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EXHIBIT 10.14
EXECUTION COPY
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MASTER LEASE AND DEED OF TRUST
THIS DOCUMENT SECURES FUTURE ADVANCES
Dated as of October 18, 1996
between
SYMANTEC CORPORATION,
as the Lessee
and
SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor.
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This Master Lease and Deed of Trust is subject to a lien in favor of the Lenders
under the Loan Agreement. This Master Lease and Deed of Trust has been executed
in several counterparts. To the extent, if any, that this Master Lease and Deed
of Trust constitutes chattel paper (as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction), no lien on this
Master Lease and Deed of Trust may be created through the transfer or possession
of any counterpart other than the original counterpart containing the receipt
therefor executed by THE SUMITOMO BANK, LIMITED, SAN XXXXXXXXX XXXXXX as the
Agent for the Lenders, on or following the signature page hereof.
This counterpart is not the original executed chattel paper counterpart.
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MASTER LEASE
MASTER LEASE AND DEED OF TRUST
THIS DOCUMENT SECURES FUTURE ADVANCES
THIS MASTER LEASE AND DEED OF TRUST (this "Master Lease"), dated as of
October 18, 1996, between SUMITOMO BANK LEASING AND FINANCE, INC., a Delaware
corporation, as the Lessor (in such capacity, the "Lessor"), and SYMANTEC
CORPORATION, a Delaware corporation, as Lessee (in such capacity, the "Lessee").
W I T N E S S E T H:
WHEREAS, pursuant to a Participation Agreement dated as of the date
hereof (as amended, modified, restated or supplemented from time to time, the
"Participation Agreement"), among the Lessee, the Lessor, the various financial
institutions (the "Lenders") as are or may from time to time become Lenders
under the Loan Agreement, and The Sumitomo Bank, Limited, San Xxxxxxxxx Xxxxxx,
as Administrative Agent (in such capacity, the "Agent") for the Lenders, the
Lenders and the Lessor have agreed to finance the Lessor's acquisition of each
Property;
WHEREAS, on each Acquisition Date, the Lessor will purchase from one or
more third parties designated by the Lessee certain parcels of Land, together
with the Improvements thereon, if any;
WHEREAS, the Lessor desires to lease to the Lessee, and the Lessee
desires to lease from the Lessor, each Property; and
WHEREAS, each Property will be subject to the terms of this Master
Lease;
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
I.1. Definitions; Interpretation. Capitalized terms used but not
otherwise defined in this Master Lease have the respective meanings specified in
Appendix A to this Master Lease; and the rules of interpretation set forth in
Appendix A to this Master Lease shall apply to this Master Lease.
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MASTER LEASE
ARTICLE II
MASTER LEASE
II.1. Acceptance and Lease of Property. Subject to the conditions set
forth in the Participation Agreement, including without limitation the
satisfaction or waiver of the conditions set forth in Article II thereof, the
Lessor hereby agrees to accept pursuant to the terms of the Participation
Agreement delivery on the Closing the Land together with Improvements thereon,
if any, to be delivered by the seller thereof and simultaneously to demise and
lease to the Lessee hereunder and under the Lease Supplement for the Lease Term,
the Lessor's interest in such Land and in such Improvements together with any
Improvements which thereafter may be constructed on such Land pursuant this
Master Lease, and the Lessee hereby agrees, expressly for the direct benefit of
the Lessor, to lease from the Lessor for the Lease Term, the Lessor's interest
in such Land and in such Improvements together with any Improvements which
thereafter may be constructed on such Land pursuant and this Master Lease.
II.2. Acceptance Procedure. The Lessee hereby agrees that the execution
and delivery by the Lessee on each Acquisition Date of an appropriately
completed Lease Supplement in the form of Exhibit A hereto covering the Land and
all Improvements thereon, if any, to be acquired by the Lessor on such
Acquisition Date and all other Improvements which thereafter may be constructed
thereon this Master Lease, shall, without further act, constitute the
irrevocable acceptance by the Lessee of all of the Property which is the subject
of such Lease Supplement for all purposes of this Master Lease and the other
Operative Documents on the terms set forth therein and herein, and that such
Property, together with any Improvements constructed on such Property pursuant
to the this Master Lease, shall be deemed to be included in the leasehold estate
of this Master Lease and shall be subject to the terms and conditions of this
Master Lease as of the Acquisition Date.
II.3. Lease Term. The Base Lease Term (the "Base Lease Term") of this
Master Lease with respect to any Property shall (i) begin on the Acquisition
Date, and (ii) shall end on the seventh (7th) anniversary of the Documentation
Date, unless earlier terminated in accordance with the provisions of this Master
Lease and the other Operative Documents.
II.4. Title. Each Property is leased to the Lessee without any
representation or warranty, express or implied, by the Lessor and subject to the
rights of parties in possession, the existing
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state of title (including, without limitation, all Liens other than Lessor
Liens) and all applicable Requirements of Law and Property Legal Requirements.
The Lessee shall in no event have any recourse against the Lessor for any defect
in or exception to title to any Property other than resulting from Lessor Liens.
ARTICLE III
PAYMENT OF RENT
III.1. Rent.
(a) During the Lease Term, the Lessee shall pay Basic Rent on
each Basic Rent Payment Date, on the date required under Section 20.1(k)
in connection with the Lessee's exercise of the Remarketing Option and
on any date on which this Master Lease shall terminate with respect to
any or all Properties.
(b) The Lessee's inability or failure to take possession of all
or any portion of any Property when delivered by the Lessor, nor the
Lessor's inability or failure to deliver all or any portions of this
Property to the Lessee where attributable to any act or omission of the
Lessee or any act or omission of the Lessor, or for any other reason
whatsoever, shall delay or otherwise affect the Lessee's obligation to
pay Rent for such Property in accordance with the terms of this Master
Lease.
III.2. Payment of Rent. Rent shall be paid absolutely net to the Lessor,
so that this Master Lease shall yield to the Lessor the full amount thereof,
without setoff, deduction or reduction.
III.3. Supplemental Rent. The Lessee shall pay to the Lessor or the
Person entitled thereto any and all Supplemental Rent promptly as the same shall
become due and payable, and if the Lessee fails to pay any Supplemental Rent,
the Lessor shall have all rights, powers and remedies provided for herein or by
law or equity or otherwise in the case of nonpayment of Basic Rent. The Lessee
shall pay to the Lessor, as Supplemental Rent, among other things, on demand, to
the extent permitted by applicable Requirements of Law, interest at the
applicable Overdue Rate on any installment of Basic Rent not paid when due for
the period for which the same shall be overdue and on any payment of
Supplemental Rent not paid when due or demanded by the Lessor for the period
from the due date or the date of any such demand, as the case may be, until the
same shall be paid. The expiration or other termination of the Lessee's
obligations to pay Basic Rent hereunder shall not limit or modify the
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obligations of the Lessee with respect to Supplemental Rent. Unless expressly
provided otherwise in this Master Lease, in the event of any failure on the part
of the Lessee to pay and discharge any Supplemental Rent as and when due, the
Lessee shall also promptly pay and discharge any fine, penalty, interest or cost
which may be assessed or added under any agreement with a third party for
nonpayment or late payment of such Supplemental Rent, all of which shall also
constitute Supplemental Rent.
III.4. Method of Payment. Each payment of Rent shall be made by the
Lessee to the Agent prior to 11:00 a.m., San Francisco, California time to the
Agent's account specified on Schedule II to the Participation Agreement 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. Payments received
after 12:00 p.m., San Francisco time on the date due shall for the purpose of
Section 16.1 hereof be deemed received on such day; provided, however, that for
the purposes of the second sentence of Section 3.3 hereof, such payments shall
be deemed received on the next succeeding Business Day and, unless the Agent is
otherwise able to invest or employ such funds on the date received, subject to
interest at the Overdue Rate as provided in such Section 3.3.
ARTICLE IV
QUIET ENJOYMENT; RIGHT TO INSPECT
IV.1. Quiet Enjoyment. Subject to Sections 2.4 and 4.2, and subject to
the rights of the Lessor contained in Article XV and the other terms of the
Operative Documents to which the Lessee is a party, the Lessee shall peaceably
and quietly have, hold and enjoy each Property for the Lease Term, free of any
claim or other action by the Lessor or anyone claiming by, through or under the
Lessor (other than the Lessee) with respect to any matters arising from and
after the applicable Acquisition Date. Such right of quiet enjoyment is
independent of, and shall not affect the Lessor's rights otherwise to initiate
legal action to enforce, the obligations of the Lessee under this Master Lease.
IV.2. Right to Inspect. During the Lease Term, the Lessee shall upon
reasonable notice from the Lessor (except that no notice shall be required if a
Lease Event of Default has occurred and is continuing), permit the Lessor and
its authorized representatives to inspect any Property subject to this Master
Lease during normal business hours, provided that such
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inspections shall not unreasonably interfere with the Lessee's business
operations at such Property.
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ARTICLE V
NET LEASE, ETC.
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V.1. Net Lease. This Master Lease shall constitute a net lease. Any
present or future law to the contrary notwithstanding, this Master Lease shall
not terminate, nor shall the Lessee be entitled to any abatement, suspension,
deferment, reduction, setoff, counterclaim, or defense with respect to the Rent,
nor shall the obligations of the Lessee hereunder be affected (except as
expressly herein permitted and by performance of the obligations in connection
therewith) by reason of: (i) any defect in the condition, merchantability,
design, construction, quality or fitness for use of any Property or any part
thereof, or the failure of any Property to comply with all Requirements of Law
and Property Legal Requirements, including any inability to occupy or use any
such Property by reason of such non-compliance; (ii) any damage to, removal,
abandonment, salvage, loss, contamination of or Release from, scrapping or
destruction of or any requisition or taking of any Property or any part thereof;
(iii) any restriction, prevention or curtailment of or interference with any use
of any Property or any part thereof including eviction; (iv) any defect in title
to or rights to any Property or any Lien on such title or rights or on any
Property (other than Lessor Liens); (v) any change, waiver, extension,
indulgence or other action or omission or breach in respect of any obligation or
liability of or by the Lessor or any Participant; (vi) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceedings relating to the Lessee, the Lessor, any Participant or
any other Person, or any action taken with respect to this Master Lease by any
trustee or receiver of the Lessee, the Lessor, any Participant or any other
Person, or by any court, in any such proceeding; (vii) any claim that the Lessee
has or might have against any Person, including without limitation the Lessor,
any Participant, or any vendor, manufacturer, contractor of or for any Property;
(viii) any failure on the part of the Lessor to perform or comply with any of
the terms of this Master Lease (other than performance by Lessor of its
obligations set forth in Section 2.1 hereof), of any other Operative Document or
of any other agreement; (ix) any invalidity or unenforceability or illegality or
disaffirmance of this Master Lease against or by the Lessee or any provision
hereof or any of the other Operative Documents or any provision of any thereof;
(x) the impossibility or illegality of performance by the Lessee, the Lessor or
both; (xi) any action by any court, administrative agency or other Governmental
Authority; (xii) any restriction, prevention or curtailment of or interference
with the construction on or any use of any Property or any part thereof; or
(xiii) any other cause or circumstances whether similar or dissimilar to the
foregoing and whether or not the Lessee shall have notice or knowledge of any of
the foregoing. The Lessee's agreement in the preceding sentence shall not affect
any claim, action or right
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the Lessee may have against the Lessor or any Participant. The parties intend
that the obligations of the Lessee hereunder shall be covenants and agreements
that are separate and independent from any obligations of the Lessor hereunder
or under any other Operative Documents and the obligations of the Lessee shall
continue unaffected unless such obligations shall have been modified or
terminated in accordance with an express provision of this Master Lease.
V.2. No Termination or Abatement. The Lessee shall remain obligated
under this Master Lease in accordance with its terms and shall not take any
action to terminate, rescind or avoid this Master Lease (except as provided
herein), notwithstanding any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution, or other proceeding affecting the Lessor or any
Participant, or any action with respect to this Master Lease which may be taken
by any trustee, receiver or liquidator of the Lessor or any Participant or by
any court with respect to the Lessor or any Participant. The Lessee hereby
waives all right (i) to terminate or surrender this Master Lease (except as
provided herein) or (ii) to avail itself of any abatement, suspension,
deferment, reduction, setoff, counterclaim or defense with respect to any Rent.
The Lessee shall remain obligated under this Master Lease in accordance with its
terms and the Lessee hereby waives any and all rights now or hereafter conferred
by statute or otherwise to modify or to avoid strict compliance with its
obligations under this Master Lease. Notwithstanding any such statute or
otherwise, the Lessee shall be bound by all of the terms and conditions
contained in this Master Lease.
ARTICLE VI
SUBLEASES
VI.1. Subletting. Subject to Section 2.1(r) of the Participation
Agreement, the Lessee may sublease any Property or any portion thereof to any
Person; provided, however, that no sublease or other relinquishment of
possession of any Property shall in any way discharge or diminish any of the
Lessee's obligations to the Lessor hereunder and the Lessee shall remain
directly and primarily liable under this Master Lease as to the Properties, or
portion thereof, so sublet. Each sublease of any Property shall expressly be
made subject to and subordinated to this Master Lease and to the rights of the
Lessor hereunder.
ARTICLE VII
LESSEE ACKNOWLEDGMENTS
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VII.1. Condition of the Properties. THE LESSEE ACKNOWLEDGES AND AGREES
THAT IT IS LEASING EACH PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR
COVENANT (EXPRESS OR IMPLIED) BY THE LESSOR OR THE LENDERS AND IN EACH CASE
SUBJECT TO (A) THE EXISTING STATE OF TITLE (EXCLUDING LESSOR LIENS), (B) THE
RIGHTS OF ANY PARTIES IN POSSESSION THEREOF, (C) ANY STATE OF FACTS WHICH AN
ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW, AND (D) VIOLATIONS OF
REQUIREMENTS OF LAW AND PROPERTY LEGAL REQUIREMENTS WHICH MAY EXIST ON THE DATE
HEREOF OR ON THE ACQUISITION DATE FOR SUCH PROPERTY. NONE OF THE LESSOR OR THE
LENDERS HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR
COVENANT (EXPRESS OR IMPLIED) OR SHALL BE DEEMED TO HAVE ANY LIABILITY
WHATSOEVER AS TO THE TITLE (OTHER THAN FOR LESSOR LIENS), VALUE, HABITABILITY,
USE, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF ANY PROPERTY (OR ANY
PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY (OR ANY PART THEREOF) AND NONE
OF THE LESSOR OR THE LENDERS SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREIN (OTHER THAN FOR LESSOR LIENS) OR THE FAILURE OF ANY PROPERTY, OR
ANY PART THEREOF, TO COMPLY WITH ANY REQUIREMENT OF LAW OR PROPERTY LEGAL
REQUIREMENT.
VII.2. Risk of Loss. During the Lease Term the risk of loss of or
decrease in the enjoyment and beneficial use of the Properties as a result of
the damage or destruction thereof by fire, the elements, casualties, thefts,
riots, wars or otherwise is assumed by the Lessee, and the Lessor shall in no
event be answerable or accountable therefor.
ARTICLE VIII
POSSESSION AND USE OF THE PROPERTIES, ETC.
VIII.1. Utility Charges. The Lessee shall pay or cause to be paid all
charges for electricity, power, gas, oil, water, telephone, sanitary sewer
service and all other rents and utilities used in or on the Properties during
the Lease Term. The Lessee shall be entitled to receive any credit or refund
with respect to any utility charge paid by the Lessee and the amount of any
credit or refund received by the Lessor on account of any utility charges paid
by the Lessee, net of the costs and expenses reasonably incurred by the Lessor
in obtaining such credit or refund, shall be promptly paid over to the Lessee.
VIII.2. Possession and Use of the Property. Each Property may be used in
all lawful manners consistent with the business of the Lessee and otherwise as
set forth in the applicable
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Appraisal. The Lessee shall pay, or cause to be paid, all charges and costs
required in connection with the use of the Properties as contemplated by this
Master Lease. The Lessee shall not commit or permit any waste of the Properties
or any part thereof.
VIII.3. Compliance with Requirements of Law, Property Legal Requirements
and Insurance Requirements. Subject to the terms of Article XII relating to
permitted contests, the Lessee, at its sole cost and expense, shall (a) comply
in all material respects with all Requirements of Law (including all Hazardous
Materials Laws), Property Legal Requirements and Insurance Requirements relating
to the Properties, including the use, construction, operation, maintenance,
repair and restoration thereof and the remarketing thereof pursuant to Article
XX, whether or not compliance therewith shall require structural or
extraordinary changes in the Improvements or interfere with the use and
enjoyment of the Properties, and (b) procure, maintain and comply with all
licenses, permits, orders, approvals, consents and other authorizations required
for the construction, use, maintenance and operation of the Properties and for
the use, operation, maintenance, repair and restoration of the Improvements.
Notwithstanding the preceding sentence, the Lessee shall be deemed to be in
compliance with all Hazardous Materials Laws for purposes of this Master Lease
notwithstanding any Environmental Violation if the severity of such
Environmental Violation is less than Federal, state or local standards requiring
remediation or removal or, if such standards are exceeded, remediation or
removal is proceeding in accordance with all applicable Hazardous Materials
Laws.
VIII.4. Assignment by Lessee. The Lessee may not assign this Master
Lease or any of its rights or obligations hereunder in whole or in part to any
Person, except that the Lessee may sublease any Property or portion thereof as
permitted under Section 6.1.
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ARTICLE IX
MAINTENANCE AND REPAIR; RETURN
IX.1. Maintenance and Repair; Return.
(a) The Lessee, at its sole cost and expense, shall maintain each
Property in good condition (ordinary wear and tear excepted) and make
all necessary repairs thereto, of every kind and nature whatsoever,
whether interior or exterior, ordinary or extraordinary, structural or
nonstructural or foreseen or unforeseen, in each case as required by all
Requirements of Law, Property Legal Requirements and Insurance
Requirements and in no event less than the standards applied by the
Lessee in the operation and maintenance of other comparable properties
owned or leased by the Lessee or its Affiliates.
(b) The Lessor shall under no circumstances be required to build
any improvements on any Property, make any repairs, replacements,
alterations or renewals of any nature or description to any Property,
make any expenditure whatsoever in connection with this Master Lease
(other than for Advances made in accordance with and pursuant to the
terms of the Participation Agreement) or maintain any Property in any
way. The Lessee waives any right to (i) require the Lessor to maintain,
repair, or rebuild all or any part of any Property or (ii) make repairs
at the expense of the Lessor pursuant to any Requirement of Law,
Property Legal Requirement, Insurance Requirement, contract, agreement,
or covenant, condition or restriction in effect at any time during the
Lease Term.
(c) The Lessee shall, upon the expiration or earlier termination
of this Master Lease with respect to any Property (other than as a
result of the Lessee's purchase of such Property from the Lessor as
provided herein), vacate and surrender such Property to the Lessor in
its then-current, "AS IS" condition, subject to the Lessee's obligations
under Sections 8.3, 9.1(a), 10.1, 11.1, 14.1(e), 14.2 and 20.1.
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ARTICLE X
MODIFICATIONS, ETC.
X.1. Modifications, Substitutions and Replacements. During the Lease
Term, the Lessee, at its sole cost and expense, may at any time and from time to
time make alterations, renovations, improvements and additions to any Property
or any part thereof and substitutions and replacements therefor (collectively,
"Modifications"); provided, however, that:
(i) except for any Modification required to be made pursuant to a
Requirement of Law or Property Legal Requirement (a "Required
Modification"), no Modification shall adversely affect the value or
useful life of such Property or any part thereof from that which existed
immediately prior to such Modification;
(ii) the Modification shall be done in a good and workmanlike
manner;
(iii) the Lessee shall comply in all material respects with all
Requirements of Law (including all Hazardous Materials Laws), Property
Legal Requirements and Insurance Requirements applicable to the
Modification, including the obtaining of all permits and certificates of
occupancy;
(iv) subject to the terms of Article XII relating to permitted
contests, the 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 Modification;
(v) such Modifications shall comply with Sections 8.3 and
9.1(a); and
(vi) the Lessee shall be required to obtain the prior written
approval of the Lessor, which approval shall not be unreasonably
withheld, and which shall be deemed to have been given if no response
from the Lessor to the request for consent is received by the Lessee
within ten (10) days of the date of such request, with respect to any
alterations that shall Materially affect any structural element of any
Improvements.
All Modifications shall remain part of the realty and shall be subject to this
Master Lease and title thereto shall immediately vest in the Lessor; provided,
however, that Modifications that
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(x) are not Required Modifications, (y) were not financed by the Lessor and (z)
are readily removable without impairing the value, utility or remaining useful
life of the applicable Property, shall be the property of the Lessee and shall
not be subject to this Master Lease. So long as no Lease Event of Default has
occurred and is continuing, the Lessee may place upon the Properties any trade
fixtures, machinery, equipment, inventory or other property belonging to the
Lessee or third parties and may remove the same at any time during the Lease
Term, subject, however, to the terms of Section 9.1(a); provided, however, that
such trade fixtures, machinery, equipment, inventory or other property do not
impair the value or useful life of the applicable Property; provided, further,
however, that the Lessee shall keep and maintain at the Properties and shall not
remove from the Properties any Equipment financed or otherwise paid for
(directly or indirectly) by the Lessor or any Participant pursuant to the
Participation Agreement.
X.2. Notice to the Lessor. If the Lessee reasonably expects the cost of
any Modification to any Property to exceed $250,000.00, the Lessee shall deliver
to the Lessor a brief written narrative of the work to be performed in
connection with such Modification prior to making such Modification.
ARTICLE XI
WARRANT OF TITLE; EASEMENTS
XI.1. Warrant of Title.
(a) The Lessee agrees that except as otherwise provided herein
and subject to the terms of Article XII relating to permitted contests,
the Lessee shall not directly or indirectly create or allow to remain,
and shall promptly discharge at its sole cost and expense, any Lien
(other than any Lessor Lien), defect, attachment, levy, title retention
agreement or claim upon any Property or any Lien, attachment, levy or
claim with respect to the Rent or with respect to any amounts held by
the Lessor or the Participants pursuant to the Loan Agreement or the
other Operative Documents, other than Permitted Property Liens and Liens
on machinery, equipment, general intangibles and other personal property
not financed by the proceeds of the Loans or Lessor Amounts.
(b) Nothing contained in this Master Lease shall be construed as
constituting the consent or request of the Lessor, expressed or implied,
to or for the performance by any contractor, mechanic, laborer,
materialman, supplier or
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vendor of any labor or services or for the furnishing of any materials
for any construction, alteration, addition, repair or demolition of or
to any Property or any part thereof. NOTICE IS HEREBY GIVEN THAT NONE OF
THE LESSOR OR THE LENDERS IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES
OR MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE, OR TO ANYONE
HOLDING A PROPERTY OR ANY PART THEREOF THROUGH OR UNDER THE LESSEE, AND
THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF THE LESSOR OR ANY
LENDER IN AND TO ANY PROPERTY.
XI.2. Grants and Releases of Easements; Lessor's Waivers. Provided that
no Lease Event of Default shall have occurred and be continuing and subject to
the provisions of Articles VII, IX and X and Section 8.3 the Lessor hereby
consents in each instance to the following actions by the Lessee, in the name
and stead of the Lessor, but at the Lessee's sole cost and expense: (a) the
granting of easements, licenses, rights-of-way and other rights and privileges
in the nature of easements reasonably necessary or desirable for the use,
repair, or maintenance of any Property as herein provided; (b) the release of
existing easements or other rights in the nature of easements which are for the
benefit of any Property; and (c) the execution of amendments to any covenants
and restrictions affecting any Property; provided, however, that in each case
(i) such grant, release, dedication, transfer or amendment does not materially
impair the value or remaining useful life of the applicable Property, (ii) such
grant, release, dedication, transfer or amendment that in the Lessee's judgment
is reasonably necessary in connection with the use, maintenance, alteration or
improvement of the applicable Property, (iii) such grant, release, dedication,
transfer or amendment will not cause the applicable Property or any portion
thereof to fail to comply with the provisions of this Master Lease or any other
Operative Documents and all Property Legal Requirements (including, without
limitation, all applicable zoning, planning, building and subdivision
ordinances, all applicable restrictive covenants and all applicable
architectural approval requirements); (iv) all governmental consents or
approvals required prior to such grant, release, dedication, transfer,
annexation or amendment have been obtained, and all filings required prior to
such action have been made; (v) the Lessee shall remain obligated under this
Master Lease and under any instrument executed by the Lessee consenting to the
assignment of the Lessor's interest in this Master Lease as security for
indebtedness, in each such case in accordance with their terms, as though such
grant, release, dedication, transfer or amendment had not been effected and (vi)
the Lessee shall pay and perform any obligations of the Lessor under such grant,
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release, dedication, transfer or amendment. The Lessor acknowledges the Lessee's
right to finance and to secure under the Uniform Commercial Code, inventory,
furnishings, furniture, equipment, machinery, leasehold improvements and other
personal property located at the Properties other than Equipment, and Lessor
agrees to execute Lessor waiver forms and release of Lessor's Liens in favor of
any purchase money seller, lessor or lender which has financed or may finance in
the future such items. Without limiting the effectiveness of the foregoing,
provided that no Lease Event of Default shall have occurred and be continuing,
the Lessor shall, upon the request of the Lessee, and at the Lessee's sole cost
and expense, execute and deliver any instruments necessary or appropriate to
confirm any such grant, release, dedication, transfer, annexation or amendment
to any Person permitted under this Section 11.2 including landlord waivers with
respect to any of the foregoing. So long as no Event of Default shall have
occurred and be continuing, Lessee is hereby granted an irrevocable power of
attorney (coupled with an interest) to execute the types of documents,
instruments and agreement referred to in this Section 11.2. In addition, Lessor
covenants to cooperate and to execute promptly any documents requested by Lessee
under this Section 11.2.
ARTICLE XII
PERMITTED CONTESTS
XII.1. Permitted Contests in Respect of Applicable Law. If, to the
extent and for so long as (a) a test, challenge, appeal or proceeding for review
of any Applicable Law relating to any Property shall be prosecuted diligently
and in good faith in appropriate proceedings by the Lessee or (b) compliance
with such Applicable Law shall have been excused or exempted by a valid
nonconforming use, variance permit, waiver, extension or forbearance, the Lessee
shall not be required to comply with such Applicable Law but only if and so long
as any such test, challenge, appeal, proceeding, waiver, extension, forbearance
or noncompliance shall not, in the reasonable opinion of the Lessor and the
Agent, involve (A) any risk of criminal liability being imposed on the Lessor or
any Lender or (B) any risk of (1) foreclosure, forfeiture or loss of such
Property, or sale of any Property or any material part thereof, or nonpayment of
Rent (2) civil liability being imposed on the Lessor, any Lender, or such
Property, or (3) enjoinment of, or interference with, the use, possession or
disposition of such Property in any material respect.
The Lessor will not be required to join in any proceedings pursuant to
this Section 12.1 unless a provision of any
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Applicable Law requires that such proceedings be brought by or in the name of
the Lessor; and in that event the Lessor will join in the proceedings or permit
them or any part thereof to be brought in its name if and so long as (i) the
Lessee has not elected the Remarketing Option and (ii) the Lessee pays all
related expenses and indemnifies the Lessor and the Participants with respect to
such proceedings.
ARTICLE XIII
INSURANCE
XIII.1. Public Liability and Workers' Compensation Insurance.
(a) During the Lease Term, the Lessee shall procure and carry, at
the Lessee's sole cost and expense, commercial general liability
insurance for claims for injuries or death sustained by persons or
damage to property while on the Properties and such other public
liability coverages as are ordinarily procured by the Lessee or its
Affiliates who own or operate similar properties, but in any case shall
provide liability coverage of at least combined single limit for bodily
injury or property damage, $5,000,000 per occurrence and aggregate. Such
insurance shall be on terms and in amounts that are no less favorable
than insurance maintained by the Lessee or such Affiliates with respect
to similar properties that they own and that are in accordance with
normal industry practice. The policy shall be endorsed to name the
Lessor as additional insured. The policy shall also specifically provide
that the policy shall be considered primary insurance which shall apply
to any loss or claim before any contribution by any insurance which the
Lessor may have in force.
(b) The Lessee shall in the construction of any Modifications and
the operation of the Properties, comply with the applicable workers'
compensation laws.
XIII.2. Hazard and Other Insurance. During the Lease Term, the Lessee
shall keep, or cause to be kept, such Property insured against loss or damage by
fire, and other risks on terms and in amounts that are no less favorable than
insurance covering other similar properties owned by the Lessee or its
Affiliates and that are in accordance with normal industry practices, but at
least an amount sufficient to cover the replacement cost of the Improvements.
During the construction of any Improvements the Lessee shall also maintain or
cause to be maintained builders' risk insurance. All insurance proceeds in
respect of any loss or
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occurrence for which the proceeds related thereto are (i) less than or equal to
$500,000.00, in the absence of the occurrence and continuance of an Event of
Default, shall be adjusted by and paid to the Lessee for application toward the
reconstruction, repair or refurbishment of the applicable Property and (ii)
greater than $500,000.00, shall be adjusted by and held by the Lessor for
application in accordance with Article XIV.
XIII.3. Insurance Coverage.
(a) The Lessee shall furnish the Lessor and the Agent with
certificates showing the insurance required under Sections 13.1 and 13.2
to be in effect and naming the Lessor as additional insured with respect
to liability coverage (excluding worker's compensation insurance),
naming the Lessor and the Lessee as their interests may appear with
respect to property coverage and naming the Lessor as loss payee with
respect to property coverage and showing the mortgagee endorsement
required by Section 13.3(c) with respect to such coverage. All such
insurance shall be at the cost and expense of the Lessee. Such
certificates shall include a provision for no less than thirty (30)
days' advance written notice by the insurer to the Lessor in the event
of cancellation or reduction of such insurance.
(b) The Lessee agrees that the insurance policy or policies
required by Sections 13.2 shall include an appropriate clause pursuant
to which such policy shall provide that it 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 and its rights under and
interests in said 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 any Property other
than the Lessor. The Lessee hereby waives any and all such rights
against the Lessor to the extent of payments made under such policies.
(c) All such insurance shall be written by reputable insurance
companies that are financially sound and solvent and otherwise
reasonably appropriate considering the amount and type of insurance
being provided by such companies. Any insurance company selected by the
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 "VIII" or be otherwise
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acceptable to the Lessor. All insurance policies required by Section
13.2 shall include a standard form mortgagee endorsement in favor of the
Lessor.
(d) The Lessor shall not carry separate insurance concurrent in
kind or form or contributing in the event of loss with any insurance
required under this Article XIII except that the Lessor may, at the
Lessor's expense, carry separate liability insurance so long as (i) the
Lessee's insurance is designated as primary and in no event excess or
contributory to any insurance the Lessor may have in force which would
apply to a loss covered under the Lessee's policy and (ii) each such
insurance policy will not cause the Lessee's insurance required under
this Article XIII to be subject to a coinsurance exception of any kind.
(e) The Lessee shall pay as they become due all premiums for the
insurance required by Section 13.1 and Section 13.2, and shall renew or
replace each policy prior to the expiration date thereof. Throughout the
Lease Term, at the time each of the Lessee's insurance policies is
renewed (but in no event less frequently than once each year), the
Lessee shall deliver to the Lessor and the Agent certificates of
insurance evidencing that all insurance required by this Article XIII is
being maintained by the Lessee and is in effect.
ARTICLE XIV
CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS
XIV.1. Casualty and Condemnation.
(a) Subject to the provisions of this Article XIV, if all or a
portion of any Property is damaged or destroyed in whole or in part by a
Casualty or if the use, access, occupancy, easement rights or title to
any Property or any part thereof, is the subject of a Condemnation, then
(i) in the case of a Casualty, (x) any insurance proceeds
less than $500,000 payable with respect to such Casualty shall be
paid directly to the Lessee, or if received by the Lessor, shall
be paid over to such Lessee for the reconstruction, refurbishment
and repair of such Property, and (y) any insurance proceeds in
excess of $500,000 payable with respect to such Casualty shall be
paid to the Lessor to be applied by disbursement to the Lessee to
the restoration of such Property, and
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(ii) in the case of a Condemnation (that is not a
Significant Condemnation) of any part of any Land (not including
the applicable Improvements), any award or compensation relating
thereto shall be paid to the Lessee and in the case of a
Significant Condemnation such award or compensation shall be paid
to the Lessor to be applied in the Lessee's reasonable discretion
to the restoration of such Property or toward the payment of the
applicable Lease Balance;
provided, however, that, in each case, if a Lease Event of Default shall
have occurred and be continuing, such award, compensation or insurance
proceeds shall be paid directly to the Lessor or, if received by the
Lessee, shall be held in trust for the Lessor and the Lenders, and shall
be paid over by the Lessee to the Lessor to be distributed in accordance
with the Article VII of the Participation Agreement. All amounts held by
the Lessor, or the Lenders when a Lease Event of Default exists
hereunder on account of any award, compensation or insurance proceeds
either paid directly to the Lessor or the Lenders or turned over to the
Lessor or the Lenders shall at the option of the Lessor either be (i)
paid to the Lessee for the repair of damage caused by such Casualty or
Condemnation in accordance with clause (d) of this Section 14.1, or (ii)
applied to the purchase price of the related Property on the Termination
Date with respect to such Property in accordance with Article XV, with
any Excess Casualty/Condemnation Proceeds being payable to the Lessee.
(b) The Lessee may appear in any proceeding or action to
negotiate, prosecute, adjust or appeal any claim for any award,
compensation or insurance payment on account of any such Casualty or
Condemnation and shall pay all expenses thereof. At the Lessee's
reasonable request, and at the Lessee's sole cost and expense, the
Lessor and the Lenders shall participate in any such proceeding, action,
negotiation, prosecution or adjustment. The Lessor and the Lessee agree
that this Master Lease shall control the rights of the Lessor and the
Lessee in and to any such award, compensation or insurance payment.
(c) If the Lessor or the Lessee shall receive notice of a
Casualty or of an actual, pending or threatened Condemnation of any
Property or any interest therein, the Lessor or the Lessee, as the case
may be, shall give notice thereof to the other and to the Lenders
promptly after the receipt of such notice.
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(d) If pursuant to this Section 14.1 and Section 15.1 this Master
Lease shall continue in full force and effect following a Casualty or
Condemnation with respect to any Property, the Lessee shall, at its sole
cost and expense (and, without limitation, if any award, compensation or
insurance payment is not sufficient to restore such Property in
accordance with this clause (d), or is not covered by insurance as in
the case of Casualty caused by earthquake, the Lessee shall pay the
shortfall), promptly and diligently repair any damage to such Property
caused by such Casualty or Condemnation in conformity with the
requirements of Sections 9.1 and 10.1 (as modified to give effect to any
subsequent Modifications, any Condemnation affecting such Property and
all applicable Property Legal Requirements) so as to restore such
Property to at least the same condition, operation, function and value
as existed immediately prior to such Casualty or Condemnation with such
Modification as the Lessee may elect in accordance with Section 10.1. In
such event, title to such Property shall remain with the Lessor subject
to the terms of this Master Lease. Upon completion of such restoration,
the Lessee shall furnish the Lessor an architect's certificate of
substantial completion and a Responsible Employee's Certificate
confirming that such restoration has been completed pursuant to this
Master Lease.
(e) In no event shall a Casualty or Condemnation affect the
Lessee's obligations to pay Rent pursuant to Section 3.1 or to perform
its obligations and pay any amounts due on the Expiration Date or
pursuant to Articles XVIII and XXI.
(f) Any Excess Casualty/Condemnation Proceeds received by the
Lessor or the Lenders in respect of a Casualty or Condemnation shall be
turned over to the Lessee.
XIV.2. Environmental Matters. Promptly upon the Lessee's knowledge of
the existence of an Environmental Violation with respect to any Property, the
Lessee shall notify the Lessor in writing of such Environmental Violation. If
the Lessor elects not to terminate this Master Lease with respect to such
Property pursuant to Section 15.1, at the Lessee's sole cost and expense, the
Lessee shall promptly and diligently commence any response, clean up, remedial
or other action necessary to remove, clean up or remediate the Environmental
Violation in accordance with the terms of Section 8.3 (including the last
sentence thereof). The Lessee shall, upon completion of remedial action by the
Lessee, cause to be prepared by an environmental consultant reasonably
acceptable to the Lessor a report describing the Environmental
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Violation and the actions taken by the Lessee (or its agents) in response to
such Environmental Violation, and a statement by the consultant that the
Environmental Violation has been remedied in compliance in all material respects
with applicable Hazardous Materials Laws. Each such Environmental Violation
shall be remedied prior to the Expiration Date unless each Property with respect
to which an Environmental Violation has occurred but has not been remedied has
been purchased by the Lessee in accordance with Section 18.1 or 18.2. Nothing in
this Article XIV shall reduce or limit the Lessee's obligations under Sections
13.1, 13.2 or 13.3 of the Participation Agreement.
XIV.3. Notice of Environmental Matters. Promptly, but in any event
within sixty (60) Business Days from the date the Lessee has actual knowledge
thereof, the Lessee shall provide to the Lessor written notice of any pending or
threatened claim, action or proceeding involving any Hazardous Materials Laws or
any Release on or in connection with any Property. All such notices shall
describe in reasonable detail the nature of the claim, action or proceeding and
the Lessee's proposed response thereto. In addition, the Lessee shall provide to
the Lessor, within sixty (60) Business Days of receipt, copies of all written
communications with any Governmental Authority relating to any Environmental
Violation in connection with any Property. The Lessee shall also promptly
provide such detailed reports of any such material environmental claims as may
reasonably be requested by the Lessor or the Lenders. In the event that the
Lessor receives written notice of any pending or threatened claim, action or
proceeding involving any Hazardous Materials Laws or any Release on or in
connection with any Property, the Lessor shall promptly give notice thereof to
the Lessee.
ARTICLE XV
TERMINATION OF LEASE
XV.1. Partial Termination upon Certain Events. If any of the following
occurs with respect to any Property:
(i) a Significant Condemnation occurs; or
(ii) an Environmental Violation occurs or is discovered the cost
of remediation of which would exceed $5,000,000;
and the Lessor shall have given written notice (a "Termination Notice") to the
Lessee that, as a consequence of such event, (x) the Lease Supplement relating
to such Property is to be terminated and (y) this Master Lease is to be
terminated with
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respect to such Property, then the Lessee shall be obligated to purchase the
Lessor's interest in such affected Property on or prior to the next occurring
Basic Rent Payment Date by paying the Lessor an amount equal to the Property
Balance for such affected Property.
XV.2. Termination Procedures. On the date of the payment by the Lessee
of the Property Balance, or the Lease Balance, as the case may be, with respect
to any Property or all Properties, as the case may be, in accordance with
Section 15.1 (such date, the "Termination Date"), the Lease Supplement relating
to each such affected Property shall terminate and this Master Lease shall
terminate with respect to each such Property and, concurrent with the Lessor's
receipt of such payment,
(a) the Lessor shall execute and deliver to the Lessee (or to the
Lessee's designee) at the Lessee's cost and expense a special warranty
deed with respect to each such Property, a xxxx of sale with respect to
the Equipment located on each such Property and an assignment of the
Lessor's entire interest in each such Property (which shall include an
assignment of all of the Lessor's right, title and interest in and to
any Net Proceeds with respect to each such Property not previously
received by the Lessor), in each case in recordable form and otherwise
in conformity with local custom and free and clear of the Lien of the
Lessor Mortgage and any Lessor Liens attributable to the Lessor;
(b) each such Property shall be conveyed to the Lessee (or to the
Lessee's designee) "AS IS" and in its then present physical condition;
and
(c) in the case of a termination pursuant to clause (i) or (ii)
of Section 15.1(a), the Lessor shall convey to the Lessee any Net
Proceeds with respect to the Casualty or Condemnation giving rise to the
termination of this Master Lease with respect to such Property
theretofore received by the Lessor or at the request of the Lessee, such
amounts shall be applied against sums due hereunder.
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ARTICLE XVI
EVENTS OF DEFAULT
XVI.1. Lease Events of Default. The occurrence of any one or more of the
following events (whether such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body) shall constitute a "Lease Event of
Default":
(a) the Lessee shall fail to make payment of (i) any Basic Rent
within five (5) days after the same has become due and payable, or (ii)
any Property Balance, Purchase Option Price, Loan Balance or Lease
Balance, including, without limitation, amounts due pursuant to Sections
15.1, 15.2, 18.1, 18.2, or 20.1;
(b) the Lessee shall fail to make payment of any Supplemental
Rent due and payable within five (5) days after receipt of notice
thereof;
(c) the Lessee shall fail to maintain insurance as required by
Article XIII of this Master Lease;
(d) the Lessee shall fail to deposit with the Collateral Agent,
within the time set forth in Section 6.1 of the Participation Agreement,
the Deficiency Collateral;
(e) the Lessee shall not be in compliance with Section
10.1(f)(i), (ii) or (iii) of the Participation Agreement;
(f) the Lessee shall fail to observe or perform any term,
covenant or condition of the Lessee under this Lease or the Operative
Documents to which it is party other than those described in Section
20.1(a), (b), (c), (d) or (e) hereof, and such failure shall have
continued for thirty (30) days after the earlier of (i) delivery to the
Lessee of written notice thereof from the Lessor or (ii) a Responsible
Employee of the Lessee shall have knowledge of such failure; provided
further, that failure by the Lessee to fully comply with the
requirements of Section 20.1 hereof shall not be subject to any cure
period; provided, however, that no Event of Default shall be deemed to
have occurred under this subsection until one hundred twenty (120) days
has elapsed so long as throughout such time, the Lessee is diligently
pursuing a cure for such breach (to the extent such breach may be
cured);
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(g) any representation or warranty made by the Lessee in any of
the Operative Documents to which it is a party shall prove to have been
Materially inaccurate at the time made, and if such inaccuracy can be
cured, it shall not have been cured within thirty (30) days after the
earlier of (i) delivery to the Lessee of written notice thereof from the
Lessor or (ii) a Responsible Employee of the Lessee shall have knowledge
of such inaccuracy; provided, however, that no Event of Default shall be
deemed to have occurred under this subsection until one hundred twenty
(120) days has elapsed so long as throughout such time, the Lessee is
diligently pursuing a cure for such breach (to the extent such breach
may be cured);
(h) the Lessee shall (i) admit in writing its inability to pay
its debts generally as they become due, (ii) file a petition under the
United States bankruptcy laws or any other applicable insolvency law or
statute of the United States of America or any State or Commonwealth
thereof, (iii) make a general assignment for the benefit of its
creditors, (iv) consent to the appointment of a receiver of itself or
the whole or any substantial part of its property, (v) fail to cause the
discharge of any custodian, trustee or receiver appointed for the Lessee
or the whole or a substantial part of its property within sixty (60)
days after such appointment, or (vi) file a petition or answer seeking
or consenting to reorganization under the United States bankruptcy laws
or any other applicable insolvency law or statute of the United States
of America or any State or Commonwealth thereof;
(i) insolvency proceedings or a petition under the United States
bankruptcy laws or any other applicable insolvency law or statute of the
United States of America or any State or Commonwealth thereof shall be
filed against the Lessee and not dismissed within ninety (90) days from
the date of its filing, or a court of competent jurisdiction shall enter
an order or decree appointing, without the consent of the Lessee a
receiver of the Lessee or the whole or a substantial part of any of its
property and such order or decree shall not be vacated or set aside
within ninety (90) days from the date of the entry thereof;
(j) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any
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member of the ERISA Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $5,000,000;
(k) any judgments or orders for the payment of money, in any case
not covered by insurance, individually or in the aggregate in excess of
$5,000,000 shall be rendered against the Lessee, and such judgment or
order shall continue unsatisfied and unstayed (pursuant to laws, rules
or court orders) for a period of thirty (30) days;
(l) an event of default, as defined in any agreement, mortgage,
indenture or instrument under which there may be issued, or by which
there may be secured or evidenced, any indebtedness of the Lessee with
respect to any Property, whether such indebtedness now exists or shall
hereafter be created, shall happen and such indebtedness individually or
in the aggregate shall exceed $5,000,000 and shall be due and payable
prior to its stated maturity;
(m) any Lien granted under any Operative Document shall, in whole
or in part, terminate, cease to be effective against, or cease to be the
legal, valid, binding and enforceable obligation of, the Lessee;
(n) the Lessee shall directly or indirectly contest the validity
of any Operative Document in any manner in any court of competent
jurisdiction or any lien granted by any Operative Document; or
(o) a Loan Agreement Event of Default, a Guaranty Event of
Default or a Construction Agency Agreement Event of Default shall have
occurred and be continuing.
XVI.2. Remedies. Upon the occurrence of any Lease Event of Default and
at any time thereafter, the Lessor may, so long as such Lease Event of Default
is continuing, do one or more of the following as the Lessor in its sole
discretion shall determine,
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without limiting any other right or remedy the Lessor may have on account of
such Lease Event of Default (including, without limitation, the obligation of
the Lessee to purchase the Properties as set forth in Section 18.2:
(a) The Lessor may, by notice to the Lessee, rescind or terminate
this Master Lease as to any Property or all of the Properties as of the
date specified in such notice; however, (i) no reletting, reentry or
taking of possession of any Property (or any portion thereof) by the
Lessor will be construed as an election on the Lessor's part to
terminate this Master Lease unless a written notice of such intention is
given to the Lessee, (ii) notwithstanding any reletting, reentry or
taking of possession, the Lessor may at any time thereafter elect to
terminate this Master Lease for a continuing Lease Event of Default and
(iii) no act or thing done by the Lessor or any of its agents,
representatives or employees and no agreement accepting a surrender of
the Properties shall be valid unless the same be made in writing and
executed by the Lessor;
(b) The Lessor may (i) demand that the Lessee, and the Lessee
shall upon the written demand of the Lessor, return any Property
promptly to the Lessor in the manner and condition required by, and
otherwise in accordance with all of the provisions of, Articles VII and
IX and Section 8.3 hereof as if such Property were being returned at the
end of the Lease Term, and the Lessor shall not be liable for the
reimbursement of the Lessee for any costs and expenses incurred by the
Lessee in connection therewith and (ii) without prejudice to any other
remedy which the Lessor may have for possession of any Property, and to
the extent and in the manner permitted by Applicable Law, enter upon
such Property and take immediate possession of (to the exclusion of the
Lessee) such Property or any part thereof and expel or remove the Lessee
and any other Person who may be occupying such Property, by summary
proceedings or otherwise, all without liability to the 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 the Lessor's other damages, the Lessee shall be
responsible for all costs and expenses incurred by the Lessor and/or the
Lenders in connection with any reletting, including, without limitation,
reasonable brokers' fees and all costs of any alterations or repairs
made by the Lessor;
(c) The Lessor may (i) sell all or any part of any Property at
public sale free and clear of any rights of the
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Lessee and without any duty to account to the Lessee with respect to
such action or inaction or any proceeds (except that Excess Proceeds are
payable to and shall be paid to the Lessee) with respect thereto (except
to the extent required by clause (ii) below if the Lessor shall elect to
exercise its rights thereunder) in which event the 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 the Lessor shall so elect, demand that the Lessee
pay to the Lessor, and the Lessee shall pay to the Lessor, on the date
of such sale, as liquidated damages for loss of a bargain and not as a
penalty (the parties agreeing that the Lessor's actual damages would be
difficult to predict, but the aforementioned liquidated damages
represent a reasonable approximation of such amount) or (in lieu of
Basic Rent due for periods commencing on or after the Payment Date
coinciding with such date of sale (or, if the sale date is not a Basic
Rent Payment Date, the Basic Rent Payment Date next preceding the date
of such sale)), an amount equal to (A) the excess, if any, of (1) the
Lease Balance calculated as of such Basic Rent Payment Date (including
all Rent due and unpaid to and including such Basic Rent Payment Date
and), over (2) the net proceeds of such sale (that is, after deducting
all costs and expenses incurred by the Lessor incident to such
conveyance, including, without limitation, repossession costs, brokerage
commissions, prorations, transfer taxes, fees and expenses for counsel,
title insurance fees, survey costs, recording fees, and any repair
costs); plus (B) interest at the Overdue Rate on the foregoing amount
from such Basic Rent Payment Date until the date of payment;
(d) The Lessor may, at its option, elect not to terminate this
Master Lease with respect to any Property or all of the Properties and
continue to collect all Basic Rent, Supplemental Rent, and all other
amounts due the Lessor (together with all costs of collection) and
enforce the Lessee's obligations under this Master Lease as and when the
same become due, or are to be performed, and at the option of the
Lessor, upon any abandonment of any Property by the Lessee or re-entry
of same by the Lessor, the Lessor may, in its sole and absolute
discretion, elect not to terminate this Master Lease and may make the
necessary repairs in order to relet such Property, and relet such
Property or any part thereof for such term or terms (which may be for a
long term extending beyond the Lease Term of this Master Lease) and at
such rental or rentals and upon such other terms and conditions as the
Lessor in its
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reasonable discretion may deem advisable; and upon each such reletting
all rentals actually received by the Lessor from such reletting shall be
applied to the Lessee's obligations hereunder and the other Operative
Documents in such order, proportion and priority as the Lessor may elect
in the Lessor's sole and absolute discretion. If such rentals received
from such reletting during any period are less than the Rent with
respect to such Property to be paid during that period by the Lessee
hereunder, the Lessee shall pay any deficiency, as calculated by the
Lessor, to the Lessor on the next Basic Rent Payment Date;
(e) Unless all of the Properties have been sold in their
entirety, the Lessor may, whether or not the Lessor shall have exercised
or shall thereafter at any time exercise any of its rights under clause
(b), (c) or (d) of this Section 16.2 with respect to any Properties or
any portions thereof, demand, by written notice to the Lessee specifying
a date (a "Termination Date") not earlier than twenty (20) days after
the date of such notice, that the Lessee purchase, on such Termination
Date, all unsold Properties and all unsold portions of Properties in
accordance with the provisions of Article XXI and Section 18.2;
(f) The Lessor may exercise any other right or remedy that may be
available to it 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 period(s), and such suits shall not in any
manner prejudice the Lessor's right to collect any such damages for any
subsequent period(s), or the 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;
(g) The Lessor may retain and apply against the Lease Balance all
sums which the Lessor would, absent such Lease Event of Default, be
required to pay to, or turn over to, the Lessee pursuant to the terms of
this Master Lease;
(h) If a Lease Event of Default shall have occurred and be
continuing, the Lessor, to the extent permitted by Applicable Law, as a
matter of right and with notice to the Lessee, shall have the right to
apply to any court having jurisdiction to appoint a receiver or
receivers of any Property, and the Lessee hereby irrevocably consents to
any such appointment. Any such receiver(s) shall have all of
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the usual powers and duties of receivers in like or similar cases and
all of the powers and duties of the Lessor in case of entry, and shall
continue as such and exercise such powers until the date of confirmation
of the sale of such Property unless such receivership is sooner
terminated;
(i) To the maximum extent permitted by law, the Lessee hereby
waives the benefit of any appraisement, valuation, stay, extension,
reinstatement and redemption laws now or hereafter in force and all
rights of marshalling in the event of any sale of any Property or any
interest therein;
(j) The Lessor shall be entitled to enforce payment of the
indebtedness and performance of the obligations secured hereby and to
exercise all rights and powers under this instrument or under any of the
other Operative Documents or other agreement or any laws now or
hereafter in force, notwithstanding some or all of the obligations
secured hereby may now or hereafter be otherwise secured, whether by
mortgage, security agreement, pledge, lien, assignment or otherwise.
Neither the acceptance of this instrument nor its enforcement, shall
prejudice or in any manner affect the Lessor's right to realize upon or
enforce any other security now or hereafter held by the Lessor, it being
agreed that the Lessor shall be entitled to enforce this instrument and
any other security now or hereafter held by the Lessor in such order and
manner as the Lessor may determine in its absolute discretion. No remedy
herein conferred upon or reserved to the Lessor is intended to be
exclusive of any other remedy herein or by law provided or permitted,
but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity
or by statute. Every power or remedy given by any of the Operative
Documents to the Lessor or to which it may otherwise be entitled, may be
exercised, concurrently or independently, from time to time and as often
as may be deemed expedient by the Lessor. In no event shall the Lessor,
in the exercise of the remedies provided in this instrument (including,
without limitation, in connection with the assignment of rents to
Lessor, or the appointment of a receiver and the entry of such receiver
onto all or any part of the Properties), be deemed a "mortgagee in
possession," and the Lessor shall not in any way be made liable for any
act, either of commission or omission, in connection with the exercise
of such remedies.
If, pursuant to the exercise by the Lessor of its remedies pursuant to this
Section 16.2, the Lease Balance and all other amounts due and owing from the
Lessee under this Master Lease and
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the other Operative Documents have been paid in full, then the Lessor shall
remit to the Lessee any excess amounts received by the Lessor.
(k) Foreclosure; Power of Sale. Lessee hereby grants to First
American Title Guaranty Company, as trustee (together with all successor
trustees, the "Trustee"), IN TRUST, WITH POWER OF SALE, all of Lessee's
right, title and interest in and to the Properties and, upon the
occurrence of a Lease Event of Default, Lessor shall have the power and
authority, after proper notice and lapse of such time as may be required
by law, to cause Trustee to sell any Property or the Properties by
notifying Trustee of that election and depositing with Trustee this
instrument and receipts and evidence of expenditures made and secured
hereby as Trustee may reasonably require. Upon receipt of any such
notice from Lessor, Trustee shall cause to be recorded, published and
delivered to Lessee such Notice of Default and Election to Sell as is
then required by applicable statutory authority and by this instrument,
which notice shall set forth, among other things, the nature of the
breach(es) or default(s), the action(s) required to effect a cure
thereof and the time period within which that cure may be effected. If
no cure is effected within the statutory time limits following
recordation of the Notice of Default and Election to Sell and after
Notice of Sale has been given as required by the above-referenced
statutes, Trustee may without further notice or demand sell and convey
any Property or the Properties in accordance with the above-referenced
statutes. Each Property may be sold as a whole or in separate lots,
parcels or items and in such order as Lessor may direct, at public
auction to the highest bidder for cash in lawful money of the United
States payable at the time of sale. Trustee shall deliver to such
purchaser(s) a good and sufficient deed or deeds conveying the property
so sold, but without any covenant or warranty express or implied. The
recitals in such deed of any matter or fact shall be conclusive proof of
the truthfulness thereof. Any Person, including Lessee, Trustee or
Lessor, may purchase at any sale. After deducting all costs, fees and
expenses of Lessor and Trustee, including costs of evidence of title in
connection with any sale, Lessor shall apply the proceeds of sale, in
the following order of priority, to payment of the following
(collectively, the "Obligations"): (i) first, all amounts expended by or
for the account of Lessor under the terms hereof and not then repaid,
with accrued interest at the Overdue Rate; and (ii) second, all other
amounts then due and owing hereunder including, without limitation, all
Basic Rent, Supplemental Rent, the full amount of the Lease
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Balance as of the date of sale as if this Lease had been terminated with
respect to all of the Properties then subject to this Lease under
Section 18.1, and all other amounts then payable by Lessee under this
Lease and the other Operative Documents, with Lessor having the right to
apply the proceeds of sale to the amounts described above in this clause
(ii) in such order, proportion and priority as Lessor may elect in its
sole and absolute discretion. To the extent permitted by applicable
statutes, Trustee may postpone the sale of all or any portion of any
Property or the Properties by public announcement at the time and place
of sale, and from time to time thereafter may again postpone that sale
by public announcement or subsequently noticed sale, and without further
notice may make such sale at the time fixed at the last postponement or
may, in its discretion, give a new notice of sale. A sale of less than
all of any Property or the Properties or any defective or irregular sale
made hereunder shall not exhaust the power of sale provided for herein,
and subsequent sales may be made hereunder until all of the Obligations
have been satisfied or all the Properties have been sold, without defect
or irregularity. No action of Lessor or Trustee based upon the
provisions contained herein or contained in the applicable statutes,
including, without limitation, the giving of the Notice of Default and
Election to Sell or the Notice of Sale, shall constitute an election of
remedies which would preclude Lessor from pursuing judicial foreclosure
before a completed sale pursuant to the power of sale contained herein.
Lessor shall have the right, with the irrevocable consent of Lessee
hereby given and evidenced by the execution of this instrument, to
obtain appointment of a receiver by any court of competent jurisdiction
without further notice to Lessee, which receiver shall be authorized and
empowered to enter upon and take possession of any Property or the
Properties, including all personal property used upon or in connection
with the real property herein conveyed, to let any Property or the
Properties, to receive all the rents, issues and profits, if any, which
may be due or become due in respect to the leasing of any Property or
the Properties to another party ("Property Rents"), and apply the
Property Rents after payment of all necessary charges and expenses to
reduction of the Obligations in such order, proportion and priority as
Lessor may elect. At the option of Lessor, the receiver shall accomplish
entry and taking possession of any Property or the Properties by actual
entry and possession or by notice to Lessee. The receiver so appointed
by a court of competent jurisdiction shall be empowered to issue
receiver's certificates for funds advanced by Lessor for the purpose of
protecting the
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value of any Property or the Properties as security for the Obligations.
The amounts evidenced by receiver's certificates shall bear interest at
the Overdue Rate and may be added to the Obligations if the Lessee or a
junior lienholder purchases any Property or the Properties at the
trustee's sale. Trustee or any successor acting hereunder may resign and
thereupon be discharged of the trusts hereunder upon thirty (30) days'
prior written notice to Lessor. Regardless of whether Trustee resigns,
Lessor may, from time to time, substitute a successor or successors to
any Trustee named herein or acting hereunder in accordance with any
statutory procedure for such substitution; or if Lessor, in its sole and
absolute discretion, so elects, and if permitted by law, Lessor may
substitute such successors or successors by recording, in the office of
the recorder of the county or counties where such Property is located, a
document executed by Lessor and containing the name of the original
Lessee and Lessor hereunder, the book and page where this instrument (or
a memorandum hereof) is recorded (and/or instrument number, as
applicable) and the name of the new Trustee, which instrument shall be
conclusive proof of proper substitution of such successor Trustee or
Trustees, who shall, without conveyance from the predecessor Trustee,
succeed to the rights, powers and duties hereunder. It is acknowledged
that A POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT; A POWER OF
SALE MAY ALLOW LESSOR TO TAKE THE PROPERTIES AND SELL THEM WITHOUT GOING
TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY LESSEE UNDER THIS
INSTRUMENT.
Notwithstanding any of the foregoing, the Lessor acknowledges that upon
the occurrence and continuance of a Lease Event of Default solely under clause
(e) of Section 16.1, the Lessor's remedies for such default shall be limited to
recovery of the Loan Balance by liquidation of the Additional Collateral or
through other appropriate means.
XVI.3. Waiver of Certain Rights. If this Master Lease shall be
terminated pursuant to Section 16.2, the Lessee waives, to the fullest extent
permitted by law, (a) any notice of re-entry or the institution of legal
proceedings to obtain re-entry or possession; (b) any right of redemption,
re-entry or repossession; (c) the benefit of any laws now or hereafter in force
exempting property from liability for rent or for debt or limiting the Lessor
with respect to the election of remedies; and (d) any other rights which might
otherwise limit or modify any of the Lessor's rights or remedies under this
Article XVI.
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ARTICLE XVII
LESSOR'S RIGHT TO CURE
XVII.1. The Lessor's Right to Cure the Lessee's Lease Defaults. The
Lessor, without waiving or releasing any obligation or Lease Event of Default,
may (but shall be under no obligation to) remedy any Lease Event of Default for
the account and at the sole cost and expense of the Lessee, including the
failure by the Lessee to maintain the insurance required by Article XIII, and
may, to the fullest extent permitted by law, and notwithstanding any right of
quiet enjoyment in favor of the Lessee, enter upon any Property for such purpose
and take all such action thereon as may be necessary or appropriate therefor. No
such entry shall be deemed an eviction of the Lessee. All reasonable
out-of-pocket costs and expenses so incurred (including fees and expenses of
counsel), together with interest thereon at the Overdue Rate from the date on
which such sums or expenses are paid by the Lessor, shall be paid by the Lessee
to the Lessor as Supplemental Rent.
ARTICLE XVIII
PURCHASE PROVISIONS
XVIII.1. Purchase of All or Some of the Properties. Subject to the
conditions contained herein, and without limitation of the Lessee's purchase
obligation pursuant to Section 18.2, the Lessee shall have the irrevocable
option on any Business Day to purchase all or some of the Properties subject to
this Master Lease at a price equal to the Lease Balance for such Properties on
the date of such purchase relating to such Property. The Lessee's exercise of
its option pursuant to this Section 18.1 shall be subject to the following
conditions:
(i) the Lessee shall have delivered a Purchase Notice to the
Lessor not less than thirty (30) days prior to such purchase, specifying
the date of such purchase, which date shall be a Basic Rent Payment
Date;
(ii) the Lessee shall not have given notice of its intention to
exercise the Remarketing Option.
If the Lessee exercises its option pursuant to this Section 18.1 then, upon the
Lessor's receipt of all amounts due in connection therewith, including Break
Costs, if any, the Lessor shall transfer to the Lessee or its designee all of
the Lessor's right, title and interest in and to the applicable Properties in
accordance with the procedures set forth in Section 21.1(a), such transfer to be
effective as of the date specified in the Purchase
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MASTER LEASE
Notice. The Lessee may designate, in a notice given to the Lessor not less than
ten (10) Business Days prior to the closing of such purchase (time being of the
essence), the transferee or transferees to whom the conveyance shall be made (if
other than to the Lessee), in which case such conveyance shall (subject to the
terms and conditions set forth herein) be made to such designee; provided,
however, that such designation of a transferee or transferees shall not cause
the Lessee to be released, fully or partially, from any of its obligations under
this Master Lease, including, without limitation, the obligation to pay the
Lessor the Lease Balance on such Expiration Date.
XVIII.2. Expiration Date Purchase Obligation. Unless (a) the Lessee
shall have properly exercised its option pursuant to Section 18.1 and purchased
the Properties pursuant thereto, or (b) the Lessee shall have properly exercised
the Remarketing Option and shall have fulfilled all of the conditions of clauses
(a) through (l) of Section 20.1 hereof and the Lessor shall have sold its
interest in all of the Properties pursuant thereto, then, subject to the terms,
conditions and provisions set forth in this Article, and in accordance with the
terms of Section 21.1(a), the Lessee shall purchase from the Lessor, and the
Lessor shall convey to the Lessee, on the Expiration Date all of the Lessor's
interest in all of the Properties for an amount equal to the Lease Balance. The
Lessee may designate, in a notice given to the Lessor not less than ten (10)
Business Days prior to the closing of such purchase (time being of the essence),
the transferee or transferees to whom the conveyance shall be made (if other
than to the Lessee), in which case such conveyance shall (subject to the terms
and conditions set forth herein) be made to such designee; provided, however,
that such designation of a transferee or transferees shall not cause the Lessee
to be released, fully or partially, from any of its obligations under this
Master Lease, including, without limitation, the obligation to pay the Lessor
the Lease Balance on such Expiration Date.
ARTICLE XIX
RENEWAL TERMS
XIX.1. Renewal. Prior to the final Expiration Date, the parties hereto
may agree to renew this Master Lease for one or more additional terms upon terms
and conditions to be mutually agreed upon; provided, however, that nothing
herein shall be construed as a commitment by either party to renew this Master
Lease beyond the Expiration Date.
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MASTER LEASE
ARTICLE XX
REMARKETING OPTION
XX.1. Option to Remarket. Subject to the fulfillment of each of the
conditions set forth in this Section 20.1, the Lessee shall have the option (the
"Remarketing Option") to market and complete the sale of all of the Properties
for the Lessor.
The Lessee's effective exercise and consummation of the Remarketing
Option shall be subject to the due and timely fulfillment of each of the
following provisions as to each of the Properties as of the dates set forth
below.
(a) Not later than one hundred and eighty (180) days prior to the
Expiration Date, the Lessee shall give to the Lessor written notice of
the Lessee's exercise of the Remarketing Option, which exercise shall be
irrevocable. Failure by the Lessee to give timely notice shall be deemed
to be an election by the Lessee, without further act thereby, of its
Purchase Option for all of the Properties.
(b) Not later than one hundred and twenty (120) days prior to the
Expiration Date, the Lessee shall deliver to the Lessor an Environmental
Audit for each of the Properties. Such Environmental Audit shall be
prepared by an environmental consultant selected by the Lessor in the
Lessor's reasonable discretion and shall contain conclusions reasonably
satisfactory to the Lessor as to the environmental status of the
Properties. If any such Environmental Audit indicates any exceptions,
the Lessee shall have also delivered prior to the Expiration Date a
Phase Two environmental assessment by such environmental consultant and
a written statement by such environmental consultant indicating that all
such exceptions have been remedied in compliance with Applicable Law.
(c) The Lessee shall have completed all Modifications,
restoration and rebuilding of the affected Properties pursuant to
Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all
of the conditions and requirements in connection therewith pursuant to
said Sections, in each case prior to the date on which the Lessor
receives the Lessee's notice of the Lessee's intention to exercise the
Remarketing Option (time being of the essence), regardless of whether
the same shall be within the Lessee's control. The Lessee shall have
also paid the cost of all Modifications commenced prior to the
Expiration Date. The Lessee shall not have been excused pursuant to
Section 12.1 from complying with any Applicable Law that involved the
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MASTER LEASE
extension of the ultimate imposition of such Applicable Law beyond the
Expiration of the Term. Any Permitted Property Liens (other than Lessor
Liens) on any Property that were contested by the Lessee shall have been
removed.
(d) During the Marketing Period, the Lessee shall, as
nonexclusive agent for the Lessor, use its best efforts to sell the
Lessor's interest in the Properties and will attempt to obtain the
highest purchase price therefor and for not less than the Fair Market
Sales Value. The Lessee will be responsible for hiring brokers and
making the Properties available for inspection by prospective
purchasers. The Lessee shall promptly upon request permit inspection of
any Property and any maintenance records relating to any Property by the
Lessor, any Participant and any potential purchasers, and shall
otherwise do all things necessary to sell and deliver possession of the
Properties to any purchaser. All such marketing of the Properties shall
be at the Lessee's sole expense. The Lessee shall allow the Lessor and
any potential qualified purchaser reasonable access to the Properties
for the purpose of inspecting the same.
(e) The Lessee shall procure bids from one or more bona fide
prospective purchasers and shall deliver to the Lessor and the
Participants not less than ninety (90) days prior to the Expiration Date
a binding written unconditional (except as set forth below), irrevocable
offer by such purchaser or purchasers offering the highest bid to
purchase the Properties. No such purchaser shall be the Lessee or any
Subsidiary or Affiliate of the Lessee. The written offer must specify
the Expiration Date as the closing date unless the Lessor and the
Participants shall otherwise agree in their sole discretion.
(f) The Lessee shall submit all bids to the Lessor and the
Participants, and the Lessor will have the right to submit any one or
more bids. Any sale by the Lessee shall be for the highest cash bid
submitted to the Lessor. The determination of the highest bid shall be
made by the Lessor prior to the end of the Marketing Period, but in any
event, the Lessor shall have no obligation to approve any bid for any
Property unless each highest bid plus an amount that may be paid by the
Lessee in its sole and absolute discretion (in addition to its
obligations under Section 20.1(i)), together with such bid, equals or
exceeds the Property Balance. All bids shall be on an all-cash basis
unless the Lessor and the Participants shall otherwise agree in their
sole discretion.
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MASTER LEASE
(g) The Lessee shall have obtained, at its cost and expense, all
required governmental and regulatory consents and approvals and shall
have made all filings as required by Applicable Law in order to carry
out and complete the transfer of each of the Properties. As to the
Lessor, any such sale shall be made on an "as is, with all faults" basis
without representation or warranty by the Lessor other than the absence
of Lessor Liens. Any agreement as to such sale shall be made subject to
the Lessor's rights hereunder.
(h) As between the Lessor and the Lessee the Lessee shall pay
directly, and not from the sale proceeds, all prorations, credits, costs
and expenses of the sale of the Properties, whether incurred by the
Lessor or the Lessee, including without limitation, the cost of all
title insurance, surveys, environmental reports, appraisals, transfer
taxes, the Lessor's reasonable attorneys' fees, the Lessee's attorneys'
fees, commissions, escrow fees,recording fees, and all applicable
documentary and other transfer taxes.
(i) The Lessee shall pay to the Lessor on or prior to the
Expiration Date (or in the case of Supplemental Rent, to the Person
entitled thereto) an amount equal to the Loan Balance plus all accrued
and unpaid Rent (including Supplemental Rent, if any) and all other
amounts hereunder which have accrued or will accrue prior to or as of
the Expiration Date, in the type of funds specified in Section 3.4
hereof.
(j) The Lessee shall pay to the Lessor on or prior to the
Expiration Date the amounts, if any, required to be paid pursuant to
Section 13.2 of the Participation Agreement.
(k) The purchase of all of the Properties shall be consummated on
the Expiration Date and the gross proceeds (the "Gross Remarketing
Proceeds") of the sale of the Properties (less any marketing, closing or
other costs, prorations or commissions) shall be paid directly to the
Lessor; provided, however, that if the sum of (x) the Gross Remarketing
Proceeds from such sale plus (y) the Loan Balance received by the Lessor
exceeds the Lease Balance as of such date, then the excess shall be paid
to the Lessee on the Expiration Date.
If the Lessee effectively elects the Remarketing Option and no sale of
any Property is consummated prior to the end of the Marketing Period, Lessee may
exercise its purchase option
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pursuant to Section 18.2 or Lessee shall, in addition to making the payment
required pursuant to Section 20.1(i) above, at its own cost and expense, do each
of the following:
(i) execute and deliver to Lessor and the Lessor's title
insurance company an affidavit as to the absence of any Liens (other
than Permitted Liens of the type described in clause (i), (viii) or
(x)), and shall execute and deliver to the Lessor a statement of
termination of this Master Lease to the extent relating to such
Property;
(ii) on the Expiration Date, transfer possession of such Property
to the Lessor or any Person designated by the Lessor, by surrendering
the same into the possession of the Lessor or such Person, as the case
may be, in the condition required by this Section 20.1 and in compliance
with Applicable Law; and
(iii) for a period of up to one year after the Expiration Date,
cooperate reasonably with the Lessor and/or any Person designated by the
Lessor to receive such Property, which cooperation shall include
reasonable efforts with respect to the following, all of which the
Lessee shall do on or before the Expiration Date for such Property or as
soon thereafter as is reasonably practicable: providing copies of all
books and records regarding the maintenance and ownership of such
Property and all know-how, data and technical information relating
thereto, providing a current copy of the applicable Plans and
Specifications, granting or assigning all assignable licenses necessary
for the operation and maintenance of such Property and cooperating
reasonably in seeking and obtaining all necessary Governmental Action.
The obligations of the Lessee under this paragraph shall survive the
expiration or termination of this Master Lease.
Except as expressly set forth herein, the Lessee shall have no right,
power or authority to bind the Lessor in connection with any proposed sale of
any Property.
If one or more of the foregoing provisions shall not be fulfilled as of
the date set forth above with respect to any Property, then the Lessor shall
declare by written notice to the Lessee the Remarketing Option to be null and
void (whether or not it has been theretofore exercised by the Lessee) as to all
of the Properties, in which event all of the Lessee's rights under this Section
20.1 shall immediately terminate and the Lessee shall be obligated to purchase
all of the Properties pursuant to Section 18.2 on the Expiration Date.
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XX.2. Certain Obligations Continue. During the Marketing Period, the
obligation of the Lessee to pay Rent with respect to each Property (including
the installment of Rent due on the Expiration Date) shall continue undiminished
until payment in full of the Loan Balance and all other amounts due to the
Lessor with respect to the Properties under the Operative Documents to which the
Lessee is a party. The Lessor shall have the right, but shall be under no duty,
to solicit bids, to inquire into the efforts of the Lessee to obtain bids or
otherwise to take action in connection with any such sale, other than as
expressly provided in this Article XX.
ARTICLE XXI
PROCEDURES RELATING TO PURCHASE OR REMARKETING
XXI.1. Provisions Relating to the Exercise of Purchase Option or
Obligation and Conveyance Upon Remarketing and Conveyance Upon Certain Other
Events.
(a) In connection with any termination of this Master Lease with
respect to any Property pursuant to the terms of Article XV, in
connection with any purchase or in connection with the Lessee's purchase
of any Property in accordance with Section 18.1 or in connection with
the Lessee's Expiration Date Purchase Obligation or obligations under
Section 16.2(e), then, upon the date on which this Master Lease is to
terminate with respect to the applicable Property and upon the payment
of all amounts due under Section 5.1 of the Construction Agency
Agreement, as applicable, and upon tender by the Lessee of the amounts
set forth in Article XV, Sections 16.2(e), 18.1 or 18.2, as applicable:
(i) the Lessor shall execute and deliver to the Lessee (or
to the Lessee's designee) at the Lessee's cost and expense a
grant deed with respect to such Property or Properties containing
representations and warranties of grantor to the Lessee regarding
Lessor Liens, a xxxx of sale with respect to the Equipment
located on such Property or Properties and an assignment of the
Lessor's entire interest in such Property or Properties (which
shall include an assignment of all of the Lessor's right, title
and interest in and to any Net Proceeds with respect to such
Property or Properties not previously received by the Lessor and
an assignment of leases of the Properties), in each case in
recordable form and
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otherwise in conformity with local custom and free and clear of
the Lien of the Lessor Deed of Trust and any Lessor Liens;
(ii) such Property or Properties shall be conveyed to the
Lessee "AS IS" and in its then present physical condition; and
(iii) the Lessor shall execute and deliver to Lessee and
the Lessee's title insurance company an affidavit as to the
Lessor's title and Lessor Liens and shall execute and deliver to
Lessee a statement of termination of this Master Lease.
(b) If the Lessee properly exercises the Remarketing Option, then
the Lessee shall, on the Expiration Date, and at its own cost, transfer
possession of all of the Properties to the independent purchaser(s)
thereof, in each case by surrendering the same into the possession of
the Lessor or such purchaser(s), as the case may be, free and clear of
all Liens other than Lessor Liens and the lien of the Lessor Mortgage,
in good condition (as modified by Modifications permitted by this Master
Lease), ordinary wear and tear excepted, and in compliance with
Applicable Law. The Lessee shall, on and within a reasonable time before
and up to one year after the Expiration Date, cooperate reasonably with
the Lessor and the independent purchaser(s) of the Properties in order
to facilitate the purchase by such purchaser(s) of the Properties, which
cooperation shall include the following, all of which the Lessee shall
do on or before the Expiration Date or as soon thereafter as is
reasonably practicable: providing copies of all books and records
regarding the maintenance and ownership of the Properties and all
know-how, data and technical information relating thereto, providing a
current copy of the Plans and Specifications for each Property, granting
or assigning all licenses necessary for the operation and maintenance of
each Property and cooperating reasonably in seeking and obtaining all
necessary Governmental Action. The obligations of the Lessee under this
paragraph shall survive the expiration or termination of this Master
Lease.
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ARTICLE XXII
ESTOPPEL CERTIFICATES
XXII.1. Estoppel Certificates. At any time and from time to time upon
not less than ten (10) Business Days' prior request by the Lessor or the Lessee
(the "Requesting Party"), the other party (whichever party shall have received
such request, the "Certifying Party") shall furnish to the Requesting Party a
certificate signed by an individual having the office of vice president or
higher in the Certifying Party certifying that this Master Lease is in full
force and effect (or that this Master Lease is in full force and effect as
modified and setting forth the modifications); the dates to which the Basic Rent
and Supplemental Rent have been paid; to the best knowledge of the signer of
such certificate, whether or not the Requesting Party is in default under any of
its obligations hereunder (and, if so, the nature of such alleged default); and
such other matters under this Master Lease as the Requesting Party may
reasonably request. Any such certificate furnished pursuant to this Article XXII
may be relied upon by the Requesting Party, and any existing or prospective
mortgagee, purchaser or lender, and any accountant or auditor, of, from or to
the Requesting Party (or any Affiliate thereof).
ARTICLE XXIII
ACCEPTANCE OF SURRENDER
XXIII.1. Acceptance of Surrender. No surrender to the Lessor of this
Master Lease or of all or any of the Properties or of any part of any thereof or
of any interest therein shall be valid or effective unless agreed to and
accepted in writing by the Lessor and, prior to the payment or performance of
all obligations under the Loan Agreement and termination of the Commitments, the
Lenders, and no act by the Lessor or the Lenders or any representative or agent
of the Lessor or the Lenders, other than a written acceptance, shall constitute
an acceptance of any such surrender.
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MASTER LEASE
ARTICLE XXIV
NO MERGER OF TITLE
XXIV.1. No Merger of Title. There shall be no merger of this Master
Lease or of the leasehold estate created hereby by reason of the fact that the
same Person may acquire, own or hold, directly or indirectly, in whole or in
part, (a) this Master Lease or the leasehold estate created hereby or any
interest in this Master Lease or such leasehold estate, (b) the fee or
groundleasehold estate in any Property, except as may expressly be stated in a
written instrument duly executed and delivered by the appropriate Person or (c)
a beneficial interest in the Lessor.
ARTICLE XXV
INTENT OF THE PARTIES
XXV.1. Ownership of the Properties. (a) The parties hereto intend that
(i) for financial accounting purposes with respect to the Lessee, the Lessor
will be treated as the owner and the lessor of the Properties and the Lessee
will be treated as the lessee of the Properties and (ii) for all other purposes,
including federal and all state and local income tax purposes, state real estate
and commercial law and bankruptcy purposes, (A) this Lease will be treated as a
financing arrangement, (B) the Lessor and the Lenders will be deemed lenders
making loans to the Lessee in an amount equal to the sum of the Lessor Amount
and the outstanding principal amount of the Loans and (C) the Lessee will be
treated as the owner of the Properties and will be entitled to all tax benefits
ordinarily available to an owner of properties like the Properties for such tax
purposes. Nevertheless, the Lessee acknowledges and agrees that neither the
Lessor nor any of the Lenders has made any representations or warranties to the
Lessee concerning the tax, accounting or legal characteristics of the Operative
Documents and that the Lessee has obtained and relied upon such tax, accounting
and legal advice concerning the Operative Documents as it deems appropriate.
(b) It is the intent of the parties hereto that this Lease grants a
security interest and mortgage, as the case may be, on the Properties to the
Lessor to secure Lessee's performance under and payment of all amounts under
this Lease and the other Operative Documents.
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MASTER LEASE
ARTICLE XXVI
MISCELLANEOUS
XXVI.1. Survival; Severability; Etc. Anything contained in this Master
Lease to the contrary notwithstanding, all claims against and liabilities of the
Lessee or the Lessor arising from events commencing prior to the expiration or
earlier termination of this Master Lease shall survive such expiration or
earlier termination for a period of one year except as to indemnification which
shall continue to survive; provided that any such right shall be exercised
within 54 years from the date hereof. If any term or provision of this Master
Lease or any application thereof shall be declared invalid or unenforceable, the
remainder of this Master Lease and any other application of such term or
provision shall not be affected thereby. If any right or option of the Lessee
provided in this Master Lease, including any right or option described in
Article XIV, XV, XVIII or XX, would, in the absence of the limitation imposed by
this sentence, be invalid or unenforceable as being in violation of the rule
against perpetuities or any other rule of law relating to the vesting of an
interest in or the suspension of the power of alienation of property, then such
right or option shall be exercisable only during the period which shall end
twenty-one (21) years after the date of death of the last survivor of the
descendants of Xxxxxxxx X. Xxxxxxxxx, the former President of the United States,
Xxxxx Xxxx, the deceased automobile manufacturer, and Xxxx X. Xxxxxxxxxxx, the
founder of the Standard Oil Company, known to be alive on the date of the
execution, acknowledgement and delivery of this Master Lease.
XXVI.2. Amendments and Modifications. Subject to the requirements,
restrictions and conditions set forth in the Participation Agreement, neither
this Master Lease nor any provision hereof may be amended, waived, discharged or
terminated except by an instrument in writing in recordable form signed by the
Lessor and the Lessee.
XXVI.3. No Waiver. No failure by the Lessor or the Lessee to insist upon
the strict performance of any term hereof or to exercise any right, power or
remedy upon a default hereunder, and no acceptance of full or partial payment of
Rent during the continuance of any such default, shall constitute a waiver of
any such default or of any such term. To the fullest extent permitted by law, no
waiver of any default shall affect or alter this Master Lease, and this Master
Lease shall continue in full force and effect with respect to any other then
existing or subsequent default.
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MASTER LEASE
XXVI.4. Notices. All notices, demands, requests, consents, approvals and
other communications hereunder shall be in writing and directed to the address
described in, and deemed received in accordance with the provisions of, Section
14.3 of the Participation Agreement.
XXVI.5. Successors and Assigns. All the terms and provisions of this
Master Lease shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
XXVI.6. Headings and Table of Contents. The headings and table of
contents in this Master Lease are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
XXVI.7. Counterparts. This Master Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
XXVI.8. GOVERNING LAW. THIS MASTER LEASE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
XXVI.9. Limitations on Recourse. The parties hereto agree that except as
specifically set forth in this Lease or in any other Operative Document, Lessor
shall have no personal liability whatsoever to the Lessee or its respective
successors and assigns for any claim based on or in respect of this Master Lease
or any of the other Operative Documents or arising in any way from the
transactions contemplated hereby or thereby and the recourse shall be solely had
against the Lessor's interest in the Property; provided, however, that Lessor
shall be liable in its individual capacity (a) for its own willful misconduct or
gross negligence (or negligence in the handling of funds), (b) breach of any of
its representations, warranties or covenants under the Operative Documents, or
(c) for any Tax based on or measured by any fees, commission or compensation
received by it for acting as the Lessor as contemplated by the Operative
Documents. It is understood and agreed that, except as provided in the preceding
sentence: (i) Lessor shall have no personal liability under any of the Operative
Documents as a result of acting pursuant to and consistent with any of the
Operative Documents; (ii) all obligations of Lessor to the Lessee are solely
nonrecourse obligations except to the extent that it has received payment from
others; and (iii) all such personal liability of Lessor is expressly waived and
released as a condition of, and as
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MASTER LEASE
consideration for, the execution and delivery of the Operative Documents by
Lessor.
XXVI.10. Original Lease. The single executed original of this Master
Lease marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on the
signature page thereof and containing the receipt thereof of The Sumitomo Bank,
Limited, San Xxxxxxxxx Xxxxxx, as Agent for the Lenders therefor on or following
the signature page thereof shall be the Original Executed Counterpart of this
Master Lease (the "Original Executed Counterpart"). To the extent that this
Master Lease constitutes chattel paper, as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction, no security
interest in this Master Lease may be created through the transfer or possession
of any counterpart other than the Original Executed Counterpart.
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MASTER LEASE
IN WITNESS WHEREOF, the parties have caused this Master Lease be duly
executed and delivered as of the date first above written.
SYMANTEC CORPORATION,
as Lessee
By _____________________________________
Name:
Title:
S-1
48
MASTER LEASE
SUMITOMO BANK LEASING AND
FINANCE, INC., as Lessor
By _____________________________________
Name:
Title:
S-2
49
MASTER LEASE
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of the date hereof.
THE SUMITOMO BANK, LIMITED,
SAN FRANCISCO, as Agent
for the Lenders
By_________________________________
Name:
Title:
S-3
50
MASTER LEASE
TABLE OF CONTENTS
Section Page
------- ----
ARTICLE I
DEFINITIONS
1.1. Definitions; Interpretation...................................... 1
ARTICLE II
MASTER LEASE
2.1. Acceptance and Lease of Property................................. 2
2.2. Acceptance Procedure............................................. 2
2.3. Lease Term....................................................... 2
2.4. Title............................................................ 2
ARTICLE III
PAYMENT OF RENT
3.1. Rent............................................................. 3
3.2. Payment of Rent.................................................. 3
3.3. Supplemental Rent................................................ 3
3.4. Method of Payment................................................ 4
ARTICLE IV
QUIET ENJOYMENT; RIGHT TO INSPECT
4.1. Quiet Enjoyment.................................................. 4
4.2. Right to Inspect................................................. 4
ARTICLE V
NET LEASE, ETC.
5.1. Net Lease........................................................ 5
5.2. No Termination or Abatement...................................... 6
ARTICLE VI
SUBLEASES
6.1. Subletting....................................................... 6
ARTICLE VII
LESSEE ACKNOWLEDGMENTS
7.1. Condition of the Properties...................................... 7
7.2. Risk of Loss..................................................... 7
i
51
TABLE OF CONTENTS
(continued)
Section Page
------- ----
ARTICLE VIII
POSSESSION AND USE OF THE PROPERTIES, ETC.
8.1. Utility Charges.................................................. 7
8.2. Possession and Use of the Property............................... 8
8.3. Compliance with Requirements of Law, Property Legal
Requirements and Insurance Requirements....................... 8
8.4. Assignment by Lessee............................................. 8
ARTICLE IX
MAINTENANCE AND REPAIR; RETURN
9.1. Maintenance and Repair; Return................................... 8
ARTICLE X
MODIFICATIONS, ETC.
10.1. Modifications, Substitutions and Replacements.................... 9
10.2. Notice to the Lessor............................................. 11
ARTICLE XI
WARRANT OF TITLE; EASEMENTS
11.1. Warrant of Title................................................. 11
11.2. Grants and Releases of Easements; Lessor's Waivers............... 11
ARTICLE XII
PERMITTED CONTESTS
12.1. Permitted Contests in Respect of Applicable Law.................. 13
ARTICLE XIII
INSURANCE
13.1. Public Liability and Workers' Compensation Insurance............. 13
13.2. Hazard and Other Insurance....................................... 14
13.3. Insurance Coverage............................................... 14
ARTICLE XIV
CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS
14.1. Casualty and Condemnation........................................ 16
14.2. Environmental Matters............................................ 18
14.3. Notice of Environmental Matters.................................. 18
ii
52
TABLE OF CONTENTS
(continued)
Section Page
------- ----
ARTICLE XV
TERMINATION OF LEASE
15.1. Partial Termination upon Certain Events.......................... 19
15.2. Termination Procedures........................................... 19
ARTICLE XVI
EVENTS OF DEFAULT
16.1. Lease Events of Default.......................................... 20
16.2. Remedies......................................................... 23
16.3. Waiver of Certain Rights......................................... 30
17.1. The Lessor's Right to Cure the Lessee's Lease Defaults........... 30
ARTICLE XVIII
PURCHASE PROVISIONS
18.1. Purchase of All or Some of the Properties........................ 31
18.2. Expiration Date Purchase Obligation.............................. 31
ARTICLE XIX
RENEWAL TERMS
19.1. Renewal.......................................................... 32
ARTICLE XX
REMARKETING OPTION
20.1. Option to Remarket............................................... 32
20.2. Certain Obligations Continue..................................... 36
ARTICLE XXI
PROCEDURES RELATING TO PURCHASE OR REMARKETING
21.1. Provisions Relating to the Exercise of Purchase Option
or Obligation and Conveyance Upon Remarketing
and Conveyance Upon Certain Other Events...................... 37
ARTICLE XXII
ESTOPPEL CERTIFICATES
22.1. Estoppel Certificates.............................................. 38
ARTICLE XXIII
ACCEPTANCE OF SURRENDER
iii
53
TABLE OF CONTENTS
(continued)
Section Page
------- ----
23.1. Acceptance of Surrender........................................... 39
ARTICLE XXIV
NO MERGER OF TITLE
24.1. No Merger of Title................................................ 39
ARTICLE XXV
INTENT OF THE PARTIES
25.1. Ownership of the Properties....................................... 39
ARTICLE XXVI
MISCELLANEOUS
26.1. Survival; Severability; Etc....................................... 40
26.2. Amendments and Modifications...................................... 41
26.3. No Waiver......................................................... 41
26.4. Notices........................................................... 41
26.5. Successors and Assigns............................................ 41
26.6. Headings and Table of Contents.................................... 41
26.7. Counterparts...................................................... 41
26.8. GOVERNING LAW..................................................... 41
26.9. Limitations on Recourse........................................... 42
26.10. Original Lease.................................................... 42
EXHIBIT A Form of Lease Supplement
iv
54
EXECUTION COPY
This instrument prepared by,
recording requested by,
and when recorded return to:
XXXXX, XXXXX & XXXXX
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
LEASE SUPPLEMENT NO. 1 AND
MEMORANDUM OF LEASE AND DEED OF TRUST
dated as of October 18, 1996
among
SYMANTEC CORPORATION,
as the Lessee,
SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor,
and
FIRST AMERICAN TITLE INSURANCE COMPANY,
as Trustee
Location of Premises:
County of Santa Xxxxx
State of California
55
THIS LEASE SUPPLEMENT NO. 1 AND MEMORANDUM OF LEASE AND DEED OF TRUST
(this "Memorandum") dated as of October 18, 1996, among SYMANTEC CORPORATION, a
Delaware corporation, having a principal office at 00000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, as the Lessee and as Mortgagor (the "Lessee"),
SUMITOMO BANK LEASING AND FINANCE, INC., as the Lessor (the "Lessor"), having an
address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and FIRST AMERICAN TITLE
INSURANCE COMPANY (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Lessor is the owner in fee simple of the land described on
Exhibit A-1 attached hereto and all Improvements thereon described in Exhibit
A-2 attached hereto (together, the "Property");
WHEREAS, the Lessor wishes to lease the Property to the Lessee and the
Lessee wishes to lease the Property from the Lessor;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree to enter
into this Memorandum, as follows:
I. Certain Terms. Capitalized terms used but not otherwise defined in
this Memorandum have the meanings specified in Appendix A to the Master Lease
and Security Agreement dated as of October 18, 1996 (as amended, restated,
supplemented or otherwise modified from time to time, the "Lease"), between the
Lessee and the Lessor; and the rules of interpretation specified in Appendix A
to the Lease shall apply to this Memorandum.
2. Property. Attached hereto as Exhibit A is the description of the
Property. Effective upon the execution and delivery of this Memorandum by the
Lessor and the Lessee, the Property shall be subject to the terms and provisions
of the Lease. Subject to the terms and conditions of the Lease, the Lessor
hereby leases the Property to the Lessee for the Term (as defined below) of this
Memorandum, and the Lessee hereby agrees, expressly for the direct benefit of
the Lessor, to lease the Property from the Lessor for the Term. For the purposes
of this Lease Supplement No. 1, the lease of the Exhibit A-1 Land and Exhibit
A-2 Improvements shall be considered separate Leases but one Property for the
purposes of the Master Lease.
3. Lease Term. The term of this Memorandum (the "Term") shall begin on
the date hereof and shall end on October 18, 2003 unless the Term with respect
to the Property is renewed or earlier terminated in accordance with the
provisions of the Lease or the other Operative Documents. For and in
consideration of
56
good and valuable consideration paid by the Lessee to the Lessor as
described in the Lease, the Lessor hereby grants to the Lessee the right to
purchase the Property or to market and sell the Property during the Term of this
Memorandum on the terms set forth in the Lease.
4. Ownership of the Property. (a) The parties hereto intend that (i)
for financial accounting purposes with respect to the Lessee, the Lessor will be
treated as the owner and the lessor of the Properties and the Lessee will be
treated as the lessee of the Properties and (ii) for all other purposes,
including federal and all state and local income tax purposes, state real estate
and commercial law and bankruptcy purposes, (A) the Lease will be treated as a
financing arrangement, (B) the Lessor and the Lenders will be deemed lenders
making loans to the Lessee in an amount equal to the sum of the Lessor Amount
and the outstanding principal amount of the Loans, which loans are secured by
the Properties and (C) the Lessee will be treated as the owner of the Properties
and will be entitled to all tax benefits ordinarily available to an owner of
properties like the Properties for such tax purposes. Nevertheless, the Lessee
acknowledges and agrees that neither the Lessor nor any of the Lenders has made
any representations or warranties to the Lessee concerning the tax, accounting
or legal characteristics of the Operative Documents and that the Lessee has
obtained and relied upon such tax, accounting and legal advice concerning the
Operative Documents as it deems appropriate.
(b) It is the intent of the parties hereto that the Lease grants a
security interest and deed of trust or lien, as the case may be, on the Property
for the benefit of the Lessor to secure the Lessee's performance under and
payment of all amounts advanced by the Lessor for the acquisition of the
Property (corresponding to the value of the Property as indicated on the
Appraisal) under the Lease and the other Operative Documents, together with
interest thereon, and all other amounts payable under the Operative Documents in
connection therewith.
(c) Specifically, without limiting the generality of subsection (b),
the Lessor and the Lessee intend and agree that with respect to the nature of
the transactions evidenced by the Lease in the context of the exercise of
remedies under the Operative Documents, including, without limitation, in the
case of any insolvency or receivership proceedings or a petition under the
United States bankruptcy laws or any other applicable insolvency laws or statute
of the United States of America or any State or Commonwealth thereof affecting
the Lessee and the Lessor, or any enforcement or collection actions, the
transactions evidenced by the Lease are loans made by the Lessor as unrelated
third party lender to the Lessee secured by the Property (it being understood
that the Lessee hereby mortgages,
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57
grants, bargains, sells, releases, confirms, conveys, assigns, transfers and
sets over to the Trustee for the benefit of the Lessor, and grants a security
interest in, the Property (consisting of a fee deed of trust with respect to all
right, title and interest of the Lessee in and to the fee title to, and
reversionary interest in, the Land and Improvements, if any, and a leasehold
deed of trust on the Lessee's leasehold estate under the Lease), all to secure
such loans, effective on the date hereof, to have and to hold such interests in
the Property unto the Trustee for the benefit of the Lessor and its successors
and assigns, forever, provided always that these presents are upon the express
condition that, if all amounts due under the Lease shall have been paid and
satisfied in full, then this instrument and the estate hereby granted shall
cease and become void.
As additional security for the Rent, the Lease Balance and all other
sums owed to the Lessor by the Lessee under the Lease, the Lessee does hereby
grant, bargain, sell, transfer and convey unto the Trustee, its successors in
trust and assigns, IN TRUST, WITH POWER OF SALE, for the benefit of the Lessor,
all of the Lessee's right, title and interest in and to the Property, including,
without limitation, all buildings, structures and other improvements, and all
fixtures and other property now or hereafter attached to or affixed to any such
buildings, structures or other improvements, and any additions and alterations
thereto or replacements thereof, now or hereafter built, constructed or located
upon the Property, all rents, additional rents, issues, income, revenues,
distributions, royalties and profits now or in the future payable in respect of
the Property, together with all of the right, power and authority of the Lessee
to alter, modify or change the terms, conditions and provisions of the Lease and
any other lease pertaining to the Property, to consent to any request made by a
tenant or landlord pursuant thereto, or to surrender, cancel or terminate the
same or to accept any surrender, cancellation or termination of the same,
together with all of the options, rights, powers and privileges of the Lessee
under any lease pertaining to the Property, whether heretofore or hereafter
existing, including, without limitation, the rights and options to purchase the
Property contained in Articles XVIII and XX of the Lease, and all present and
future right, title and interest of the Lessee in and to (i) all refunds, tax
abatement agreements, rebates, reserves, deferred payments, deposits, cost
savings, awards and payments of any kind due from or payable by (a) any
Governmental Authority, or (b) any insurance or utility company, in each case
under clause (a) or (b) above in respect of the Property, and (ii) all refunds,
rebates and payments of any kind due from or payable by any Governmental
Authority for any taxes, assessments, or governmental or quasi-governmental
charges or levies imposed upon the Lessee in respect of the Property, and all
plans and specifications, designs, drawings and other information,
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58
materials and matters heretofore or hereafter prepared relating to the Property
or any construction on the Property, all proceeds (including claims and demands
therefor) of the conversion, voluntary or involuntary, of any of the foregoing
into cash or liquidated claims, including without limitation the proceeds of
insurance and condemnation awards in respect of the Property or any portion
thereof, all additional estates, rights and interests hereafter acquired by the
Lessee in the Property, or any portion thereof, together with all proceeds of
the conversion, whether voluntary or involuntary, of any of the Property into
cash or other liquid claims, including without limitation, all awards, payments
or proceeds, including interest thereon, and the right to receive the same,
which may be made as a result of any casualty, any exercise of the right of
eminent domain or deed in lieu thereof, any injury to the Property and any
defect in title in the Property or other matter insured under any policy of
title insurance, together with attorney's fees, costs and disbursements incurred
by the Lessor in connection with the collection of such awards, payments and
proceeds, and the Lessee further grants to the Lessor, pursuant to the
California Uniform Commercial Code (the "UCC"), a security interest in all
present and future right, title and interest of the Lessee in and to any portion
of the foregoing property for which a security interest may be created under the
UCC.
To have and to hold the same whether now owned or held or hereafter
acquired unto the Trustee, its successors-in-trust forever, IN TRUST, WITH POWER
OF SALE, to secure to the Lessor the payment of the Rent, the Lease Balance and
all other sums owing to the Lessor under the Lease and the performance and
observance of the terms, covenants, warranties, conditions, agreements and
obligations under the Lease. If the Lessee shall pay all sums due under the
Lease when due according to the terms thereof and shall otherwise fully and
properly perform and comply with all of the obligations, agreements, terms and
conditions of the Lease, then this conveyance shall become null and void.
In the event of the occurrence of an Event of Default, then the entire
unpaid balance of all sums due under the Lease and the interest accrued thereon
shall, at the option of the owner thereof and without notice, immediately become
due and payable for all purposes, whether or not due according to the maturity
date or dates thereof; and all other indebtedness, the payment of which is
secured hereby, shall likewise become due and payable. The Trustee and the
Lessor and each of them are authorized prior or subsequent to the institution of
any foreclosure proceedings to enter upon the Property or any part thereof and
to take possession of the Property and exercise without interference from the
Lessee, any and all rights which the Lessee has with respect to the management,
possession, operation, protection or preservation of the Property.
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59
Upon the occurrence of an Event of Default, Lessor shall have the power
and authority, after proper notice and lapse of such time as may be required by
law, to cause Trustee to sell the Property by notifying Trustee of that election
and depositing with Trustee this instrument and receipts and evidence of
expenditures made and secured hereby as Trustee may reasonably require. Upon
receipt of any such notice from Lessor, Trustee shall cause to be recorded,
published and delivered to Lessee such Notice of Default and Election to Sell as
is then required by applicable statutory authority and by this instrument, which
notice shall set forth, among other things, the nature of the breach(es) or
default(s), the action(s) required to effect a cure thereof and the time period
within which that cure may be effected. If no cure is effected within the
statutory time limits following recordation of the Notice of Default and
Election to Sell and after Notice of Sale has been given as required by the
above-referenced statutes, Trustee may without further notice or demand sell and
convey the Property in accordance with the above-referenced statutes. The
Property may be sold as a whole or in separate lots, parcels or items and in
such order as Lessor may direct, at public auction to the highest bidder for
cash in lawful money of the United States payable at the time of sale. Trustee
shall deliver to such purchaser(s) a good and sufficient deed or deeds conveying
the property so sold, but without any covenant or warranty express or implied.
The recitals in such deed of any matter or fact shall be conclusive proof of the
truthfulness thereof. Any Person, including Lessee, Trustee or Lessor, may
purchase at any sale. After deducting all costs, fees and expenses of Lessor and
Trustee, including costs of evidence of title in connection with any sale,
Lessor shall apply the proceeds of sale, in the following order of priority, to
payment of the following (collectively, the "Obligations"): (i) first, all
amounts expended by or for the account of Lessor under the terms hereof and not
then repaid, with accrued interest at the Overdue Rate; and (ii) second, all
other amounts then due and owing hereunder including, without limitation, all
Basic Rent, Supplemental Rent, the full amount of the Lease Balance as of the
date of sale as if the Lease had been terminated with respect to all of the
Properties then subject to the Lease under Section 18.1, and all other amounts
then payable by Lessee under the Lease and the other Operative Documents, with
Lessor having the right to apply the proceeds of sale to the amounts described
above in this clause (ii) in such order, proportion and priority as Lessor may
elect in its sole and absolute discretion. To the extent permitted by applicable
statutes, Trustee may postpone the sale of all or any portion of the Property by
public announcement at the time and place of sale, and from time to time
thereafter may again postpone that sale by public announcement or subsequently
noticed sale, and without further notice may make such sale at the time fixed at
the last postponement or may, in
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60
its discretion, give a new notice of sale. A sale of less than all of the
Property or any defective or irregular sale made hereunder shall not exhaust the
power of sale provided for herein, and subsequent sales may be made hereunder
until all of the Obligations have been satisfied or the entire Property has been
sold, without defect or irregularity. No action of Lessor or Trustee based upon
the provisions contained herein or contained in the applicable statutes,
including, without limitation, the giving of the Notice of Default and Election
to Sell or the Notice of Sale, shall constitute an election of remedies which
would preclude Lessor from pursuing judicial foreclosure before a completed sale
pursuant to the power of sale contained herein. Lessor shall have the right,
with the irrevocable consent of Lessee hereby given and evidenced by the
execution of this instrument, to obtain appointment of a receiver by any court
of competent jurisdiction without further notice to Lessee, which receiver shall
be authorized and empowered to enter upon and take possession of the Property,
including all personal property used upon or in connection with the real
property herein conveyed, to let the Property, to receive all the rents, issues
and profits, if any, which may be due or become due in respect to the leasing of
the Property to another party ("Property Rents"), and apply the Property Rents
after payment of all necessary charges and expenses to reduction of the
Obligations in such order, proportion and priority as Lessor may elect. At the
option of Lessor, the receiver shall accomplish entry and taking possession of
the Property by actual entry and possession or by notice to Lessee. The receiver
so appointed by a court of competent jurisdiction shall be empowered to issue
receiver's certificates for funds advanced by Lessor for the purpose of
protecting the value of the Property as security for the Obligations. The
amounts evidenced by receiver's certificates shall bear interest at the Overdue
Rate and may be added to the Obligations if the Lessee or a junior lienholder
purchases the Property at the trustee's sale. Trustee or any successor acting
hereunder may resign and thereupon be discharged of the trusts hereunder upon
thirty (30) days' prior written notice to Lessor. Regardless of whether Trustee
resigns, Lessor may, from time to time, substitute a successor or successors to
any Trustee named herein or acting hereunder in accordance with any statutory
procedure for such substitution; or if Lessor, in its sole and absolute
discretion, so elects, and if permitted by law, Lessor may substitute such
successors or successors by recording, in the office of the recorder of the
county or counties where the Property is located, a document executed by Lessor
and containing the name of the original Lessee and Lessor hereunder, the book
and page where this instrument (or a memorandum hereof) is recorded (and/or
instrument number, as applicable) and the name of the new Trustee, which
instrument shall be conclusive proof of proper substitution of such successor
Trustee or Trustees, who shall, without conveyance from the predecessor Trustee,
succeed
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61
to the rights, powers and duties hereunder. It is acknowledged that A
POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT; A POWER OF SALE MAY ALLOW
LESSOR TO TAKE THE PROPERTY AND SELL THEM WITHOUT GOING TO COURT IN A
FORECLOSURE ACTION UPON DEFAULT BY LESSEE UNDER THIS INSTRUMENT.
If (a) the Property shall consist of one or more parcels, whether or
not contiguous and whether or not located in the same county, or (b) in addition
to this Memorandum, the Lessor shall now or hereafter hold one or more
additional mortgages, liens, deeds of trust or other security (directly or
indirectly) for the Obligations upon other property in the State in which the
Property is located (whether or not such property is owned by Lessor or by
others) or (c) both the circumstances described in clauses (a) and (b) shall be
true, then to the fullest extent permitted by law, the Lessor may, in its sole
discretion, commence or consolidate in a single foreclosure action all
foreclosure proceedings against all such collateral securing the Obligations
(including the Property), which action may be brought or consolidated in the
courts of any county in which any of such collateral is located. The Lessee
acknowledges that the right to maintain a consolidated foreclosure action is a
specific inducement to the Lessor to extend the Advances, and the Lessor
expressly and irrevocably waives any objections to the commencement or
consolidation of the foreclosure proceedings in a single action and any
objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. The Lessee further agrees that if
the Lessor shall be prosecuting one or more foreclosure or other proceedings
against a portion of the Property or against any collateral other than the
Property, which collateral directly or indirectly secures the Obligations, or if
the Lessor shall have obtained a judgment of foreclosure and sale or similar
judgment against such collateral, then, whether or not such proceedings are
being maintained or judgments were obtained in or outside the State in which the
Property is located, the Lessor may commence or continue foreclosure proceedings
and exercise its other remedies granted in this Memorandum against all or any
part of the Property and the Lessor waives any objections to the commencement or
continuation of a foreclosure of this Memorandum or exercise of any other
remedies hereunder based on such other proceedings or judgments, and waives any
right to seek to dismiss, stay, remove, transfer or consolidate either any
action under this Memorandum or such other proceedings on such basis. Neither
the commencement nor continuation of proceedings to foreclose this Memorandum
nor the exercise of any other rights hereunder nor the recovery of any judgment
by the Lessor in any such proceedings shall prejudice, limit or preclude the
Lessor's right to commence or continue one or more foreclosure or other
proceedings or obtain a judgment against any other collateral (either in or
outside the State in which the Property is located) which
-7-
62
directly or indirectly secures the Obligations, and the Lessor expressly waives
any objections to the commencement of, continuation of, or entry of a judgment
in such other proceedings or exercise of any remedies in such proceedings based
upon any action or judgment connected to this Memorandum, and the Lessor also
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either such other proceedings or any action under this Memorandum on such basis.
If the Lessor so elects, the Trustee may sell any personal property
covered by this instrument at one or more separate sales in any manner permitted
by the UCC. One or more exercises of the powers herein granted shall not
extinguish nor exhaust such powers until the entire Property is sold or until
the entire amounts evidenced and/or secured by the Lease and the Operative
Documents is paid in full.
(d) Specifically, but without limiting the generality of subsection
(b), the Lessor and the Lessee further intend and agree that, with respect to
that portion of the Property constituting personal property, for the purpose of
securing the Lessee's obligations for the repayment of the above-described
obligations from the Lessor to the Lessee, (i) the Lease shall also be deemed to
be a security agreement and financing statement within the meaning of Article 9
of the UCC; (ii) the conveyance provided for hereby shall be deemed to be a
grant by the Lessee to the Lessor of a lien and security interest in all of the
Lessee's present and future right, title and interest in and to such portion of
the Property, including but not limited to the Lessee's leasehold estate therein
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, investments, securities or other property, whether in the form of
cash, investments, securities or other property to secure such obligations,
effective on the date hereof, to have and to hold such interests in the Property
unto the Lessor and its successors and assigns, forever, provided always that
these presents are upon the express condition that, if all amounts due under the
Lease shall have been paid and satisfied in full, then this instrument and the
estate hereby granted shall cease and become void; (iii) the possession by the
Lessor of notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the UCC; and (iv) notifications to Persons holding such
property, and acknowledgements, receipts or confirmations from financial
intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed
to have been given for the purpose of perfecting such security interest under
Applicable Law. The Lessor and the Lessee shall, to the extent consistent with
this Memorandum, take such actions and execute, deliver, file and record such
other
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63
documents, financing statements, mortgages and deeds of trust as may be
necessary to ensure that, if the Lease were deemed to create a security interest
in the Property in accordance with this Section, such security interest would be
deemed to be a perfected security interest with priority over all Liens other
than Permitted Liens, under Applicable Law and will be maintained as such
throughout the Term.
SECTION 5. Ratification. The terms and provisions of the Lease are
hereby ratified and confirmed and remain in full force and effect. In the event
of any conflict between the terms of the Lease and the terms of this Memorandum,
the terms of the Lease shall control.
SECTION 6. Supplemental Lease Term.
(a) The Lenders' Percentage for the Lease Supplement is
84.8469%.
(b) The Lessor Margin for this Lease Supplement is 0.695%
(c) The Loan Margin for the Lease Supplement is 0.20%.
SECTION 7. Counterpart Execution. This Memorandum may be executed in
any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
SECTION 8. Future Advances; Revolving Credit. In the event a court of
competent jurisdiction rules that this instrument constitutes a mortgage, deed
of trust or other secured financing as is the intent of the parties pursuant to
Section 4 hereof, then this instrument will be deemed given to secure not only
existing financing, but also future advances made pursuant to or as provided in
the Lease, whether such advances are obligatory or to be made at the option of
the Lessor, or otherwise, to the same extent as if such future advances were
made on the date of execution of this instrument, although there may be no
advance made at the time of execution hereof, and although there may be no
financing outstanding at the time any advance is made. To the fullest extent
permitted by law, the lien of this instrument shall be valid as to all such
amounts, including all future advances, from the time this instrument is
recorded. Notwithstanding anything in this instrument to the contrary, although
the amount of the financing secured by this instrument may increase or decrease
from time to time, the maximum principal amount of the financing secured by this
instrument at any one time shall not exceed Fifty Three Million Dollars
($53,000,000), which amount shall be payable as set forth in the Lease, and in
any event the final payment shall be payable no later than
-9-
64
October 18, 2003, plus all costs of enforcement and collection of this
instrument, the Lease and the other Operative Documents, plus the total amount
of any advances made pursuant thereto to protect the collateral and the security
interest and lien created hereby, together with interest on all of the foregoing
as provided in the Operative Documents.
SECTION 9. GOVERNING LAW. THE LEASE AND THIS MEMORANDUM SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
-10-
65
IN WITNESS WHEREOF, each of the parties hereto has caused this
Memorandum of Lease and Deed of Trust to be duly executed by an officer
thereunto duly authorized as of the date and year first above written.
SYMANTEC CORPORATION,
as the Lessee
By:__________________________
Name:
Title:
SUMITOMO BANK LEASING AND
FINANCE, INC., as the
Lessor
By:_______________________
Name:
Title:
00
XXX-XXXXXXX XXXXXXXXXXXXXXX
Xxxxx of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "Xxxx Xxx,
Notary Public
personally appeared _________________________________________________________,
[ ] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[ ] CORPORATE OFFICER(S) ______________________________
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
_______________________
_______________________
--------------------------------------------------------------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
67
DESCRIBED AT RIGHT:
68
ALL-PURPOSE ACKNOWLEDGEMENT
State of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "Xxxx
Xxx, Notary Public
personally appeared _________________________________________________________,
[ ] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[ ] CORPORATE OFFICER(S) ______________________________
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
_______________________
_______________________
--------------------------------------------------------------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
69
DESCRIBED AT RIGHT:
70
EXHIBIT A-1
TO MEMORANDUM OF LEASE
LEGAL DESCRIPTION OF LAND
71
EXECUTION COPY
This instrument prepared by,
recording requested by,
and when recorded return to:
XXXXX, XXXXX & XXXXX
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
AMENDMENT NO. 1
dated as of March 3, 1997,
AMENDING
LEASE SUPPLEMENT NO. 1 AND
MEMORANDUM OF LEASE AND DEED OF TRUST
dated as of October 18, 1996
among
SYMANTEC CORPORATION,
as the Lessee,
SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor,
and
FIRST AMERICAN TITLE INSURANCE COMPANY,
as Trustee.
Location of Premises:
County of Santa Xxxxx
State of California
--------------------------------------------------------------------------------
This Amendment No. 1 is an amendment to
that certain Lease Supplement No. 1
and Memorandum of Lease and Deed of Trust
recorded on October 21, 1996 in the Official Records
of Santa Xxxxx County, California (the "Official Records")
as Instrument No. 13489802,
with respect to the land described on Exhibit A
to this Amendment No. 1,
which Lease Supplement No. 1 is a supplement to
that certain Lease (as hereinafter defined),
as supplemented by that certain Lease Supplement No. 2
and Memorandum of Lease and Deed of Trust
recorded on October 23, 1996 in the Official Records, as
Instrument No. 1349244, and
that certain Lease Supplement No. 3
and Memorandum of Lease and Deed of Trust
recorded on February 5, 1997 in the Official Records, as
Instrument No. 13602289.
72
THIS AMENDMENT NO. 1 TO LEASE SUPPLEMENT NO. 1 AND MEMORANDUM OF LEASE
AND DEED OF TRUST, dated as of March 3, 1997 (this "Amendment"), amending that
certain Lease Supplement No. 1 and Memorandum of Lease and Deed of Trust (the
"Memorandum") dated as of October 18, 1996 and recorded on October 21, 1996 in
the Official Records of Santa Xxxxx County, California as Instrument No.
13489802, is among SYMANTEC CORPORATION, a Delaware corporation, having a
principal office at 00000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, as the
Lessee and as Mortgagor (the "Lessee"), SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor (the "Lessor"), having an address at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and FIRST AMERICAN TITLE INSURANCE COMPANY (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Lessee, the Lessor and the Trustee have heretofore entered
into the Memorandum; and
WHEREAS, the Lessee, the Lessor and the Trustee now desire to amend the
Memorandum in certain respects to reflect the fact that the principal amount of
the obligations secured by the Memorandum has increased from Fifty Three Million
Dollars ($53,000,000) to Eighty One Million Five Hundred Thousand Dollars
($81,500,000), as hereinafter provided;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION I. Certain Terms. Capitalized terms used but not otherwise
defined in this Amendment have the meanings specified in Appendix A to the
Master Lease and Security Agreement dated as of October 18, 1996 (as amended by
that certain Master Amendment Agreement dated as of the date hereof, and
amended, restated, supplemented or otherwise modified from time to time, the
"Lease"), between the Lessee and the Lessor; and the rules of interpretation
specified in Appendix A to the Lease shall apply to this Amendment.
SECTION 2. Amendment to Section 8 of Memorandum. Section 8 of the
Memorandum is hereby amended by deleting the words "Fifty Three Million Dollars
($53,000,000)" appearing in the twentieth line of such Section, and replacing
such words with the words "Eighty One Million Five Hundred Thousand Dollars
($81,500,000)".
SECTION 3. Ratification of and References to Memorandum. This Amendment
shall be deemed to be an amendment to the Memorandum, and the Memorandum, as
amended hereby, is hereby
73
ratified, approved and confirmed in every respect. All references to the
Memorandum in any other document, instrument, agreement or writing shall
hereafter be deemed to refer to the Memorandum as amended hereby.
SECTION 4. Ratification of Lease. The terms and provisions of the Lease
are hereby ratified and confirmed and remain in full force and effect. In the
event of any conflict between the terms of the Lease and the terms of this
Amendment, the terms of the Lease shall control.
SECTION 7. Counterpart Execution. This Amendment may be
executed in any number of counterparts and by each of the parties
hereto in separate counterparts, all such counterparts together
constituting but one and the same instrument.
SECTION 9. GOVERNING LAW. THIS AMENDMENT, THE LEASE AND THE MEMORANDUM
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
THEREOF.
-2-
74
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
SYMANTEC CORPORATION, as the
Lessee
By:__________________________
Name:
Title:
SUMITOMO BANK LEASING AND
FINANCE, INC., as the Lessor
By:_______________________
Name:
Title:
-0-
00
XXX-XXXXXXX XXXXXXXXXXXXXXX
Xxxxx of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "Xxxx Xxx,
Notary Public
personally appeared _________________________________________________________,
[ ] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[ ] CORPORATE OFFICER(S) ______________________________
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
______________________________
______________________________
--------------------------------------------------------------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
DESCRIBED AT RIGHT:
76
ALL-PURPOSE ACKNOWLEDGEMENT
State of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "Xxxx Xxx,
Notary Public
personally appeared _________________________________________________________,
[ ] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[ ] CORPORATE OFFICER(S) ______________________________
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
______________________________
______________________________
--------------------------------------------------------------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
DESCRIBED AT RIGHT:
77
EXHIBIT A TO
AMENDMENT NO. 1 TO LEASE SUPPLEMENT NO. 1
AND MEMORANDUM OF LEASE AND DEED OF TRUST
LEGAL DESCRIPTION OF LAND
78
EXECUTION COPY
This instrument prepared by,
recording requested by,
and when recorded return to:
XXXXX, XXXXX & XXXXX
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
LEASE SUPPLEMENT NO. 2 AND
MEMORANDUM OF LEASE AND DEED OF TRUST
dated as of October 22, 1996
among
SYMANTEC CORPORATION,
as the Lessee,
SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor,
and
FIRST AMERICAN TITLE INSURANCE COMPANY,
as Trustee
Location of Premises:
County of Santa Xxxxx
State of California
This Lease Supplement is a supplement to
that certain Lease (as hereinafter defined)
recorded on October 21, 1996, in the Official Records
of Santa Xxxxx County, California,
as Instrument No. ______________
79
THIS LEASE SUPPLEMENT NO. 2 AND MEMORANDUM OF LEASE AND DEED OF TRUST
(this "Memorandum") dated as of October 22, 1996, among SYMANTEC CORPORATION, a
Delaware corporation, having a principal office at 00000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, as the Lessee and as Mortgagor (the "Lessee"),
SUMITOMO BANK LEASING AND FINANCE, INC., as the Lessor (the "Lessor"), having an
address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and FIRST AMERICAN TITLE
INSURANCE COMPANY (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Lessor is the owner in fee simple of the land described on
Exhibit A attached hereto and all Improvements thereon (together, the
"Property");
WHEREAS, the Lessor wishes to lease the Property to the Lessee and the
Lessee wishes to lease the Property from the Lessor;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree to enter
into this Memorandum, as follows:
1. Certain Terms. Capitalized terms used but not otherwise defined in
this Memorandum have the meanings specified in Appendix A to the Master Lease
and Security Agreement dated as of October 18, 1996 (as amended, restated,
supplemented or otherwise modified from time to time, the "Lease"), between the
Lessee and the Lessor; and the rules of interpretation specified in Appendix A
to the Lease shall apply to this Memorandum.
2. Property. Attached hereto as Exhibit A is the description of the
Property. Effective upon the execution and delivery of this Memorandum by the
Lessor and the Lessee, the Property shall be subject to the terms and provisions
of the Lease. Subject to the terms and conditions of the Lease, the Lessor
hereby leases the Property to the Lessee for the Term (as defined below) of this
Memorandum, and the Lessee hereby agrees, expressly for the direct benefit of
the Lessor, to lease the Property from the Lessor for the Term.
3. Lease Term. The term of this Memorandum (the "Term") shall begin on
the date hereof and shall end on October 18, 2003 unless the Term with respect
to the Property is renewed or earlier terminated in accordance with the
provisions of the Lease or the other Operative Documents. For and in
consideration of good and valuable consideration paid by the Lessee to the
Lessor as described in the Lease, the Lessor hereby grants to the Lessee the
right to purchase the Property or to market and sell the Property during the
Term of this Memorandum on the terms set
80
forth in the Lease.
4. Ownership of the Property. (a) The parties hereto intend that (i) for
financial accounting purposes with respect to the Lessee, the Lessor will be
treated as the owner and the lessor of the Properties and the Lessee will be
treated as the lessee of the Properties and (ii) for all other purposes,
including federal and all state and local income tax purposes, state real estate
and commercial law and bankruptcy purposes, (A) the Lease will be treated as a
financing arrangement, (B) the Lessor and the Lenders will be deemed lenders
making loans to the Lessee in an amount equal to the sum of the Lessor Amount
and the outstanding principal amount of the Loans, which loans are secured by
the Properties and (C) the Lessee will be treated as the owner of the Properties
and will be entitled to all tax benefits ordinarily available to an owner of
properties like the Properties for such tax purposes. Nevertheless, the Lessee
acknowledges and agrees that neither the Lessor nor any of the Lenders has made
any representations or warranties to the Lessee concerning the tax, accounting
or legal characteristics of the Operative Documents and that the Lessee has
obtained and relied upon such tax, accounting and legal advice concerning the
Operative Documents as it deems appropriate.
(b) It is the intent of the parties hereto that the Lease grants a
security interest and deed of trust or lien, as the case may be, on the Property
for the benefit of the Lessor to secure the Lessee's performance under and
payment of all amounts advanced by the Lessor for the acquisition of the
Property (corresponding to the value of the Property as indicated on the
Appraisal) under the Lease and the other Operative Documents, together with
interest thereon, and all other amounts payable under the Operative Documents in
connection therewith.
(c) Specifically, without limiting the generality of subsection (b), the
Lessor and the Lessee intend and agree that with respect to the nature of the
transactions evidenced by the Lease in the context of the exercise of remedies
under the Operative Documents, including, without limitation, in the case of any
insolvency or receivership proceedings or a petition under the United States
bankruptcy laws or any other applicable insolvency laws or statute of the United
States of America or any State or Commonwealth thereof affecting the Lessee and
the Lessor, or any enforcement or collection actions, the transactions evidenced
by the Lease are loans made by the Lessor as unrelated third party lender to the
Lessee secured by the Property (it being understood that the Lessee hereby
mortgages, grants, bargains, sells, releases, confirms, conveys, assigns,
transfers and sets over to the Trustee for the benefit of the Lessor, and grants
a security interest in, the Property (consisting of a fee deed of trust with
respect to all right,
-2-
81
title and interest of the Lessee in and to the fee title to, and reversionary
interest in, the Land and Improvements, if any, and a leasehold deed of trust on
the Lessee's leasehold estate under the Lease), all to secure such loans,
effective on the date hereof, to have and to hold such interests in the Property
unto the Trustee for the benefit of the Lessor and its successors and assigns,
forever, provided always that these presents are upon the express condition
that, if all amounts due under the Lease shall have been paid and satisfied in
full, then this instrument and the estate hereby granted shall cease and become
void.
As additional security for the Rent, the Lease Balance and all other
sums owed to the Lessor by the Lessee under the Lease, the Lessee does hereby
grant, bargain, sell, transfer and convey unto the Trustee, its successors in
trust and assigns, IN TRUST, WITH POWER OF SALE, for the benefit of the Lessor,
all of the Lessee's right, title and interest in and to the Property, including,
without limitation, all buildings, structures and other improvements, and all
fixtures and other property now or hereafter attached to or affixed to any such
buildings, structures or other improvements, and any additions and alterations
thereto or replacements thereof, now or hereafter built, constructed or located
upon the Property, all rents, additional rents, issues, income, revenues,
distributions, royalties and profits now or in the future payable in respect of
the Property, together with all of the right, power and authority of the Lessee
to alter, modify or change the terms, conditions and provisions of the Lease and
any other lease pertaining to the Property, to consent to any request made by a
tenant or landlord pursuant thereto, or to surrender, cancel or terminate the
same or to accept any surrender, cancellation or termination of the same,
together with all of the options, rights, powers and privileges of the Lessee
under any lease pertaining to the Property, whether heretofore or hereafter
existing, including, without limitation, the rights and options to purchase the
Property contained in Articles XVIII and XX of the Lease, and all present and
future right, title and interest of the Lessee in and to (i) all refunds, tax
abatement agreements, rebates, reserves, deferred payments, deposits, cost
savings, awards and payments of any kind due from or payable by (a) any
Governmental Authority, or (b) any insurance or utility company, in each case
under clause (a) or (b) above in respect of the Property, and (ii) all refunds,
rebates and payments of any kind due from or payable by any Governmental
Authority for any taxes, assessments, or governmental or quasi-governmental
charges or levies imposed upon the Lessee in respect of the Property, and all
plans and specifications, designs, drawings and other information, materials and
matters heretofore or hereafter prepared relating to the Property or any
construction on the Property, all proceeds (including claims and demands
therefor) of the conversion, voluntary or involuntary, of any of the foregoing
into cash or
-3-
82
liquidated claims, including without limitation the proceeds of insurance and
condemnation awards in respect of the Property or any portion thereof, all
additional estates, rights and interests hereafter acquired by the Lessee in the
Property, or any portion thereof, together with all proceeds of the conversion,
whether voluntary or involuntary, of any of the Property into cash or other
liquid claims, including without limitation, all awards, payments or proceeds,
including interest thereon, and the right to receive the same, which may be made
as a result of any casualty, any exercise of the right of eminent domain or deed
in lieu thereof, any injury to the Property and any defect in title in the
Property or other matter insured under any policy of title insurance, together
with attorney's fees, costs and disbursements incurred by the Lessor in
connection with the collection of such awards, payments and proceeds, and the
Lessee further grants to the Lessor, pursuant to the California Uniform
Commercial Code (the "UCC"), a security interest in all present and future
right, title and interest of the Lessee in and to any portion of the foregoing
property for which a security interest may be created under the UCC.
To have and to hold the same whether now owned or held or hereafter
acquired unto the Trustee, its successors-in-trust forever, IN TRUST, WITH POWER
OF SALE, to secure to the Lessor the payment of the Rent, the Lease Balance and
all other sums owing to the Lessor under the Lease and the performance and
observance of the terms, covenants, warranties, conditions, agreements and
obligations under the Lease. If the Lessee shall pay all sums due under the
Lease when due according to the terms thereof and shall otherwise fully and
properly perform and comply with all of the obligations, agreements, terms and
conditions of the Lease, then this conveyance shall become null and void.
In the event of the occurrence of an Event of Default, then the entire
unpaid balance of all sums due under the Lease and the interest accrued thereon
shall, at the option of the owner thereof and without notice, immediately become
due and payable for all purposes, whether or not due according to the maturity
date or dates thereof; and all other indebtedness, the payment of which is
secured hereby, shall likewise become due and payable. The Trustee and the
Lessor and each of them are authorized prior or subsequent to the institution of
any foreclosure proceedings to enter upon the Property or any part thereof and
to take possession of the Property and exercise without interference from the
Lessee, any and all rights which the Lessee has with respect to the management,
possession, operation, protection or preservation of the Property.
Upon the occurrence of an Event of Default, Lessor shall have the power
and authority, after proper notice and lapse of such time as may be required by
law, to cause Trustee to sell the Property
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by notifying Trustee of that election and depositing with Trustee this
instrument and receipts and evidence of expenditures made and secured hereby as
Trustee may reasonably require. Upon receipt of any such notice from Lessor,
Trustee shall cause to be recorded, published and delivered to Lessee such
Notice of Default and Election to Sell as is then required by applicable
statutory authority and by this instrument, which notice shall set forth, among
other things, the nature of the breach(es) or default(s), the action(s) required
to effect a cure thereof and the time period within which that cure may be
effected. If no cure is effected within the statutory time limits following
recordation of the Notice of Default and Election to Sell and after Notice of
Sale has been given as required by the above-referenced statutes, Trustee may
without further notice or demand sell and convey the Property in accordance with
the above-referenced statutes. The Property may be sold as a whole or in
separate lots, parcels or items and in such order as Lessor may direct, at
public auction to the highest bidder for cash in lawful money of the United
States payable at the time of sale. Trustee shall deliver to such purchaser(s) a
good and sufficient deed or deeds conveying the property so sold, but without
any covenant or warranty express or implied. The recitals in such deed of any
matter or fact shall be conclusive proof of the truthfulness thereof. Any
Person, including Lessee, Trustee or Lessor, may purchase at any sale. After
deducting all costs, fees and expenses of Lessor and Trustee, including costs of
evidence of title in connection with any sale, Lessor shall apply the proceeds
of sale, in the following order of priority, to payment of the following
(collectively, the "Obligations"): (i) first, all amounts expended by or for the
account of Lessor under the terms hereof and not then repaid, with accrued
interest at the Overdue Rate; and (ii) second, all other amounts then due and
owing hereunder including, without limitation, all Basic Rent, Supplemental
Rent, the full amount of the Lease Balance as of the date of sale as if the
Lease had been terminated with respect to all of the Properties then subject to
the Lease under Section 18.1, and all other amounts then payable by Lessee under
the Lease and the other Operative Documents, with Lessor having the right to
apply the proceeds of sale to the amounts described above in this clause (ii) in
such order, proportion and priority as Lessor may elect in its sole and absolute
discretion. To the extent permitted by applicable statutes, Trustee may postpone
the sale of all or any portion of the Property by public announcement at the
time and place of sale, and from time to time thereafter may again postpone that
sale by public announcement or subsequently noticed sale, and without further
notice may make such sale at the time fixed at the last postponement or may, in
its discretion, give a new notice of sale. A sale of less than all of the
Property or any defective or irregular sale made hereunder shall not exhaust the
power of sale provided for herein, and subsequent sales may be made hereunder
until all of
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the Obligations have been satisfied or the entire Property has been sold,
without defect or irregularity. No action of Lessor or Trustee based upon the
provisions contained herein or contained in the applicable statutes, including,
without limitation, the giving of the Notice of Default and Election to Sell or
the Notice of Sale, shall constitute an election of remedies which would
preclude Lessor from pursuing judicial foreclosure before a completed sale
pursuant to the power of sale contained herein. Lessor shall have the right,
with the irrevocable consent of Lessee hereby given and evidenced by the
execution of this instrument, to obtain appointment of a receiver by any court
of competent jurisdiction without further notice to Lessee, which receiver shall
be authorized and empowered to enter upon and take possession of the Property,
including all personal property used upon or in connection with the real
property herein conveyed, to let the Property, to receive all the rents, issues
and profits, if any, which may be due or become due in respect to the leasing of
the Property to another party ("Property Rents"), and apply the Property Rents
after payment of all necessary charges and expenses to reduction of the
Obligations in such order, proportion and priority as Lessor may elect. At the
option of Lessor, the receiver shall accomplish entry and taking possession of
the Property by actual entry and possession or by notice to Lessee. The receiver
so appointed by a court of competent jurisdiction shall be empowered to issue
receiver's certificates for funds advanced by Lessor for the purpose of
protecting the value of the Property as security for the Obligations. The
amounts evidenced by receiver's certificates shall bear interest at the Overdue
Rate and may be added to the Obligations if the Lessee or a junior lienholder
purchases the Property at the trustee's sale. Trustee or any successor acting
hereunder may resign and thereupon be discharged of the trusts hereunder upon
thirty (30) days' prior written notice to Lessor. Regardless of whether Trustee
resigns, Lessor may, from time to time, substitute a successor or successors to
any Trustee named herein or acting hereunder in accordance with any statutory
procedure for such substitution; or if Lessor, in its sole and absolute
discretion, so elects, and if permitted by law, Lessor may substitute such
successors or successors by recording, in the office of the recorder of the
county or counties where the Property is located, a document executed by Lessor
and containing the name of the original Lessee and Lessor hereunder, the book
and page where this instrument (or a memorandum hereof) is recorded (and/or
instrument number, as applicable) and the name of the new Trustee, which
instrument shall be conclusive proof of proper substitution of such successor
Trustee or Trustees, who shall, without conveyance from the predecessor Trustee,
succeed to the rights, powers and duties hereunder. It is acknowledged that A
POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT; A POWER OF SALE MAY ALLOW
LESSOR TO TAKE THE PROPERTY AND SELL THEM WITHOUT GOING TO COURT IN A
FORECLOSURE ACTION UPON DEFAULT BY
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LESSEE UNDER THIS INSTRUMENT.
If (a) the Property shall consist of one or more parcels, whether or not
contiguous and whether or not located in the same county, or (b) in addition to
this Memorandum, the Lessor shall now or hereafter hold one or more additional
mortgages, liens, deeds of trust or other security (directly or indirectly) for
the Obligations upon other property in the State in which the Property is
located (whether or not such property is owned by Lessor or by others) or (c)
both the circumstances described in clauses (a) and (b) shall be true, then to
the fullest extent permitted by law, the Lessor may, in its sole discretion,
commence or consolidate in a single foreclosure action all foreclosure
proceedings against all such collateral securing the Obligations (including the
Property), which action may be brought or consolidated in the courts of any
county in which any of such collateral is located. The Lessee acknowledges that
the right to maintain a consolidated foreclosure action is a specific inducement
to the Lessor to extend the Advances, and the Lessor expressly and irrevocably
waives any objections to the commencement or consolidation of the foreclosure
proceedings in a single action and any objections to the laying of venue or
based on the grounds of forum non conveniens which it may now or hereafter have.
The Lessee further agrees that if the Lessor shall be prosecuting one or more
foreclosure or other proceedings against a portion of the Property or against
any collateral other than the Property, which collateral directly or indirectly
secures the Obligations, or if the Lessor shall have obtained a judgment of
foreclosure and sale or similar judgment against such collateral, then, whether
or not such proceedings are being maintained or judgments were obtained in or
outside the State in which the Property is located, the Lessor may commence or
continue foreclosure proceedings and exercise its other remedies granted in this
Memorandum against all or any part of the Property and the Lessor waives any
objections to the commencement or continuation of a foreclosure of this
Memorandum or exercise of any other remedies hereunder based on such other
proceedings or judgments, and waives any right to seek to dismiss, stay, remove,
transfer or consolidate either any action under this Memorandum or such other
proceedings on such basis. Neither the commencement nor continuation of
proceedings to foreclose this Memorandum nor the exercise of any other rights
hereunder nor the recovery of any judgment by the Lessor in any such proceedings
shall prejudice, limit or preclude the Lessor's right to commence or continue
one or more foreclosure or other proceedings or obtain a judgment against any
other collateral (either in or outside the State in which the Property is
located) which directly or indirectly secures the Obligations, and the Lessor
expressly waives any objections to the commencement of, continuation of, or
entry of a judgment in such other proceedings or exercise of any remedies in
such proceedings based upon any
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action or judgment connected to this Memorandum, and the Lessor also waives any
right to seek to dismiss, stay, remove, transfer or consolidate either such
other proceedings or any action under this Memorandum on such basis.
If the Lessor so elects, the Trustee may sell any personal property
covered by this instrument at one or more separate sales in any manner permitted
by the UCC. One or more exercises of the powers herein granted shall not
extinguish nor exhaust such powers until the entire Property is sold or until
the entire amounts evidenced and/or secured by the Lease and the Operative
Documents is paid in full.
(d) Specifically, but without limiting the generality of subsection (b),
the Lessor and the Lessee further intend and agree that, with respect to that
portion of the Property constituting personal property, for the purpose of
securing the Lessee's obligations for the repayment of the above-described
obligations from the Lessor to the Lessee, (i) the Lease shall also be deemed to
be a security agreement and financing statement within the meaning of Article 9
of the UCC; (ii) the conveyance provided for hereby shall be deemed to be a
grant by the Lessee to the Lessor of a lien and security interest in all of the
Lessee's present and future right, title and interest in and to such portion of
the Property, including but not limited to the Lessee's leasehold estate therein
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, investments, securities or other property, whether in the form of
cash, investments, securities or other property to secure such obligations,
effective on the date hereof, to have and to hold such interests in the Property
unto the Lessor and its successors and assigns, forever, provided always that
these presents are upon the express condition that, if all amounts due under the
Lease shall have been paid and satisfied in full, then this instrument and the
estate hereby granted shall cease and become void; (iii) the possession by the
Lessor of notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the UCC; and (iv) notifications to Persons holding such
property, and acknowledgements, receipts or confirmations from financial
intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed
to have been given for the purpose of perfecting such security interest under
Applicable Law. The Lessor and the Lessee shall, to the extent consistent with
this Memorandum, take such actions and execute, deliver, file and record such
other documents, financing statements, mortgages and deeds of trust as may be
necessary to ensure that, if the Lease were deemed to create a security interest
in the Property in accordance with this Section, such security interest would be
deemed to be a
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perfected security interest with priority over all Liens other than Permitted
Liens, under Applicable Law and will be maintained as such throughout the Term.
SECTION 5. Ratification. The terms and provisions of the Lease are
hereby ratified and confirmed and remain in full force and effect. In the event
of any conflict between the terms of the Lease and the terms of this Memorandum,
the terms of the Lease shall control.
SECTION 6. Supplemental Lease Term.
(a) The Lenders' Percentage for the Lease Supplement is
84.8469%.
(b) The Lessor Margin for this Lease Supplement is 0.695%
(c) The Loan Margin for the Lease Supplement is 0.20%.
SECTION 7. Counterpart Execution. This Memorandum may be executed in any
number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
SECTION 8. Future Advances; Revolving Credit. In the event a court of
competent jurisdiction rules that this instrument constitutes a mortgage, deed
of trust or other secured financing as is the intent of the parties pursuant to
Section 4 hereof, then this instrument will be deemed given to secure not only
existing financing, but also future advances made pursuant to or as provided in
the Lease, whether such advances are obligatory or to be made at the option of
the Lessor, or otherwise, to the same extent as if such future advances were
made on the date of execution of this instrument, although there may be no
advance made at the time of execution hereof, and although there may be no
financing outstanding at the time any advance is made. To the fullest extent
permitted by law, the lien of this instrument shall be valid as to all such
amounts, including all future advances, from the time this instrument is
recorded. Notwithstanding anything in this instrument to the contrary, although
the amount of the financing secured by this instrument may increase or decrease
from time to time, the maximum principal amount of the financing secured by this
instrument at any one time shall not exceed Fifty Three Million Dollars
($53,000,000), which amount shall be payable as set forth in the Lease, and in
any event the final payment shall be payable no later than October 18, 2003,
plus all costs of enforcement and collection of this instrument, the Lease and
the other Operative Documents, plus the total amount of any advances made
pursuant thereto to protect the collateral and the security interest and lien
created
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hereby, together with interest on all of the foregoing as provided in the
Operative Documents.
SECTION 9. GOVERNING LAW. THE LEASE AND THIS MEMORANDUM SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Memorandum of Lease and Deed of Trust to be duly executed by an officer
thereunto duly authorized as of the date and year first above written.
SYMANTEC CORPORATION,
as the Lessee
By:________________________________________
Name:
Title:
SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor
By:________________________________________
Name:
Title:
00
XXX-XXXXXXX XXXXXXXXXXXXXXX
Xxxxx of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "Xxxx
Xxx, Notary Public
personally appeared _________________________________________________________,
[ ] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
________________________________
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ____________________________________
[ ] CORPORATE OFFICER(S) ____________________________________
______________________________ ____________________________________
TITLE
______________________________
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
================================================================================
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
DESCRIBED AT RIGHT:
91
ALL-PURPOSE ACKNOWLEDGEMENT
State of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "Xxxx
Xxx, Notary Public
personally appeared _________________________________________________________,
[ ] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
________________________________
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ____________________________________
[ ] CORPORATE OFFICER(S) ____________________________________
______________________________ ____________________________________
TITLE
______________________________
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
================================================================================
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
DESCRIBED AT RIGHT:
92
EXHIBIT A-1
TO MEMORANDUM OF LEASE
LEGAL DESCRIPTION OF LAND
93
EXECUTION COPY
This instrument prepared by,
recording requested by,
and when recorded return to:
XXXXX, XXXXX & XXXXX
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
LEASE SUPPLEMENT NO. 3 AND
MEMORANDUM OF LEASE AND DEED OF TRUST
dated as of February 5, 1997
among
SYMANTEC CORPORATION,
as the Lessee,
SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor,
and
FIRST AMERICAN TITLE INSURANCE COMPANY,
as Trustee
Location of Premises:
County of Santa Xxxxx
State of California
This Lease Supplement is a supplement to
that certain Lease (as hereinafter defined),
as supplemented by
that certain Lease Supplement No. 1
and Memorandum of Lease and Deed of Trust
recorded on October 21, 1996 in the Official Records
of Santa Xxxxx County, California (the "Official Records"),
as Instrument No. 13489802,
and that certain Lease Supplement No. 2
and Memorandum of Lease and Deed of Trust
recorded on October 23, 1996 in the Official Records, as
Instrument No. 13492444
94
THIS LEASE SUPPLEMENT NO. 3 AND MEMORANDUM OF LEASE AND DEED OF TRUST
(this "Memorandum") dated as of February 5, 1997, among SYMANTEC CORPORATION, a
Delaware corporation, having a principal office at 00000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, as the Lessee and as Mortgagor (the "Lessee"),
SUMITOMO BANK LEASING AND FINANCE, INC., as the Lessor (the "Lessor"), having an
address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and FIRST AMERICAN TITLE
INSURANCE COMPANY (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Lessor is the owner in fee simple of the land described on
Exhibit A attached hereto and all Improvements thereon (together, the
"Property");
WHEREAS, the Lessor wishes to lease the Property to the Lessee and the
Lessee wishes to lease the Property from the Lessor;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree to enter
into this Memorandum, as follows:
I. Certain Terms. Capitalized terms used but not otherwise
defined in this Memorandum have the meanings specified in Appendix A to the
Master Lease and Security Agreement dated as of October 18, 1996 (as amended,
restated, supplemented or otherwise modified from time to time, the "Lease"),
between the Lessee and the Lessor; and the rules of interpretation specified in
Appendix A to the Lease shall apply to this Memorandum.
2. Property. Attached hereto as Exhibit A is the description of the
Property. Effective upon the execution and delivery of this Memorandum by the
Lessor and the Lessee, the Property shall be subject to the terms and provisions
of the Lease. Subject to the terms and conditions of the Lease, the Lessor
hereby leases the Property to the Lessee for the Term (as defined below) of this
Memorandum, and the Lessee hereby agrees, expressly for the direct benefit of
the Lessor, to lease the Property from the Lessor for the Term.
3. Lease Term. The term of this Memorandum (the "Term") shall begin on
the date hereof and shall end on October 18, 2003 unless the Term with respect
to the Property is renewed or earlier terminated in accordance with the
provisions of the Lease or the other Operative Documents. For and in
consideration of good and valuable consideration paid by the Lessee to the
Lessor as described in the Lease, the Lessor hereby grants to the Lessee the
right to purchase the Property or to market and sell the
95
Property during the Term of this Memorandum on the terms set forth in the Lease.
4. Ownership of the Property. (a) The parties hereto intend that (i)
for financial accounting purposes with respect to the Lessee, the Lessor will be
treated as the owner and the lessor of the Properties and the Lessee will be
treated as the lessee of the Properties and (ii) for all other purposes,
including federal and all state and local income tax purposes, state real estate
and commercial law and bankruptcy purposes, (A) the Lease will be treated as a
financing arrangement, (B) the Lessor and the Lenders will be deemed lenders
making loans to the Lessee in an amount equal to the sum of the Lessor Amount
and the outstanding principal amount of the Loans, which loans are secured by
the Properties and (C) the Lessee will be treated as the owner of the Properties
and will be entitled to all tax benefits ordinarily available to an owner of
properties like the Properties for such tax purposes. Nevertheless, the Lessee
acknowledges and agrees that neither the Lessor nor any of the Lenders has made
any representations or warranties to the Lessee concerning the tax, accounting
or legal characteristics of the Operative Documents and that the Lessee has
obtained and relied upon such tax, accounting and legal advice concerning the
Operative Documents as it deems appropriate.
(b) It is the intent of the parties hereto that the Lease grants a
security interest and deed of trust or lien, as the case may be, on the Property
for the benefit of the Lessor to secure the Lessee's performance under and
payment of all amounts advanced by the Lessor for the acquisition of the
Property (corresponding to the value of the Property as indicated on the
Appraisal) under the Lease and the other Operative Documents, together with
interest thereon, and all other amounts payable under the Operative Documents in
connection therewith.
(c) Specifically, without limiting the generality of subsection (b),
the Lessor and the Lessee intend and agree that with respect to the nature of
the transactions evidenced by the Lease in the context of the exercise of
remedies under the Operative Documents, including, without limitation, in the
case of any insolvency or receivership proceedings or a petition under the
United States bankruptcy laws or any other applicable insolvency laws or statute
of the United States of America or any State or Commonwealth thereof affecting
the Lessee and the Lessor, or any enforcement or collection actions, the
transactions evidenced by the Lease are loans made by the Lessor as unrelated
third party lender to the Lessee secured by the Property (it being understood
that the Lessee hereby mortgages, grants, bargains, sells, releases, confirms,
conveys, assigns, transfers and sets over to the Trustee for the benefit of the
Lessor, and grants a security interest in, the Property
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96
(consisting of a fee deed of trust with respect to all right, title and interest
of the Lessee in and to the fee title to, and reversionary interest in, the Land
and Improvements, if any, and a leasehold deed of trust on the Lessee's
leasehold estate under the Lease), all to secure such loans, effective on the
date hereof, to have and to hold such interests in the Property unto the Trustee
for the benefit of the Lessor and its successors and assigns, forever, provided
always that these presents are upon the express condition that, if all amounts
due under the Lease shall have been paid and satisfied in full, then this
instrument and the estate hereby granted shall cease and become void.
As additional security for the Rent, the Lease Balance and all other
sums owed to the Lessor by the Lessee under the Lease, the Lessee does hereby
grant, bargain, sell, transfer and convey unto the Trustee, its successors in
trust and assigns, IN TRUST, WITH POWER OF SALE, for the benefit of the Lessor,
all of the Lessee's right, title and interest in and to the Property, including,
without limitation, all buildings, structures and other improvements, and all
fixtures and other property now or hereafter attached to or affixed to any such
buildings, structures or other improvements, and any additions and alterations
thereto or replacements thereof, now or hereafter built, constructed or located
upon the Property, all rents, additional rents, issues, income, revenues,
distributions, royalties and profits now or in the future payable in respect of
the Property, together with all of the right, power and authority of the Lessee
to alter, modify or change the terms, conditions and provisions of the Lease and
any other lease pertaining to the Property, to consent to any request made by a
tenant or landlord pursuant thereto, or to surrender, cancel or terminate the
same or to accept any surrender, cancellation or termination of the same,
together with all of the options, rights, powers and privileges of the Lessee
under any lease pertaining to the Property, whether heretofore or hereafter
existing, including, without limitation, the rights and options to purchase the
Property contained in Articles XVIII and XX of the Lease, and all present and
future right, title and interest of the Lessee in and to (i) all refunds, tax
abatement agreements, rebates, reserves, deferred payments, deposits, cost
savings, awards and payments of any kind due from or payable by (a) any
Governmental Authority, or (b) any insurance or utility company, in each case
under clause (a) or (b) above in respect of the Property, and (ii) all refunds,
rebates and payments of any kind due from or payable by any Governmental
Authority for any taxes, assessments, or governmental or quasi-governmental
charges or levies imposed upon the Lessee in respect of the Property, and all
plans and specifications, designs, drawings and other information, materials and
matters heretofore or hereafter prepared relating to the Property or any
construction on the Property, all proceeds (including claims and demands
therefor) of the conversion,
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97
voluntary or involuntary, of any of the foregoing into cash or liquidated
claims, including without limitation the proceeds of insurance and condemnation
awards in respect of the Property or any portion thereof, all additional
estates, rights and interests hereafter acquired by the Lessee in the Property,
or any portion thereof, together with all proceeds of the conversion, whether
voluntary or involuntary, of any of the Property into cash or other liquid
claims, including without limitation, all awards, payments or proceeds,
including interest thereon, and the right to receive the same, which may be made
as a result of any casualty, any exercise of the right of eminent domain or deed
in lieu thereof, any injury to the Property and any defect in title in the
Property or other matter insured under any policy of title insurance, together
with attorney's fees, costs and disbursements incurred by the Lessor in
connection with the collection of such awards, payments and proceeds, and the
Lessee further grants to the Lessor, pursuant to the California Uniform
Commercial Code (the "UCC"), a security interest in all present and future
right, title and interest of the Lessee in and to any portion of the foregoing
property for which a security interest may be created under the UCC.
To have and to hold the same whether now owned or held or hereafter
acquired unto the Trustee, its successors-in-trust forever, IN TRUST, WITH POWER
OF SALE, to secure to the Lessor the payment of the Rent, the Lease Balance and
all other sums owing to the Lessor under the Lease and the performance and
observance of the terms, covenants, warranties, conditions, agreements and
obligations under the Lease. If the Lessee shall pay all sums due under the
Lease when due according to the terms thereof and shall otherwise fully and
properly perform and comply with all of the obligations, agreements, terms and
conditions of the Lease, then this conveyance shall become null and void.
In the event of the occurrence of an Event of Default, then the entire
unpaid balance of all sums due under the Lease and the interest accrued thereon
shall, at the option of the owner thereof and without notice, immediately become
due and payable for all purposes, whether or not due according to the maturity
date or dates thereof; and all other indebtedness, the payment of which is
secured hereby, shall likewise become due and payable. The Trustee and the
Lessor and each of them are authorized prior or subsequent to the institution of
any foreclosure proceedings to enter upon the Property or any part thereof and
to take possession of the Property and exercise without interference from the
Lessee, any and all rights which the Lessee has with respect to the management,
possession, operation, protection or preservation of the Property.
Upon the occurrence of an Event of Default, Lessor shall have the power
and authority, after proper notice and lapse of such time
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98
as may be required by law, to cause Trustee to sell the Property by notifying
Trustee of that election and depositing with Trustee this instrument and
receipts and evidence of expenditures made and secured hereby as Trustee may
reasonably require. Upon receipt of any such notice from Lessor, Trustee shall
cause to be recorded, published and delivered to Lessee such Notice of Default
and Election to Sell as is then required by applicable statutory authority and
by this instrument, which notice shall set forth, among other things, the nature
of the breach(es) or default(s), the action(s) required to effect a cure thereof
and the time period within which that cure may be effected. If no cure is
effected within the statutory time limits following recordation of the Notice of
Default and Election to Sell and after Notice of Sale has been given as required
by the above-referenced statutes, Trustee may without further notice or demand
sell and convey the Property in accordance with the above-referenced statutes.
The Property may be sold as a whole or in separate lots, parcels or items and in
such order as Lessor may direct, at public auction to the highest bidder for
cash in lawful money of the United States payable at the time of sale. Trustee
shall deliver to such purchaser(s) a good and sufficient deed or deeds conveying
the property so sold, but without any covenant or warranty express or implied.
The recitals in such deed of any matter or fact shall be conclusive proof of the
truthfulness thereof. Any Person, including Lessee, Trustee or Lessor, may
purchase at any sale. After deducting all costs, fees and expenses of Lessor and
Trustee, including costs of evidence of title in connection with any sale,
Lessor shall apply the proceeds of sale, in the following order of priority, to
payment of the following (collectively, the "Obligations"): (i) first, all
amounts expended by or for the account of Lessor under the terms hereof and not
then repaid, with accrued interest at the Overdue Rate; and (ii) second, all
other amounts then due and owing hereunder including, without limitation, all
Basic Rent, Supplemental Rent, the full amount of the Lease Balance as of the
date of sale as if the Lease had been terminated with respect to all of the
Properties then subject to the Lease under Section 18.1, and all other amounts
then payable by Lessee under the Lease and the other Operative Documents, with
Lessor having the right to apply the proceeds of sale to the amounts described
above in this clause (ii) in such order, proportion and priority as Lessor may
elect in its sole and absolute discretion. To the extent permitted by applicable
statutes, Trustee may postpone the sale of all or any portion of the Property by
public announcement at the time and place of sale, and from time to time
thereafter may again postpone that sale by public announcement or subsequently
noticed sale, and without further notice may make such sale at the time fixed at
the last postponement or may, in its discretion, give a new notice of sale. A
sale of less than all of the Property or any defective or irregular sale made
hereunder shall not exhaust the power of sale provided for
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99
herein, and subsequent sales may be made hereunder until all of the Obligations
have been satisfied or the entire Property has been sold, without defect or
irregularity. No action of Lessor or Trustee based upon the provisions contained
herein or contained in the applicable statutes, including, without limitation,
the giving of the Notice of Default and Election to Sell or the Notice of Sale,
shall constitute an election of remedies which would preclude Lessor from
pursuing judicial foreclosure before a completed sale pursuant to the power of
sale contained herein. Lessor shall have the right, with the irrevocable consent
of Lessee hereby given and evidenced by the execution of this instrument, to
obtain appointment of a receiver by any court of competent jurisdiction without
further notice to Lessee, which receiver shall be authorized and empowered to
enter upon and take possession of the Property, including all personal property
used upon or in connection with the real property herein conveyed, to let the
Property, to receive all the rents, issues and profits, if any, which may be due
or become due in respect to the leasing of the Property to another party
("Property Rents"), and apply the Property Rents after payment of all necessary
charges and expenses to reduction of the Obligations in such order, proportion
and priority as Lessor may elect. At the option of Lessor, the receiver shall
accomplish entry and taking possession of the Property by actual entry and
possession or by notice to Lessee. The receiver so appointed by a court of
competent jurisdiction shall be empowered to issue receiver's certificates for
funds advanced by Lessor for the purpose of protecting the value of the Property
as security for the Obligations. The amounts evidenced by receiver's
certificates shall bear interest at the Overdue Rate and may be added to the
Obligations if the Lessee or a junior lienholder purchases the Property at the
trustee's sale. Trustee or any successor acting hereunder may resign and
thereupon be discharged of the trusts hereunder upon thirty (30) days' prior
written notice to Lessor. Regardless of whether Trustee resigns, Lessor may,
from time to time, substitute a successor or successors to any Trustee named
herein or acting hereunder in accordance with any statutory procedure for such
substitution; or if Lessor, in its sole and absolute discretion, so elects, and
if permitted by law, Lessor may substitute such successors or successors by
recording, in the office of the recorder of the county or counties where the
Property is located, a document executed by Lessor and containing the name of
the original Lessee and Lessor hereunder, the book and page where this
instrument (or a memorandum hereof) is recorded (and/or instrument number, as
applicable) and the name of the new Trustee, which instrument shall be
conclusive proof of proper substitution of such successor Trustee or Trustees,
who shall, without conveyance from the predecessor Trustee, succeed to the
rights, powers and duties hereunder. It is acknowledged that A POWER OF SALE HAS
BEEN GRANTED IN THIS INSTRUMENT; A POWER OF SALE MAY ALLOW LESSOR TO TAKE THE
PROPERTY AND SELL THEM
-6-
100
WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY LESSEE UNDER THIS
INSTRUMENT.
If (a) the Property shall consist of one or more parcels, whether or
not contiguous and whether or not located in the same county, or (b) in addition
to this Memorandum, the Lessor shall now or hereafter hold one or more
additional mortgages, liens, deeds of trust or other security (directly or
indirectly) for the Obligations upon other property in the State in which the
Property is located (whether or not such property is owned by Lessor or by
others) or (c) both the circumstances described in clauses (a) and (b) shall be
true, then to the fullest extent permitted by law, the Lessor may, in its sole
discretion, commence or consolidate in a single foreclosure action all
foreclosure proceedings against all such collateral securing the Obligations
(including the Property), which action may be brought or consolidated in the
courts of any county in which any of such collateral is located. The Lessee
acknowledges that the right to maintain a consolidated foreclosure action is a
specific inducement to the Lessor to extend the Advances, and the Lessor
expressly and irrevocably waives any objections to the commencement or
consolidation of the foreclosure proceedings in a single action and any
objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. The Lessee further agrees that if
the Lessor shall be prosecuting one or more foreclosure or other proceedings
against a portion of the Property or against any collateral other than the
Property, which collateral directly or indirectly secures the Obligations, or if
the Lessor shall have obtained a judgment of foreclosure and sale or similar
judgment against such collateral, then, whether or not such proceedings are
being maintained or judgments were obtained in or outside the State in which the
Property is located, the Lessor may commence or continue foreclosure proceedings
and exercise its other remedies granted in this Memorandum against all or any
part of the Property and the Lessor waives any objections to the commencement or
continuation of a foreclosure of this Memorandum or exercise of any other
remedies hereunder based on such other proceedings or judgments, and waives any
right to seek to dismiss, stay, remove, transfer or consolidate either any
action under this Memorandum or such other proceedings on such basis. Neither
the commencement nor continuation of proceedings to foreclose this Memorandum
nor the exercise of any other rights hereunder nor the recovery of any judgment
by the Lessor in any such proceedings shall prejudice, limit or preclude the
Lessor's right to commence or continue one or more foreclosure or other
proceedings or obtain a judgment against any other collateral (either in or
outside the State in which the Property is located) which directly or indirectly
secures the Obligations, and the Lessor expressly waives any objections to the
commencement of, continuation of, or entry of a judgment in such other
proceedings
-7-
101
or exercise of any remedies in such proceedings based upon any action or
judgment connected to this Memorandum, and the Lessor also waives any right to
seek to dismiss, stay, remove, transfer or consolidate either such other
proceedings or any action under this Memorandum on such basis.
If the Lessor so elects, the Trustee may sell any personal property
covered by this instrument at one or more separate sales in any manner permitted
by the UCC. One or more exercises of the powers herein granted shall not
extinguish nor exhaust such powers until the entire Property is sold or until
the entire amounts evidenced and/or secured by the Lease and the Operative
Documents is paid in full.
(d) Specifically, but without limiting the generality of subsection
(b), the Lessor and the Lessee further intend and agree that, with respect to
that portion of the Property constituting personal property, for the purpose of
securing the Lessee's obligations for the repayment of the above-described
obligations from the Lessor to the Lessee, (i) the Lease shall also be deemed to
be a security agreement and financing statement within the meaning of Article 9
of the UCC; (ii) the conveyance provided for hereby shall be deemed to be a
grant by the Lessee to the Lessor of a lien and security interest in all of the
Lessee's present and future right, title and interest in and to such portion of
the Property, including but not limited to the Lessee's leasehold estate therein
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, investments, securities or other property, whether in the form of
cash, investments, securities or other property to secure such obligations,
effective on the date hereof, to have and to hold such interests in the Property
unto the Lessor and its successors and assigns, forever, provided always that
these presents are upon the express condition that, if all amounts due under the
Lease shall have been paid and satisfied in full, then this instrument and the
estate hereby granted shall cease and become void; (iii) the possession by the
Lessor of notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the UCC; and (iv) notifications to Persons holding such
property, and acknowledgements, receipts or confirmations from financial
intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed
to have been given for the purpose of perfecting such security interest under
Applicable Law. The Lessor and the Lessee shall, to the extent consistent with
this Memorandum, take such actions and execute, deliver, file and record such
other documents, financing statements, mortgages and deeds of trust as may be
necessary to ensure that, if the Lease were deemed to create a security interest
in the Property in accordance with
-8-
102
this Section, such security interest would be deemed to be a perfected security
interest with priority over all Liens other than Permitted Liens, under
Applicable Law and will be maintained as such throughout the Term.
SECTION 5. Ratification. The terms and provisions of the Lease are
hereby ratified and confirmed and remain in full force and effect. In the event
of any conflict between the terms of the Lease and the terms of this Memorandum,
the terms of the Lease shall control.
SECTION 6. Supplemental Lease Term.
(a) The Lenders' Percentage for the Lease Supplement is
97.0%.
(b) The Lessor Margin for this Lease Supplement is 2.70%
(c) The Loan Margin for the Lease Supplement is 0.20%.
SECTION 7. Counterpart Execution. This Memorandum may be executed in
any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
SECTION 8. Future Advances; Revolving Credit. In the event a court of
competent jurisdiction rules that this instrument constitutes a mortgage, deed
of trust or other secured financing as is the intent of the parties pursuant to
Section 4 hereof, then this instrument will be deemed given to secure not only
existing financing, but also future advances made pursuant to or as provided in
the Lease, whether such advances are obligatory or to be made at the option of
the Lessor, or otherwise, to the same extent as if such future advances were
made on the date of execution of this instrument, although there may be no
advance made at the time of execution hereof, and although there may be no
financing outstanding at the time any advance is made. To the fullest extent
permitted by law, the lien of this instrument shall be valid as to all such
amounts, including all future advances, from the time this instrument is
recorded. Notwithstanding anything in this instrument to the contrary, although
the amount of the financing secured by this instrument may increase or decrease
from time to time, the maximum principal amount of the financing secured by this
instrument at any one time shall not exceed Fifty Three Million Dollars
($53,000,000), which amount shall be payable as set forth in the Lease, and in
any event the final payment shall be payable no later than October 18, 2003,
plus all costs of enforcement and collection of this instrument, the Lease and
the other Operative Documents, plus the total amount of any advances made
pursuant thereto to
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103
protect the collateral and the security interest and lien created hereby,
together with interest on all of the foregoing as provided in the Operative
Documents.
SECTION 9. GOVERNING LAW. THE LEASE AND THIS MEMORANDUM SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
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104
IN WITNESS WHEREOF, each of the parties hereto has caused this
Memorandum of Lease and Deed of Trust to be duly executed by an officer
thereunto duly authorized as of the date and year first above written.
SYMANTEC CORPORATION, as the Lessee
By:__________________________
Name:
Title:
SUMITOMO BANK LEASING AND
FINANCE, INC., as the Lessor
By:_______________________
Name:
Title:
-00-
000
XXX-XXXXXXX XXXXXXXXXXXXXXX
Xxxxx of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "Xxxx Xxx,
Notary Public
personally appeared _________________________________________________________,
[ ] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[ ] CORPORATE OFFICER(S) ______________________________
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
_______________________
_______________________
--------------------------------------------------------------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
106
DESCRIBED AT RIGHT:
000
XXX-XXXXXXX XXXXXXXXXXXXXXX
Xxxxx of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "Xxxx Xxx,
Notary Public
personally appeared _________________________________________________________,
[ ] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[ ] CORPORATE OFFICER(S) ______________________________
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
_______________________
_______________________
--------------------------------------------------------------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_______________________________
MUST BE ATTACHED Number of Pages _____ Date of Document__________________
TO THE DOCUMENT Signer(s) Other Than Named Above _______________________
108
DESCRIBED AT RIGHT:
109
EXHIBIT A
TO MEMORANDUM OF LEASE
LEGAL DESCRIPTION OF LAND
Real Property in the City of Cupertino, County of Santa Xxxxx, State of
California, described as follows:
PARCEL ONE:
Lot 5, as shown on that certain Map entitled Tract No. 7953 Cupertino City
Center Phase III, which Map was filed for record in the office of the Recorder
of the County of Santa Xxxxx, State of California on February 27, 1987, in Book
571 of Maps, pages 36 and 37.
PARCEL TWO:
Easements as described in the Section entitled "Easements and Rights Reserved
for Owners" of the Article entitled "Easements and Rights of Entry" of the
Declaration of Covenants, Conditions, and Restrictions and Grant of Easement for
Cupertino City Center recorded October 9, 1985, in Book J482, page 1907, as
amended by that certain First Amendment to Declaration of Covenants, Conditions,
and Restrictions and Grant of Easements recorded September 2, 1987, in Book
K281, page 2071, each in the Official Records of Santa Xxxxx County, California.
PARCEL THREE:
Easements for parking, landscaping, support, settlement and encroachment as
granted to Cupertino City Center Buildings, a California Limited Partnership, in
the Grant of Easement (Cupertino City Center 5) recorded February 5, 1997 under
Series No. 13602286.
110
EXECUTION COPY
This instrument prepared by, recording requested by, and when recorded return
to:
XXXXX, XXXXX & XXXXX
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
AMENDMENT NO. 1
dated as of March 3, 1997,
AMENDING
LEASE SUPPLEMENT NO. 3 AND
MEMORANDUM OF LEASE AND DEED OF TRUST
dated as of February 5, 1997
among
SYMANTEC CORPORATION,
as the Lessee,
SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor,
and
FIRST AMERICAN TITLE INSURANCE COMPANY,
as Trustee.
Location of Premises:
County of Santa Xxxxx
State of California
___________________
This Amendment No. 1 is an amendment to
that certain Lease Supplement No. 3
and Memorandum of Lease and Deed of Trust
recorded on February 5, 1997 in the Official Records
of Santa Xxxxx County, California (the "Official Records")
as Instrument No. 13602289,
with respect to the land described on Exhibit A
to this Amendment No. 1,
which Lease Supplement No. 3 is a supplement to
that certain Lease (as hereinafter defined),
as supplemented by that certain Lease Supplement No. 1
and Memorandum of Lease and Deed of Trust
recorded on October 21, 1996 in the Official Records, as
Instrument No. 13489802, and
that certain Lease Supplement No. 2
and Memorandum of Lease and Deed of Trust
recorded on October 23, 1996 in the Official Records, as
Instrument No. 13492444.
111
THIS AMENDMENT NO. 1 TO LEASE SUPPLEMENT NO. 3 AND MEMORANDUM OF LEASE
AND DEED OF TRUST, dated as of March 3, 1997 (this "Amendment"), amending that
certain Lease Supplement No. 3 and Memorandum of Lease and Deed of Trust (the
"Memorandum") dated as of February 5, 1997 and recorded on February 5, 1997 in
the Official Records of Santa Xxxxx County, California as Instrument No.
13602289, is among SYMANTEC CORPORATION, a Delaware corporation, having a
principal office at 00000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, as the
Lessee and as Mortgagor (the "Lessee"), SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor (the "Lessor"), having an address at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and FIRST AMERICAN TITLE INSURANCE COMPANY (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Lessee, the Lessor and the Trustee have heretofore
entered into the Memorandum; and
WHEREAS, the Lessee, the Lessor and the Trustee now desire to amend the
Memorandum in certain respects to reflect the fact that the principal amount of
the obligations secured by the Memorandum has increased from Fifty Three Million
Dollars ($53,000,000) to Eighty One Million Five Hundred Thousand Dollars
($81,500,000), as hereinafter provided;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION I. Certain Terms. Capitalized terms used but not otherwise
defined in this Amendment have the meanings specified in Appendix A to the
Master Lease and Security Agreement dated as of October 18, 1996 (as amended by
that certain Master Amendment Agreement dated as of the date hereof, and as
further amended, restated, supplemented or otherwise modified from time to time,
the "Lease"), between the Lessee and the Lessor; and the rules of interpretation
specified in Appendix A to the Lease shall apply to this Amendment.
SECTION 2. Amendment to Section 8 of Memorandum. Section 8 of the
Memorandum is hereby amended by deleting the words "Fifty Three Million Dollars
($53,000,000)" appearing in the twentieth line of such Section, and replacing
such words with the words "Eighty One Million Five Hundred Thousand Dollars
($81,500,000)".
SECTION 3. Ratification of and References to Memorandum. This Amendment
shall be deemed to be an amendment to the Memorandum, and the Memorandum, as
amended hereby, is hereby
112
ratified, approved and confirmed in every respect. All references to the
Memorandum in any other document, instrument, agreement or writing shall
hereafter be deemed to refer to the Memorandum as amended hereby.
SECTION 4. Ratification of Lease. The terms and provisions of the Lease
are hereby ratified and confirmed and remain in full force and effect. In the
event of any conflict between the terms of the Lease and the terms of this
Amendment, the terms of the Lease shall control.
SECTION 7. Counterpart Execution. This Amendment may be executed in
any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
SECTION 9. GOVERNING LAW. THIS AMENDMENT, THE LEASE AND THE MEMORANDUM
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
THEREOF.
-2-
113
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
SYMANTEC CORPORATION, as the Lessee
By:__________________________
Name:
Title:
SUMITOMO BANK LEASING AND
FINANCE, INC., as the Lessor
By:_______________________
Name:
Title:
-3-
114
Consent of Lessee to Assignment of Lease and Rent
CONSENT AND ACKNOWLEDGMENT BY SYMANTEC CORPORATION
--------------------------------------------------
The undersigned hereby acknowledges receipt of a counterpart original
of, and consents to, the foregoing Assignment of Lease and Rent.
The foregoing is furnished for good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged by the undersigned, and
the undersigned understands and intends that the Lenders will rely on the
foregoing and that the undersigned will be legally bound by the foregoing. This
Consent and Acknowledgment shall inure to the benefit of the Lenders and their
respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Consent and Acknowledgment as of October __, 1996, pursuant to proper authority
duly granted.
SYMANTEC CORPORATION
By:
--------------------------
Name:
Title:
115
EXHIBIT A
TO ASSIGNMENT OF LEASE AND RENT
SUPPLEMENT NO. _____ TO
ASSIGNMENT OF LEASE AND RENT
THIS SUPPLEMENT NO. _____ (this "Supplement"), dated as of _________,
to the ASSIGNMENT OF LEASE AND RENT, dated as of October ___, 1996 (the
"Assignment"), made by SUMITOMO BANK LEASING AND FINANCE, INC., (the "Lessor"),
in favor of THE SUMITOMO BANK, LIMITED, SAN XXXXXXXXX XXXXXX, as Agent (in such
Capacity, the "Agent") for the Lenders. Capitalized terms used herein but not
otherwise defined have the meanings specified in the Assignment.
The parties hereto agree as follows:
1. The Property. In accordance with the Assignment, the Lessor
has executed this Supplement to subject the Master Lease, as supplemented by
the Lease Supplement attached as Schedule 1 hereto, to the Assignment. The
description of the Property is attached hereto as Schedule 2.
2. Integrated Assignment. Following the execution and delivery
of this Supplement, this Supplement, and all supplements previously delivered
under the Assignment, shall constitute a part of the Assignment.
3. Confirmation. Except as expressly supplemented hereby, the
provisions of the Assignment are and shall remain in full force and effect.
Further, the Lessor hereby reaffirms its obligations under the Assignment.
IN WITNESS WHEREOF, the Lessor has caused this supplement to be duly
executed as of the day and year first above written.
SUMITOMO BANK LEASING AND FINANCE,
INC., as Lessor
By:
-------------------------------
Name:
Title:
116
Schedule 1
[Lease Supplement]
117
Schedule 2
[Description of Property]
118
ALL-PURPOSE ACKNOWLEDGEMENT
State of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "Xxxx Xxx,
Notary Public
personally appeared _________________________________________________________,
[ ] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[ ] CORPORATE OFFICER(S) ______________________________
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
_______________________
_______________________
--------------------------------------------------------------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
DESCRIBED AT RIGHT:
119
ALL-PURPOSE ACKNOWLEDGEMENT
State of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "Xxxx Xxx,
Notary Public
personally appeared _________________________________________________________,
[ ] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[ ] CORPORATE OFFICER(S) ______________________________
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
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ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
DESCRIBED AT RIGHT:
120
EXHIBIT A TO
AMENDMENT NO. 1 TO LEASE SUPPLEMENT NO. 3
AND MEMORANDUM OF LEASE AND DEED OF TRUST
LEGAL DESCRIPTION OF LAND
Real Property in the City of Cupertino, County of Santa Xxxxx, State of
California, described as follows:
PARCEL ONE:
Lot 5, as shown on that certain Map entitled Tract No. 7953 Cupertino City
Center Phase III, which Map was filed for record in the office of the Recorder
of the County of Santa Xxxxx, State of California on February 27, 1987, in Book
571 of Maps, pages 36 and 37.
PARCEL TWO:
Easements as described in the Section entitled "Easements and Rights Reserved
for Owners" of the Article entitled "Easements and Rights of Entry" of the
Declaration of Covenants, Conditions, and Restrictions and Grant of Easement for
Cupertino City Center recorded October 9, 1985, in Book J482, page 1907, as
amended by that certain First Amendment to Declaration of Covenants, Conditions,
and Restrictions and Grant of Easements recorded September 2, 1987, in Book
K281, page 2071, each in the Official Records of Santa Xxxxx County, California.
PARCEL THREE:
Easements for parking, landscaping, support, settlement and encroachment as
granted to Cupertino City Center Buildings, a California Limited Partnership, in
the Grant of Easement (Cupertino City Center 5) recorded February 5, 1997 under
Series No. 13602286.
