Property and for claims for injuries or death sustained by persons or
damage to the Leased Property while on the Leased Property. The terms
and amounts of such liability insurance shall be consistent with normal
industry practice, but in any event not less than the scope and amount
of coverage as are ordinarily procured by Lessee with respect to
properties similar to the Leased Property; provided, however, that such
coverage shall be in an amount of at least $10,000,000 per occurrence
limit and aggregate limit, as applicable. In no event shall insurance
be provided on a claims made coverage basis.
(b) All-Risk Insurance. During the Lease Term, Lessee shall
maintain, at its sole cost and expense, as a part of its blanket
policies or otherwise, an all-risk property policy or policies with
respect to the Building insuring Lessor's interest in the Building
including resulting damage from collapse, coverage for life, flood,
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hurricanes and earthquakes and coverage against damage or loss caused
by machinery accidents and operational and performance testing and
start-up, with extended coverage, written on completed value form
(without deduction for depreciation). Such coverage shall provide
coverage for insuring the buildings, non-temporary structures,
machinery, equipment, facilities, fixtures, supplies and other property
constituting part of the Leased Property, including but not limited to
boiler and machinery insurance covering pressure vessels, air tanks,
boilers, machinery, pressure piping, heating, ventilation and air
conditioning equipment, and elevator and escalator equipment.
(c) Builder's Risk Insurance. During the Lease Term, in
connection with any construction of an Alteration to the Building or
other construction or reconstruction with respect to the Building,
Lessee shall arrange, on behalf of Lessor, to obtain and keep in force
an all-risk property policy or policies including builder's risk
insurance with respect to the Building and such construction or
reconstruction insuring Lessor's interest in the Building and such
construction or reconstruction including resulting damage from
collapse, coverage for fire, flood, hurricanes and earthquakes and
coverage against damage or loss caused by machinery accidents and
operational and performance testing and start-up, with extended
coverage, written on a Standard Builder's Risk completed value form
(without deduction for depreciation). Such coverage shall provide (1)
coverage for insuring the buildings, non-temporary structures,
machinery, equipment, facilities, fixtures, supplies and other property
constituting part of the Leased Property including but not limited to
boiler and machinery insurance covering pressure vessels, air tanks,
boilers, machinery, pressure piping, heating, ventilation and air
conditioning equipment, and elevator and escalator equipment, (2)
inland transit coverage, (3) off-site (within 1000 feet of the insured
Building) coverage with sublimits sufficient to insure the full
replacement value of any equipment, supplies and materials not stored
at the Land, (4) removal of debris, (5) increased cost of construction,
and (6) coverage for foundations and other property below the surface
of the ground, but the interest of contractors, subcontractors and
agents in insured property during construction at the insured location
or within 1000 feet thereof is insured only to the extent of Lessee's
legal liability for insured physical loss or damage to such property.
Lessee shall promptly deliver all reports or information to the
appropriate recipient which may be required under such policy or
policies in order to ensure that the coverage provided with respect to
such construction is in an amount equal to the Funded Amounts advanced
under the Operative Documents.
(d) Deductibles. The insurance required to be maintained by
Lessee under Subsection (a) may be subject to such deductible amounts
or periods, as applicable as is consistent with Lessee's practice for
other properties similar to the Leased Property owned or leased by
Lessee, and may be carried under blanket policies maintained by or on
behalf of Lessee so long as such policies otherwise comply with the
provisions of this Section 8; provided, however, that no deductible
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amount under any such policy of liability insurance shall, without the
consent of Lessor and Administrative Agent, exceed $500,000 with
respect to Builder's Risk and All-Risk Insurance or $1,000,000 with
respect to commercial liability insurance.
(e) Coverage. All insurance required to be carried pursuant to
the requirements of this Article VIII shall be written by reputable
insurance companies, authorized to do business in the jurisdiction
where the Leased Property is located, that are financially sound and
solvent and otherwise reasonably appropriate considering the amount and
type of insurance being provided by such companies. Any insurance
company selected by Lessee which is rated in Best's Insurance Guide or
any successor thereto (or if there be none, an organization having a
similar national reputation) shall have a general policyholder rating
of A+ and a financial rating of at least "XIV" or, if not rated in
Best's Insurance Guide, an S&P rating of A or better on its claims
paying ability, or be otherwise reasonably acceptable to Lessor and the
Required Lenders.
Section 8.2. Endorsements. All insurance required to be carried or
arranged for by Lessee pursuant to the requirements of Section 8.1 shall provide
in the policy or by special endorsement that:
(a) in the case of insurance required by Sections 8.1 (a),
Lessor, the Administrative Agent, General Partner and the Lenders are
included as additional insureds as their interest may appear;
(b) in the case of insurance required by Sections 8.1 (b) and
(c), the Administrative Agent is named as the named insured and sole
loss payee and such insurance shall include a standard form mortgagee
endorsement in favor of Lessor and the Administrative Agent and
completed value endorsements;
(c) the insurer thereunder waives all rights of subrogation
against Lessor, the Partners, the Administrative Agent and the Lenders
and any affiliates and waives any right of set-off and counterclaim and
any other right to deduction whether by attachment or otherwise;
(d) such insurance shall be primary, shall include coverage
for costs of defense of claims, and shall apply to any loss or claim
before any contribution of any other insurance carried by or on behalf
of Lessor, the Partners, the Administrative Agent or the Lenders;
(e) if the insurers cancel such insurance for any reason
whatsoever or any adverse change is made in policy terms or conditions,
such cancellation or change shall not be effective as to any additional
insured or loss payee for thirty (30) days after receipt by Lessor, the
Partners and the Administrative Agent of written notice from such
insurers of such cancellation or change; and if such
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insurance is allowed to lapse for nonpayment of premium, such lapse
shall not be effective as to any additional insured for thirty (30)
days after receipt by the additional insureds of written notice from
such insurers of such lapse;
(f) with respect to all liability insurance, in as much as the
policies are written to cover more than one insured, all terms,
conditions, insuring agreements and endorsements, with the exception of
the limits of liability, shall operate in the same manner as if there
were a separate policy covering each insured, and such insurance shall
be endorsed to provide a severability of interest or cross liability
clause; and
(g) such policies will not be invalidated should the Lessee
waive, in writing, prior to a loss, any or all rights of recovery
against any party for losses covered by such policy, and that the
insurance in favor of the Lessor, the Administrative Agent, the
Partners and the Lenders and their respective rights under and
interests in such policies shall not be invalidated or reduced by any
act or omission (including breach of warranty) or negligence of the
Lessee or any other Person having any interest in the Leased Property.
Section 8.3. Adjustment of Losses. Claims under insurance policies
required to be carried under Section 8.1 (a) shall be adjusted with the
insurance companies by Lessee, at Lessee's sole cost and expense.
Notwithstanding the foregoing, Lessor and Administrative Agent may participate
in any such proceeding, action, negotiation, prosecution or adjustment at Lessor
or Administrative Agent's sole cost and expense, unless (x) Lessor or
Administrative Agent, as applicable, has been named in such claim or demand, in
which case participation shall be at Lessee's sole cost and expense or (y)
Lessor or Administrative Agent would be entitled to be indemnified as a result
of such claim in which case Lessor's or Administrative Agent's participation in
proceedings, actions, negotiations, prosecutions or adjustments relating thereto
and costs incurred thereby shall be subject to Section 7 of the Participation
Agreement. Losses, if any, under any policies required to be carried under
Sections 8.1 (b) or (c) shall be adjusted with the insurance companies,
including the filing of appropriate proceedings, by Lessee, unless a Lease Event
of Default shall exist and be continuing in which case such losses shall be
adjusted by the Administrative Agent if it so elects, but in any event, at
Lessee's sole cost and expense.
Section 8.4. Application of insurance Proceeds. All proceeds of
insurance maintained pursuant to Section 8.1 (b) and (c) on account of any
damage to or destruction of the Leased Property or any part thereof during the
Lease Term shall be applied in accordance with Section 8.2(d) of the
Participation Agreement.
Section 8.5. Additional Insurance. Any additional insurance obtained by
Lessee, Lessor or the Administrative Agent shall provide that it shall not limit
the insurance described in Sections 8.1 (a), (b) and (c), or increase the amount
of any premium payable with respect to any such insurance. The proceeds of any
additional insurance will be for the account of the party maintaining such
additional insurance.
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ARTICLE IX
ASSIGNMENT AND SUBLEASING
Section 9.1. Assignment. Lessee may not assign any of its right, title
or interest in, to or under this Lease except (1) to Affiliates of Lessee, so
long as the Guarantors confirm in writing to Lessor then the Guaranty shall
remain in full force and effect following such assignment and (2) to any other
assignee, so long as such assignment is the result of a merger or acquisition
involving Lessee that is permitted pursuant to the Participation Agreement,
provided, however, that in the case of both clauses (1) and (2), no Event of
Default shall have occurred and be continuing.
Section 9.2. Subleasing. Lessee may not sublease all or any portion of
the Leased Property unless each of the following conditions are satisfied or
waived in writing by Lessor and the Administrative Agent: (a) no Event of
Default shall have occurred or be continuing; (b) Lessee shall remain primarily
liable for all obligations hereunder and under the other Operative Documents and
all obligations of Lessee shall continue in full effect as obligations of a
principal and not of a guarantor or surety, as though no sublease had been made;
(c) such sublease shall be expressly subject and subordinate to this Lease, the
Loan Agreement and the other Operative Documents; (d) each such sublease shall
terminate on or before the Lease Termination Date; and (e) Lessee shall cause
any such sublessee to execute and deliver such instruments as may be reasonably
requested by Lessor to evidence such sublease arrangement.
Section 9.3. Mortgage, pledge. Except pursuant to an Operative
Document, this Lease shall not be mortgaged or pledged by Lessee, nor shall
Lessee mortgage or pledge any interest in any Leased Property or any portion
thereof. Any such mortgage or pledge shall be void.
ARTICLE X
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
Section 10.1. Event of Loss. Any event (i) which would otherwise
constitute a Casualty during the Lease Term, and (ii) which, in the good faith
judgment of Lessee, renders repair and restoration of the Leased Property
impractical or uneconomical, and (iii) as to which Lessee, within sixty (60)
days after the occurrence of such event, delivers to Lessor a certificate of a
Responsible Officer notifying Lessor of such event and of such judgment and
containing an irrevocable offer by Lessee to purchase the Leased Property (and
in any related insurance or award proceeds) on the next Scheduled Payment Date
of a price equal to the Lease Balance, shall constitute an "Event of Loss". In
the case of any other event which constitutes a Casualty, Lessee shall restore
such Leased Property pursuant to Sections 10.3 and 10.4. If an Event of Loss
shall occur, Lessee shall pay to Lessor on the next Scheduled Payment Date
following delivery of the Officer's Certificate pursuant to clause (iii) above,
in immediately available funds, an amount equal to the Lease Balance. Upon
Lessor's receipt of the Lease Balance on such date, Lessor shall accept such
offer and cause Lessor's interest in such Leased Property to be conveyed to
Lessee in
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accordance with and subject to the provisions of Section 14.4 hereof; upon
completion of such purchase, but not prior thereto, this Lease and all
obligations hereunder with respect to the Leased Property shall terminate,
except with respect to obligations and liabilities hereunder, actual or
contingent, that have arisen or relate to events occurring on or prior to such
date of purchase, or which are expressly stated herein to survive termination of
this Lease.
Upon the satisfactory consummation of the purchase of the Leased
Property pursuant to this Section 10.1, (i) any proceeds derived from insurance
required to be maintained by Lessee pursuant to this Lease for such Leased
Property remaining after payment of such purchase price shall be paid over to,
or retained by, Lessee or as it may direct, (ii) Lessor shall assign to Lessee,
without warranty, all of Lessor's rights to and interest in such insurance
required to be maintained by Lessee pursuant to this Lease, and (iii) Lessee's
obligation to pay Basic Rent with respect to such Leased Property shall
terminate on such Scheduled Payment Date.
Section 10.2. Event of Taking. Any event (i) which constitutes a taking
of title to all of, or substantially all of, the Leased Property, or (ii) (A)
which would otherwise constitute a Condemnation, and (B) which, in the
good-faith judgment of Lessee, renders restoration and rebuilding of the Leased
Property impossible, impractical or uneconomical, and (C) as to which Lessee,
within sixty (60) days after the occurrence of such event, delivers to Lessor a
certificate of a Responsible Officer notifying Lessor of such event and of such
judgment and containing an irrevocable offer by Lessee to purchase the Leased
Property (and in any related insurance or award proceeds) on the next Scheduled
Payment Date of a price equal to the Lease Balance, shall constitute an "Event
of Taking". In the case of any other event which constitutes a Condemnation,
Lessee shall restore and rebuild such Leased Property pursuant to Sections 10.3
and 10.4. If an Event of Taking shall occur, Lessee shall pay to Lessor on the
next Scheduled Payment Date following delivery of the Officer's Certificate
pursuant to clause (ii) above, an amount equal to the Lease Balance. Upon
Lessor's receipt of such Lease Balance on such date, Lessor shall accept such
offer and cause Lessor's interest in such Leased Property to be conveyed to
Lessee in accordance with and subject to the provisions of Section 14.4 hereof
(provided that such conveyance shall be subject to all rights of the condemning
authority); upon completion of such purchase, but not prior thereto, this Lease
and all obligations hereunder with respect to the Leased Property shall
terminate, except with respect to obligations and liabilities hereunder, actual
or contingent, that have arisen or relate to events occurring on or prior to
such date of purchase, or which are expressly stated herein to survive
termination of this Lease.
Upon the satisfactory consummation of the purchase of the Leased
Property pursuant to this Section 10.2, (i) all Awards received by Lessor with
respect to such Event of Taking, after deducting any reasonable costs incurred
by Lessor in collecting such Awards, received or payable on account of an Event
of Taking with respect to such Leased Property during the Lease Term shall be
paid to Lessee, (ii) all rights of Lessor in Awards
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with respect to such Event of Taking not then received shall be assigned to
Lessee by Lessor, and (iii) Lessee's obligation to pay Basic Rent with respect
to such Leased Property shall terminate on such Scheduled Payment Date.
Section 10.3. Casualty; Condemnation. If a Casualty or Condemnation
shall occur which does not result in a purchase by Lessee pursuant to Section
10.1 or Section 10.2, respectively, (i) Lessee shall (x) rebuild and restore the
Leased. Property, (y) complete the same prior to the Lease Termination Date, and
(z) cause the conditions set forth in Section 10.4 to be fulfilled with respect
to such restoration and rebuilding prior to the Lease Termination Date,
regardless of whether insurance proceeds received as a result of such Casualty
or Awards paid as a result of such Condemnation, as the case may be, are
sufficient for such purpose, and (ii) this Lease shall continue in full force
and effect with respect to such Leased Property.
Section 10.4. Procedure upon Repair and Restoration. In the event that
Lessee has the obligation under Section 10.3 hereof to repair or restore the
Leased Property after any Casualty or Condemnation, neither Lessor nor that
Administrative Agent shall have any obligation to make any Loss Proceeds held by
it available for such repair or reconstruction unless Lessee has satisfied all
of the following conditions precedent:
(a) Lessee shall provide written notice thereof to Lessor and
the Administrative Agent, which notice shall include details as to the
cost to repair or restore the Leased Property and all of the other
matters described below in this Section 10.4;
(b) Lessee shall have complied with all the requirements of
Article VI above;
(c) Lessee shall have supplied a complete budget for such
repair or reconstruction, including all hard costs and soft costs
(including, without limitation, all Rent and Additional Rent which must
be paid during such construction period), and shall have received
Lessor's and the Administrative Agent's approval thereof, such approval
not to be unreasonably withheld;
(d) If the cost to repair the Leased Property shall exceed
$1,000,000, Lessee shall have deposited with the Administrative Agent
the difference, if any between the cost of such repair or
reconstruction, as set forth in the approved project budget, and the
amount of the Loss Proceeds;
(e) Lessee shall have supplied evidence of obtaining all
governmental permits from all Governmental Authorities necessary to
repair or reconstruct the Leased Property in accordance with the
approved plans;
(f) If the cost to repair the Leased Property shall exceed
$1,000,000, Lessee shall have caused to be executed and delivered to
Lessor and Administrative
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Agent such payment, performance and completion bonds or such other
guaranties of performance and completion bonds or such other guaranties
of lien-free completion as Lessor or such Administrative Agent may
reasonably require;
(g) No Lease Event of Default or Lease Default shall exist;
(h) Lessee shall have executed and delivered (or caused to be
executed and delivered) to Lessor and the Administrative Agent such
documentation as sophisticated construction lenders typically require
in making construction loans of similar magnitude, such documentation
to include, without limitation, an assignment of project contracts,
certifications from contractors, architects and engineers, payment,
performance and lien-free completion bonds and opinions of counsel as
to permitting, zoning and environmental matters with respect to the
repair or reconstruction being undertaken;
(i) Lessee shall have delivered to Lessor and the
Administrative Agent such estoppel certificates as Lessor and the
Administrative Agent may reasonably require to confirm that this Lease
remains in full force and effect and that Lessee shall continue to pay,
perform and observe all of its obligations hereunder during and after
such period of repair or reconstruction;
(j) Lessee shall furnish such evidence as Lessor or the
Administrative Agent may reasonably request that all such repair and/or
reconstruction work shall be completed in full compliance with all of
the terms of this Lease;
(k) Lessee shall furnish such evidence as Lessor and the
Administrative Agent may reasonably request that all such repair and/or
reconstruction will be fully completed, by the use of standard
construction techniques and practices for a building of the type in
question, within one year from the date of the Casualty or
Condemnation; and
(l) Lessee shall furnish such information as Lessor and the
Administrative Agent may reasonably request confirming that all such
repair and/or restoration work shall be fully completed at least on (1)
year prior to the Lease Termination Date.
All reasonable costs and expenses of Lessor and the Administrative
Agent incurred in connection with the disbursement of any Loss Proceeds and
documentation required in connection therewith, including without limitation,
fees of architects, engineers and attorneys will be paid by Lessee within thirty
(30) days after demand by Lessor or to the extent that the Loss Proceeds so
received shall exceed the cost of repair or restoration, such excess shall be
paid to Lessee so long as no Lease Default or Lease Event of Default shall have
occurred and be continuing.
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Section 10.5. Verification. In the event of Casualty or Condemnation,
to verify Lessee's compliance with the foregoing Sections 10.3 and 10.4, Lessor,
the Administrative Agent and their respective Responsible Officers may, upon
five (5) Business Days' notice to Lessee, make inspections of the Leased
Property with respect to (i) the extent of the Casualty or Condemnation and (ii)
the restoration and rebuilding of the Building and the Land. All reasonable
out-of-pocket costs of such inspections incurred by Lessor or the Administrative
Agent will be paid by Lessee promptly after written request. No such inspection
shall unreasonably interfere with Lessee's operations or the operations of any
other occupant of such Leased Property. None of the inspecting parties shall
have any duty to make any such inspection or inquiry and none of the inspecting
parties shall incur any liability or obligation by reason of making or not
making any such inspection or inquiry.
Section 10.6. Application of Payments. All proceeds (except for
payments under insurance policies maintained other than pursuant to Article VIII
of this Lease) received at any time by Lessor, Lessee or the Administrative
Agent from any Governmental Authority or other Person with respect to any
Condemnation or Casualty to the Leased Property or any part thereof or with
respect to an Event of Loss or an Event of Taking & the amount of any payment
that would have been due from an insurer but for Lessee's self-insurance or
deductibles ("Loss Proceeds"), shall (except to the extent Section 10.9 applies)
be applied as follows:
(a) In the event Lessee purchases such Leased Property
pursuant to Section 10.1 or Section 10.2, such Loss Proceeds shall be
applied as set forth in Section 8.2(d) of the Participation Agreement;
(b) In the event of a Casualty at such time when no Event of
Default has occurred and is continuing and Lessee is obligated to
repair and rebuild such Leased Property pursuant to Section 10.3,
Lessee may, in good faith and subsequent to the date of such Casualty,
certify to Lessor and to the applicable insurer that no Event of
Default has occurred, in which event the applicable insurer shall pay
the Loss Proceeds to Lessee, unless the estimated cost of restoration
exceeds $1,000,000, in which case the Loss Proceeds shall be paid to
the Administrative Agent (or Lessor if the Funded Amounts have been
paid in full), and shall be promptly released to Lessee upon
certification by Lessee to Lessor, the Partners, and the Administrative
Agent that Lessee has incurred costs in the amount requested to be
released and has satisfied Section 10.4 hereof for the repair and
rebuilding of such Leased Property;
(c) In the event of a Condemnation at such time when no Event
of Default has occurred and is continuing and Lessee is obligated to
repair and rebuild such Leased Property pursuant to Section 10.3,
Lessor shall upon Lessee's request assign to Lessee its interest in any
applicable Awards; and
(d) As provided in Section 10.8 if such section is applicable.
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During any period of repair or rebuilding pursuant to this Article X,
this Lease will remain in full force and effect and Basic Rent and Additional
Rent shall continue to accrue and be payable without abatement or reduction.
Lessee shall maintain records setting forth information relating to the
receipt and application of payments in accordance with this Section 10.6. Such
records shall be kept on file by Lessee at its offices and shall be made
available to Lessor and the Administrative Agent upon request.
Section 10.7. Prosecution of Awards.
(a) If, during the continuance of any Event of Default, any
Condemnation shall occur, Lessee shall give to Lessor, the Partners,
and the Administrative Agent promptly, but in any event within ten (1
0) days after the occurrence thereof, written notice of such
occurrence and the date thereof, generally describing the nature and
extent of such Condemnation. With respect to any Event of Taking or
any Condemnation, Lessee shall control the negotiations with the
relevant Governmental Authority as to any proceeding in respect of
which Awards are required, under Section 10.6, to be assigned or
released to Lessee, unless an Event of Default shall have occurred and
be continuing, in which case (1) the Administrative Agent (or Lessor
if the Funded Amounts have been fully paid) shall control such
negotiations; and (2) Lessee hereby irrevocably assigns, transfers and
sets over to Lessor all rights of Lessee to any Award made during the
continuance of an Event of Default and, if there will not be separate
Awards to Lessor and Lessee on account of such Event of Taking or
Condemnation, irrevocably authorizes and empowers the Administrative
Agent (or Lessor if the Funded Amounts have been fully paid) during
the continuance of an Event of Default, with full power of
substitution, in the name of Lessee or otherwise (but without limiting
the obligations of Lessee under this Article X), to file and prosecute
what would otherwise be Lessee's claim for any such Award and to
collect, receipt for and retain the same; provided, however, that in
any event Lessor and the Administrative Agent may participate in such
negotiations, and no settlement will be made without the prior consent
of the Administrative Agent (or Lessor if the Funded Amounts have been
fully paid), not to be unreasonably withheld.
(b) Notwithstanding the foregoing, Lessee may prosecute, and
Lessor shall have no interest in, any claim with respect to Lessee's
trade fixtures, personal property and equipment and Lessee's relocation
expenses.
Section 10.8. Application of Certain Payments not relating to an Event
of Taking. In case of a requisition for temporary use of all or a portion of the
Leased Property which is not an Event of Taking, this Lease shall remain in till
force and effect with respect to such Leased Property, without any abatement or
reduction of Basic Rent, and the Awards for such Leased Property shall, unless
an Event of Default has occurred and is continuing, be paid to Lessee.
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Section 10.9. Other Dispositions. Notwithstanding the foregoing
provisions of this Article X, so long as an Event of Default shall have
occurred and be continuing, any amount that would otherwise be payable to or
for the account of, or that would otherwise be retained by, Lessee pursuant to
this Article X shall be paid to the Administrative Agent (or Lessor if the
Funded Amounts have been fully paid) as security for the obligations of Lessee
under this Lease and applied in accordance with Section 8.2(c) of the
Participation Agreement or, at such time thereafter as no Event of Default
shall be continuing, such amount shall be paid promptly to Lessee to the extent
not previously applied by Lessor or the Administrative Agent in accordance with
the terms of this Lease or the other Operative Documents.
Section 10.10. No Rent Abatement. Rent shall not xxxxx hereunder by
reason of any Casualty, any Event of Loss, any Event of Taking or any
Condemnation of the Leased Property, and Lessee shall continue to perform and
fulfill all of Lessee's obligations, covenants and agreements hereunder
notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation
until the Lease Termination Date.
ARTICLE XI
QUIET ENJOYMENT
Lessor covenants that it will not interfere in Lessee's or any of its
permitted sublessees' quiet enjoyment of the Leased Property in accordance with
this Lease during the Lease Term, so long as no Lease Event of Default has
occurred and is continuing. Such right of quiet enjoyment is independent of, and
shall not affect, Lessor's rights otherwise to initiate legal action to enforce
the obligations of Lessee under this Lease.
ARTICLE XII
EVENTS OF DEFAULT
The following events shall constitute Lease Events of Default (whether
any such event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative body
or Governmental Authority):
(a) Lessee shall fail to make any payment of Basic Rent when
due and such failure shall continue for a period of five (5) days;
(b) Lessee shall fail to make any payment of Rent (other than
Basic Rent) or any other amount payable hereunder or under any of the
other Operative Documents and such failure shall continue for a period
of ten (10) days;
(c) Lessee shall fail to pay the Lease Balance when due
pursuant to Sections 10.1 or 10.2, or Lessee shall fail to pay the
Deficiency, Lease Termination Adjustment or Maximum Lessee Risk Amount
when required pursuant to Article XIV.
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(d) Lessee shall fail to maintain insurance as required by
Article VIII hereof;
(e) a default (whether as principal or as guarantor or other
surety) shall occur, which is not waived and as to which any applicable
grace period has expired, (i) in the payment of any principal,
interest, premium or other amounts with respect to any Indebtedness
(other than that created under the Operative Documents) of Lessee or of
any Subsidiary in an amount not less than $30,000,000 in the aggregate
outstanding, or (ii) in the performance, observance or fulfillment of
any term or covenant contained in any agreement or instrument under or
pursuant to which any such Indebtedness may have been issued, created,
assumed, guaranteed or secured by Lessee or any Subsidiary, and if such
default shall permit the holder of any such Indebtedness to accelerate
the maturity thereof or (iii) under the Note Agreement or the notes
thereunder (as defined in the Note Agreement) or under the Credit
Agreement or the notes thereunder (as defined in the Credit Agreement
(collectively, "Material Indebtedness");
(f) Lessee, the Parent or any Material Subsidiary shall (i)
fail to pay, admit in writing its inability to pay or be unable to pay
its debts generally as they become due, (ii) file, or consent by answer
or otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any insolvency, reorganization,
bankruptcy, receivership or similar law, domestic or foreign; make an
assignment for the benefit of its creditors; (iii) commence a
proceeding for the appointment of a receiver, trustee, liquidator or
conservator of itself or of the whole or any substantial part of its
property; (iv) file a petition or answer seeking reorganization or
arrangement or similar relief under the Federal bankruptcy laws or any
other applicable Federal, state or foreign law or statute; (v) be
adjudicated as insolvent or to be liquidated or (vi) take any corporate
action for the purpose of any of the foregoing; or
(g) a court of competent jurisdiction shall enter an order,
judgment or decree ordering the dissolution, winding-up or liquidation
of, or appointing a custodian, receiver, trustee, liquidator or
conservator of, Lessee, the Parent or any Material Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against Lessee, the Parent
or any Material Subsidiary seeking reorganization or arrangement or
similar relief under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
or foreign country, province or other political subdivision, which
petition is not dismissed within sixty (60) days; or if, under the
provisions of any other law for the relief or aid of debtors, a court
of competent jurisdiction shall assume custody or control of Lessee,
the Parent or any Material Subsidiary or of the whole or any
substantial part of its properties, which control is not relinquished
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within sixty (60) days; or if there is commenced against Lessee, the
Parent or any Material Subsidiary any proceeding or petition seeking
reorganization, arrangement or similar relief under the Federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state or foreign country, province or other
political subdivision which proceeding or petition remains undismissed
for a period of sixty (60) days; or if Lessee, the Parent or any
Material Subsidiary takes any action to indicate its consent to or
approval of any such proceeding or petition; or
(h) any representation, warranty or other statement of fact
contained in any Operative Document or in any writing, certificate,
report or statement at any time furnished to Administrative Agent or
any Lender by or on behalf of Lessee or any other Credit Party pursuant
to or in connection with any Operative Document, or otherwise, shall be
false or misleading in any material respect when given or made or
deemed given or made; or
(i) (i) Lessee shall fail to timely perform or observe any
covenant, condition or agreement contained in Sections 5.1(c)(i), (k),
(1) or (w), 5.2(a) (b), (c), (d), (e), (f), (g), (k), (1) or (m) of the
Participation Agreement; (ii) amendments to this Lease by Lessee in
violation of Section 9.4 of the Participation Agreement; or (iii)
Lessee shall fail in any respect to timely perform or observe any
covenant, condition or agreement (not included in any other clause of
this Article XII, including clauses (i) and (ii) hereof) to be
performed or observed by it hereunder or under any other Operative
Document and such failure shall continue (i) for thirty (30) or more
days after the receipt of notice of such default by any Responsible
Officer from Administrative Agent or any Lender or (ii) for forty-five
(45) days after a Responsible Officer becomes aware of such default, or
if such default is of a type that cannot be cured within thirty (30)
days or forty-five (45) days, as applicable (but reasonably can be
cured within ninety (90) days), and the Parent, Lessee or any of its
Subsidiaries is diligently and in good faith attempting to cure such
default, such default shall continue unremedied for a period of ninety
(90) or more days after such notice or awareness, or if any material
provision of any Operative Document ceases to be in full force and
effect (other than by reason of termination by Administrative Agent),
or if without the written consent of Administrative Agent, any material
provision of this Agreement or any other Operative Document shall be
disaffirmed, or the validity, binding nature or enforceability thereof
shall be contested by Lessee, the Parent or any Guarantor, or this
Agreement or any other Operative Document shall terminate, be
terminable or be terminated or become void or unenforceable for any
reason whatsoever (other than in accordance with its terms in the
absence of default or by reason of termination by Administrative Agent
or any Lender);
(j) the Parent shall (i) cease to exist other than due to a
merger into Lessee, (ii) conduct any business other than in connection
with its ownership of the
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common stock of Lessee, (iii) make any investment, acquisition or
expenditure other than for expenditures for (1) regularly scheduled
payments of principal and interest on Indebtedness for Borrowed Money
and expenses related thereto and (2) daily operating expenses of its
business; provided, however, that the Parent may conduct acquisitions
of entities in which shares of its capital stock are all or a portion
of the consideration paid and upon the consummation of which the
acquired entity is substantially simultaneously merged or consolidated
into Lessee or a Subsidiary in accordance with the terms of the
Participation Agreement;
(k) (i) any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is
in excess of $30,000,000 is rendered against Lessee, the Parent or any
Subsidiary, or (ii) there is any attachment, injunction or execution
against any of Lessee's, the Parent's or any Subsidiary's properties
for any amount in excess of $30,000,000; and such judgment, attachment,
injunction or execution remains unpaid, unstayed, undischarged,
unbonded or undismissed for a period of sixty (60) days; or
(j) the Parent, Lessee or any Subsidiary shall cease all or
any part of its operations and such cessation is reasonably likely to
have a Material Adverse Effect; or
(1) (i) Lessee or any ERlSA Affiliate shall engage in any
prohibited transaction (as described in Section 5.2 (i)(ii) of the
Participation Agreement), which is not subject to a statutory or
administrative exemption, involving any Employee Benefit Plan of Lessee
or any ERlSA Affiliate, (ii) any accumulated funding deficiency (as
referred to in Section 5.2(i)(iv) of the Participation Agreement),
whether or not waived, shall exist with respect to any Single Employer
Plan, (iii) a reportable event (as referred to in Section 5.2(i)(v) of
the Participation Agreement) (other than a reportable event for which
the statutory notice requirement to the PBGC has been waived by
regulation) shall occur with respect to, or proceeding shall commence
to have a trustee appointed, or a trustee shall be appointed to
administer or to terminate, any Single Employer Plan, which reportable
event or institution or proceedings is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such
Single Employer Plan for purposes of Title IV of ERISA, and in the case
of such a reportable event, the continuance of such reportable event
shall be unremedied for sixty (60) days after notice of such reportable
event pursuant to Section 4043(a), (c) or (d) of ERISA is given, as the
case may be, (iv) any Single Employer Plan shall terminate for purposes
of Title IV of ERISA, and such termination results in a material
liability of Lessee or any ERlSA Affiliate to such Single Employer Plan
or the PBGC, (v) Lessee or any Subsidiary shall withdraw from a
Multiemployer Plan for purposes of Title IV of ERISA, and, as a result
of any such withdrawal, Lessee or any ERISA Affiliate shall incur
withdrawal liability to such Multiemployer Plan, or (vi) any other
material event or condition shall occur or exist; and in each case in
clauses (i)
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through (vi) of this subsection (l), such event or condition, together
with all other such events or conditions, if any, could reasonably be
expected to subject Lessee or any ERISA Affiliate to any material tax,
penalty or other liabilities.
ARTICLE XIII
ENFORCEMENT
Section 13.1. Remedies. If a Lease Event of Default shall occur,
Lessor may (and shall at the direction of the Administrative Agent) declare
this Lease to be in default, and in the event of the occurrence of a Lease
Event of Default specified in Sections 12 (f) or (g) this Lease shall
automatically and without declaration or other action by Lessor or any other
Person be in default, and in any such event, Lessee will immediately pay to
Lessor the Lease Balance (subject to Section 13.3 hereof) together with all
accrued and unpaid Rent (the "Default Payment Amount"), upon which payment
Lessor will be obligated (except in the case of an Event of Default specified
in Sections 12 (f) or (g)) to convey its interest in the Leased Property to
Lessee or its designee. Until this Lease has been terminated and Lessee has
been dispossessed of the Leased Property, payment of the Default Payment
Amount shall not affect Lessee's obligations in respect of Additional Rent,
which shall survive.
Additional Remedies. Lessor also may exercise at any time one or more
of the following remedies as Lessor in its sole discretion shall determine,
without limiting any other right or remedy hereunder:
(a) Lessor may, by notice to Lessee, rescind or terminate this
Lease as of the date specified in such notice; however, (A) no
reletting, reentry or taking of possession of the Leased Property by
Lessor will be construed as an election on Lessor's part to terminate
this Lease unless a written notice of such intention is given to
Lessee, (B) notwithstanding any reletting, reentry or taking of
possession, Lessor may at any time thereafter elect to terminate this
Lease for a continuing Event of Default, and (C) no act or thing done
by Lessor or any of its agents, representatives or employees and no
agreement accepting a surrender of the Leased Property shall be valid
unless the same be confirmed in writing or made in a writing executed
by Lessor;
Lessor may (i) demand that Lessee, and Lessee shall upon the written
demand of Lessor, return the Leased Property promptly to Lessor in the manner
and condition required by, and otherwise in accordance with all of the
provisions of, Articles VI and XIV hereof as if the Leased Property were being
returned at the end of the Lease Term, and Lessor shall not be liable for the
reimbursement of Lessee for any costs and expenses incurred by Lessee in
connection therewith and (ii) without prejudice to any other remedy which Lessor
may have for possession of the Leased Property, and to the extent and in the
manner permitted by Applicable Law, enter upon the Leased Property and take
immediate possession of (to the exclusion of Lessee) the Leased Property or any
part thereof and expel or remove Lessee and any other person who may be
occupying such Leased Property, by
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summary proceedings or otherwise, all without liability to Lessee for or by
reason of such entry or taking of possession, whether for the restoration of
damage to property caused by such taking or otherwise and, in addition to
Lessor's other damages, Lessee shall be responsible for the reasonable costs and
expenses of reletting, including brokers' fees and the reasonable costs of any
alterations or repairs made by Lessor;
(b) Lessor may (i) sell all or any part of the Leased Property
at public or private sale, as Lessor may determine, free and clear of
any rights of Lessee and without any duty to account to Lessee with
respect to such action or inaction or any proceeds with respect thereto
(except to the extent required by clause (ii) below if Lessor shall
elect to exercise its rights thereunder) in which event Lessee's
obligation to pay Basic Rent hereunder for periods commencing after the
date of such sale shall be terminated or proportionately reduced, as
the case may be; and (ii) if Lessor shall so elect, demand that Lessee
pay to Lessor, and Lessee shall pay to Lessor, on the date of such
sale, as liquidated damages for loss of a bargain and not as a penalty
(the parties agreeing that Lessor's actual damages would be difficult
to predict, but the aforementioned liquidated damages represent a
reasonable approximation of such amount) (in lieu of Basic Rent due for
periods commencing on or after the Scheduled Payment Date coinciding
with such date of sale (or, if the sale date is not a Scheduled Payment
Date, the Scheduled Payment Date next following the date of such
sale)), an amount equal to (a) the excess, if any, of (1) the sum of
(A) all Basic Rent due and unpaid to and including such Scheduled
Payment Date including, without limitation, any Breakage Costs, and (B)
the Lease Balance, computed as of such date, over (2) the net proceeds
of such sale (that is, after deducting all reasonable costs and
expenses incurred by Lessor, the General Partner, the Administrative
Agent and the Lenders incident to such conveyance (including, without
limitation, all costs, expenses, fees, title insurance premiums and
taxes described in Section 14.4)); plus (b) interest at the Overdue
Rate on the foregoing amount from such Scheduled Payment Date until the
date of payment;
(c) Lessor may, at its option, not terminate this Lease, and
continue to collect all Basic Rent, Additional Rent, and all other
amounts (including, without limitation, the Funded Amount) due Lessor
(together with all costs of collection) and enforce Lessee's
obligations under this Lease as and when the same become due, or are to
be performed, and at the option of Lessor, upon any abandonment of the
Leased Property by Lessee or re-entry of same by Lessor, Lessor may, in
its sole and absolute discretion, elect not to terminate this Lease
with respect thereto and may make such reasonable alterations and
necessary repairs in order to relet the Leased Property, and relet the
Leased Property or any part thereof for such term or terms (which may
be for a term extending beyond the term of this Lease) and at such
rental or rentals and upon such other terms and conditions as Lessor in
its reasonable discretion may deem advisable; and upon each such
reletting all rentals actually received by Lessor from such reletting
shall be applied to Lessee's
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obligations hereunder and the other Operative Documents in such order,
proportion and priority as Lessor may elect in Lessor's sole and
absolute discretion; it being agreed that under no circumstances shall
Lessee benefit from its default from any increase in market rents. If
such rentals received from such reletting during any Rent Period are
less than the Rent to be paid during that Rent Period by Lessee
hereunder, Lessee shall pay any deficiency, as calculated by Lessor,
to Lessor on the Scheduled Payment Date for such Rent Period;
(d) Lessor may exercise any other right or remedy that may be
available to it under the Memorandum of Lease applicable to the Leased
Property, under any other Operative Document and/or under Applicable
Law, or proceed by appropriate court action (legal or equitable) to
enforce the terms hereof or to recover damages for the breach hereof.
Separate suits may be brought to collect any such damages for any Rent
Period(s), and such suits shall not in any manner prejudice Lessor's
right to collect any such damages for any subsequent Rent Period(s), or
Lessor may defer any such suit until after the expiration of the Lease
Term, in which event such suit shall be deemed not to have accrued
until the expiration of the Lease Term; or
Lessor may retain and apply against Lessor's damages all sums which
Lessor would, absent such Event of Default, be required to pay to, or turn over
to, Lessee pursuant to the terms of this Lease.
Section 13.2. Lessee's Purchase Option. Notwithstanding anything herein
or in the Operative Documents to the contrary, Lessee shall have the right to
cure a Lease Event of Default (other than a Lease Event of Default as described
under Section 12(f) or (g) by purchasing the Leased Property for the Default
Payment Amount on or before the earliest of (i) twenty (20) days after the
occurrence of the Event of Default, (ii) the sale of the Leased Property
pursuant to a foreclosure of such Leased Property by Lessor under the Memorandum
of Lease or the Administrative Agent under the Mortgage or (iii) delivery to
Lessor or the Administrative Agent of a deed in lieu of foreclosure. Until this
Lease has been terminated and Lessee has been dispossessed of the Leased
Property, payment of the Default Payment Amount shall not affect Lessee's
obligations in respect of Additional Rent, which shall survive. Any purchase
under this Section 13.2 shall be in the manner set forth in Section 14.4 related
to a sale of the Leased Property to Lessee except that Lessee shall notify
Lessor and the Administrative Agent of its intent to so purchase in accordance
with the foregoing, which notice and intent are irrevocable, and other than with
respect to the timing of purchase and purchase price therefor. Time is of the
essence with respect to Lessee's obligations hereunder.
Section 13.3. Liquidated Damages. In the event that an Event of Default
is declared (or deemed declared) solely and exclusively on the basis of a
Limiting Event, as defined below, a claim or demand by Lessor for payment by
Lessee of the Lease Balance under the first paragraph of Section 13.1 or under
Section 13.1 (c)(ii)(a) hereof shall be limited to an amount equal to the
Maximum Lessee Risk Amount less the present value of
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remaining Basic Rent payments to be made from the date of determination to but
not including the Lease Termination Date, using a discount rate equal to the
Applicable Rate calculated as of the Closing Date provided, however, in no event
can the payment of such liquidated damages exceed a number calculated by taking
the Maximum Lessee Risk Amount as of the end of Lease Term (89.50% of the
Property Cost), present valued to such date of determination at the rate
implicit in the lease (.8596%) plus any and all accrued and unpaid interest. The
foregoing limitation shall not limit or affect any other rights of Lessor as
Lessor shall have all rights and remedies available under the Operative
Documents or available at law, equity or otherwise including, without
limitation, the right to demand the payment of Additional Rent and the right to
require surrender and return or sale to a third party of the Leased Property all
as set forth herein. In the event that Lessor requires the surrender and return
or sale to a third party of the Leased Property, Lessee covenants to peaceably
dispossess itself thereof in satisfaction of the Limiting Event Risk Conditions
and other terms and conditions set forth in Section 14.6 hereof, the
satisfaction of which shall be reasonably determined by Lessor. Lessee
nonetheless acknowledges and agrees that even though the maximum aggregate
recovery from it is limited as aforesaid, Lessor's right of recovery from the
Leased Property (as opposed to any recovery from Lessee) is not so limited and
Lessor shall retain title to the Leased Property and the Funding Parties, and
each other Indemnitee, as applicable, shall be entitled to recover one hundred
percent (100%) of the amounts due or to become due to such Person in accordance
with the Operative Documents from its interest in the Leased Property.
For purposes of this Section 13.3, "Limiting Event" means an Event of
Default arising (i) under Section 12.1 (j) hereof solely as a result of an
unsolicited tender offer for a controlling interest in Lessee, which tender
offer results in acquisition of such controlling interest by a third party which
did not receive the approval of the board of directors of Lessee; (ii) Events of
Default arising solely from a Material Adverse Change occurring with respect to
Lessee as reasonably determined by the Administrative Agent; or (iii) under
Section 12.1(e) hereof where the default or condition relating to the Material
Indebtedness which gives rise to an Event of Default hereunder consists solely
of the following and only the following: (x) a Material Adverse Change is
reasonably determined to have occurred with respect to Lessee by the holders of
such Material Indebtedness, or (y) an unsolicited tender offer for a controlling
interest in Lessee, which tender offer results in acquisition of such
controlling interest by a third party which did not receive the approval of the
board of directors of Lessee. Notwithstanding the foregoing, Lessee agrees and
acknowledges that if together with or following the declaration of a Lease Event
of Default that is a Limiting Event, a separate Lease Event of Default shall
occur hereunder, the limitation on damages contained in this Section 13.3 shall
be void and of no further effect without the need of any other actions of the
parties.
Section 13.4. Remedies Cumulative; No Waiver; Consents. To the extent
permitted by, and subject to the mandatory requirements of, Applicable Law, each
and every right, power and remedy herein specifically given to Lessor or
otherwise in this Lease shall be cumulative and shall be in addition to every
other right, power and remedy
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herein specifically given or now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy whether specifically herein
given or otherwise existing may be exercised from time to time and as often and
in such order as may be deemed expedient by Lessor, and the exercise or the
beginning of the exercise of any power or remedy shall not be construed to be a
waiver of the right to exercise at the same time or thereafter any right, power
or remedy. No delay or omission by Lessor in the exercise of any right, power or
remedy or in the pursuit of any remedy shall impair any such right, power or
remedy or be construed to be a waiver of any default on the part of Lessee or to
be an acquiescence therein. Lessor's consent to any request made by Lessee shall
not be deemed to constitute or preclude the necessity for obtaining Lessor's
consent, in the future, to all similar requests. No express or implied waiver by
Lessor of any Event of Default shall in any way be, or be construed to be, a
waiver of any future or subsequent Default or Event of Default. To the extent
permitted by Applicable Law, Lessee hereby waives any rights now or hereafter
conferred by statute or otherwise that may require Lessor to sell, lease or
otherwise use the Leased Property or part thereof in mitigation of Lessor's
damages upon the occurrence and continuance of an Event of Default or that may
otherwise limit or modify any of Lessor's rights or remedies under this Article
XIII.
ARTICLE XIV
SALE OF LEASED PROPERTY
Section 14.1. Sale of Leased Property.
(a) Remarketing Obligations. If, 180 days prior to the Lease
Termination Date, (i) Lessee does not deliver to the General Partner
the Purchase Notice pursuant to the terms of the Partnership Agreement
regarding its intention to purchase the General Partner Interest on the
Lease Termination Date, or (ii) Lessor, pursuant to the Partnership
Agreement, does not notify the Administrative Agent of its intent to
pay the Loan on the Lease Termination Date, Lessee shall have the
obligation (the "Remarketing Obligation"), as agent for Lessor (during
the last 180 days prior to the end of the Term (the "Remarketing
Period")), to use its best efforts to obtain bona fide cash bids to
purchase the Leased Property, from prospective purchasers who are
financially capable of purchasing the Leased Property for cash in
accordance with the terms of Section 14.4 of this Lease. Upon the
request of Lessor and at Lessee's sole cost and expense, Lessee shall
provide Lessor with a written report describing in reasonable detail
Lessee's efforts during the Remarketing Period to obtain bona fide bids
for the purchase of the Leased Property, including, without limitation,
a list of all brokers retained and Persons approached for the purpose
of soliciting bids to purchase the Leased Property. Each of Lessor and
Lessee shall notify the other promptly of al1 bids received prior to
the Lease Termination Date by Lessor or Lessee, as the case may be, and
such notice shall certify the amount of the bid and state the name and
address of the bidder.
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(b) Sale of the Leased Property to Third Party Buyer. Not
later than the Lease Termination Date, Lessor agrees to sell the Leased
Property, to the cash bidder submitting the highest bid during the
Remarketing Period, in accordance with the terms of Section 14.4 of
this Lease, provided, however, that (x) any such sale to a third party
shall be consummated, and the sales price for the Leased Property shall
be paid to Lessor in immediately available funds, on or before the
Lease Termination Date; and (y) Lessor shall not, (I) without the prior
written consent of the General Partner and Tranche B Lenders consummate
any proposed sale of the Leased Property if the Net Sales Proceeds from
such sale would be less than the Maximum Lessor Risk Amount, or (II)
without the prior written consent of the Administrative Agent,
consummate any proposed sale of the Leased Property if Lessor has not
received the amounts, if any, payable by Lessee pursuant to Section
14.3(a). After any such sale with respect to the Leased Property, the
provisions of Section 14.3(a) shall apply.
Section 14.2. Signs; Showing. If Lessee has not given timely notice
pursuant to Section 14.1 of its intention to purchase the General Partner
Interest on the Lease Termination Date, during the Remarketing Period, Lessor
may, subject to all Applicable Laws, restrictive covenants, rules and
regulations and without unreasonably interfering with Lessee's business
operations, (a) place signs in, on and around the Leased Property advertising
that the same will be available for rent or purchase, and (b) upon not less than
48 hours prior notice to Lessee, show the Leased Property to prospective lessees
or purchasers at such reasonable times during normal business hours as Lessor
may elect. The Lessee will be responsible for hiring one or more brokers, whose
services shall be compensated on a commission basis, and making the Leased
Property available for inspection by prospective purchasers. The Lessee shall
promptly, upon notice, permit inspections of the Leased Property and any
maintenance records relating to the Leased Property by Lessor, Lender or the
General Partner and any potential purchasers, during normal business hours or
otherwise upon reasonable request and in accordance with Lessee's standard
visitation procedures, and shall otherwise do all things necessary to sell and
deliver possession of the Leased Property to any purchaser. All such marketing
fees, commissions, costs and expenses of the Leased Property shall be included
among the deductions set forth in clause (ii) of the definition of Net Sales
Proceeds.
Section 14.3. Lease Termination Adjustment.
(a) Third Party Sale of the Leased Property. This Section
14.3(a) shall apply only if a sale of the Leased Property to a third
party pursuant to Section 14.1 (b] hereof has been consummated on or
before the Lease Termination Date. If the Net Sales Proceeds following
a sale of the Leased Property held in accordance with Section 14.1 (b)
hereof on or before the Lease Termination Date are less than the Lease
Balance, then Lessee shall, on the Lease Termination Date, pay to
Lessor, as an adjustment to the Basic Rent payable under this Lease, by
wire transfer of immediately available federal funds, an amount equal
to the deficiency between the
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Net Sales Proceeds and the Lease Balance (a "Deficiency") as an adjustment to
the Basic Rent payable under this Lease for the Leased Property, plus the Basic
Rent, if any, due and payable on the Lease Termination Date, plus any Additional
Rent then due and owing to Lessor hereunder; provided, however, that if all of
Lessee Disposition Conditions have been satisfied, the amount of the Deficiency
payable by Lessee shall not exceed the Maximum Lessee Risk Amount. Lessee shall
have no right to receive or share in any Net Sale Proceeds notwithstanding
whether or not such Net Sales Proceeds exceed the Lease Balance or all Lessee
Disposition Conditions have been satisfied, such excess being the sole property
of Lessor.
(b) Lessee Payment. If on the Lease Termination Date a sale of
the Leased Property to a third party pursuant to Section 14.1 hereof
has not been consummated then Lessee shall, on or before the Lease
Termination Date, pay to the Administrative Agent, as assignee of
Lessor, by wire transfer of immediately available funds, as an
adjustment to the Rent payable under this Lease for the Leased Property
an amount (the "Lease Termination Adjustment") equal to (i) the Maximum
Lessee Risk Amount, if all of Lessee Disposition Conditions have been
met as of the Lease Termination Date, or (ii) the Lease Balance, if one
or more of Lessee Disposition Conditions have not been met as of such
Lease Termination Date, plus, in either case, the Basic Rent due and
payable on the Lease Termination Date, plus all Additional Rent then
due and owing hereunder, and Lessee shall promptly vacate the Leased
Property and surrender and return the Leased Property to Lessor upon
the Lease Termination Date in accordance with the provisions of this
Lease, including Section 14.6 hereof. In such event, if Lessor shall
subsequently sell the Leased Property to a third party after the Lease
Termination Date, Lessor shall retain the full amount of the sales
proceeds thereof, and Lessee shall remain liable for the payment of,
and upon the consummation by Lessor of the sale of the Leased Property
after the Lease Termination Date thereof, Lessee shall pay, or
reimburse Lessor for the payment of, all applicable sales, excise or
other taxes imposed as a result of such sale, other than gross or net
income taxes attributable to such sale, and such obligation shall
survive the termination of this Lease.
(c) Applicable Definitions. As used in this Section 14, the
term "Net Sales Proceeds" means, upon the sale of the Leased Property
to one or more third parties, the net amount of the cash proceeds
actually received from such sale, after deducting from the gross
proceeds of such sale (i) all sales taxes and other taxes (excluding
any net income or profit taxes on or measured by Lessor's income) as
may be applicable to the sale or transfer of the Leased Property, (ii)
all reasonable fees, costs and expenses incurred by Lessor, any
Partner, the Administrative Agent, any Lender or by Lessee, as Lessor's
agent, unless separately paid or reimbursed by Lessee, in connection
with the sale or transfer of the Leased Property in accordance with
Section 14.1 hereof and (iii) any other amounts for which, if not paid,
Lessor would be liable or which, if not paid, would constitute a Lien
on the Leased
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Property. As used in this Section 14, "Lessee Disposition Conditions"
means, collectively, the following: (A) substantially all of the
Leased Property shall be surrendered and returned and shall not have
been condemned, damaged, destroyed or taken; (B) no Lease Default or
Lease Event of Default shall have occurred and be continuing; (C)
either (x) a sale to a third party of the Leased Property has been
consummated and Lessor has received, in immediately available funds,
on the Lease Termination Date, the Net Sales Proceeds of the Leased
Property plus payment of the Maximum Lessee Risk Amount and any
Additional Rent then due and owing hereunder with respect to the
Leased Property, or (y) a sale to a third party of the Leased Property
has not been so consummated on the Lease Termination Date thereof and
Lessee has vacated the Leased Property and surrendered and returned
the Leased Property to Lessor in the condition required by Section
14.6 hereof, and Lessor has received, in immediately available funds
on the Lease Termination Date, payment of the Maximum Lessee Risk
Amount and any Additional Rent then due and owing hereunder with
respect to the Leased Property; (D) this Lease has not been terminated
prior to the Lease Termination Date; and (E) the Leased Property is
free and clear of all Liens.
Section 14.4. Purchase Procedure.
(a) In the event of the purchase of the Leased Property by
Lessee pursuant to any provision of this Lease or by a third party
pursuant to Section 14.1 hereof, the terms and conditions of this
Section 14.4 shall apply.
(b) On the closing date fixed for the purchase of the Leased
Property:
(i) Lessee shall pay or cause to be paid to the
Administrative Agent, in lawful money of the United States in immediately
available funds, at the Administrative Agent's address hereinabove stated or at
any other place in the United States which the Administrative Agent may
designate, the Lease Balance and related amounts required to be paid pursuant to
Sections 10.1 and 10.2, the Default Payment Amount pursuant to Section 13.1
hereof, or the Net Sale Proceeds pursuant to Section 14.3 hereof and other
related amounts, if any, under Section 14.3 hereof, as the case may be; and
(ii) Lessor shall execute and deliver to Lessee or
such third party, as the case may be, a good and sufficient quitclaim deed or
special warranty deed, xxxx of sale, and such other instrument or instruments as
may be appropriate, which shall transfer all of the Lessor's right, title and
interest in and to the Leased Property, free of Lessor Liens, but otherwise
without representation or warranty whatsoever. In the case of a sale of the
Leased Property to Lessee pursuant to Sections 10.1 or 10.2 hereof, Lessor shall
also assign to Lessee Lessor's interest in any insurance proceeds or
condemnation awards, respectively. In the case of a sale of the Leased Property
to a third party, Lessee shall be responsible for the satisfaction of all
conditions to the consummation of such sale
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including, without limitation, the foregoing status of title and Liens (other
than Lessor Liens); and
(iii) Lessee shall pay all charges incident to such
transfer, including but not limited to all transfer taxes, recording fees, title
insurance premiums and federal, state and local taxes, except for any net income
or profit taxes of Lessor, the Administrative Agent, the Partners and the
Lenders and reasonable attorneys' fees and expenses such parties; and
(iv) Lessee shall pay to the Administrative Agent, as
assignee of Lessor, all Basic Rent, and to the Administrative Agent or whichever
party is entitled thereto all Additional Rent, Breakage Costs, if any, and other
sums payable by Lessee under this Lease or under any other Operative Document,
due and payable through the date Lessee purchases the Leased Property or such
third party purchases the Leased Property; and
(v) Except as otherwise provided herein, this Lease
shall terminate and be of no further force and effect with respect to the Leased
Property following satisfaction of the foregoing and the applicable provisions
hereof.
Section 14.5. Essence of the Lease. The provisions of Section 14 are of
the essence of this Lease, and time is of the essence for payment and
performance of the obligations of Lessee set forth therein.
Section 14.6. Surrender and Return.
(a) Upon the expiration or earlier termination of the Lease
Term, and provided that Lessee, if so entitled, has not purchased the
General Partnership Interest, Lessee shall peaceably leave and
surrender and return the Leased Property to Lessor (the "Surrender
Obligation") in the same condition in which the Leased Property existed
on the Closing Date and/or such subsequent date on which any
Alterations that constitute part of the Building were acquired and
constructed pursuant to this Lease, except as completed, repaired,
rebuilt, restored, altered or added to as required by or permitted by
any provision of this Lease (ordinary wear and tear excepted). Lessee
shall remove from the Leased Property on or prior to such expiration or
earlier termination all of the property set forth in Article XV hereof
in accordance with Article XV, and the Leased Property shall be broom
clean and Lessee shall repair any damage caused by such removal.
(b) Except for surrender upon the expiration or earlier
termination of the Lease Term hereof, no surrender to Lessor of this
Lease or of the Leased Property shall be valid or effective unless
agreed to and accepted in writing by Lessor.
(c) Without limiting the generality of the foregoing, upon the
surrender and return of the Leased Property to Lessor pursuant to this
Section 14.6, (A) the
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Leased Property shall be (i) capable of being immediately utilized by a
third-party purchaser or third-party lessee without further inspection,
repair, replacement, alterations or improvements, licenses, permits, or
approvals, except for any of the foregoing required solely by virtue of
the change in ownership (other than to Lessor or the Administrative
Agent), use or occupancy of such Leased Property, (ii) in accordance
and compliance with all Applicable Laws including, without limitation,
any of the foregoing required by virtue of a change in ownership, use
or occupancy of the Leased Property other than to Lessee, and (iii)
free and clear of any Lien and (B) all Alterations to the Building
located at the Leased Property shall have been completed. Until the
Leased Property has been surrendered and returned to Lessor in
accordance with the provisions of this Section 14.6 and subject to
Article XIII hereof, Lessee shall continue to pay Lessor all Basic Rent
and Additional Rent due hereunder.
(d) Not later than ten (10) Business Days prior to the Lease
Termination Date, Lessee shall deliver to Lessor and the Administrative
Agent an environmental assessment of the Leased Property dated not later
than forty-five (45) days prior to the Lease Termination Date. Such
environmental assessment shall be prepared by an environmental
consultant selected by the General Partner, shall be in form, detail and
substance reasonably satisfactory to the General Partner and the Lessee,
and shall otherwise indicate the environmental condition of the Leased
Property to be the same as described in the Environmental Audit and if
such environmental assessment reveals the need for additional review,
Lessee shall have provided such additional information or environmental
assessments as are reasonably required by the General Partner and any
remediation recommended therein to be performed shall have been
performed, and evidence of compliance with Section 14.6(c)(ii) above
shall have been provided.
(e) Lessee acknowledges and agrees that a breach of any of the
provisions of this Section 14.6 may result in damages to Lessor that
are difficult or impossible to ascertain and that may not be
compensable at law. Accordingly, upon application to any court of
equity having jurisdiction over the Leased Property or Lessee, Lessor
shall be entitled to the fullest extent of Applicable Law to a decree
against Lessee requiring specific performance of the covenants of
Lessee set forth in this Section 14.6.
(f) Upon the request of Lessor, Lessee shall continue to
maintain its insurance policies for the Leased Property, to the extent
permitted by such policies, provided that Lessor pays or reimburses
Lessee for the pro rata cost thereof.
ARTICLE XV
LESSEE'S EQUIPMENT
After any repossession of the Leased Property (whether or not this
Lease has been terminated), Lessee, at its expense and so long as the removal of
Lessee's trade fixtures,
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personal property and equipment shall not result in a violation of Applicable
Law, shall, within a reasonable time after such repossession or within sixty
(60) days after Lessee's receipt of Lessor's written request (whichever shall
first occur), remove all of Lessee's trade fixtures, personal property and
equipment from the Leased Property (to the extent that the same can be readily
removed from the Leased Property without causing material damage to the Leased
Property). Any of Lessee's trade fixtures, personal property and equipment not
so removed by Lessee within such period shall be considered abandoned by Lessee,
and title thereto shall without further act vest in Lessor, and may be
appropriated, sold, destroyed or otherwise disposed of by Lessor without notice
to Lessee and without obligation to account therefor and Lessee will pay Lessor,
upon written demand, all reasonable costs and expenses incurred by Lessor in
removing, storing or disposing of the same and all costs and expenses incurred
by Lessor to repair any damage to the Leased Property caused by such removal.
Lessee will immediately repair at its expense all damage to the Leased Property
caused by any such removal (unless such removal is effected by Lessor, in which
event Lessee shall pay all reasonable costs and expenses incurred by Lessor for
such repairs). Lessor shall have no liability in exercising Lessor's rights
under this Article XV, nor shall Lessor be responsible for any loss of or damage
to Lessee's personal property and equipment.
ARTICLE XVI
RIGHT TO PERFORM FOR LESSEE
If Lessee shall fail to perform or comply with any of its agreements
contained herein, Lessor may perform or comply with such agreement, and Lessor
shall not thereby be deemed to have waived any default caused by such failure,
and the amount of such payment and the amount of the expenses of Lessor
(including reasonable attorney's fees and expenses) incurred in connection with
such payment or the performance of or compliance with such agreement, as the
case may be, shall be deemed Additional Rent, payable by Lessee to Lessor within
thirty (30) days after written demand therefor.
ARTICLE XVII
MISCELLANEOUS
Section 17.1. Reports. To the extent required under Applicable Law and
to the extent it is reasonably practical for Lessee to do so, Lessee shall
prepare and file in timely fashion, or, where such filing is required to be made
by Lessor or it is otherwise not reasonably practical for Lessee to make such
filing, Lessee shall prepare and deliver to Lessor (with a copy to the
Administrative Agent) within a reasonable time prior to the date for filing and
Lessor shall file, any material reports with respect to the condition or
operation of the Leased Property that shall be required to be filed with any
Governmental Authority.
Section 17.2. Binding Effect; Successors and Assigns; Survival. The
terms and provisions of this Lease, and the respective rights and obligations
hereunder of Lessor and Lessee, shall be binding upon their respective
successors, legal representatives and assigns
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(including, in the case of Lessor, any Person to whom Lessor may transfer the
Leased Property or any interest therein in accordance with the provisions of the
Operative Documents), and inure to the benefit of its permitted successors and
assigns, and the rights hereunder of the Administrative Agent shall inure
(subject to such conditions as are contained herein) to the benefit of their
respective permitted successors and assigns. Lessee hereby acknowledges that
Lessor has assigned all of its right, title and interest to, in and under this
Lease, but not its obligations under this Lease, to the Administrative Agent,
and that such rights of Lessor hereunder may be exercised by the Administrative
Agent and that the Administrative Agent is an express third party beneficiary
hereof.
Section 17.3. Notices. Unless otherwise specified herein, all notices,
offers, acceptances, rejections, consents, requests, demands or other
communications to or upon the respective parties hereto shall be in writing and
shall be addressed and given in accordance with Section 10.2 of the
Participation Agreement.
Section 17.4. Severability. Any provision of this Lease that shall be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, and Lessee shall remain
liable to perform its obligations hereunder except to the extent of such
unenforceability. To the extent permitted by Applicable Law, Lessee hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
Section 17.5. Amendment; Complete Agreements. Neither this Lease nor
any of the terms hereof may be terminated, amended, supplemented, waived or
modified orally, except by an instrument in writing signed by Lessor and Lessee
in accordance with the provisions of Section 10.4 of the Participation
Agreement. This Lease, together with the other Operative Documents, is intended
by the parties as a final expression of their lease agreement and as a complete
and exclusive statement of the terms thereof, all negotiations, considerations
and representations between the parties having been incorporated herein and
therein. No course of prior dealings between the parties or their officers,
employees, agents or Affiliates shall be relevant or admissible to supplement,
explain, or vary any of the terms of this Lease or any other Operative Document.
Acceptance of, or acquiescence in, a course of performance rendered under this
or any prior agreement between the parties or their Affiliates shall not be
relevant or admissible to determine the meaning of any of the terms of this
Lease or any other Operative Document. No representations, undertakings, or
agreements have been made or relied upon in the making of this Lease other than
those specifically set forth in the Operative Documents.
Section 17.6. Construction. This Lease shall not be construed more
strictly against any one party, it being recognized that both of the parties
hereto have contributed substantially and materially to the preparation and
negotiation of this Lease.
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Section 17.7. Headings. The Table of Contents and headings of the
various Articles and Sections of this Lease are for convenience of reference
only and shall not modify, define or limit any of the terms or provisions
hereof.
Section 17.8. Counterparts. This Lease may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 17.9. GOVERNING LAW.
(a) THIS LEASE SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT
AS TO MATTERS RELATING TO THE CREATION OF THE LEASEHOLD ESTATES
HEREUNDER, AND THE EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT
THERETO, WHICH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF RHODE ISLAND.
(b) ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF LESSEE OR LESSOR SHALL BE BROUGHT AND MAINTAINED
IN THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST THE LEASED
PROPERTY MAY BE BROUGHT, AT THE OPTION OF LESSOR OR ADMINISTRATIVE
AGENT IN THE COURTS OF ANY JURISDICTION WHERE THE LEASED PROPERTY IS
LOCATED. EACH PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK,
NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS
SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH PARTY HERETO
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
NEW YORK. EACH PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
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ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT EACH PARTY HERETO HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY,
EACH PARTY HERETO, TO THE EXTENT IT MAY DO SO UNDER APPLICABLE LAW,
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS LEASE AND THE OTHER OPERATIVE DOCUMENTS.
(c) EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ANY OTHER PARTY HERETO. EACH PARTY HERETO
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR EACH SUCH PARTY ENTERING INTO THIS LEASE AND THE OTHER
OPERATIVE DOCUMENTS.
Section 17.10. Liability of Lessor Limited. Except as otherwise
expressly provided below in this Section 17.10, it is expressly understood and
agreed by and between Lessee, Lessor and their respective successors and assigns
that nothing herein contained shall be construed as creating any liability of
Lessor, its partners or any of their Affiliates or their respective officers,
directors, employees or agents, individually or personally, to perform any
covenant, either express or implied, contained herein, all such liability, if
any, being expressly waived by Lessee and by each and every Person now or
hereafter claiming by, through or under Lessee, and that, so far as Lessor or
any of its Affiliates or any of their respective officers, directors, employees
or agents, individually or personally, is concerned, Lessee and any Person
claiming by, through or under Lessee shall look solely to the right, title and
interest of Lessor in the Leased Property and any proceeds from Lessor's sale or
encumbrance thereof (provided, however, that Lessee shall not be entitled to any
double recovery) for the performance of any obligation under this Lease and
under the Operative Documents and the satisfaction of any liability arising
therefrom.
Section 17.11. Estoppel Certificates. Lessee agrees that at any time
and from time to time during the Lease Term, it will promptly, but in no event
later than thirty (30) days after request by Lessor, execute, acknowledge and
deliver to Lessor or to any prospective purchaser (if such prospective purchaser
has signed a commitment or letter of intent to purchase the Leased Property or
any part thereof or any Note), assignee or mortgagee or
-36-
third party designated by such other party, a certificate stating (a) that this
Lease is unmodified and in force and effect (or if there have been
modifications, that this Lease is in force and effect as modified, and
identifying the modification agreements); (b) the date to which Basic Rent has
been paid; (c) whether or not there is any existing default by Lessee in the
payment of Basic Rent or any other sum of money hereunder, and whether or not
there is any other existing default by either party with respect to which a
notice of default has been served, and, if there is any such default, specifying
the nature and extent thereof; (d) whether or not, to the knowledge of the
signer after due inquiry and investigation, there are any setoffs, defenses or
counterclaims against enforcement of the obligations to be performed hereunder
existing in favor of the party executing such certificate and (e) other items
that may be reasonably requested; provided that no such certificate may be
requested unless Lessor has a good faith reason for such request.
Section 17.12. No Joint Venture. Any intention to create a joint
venture or partnership relation between Lessor and Lessee is hereby expressly
disclaimed.
Section 17.13. No Accord and Satisfaction. The acceptance by Lessor (or
the Administrative Agent as its assignee) of any sums from Lessee (whether as
Basic Rent or otherwise) in amounts which are less than the amounts due and
payable by Lessee hereunder is not intended, nor shall be construed, to
constitute an accord and satisfaction of any dispute between Lessor and Lessee
regarding sums due and payable by Lessee hereunder, unless Lessor specifically
deems it as such in writing.
Section 17.14. No Merger. In no event shall the leasehold interests,
estates or rights of Lessee hereunder merge with any interests, estates or
rights of Lessor in or to the Leased Property, it being understood that such
leasehold interests, estates and rights of Lessee hereunder shall be deemed to
be separate and distinct from Lessor's interests, estates and rights in or to
the Leased Property, notwithstanding that any such interests, estates or rights
shall at any time or times be held by or vested in the same person, corporation
or other entity.
Section 17.15. Survival. The obligations of Lessee to be performed
under this Lease prior to the Lease Termination Date and the obligations of
Lessee pursuant to Articles III, X, XIII, Sections 14.1, 14.2, 14.3, 14.4, 14.6,
Articles XV, and XVI, and Sections 17.9 and 17.10 shall survive the expiration
or termination of this Lease. The extension of any applicable statute of
limitations by Lessor, Lessee, the Administrative Agent or any Indemnitee shall
not affect such survival.
Section 17.16. Chattel Paper. To the extent that this Lease constitutes
chattel paper (as such term is defined in the Uniform Commercial Code in any
applicable jurisdiction), no security interest in this Lease may be created
through the transfer or possession of any counterpart other than the original
counterpart, which shall be identified as the original counterpart by the
receipt of the Administrative Agent.
Section 17.17. Time of Essence. Time is of the essence of this Lease.
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Section 17.18 Recordation of Lease. Lessee will, at its expense,
cause the Memorandum of Lease, a form of which is attached hereto as Exhibit B,
to be recorded in the Land Evidence Records for the Town of West Greenwich,
Rhode Island.
Section 17.19. Investment of Security Funds. Any amounts not payable to
Lessee pursuant to any provision of Article VIII, X or XIV or this Section 17.19
solely because an Event of Default shall have occurred and be continuing shall
be held by the Administrative Agent (or Lessor if the Loan has been fully paid)
as security for the obligations of Lessee under this Lease and the Participation
Agreement. At such time as no Event of Default shall be continuing, such
amounts, net of any amounts previously applied to Lessee's obligations hereunder
or under the Participation Agreement or otherwise in accordance with the related
terms, shall be paid to Lessee. Any such amounts which are held by the
Administrative Agent (or Lessor if the Loan has been fully paid) pending payment
to Lessee shall, until paid to Lessee as provided hereunder or, as long as the
Loan Agreement is in effect, until applied against Lessee's obligations herein
and under the Participation Agreement and distributed as provided in the Loan
Agreement or herein (after the Loan Agreement is no longer in effect) in
connection with any exercise of remedies hereunder, be invested by the
Administrative Agent or Lessor, as the case may be as directed from time to time
in writing by Lessee (provided, however, if an Event of Default has occurred and
is continuing it will be directed by the Administrative Agent or, if the Loan
has been fully paid, Lessor) and at the expense and risk of Lessee, in Permitted
Investments. Any gain (including interest received) realized as the result of
any such investment (net of any fees, commissions and other expenses, if any,
incurred in connection with such investment) shall be applied in the same manner
as the principal invested.
[balance of page left blank/signatures follow]
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IN WITNESS WHEREOF, the undersigned have each caused this
Lease to be duly executed and delivered and attested by their respective
officers thereunto duly authorized as of the day and year first above written.
WEST GREENWICH TECHNOLOGY
ASSOCIATES, L.P., a Rhode Island
limited partnership, as Lessor
By: Post Office Square Funding
Inc., its General Partner
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
GTECH CORPORATION, a Delaware
corporation, as Lessee
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Treasurer
[SECOND AMENDED AND RESTATED LEASE]
EXHIBIT A TO
THE LEASE
LEGAL DESCRIPTION
Parcel l
That certain tract or parcel of land, with all buildings and improvements
thereon, located on the northerly side of Interstate Route 95 and the westerly
side of Technology Way in the Town of West Greenwich, County of Kent, and State
of Rhode Island, being bounded and described as follows:
Beginning at a point in the northerly freeway line of said Xxxxxxxxxx Xxxxx 00
as shown on Xxxxx Xxxxxx Xxxxx Xxxxxxx Xxxx Xx. 000. Said point of beginning is
located sixteen hundred and 00/l00 (1600.00) feet westerly of a point of
tangency at Station 1181+67.37 and one hundred fifty and 00/l00 (150.00) feet
northerly of the centerline of said Route 95. Said point of beginning is also
the southwesterly corner of land, now or formerly, belonging to Welgen
Manufacturing Partnership and the southeasterly corner of the hereinafter
described parcel of land;
Thence running S. 63-25'-30' W., bounded southerly by said Route 95, a distance
of one thousand, one hundred eighty-three and 28/100 (1183.28) feet to a corner;
Thence turning an interior angle of 34-57'-40 and running N. 28-47-50" E.,
bounded northwesterly by land now or formerly of G-Tech Corporation, a distance
of two hundred sixteen and 53/100 (216.53) feet to an angle;
Thence turning an interior angle of 235-22'-20' and running N. 26-34'-30" W.,
bounded westerly by land now or formerly of G-Tech Corporation, a distance of
four hundred seventy-eight and 58/100 (478.58) feet to another angle;
Thence turning an interior angle of 217-04'-15" and running N. 63-38-45" W.,
bounded southwesterly by land now or formerly of G-Tech Corporation, a distance
of four hundred thirty and 36/100 (430.36) feet to a corner;
Thence turning an interior angle of 52-55'-45" and running N. 63-25'-30' E.,
bounded northerly by land now or formerly of G-Tech Corporation, a distance of
one thousand, four hundred sixty-nine and 31/l00 (1469.31) feet to a beginning
of a curve;
Thence northeasterly and northerly in a curve to the left having a radius of
forty-five
(45) feet and a central angle of 100-45'-08", bounded westerly and northwesterly
by land now or formerly of G-Tech Corporation, a distance, as measured on the
arc of said curve, of seventy-nine and 13/100 (79.13) feet to the end of said
curve at a point in the westerly line of said Technology Way;
Thence southeasterly on another curve to the right having a radius of three
hundred twenty-five (325) feet and a central angle of l0-45'-08", bounded
northeasterly by said Technology Way, a distance, as measured on the arc of said
curve, of sixty and 99/100 (60.99) feet to the end of said curve and the
beginning of another curve;
Parcel 1 Continued
Thence northerly on another curve to the right having a radius of one thousand,
one hundred three and 37/100 (1103.37) feet and a central angle of 21-00'-00",
bounded easterly by said Technology Way, a distance of four-hundred four and
41/100 (404.41) feet to a point at the end of said curve;
Thence continuing S. 5-34'-30" E., bounded easterly by said Technology Way, a
distance of fifty-five and 82/100 (55.82) feet-to the beginning of another
curve;
Thence southerly and northeasterly on a curve to the left having a radius of
sixty-five (65) feet and a central angle of 52-0l'-13", bounded easterly and
northeasterly by said Technology Way a distance, as measured on the arc of said
curve, of fifty-nine and 02/100 (59.02) feet to a point;
Thence running S. 5-34'-30" E., bounded easterly by land now or formerly of
Welgen Manufacturing Partnership, a distance of four hundred sixty-four and
28/l00 (464.28) feet to the point or place of beginning.
The last course and first course form an interior angle of 11 l-00'-00".
EXCEPTING THEREFROM, HOWEVER, that certain parcel of real estate, with any and
all improvements thereon, situated in West Greenwich, Rhode Island and more
particularly described and identified as Parcel "A" on that certain plan
entitled `Administrative Re-Subdivision of Land Assessor's Plat 3, Lot l-l and
Lot l-7 belonging to GTECH Corporation and West Greenwich Technology Associates,
L.P. Technology Way West Greenwich, Rhode Island February 20, 1997" prepared by
Xxxxxxx & Xxxxxxx Engineers & Land Surveyors, which plan has been recorded in
the
West Greenwich Land Evidence Records on March 17, 1997 at 3:42 p.m. as Map Z56,
which parcel is further bounded and described as follows:
Beginning at the most westerly corner of land now or formerly of West Greenwich
Technology Associates, L.P. and running N. 63-25-30" E. bounding northwesterly
on land now or formerly of GTECH Corporation three hundred eighty-seven and
70/100 (387.70) feet to a point;
thence turning and running S. 26-34'-30" E. bounding easterly on land now or
formerly of West Greenwich Technology Associates, L.P. five hundred thirty-seven
and 27/100 (537.27) feet to a point;
thence turning and running S. 62-22'-03" W. bounding southeasterly on other land
now or formerly of West Greenwich Technology Associates, L.P. one hundred
twenty-eight and 30/100 (128.30) feet to land now or formerly of GTECH
Corporation;
thence turning and running N. 26-34' 30" W. bounding westerly on said land now
or formerly of GTECH Corporation one hundred ninety-six and 26/I 00( 196.26)
feet to a point;
thence turning and running N. 63-38-45" W. bounding southwesterly on said land
now or formerly of GTECH Corporation four hundred thirty and 36/100 (430.36)
feet to the point and place of beginning.
Parcel 2
That certain parcel of real estate, with any and all improvements thereon,
situated in West Greenwich, Rhode Island and more particularly described and
identified as Parcel "B" on that certain plan entitled `Administrative
Re-Subdivision of Land Assessor's Plat 3, Lot 1-1 and Lot l-7 belonging to GTECH
Corporation and West Greenwich Technology Associates, L.P. Technology Way West
Greenwich, Rhode Island February 20.1997" prepared by Xxxxxxx & Xxxxxxx
Engineers & Land Surveyors, which plan has been recorded in the West Greenwich
Land Evidence Records on March 17, 1997 at 3:42 p.m. as Map Z56, which parcel is
further bonded and described as follows:
Beginning at a point in the northwesterly line of Interstate Route 95 at the
easterly corner of land now or formerly of Xxxxxx X. & Xxxxxxx X. Xxxxxxxxx said
point being one hundred and fifty and 00/l00 (150.00) feet right of station 1209
+ 50.65 on the State Highway Baseline as shown on R.I.D.O.T. Plat No. 964.
thence running N.62.53.35" W. bounding southwesterly, in part, on said land now
or formerly of Xxxxxx X. & Xxxxxxx X. Xxxxxxxxx and, in part, on land now or
formerly of Commerce Realty and Leasing Company, Inc. three hundred
eighty-four and 19/l00 (384.19) feet to the southerly corner of land now or
formerly of Narragansett Electric Company;
thence turning and running N. 28-47'50" E. bounding westerly on said land now or
formerly of Narragansett Electric Co. two hundred fifty and 67/100 (250.67) feet
to land now or formerly of GTECH Corporation;
thence turning and running S. 63-41-10" E. bounding northeasterly on said land
now or formerly of GTECH Corporation sixty-two and 23/100 (62.23) feet to a
point;
thence turning and running N. 62-22.03" E. bounding northwesterly on said land
now or formerly of GTECH Corporation one hundred sixty-one and 93/l 00 (161.93)
fed to land now or formerly of West Greenwich Technology Associates, L.P.;
thence turning and running S. 26-34-30" E. bounding easterly on said land now or
formerly of West Greenwich Technology Associates, L.P. two hundred eighty-two
and 321100 (282.32) feel to a point;
thence turning and running S. 28-47'50" W. bounding easterly on said land now or
formerly West Greenwich Technology Associates, L.P. two hundred sixteen and
53/100 (216.53) feet to the point and place of beginning.
Parcel 3
That certain appurtenant easement to maintain, replace and repair drainage
detention basin and chain link fence reserved in that certain Quitclaim Deed of
West Greenwich Technology Associates, L.P to GTECH Corporation dated April 29,
1997 and recorded May 21, 1997 at 9:29 A.M. in Book 78 at page 36.
EXHIBIT B TO
THE LEASE
[Form of Second Amended and Restated Memorandum of Lease and Open-End Mortgage
Deed, Security Agreement and Fixture Filing - Omitted]
