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EXHIBIT 10.7
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$50,000,000
LEASE AGREEMENT
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
SOLECTRON GEORGIA CORPORATION
("SGC")
OCTOBER 20, 1998
(GWINNETT COUNTY, GEORGIA)
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PURSUANT TO AND AS MORE PARTICULARLY PROVIDED IN SUBPARAGRAPH 26 OF THIS LEASE,
THIS LEASE AND THE PURCHASE AGREEMENT REFERENCED HEREIN ARE TO CONSTITUTE, FOR
INCOME TAX PURPOSES ONLY, A FINANCING ARRANGEMENT OR CONDITIONAL SALE. AS
PROVIDED IN SUBPARAGRAPH 26 OF THIS LEASE, BNPLC AND SGC EXPECT THAT SGC (AND
NOT BNPLC) SHALL BE TREATED AS THE TRUE OWNER OF THE PROPERTY FOR INCOME TAX
PURPOSES, THEREBY ENTITLING SGC (AND NOT BNPLC) TO TAKE DEPRECIATION DEDUCTIONS
AND OTHER TAX BENEFITS AVAILABLE TO THE OWNER. 34083.1
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TABLE OF CONTENTS
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1. TERM...............................................................................2
(a) Scheduled Term................................................................2
(b) Automatic Termination as of the Base Rent Commencement Date Resulting
From an Election by SGC to Terminate the Purchase Option and SGC's Initial
Remarketing Rights and Obligations............................................3
(c) Election by BNPLC to Terminate After an Issue 97-10 Election..................3
(d) Election by SGC to Terminate After Accelerating the Designated Sale Date......3
(e) Extension of the Term.........................................................3
2. NO LEASE TERMINATION...............................................................4
(a) Status of Lease...............................................................4
(b) Waiver by SGC.................................................................4
3. USE AND CONDITION OF THE PROPERTY..................................................5
(a) Use...........................................................................5
(b) Condition of the Property.....................................................5
(c) Consideration for and Scope of Waiver.........................................5
4. RENT...............................................................................6
(a) Base Rent Generally...........................................................6
(b) Calculation of and Due Dates for Base Rent....................................6
(i) Amount Payable On the Base Rent Commencement Date.......................6
(ii) Determination of Subsequent Payment Due Dates...........................6
(iii) Base Rent Formula.......................................................6
(c) Additional Rent...............................................................7
(d) Commitment Fees...............................................................7
(e) Administrative Agency Fees....................................................7
(f) Issue 97-10 Prepayments.......................................................7
(g) No Demand or Setoff...........................................................8
(h) Default Interest and Order of Application.....................................8
5. PAYMENT OF EXECUTORY COSTS AND LOSSES RELATED TO THE PROPERTY......................8
(a) "Net" Lease Generally.........................................................8
(b) Impositions...................................................................8
(c) Increased Costs; Capital Adequacy Charges.....................................9
(d) SGC's Payment of Other Losses; General Indemnification........................9
(e) Exceptions and Qualifications to Indemnities.................................11
(f) Withholding Taxes............................................................12
6. CONSTRUCTION OF NEW IMPROVEMENTS AND ACQUISITION OF EXISTING IMPROVEMENTS.........13
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(a) Advances; Outstanding Construction Allowance.................................13
(b) Calculation of Carrying Costs................................................13
(i) Carrying Costs Formula.................................................13
(ii) Limits on the Amount of Carrying Costs.................................14
(c) SGC's Right to Control the Construction Project..............................14
(d) Landlord's Election to Continue Construction.................................14
(i) Take Control of the Property...........................................14
(ii) Continuation of Construction...........................................14
(iii) Arrange for Turnkey Construction.......................................15
(iv) Suspension or Termination of Construction..............................15
(e) Powers Coupled With an Interest..............................................16
(f) Completion Notice............................................................16
7. OTHER OBLIGATIONS OF AND LIMITED REPRESENTATIONS BY BNPLC.........................16
(a) Cooperation of BNPLC to Facilitate Construction and Development..............16
(b) Actions Permitted by SGC Without BNPLC's Consent.............................17
(c) Waiver of Landlord's Liens...................................................18
(d) Limited Representations by BNPLC Concerning Accounting Matters...............18
(e) Other Limited Representations by BNPLC.......................................19
(i) No Default or Violation................................................19
(ii) No Suits...............................................................19
(iii) Enforceability.........................................................20
(iv) Organization...........................................................20
(v) Not a Foreign Person...................................................20
(f) Keeping Proprietary Information Confidential.................................20
8. STATUS OF PROPERTY ACQUIRED WITH FUNDS PROVIDED BY BNPLC..........................20
9. ENVIRONMENTAL.....................................................................21
(a) Environmental Covenants by SGC...............................................21
(b) Right of BNPLC to do Remedial Work Not Performed by SGC......................22
(c) Environmental Inspections and Reviews........................................22
(d) Communications Regarding Environmental Matters...............................23
10. INSURANCE REQUIRED AND CONDEMNATION...............................................23
(a) Liability Insurance..........................................................23
(b) Property Insurance...........................................................24
(c) Failure to Obtain Insurance..................................................24
(d) Condemnation.................................................................24
11. APPLICATION OF INSURANCE AND CONDEMNATION PROCEEDS................................25
(a) Collection of Insurance and Condemnation Proceeds Generally..................25
(b) Administration of Remaining Proceeds; SGC's Obligation to Restore............25
(c) Special Provisions Concerning CMA Termination Events, Events of Default
and Qualified Payments.......................................................26
(d) Takings of All or Substantially All of the Property..........................26
(e) Waiver of Subrogation........................................................26
(ii)
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12. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF SGC
CONCERNING THE PROPERTY...........................................................27
(a) Compliance with Covenants and Laws...........................................27
(b) Operation of Property........................................................27
(c) Debts for Construction, Maintenance, Operation or Development................28
(d) Repair, Maintenance, Alterations and Additions...............................28
(e) Compliance With Permitted Encumbrances and Development Contracts.............28
(f) Modification of Permitted Encumbrances and Development Contracts.............29
(g) Books and Records Concerning the Property....................................29
13. ASSIGNMENT AND SUBLETTING BY SGC..................................................29
(a) BNPLC's Consent Required.....................................................29
(b) Standard for BNPLC's Consent to Assignments and Certain Other Matters........29
(c) Consent Not a Waiver.........................................................30
14. ASSIGNMENT BY BNPLC...............................................................30
(a) Restrictions on Transfers....................................................30
(b) Effect of Permitted Transfer or other Assignment by BNPLC....................30
15. BNPLC'S RIGHT OF ACCESS...........................................................30
16. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS OF SGC............................31
(a) Negative Covenants...........................................................31
(i) Multi employer ERISA Plans............................................31
(ii) Prohibited ERISA Transaction..........................................31
(b) Financial Statements; Required Notices; Certificates as to Default...........31
(c) No Default or Violation......................................................32
(d) No Suits.....................................................................32
(e) Enforceability...............................................................32
(f) Financial Matters............................................................33
(g) Organization.................................................................33
(h) ERISA........................................................................33
(i) Use of Proceeds..............................................................33
(j) Investment Company Act.......................................................34
(k) Omissions....................................................................34
(l) Not a Foreign Person.........................................................34
(m) Further Assurances...........................................................34
17. EVENTS OF DEFAULT.................................................................34
(a) Definition of Events of Default..............................................34
18. REMEDIES..........................................................................36
(a) Basic Remedies...............................................................36
(b) Notice Required So Long As SGC 's Purchase Option and Initial Remarketing
Rights and Obligations Continue Under the Purchase Agreement.................38
(c) Enforceability...............................................................38
(d) Remedies Cumulative..........................................................38
19. DEFAULT BY BNPLC..................................................................39
(iii)
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20. QUIET ENJOYMENT...................................................................39
21. SURRENDER UPON TERMINATION........................................................39
22. HOLDING OVER BY SGC...............................................................39
23. INDEPENDENT OBLIGATIONS EVIDENCED BY THE OTHER OPERATIVE DOCUMENTS................40
24. WAIVER OF JURY TRIAL..............................................................40
25. MISCELLANEOUS.....................................................................40
(a) Notices......................................................................40
(b) Severability.................................................................42
(c) No Merger....................................................................42
(d) No Implied Waiver............................................................42
(e) NO IMPLIED REPRESENTATIONS BY BNPLC..........................................42
(f) Entire Agreement.............................................................42
(g) Binding Effect...............................................................43
(h) Time is of the Essence.......................................................43
(i) Governing Law................................................................43
(j) Paragraph Headings...........................................................43
(k) Other Terms and References...................................................43
(l) Not a Partnership, Etc.......................................................43
26. INCOME TAX REPORTING..............................................................43
27. PROPRIETARY INFORMATION AND CONFIDENTIALITY.......................................44
28. USURY SAVINGS CLAUSE..............................................................45
EXHIBITS AND SCHEDULES
Exhibit A....... ..............................................Legal Description
Exhibit B.............................................Permitted Encumbrance List
Notice by SGC of Election Not to Make Construction-Period
Exhibit C......................................................Indemnity Payment
Exhibit D.........................Standard Notice of Request for Action by BNPLC
Exhibit E......................Notice of Request Requiring an Expedited Response
Exhibit F.................................................Insurance Requirements
Exhibit G.................................................Compliance Certificate
Exhibit H.............................................Libor Period Election Form
(iv)
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Schedule 1.........................................List of Development Documents
Schedule 2.............List of Claims Pending or Threatened Against the Property
List of Defined Terms.........................................Shared Definitions
(v)
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LEASE AGREEMENT
This LEASE AGREEMENT (this "LEASE"), by and between BNP LEASING
CORPORATION, a Delaware corporation ("BNPLC"), and SOLECTRON GEORGIA
CORPORATION, a Georgia corporation ("SGC"), is dated as of October 20, 1998, the
Effective Date. ("EFFECTIVE DATE" and other capitalized terms used and not
otherwise defined in this Lease are intended to have the meanings assigned to
them in the List of Defined Terms attached to and made a part of this Lease.)
RECITALS
Pursuant to the Existing Contract, which covers the Land described in
Exhibit A, BNPLC is acquiring the Land and any appurtenances thereto from Seller
contemporaneously with the execution of this Lease.
In anticipation of BNPLC's acquisition of the Land, BNPLC and SGC have
reached agreement as to the terms and conditions upon which BNPLC is willing to
lease the Land to SGC and to lease to SGC the improvements to be acquired
pursuant to the Existing Contract or constructed on the Land as hereinafter
provided, and by this Lease BNPLC and SGC desire to evidence such agreement.
GRANTING CLAUSES
In consideration of the rent to be paid and the covenants and agreements to
be performed by SGC, as hereinafter set forth, BNPLC does hereby LEASE, DEMISE
and LET unto SGC for the term hereinafter set forth all right, title and
interest of BNPLC, now owned or hereafter acquired, in and to:
(1) the Land;
(2) any and all Improvements acquired from Seller pursuant to the
Existing Contract, contemporaneously with the execution of this Lease or in
the future as provided in the Existing Contract;
(3) all easements and other rights appurtenant to the Land or to the
Improvements, whether now owned or hereafter acquired by BNPLC; and
(4) (A) any land lying within the right-of-way of any street, open or
proposed, adjoining the Land, (B) any sidewalks and alleys adjacent to the
Land and (C) any strips and gores between the Land and abutting land.
BNPLC's interest in all property described in clauses (1) through (4) above
are hereinafter referred to collectively as the "REAL PROPERTY".
To the extent, but only to the extent, that assignable rights or interests
in, to or under the following have been or will be acquired by BNPLC under the
Existing Contract or acquired by BNPLC pursuant to Paragraph 8 below, BNPLC also
hereby grants and assigns to SGC for the term of this Lease the right to use and
enjoy (and, in the case of contract rights, to enforce) such rights or interests
of BNPLC:
(a) any goods, equipment, furnishings, furniture and other tangible
personal property of whatever nature that are located on the Real Property
and all renewals or replacements of or substitutions for any of the
foregoing;
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(b) the benefits, if any, conferred upon the owner of the Real
Property by the Permitted Encumbrances (including the Ground Lease) and
Development Documents; and
(c) any permits, licenses, franchises, certificates, and other rights
and privileges against third parties (including the lessee under the Ground
Lease) related to the Real Property.
Such rights and interests of BNPLC, whether now existing or hereafter arising,
are hereinafter collectively called the "PERSONAL PROPERTY". The Real Property
and the Personal Property are hereinafter sometimes collectively called the
"PROPERTY."
However, the leasehold estate conveyed hereby and SGC's rights hereunder
are expressly made subject and subordinate to the terms and conditions of this
Lease, to the matters listed in Exhibit B and all other Permitted Encumbrances
(including the Ground Lease), and to any other claims or encumbrances not
constituting Liens Removable by BNPLC. FURTHER, NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS LEASE OR IN ANY OTHER OPERATIVE DOCUMENT:
(1) SGC SHALL NOT INTERFERE WITH (AND NO RIGHT OR ESTATE IN THE
PROPERTY IS GRANTED TO SGC HEREBY OR BY ANY OTHER OPERATIVE DOCUMENT THAT
WOULD ENTITLE SGC TO INTERFERE WITH) THE RIGHTS OF THE LESSEE UNDER THE
GROUND LEASE TO THE POSSESSION AND QUIET ENJOYMENT OF THE PORTION OF THE
LAND COVERED BY THE GROUND LEASE.
(2) BNPLC AND SGC INTEND THAT THE RIGHTS OF THE LESSEE UNDER THE
GROUND LEASE SHALL CONTINUE ON AND SUBJECT TO THE TERMS AND CONDITIONS SET
FORTH THEREIN, UNAFFECTED BY THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT OR
THE EXERCISE BY BNPLC OR SGC OF ANY RIGHTS OR REMEDIES PROVIDED HEREIN OR
IN THE OTHER OPERATIVE DOCUMENTS.
(3) IF, WHETHER BY SUBSEQUENT WRITTEN AGREEMENT OF BNPLC AND SGC OR
OTHERWISE, THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT SHOULD TERMINATE
DURING THE TERM OF THE GROUND LEASE, THE GROUND LEASE SHALL SURVIVE SUCH
TERMINATION.
GENERAL TERMS AND CONDITIONS
The Property is leased by BNPLC to SGC and is accepted and is to be used
and possessed by SGC upon and subject to the following terms and conditions:
1. TERM.
(a) Scheduled Term. This Lease is intended to be an effective and
binding obligation upon BNPLC and SGC throughout the period (the "TERM")
commencing on and including the Effective Date and ending on the first Business
Day of October, 2003, unless extended or sooner terminated as expressly herein
provided; however, the rights of SGC as the tenant hereunder to the use,
occupancy and possession of the Land and the Improvements will not commence
until the Base Rent Commencement Date. Prior to the Base Rent Commencement Date,
SGC will have the right under and pursuant to the rights and authority granted
to it by the Construction Management Agreement to the use, occupancy and
possession of the Land and the Improvements in its capacity
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as construction manager. Such right of SGC as construction manager will be to
the exclusion of BNPLC, but subject to the terms and conditions set forth
therein, herein and in the other Operative Documents, so long as the
Construction Management Agreement remains in force.
(b) Automatic Termination as of the Base Rent Commencement Date
Resulting From an Election by SGC to Terminate the Purchase Option and SGC's
Initial Remarketing Rights and Obligations. If SGC terminates the Purchase
Option and SGC's Initial Remarketing Rights and Obligations prior to the Base
Rent Commencement Date pursuant to subparagraph 4(B) of the Purchase Agreement,
then this Lease shall terminate automatically on the Base Rent Commencement
Date. Just as any such termination of the Purchase Option and SGC's Initial
Remarketing Rights and Obligations shall be subject to the condition (set forth
in subparagraph 4(B) of the Purchase Agreement) that SGC pay an Issue 97-10
Prepayment to BNPLC, so too will the termination of this Lease pursuant to this
subparagraph be subject the condition that SGC make the Issue 97-10 Prepayment
to BNPLC.
(c) Election by BNPLC to Terminate After an Issue 97-10 Election.
BNPLC shall be entitled to terminate this Lease, as BNPLC deems appropriate in
its sole and absolute discretion, at any time after receiving a notice given by
SGC to make or attempt to make any Issue 97-10 Election. Upon any termination of
this Lease by BNPLC pursuant to this subparagraph, SGC must pay to BNPLC an
Issue 97-10 Prepayment.
(d) Election by SGC to Terminate After Accelerating the Designated
Sale Date. Provided SGC has not made any Issue 97-10 Election, SGC shall be
entitled to accelerate the Designated Sale Date (and thus accelerate the
purchase of BNPLC's interest in the Property by SGC or by an Applicable
Purchaser pursuant to the Purchase Agreement) by sending a notice to BNPLC as
provided in clause (2) of the definition of "Designated Sale Date" in the List
of Defined Terms. In the event, because of SGC's election to so accelerate the
Designated Sale Date or for any other reason, the Designated Sale Date occurs
before the end of the scheduled Term, SGC may terminate this Lease on or after
the Designated Sale Date; provided, however, as a condition to any such
termination by SGC, SGC must have done the following prior to the termination:
(i) purchased or caused an Applicable Purchaser to purchase the
Property pursuant to the Purchase Agreement and satisfied all of SGC's
other obligations under the Purchase Agreement;
(ii) paid to BNPLC all Base Rent, all Commitment Fees, all
Administrative Agency Fees and all other Rent due on or before or accrued
through the Designated Sale Date; and
(iii) paid any Breakage Costs caused by BNPLC's sale of the Property
pursuant to the Purchase Agreement.
(e) Extension of the Term. The Term may be extended at the option of
SGC for two successive periods of five (5) years each; provided, however, that
prior to any such extension the following conditions must have been satisfied:
(A) at least one hundred eighty (180) days prior to the commencement of any such
extension, BNPLC and SGC must have agreed in writing upon, and received the
written consent and approval of BNPLC's Parent and all other Participants to (1)
a corresponding extension not only to the date for the expiration of the Term
specified above in this Section, but also to the date specified in clause (1) of
the definition of Designated Sale Date in the List of Defined Terms attached
hereto, and (2) an adjustment to the Rent that SGC will be required to pay for
the extension, it being expected that the Rent for the extension may be
different than the Rent required for the original Term, and it being understood
that the Rent for any extension must in all events be satisfactory to both BNPLC
and SGC, each in its sole and absolute discretion; (B) there must be no Event of
Default continuing hereunder at the time of SGC's exercise of its option to
extend; (C) prior to any such extension, SGC must have
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completed the Construction Project in accordance with the Construction
Management Agreement and must not have made any Issue 97-10 Election; and (D)
immediately prior to any such extension, this Lease must remain in effect. With
respect to the condition that BNPLC and SGC must have agreed upon the Rent
required for any extension of the Term, neither SGC nor BNPLC is willing to
submit itself to a risk of liability or loss of rights hereunder for being
judged unreasonable. Accordingly, both SGC and BNPLC hereby disclaim any
obligation express or implied to be reasonable in negotiating the Rent for any
such extension. Subject to the changes to the Rent payable during any extension
of the Term as provided in this Paragraph, if SGC exercises its option to extend
the Term as provided in this Paragraph, this Lease shall continue in full force
and effect, and the leasehold estate hereby granted to SGC shall continue
without interruption and without any loss of priority over other interests in or
claims against the Property that may be created or arise after the date hereof
and before the extension.
2. NO LEASE TERMINATION.
(a) Status of Lease. Except as expressly provided herein, this Lease
shall not terminate, nor shall SGC have any right to terminate this Lease, nor
shall SGC be entitled to any abatement of the Rent, nor shall the obligations of
SGC under this Lease be excused, for any reason whatsoever, including any of the
following: (i) any damage to or the destruction of all or any part of the
Property from whatever cause, (ii) the taking of the Property or any portion
thereof by eminent domain or otherwise for any reason, (iii) the prohibition,
limitation or restriction of SGC's use of all or any portion of the Property or
any interference with such use by governmental action or otherwise, (iv) any
eviction of SGC or of anyone claiming through or under SGC (provided, that if
SGC is wrongfully evicted by BNPLC or by any third party lawfully exercising its
rights under a Lien Removable by BNPLC, then SGC will have the remedies
described in Xxxxxxxxx 00 xxxxx), (x) any default on the part of BNPLC under
this Lease or under any other agreement to which BNPLC and SGC are parties, (vi)
the inadequacy in any way whatsoever of the design, construction, assembly or
installation of any improvements, fixtures or tangible personal property
included in the Property, it being understood that BNPLC has not made, does not
make and will not make any representation express or implied as to the adequacy
thereof, (vii) any latent or other defect in the Property or any change in the
condition thereof or the existence with respect to the Property of any
violations of Applicable Laws, (viii) any breach by Seller of the surviving
provisions of the Existing Contract, (ix) any breach of the Ground Lease by the
lessee thereunder, or (x) any other cause whether similar or dissimilar to the
foregoing. It is the intention of the parties hereto that the obligations of SGC
hereunder shall be separate and independent of the covenants and agreements of
BNPLC, that the Base Rent and all other sums payable by SGC hereunder shall
continue to be payable in all events and that the obligations of SGC hereunder
shall continue unaffected, unless the requirement to pay or perform the same
shall have been terminated or limited pursuant to an express provision of this
Lease.
(b) Waiver by SGC. Without limiting the foregoing, SGC waives to the
extent permitted by Applicable Laws, except as otherwise expressly provided
herein, all rights to which SGC may now or hereafter be entitled by law
(including any such rights arising because of any implied "warranty of
suitability" or other warranty under Applicable Laws) (i) to quit, terminate or
surrender this Lease or the Property or any part thereof or (ii) to any
abatement, suspension, deferment or reduction of the Rent.
However, nothing in this Paragraph 2 shall be construed as a waiver by SGC
of any right SGC may have at law or in equity to the following remedies, whether
because of BNPLC's failure to remove a Lien Removable by BNPLC or because of any
other default by BNPLC under this Lease that continues beyond the period for
cure provided in Paragraph 19: (i) the recovery of monetary damages, (ii)
injunctive relief in case of the violation, or attempted or threatened
violation, by BNPLC of any of the express covenants, agreements, conditions or
provisions of this Lease which are binding upon BNPLC (including the
confidentiality provisions set forth in
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subparagraph 7.(f) below), or (iii) a decree compelling performance by BNPLC of
any of the express covenants, agreements, conditions or provisions of this Lease
which are binding upon BNPLC.
3. USE AND CONDITION OF THE PROPERTY.
(a) Use. Subject to the Permitted Encumbrances, the Development
Documents and the terms hereof, SGC may use and occupy the Property during the
Term, but only for the following purposes and other lawful purposes incidental
thereto:
(i) manufacturing, engineering, assembly, warehousing and
laboratory-based research and development of circuit boards,
computer-related and other electronic products;
(ii) administrative and office space;
(iii) cafeteria, library, and other support function uses that SGC may
provide to its employees; and
(iv) other lawful uses approved in advance and in writing by BNPLC,
which approval will not be unreasonably withheld after completion of the
Construction Project (but SGC acknowledges that BNPLC's withholding of such
approval shall be reasonable if BNPLC determines in good faith that (i)
giving the approval may materially increase BNPLC's risk of liability for
any existing or future environmental problem, or (ii) giving the approval
is likely to substantially increase BNPLC's administrative burden of
complying with or monitoring SGC's compliance with the requirements of this
Lease or other Operative Documents).
Although the term "products" in this subparagraph may include products designed
to detect, monitor, neutralize, handle or process Hazardous Substances, the use
of the Property by SGC shall not include bringing Hazardous Substances onto the
Property for the purpose of testing or demonstrating any such products.
(b) Condition of the Property. SGC ACKNOWLEDGES THAT IT HAS CAREFULLY
AND FULLY INSPECTED THE PROPERTY AND ACCEPTS THE PROPERTY IN ITS PRESENT STATE,
AS IS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE
CONDITION OF SUCH PROPERTY OR AS TO THE USE WHICH MAY BE MADE THEREOF. SGC ALSO
ACCEPTS THE PROPERTY WITHOUT ANY COVENANT, REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, BY BNPLC OR ITS AFFILIATES REGARDING THE TITLE THERETO OR THE RIGHTS
OF ANY PARTIES IN POSSESSION OF ANY PART THEREOF, EXCEPT AS EXPRESSLY SET FORTH
IN PARAGRAPH 20. BNPLC SHALL NOT BE RESPONSIBLE FOR ANY LATENT OR OTHER DEFECT
OR CHANGE OF CONDITION IN THE LAND, IMPROVEMENTS, FIXTURES AND PERSONAL PROPERTY
FORMING A PART OF THE PROPERTY OR FOR ANY VIOLATIONS WITH RESPECT THERETO OF
APPLICABLE LAWS. NOR SHALL BNPLC BE REQUIRED TO FURNISH TO SGC ANY FACILITIES OR
SERVICES OF ANY KIND, INCLUDING WATER, STEAM, HEAT, GAS, AIR CONDITIONING,
ELECTRICITY, LIGHT OR POWER.
(c) Consideration for and Scope of Waiver. The provisions of
subparagraph 3.(b) above have been negotiated by BNPLC and SGC after due
consideration for the Rent payable hereunder and are intended to be a complete
exclusion and negation of any representations or warranties of BNPLC or its
Affiliates, express or implied, with respect to the Property that may arise
pursuant to any law now or hereafter in effect or otherwise, except as expressly
set forth herein.
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However, such exclusion of representations and warranties by BNPLC and its
Affiliates is not intended to impair any representations or warranties made by
other parties, including any architects, engineers or contractors engaged to
work on the Construction Project, the benefit of which is to pass to SGC during
the Term because of the definition of Personal Property and Property above.
4. RENT.
(a) Base Rent Generally. On the Base Rent Commencement Date and on
each Base Rent Date through the end of the Term, SGC shall pay BNPLC rent ("BASE
RENT"). Each payment of Base Rent must be received by BNPLC no later than 10:00
a.m. (Central time) on the date it becomes due; if received after 10:00 a.m.
(Central time) it will be considered for purposes of this Lease as received on
the next following Business Day. BNPLC shall notify SGC of the amount of each
payment of Base Rent (calculated as provided in subparagraph 4.(b)) at least
three days before the date upon which it first becomes due. However, any failure
by BNPLC to so notify SGC shall not constitute a waiver of BNPLC's right to
payment, but absent such notice SGC shall not be in default for any underpayment
resulting therefrom if SGC, in good faith, reasonably estimates the payment
required, makes a timely payment of the amount so estimated and corrects any
underpayment within three Business Days after being notified by BNPLC of the
underpayment.
(b) Calculation of and Due Dates for Base Rent. Payments of Base Rent
shall be calculated and become due as follows:
(i) Amount Payable On the Base Rent Commencement Date. The Base Rent
payable on the Base Rent Commencement Date shall equal the difference (if
any) between (a) the total amount that would have been added to the
Outstanding Construction Allowance as Carrying Costs on such date if not
for the limit set forth in subparagraph 6.(b)(ii), and (b) the Carrying
Costs actually added on such date to the Outstanding Construction
Allowance.
(ii) Determination of Subsequent Payment Due Dates. For all Base Rent
Periods subject to a LIBOR Period Election of one month or three months,
Base Rent shall be due in one installment on the Base Rent Date upon which
the Base Rent Period ends. For Base Rent Periods subject to a LIBOR Period
Election of six months, Base Rent shall be payable in two installments,
with the first installment becoming due on the Base Rent Date that occurs
on the first Business Day of the third calendar month following the
commencement of such Base Rent Period, and with the second installment
becoming due on the Base Rent Date upon which the Base Rent Period ends.
Notwithstanding the foregoing, if SGC or any Applicable Purchaser purchases
BNPLC's interest in the Property pursuant to the Purchase Agreement, any
accrued unpaid Base Rent and all outstanding Additional Rent shall be due
on the date of purchase in addition to the purchase price and other sums
due BNPLC under the Purchase Agreement.
(iii) Base Rent Formula. Each installment of Base Rent payable for any
Base Rent Period shall equal:
o Stipulated Loss Value on the first day of such Base Rent Period,
times
o the sum of (a) the Effective Rate with respect to such Base Rent
Period, plus (b) the Spread for the period from and including the
preceding Base Rent Date to but not including the Base Rent Date
upon which the installment is due, times
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o the number of days in the period from and including the preceding
Base Rent Date to but not including the Base Rent Date upon which
the installment is due, divided by
o three hundred sixty.
Assume, only for the purpose of illustration: that prior to the first
day of a Base Rent Period subject to a LIBOR Period Election of one month
the Construction Allowance has been fully funded, but a total of
$35,000,000 of Qualified Payments have been received by BNPLC, leaving a
Stipulated Loss Value of $15,000,000; that the Effective Rate for such Base
Rent Period is 6%; that the Spread for such period is thirty-two and
one-half basis points (32.5/100 of 1%); and that such Base Rent Period
contains exactly thirty days. Under such assumptions, the Base Rent for the
hypothetical Base Rent Period will equal:
$15,000,000 x (6% + .325%) x 30/360 = $79,062.50
(c) Additional Rent. All amounts which SGC is required to pay to or
on behalf of BNPLC pursuant to this Lease, together with every charge, premium,
interest and cost set forth herein which may be added for nonpayment or late
payment thereof, shall constitute rent (all such amounts, other than Base Rent,
are herein called "ADDITIONAL RENT", and together Base Rent and Additional Rent
are herein sometimes called "RENT").
(d) Commitment Fees. For each Construction Period SGC shall pay BNPLC
a fee (a "COMMITMENT FEE") equal to:
o twelve and one-half basis points (12.5/100 of 1%), times an
amount equal to:
(i) the Maximum Construction Allowance, less
(ii) the Funded Construction Allowance on the first day of such
Construction Period; times
o the number of days in such Construction Period; divided by
o three hundred sixty.
SGC shall pay Commitment Fees in arrears on the first Business Day of February,
May, August and November of each calendar year, beginning with November 1, 1998
and continuing regularly throughout the Term so long as Commitment Fees have
accrued and remain unpaid. However, if any Commitment Fees shall have accrued
and remain unpaid on the date BNPLC's interest in the Property is sold pursuant
to the Purchase Agreement, such accrued unpaid Commitment Fees shall be due on
the date of the sale.
(e) Administrative Agency Fees. Upon execution and delivery of this
Lease by BNPLC, and again on each anniversary of the date hereof, SGC shall pay
to BNPLC an administrative fee (an "ADMINISTRATIVE AGENCY FEE") in the amount
set forth in the letter agreement dated as of July 22, 1998 between BNPLC, SGC
and Guarantor and other affiliates of SGC. Each Administrative Agency Fee shall
represent Additional Rent for the Construction Period or Base Rent Period during
which it is paid.
(f) Issue 97-10 Prepayments. Following any Issue 97-10 Election or
any CMA Termination Event under (and as defined in) the Construction Management
Agreement, SGC shall make an Issue 97-10 Prepayment to BNPLC within three
Business Days after receipt of any demand for such a payment. BNPLC may
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demand an Issue 97-10 Prepayment pursuant to this subparagraph at any time and
from time to time (as Project Costs increase) after any Issue 97-10 Election or
CMA Termination Event.
(g) No Demand or Setoff. Except as expressly provided herein, SGC
shall pay all Rent without notice or demand and without counterclaim, deduction,
setoff or defense.
(h) Default Interest and Order of Application. All Rent shall bear
interest, if not paid when first due, at the Default Rate in effect from time to
time from the date due until paid; provided, that nothing herein contained will
be construed as permitting the charging or collection of interest at a rate
exceeding the maximum rate permitted under Applicable Laws. Subject to any
requirements of Applicable Law, BNPLC shall be entitled to apply any amounts
paid by or on behalf of SGC against any Rent then past due in the order the same
became due or in such other order as BNPLC may elect.
5. PAYMENT OF EXECUTORY COSTS AND LOSSES RELATED TO THE PROPERTY.
(a) "Net" Lease Generally. Subject only to the exceptions listed in
subparagraph 5.(e) below, it is the intention of BNPLC and SGC that the Base
Rent, Commitment Fees, Administrative Agency Fees and other payments herein
specified shall be absolutely net to BNPLC and that SGC shall pay all costs,
expenses and obligations of every kind relating to the Property or this Lease
which may arise or become due, including: (i) any taxes payable by virtue of
BNPLC's receipt of amounts paid to or on behalf of BNPLC in accordance with this
Paragraph 5; (ii) any amount for which BNPLC is or becomes liable with respect
to the Permitted Encumbrances or the Development Documents; and (iii) any costs
incurred by BNPLC (including Attorneys' Fees) because of BNPLC's acquisition or
ownership of any interest in the Property or because of this Lease or the
transactions contemplated herein.
(b) Impositions. Subject only to the exceptions listed in
subparagraph 5.(e) below, SGC shall pay or cause to be paid prior to delinquency
all ad valorem taxes assessed against the Property and other Impositions. If
requested by BNPLC from time to time, SGC shall furnish BNPLC with receipts
showing payment of all Impositions at least ten days prior to the applicable
default date therefor.
Notwithstanding the foregoing, SGC may in good faith, by appropriate
proceedings, contest the validity, applicability or amount of any asserted
Imposition, and pending such contest SGC shall not be deemed in default
hereunder because of the Imposition if (1) SGC diligently prosecutes such
contest to completion in a manner reasonably satisfactory to BNPLC, and (2) SGC
promptly causes to be paid any amount adjudged by a court of competent
jurisdiction to be due, with all costs, penalties and interest thereon, promptly
after such judgment becomes final; provided, however, in any event each such
contest shall be concluded and the contested Impositions must be paid by SGC
prior to the earlier of (i) the date that any criminal action is overtly
threatened or instituted against BNPLC or its directors, officers or employees
because of the nonpayment thereof or (ii) the date any writ or order is issued
under which any property owned or leased by BNPLC (including the Property) may
be seized or sold or any other action is taken or overtly threatened against
BNPLC or against any property owned or leased by BNPLC because of the nonpayment
thereof, (iii) any Designated Sale Date upon which, for any reason, SGC or an
Affiliate of SGC or any Applicable Purchaser shall not purchase BNPLC's interest
in the Property pursuant to the Purchase Agreement for a net price to BNPLC
(when taken together with any additional payments made by SGC pursuant to
Paragraph 1(A)(2) of the Purchase Agreement, in the case of a purchase by an
Applicable Purchaser) equal to Stipulated Loss Value, or (iv) any date upon
which the Construction Management Agreement or this Lease or SGC's Initial
Remarketing Rights and Obligations may be terminated because of or following any
Issue 97-10 Election.
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(c) Increased Costs; Capital Adequacy Charges. Subject only to the
exceptions listed in subparagraph 5.(e) below:
(i) If, after the Effective Date, there shall be any increase in the
cost to BNPLC's Parent or any other Participant agreeing to make or making,
funding or maintaining advances to BNPLC in connection with the Property
because of any Banking Rules Change, then SGC shall from time to time, pay
to BNPLC for the account of BNPLC's Parent or such other Participant, as
the case may be, additional amounts sufficient to compensate BNPLC's Parent
or the Participant for such increased cost. A certificate as to the amount
of such increased cost, submitted to BNPLC and SGC by BNPLC's Parent or the
other Participant, shall be conclusive and binding upon SGC, absent clear
and demonstrable error.
(ii) BNPLC's Parent or any other Participant may demand additional
payments ("CAPITAL ADEQUACY CHARGES") if BNPLC's Parent or the other
Participant determines that any Banking Rules Change affects the amount of
capital to be maintained by it and that the amount of such capital is
increased by or based upon the existence of advances made or to be made to
BNPLC to permit BNPLC to maintain BNPLC's investment in the Property or to
make Construction Advances. To the extent that BNPLC's Parent or another
Participant demands Capital Adequacy Charges as compensation for the
additional capital requirements reasonably allocable to such investment or
advances, SGC shall pay to BNPLC for the account of BNPLC's Parent or the
other Participant, as the case may be, the amount so demanded.
(iii) Any amount to be paid by SGC under this subparagraph 5.(c) shall
be due within ten days after a demand for such payment is made upon SGC.
(d) SGC's Payment of Other Losses; General Indemnification. Subject
only to the exceptions listed in subparagraph 5.(e) below:
(i) All Losses (including Environmental Losses) asserted against or
incurred or suffered by BNPLC or other Interested Parties at any time and
from time to time by reason of, in connection with or arising out of (A)
their ownership or alleged ownership of any interest in the Property or the
Rents, (B) the use and operation of the Property, (C) the negotiation or
administration of this Lease or other Operative Documents, (D) the making
of Funding Advances, (E) any Construction Project, (F) the breach by SGC of
this Lease or any other document executed by SGC in connection herewith,
(G) any failure of the Property or SGC itself to comply with Applicable
Laws, (H) Hazardous Substance Activities, including those occurring prior
to the Effective Date, (I) any bodily or personal injury or death or
property damage occurring in or upon or in the vicinity of the Property
through any cause whatsoever, or (J) the Permitted Encumbrances (including
the Ground Lease and the surviving provisions of the Existing Contract),
shall be paid by SGC, and SGC shall indemnify and defend BNPLC and other
Interested Parties from and against all such Losses. (However, the
indemnity in the preceding sentence shall not be construed to make SGC
liable to both BNPLC and any Participant or other party claiming through
BNPLC for the same costs, expenses or damages. Nor will such indemnity be
construed to make SGC liable for any allocation of general overhead or
internal administrative expenses of BNPLC, BNPLC's Parent or any other
Interested Party except to the extent allowed by subparagraph 5.(c)(i)
because of a Banking Rules Change after the date of this Lease. Nor will
such indemnity be construed to limit SGC's right to reimbursement for
Reimbursable Construction-Period Costs under the Construction Management
Agreement.)
(ii) THE INDEMNITIES AND RELEASES PROVIDED HEREIN FOR THE BENEFIT OF
BNPLC AND OTHER INTERESTED PARTIES, INCLUDING THE INDEMNITY SET FORTH
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THE PRECEDING SUBPARAGRAPH 5.(d)(i), SHALL APPLY EVEN IF AND WHEN THE
SUBJECT MATTERS OF THE INDEMNITIES AND RELEASES ARE CAUSED BY OR ARISE OUT
OF THE NEGLIGENCE OR STRICT LIABILITY OF BNPLC OR ANOTHER INTERESTED PARTY.
FURTHER, SUCH INDEMNITIES AND RELEASES WILL APPLY EVEN IF INSURANCE
OBTAINED BY SGC OR REQUIRED OF SGC BY THIS LEASE OR OTHER OPERATIVE
DOCUMENTS IS NOT ADEQUATE TO COVER LOSSES AGAINST OR FOR WHICH THE
INDEMNITIES AND RELEASES ARE PROVIDED. SGC'S LIABILITY, HOWEVER, FOR ANY
FAILURE TO OBTAIN INSURANCE REQUIRED BY THIS LEASE OR OTHER OPERATIVE
DOCUMENTS WILL NOT BE LIMITED TO LOSSES AGAINST WHICH INDEMNITIES ARE
PROVIDED HEREIN, IT BEING UNDERSTOOD THAT SUCH INSURANCE IS INTENDED TO DO
MORE THAN PROVIDE A SOURCE OF PAYMENT FOR LOSSES AGAINST WHICH BNPLC AND
OTHER INTERESTED PARTIES ARE ENTITLED TO INDEMNIFICATION BY THIS LEASE.
(iii) Costs and expenses for which SGC shall be responsible pursuant
to this subparagraph 5.(d) will include appraisal fees, filing and
recording fees, inspection fees, survey fees, taxes, brokerage fees and
commissions, abstract fees, title policy fees, Uniform Commercial Code
search fees, escrow fees and Attorneys' Fees incurred by BNPLC with respect
to the Property, whether such costs and expenses are incurred at the time
of execution of this Lease or at any time during the Term. Such costs and
expenses will also include Attorneys' Fees or other costs incurred to
evaluate lien releases and other information submitted by SGC with requests
for Construction Advances.
(iv) SGC's obligations under this subparagraph 5.(d) shall survive the
termination or expiration of this Lease. Any amount to be paid by SGC under
this subparagraph 5.(d) shall be due within ten days after a demand for
such payment is made upon SGC.
(v) If an Interested Party notifies SGC of any claim or proceeding
included in, or any investigation or allegation concerning, Losses for
which SGC is responsible pursuant to this subparagraph 5.(d), SGC shall
assume on behalf of the Interested Party and conduct with due diligence and
in good faith the investigation and defense thereof and the response
thereto with counsel selected by SGC, but reasonably satisfactory to the
Interested Party; provided, that the Interested Party shall have the right
to be represented by advisory counsel of its own selection and at its own
expense; and provided further, that if any such claim, proceeding,
investigation or allegation involves both SGC and the Interested Party and
the Interested Party shall have been advised in writing by counsel that
there may be legal defenses available to it which are inconsistent with
those available to SGC, then the Interested Party shall have the right to
select separate counsel to participate in the investigation and defense of
and response to such claim, proceeding, investigation or allegation on its
own behalf, and SGC shall pay or reimburse the Interested Party for all
Attorney's Fees incurred by the Interested Party because of the selection
of such separate counsel. If SGC fails to assume promptly (and in any event
within fifteen days after being notified of the applicable claim,
proceeding, investigation or allegation) the defense of the Interested
Party, then the Interested Party may contest (or settle, with the prior
written consent of SGC, which consent will not be unreasonably withheld)
the claim, proceeding, investigation or allegation at SGC's expense using
counsel selected by the Interested Party. Moreover, if any such failure by
SGC continues for thirty days or more after SGC is notified of any such
claim, proceeding, investigation or allegation, the Interested Party may
elect not to contest or continue contesting the same and instead settle (or
pay in full) all claims related thereto without SGC's consent and without
releasing SGC from any obligations to the Interested Party under this
subparagraph 5.(d) so long as, in the written opinion of reputable counsel
to the Interested Party, the settlement (or payment in full) is clearly
advisable.
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(e) Exceptions and Qualifications to Indemnities.
(i) BNPLC acknowledges and agrees that nothing in the preceding
subparagraphs of this Paragraph 5 shall be construed to require SGC to pay
or reimburse an Interested Party for: (1) Excluded Taxes; (2) Losses
incurred or suffered by such Interested Party that are proximately caused
by (and attributed by any applicable principles of comparative fault to)
the Established Misconduct of that Interested Party; (3) withholding of
taxes permitted by subparagraph 5.(f); (4) general overhead or internal
administrative expenses of BNPLC or any other Interested Party, except to
the extent allowed by subparagraph 5.(c)(i) because of changes described in
that subparagraph after the Effective Date; (5) Losses incurred or suffered
by Participants in connection with their negotiation or execution of the
Participation Agreement (or supplements making them parties thereto) or in
connection with any due diligence they may undertake before entering into
the Participation Agreement; (6) Losses incurred or suffered by any
Interested Party after, and not proximately caused by events or
circumstances that actually or allegedly occurred or existed on or before,
the later of the dates upon which (A) this Lease terminates or expires, or
(B) SGC surrenders possession of the Property. Further, without limiting
BNPLC's rights (as provided in other provisions of this Lease and other
Operative Documents) to include the following in the calculation of the
Outstanding Construction Allowance, Stipulated Loss Value, the Break Even
Price and the Maximum Permitted Prepayment (as applicable) or to collect
Base Rent, Issue 97-10 Prepayments, a Supplemental Payment and other
amounts, the calculation of which depends upon the Outstanding Construction
Allowance, Stipulated Loss Value, the Break Even Price and the Maximum
Permitted Prepayment, BNPLC acknowledges and agrees that nothing in
subparagraph 5.(a) or the preceding subparagraphs of this Paragraph 5 shall
be construed to require SGC to pay or reimburse an Interested Party for:
a) costs paid by BNPLC with the proceeds of the Initial Funding
Advance as part of the Transaction Expenses; or
b) Construction Advances, including costs and expenditures
incurred or paid by or on behalf of BNPLC after any Landlord's
Election to Continue Construction, to the extent that such costs and
expenditures are considered to be Construction Advances pursuant to
subparagraph 6.(d).
(ii) Notwithstanding anything to the contrary in the preceding
subparagraphs of this Paragraph 5, SGC's liability for payments required by
the preceding subparagraphs of this Paragraph 5, and not excused by the
preceding subparagraph 5.(e)(i), prior to substantial completion of the
Construction Project ("CONSTRUCTION-PERIOD INDEMNITY PAYMENTS") shall be
subject to the following provisions:
a) SGC may decline to pay any Construction-Period Indemnity
Payments other than the following (it being understood that SGC's
payment of the following Construction-Period Indemnity Payments shall
not be subject to any abatement or deferral by anything contained in
this subparagraph 5.(e)(ii)):
(1) Construction-Period Indemnity Payments eligible for
reimbursement to SGC under the terms and conditions of the
Construction Management Agreement; and
(2) Construction-Period Indemnity Payments that constitute
Absolute SGC Construction Obligations.
b) Any Construction-Period Indemnity Payment SGC is excused
from paying by this
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subparagraph 5.(e)(ii), together with interest thereon at the Default
Rate, will be included in the calculation of the Break Even Price
under (and as defined in) the Purchase Agreement.
(iii) Further, if an Interested Party receives a written notice of
Losses that such Interested Party believes are covered by the indemnity in
subparagraph 5.(d)(i), then such Interested Party will be expected to
promptly furnish a copy of such notice to SGC. The failure to so provide a
copy of the notice to SGC shall not excuse SGC from its obligations under
subparagraph 5.(d)(i); provided, that if SGC is unaware of the matters
described in the notice and such failure renders unavailable defenses that
SGC might otherwise assert, or precludes actions that SGC might otherwise
take, to minimize its obligations, then SGC shall be excused from its
obligation to indemnify such Interested Party (and any Affiliate of such
Interested Party) against the Losses, if any, which would not have been
incurred or suffered but for such failure. For example, if BNPLC fails to
provide SGC with a copy of a notice of an obligation covered by the
indemnity set out in subparagraph 5.(d)(i) and SGC is not otherwise already
aware of such obligation, and if as a result of such failure BNPLC becomes
liable for penalties and interest covered by the indemnity in excess of the
penalties and interest that would have accrued if SGC had been promptly
provided with a copy of the notice, then SGC will be excused from any
obligation to BNPLC (or any Affiliate of BNPLC) to pay the excess.
(f) Withholding Taxes. Notwithstanding anything else to the contrary
in this Paragraph 5, but subject to the provisions of this subparagraph 5.(f),
to the extent required by law SGC may deduct United States and Georgia
withholding taxes imposed as a way of collecting or in lieu of Excluded Taxes on
payments of Base Rent, Commitment Fees, Administrative Agency Fees, any interest
payable pursuant to subparagraph 4.(h) or any additional compensation claimed by
BNPLC pursuant to subparagraph 5.(c)(ii) (collectively, "INCOME PAYMENTS") from
Income Payments, without obligation to gross up, indemnify or otherwise increase
payments in consequence thereof. Such withholding, without obligation to gross
up, indemnify or otherwise increase payments in consequence thereof, will be
permitted if, but only if:
(i) in the case of withholding for Excluded Taxes imposed by the
United States of America, the Person entitled to receive Income Payments
(whether BNPLC, as the original landlord named herein, or an assignee of
the original landlord's rights hereunder, a "PAYEE") is not exempt from
withholding by reason of having been organized under the laws of the
United States of America or any State thereof, and such Person shall not
have provided SGC with three counterparts of each of the forms
prescribed by the Internal Revenue Service (Form 1001 or 4224, or
successor forms, as the case may be) claiming for Payee an exemption
from federal withholding on all Income Payments;
(ii) in the case of withholding for Excluded Taxes imposed by the
State of Georgia, the Payee is not exempt from withholding by reason of
having been qualified to do business in Georgia or otherwise, and such
Person shall not have provided SGC with three (3) counterparts of the
forms (if any) prescribed by the Georgia taxing authorities claiming for
Payee an exemption from Georgia withholding on all Income Payments;
(iii) at least thirty days prior to any withholding from or
reduction of Income Payments, SGC shall have notified the Payee that SGC
believes the withholding is required and permitted by this subparagraph;
and
(iv) the withholding taxes on the Income Payments would have been
assessed even if the applicable taxing authorities had characterized the
transactions evidenced by this Lease and the Purchase Agreement as a
financing arrangement.
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Any Payee exempt from withholding for Excluded Taxes imposed by the United
States of America by reason of having been organized under the laws of the
United States of America or any State thereof shall provide to SGC statements
conforming to the requirements of Treasury Regulation 1.1441-5(b) or any
successor thereto (which statements may be made on a Form W-9). If SGC shall
ever be required to pay Excluded Taxes that BNPLC has failed to pay when due
because of SGC's failure to withhold from payments made under this Lease, BNPLC
shall reimburse SGC for such Excluded Taxes and for any penalties or interest
thereon charged to SGC. Nothing in this subparagraph 5.(f) shall excuse SGC from
its obligation under subparagraph 5.(c)(i) to compensate BNPLC for increased
costs attributable to any change in law relating to withholding taxes after the
Effective Date.
6. CONSTRUCTION OF NEW IMPROVEMENTS AND ACQUISITION OF EXISTING
IMPROVEMENTS.
(a) Advances; Outstanding Construction Allowance. The Construction
Management Agreement entitles SGC to receive from BNPLC - subject to the terms
and conditions set forth in the Construction Management Agreement - Construction
Advances on Advance Dates from time to time to pay or reimburse SGC for the
costs of acquiring existing Improvements after the Effective Date pursuant to
the Existing Contract, for the costs of the Construction Project and for certain
other costs described in the Construction Management Agreement. In addition,
BNPLC may from time to time make expenditures or incur costs constituting
Construction Advances after a Landlord's Election to Continue Construction as
described in subparagraph 6.(d). As used herein, references to the "OUTSTANDING
CONSTRUCTION ALLOWANCE" mean the difference on the date in question (but not
less than zero) of (A) the total Construction Advances made by or on behalf of
BNPLC on or prior to the date in question, plus (B) all Carrying Costs added on
or prior to the date in question, less (C) any funds received and applied as
Qualified Prepayments on or prior to the date in question. Charges ("CARRYING
COSTS") shall accrue as described below for each Construction Period and will be
added to (and thereafter be included in) the Outstanding Construction Allowance
on the last day of such Construction Period (i.e., generally on the Advance Date
upon which such Construction Period ends). However, if for any reason Stipulated
Loss Value (and thus the Outstanding Construction Allowance included as a
component thereof) must be determined as of any date between Advance Dates, the
Outstanding Construction Allowance determined on such date shall include not
only Carrying Costs added on or before the immediately preceding Advance Date
computed as described below, but also Carrying Costs accruing on and after such
preceding Advance Date to but not including the date in question.
(b) Calculation of Carrying Costs. Carrying Costs shall be calculated
as follows:
(i) Carrying Costs Formula. Carrying Costs accruing for any
Construction Period shall equal:
o Stipulated Loss Value on the first day of such Construction
Period, times
o the sum of:
(A) the Spread, plus
(B) the Effective Rate with respect to such Construction
Period, times
o the number of days in the period from and including the
preceding Advance Date to but not including the Advance Date
upon which the period ends, divided by
o three hundred sixty.
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(ii) Limits on the Amount of Carrying Costs. Notwithstanding the
foregoing, however, because the Construction Allowance available to SGC
under the Construction Management Agreement is limited in amount to the
Maximum Construction Allowance, and because Carrying Costs are to be
charged against the Construction Allowance, Carrying Costs added to the
Outstanding Construction Allowance on the Base Rent Commencement Date shall
not exceed the amount that can be added without causing the Funded
Construction Allowance to exceed the Maximum Construction Allowance. If,
because of an extension of the Base Rent Commencement Date by BNPLC (as
described in the definition thereof in the List of Defined Terms) or
because of any Landlord's Election to Continue Construction, the Funded
Construction Allowance already exceeds the Maximum Construction Allowance,
then no Carrying Costs will be added to the Outstanding Construction
Allowance on the Base Rent Commencement Date.
(c) SGC's Right to Control the Construction Project. Subject to
BNPLC's rights under subparagraph 6.(d) of this Lease, the Construction
Management Agreement grants to SGC the sole right and responsibility for
designing and constructing the Construction Project, it being understood that
although title to all Improvements will pass directly to BNPLC (as more
particularly provided in Paragraph 8), BNPLC's obligation with respect to the
Construction Project shall be limited to the making of advances under and
subject to the conditions set forth in the Construction Management Agreement. No
contractor or other third party shall be entitled to require BNPLC to make
advances as a third party beneficiary of this Lease or of the Construction
Management Agreement or otherwise.
(d) Landlord's Election to Continue Construction. Without limiting
BNPLC's other rights and remedies under this Lease, and without terminating this
Lease or SGC's obligations hereunder or under any of the other documents
referenced herein, in the event of any termination of the Construction
Management Agreement as provided in subparagraph 5(D) or subparagraph 5(E)
thereof, BNPLC shall be entitled (but not obligated) to take whatever action it
deems necessary or appropriate by the use of legal proceedings or otherwise to
continue or complete the Construction Project in a manner substantially
consistent (to the extent practicable under Applicable Laws) with the general
description of the Construction Project set forth in Exhibit B to the
Construction Management Agreement and with the permitted use of the Property set
forth in subparagraph 3.(a). (As used herein, "LANDLORD'S ELECTION TO CONTINUE
CONSTRUCTION" means any election by BNPLC to continue or complete the
Construction Project pursuant to the preceding sentence.) After any Landlord's
Election to Continue Construction, BNPLC may do any one or more of the following
pursuant to this subparagraph without further notice and regardless of whether
any Event of Default is then continuing:
(i) Take Control of the Property. BNPLC may cause SGC and any
contractors or other parties on the Property to vacate the Property until
the Construction Project is complete or BNPLC elects not to continue work
on the Construction Project.
(ii) Continuation of Construction. BNPLC may perform or cause to be
performed any work to complete or continue the construction of the
Construction Project. In this regard, so long as work ordered or undertaken
by BNPLC is substantially consistent (to the extent practicable under
Applicable Laws) with the general description of the Construction Project
set forth in Exhibit B to the Construction Management Agreement and the
permitted use of the Property set forth in subparagraph 3.(a), BNPLC shall
have complete discretion to:
a) proceed with construction according to such plans and
specifications as BNPLC may from time to time approve;
b) establish and extend construction deadlines as BNPLC from
time to time deems
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appropriate, without obligation to adhere to the deadlines for
Construction Milestones set forth in the Construction Management
Agreement;
c) hire, fire and replace architects, engineers, contractors,
construction managers and other consultants as BNPLC from time to time
deems appropriate, without obligation to use, consider or compensate
architects, engineers, contractors, construction managers or other
consultants previously selected or engaged by SGC;
d) determine the compensation that any architect, engineer,
contractor, construction manager or other consultant engaged by BNPLC
will be paid, and the terms and conditions that will govern the
payment of such compensation (including whether payment will be due in
advance, over the course of construction or on some other basis and
including whether contracts will be let on a fixed price basis, a cost
plus a fee basis or some other basis), as BNPLC from time to time
deems appropriate;
e) pay, settle or compromise existing or future bills and
claims which are or may be liens against the Property or as BNPLC
considers necessary or desirable for the completion of the
Construction Project or the removal of any clouds on title to the
Property;
f) prosecute and defend all actions or proceedings in
connection with the construction of the Construction Project;
g) select and change interior and exterior finishes for the
Improvements and landscaping as BNPLC from time to time deems
appropriate; and
h) generally do anything that SGC itself might have done if SGC
had satisfied or obtained BNPLC's waiver of the conditions specified
therein.
(iii) Arrange for Turnkey Construction. Without limiting the
generality of the foregoing, BNPLC may engage any contractor or real estate
developer BNPLC believes to be reputable to take over and complete
construction of the Construction Project on a "turnkey" basis.
(iv) Suspension or Termination of Construction. Notwithstanding any
Landlord's Election to Continue Construction, BNPLC may subsequently elect
at any time to suspend or terminate further construction without obligation
to SGC.
For purposes of this Lease and other Operative Documents (including the
determination of the Outstanding Construction Allowance, Stipulated Loss Value,
the Break Even Price and the Maximum Permitted Prepayment), after any Landlord's
Election to Continue Construction, all costs and expenditures incurred or paid
by or on behalf of BNPLC to complete or continue construction as provided in
this subparagraph shall be considered Construction Advances and (to the extent
BNPLC capitalizes the same in accordance with GAAP) Project Costs, regardless of
whether they cause the Funded Construction Allowance to exceed the Maximum
Construction Allowance. Further, as used in the preceding sentence, "costs
incurred" by BNPLC will include costs that BNPLC has become obligated to pay to
any third party that is not an Affiliate of BNPLC (including any contractor),
even if the payments for which BNPLC has become so obligated will constitute
prepayments for work or services to be rendered after payment and
notwithstanding that BNPLC's obligations for the payments may be conditioned
upon matters beyond BNPLC's control. For example, even if a construction
contract between BNPLC and a contractor excused BNPLC from making further
progress payments to the contractor upon SGC's failure to make any required
Issue 97-10
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Prepayment hereunder, the obligation to make a progress payment would
nonetheless be "incurred" by BNPLC, for purposes of determining whether BNPLC
has incurred costs considered to be Project Costs and Construction Advances,
when BNPLC's obligation to pay it became subject only to SGC's payment of the
Contingent Rental Prepayment or other conditions beyond BNPLC's control. If and
to the extent, however, BNPLC does incur costs considered as Construction
Advances under this subparagraph, but (1) BNPLC does not actually pay the costs
and after incurring them BNPLC is fully and finally excused from the obligation
to pay them for any reason other than a breach by SGC of this Lease or other
Operative Documents, or (2) BNPLC receives a refund of such costs, then the
costs BNPLC is excused from paying or refunded to BNPLC shall be considered
Qualified Prepayments.
(e) Powers Coupled With an Interest. BNPLC's rights under
subparagraph 6.(d) are intended to constitute powers coupled with an interest
which cannot be revoked.
(f) Completion Notice. After any Landlord's Election to Continue
Construction, BNPLC may provide a notice (a "COMPLETION NOTICE") to SGC,
advising SGC that construction of the Construction Project is substantially
complete or that BNPLC no longer intends to continue such construction at that
time.
7. OTHER OBLIGATIONS OF AND LIMITED REPRESENTATIONS BY BNPLC.
(a) Cooperation of BNPLC to Facilitate Construction and Development.
During the Term BNPLC shall take any action reasonably requested by SGC to
facilitate the acquisition of existing Improvements after the Effective Date
pursuant to the Existing Contract and the construction and use of the Property
permitted by this Lease; provided, however, that:
(i) This subparagraph 7.(a) shall not impose upon BNPLC the
obligation to take any action that can be taken by SGC, SGC's Affiliates or
anyone else other than BNPLC as the owner of the Land, the Improvements or
any other interests in the Property.
(ii) BNPLC shall not be required by this subparagraph 7.(a) to make
any payment to another Person unless BNPLC shall first have received funds
from SGC, in excess of any other amounts due from SGC hereunder, sufficient
to make the payment. (This clause (ii) will not be construed as limiting
the right of SGC to obtain additional Construction Advances, on and subject
to the terms and conditions set forth in the Construction Management
Agreement, for payments SGC itself may pay or incur an obligation to pay to
another Person.)
(iii) BNPLC shall have no obligations whatsoever under this
subparagraph at any time after an Issue 97-10 Election by SGC, after a
Landlord's Election to Continue Construction or when an Event of Default
shall have occurred and be continuing.
(iv) SGC must request any action to be taken by BNPLC pursuant to this
subparagraph, and such request must be specific and in writing, if required
by BNPLC at the time the request is made. A suggested form for such a
request is attached as Exhibit D.
(v) No action may be required of BNPLC pursuant to this subparagraph
7.(a) that could constitute a violation of any Applicable Laws or
compromise or constitute a waiver of BNPLC's rights under other provisions
of this Lease or the other Operative Documents or that for any other reason
is reasonably objectionable to BNPLC.
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The actions BNPLC shall take pursuant to this subparagraph 7.(a) if
reasonably requested by SGC will include, subject to the conditions listed in
the proviso above, joining in or consenting to any (i) grant of easements,
licenses, rights of way, and other rights in the nature of easements encumbering
the Real Property, (ii) release or termination of easements, licenses, rights of
way or other rights in the nature of easements which are for the benefit of the
Real Property or any portion thereof, (iii) dedication or transfer of portions
of the Land not improved with a building, for road, highway or other public
purposes, (iv) agreements (other than with SGC or its Affiliates) for the use
and maintenance of common areas, for reciprocal rights of parking, for ingress
and egress and for amendments to any Permitted Encumbrances or Development
Documents (including amendments to the Development Documents that SGC may
reasonably request to facilitate construction or development on land owned by it
or its Affiliates other than the Land), (V) instruments necessary or desirable
for the exercise or enforcement of rights under the Permitted Encumbrances, the
Development Documents or any contract, permit, license, franchise or other right
included within the term "Property", (VI) permit applications or other documents
reasonably required to accommodate the construction or alteration of
Improvements otherwise permitted by this Lease, (VII) confirmations of SGC's
rights under any particular provisions of this Lease which SGC may wish to
provide to a third party, (IX) execution or filing of a tract or parcel map
subdividing the Real Property into lots or parcels or reconfiguring existing
parcels, (X) agreements providing development incentives or tax abatements with
respect to the Property. However, the determination of whether any such action
is reasonably requested or reasonably objectionable to BNPLC may depend in whole
or in part upon the extent to which the requested action shall result in a lien
to secure payment or performance obligations against BNPLC's interest in the
Property, shall cause a decrease in the value of the Property to less than sixty
percent (60%) of Stipulated Loss Value after any Qualified Payments that may
result from such action are taken into account, or shall impose upon BNPLC any
present or future obligations greater than the obligations BNPLC is willing to
accept in reliance on the indemnifications provided by SGC hereunder.
Upon request by SGC, BNPLC shall also provide a statement in writing
certifying that this Lease is unmodified and in full effect (or, if there have
been modifications, that this Lease is in full effect as modified, and setting
forth such modifications), certifying the dates to which the Base Rent and other
amounts payable by SGC hereunder have been paid, stating whether BNPLC is aware
of any default by SGC that may exist hereunder and confirming BNPLC's agreements
concerning landlord's liens and other matters set forth in subparagraph 7.(c);
it being intended that any such statement by BNPLC may be relied upon by anyone
with whom SGC may intend to enter into an agreement for construction of the
Improvements or other significant agreements concerning the Property.
Any Losses incurred by BNPLC because of any action taken pursuant to this
subparagraph 7.(a) shall be covered by the indemnification set forth in
subparagraph 5.(d). Further, for purposes of such indemnification, any action
taken by BNPLC will be deemed to have been made at the request of SGC if made
pursuant to any request of counsel to or any officer of SGC (or with their
knowledge, and without their objection) in connection with the execution or
administration of this Lease or the other Operative Documents.
To avoid construction delays or for other reasonable cause, SGC may ask
BNPLC for an expedited response to any request for action made by SGC pursuant
to this subparagraph 7.(a) by delivering such request with a notice
substantially in the form attached hereto as Exhibit E. BNPLC shall endeavor in
good faith to respond promptly to any such notice after the receipt of any such
notice by an officer of BNPLC.
(b) Actions Permitted by SGC Without BNPLC's Consent. No refusal by
BNPLC to execute or join in the execution of any agreement, application or other
document requested by SGC pursuant to the preceding subparagraph 7.(a) shall
preclude SGC from itself executing such agreement, application or other
document; provided, that in doing so SGC is not purporting to act for BNPLC and
does not thereby create or
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expand any obligations or restrictions that encumber the Property. Further,
subject to the other terms and conditions of this Lease, SGC shall be entitled
to do any of the following in SGC's own name and to the exclusion of BNPLC
during the Term without any notice to or consent of BNPLC so long as no
Landlord's Election to Continue Construction has occurred, so long as no Event
of Default has occurred and is continuing and so long as SGC is not purporting
to act for BNPLC and does not thereby create or expand any obligations or
restrictions that encumber the Property:
(i) perform obligations arising under and exercise and enforce the
rights of SGC or the owner of the Real Property under the Development
Documents and Permitted Encumbrances;
(ii) perform obligations arising under and exercise and enforce the
rights of SGC or the owner of the Real Property with respect to any other
contracts or documents (such as building permits) included within the
Personal Property; and
(iii) recover and retain any monetary damages or other benefit inuring
to SGC or the owner of the Real Property through the enforcement of any
rights, contracts or other documents included within the Personal Property
(including the Development Documents and Permitted Encumbrances); provided,
that to the extent any such monetary damages may become payable as
compensation for an adverse impact on value of the Property, the rights of
BNPLC and SGC hereunder with respect to the collection and application of
such monetary damages shall be the same as for condemnation proceeds
payable because of a taking of all or any part of the Property.
(c) Waiver of Landlord's Liens. BNPLC waives any security interest,
statutory landlord's lien or other interest BNPLC may have in or against
computer equipment and other tangible personal property placed on the Land from
time to time that SGC or its Affiliates own or lease from other lessors;
provided, however, that BNPLC does not waive its interest in or rights with
respect to equipment or other property included within the "Property" as
described in Paragraph 8. Although computer equipment or other tangible personal
property may be "bolted down" or otherwise firmly affixed to Improvements, it
shall not by reason thereof become part of the Improvements if it can be removed
without causing structural or other material damage to the Improvements and
without rendering HVAC or other major building systems inoperative and if it
does not otherwise constitute "Property" as provided in Paragraph 8.
(d) Limited Representations by BNPLC Concerning Accounting Matters.
BNPLC is not expected or required to represent or warrant that this Lease or the
Purchase Agreement will qualify for any particular accounting treatment under
GAAP. However, to permit SGC to determine for itself the appropriate accounting
for this Lease and the Purchase Agreement, BNPLC does represent to SGC as of the
Effective Date:
(i) Equity capital invested in BNPLC is greater than three percent
(3%) of the aggregate of all lease funding amounts (including
participations) of BNPLC. Such equity capital investments constitute equity
in legal form and are reflected as shareholders' equity in the financial
statements and accounting records of BNPLC.
(ii) BNPLC is one hundred percent (100%) owned by French American Bank
Corporation, which is one hundred percent (100%) owned by BNPLC's Parent.
(iii) BNPLC leases properties of substantial value to more than
fifteen tenants.
(iv) All parties to whom BNPLC has any material obligations known to
BNPLC are (and are
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expected to be) Affiliates of BNPLC's Parent, Participants, or participants
with BNPLC in other leasing deals or loans made by BNPLC, or other tenants
or borrowers in such other leasing deals or loans.
(v) BNPLC has substantial assets in addition to the Property, assets
which BNPLC believes to have a value far in excess of the value of the
Property.
(vi) Other than any Funding Advances provided from time to time by
Participants under the Participation Agreement, BNPLC expects to obtain all
Funding Advances from Banque Nationale de Paris or other Affiliates of
BNPLC (including Funding Advances to cover Carrying Costs and other amounts
to be capitalized as part of the Outstanding Construction Allowance, and
assuming that SGC uses the Maximum Construction Allowance under this
Lease), and to the extent that Banque Nationale de Paris or such other
Affiliates themselves borrow or accept bank deposits to obtain the funds
needed to provide such Funding Advances, the obligation to repay such funds
shall not be limited, by agreement or corporate structure, to payments
collected from SGC or otherwise recovered from the Property.
(vii) BNPLC has not obtained residual value insurance or a residual
value guarantee from any third party to ensure the recovery of its
investment in the Property.
(viii) BNPLC does not intend to take any action during the term of
this Lease that would change, or anticipate any change in, any of the facts
listed above in this subparagraph.
SGC shall have the right to ask BNPLC questions from time to time concerning
BNPLC's financial condition, concerning matters relevant to the proper
accounting treatment of this Lease on SGC's financial statements and accounting
records (including the amount of BNPLC's equity capital as a percentage of the
aggregate of all lease funding amounts [including participations] by BNPLC) or
concerning BNPLC's ability to perform under this Lease or other Operative
Documents, to which questions BNPLC shall promptly respond. Such response,
however, may be limited to a statement that BNPLC will not provide requested
information; provided, however, BNPLC must notify SGC in writing if at any time
during the Term BNPLC ceases to be 100% owned, directly or indirectly, by Banque
Nationale de Paris, or if at any time during the Term BNPLC believes it could
not represent that the statements in clauses (i), (v) and (vii) above continue
to be accurate, whether because of a change in the capital structure of BNPLC, a
purchase of residual value insurance with respect to the Property or otherwise.
(e) Other Limited Representations by BNPLC. BNPLC represents that:
(i) No Default or Violation. The execution, delivery and performance
by BNPLC of this Lease and the other Operative Documents do not and will
not constitute a breach or default under any material contract or agreement
to which BNPLC is a party or by which BNPLC is bound and do not, to the
knowledge of BNPLC, violate or contravene any law, order, decree, rule or
regulation to which BNPLC is subject. (As used in this subparagraph 7.(e),
"BNPLC'S KNOWLEDGE" means the present actual knowledge of Xxxxx Xxx, the
current officer of BNPLC having primary responsibility for the negotiation
of this Lease.)
(ii) No Suits. There are no judicial or administrative actions, suits,
proceedings or investigations pending or, to BNPLC's knowledge, threatened
against BNPLC that are reasonably likely to affect BNPLC's interest in the
Property or the validity, enforceability or priority of this Lease or the
other Operative Documents, and BNPLC is not in default with respect to any
order, writ, injunction, decree or demand of any court or other
governmental or regulatory authority that could materially and adversely
affect the business or assets of BNPLC or its interest in the Property.
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(iii) Enforceability. The execution, delivery and performance of this Lease
and the other Operative Documents by BNPLC are duly authorized, are not in
contravention of or conflict with any term or provision of BNPLC's articles
of incorporation or bylaws and do not, to BNPLC's knowledge, require the
consent or approval of any governmental body or other regulatory authority
that has not heretofore been obtained or conflict with any Applicable Laws.
This Lease and the other Operative Documents are valid, binding and legally
enforceable obligations of BNPLC except as such enforcement is affected by
bankruptcy, insolvency and similar laws affecting the rights of creditors,
generally, and equitable principles of general application; provided, BNPLC
makes no representation or warranty that conditions imposed by zoning
ordinances or other state or local Applicable Laws to the purchase,
ownership, lease or operation of the Property have been satisfied.
(iv) Organization. BNPLC is duly incorporated and legally existing
under the laws of Delaware and is (or will become, if necessary to lawfully
perform hereunder) duly qualified to do business in the State of Georgia.
BNPLC has or will obtain on a timely basis, at SGC's expense to the extent
so provided in the other provisions of this Lease, all requisite power and
all governmental certificates of authority, licenses, permits,
qualifications and other documentation necessary to own and lease the
Property and to perform its obligations under this Lease.
(v) Not a Foreign Person. BNPLC is not a "foreign person" within the
meaning of Sections 1445 and 7701 of the Code (i.e., BNPLC is not a
non-resident alien, foreign corporation, foreign partnership, foreign trust
or foreign estate as those terms are defined in the Code and regulations
promulgated thereunder).
(f) Keeping Proprietary Information Confidential. BNPLC agrees to use
reasonable precautions to keep confidential any "proprietary information" (as
defined in Paragraph 27) that BNPLC may receive from SGC or otherwise discover
with respect to SGC or SGC's business pursuant to this Lease or any
investigation by BNPLC hereunder, except for disclosures: (i) specifically and
previously authorized in writing by SGC; (ii) to any permitted assignee of BNPLC
as to any interest in the Property so long as the assignee has agreed in writing
to use its reasonable efforts to keep such information confidential in
accordance with the terms of this subparagraph; (iii) to legal counsel,
accountants, auditors, environmental consultants and other professional advisors
to BNPLC so long as BNPLC shall inform such persons in writing (if practicable)
of the confidential nature of such information and shall direct them to treat
such information confidentially; (iv) to regulatory officials having
jurisdiction over BNPLC or BNPLC's Parent (provided that the disclosing party
shall request confidential treatment of the disclosed information, if
practicable); (v) as required by legal process (provided that the disclosing
party shall request confidential treatment of the disclosed information, if
practicable); (vi) of information which has previously become publicly available
through the actions or inactions of a Person other than BNPLC not, to BNPLC's
knowledge, in breach of an obligation of confidentiality to SGC; and (vii) to
any Participant so long as the Participant has not repudiated the
confidentiality provision concerning SGC's proprietary information set forth in
the Participation Agreement.
8. STATUS OF PROPERTY ACQUIRED WITH FUNDS PROVIDED BY BNPLC. Subject in
each case to SGC's rights under the other provisions of this Lease, all
Improvements sold by Seller pursuant to the Existing Contract (including those
sold after the Effective Date as provided in the Existing Contract) and all
Improvements constructed during the term of this Lease shall be owned by BNPLC
and shall constitute "Property" covered by this Lease. Further, subject in each
case to SGC's rights under the other provisions of this Lease, all furnishings,
furniture, chattels, permits, licenses, franchises, certificates and other
personal property of whatever nature shall have been acquired on behalf of BNPLC
by SGC, shall be owned by BNPLC and shall constitute "Property" covered by this
Lease, to the extent heretofore or hereafter acquired, in whole or in part, with
any portion of the
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Initial Funding Advance provided to SGC or with any Construction Advances or
other funds for which SGC has received or hereafter receives reimbursement from
the Initial Funding Advance or Construction Advances, as shall all renewals or
replacements of or substitutions for any such Property. SGC shall not authorize
or permit the transfer of title to the Improvements or to any other such
Property to pass through SGC or SGC's Affiliates before it is transferred to
BNPLC from contractors, suppliers, vendors or other third Persons. Nothing
herein shall constitute authorization of SGC by BNPLC to bind BNPLC to any
construction contract or other agreement with a third Person, but any
construction contract or other agreement executed by SGC for the acquisition or
construction of Improvements or other components of the Property may provide for
the transfer of title as required by the preceding sentence. Upon request of
BNPLC made when any Event of Default has occurred and is continuing, SGC shall
deliver to BNPLC an inventory describing all significant items of Personal
Property (and, in the case of tangible personal property, showing the make,
model, serial number and location thereof) other than Improvements, with a
certification by SGC that such inventory is true and complete and that all items
specified in the inventory are covered by this Lease free and clear of any Lien
other than the Permitted Encumbrances or Liens Removable by BNPLC.
9. ENVIRONMENTAL.
(a) Environmental Covenants by SGC. SGC covenants that:
(i) SGC shall not conduct or permit others to conduct Hazardous
Substance Activities, except Permitted Hazardous Substance Use and Remedial
Work.
(ii) SGC shall not discharge or permit the discharge of anything on or
from the Property that would require any permit under applicable
Environmental Laws, other than (1) storm water runoff, (2) waste water
discharges through a publicly owned treatment works, (3) discharges that
are a necessary part of any Remedial Work, and (4) other similar discharges
consistent with the definition herein of Permitted Hazardous Substance Use,
in each case in strict compliance with Environmental Laws.
(iii) Following any discovery that Remedial Work is required by
Environmental Laws or otherwise reasonably required, and to the extent not
inconsistent with the other provisions of this Lease, SGC shall promptly
perform and diligently and continuously pursue such Remedial Work, in each
case in strict compliance with Environmental Laws; provided, however, SGC
shall not be required to perform the Remedial Work that Seller is obligated
to perform, and that Seller does perform as it is obligated to do, pursuant
to and within the deadlines imposed by the Existing Contract. BNPLC and SGC
intend that the right to enforce Seller's obligations to perform Remedial
Work (lead cleanup) under the Existing Contract be included in the
intangible Personal Property covered by this Lease. Accordingly, SGC will
have the right during the Term (and SGC hereby undertakes the
responsibility) to cause Seller to perform, and to verify Seller's
performance of, the Remedial Work contemplated by the Existing Contract in
accordance with the standards and deadlines specified therein. Further, SGC
shall not allow its own employees or other invitees to use the building on
the land covered by the Ground Lease until such Remedial Work is complete;
provided, however, that this provision shall not be construed to prohibit
the use of such building as reasonably required to monitor or complete such
Remedial Work; and provided, further, that until the building is actually
conveyed by the Seller to BNPLC as provided in the Existing Contract
(whereupon the Ground Lease is to terminate according to its terms), it is
understood that nothing in this Lease will be construed as purporting to
authorize or require BNPLC or SGC to interfere with the use and occupancy
of the building by the Seller or the lessee under the Ground Lease as
provided in the Existing Contract and the Ground Lease.
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(iv) If requested by BNPLC in connection with any significant Remedial
Work required by this subparagraph, SGC shall retain an independent
Environmental Consultant or Industrial Hygienist, as appropriate, to
evaluate any significant new information generated during SGC's
implementation of the Remedial Work and to discuss with SGC whether such
new information indicates the need for any additional measures that SGC
should take to protect the health and safety of persons (including, without
limitation, employees, contractors and subcontractors and their employees)
or to protect the environment. SGC shall implement any such additional
measures to the extent required with respect to the Property by
Environmental Laws or otherwise reasonably required and to the extent not
inconsistent with the other provisions of this Lease.
(b) Right of BNPLC to do Remedial Work Not Performed by SGC. If SGC's
failure to cure any breach of the covenants set forth in subparagraph 9.(a)
continues beyond the Environmental Cure Period (as defined below), BNPLC may, in
addition to any other remedies available to it, after notifying SGC of the
Remedial Work BNPLC believes is needed, conduct all or any part of the Remedial
Work. To the extent that Remedial Work done by BNPLC pursuant to the preceding
sentence (including any removal of Hazardous Substances) is reasonably required,
or is required or believed by BNPLC in good faith to be required by Applicable
Law or by any demand, regulation or guideline of any governmental authority
(whether or not having the force of law), the cost thereof shall be a demand
obligation owing by SGC to BNPLC. As used in this subparagraph, "ENVIRONMENTAL
CURE PERIOD" means the period ending on the earlier of: (1) one hundred twenty
days after SGC is notified of the breach which must be cured within such period,
(2) the date that any writ or order is issued for the levy or sale of any
property owned by BNPLC (including the Property) because of such breach, (3) the
date that any criminal action is overtly threatened or instituted against BNPLC
or any of its directors, officers or employees because of such breach, (4) a
Designated Sale Date upon which, for any reason, SGC or an Affiliate of SGC or
any Applicable Purchaser shall not purchase BNPLC's interest in the Property
pursuant to the Purchase Agreement for a net price to BNPLC (when taken together
with any additional payments made by SGC pursuant to Paragraph 1(A)(2) of the
Purchase Agreement, in the case of a purchase by an Applicable Purchaser) equal
to Stipulated Loss Value; or (5) any date upon which the Construction Management
Agreement or this Lease or SGC's Initial Remarketing Rights and Obligations may
be terminated because of or following any Issue 97-10 Election
(c) Environmental Inspections and Reviews. BNPLC reserves the right
to retain an Environmental Consultant or Industrial Hygienist to review any
report prepared by SGC or to conduct BNPLC's own investigation to confirm
whether SGC is complying with the requirements of this Paragraph 9. SGC grants
(subject to the Ground Lease) to BNPLC and to BNPLC's agents, employees,
consultants and contractors the right during reasonable business hours and after
reasonable notice to enter upon the Property to inspect the Property and to
perform such tests as BNPLC deems necessary or appropriate to review or
investigate Hazardous Substances in, on, under or about the Property or any
discharge or suspected discharge of Hazardous Substances into groundwater or
surface water from the Property. SGC shall promptly reimburse BNPLC for the
reasonable fees of its Environmental Consultants and Industrial Hygienists and
the costs of any such inspections and tests; provided, however, BNPLC's right to
reimbursement for the reasonable fees of any consultant engaged as provided in
this subparagraph or for the costs of any inspections or test undertaken as
provided in this subparagraph shall be limited to the following circumstances:
(1) an Event of Default or CMA Termination Event shall have occurred; (2) BNPLC
shall have retained the consultant to establish the condition of the Property
just prior to any conveyance thereof pursuant to the Purchase Agreement or just
prior to the expiration of this Lease; (3) BNPLC shall have retained the
consultant to satisfy any regulatory requirements applicable to BNPLC or its
Affiliates; or (4) BNPLC shall have retained the consultant because BNPLC has
been notified of a violation of Environmental Laws concerning the Property or
BNPLC otherwise reasonably believes that SGC has not complied with the
requirements of this Paragraph 9.
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(d) Communications Regarding Environmental Matters.
(i) SGC shall immediately advise BNPLC and Participants of (1) any
discovery of any event or circumstance which would render any of the
representations of SGC herein or in the Closing Certificate concerning
environmental matters materially inaccurate or misleading if made at the
time of such discovery and assuming that SGC was aware of all relevant
facts, (2) any Remedial Work (or change in Remedial Work) required or
undertaken by SGC or its Affiliates in response to any (A) discovery of any
Hazardous Substances on, under or about the Property other than Permitted
Hazardous Substances or (B) any claim for damages resulting from Hazardous
Substance Activities, (3) SGC's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of the Property which would
or could reasonably be expected to cause the Property or any part thereof
to be subject to any ownership, occupancy, transferability or use
restrictions under Environmental Laws, or (4) any investigation or inquiry
of any failure or alleged failure by SGC to comply with Environmental Laws
affecting the Property by any governmental authority responsible for
enforcing Environmental Laws. In such event, SGC shall deliver to BNPLC
within thirty days after BNPLC's request (or such longer period as may be
reasonably required, but in any event within ninety days after BNPLC's
request), a preliminary written environmental plan setting forth a general
description of the action that SGC proposes to take with respect thereto,
if any, to bring the Property into compliance with Environmental Laws or to
correct any breach by SGC of this Paragraph 9, including any proposed
Remedial Work, the estimated cost and time of completion, the name of the
contractor and a copy of the construction contract, if any, and such
additional data, instruments, documents, agreements or other materials or
information as BNPLC may reasonably request.
(ii) SGC shall provide BNPLC and Participants with copies of all
material written communications with federal, state and local governments,
or agencies relating to the matters listed in the preceding clause (i). SGC
shall also provide BNPLC and Participants with copies of any correspondence
from third Persons which threaten litigation over any significant failure
or alleged significant failure of SGC to maintain or operate the Property
in accordance with Environmental Laws.
(iii) Prior to SGC's submission of a Material Environmental
Communication which relates to the matters listed in the preceding clause
(i) to any governmental or regulatory agency or third party, SGC shall, to
extent practicable, deliver to BNPLC and Participants a draft of the
proposed submission (together with the proposed date of submission), and in
good faith assess and consider any comments of BNPLC regarding the same.
Promptly after BNPLC's request, SGC shall meet with BNPLC to discuss the
submission, shall provide any additional information reasonably requested
by BNPLC and shall provide a written explanation to BNPLC addressing the
issues raised by comments (if any) of BNPLC regarding the submission,
including a reasoned analysis supporting any decision by SGC not to modify
the submission in accordance with comments of BNPLC.
10. INSURANCE REQUIRED AND CONDEMNATION.
(a) Liability Insurance. Throughout the Term SGC shall maintain
commercial general liability insurance against claims for bodily and personal
injury, death and property damage occurring in or upon or resulting from any
occurrence in or upon the Property under one or more insurance policies that
satisfy the requirements set forth in Exhibit F. SGC shall deliver and maintain
with BNPLC for each liability insurance policy required by this Lease written
confirmation of the policy and the scope of the coverage provided thereby issued
by the applicable insurer or its authorized agent, which confirmation must also
satisfy the requirements set forth in Exhibit F.
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(b) Property Insurance. Throughout the Term SGC will keep all
Improvements (including all alterations, additions and changes made to the
Improvements) insured against fire and other casualty under one or more property
insurance policies that satisfy the requirements set forth in Exhibit F. SGC
shall deliver and maintain with BNPLC for each property insurance policy
required by this Lease written confirmation of the policy and the scope of the
coverage provided thereby issued by the applicable insurer or its authorized
agent, which confirmation must also satisfy the requirements set forth in
Exhibit F. If any of the Property is destroyed or damaged by fire, explosion,
windstorm, hail or by any other casualty against which insurance shall have been
required hereunder, (i) BNPLC may, but shall not be obligated to, make proof of
loss if not made promptly by SGC after notice from BNPLC, (ii) each insurance
company concerned is hereby authorized and directed to make payment for such
loss directly to BNPLC for application as required by Paragraph 11, and (iii)
BNPLC may settle, adjust or compromise any and all claims for loss, damage or
destruction under any policy or policies of insurance (provided, that so long as
no SGC has made no Issue 97-10 Election, no Landlord's Election to Continue
Construction shall have occurred and no Event of Default shall have occurred and
be continuing, BNPLC must obtain SGC's consent to any such settlement). If any
casualty shall result in damage to or loss or destruction of the Property, SGC
shall give immediate notice thereof to BNPLC and Paragraph 11 shall apply.
Notwithstanding the foregoing, SGC shall have the right as SGC deems
appropriate to settle, adjust or compromise any insurance claim for damage to
the Property that cannot reasonably be asserted for more than $3,000,000 if (and
after) SGC completes the Construction Project pursuant to the Construction
Management Agreement and so long no Event of Default shall have occurred and be
continuing; and SGC may directly receive and hold the proceeds of such claim if
(and after) SGC completes the Construction Project pursuant to the Construction
Management Agreement and so long as no Landlord's Election to Continue
Construction shall have occurred and no Event of Default shall have occurred and
be continuing and so long as SGC applies such proceeds as required by
subparagraph 11.(b).
(c) Failure to Obtain Insurance. If SGC fails to obtain any insurance
or to provide confirmation of any such insurance as required by this Lease,
BNPLC shall be entitled (but not required) to obtain the insurance that SGC has
failed to obtain or for which SGC has not provided the required confirmation
and, without limiting BNPLC's other remedies under the circumstances, BNPLC may
require SGC to reimburse BNPLC for the cost of such insurance and to pay
interest thereon computed at the Default Rate from the date such cost was paid
by BNPLC until the date of reimbursement by SGC.
(d) Condemnation. Immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation of the Property or any
portion thereof, or any other similar governmental or quasi-governmental
proceedings arising out of injury or damage to the Property or any portion
thereof, each party shall notify the other (provided, however, BNPLC shall have
no liability for its failure to provide such notice) of the pendency of such
proceedings. SGC shall, at its expense, diligently prosecute any such
proceedings and shall consult with BNPLC, its attorneys and experts and
cooperate with them as reasonably requested in the carrying on or defense of any
such proceedings. All proceeds of condemnation awards or proceeds of sale in
lieu of condemnation with respect to the Property and all judgments, decrees and
awards for injury or damage to the Property shall be paid to BNPLC as Escrowed
Proceeds for application as provided in Paragraph 11. BNPLC is hereby
authorized, in the name of SGC, at any time when an Event of Default shall have
occurred and be continuing, or otherwise with SGC's prior consent, to execute
and deliver valid acquittances for, and to appeal from, any such judgment,
decree or award concerning condemnation of any of the Property. BNPLC shall not
be in any event or circumstances liable or responsible for failure to collect,
or to exercise diligence in the collection of, any such proceeds, judgments,
decrees or awards.
Notwithstanding the foregoing provisions of this subparagraph, SGC shall
have the right as SGC deems
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appropriate to settle, adjust or compromise any claim for any taking of less
than all or substantially all of the Property if the claim cannot reasonably be
asserted for more than $3,000,000 and if (and after) SGC completes the
Construction Project pursuant to the Construction Management Agreement and if no
Event of Default shall have occurred and be continuing; and SGC may directly
receive and hold the proceeds of any such claim if (and after) SGC completes the
Construction Project pursuant to the Construction Management Agreement and so
long as no Event of Default shall have occurred and be continuing and so long as
SGC applies such proceeds as required by subparagraph 11.(b).
11. APPLICATION OF INSURANCE AND CONDEMNATION PROCEEDS.
(a) Collection of Insurance and Condemnation Proceeds Generally.
Subject to BNPLC's rights under this Paragraph 11, and so long as no CMA
Termination Event shall have occurred and no Event of Default shall have
occurred and be continuing, SGC shall be entitled to use all property insurance
and condemnation proceeds payable with respect to the Property during the Term
for the restoration and repair of the Property or any remaining portion thereof.
Except as provided in the last sentence of subparagraph 10.(b) and the last
sentence of subparagraph 10.(d), all insurance and condemnation proceeds
received with respect to the Property (including proceeds payable under any
insurance policy covering the Property which is maintained by SGC) shall be paid
to BNPLC and then applied as follows:
(i) First, such proceeds shall be used to reimburse BNPLC for any
costs and expenses, including Attorneys' Fees, incurred in connection with
the collection of such proceeds.
(ii) Second, the remainder of such proceeds (the "REMAINING Proceeds")
shall be held by BNPLC as Escrowed Proceeds and used to reimburse SGC for
the actual cost of the repair, restoration or replacement of the Property.
However, any Remaining Proceeds not needed for such purpose shall be
applied by BNPLC as Qualified Payments, as provided in subparagraph 11.(c),
after SGC notifies BNPLC that they are not needed for repairs, restoration
or replacement.
(b) Administration of Remaining Proceeds; SGC's Obligation to
Restore. Any Remaining Proceeds held by BNPLC as Escrowed Proceeds shall be
deposited by BNPLC in an interest bearing account as provided in the definition
of Escrowed Proceeds in the attached List of Defined Terms and shall be paid to
SGC or to third parties as SGC may direct as the applicable repair, restoration
or replacement progresses and upon compliance by SGC with such terms, conditions
and requirements as may be reasonably imposed by BNPLC, but in no event shall
BNPLC be required to pay Escrowed Proceeds to SGC in excess of the actual cost
to SGC of the applicable repair, restoration or replacement, as evidenced by
invoices or other documentation reasonably satisfactory to BNPLC, it being
understood that BNPLC may retain and apply any such excess as a Qualified
Payment. In any event, SGC will not be entitled to any abatement or reduction of
the Base Rent or any other amount due hereunder except to the extent that such
excess Remaining Proceeds result in Qualified Payments which reduce Stipulated
Loss Value (and thus payments computed on the basis of Stipulated Loss Value) as
provided in the definitions set out in the attached List of Defined Terms.
Further, notwithstanding the inadequacy of the Remaining Proceeds held by BNPLC
as Escrowed Proceeds, if any, or anything herein to the contrary, SGC must,
after any taking of less than all or substantially all of the Property by
condemnation and after any damage to the Property by fire or other casualty,
either:
(i) promptly restore or improve the Property or the remainder thereof
to a value no less than sixty percent (60%) of Stipulated Loss Value
(computed after the application of any Remaining Proceeds as a Qualified
Payment) and to a reasonably safe and sightly condition; or
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(ii) promptly restore the Property to a reasonably safe and sightly
condition and pay to BNPLC for application as a Qualified Payment the
amount (if any), as determined by BNPLC, needed to reduce Stipulated Loss
Value (computed after the application of such amount and any available
Remaining Proceeds as Qualified Payments) to no more than one hundred
sixty-seven percent (167%) of the then-current market value of the Property
or remainder thereof.
(c) Special Provisions Concerning CMA Termination Events, Events of
Default and Qualified Payments. If a CMA Termination Event shall have occurred,
or an Event of Default shall have occurred and be continuing, then
notwithstanding the foregoing, BNPLC shall be entitled to receive and collect
all insurance or condemnation proceeds payable with respect to the Property, and
BNPLC shall be entitled to either, at the discretion of BNPLC, (A) hold all
Remaining Proceeds as Escrowed Proceeds until paid to SGC as reimbursement for
the actual and reasonable cost of repairing, restoring or replacing the Property
when SGC has completed such repair, restoration or replacement, or (B) apply
such proceeds as Qualified Payments when and to the extent deemed appropriate by
BNPLC.
When no CMA Termination Event shall have occurred and no Event of Default
shall have occurred and be continuing, BNPLC shall apply any Remaining Proceeds
paid to it (or other amounts available for application as a Qualified Payment)
as a Qualified Payment on any date that BNPLC is directed to do so by a notice
from SGC; provided, that if such a notice from SGC specifies an effective date
for a Qualified Payment that is less than five Business Days after BNPLC's
actual receipt of the notice, BNPLC may postpone the date of the Qualified
Payment to any date not later than five Business Days after BNPLC's receipt of
the notice. In any event, except when BNPLC is required by the preceding
sentence to apply Remaining Proceeds or other amounts as a Qualified Payment on
an Advance Date or Base Rent Date, BNPLC may deduct Breakage Costs incurred in
connection with any Qualified Payment from the Remaining Proceeds or other
amounts available for application as the Qualified Payment, and SGC will
reimburse BNPLC upon request for any such Breakage Costs that BNPLC incurs but
does not deduct.
(d) Takings of All or Substantially All of the Property. In the event
of any taking of all or substantially all of the Property, BNPLC shall be
entitled to apply all Remaining Proceeds as a Qualified Payment, notwithstanding
the foregoing. In addition, if Stipulated Loss Value immediately prior to any
taking of all or substantially all of the Property by condemnation exceeds the
sum of the Remaining Proceeds resulting from such condemnation, then BNPLC shall
be entitled to recover the excess from SGC upon demand as an additional
Qualified Payment, whereupon this Lease shall terminate. Any taking of so much
of the Real Property as, in BNPLC's reasonable good faith judgment, makes it
impracticable to restore or improve the remainder thereof as required by part
(1) of subparagraph 11.(b) shall be considered a taking of substantially all the
Property for purposes of this Paragraph 11.
(e) Waiver of Subrogation. Without limiting SGC's obligations to make
repairs under other provisions of this Lease, BNPLC and SGC each waive any right
of recovery against the other, and the other's agents, officers or employees,
for any damage to the Property or to the personal property situated from time to
time in or on the Real Property resulting from fire or other casualty covered by
a valid and collectible insurance policy; provided, however, that the waiver set
forth in this subparagraph 11.(e) shall be effective insofar, but only insofar,
as compensation for such damage or loss is actually recovered by the waiving
party (net of costs of collection) under the policy notwithstanding the waivers
set out in this subparagraph. SGC shall cause the insurance policies required of
SGC by this Lease to be properly endorsed, if necessary, to prevent any loss of
coverage because of the waivers set forth in this subparagraph. If such
endorsements are not available at commercially reasonable rates, the waivers set
forth in this subparagraph shall be ineffective to the extent that such waivers
would cause required insurance with respect to the Property to be impaired.
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12. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF SGC
CONCERNING THE PROPERTY. SGC represents, warrants and covenants as follows:
(a) Compliance with Covenants and Laws. The use of the Property
permitted by this Lease complies, or will comply after SGC obtains available
permits as the tenant under this Lease, in all material respects with all
Applicable Laws. SGC has obtained or will promptly obtain all utility, building,
health and operating permits as may be required by any governmental authority or
municipality having jurisdiction over the Property for the construction
contemplated herein and the use of the Property permitted by this Lease.
(b) Operation of Property. SGC shall operate the Property in a good
and workmanlike manner and in a manner that causes it to comply in all material
respects with Applicable Laws. (For purposes of this Lease, "material"
noncompliance with Applicable Law will include any noncompliance, the correction
of which has been requested by a governmental authority, or because of which a
threat of action against the Property or BNPLC has been asserted by a
governmental authority.) SGC shall not use or occupy or allow the use or
occupancy of the Property in any manner which violates any Applicable Law in any
material respect or which constitutes a public or private nuisance or which
makes void, voidable or cancelable any insurance then in force with respect
thereto. To the extent that any of the following could, individually or in the
aggregate, reduce the value of the Property and leave the Property with a value
of less than sixty percent (60%) of Stipulated Loss Value, SGC shall not: (i)
initiate or permit any zoning reclassification of the Property; (ii) seek any
variance under existing zoning ordinances applicable to the Property; (iii) use
or permit the use of the Property in a manner that would result in such use
becoming a nonconforming use under applicable zoning ordinances or similar laws,
rules or regulations; (iv) execute or file any subdivision plat affecting the
Property; or (v) consent to the annexation of the Property to any municipality.
If a change in the zoning or other Applicable Laws affecting the permitted use
or development of the Property shall occur that BNPLC determines will reduce the
then-current market value of the Property, and if after such reduction the
then-current market value of the Property shall be less than sixty percent (60%)
of Stipulated Loss Value in the reasonable judgment of BNPLC, then SGC shall pay
BNPLC an amount equal to such excess for application as a Qualified Payment. SGC
shall not cause or consent to any drilling or exploration for, or extraction,
removal or production of, minerals from the surface or subsurface of the
Property. If SGC receives a notice or claim from any federal, state or other
governmental authority that the Property is not in compliance with any
Applicable Law in any material respect, or that any action may be taken against
BNPLC because the Property does not comply with any Applicable Law, SGC shall
promptly furnish a copy of such notice or claim to BNPLC.
Notwithstanding the foregoing, SGC may in good faith, by appropriate
proceedings, contest the validity and applicability of any Applicable Law with
respect to the Property, and pending such contest SGC shall not be deemed in
default hereunder because of the violation of such Applicable Law, if SGC
diligently prosecutes such contest to completion in a manner reasonably
satisfactory to BNPLC, and if SGC promptly causes the Property to comply with
any such Applicable Law upon a final determination by a court of competent
jurisdiction that the same is valid and applicable to the Property; provided,
however, in any event such contest shall be concluded and the violation of such
Applicable Law must be corrected by SGC and any claims asserted against BNPLC or
the Property because of such violation must be paid by SGC, all prior to the
earlier of (i) the date that any criminal action is overtly threatened or
instituted against BNPLC or any of its directors, officers or employees because
of such violation, (ii) the date that any action is taken or overtly threatened
by any governmental authority against BNPLC or any property owned by BNPLC
(including the Property) because of such violation, (iii) a Designated Sale Date
upon which, for any reason, SGC or an Affiliate of SGC or any Applicable
Purchaser shall not purchase BNPLC's interest in the Property pursuant to the
Purchase Agreement for a net price to BNPLC (when taken together with any
additional payments made by SGC pursuant to Paragraph 1(A)(2) of the Purchase
Agreement, in the case of a purchase by an Applicable Purchaser) equal to
Stipulated Loss Value, or (iv) any date upon which the Construction Management
Agreement or this Lease or SGC's Initial Remarketing Rights and Obligations may
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be terminated because of or following any Issue 97-10 Election.
(c) Debts for Construction, Maintenance, Operation or Development.
SGC shall cause all debts and liabilities incurred in the construction,
maintenance, operation or development of the Property, including all debts and
liabilities for labor, material and equipment and all debts and charges for
utilities servicing the Property, to be promptly paid; provided, nothing in this
subparagraph will be construed to make SGC liable for Liens Removable by BNPLC
or Excluded Taxes.
Notwithstanding the foregoing, SGC may in good faith, by appropriate
proceedings, contest the validity, applicability or amount of any asserted
mechanic's or materialmen's lien and pending such contest SGC shall not be
deemed in default under this subparagraph because of the contested lien if (1)
within thirty days after being asked to do so by BNPLC, SGC bonds over to
BNPLC's reasonable satisfaction all such contested liens against the Property
alleged to secure an amount in excess of $5,000,000 (individually or in the
aggregate), (2) SGC diligently prosecutes such contest to completion in a manner
reasonably satisfactory to BNPLC, and (3) SGC promptly causes to be paid any
amount adjudged by a court of competent jurisdiction to be due, with all costs
and interest thereon, promptly after such judgment becomes final; provided,
however, that in any event each such contest shall be concluded and the lien,
interest and costs must be paid by SGC prior to the earlier of (i) the date that
any criminal action is overtly threatened or instituted against BNPLC or its
directors, officers or employees because of the nonpayment thereof, (ii) the
date that any writ or order is issued under which the Property or any other
property in which BNPLC has an interest may be seized or sold or any other
action is taken or overtly threatened against BNPLC or any property in which
BNPLC has an interest because of the nonpayment thereof, (iii) a Designated Sale
Date upon which, for any reason, SGC or an Affiliate of SGC or any Applicable
Purchaser shall not purchase BNPLC's interest in the Property pursuant to the
Purchase Agreement for a net price to BNPLC (when taken together with any
additional payments made by SGC pursuant to Paragraph 1(A)(2) of the Purchase
Agreement, in the case of a purchase by an Applicable Purchaser) equal to
Stipulated Loss Value, or (iv) any date upon which the Construction Management
Agreement or this Lease or SGC's Initial Remarketing Rights and Obligations may
be terminated because of or following any Issue 97-10 Election
(d) Repair, Maintenance, Alterations and Additions. SGC shall keep
the Property in good order, operating condition and appearance, causing all
necessary repairs, renewals and replacements to be promptly made, and will not
allow any of the Property to be materially misused, abused or wasted. To the
extent that any of the following could, individually or in the aggregate, reduce
the value of the Property and leave the Property with a value of less than sixty
percent (60%) of Stipulated Loss Value, SGC shall not: (i) fail to promptly
replace any worn-out fixtures or material items of tangible Personal Property
covered by this Lease with fixtures or other tangible Personal Property
comparable to the replaced fixtures or Personal Property when new, (ii) remove
from the Property any fixtures or tangible Personal Property of significant
value covered by this Lease except such as are replaced by SGC by articles of
equal suitability and value, free and clear of any Lien other than Permitted
Encumbrances or Liens Removable by BNPLC, or (iii) make any significant
alterations to any Improvements after they are completed. Without limiting the
foregoing, SGC will notify BNPLC before making any alterations to the
Improvements which could materially reduce the market value of the Property or
which change the general character of the Property or which impair in any
significant manner the useful life or utility of any Improvements.
Nothing in this subparagraph is intended to limit SGC's rights and
obligations under other provisions of this Lease with respect to the
construction of the initial or any subsequent Construction Project permitted by
other provisions of this Lease.
(e) Compliance With Permitted Encumbrances and Development Contracts.
SGC shall comply with and will cause to be performed all of the covenants,
agreements and obligations imposed upon the owner of
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any interest in the Property by the Permitted Encumbrances (including the Ground
Lease) or the Development Contracts. Without limiting the foregoing, SGC shall
cause all amounts to be paid when due, the payment of which is secured by any
Lien against the Property created by the Permitted Encumbrances. Also SGC shall
cause the testing for lead contamination contemplated in the Existing Contract
to be performed in an appropriate manner and shall keep BNPLC informed as to the
status of Seller's efforts to cleanup lead contamination as required by the
Existing Contract.
(f) Modification of Permitted Encumbrances and Development Contracts.
SGC shall not enter into, initiate, approve or consent to any modification of
any Permitted Encumbrance or Development Contract that would create or expand or
purport to create or expand obligations or restrictions which would encumber the
Property without the prior consent of BNPLC. Whether BNPLC must give any such
consent requested by SGC during the term of this Lease shall be governed by
subparagraph 7.(a).
(g) Books and Records Concerning the Property. SGC shall keep books
and records that are accurate and complete in all material respects for the
Property and will, subject to Paragraph 27, permit all such books and records
(including all contracts, statements, invoices, bills and claims for labor,
materials and services supplied for the construction and operation of any
Improvements) to be inspected and copied by BNPLC.
13. ASSIGNMENT AND SUBLETTING BY SGC.
(a) BNPLC's Consent Required. Without the prior consent of BNPLC, SGC
shall not assign, transfer, mortgage, pledge or hypothecate this Lease or any
interest of SGC hereunder and shall not sublet all or any part of the Property,
by operation of law or otherwise; provided, that, if (and after) SGC completes
the Construction Project pursuant to the Construction Management Agreement and
so long as no Event of Default has occurred and is continuing, SGC shall be
entitled without the consent of BNPLC to (1) assign SGC's rights under this
Lease and the other Operative Documents to an Affiliate of SGC (including any
Affiliate of SGC that is the surviving entity after a merger permitted by
subsection 3.04(a) of Schedule A attached to the Guaranty) pursuant to a written
assignment unconditionally providing that the Affiliate assumes SGC's
obligations hereunder and thereunder and (unless SGC has been merged into the
Affiliate pursuant to a merger permitted by subsection 3.04(a) of Schedule A
attached to the Guaranty) that SGC ratifies and confirms for the benefit of
BNPLC SGC's responsibility and liability to BNPLC under this Lease and the other
Operative Documents, and (2) sublet all or any portion of the Property if:
(i) any sublease by SGC is made expressly subject and subordinate to
the terms hereof;
(ii) no sublease purports to grant the subtenant thereunder rights to
use or occupy the Property after the expiration or termination of this
Lease, other than rights expressly conditioned upon a purchase by SGC of
the Property pursuant to the Purchase Agreement;
(iii) the uses permitted by such sublease are limited to uses
expressly permitted by subparagraph 3.(a) above; and
(iv) less than forty-nine percent (49%) of any completed Improvements
are at any time subleased by SGC to anyone other than its own Affiliates.
(b) Standard for BNPLC's Consent to Assignments and Certain Other
Matters. Consents and approvals of BNPLC which are required by this Paragraph 13
will not be unreasonably withheld, but SGC acknowledges that BNPLC's withholding
of such consent or approval shall be reasonable if BNPLC determines
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in good faith that (1) giving the approval may materially increase BNPLC's risk
of liability for any existing or future environmental problem, (2) giving the
approval is likely to substantially increase BNPLC's administrative burden of
complying with or monitoring SGC's compliance with the requirements of this
Lease, or (3) any transaction for which SGC has requested the consent or
approval would negate SGC's representations in this Lease regarding ERISA or
cause this Lease or the other documents referenced herein to constitute a
violation of any provision of ERISA.
(c) Consent Not a Waiver. No consent by BNPLC to a sale, assignment,
transfer, mortgage, pledge or hypothecation of this Lease or SGC's interest
hereunder, and no assignment or subletting of the Property or any part thereof
in accordance with this Lease or otherwise with BNPLC's consent, shall release
SGC from liability hereunder; and any such consent shall apply only to the
specific transaction thereby authorized and shall not relieve SGC from any
requirement of obtaining the prior consent of BNPLC to any further sale,
assignment, transfer, mortgage, pledge or hypothecation of this Lease or any
interest of SGC hereunder.
14. ASSIGNMENT BY BNPLC.
(a) Restrictions on Transfers. Except by a Permitted Transfer, BNPLC
shall not assign, transfer, mortgage, pledge, encumber or hypothecate this Lease
or the other Operative Documents or any interest of BNPLC in and to the Property
during the Term without the prior consent of SGC.
(b) Effect of Permitted Transfer or other Assignment by BNPLC. If,
without breaching subparagraph 14.(a), BNPLC sells or otherwise transfers the
Property and assigns all of its rights under this Lease and the other Operative
Documents, and if BNPLC's successor in interest to all such rights assumes in
writing for the benefit of SGC BNPLC's obligations under this Lease and the
other Operative Documents on and subject to the express terms and conditions set
out herein and therein, then BNPLC shall thereby be released from any
obligations arising after such assumption under this Lease or the other
Operative Documents (other than any liability for a breach of the landlord's
obligation to provide Construction Advances), and SGC shall look solely to each
successor in interest of BNPLC for performance of such obligations.
15. BNPLC'S RIGHT OF ACCESS
(a) BNPLC and BNPLC's representatives may (subject to the Ground
Lease) enter the Property, after three Business Days advance notice to SGC
(except in the event of an emergency, when no advance notice will be required),
for the purpose of performing any work BNPLC is authorized to undertake by the
next subparagraph or for the purpose confirming whether SGC has complied with
the requirements of this Lease at any time BNPLC may reasonably question such
compliance. So long as SGC remains in possession of the Property, BNPLC or
BNPLC's representative will, before making any such inspection or performing any
such work on the Property, if then requested to do so by SGC to maintain
security: (i) sign in at SGC's security or information desk if SGC has such a
desk on the premises, (ii) wear a visitor's badge or other reasonable
identification provided by SGC when BNPLC or BNPLC's representative first
arrives at the Property, (iii) permit an employee of SGC to observe such
inspection or work, and (iv) comply with other similar reasonable
nondiscriminatory security, health or safety requirements of SGC, as SGC may
establish from time to time in accordance with good industry practices, provided
that such other requirements do not, individually or in the aggregate,
substantially interfere with or delay inspections or work of BNPLC authorized by
this Lease.
(b) If SGC fails to perform any act or to take any action which
hereunder SGC is required to perform or take, or to pay any money which
hereunder SGC is required to pay, and if such failure or action constitutes an
Event of Default or causes BNPLC or any director, officer, employee or Affiliate
of BNPLC to be
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overtly threatened with criminal prosecution or renders BNPLC's interest in the
Property or any part thereof at risk of forfeiture by forced sale or otherwise,
then in addition to any other remedies specified herein or otherwise available,
BNPLC may, perform or cause to be performed such act or take such action or pay
such money. Any expenses so incurred by BNPLC, and any money so paid by BNPLC,
shall be a demand obligation owing by SGC to BNPLC. Further, BNPLC, upon making
such payment, shall be subrogated to all of the rights of the person,
corporation or body politic receiving such payment. But nothing herein shall
imply any duty upon the part of BNPLC to do any work which under any provision
of this Lease SGC may be required to perform, and the performance thereof by
BNPLC shall not constitute a waiver of SGC's default. BNPLC may during the
progress of any such work permitted by BNPLC hereunder on or in the Property
keep and store upon the Property all necessary materials, tools, and equipment.
BNPLC shall not in any event be liable for inconvenience, annoyance,
disturbance, loss of business, or other damage to SGC or the subtenants of SGC
by reason of making such repairs or the performance of any such work on or in
the Property, or on account of bringing materials, supplies and equipment into
or through the Property during the course of such work (except for liability in
connection with death or injury or damage to the property of third parties
caused by [and attributed by any applicable principles of comparative fault to]
the Established Misconduct of BNPLC), and the obligations of SGC under this
Lease shall not thereby be excused in any manner.
16. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS OF SGC. SGC
represents, warrants and covenants as follows:
(a) Negative Covenants. Without the prior written consent of BNPLC in
each case, neither SGC nor any of its Affiliates shall:
(i) Multi employer ERISA Plans. Incur or permit any Affiliate to
incur any obligation to contribute to any "Multi employer plan" as defined
in Section 4001 of ERISA.
(ii) Prohibited ERISA Transaction. Enter into any transaction which
would cause this Lease or the other Operative Documents or any other
document executed in connection herewith (or any exercise of BNPLC's rights
hereunder or thereunder) to constitute a non-exempt prohibited transaction
under ERISA.
(b) Financial Statements; Required Notices; Certificates as to
Default. To the extent not so delivered by Guarantor, SGC shall deliver to BNPLC
and to each Participant of which SGC has been notified:
(i) copies of all financial statements, certificates, notices and
other information that Guarantor is required to provide by Part 2 of
Schedule A attached to the Guaranty prior to the deadlines for delivery
established thereunder;
(ii) together with the annual and quarterly financial statements
furnished in accordance with subparagraph 16.(b)(i), a certificate of a
Responsible Financial Officer of Guarantor in the form attached hereto as
Exhibit G certifying (a) that no Event of Default or material Default by
SGC has occurred and is continuing (or, if an Event of Default or material
Default by SGC has occurred, stating the nature thereof and the action
which SGC proposes to take with respect thereto), (b) that the
representations and warranties by Guarantor and SGC contained in the
provisions referenced in Exhibit G from this Lease, the other Operative
Documents and the Guaranty are true and correct in all material respects on
and as of the date of such certificate as though made on and as of such
date, or, if not then true and correct, a brief statement as to why such
representations are no longer true and correct, and (c) the accuracy of
computations attached thereto demonstrating compliance by Guarantor with
the financial covenants established in
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Schedule A attached to the Guaranty;
(iii) as soon as possible and in any event within five days after the
occurrence of each Event of Default or material Default known to a
Responsible Financial Officer of Guarantor, a statement setting forth
details of such Event of Default or material Default and the action which
SGC has taken and proposes to take with respect thereto;
(iv) as soon as practicable and in any event within thirty days after
a Responsible Financial Officer of SGC knows or has reason to know that any
ERISA Termination Event with respect to any Plan has occurred, a statement
of a Responsible Financial Officer of SGC describing such ERISA Termination
Event and the action, if any, which SGC proposes to take with respect
thereto;
(v) upon request by BNPLC, a statement by SGC and Guarantor in
writing certifying that this Lease and the Guaranty are unmodified and in
full effect (or, if there have been modifications, that this Lease and the
Guaranty are in full effect as modified, and setting forth such
modifications) and the dates to which the Base Rent, Commitment Fees and
Administrative Agency Fees have been paid and either stating that no
default exists hereunder or specifying each such default; it being intended
that any such statement may be relied upon by any prospective purchaser or
mortgagee of the Property or any prospective Participant;
(vi) promptly after any change in the rating of the Index Debt of
Guarantor by S&P or Xxxxx'x, which will result in a change in the Spread
(as defined in the List of Defined Terms), a certificate of a Responsible
Financial Officer of Guarantor advising BNPLC of the ratings after the
change; and
(vii) such other information respecting the condition or operations,
financial or otherwise, of SGC, of its Affiliates or of the Property as
BNPLC or any Participant may from time to time reasonably request.
BNPLC is hereby authorized to deliver a copy of any information or certificate
delivered to it pursuant to this subparagraph 16.(b) to any Participant and to
any regulatory body having jurisdiction over BNPLC, BNPLC's Parent or any other
Participant that requires or requests it.
(c) No Default or Violation. The execution, delivery and performance
by SGC of this Lease do not and will not constitute a breach or default under
any other material agreement or contract to which SGC is a party or by which SGC
is bound or which affects the Property, and do not violate or contravene any
law, order, decree, rule or regulation to which SGC is subject, and such
execution, delivery and performance by SGC will not result in the creation or
imposition of (or the obligation to create or impose) any lien, charge or
encumbrance on, or security interest in, SGC's property pursuant to the
provisions of any of the foregoing.
(d) No Suits. Except as disclosed in Schedule 2, there are no
judicial or administrative actions, suits, proceedings or investigations pending
or, to SGC's knowledge, threatened that will adversely affect the Property or
the validity, enforceability or priority of this Lease, and SGC is not in
default with respect to any order, writ, injunction, decree or demand of any
court or other governmental or regulatory authority that could materially and
adversely affect the use, occupancy or operation of the Property. No
condemnation or other like proceedings are pending or, to SGC's knowledge,
threatened against the Property.
(e) Enforceability. The execution, delivery and performance by SGC of
this Lease and the other Operative Documents are duly authorized and do not
require the consent or approval of any governmental
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body or other regulatory authority that has not heretofore been obtained and are
not in contravention of or conflict with any applicable laws or any term or
provision of SGC's articles of incorporation or bylaws. This Lease and the Other
Operative Documents are valid, binding and legally enforceable obligations of
SGC in accordance with its terms, except as such enforcement is affected by
bankruptcy, insolvency and similar laws affecting the rights of creditors,
generally, and equitable principles of general application.
(f) Financial Matters. SGC is not "insolvent" on the date hereof
(that is, the sum of SGC's absolute and contingent liabilities, including the
obligations of SGC under this Lease, does not exceed the fair market value of
SGC's assets) and has no outstanding liens, suits, garnishments or court actions
which could render SGC insolvent or bankrupt. SGC's capital is adequate for the
businesses in which SGC is engaged and intends to be engaged. SGC has not
incurred (whether hereby or otherwise), nor does SGC intend to incur or believe
that it will incur, debts which will be beyond its ability to pay as such debts
mature. There has not been filed by or, to SGC's knowledge, against SGC a
petition in bankruptcy or a petition or answer seeking an assignment for the
benefit of creditors, the appointment of a receiver, trustee, custodian or
liquidator with respect to SGC or any significant portion of SGC's property,
reorganization, arrangement, rearrangement, composition, extension, liquidation
or dissolution or similar relief under the federal Bankruptcy Code or any state
law. The financial statements and all financial data heretofore delivered to
BNPLC relating to SGC are true, correct and complete in all material respects.
(g) Organization. SGC is duly incorporated and legally existing under
the laws of the State of Georgia. SGC has all requisite power and has procured
or will procure on a timely basis all governmental certificates of authority,
licenses, permits, qualifications and other documentation required to fulfill
its obligations under this Lease. SGC has the corporate power and adequate
authority, rights and franchises to own SGC's property and to carry on SGC's
business as now conducted and is duly qualified and in good standing in each
state in which the character of SGC's business makes such qualification
necessary or, if it is not so qualified in a state other than Georgia, such
failure does not have a material adverse effect on the properties, assets,
operations or businesses of SGC and its Subsidiaries, taken as a whole.
(h) ERISA. SGC is not and will not become an "employee benefit plan"
(as defined in Section 3(3) of ERISA) which is subject to Title I of ERISA. The
assets of SGC do not and will not in the future constitute "plan assets" of one
or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. SGC is
not and will not become a "governmental plan" within the meaning of Section
3(32) of ERISA. Transactions by or with SGC are not subject to state statutes
regulating investments of and fiduciary obligations with respect to governmental
plans. No ERISA Termination Event has occurred with respect to any Plan of SGC
and SGC and all its Affiliates are in compliance with ERISA. Neither SGC nor any
of its Affiliates is required to contribute to, or has any other absolute or
contingent liability in respect of, any "Multi employer plan" as defined in
Section 4001 of ERISA. As of the Effective Date no "accumulated funding
deficiency" (as defined in Section 412(a) of the Code) exists with respect to
any Plan of SGC, whether or not waived by the Secretary of the Treasury or his
delegate, and the current value of the benefits of each Plan of SGC, if any,
equals or is less than the current value of such Plan's assets available for the
payment of such benefits.
(i) Use of Proceeds. In no event shall the funds from the Initial
Funding Advance or any Construction Advance be used (nor have they been used)
directly or indirectly for personal, family, household or agricultural purposes
or for the purpose, whether immediate, incidental or ultimate, of purchasing,
acquiring or carrying any "margin stock" or any "margin securities" (as such
terms are defined respectively in Regulation U and Regulation G promulgated by
the Board of Governors of the Federal Reserve System) or to extend credit to
others directly or indirectly for the purpose of purchasing or carrying any such
margin stock or margin securities. SGC represents and warrants that SGC is not
engaged principally, or as one of SGC's important activities, in the
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business of extending credit to others for the purpose of purchasing or carrying
such margin stock or margin securities.
(j) Investment Company Act. SGC is not an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(k) Omissions. None of SGC's representations or warranties contained
in this Lease or in any other document, certificate or written statement
furnished to BNPLC by or on behalf of SGC in connection with this Lease contains
any untrue statement of a material fact or omits a material fact necessary in
order to make the statements contained herein or therein (when taken in their
entireties) not misleading.
(l) Not a Foreign Person. SGC is not a "foreign person" within the
meaning of Sections 1445 and 7701 of the Code (i.e. SGC is not a non-resident
alien, foreign corporation, foreign partnership, foreign trust or foreign estate
as those terms are defined in the Code and regulations promulgated thereunder).
(m) Further Assurances. SGC shall, upon request of BNPLC, (i)
promptly correct any error or omission which may be discovered in the contents
of this Lease or in any other instrument executed in connection herewith or in
the execution or acknowledgment thereof; (ii) execute, acknowledge, deliver and
record or file such further instruments and do such further acts as may be
necessary, desirable or proper to carry out more effectively the purposes of
this Lease and to subject to this Lease any property intended by the terms
hereof to be covered hereby, including any renewals, additions, substitutions,
replacements or appurtenances to the Property; (iii) execute, acknowledge,
deliver, procure and record or file any document or instrument deemed advisable
by BNPLC to protect its rights in and to the Property against the rights or
interests of third persons; and (iv) provide such certificates, documents,
reports, information, affidavits and other instruments and do such further acts
as may be necessary, desirable or proper in the reasonable determination of
BNPLC to enable BNPLC, BNPLC's Parent and any other Participants to comply with
the requirements or requests of any agency or authority having jurisdiction over
them.
17. EVENTS OF DEFAULT.
(a) Definition of Events of Default. Each of the following events
shall be deemed to be an "EVENT OF DEFAULT" by SGC under this Lease:
(i) SGC shall fail to pay when first due any Base Rent, any
Commitment Fees or any Administrative Agency Fees and such failure shall
continue for three Business Days after SGC is notified thereof by BNPLC
pursuant to a notice that specifically references this Paragraph 17.(a).
(ii) SGC shall fail to pay when first due any Rent other than Base
Rent, Commitment Fees or Administrative Agency Fees, or SGC shall fail to
pay when first due any amount required by the Closing Certificate, and in
either case such failure shall continue for thirty days after SGC is
notified thereof by BNPLC pursuant to a notice that specifically references
this Paragraph 17.(a).
(iii) SGC shall fail to comply with any term, provision or covenant of
this Lease, the Construction Management Agreement or the Closing
Certificate, other than as described in the other clauses of this
subparagraph 17.(a), and shall not cure such failure prior to the earlier
of (A) thirty days after notice thereof is sent to SGC, or (B) the date any
writ or order is issued for the levy or sale of any property owned by BNPLC
(including the Property) because of such failure or any criminal action is
overtly threatened or instituted against BNPLC or any of its directors,
officers or employees because of
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such failure; provided, however, that so long as no such writ or order is
issued and no such criminal action is overtly threatened or instituted, the
period within which such failure may be cured by SGC shall be extended for
a further period (not to exceed an additional one hundred twenty days) as
shall be necessary for the curing thereof with diligence, if (but only if)
(x) such failure is susceptible of cure but cannot with reasonable
diligence be cured within such thirty day period, (y) SGC shall promptly
have commenced to cure such failure and shall thereafter continuously
prosecute the curing thereof with reasonable diligence and (z) the
extension of the period for cure will not, in the case of such a failure
that occurs or commences more than thirty-five days prior to the expiration
of this Lease, cause the period for cure to extend beyond five days prior
to the expiration of this Lease.
(iv) SGC shall fail to pay the full amount of any Supplemental Payment
on the Designated Sale Date as required by the Purchase Agreement.
(v) SGC shall abandon the Property.
(vi) Guarantor, SGC or any of Guarantor's other Subsidiaries shall:
(1) be in default with respect to any payment (whether of principal or
interest and regardless of amount) in respect of any "Material
Indebtedness" (which as used in this provision shall mean any Debt of
Guarantor or its applicable Subsidiary [as the case may be] that is owed to
BNPLC or BNPLC's Affiliates or that is outstanding in a principal amount of
at least $10,000,000 in the aggregate), and such default shall continue
beyond the applicable grace period, if any, specified in the agreements or
instruments relating to such Material Indebtedness; or (2) be in default
under any agreement or instrument relating to any Material Indebtedness and
as a result of such default, the Material Indebtedness shall be declared to
be due and payable prior to the stated maturity thereof.
(vii) Guarantor, SGC or any of Guarantor's other Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against Guarantor, SGC or any of Guarantor's other
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization, or seeking the entry
of an order for the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a
period of sixty consecutive days, or any of the actions sought in such
proceeding (including the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or
Guarantor, SGC or any of Guarantor's other Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
clause 17.(a)(vii).
(viii) Any order, judgment or decree is entered in any proceedings
against Guarantor, SGC or any of Guarantor's other Subsidiaries decreeing
its dissolution and such order, judgment or decree remains unstayed and in
effect for more than sixty days.
(ix) Any order, judgment or decree is entered in any proceedings
against Guarantor decreeing a divestiture of any of its assets that
represent a substantial part, or the divestiture of the stock of SGC or any
of Guarantor's other Subsidiaries whose assets represent a substantial
part, of the total assets of Guarantor and its Subsidiaries (determined on
a consolidated basis in accordance with GAAP) or which requires the
divestiture of assets, or stock of any of Guarantor's Subsidiaries, which
shall have contributed
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a substantial part of the net income of Guarantor and its Subsidiaries
(determined on a consolidated basis in accordance with GAAP) for any of the
three fiscal years then most recently ended, and such order, judgment or
decree remains unstayed and in effect for more than sixty days.
(x) A final judgment or order for the payment of money in an amount
(not covered by insurance) which exceeds $10,000,000 shall be rendered
against Guarantor, SGC or any of Guarantor's other Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor upon
such judgment, or (ii) within sixty days after the entry thereof, such
judgment or order is not discharged or execution thereof stayed pending
appeal, or within thirty days after the expiration of any such stay, such
judgment is not discharged.
(xi) Any ERISA Termination Event that BNPLC determines in good faith
would constitute grounds for a termination of any Plan of SGC or for the
appointment by the appropriate United States district court of a trustee to
administer any Plan of SGC shall have occurred and be continuing thirty
days after notice to such effect shall have been given to SGC by BNPLC, or
any Plan of SGC shall be terminated, or a trustee shall be appointed by an
appropriate United States district court to administer any Plan of SGC, or
the Pension Benefit Guaranty Corporation shall institute proceedings to
terminate any Plan of SGC or to appoint a trustee to administer any Plan of
SGC.
(xii) SGC or any of its Affiliates shall enter into any transaction
which would cause this Lease or any other Operative Document or any other
document executed in connection herewith (or any exercise of BNPLC's rights
hereunder or thereunder) to constitute a non-exempt prohibited transaction
under ERISA.
(xiii) Guarantor shall breach or repudiate its guarantee of the
obligations of SGC under this Lease, the Construction Management Agreement,
the Purchase Agreement or the Closing Certificate or Guarantor shall fail
to comply with any other covenants of Guarantor in the Guaranty including
the obligations of Guarantor set forth Section 10 of the Guaranty.
(xiv) Any breach by SGC of subparagraph 16.(b)(iii) resulting from
SGC's failure to notify BNPLC of a material Default known to a Responsible
Financial Officer.
(xv) Any representation of SGC contained herein or in the other
Operative Documents is false or misleading in any material respect, or any
certificate delivered to BNPLC by or on behalf of SGC as required by this
Lease is false or misleading in any material respect.
(xvi) Any representation of Guarantor contained in the Guaranty is
false or misleading in any material respect, or any certificate, if any,
delivered to BNPLC by or on behalf of Guarantor as may be required by the
Guaranty is false or misleading in any material respect.
18. REMEDIES.
(a) Basic Remedies. At any time after an Event of Default and after
BNPLC has given any notice required by subparagraph 18.(b), BNPLC shall be
entitled at BNPLC's option (and without limiting BNPLC in the exercise of any
other right or remedy BNPLC may have, and without any further demand or notice
except as expressly described in this subparagraph 18.(a)), to exercise any one
or more of the following remedies:
(i) By notice to SGC, BNPLC may terminate SGC's right to possession
of the Property.
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A notice demanding possession given in connection with possessory
proceedings specifying a time within which to cure a default shall
terminate SGC's right to possession if SGC fails to cure the default within
the time specified in the notice.
(ii) Upon termination of SGC's right to possession and without further
demand or notice, BNPLC may re-enter the Property in any manner not
prohibited by Applicable Law and take possession of all improvements,
additions, alterations, equipment and fixtures thereon and remove any
persons in possession thereof. Any property on the Land or in the
Improvements may be removed and stored in a warehouse or elsewhere at the
expense and risk of and for the account of SGC.
(iii) Upon termination of SGC's right to possession, this Lease shall
terminate and BNPLC may recover from SGC:
a) The worth at the time of award of the unpaid Rent which had
been earned at the time of termination;
b) The worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that SGC proves
could have been reasonably avoided;
c) The worth at the time of award of the amount by which the
unpaid Rent for the balance of the scheduled Term after the time of
award exceeds the amount of such rental loss that SGC proves could be
reasonably avoided; and
d) Any other amount necessary to compensate BNPLC for all the
detriment proximately caused by SGC's failure to perform SGC's
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, including, but not limited to,
the costs and expenses (including Attorneys' Fees, advertising costs
and brokers' commissions) of recovering possession of the Property,
removing persons or property therefrom, placing the Property in good
order, condition, and repair, preparing and altering the Property for
reletting, all other costs and expenses of reletting, and any loss
incurred by BNPLC as a result of SGC's failure to perform SGC's
obligations under the Other Operative Documents.
The "WORTH AT THE TIME OF AWARD" of the amounts referred to in
subparagraph 18.(a)(iii)a) and subparagraph 18.(a)(iii)b) shall be
computed by allowing interest at ten percent (10%) per annum or such
lesser rate as may be the maximum interest rate then permitted to be
charged under Georgia law at the time of computation. The "WORTH AT
THE TIME OF AWARD" of the amount referred to in subparagraph
18.(a)(iii)c) shall be computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time
of award plus one percent (1%).
e) Such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable Georgia
law.
(iv) Even if SGC breaches this Lease and abandons the Property, this
Lease shall continue in effect for so long as BNPLC does not terminate
SGC's right to possession, and BNPLC may enforce all of BNPLC's rights and
remedies under this Lease, including the right to recover the Rent as it
becomes due under this Lease. SGC's right to possession shall not be deemed
to have been terminated
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by BNPLC except pursuant to subparagraph 18.(a)(i) hereof. The following
shall not constitute a termination of SGC's right to possession:
a) Acts of maintenance or preservation or efforts to relet the
Property;
b) The appointment of a receiver upon the initiative of BNPLC
to protect BNPLC's interest under this Lease; or
c) Reasonable withholding of consent to an assignment or
subletting, or terminating a subletting or assignment by SGC.
(b) Notice Required So Long As SGC's Purchase Option and Initial
Remarketing Rights and Obligations Continue Under the Purchase Agreement. So
long as SGC remains in possession of the Property and there has been no
termination of SGC's Purchase Option and SGC's Initial Remarketing Rights and
Obligations as provided Paragraph 4 of the Purchase Agreement, BNPLC's right to
exercise remedies provided in subparagraph 18.(a) will be subject to the
condition precedent that BNPLC shall have notified SGC of BNPLC's intent to
exercise remedies provided in subparagraph 18.(a) at least sixty days prior to
exercising the remedies. The condition precedent is intended to provide SGC with
an opportunity to exercise SGC's Purchase Option or SGC's Initial Remarketing
Rights and Obligations before losing possession of the Property pursuant to
subparagraph 18.(a). The condition precedent is not, however, intended to extend
any period for curing an Event of Default. Accordingly, if an Event of Default
has occurred, and regardless of whether any Event of Default is then continuing,
BNPLC may proceed immediately to exercise remedies provided in subparagraph
18.(a) at any time after the earlier of (i) sixty days after BNPLC has given
such a notice to SGC, (ii) any date upon which SGC relinquishes possession of
the Property, or (iii) any termination of SGC's Purchase Option and SGC's
Initial Remarketing Rights and Obligations.
(c) Enforceability. This Paragraph 18 shall be enforceable to the
maximum extent not prohibited by Applicable Law, and the unenforceability of any
provision in this Paragraph shall not render any other provision unenforceable.
(d) Remedies Cumulative. No right or remedy herein conferred upon or
reserved to BNPLC is intended to be exclusive of any other right or remedy, and
each and every right and remedy shall be cumulative and in addition to any other
right or remedy given hereunder or now or hereafter existing under Applicable
Law or in equity; however, before exercising any right or remedy available under
Applicable Law or in equity to evict SGC from the Property or to terminate SGC's
right of occupancy hereunder, BNPLC shall give SGC any sixty days notice
required in subparagraph 18.(b). In addition to other remedies provided in this
Lease, BNPLC shall be entitled, to the extent permitted by Applicable Law or in
equity, to injunctive relief in case of the violation, or attempted or
threatened violation, of any of the covenants, agreements, conditions or
provisions of this Lease, or to a decree compelling performance of any of the
other covenants, agreements, conditions or provisions of this Lease to be
performed by SGC, or to any other remedy allowed to BNPLC at law or in equity.
Nothing contained in this Lease shall limit or prejudice the right of BNPLC to
prove for and obtain in proceedings for bankruptcy or insolvency of SGC by
reason of the termination of this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damages referred to
above. Without limiting the generality of the foregoing, nothing contained
herein shall modify, limit or impair any of the rights and remedies of BNPLC
under the Purchase Agreement, and BNPLC shall not be required to give the sixty
day notice described in subparagraph 18.(a) as a condition to any acceleration
of the Designated Sale Date or to taking any action to enforce the Purchase
Agreement or the Closing Certificate.
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19. DEFAULT BY BNPLC. If BNPLC should default in the performance of any of
its obligations under this Lease, BNPLC shall have the time reasonably required,
but in no event less than thirty days, to cure such default after receipt of
notice from SGC specifying such default and specifying what action SGC believes
is necessary to cure the default. If SGC prevails in any litigation brought
against BNPLC because of BNPLC's failure to cure a default within the time
required by the preceding sentence, then SGC shall be entitled to an award
against BNPLC for the monetary damages proximately caused to SGC by such
default.
Notwithstanding the foregoing, BNPLC's right to cure as provided in this
Paragraph 19 will not in any event extend the time within which BNPLC must
remove Liens Removable by BNPLC as required to consummate a conveyance of
BNPLC's interest in the Property required by the Purchase Agreement.
20. QUIET ENJOYMENT. Provided SGC pays the Base Rent and all Additional
Rent payable hereunder as and when due and payable and keeps and fulfills all of
the terms, covenants, agreements and conditions to be performed by SGC
hereunder, BNPLC shall not during the Term disturb SGC's peaceable and quiet
enjoyment of the Property; however, such enjoyment shall be subject to the
terms, provisions, covenants, agreements and conditions of this Lease, to
Permitted Encumbrances, to Development Documents and to any other claims not
constituting Liens Removable by BNPLC. If any Lien Removable by BNPLC is claimed
against the Property, including any judgment lien securing a Deductible Judgment
against BNPLC, BNPLC will remove the Lien Removable by BNPLC promptly. However,
BNPLC shall not be responsible for any Lien that is expressly excluded from the
definition of Liens Removable by BNPLC in the attached List of Defined Terms.
Any breach by BNPLC of this Paragraph shall render BNPLC liable to SGC for any
monetary damages proximately caused thereby, but as more specifically provided
in Paragraph 2 above, no such breach shall entitle SGC to terminate this Lease
or excuse SGC from its obligation to pay Base Rent and other amounts hereunder.
21. SURRENDER UPON TERMINATION. Unless SGC or an Applicable Purchaser
purchases BNPLC's entire interest in the Property pursuant to the terms of the
Purchase Agreement, SGC shall, upon the termination of SGC's right to occupancy,
surrender to BNPLC the Property, including any buildings, alterations,
improvements, replacements or additions constructed by SGC, with all fixtures
and furnishings included in the Property, but not including movable furniture
and movable personal property not covered by this Lease, free of all Hazardous
Substances (including Permitted Hazardous Substances) and tenancies and, to the
extent required by BNPLC, with all Improvements in substantially the same
condition as of the date the same were initially completed, excepting only (i)
ordinary wear and tear that occurs between the maintenance, repairs and
replacements required by other provisions of this Lease, and (ii) alterations
and additions which are expressly permitted by the terms of this Lease and which
have been completed by SGC in a good and workmanlike manner in accordance with
all Applicable Laws. Any movable furniture or movable personal property
belonging to SGC or any party claiming under SGC, if not removed at the time of
such termination and if BNPLC shall so elect, shall be deemed abandoned and
become the property of BNPLC without any payment or offset therefor. If BNPLC
shall not so elect, BNPLC may remove such property from the Property and store
it at SGC's risk and expense. SGC shall bear the expense of repairing any damage
to the Property caused by such removal by BNPLC or SGC.
22. HOLDING OVER BY SGC. Should SGC not purchase BNPLC's right, title and
interest in the Property as provided in the Purchase Agreement, but nonetheless
continue to hold the Property after the termination of this Lease without
BNPLC's consent, whether such termination occurs by lapse of time or otherwise,
such holding over shall constitute and be construed as a tenancy from day to day
only, at a daily Base Rent equal to: (i) Stipulated Loss Value on the day in
question, times (ii) (A) the Prime Rate in effect for such day so long as the
holdover period does not extend beyond ninety days and (B) for each such day
beginning with the ninety-first day after the holdover commences, two percent
(2%) above the Prime Rate; divided by (iii) three hundred and sixty; subject,
however, to all of the terms, provisions, covenants and agreements on the part
of SGC hereunder. No
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payments of money by SGC to BNPLC after the termination of this Lease shall
reinstate, continue or extend the Term of this Lease and no extension of this
Lease after the termination thereof shall be valid unless and until the same
shall be reduced to writing and signed by both BNPLC and SGC.
23. INDEPENDENT OBLIGATIONS EVIDENCED BY THE OTHER OPERATIVE DOCUMENTS.
SGC acknowledges and agrees that nothing contained in this Lease shall limit,
modify or otherwise affect any of SGC's obligations under the other Operative
Documents, which obligations are intended to be separate, independent and in
addition to, and not in lieu of, the obligations set forth herein. In the event
of any inconsistency between the terms and provisions of the Purchase Agreement
and the terms and provisions of this Lease, the terms and provisions of the
Purchase Agreement shall control. In the event of any inconsistency between the
terms and provisions of the Closing Certificate or Construction Management
Agreement and the terms and provisions of this Lease, the terms and provisions
of this Lease shall control; provided, nothing in this Lease shall be construed
to limit or impair the indemnities provided by SGC in the Closing Certificate,
including the indemnity therein provided against Environmental Losses, and
nothing herein shall limit the obligations of SGC under the Construction
Management Agreement.
24. WAIVER OF JURY TRIAL. BNPLC AND SGC EACH HEREBY WAIVES ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS LEASE OR ANY OTHER DOCUMENT OR DEALINGS BETWEEN THEM RELATING TO THIS
LEASE OR THE PROPERTY. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including contract claims,
tort claims, breach of duty claims, and all other common law and statutory
claims. SGC and BNPLC each acknowledge that this waiver is a material inducement
to enter into a business relationship, that each has already relied on the
waiver in entering into this Lease and the other documents referred to herein,
and that each will continue to rely on the waiver in their related future
dealings. SGC and BNPLC each further warrants and represents that it has
reviewed this waiver with its legal counsel, and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS LEASE OR TO ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THIS LEASE OR THE PROPERTY. In the event of
litigation, this Lease may be filed as a written consent to a trial by the
court.
25. MISCELLANEOUS.
(a) Notices. Each provision of this Lease, or of any Applicable Laws
with reference to the sending, mailing or delivery of any notice or demand
hereunder or with reference to the making of any payment required hereunder,
shall be deemed to be complied with when and if the following steps are taken:
(i) All Rent required to be paid by SGC to BNPLC hereunder shall be
paid to BNPLC in immediately available funds by wire transfer to:
Federal Reserve Bank of New York
ABA 000000000 Banque Nationale de Paris
/BNP/ BNP San Francisco
/AC/ 14334000176
/Ref/ Solectron (Solectron Georgia Synthetic Lease)
or at such other place and in such other manner as BNPLC may designate in a
notice to SGC.
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(ii) All advances paid to SGC by BNPLC hereunder or in connection
herewith shall be paid to SGC in immediately available funds at such
place and in such manner as SGC may reasonably designate in a notice
signed by SGC's Treasurer or Chief Financial Officer to BNPLC.
(iii) All notices, demands, approvals, consents and other
communications to be made hereunder to or by the parties hereto must, to
be effective for purpose of this Lease, be in writing. Notices, demands
and other communications required or permitted hereunder are to be sent
to the addresses set forth below (or in the case of communications to
Participants, at the addresses set forth in Schedule 1 to the
Participation Agreement) and shall be given by any of the following
means: (A) personal service, with proof of delivery or attempted
delivery retained; (B) electronic communication, whether by telex,
telegram or telecopying (if confirmed in writing sent by United States
first class mail, return receipt requested); or (C) registered or
certified first class mail, return receipt requested. Such addresses may
be changed by notice to the other parties given in the same manner as
provided above. Any notice or other communication sent pursuant to
clause (A) or (C) hereof shall be deemed received (whether or not
actually received) upon first attempted delivery at the proper notice
address on any Business Day between 9:00 A.M. and 5:00 P.M., and any
notice or other communication sent pursuant to clause (B) hereof shall
be deemed received upon dispatch by electronic means.
Address of BNPLC:
BNP Leasing Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Telecopy: (000) 000-0000
With a copy to:
Banque Nationale de Paris, San Francisco
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx or Xxxxx Xxxxxx
Telecopy: (000) 000-0000
And with a copy to:
Xxxxx Xxxxxx
Xxxxxxxx & Knight, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
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48
Address of SGC:
Solectron Georgia Corporation
000 Xxxxxxxxx Xxxxx, Xxxxxxxx #0
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy: (000) 000-0000
With a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Real Estate Department/DSS
Telecopy: (000) 000-0000
(b) Severability. If any term or provision of this Lease or the
application thereof shall to any extent be held by a court of competent
jurisdiction to be invalid and unenforceable, the remainder of this Lease, or
the application of such term or provision other than to the extent to which it
is invalid or unenforceable, shall not be affected thereby.
(c) No Merger. There shall be no merger of this Lease or of the
leasehold estate created hereby created with any other interest in the Property
by reason of the fact that the same person may acquire or hold, directly or
indirectly, this Lease or the leasehold estate created hereby and any other
interest in the Property, unless all Persons with an interest in the Property
that would be adversely affected by any such merger specifically agree in
writing that such a merger shall occur.
(d) No Implied Waiver. The failure of BNPLC or SGC to insist at any
time upon the strict performance of any covenant or agreement or to exercise any
option, right, power or remedy contained in this Lease shall not be construed as
a waiver or a relinquishment thereof for the future. The waiver of or redress
for any breach of this Lease shall not prevent a similar subsequent act from
constituting a violation. Any express waiver shall affect only the term or
condition specified in such waiver and only for the time and in the manner
specifically stated therein. A receipt by BNPLC of any Base Rent or other
payment hereunder with knowledge of the breach of any covenant or agreement
contained in this Lease shall not be deemed a waiver of such breach, and no
waiver of any provision of this Lease shall be deemed to have been made unless
expressed in writing and signed by the waiving party.
(e) NO IMPLIED REPRESENTATIONS BY BNPLC. BNPLC AND BNPLC'S AGENTS
HAVE MADE NO REPRESENTATIONS OR PROMISES WITH RESPECT TO THE PROPERTY EXCEPT AS
EXPRESSLY SET FORTH HEREIN AND IN THE OTHER OPERATIVE DOCUMENTS, AND NO RIGHTS,
EASEMENTS OR LICENSES ARE ACQUIRED BY SGC BY IMPLICATION OR OTHERWISE EXCEPT AS
EXPRESSLY SET FORTH IN THIS LEASE AND THE OTHER OPERATIVE DOCUMENTS.
(f) Entire Agreement. This Lease and the other Operative Documents
and the other documents dated as of the Effective Date which are being executed
by SGC and executed or accepted by BNPLC contemporaneously with the execution of
this Lease supersede any prior negotiations and agreements between BNPLC and SGC
concerning the Property, and no amendment or modification of this Lease shall be
binding or
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49
valid unless expressed in a writing executed by both parties hereto.
(g) Binding Effect. All of the covenants, agreements, terms and
conditions to be observed and performed by the parties hereto shall be
applicable to and binding upon their respective successors and, to the extent
assignment is permitted hereunder, their respective assigns.
(h) Time is of the Essence. Time is of the essence as to all
obligations of SGC and BNPLC and all notices required of SGC and BNPLC under
this Lease.
(i) Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Georgia without regard to conflict or
choice of laws.
(j) Paragraph Headings. The paragraph headings contained in this
Lease are for convenience only and shall in no way enlarge or limit the scope or
meaning of the various and several paragraphs hereof.
(k) Other Terms and References. Words of any gender used in this
Lease shall be held and construed to include any other gender, and words in the
singular number shall be held to include the plural and vice versa, unless the
context otherwise requires. References herein to Paragraphs, subparagraphs or
other subdivisions shall refer to the corresponding Paragraphs, subparagraphs or
subdivisions of this Lease, unless specific reference is made to another
document or instrument. References herein to any Schedule or Exhibit shall refer
to the corresponding Schedule or Exhibit attached hereto, which shall be made a
part hereof by such reference. All capitalized terms used in this Lease which
refer to other documents shall be deemed to refer to such other documents as
they may be renewed, extended, supplemented, amended or otherwise modified from
time to time, provided such documents are not renewed, extended or modified in
breach of any provision contained herein or therein or, in the case of any other
document to which BNPLC is a party or of which BNPLC is an intended beneficiary,
without the consent of BNPLC. All accounting terms used but not specifically
defined herein shall be construed in accordance with GAAP. The words "this
Lease", "herein", "hereof", "hereby", "hereunder" and words of similar import
when used in this Lease refer to this Lease as a whole and not to any particular
subdivision unless expressly so limited. The phrases "this Paragraph" and "this
subparagraph" and similar phrases used herein refer only to the Paragraphs or
subparagraphs in which the phrase occurs. As used herein the word "or" is not
exclusive. As used herein the words "include", "including" and similar terms
shall be construed as if followed by "without limitation to".
(l) Not a Partnership, Etc. NOTHING IN THIS LEASE IS INTENDED TO BE
OR TO CREATE ANY PARTNERSHIP, JOINT VENTURE, OR OTHER JOINT ENTERPRISE BETWEEN
BNPLC AND SGC. NEITHER THE EXECUTION OF THIS LEASE NOR THE ADMINISTRATION OF
THIS LEASE OR OTHER DOCUMENTS REFERENCED HEREIN BY BNPLC, NOR ANY OTHER RIGHT,
DUTY OR OBLIGATION OF BNPLC UNDER OR PURSUANT TO THIS LEASE OR SUCH DOCUMENTS IS
INTENDED TO BE OR TO CREATE ANY FIDUCIARY OBLIGATIONS OF BNPLC TO SGC.
26. INCOME TAX REPORTING. BNPLC and SGC intend this Lease and the Purchase
Agreement to have a form for income taxes which is different than the form of
this Lease and the Purchase Agreement for other purposes, and thus the parties
acknowledge and agree as follows:
a) FOR PURPOSES OF DETERMINING THEIR RESPECTIVE FEDERAL, STATE
AND LOCAL INCOME TAX OBLIGATIONS, BNPLC and SGC believe and intend
that this Lease and the Purchase Agreement constitute a financing
arrangement or conditional sale. Both BNPLC and SGC agree to report
this Lease and the Purchase Agreement as a financing arrangement or
conditional sale on their
43
50
respective income tax returns (the "REQUIRED REPORTING"), unless such
Required Reporting is challenged in writing by the Internal Revenue
Service or another governmental authority with jurisdiction (a "TAX
CHALLENGE"). Consistent with the foregoing, BNPLC and SGC expect that
SGC (and not BNPLC) shall be treated as the true owner of the Property
for income tax purposes, thereby entitling SGC (and not BNPLC) to take
depreciation deductions and other tax benefits available to the owner.
SGC shall also report all interest earned on Escrowed Proceeds as
SGC's income for federal, state and local income tax purposes.
REFERENCES IN THIS LEASE OR IN THE PURCHASE AGREEMENT TO A "LEASE" OR
TO "LEASED PROPERTY" ARE NOT INTENDED FOR INCOME TAX PURPOSES TO
REFLECT THE INTENT OF BNPLC OR SGC AS TO THE FORM OF THE TRANSACTIONS
COVERED BY, OR THE PROPER CHARACTERIZATION OF, THIS LEASE AND THE
PURCHASE AGREEMENT.
b) FOR ALL OTHER PURPOSES, INCLUDING THE DETERMINATION OF THE
APPROPRIATE FINANCIAL ACCOUNTING FOR THIS LEASE AND THE DETERMINATION
OF THEIR RESPECTIVE RIGHTS AND REMEDIES UNDER STATE LAW, BNPLC and SGC
believe and intend that (i) this Lease constitutes a true Lease, not a
mere financing arrangement, enforceable in accordance with its express
terms (and neither this subparagraph 26 nor the provisions referencing
this subparagraph on the title page of this Lease nor the
corresponding provisions in the Purchase Agreement are intended to
affect the enforcement of any other provisions of this Lease or the
Purchase Agreement) and (ii) the Purchase Agreement shall constitute a
separate and independent contract, enforceable in accordance with the
express terms and conditions set forth therein. In this regard, SGC
acknowledges that SGC asked BNPLC to participate in the transactions
evidenced by this Lease and the Purchase Agreement as a landlord and
owner of the Property, not as a lender. Although other transactions
might have been used to accomplish similar results, SGC expects to
receive certain material accounting and other advantages through the
use of a lease transaction. Accordingly, and notwithstanding the
Required Reporting for income tax purposes, SGC cannot equitably deny
that this Lease and the Purchase Agreement should be construed and
enforced in accordance with their respective terms, rather than as a
mortgage or other security device, in any action brought by BNPLC to
enforce this Lease or the Purchase Agreement.
In the event of a Tax Challenge, BNPLC and SGC shall each provide to the other
copies of all notices from the Internal Revenue Service or any other
governmental authority presenting the Tax Challenge. Further, before changing
from the Required Reporting because of a Tax Challenge, BNPLC and SGC shall each
consider in good faith any reasonable suggestions received from the other party
to this Lease about an appropriate response to the Tax Challenge; provided,
however, that the suggestions are set forth in a written notice delivered no
later than thirty Business Days after the suggesting party is first notified of
the Tax Challenge; and, provided further, that when presented with a Tax
Challenge, BNPLC and SGC shall each have the right to change from the Required
Reporting rather than participate in any litigation or other legal proceeding
against the Internal Revenue Service or another governmental authority. In any
event, SGC must indemnify and hold harmless BNPLC from and against all
liabilities, costs, additional taxes and other expenses that may arise or become
due because of any challenge to the Required Reporting or because of any
resulting recharacterization of this Lease or the Purchase Agreement required by
the Internal Revenue Service or another governmental authority, including any
additional taxes that may become due upon any sale under the Purchase Agreement,
to the extent (if any) that such liabilities, costs, additional taxes and other
expenses are not offset by tax savings resulting from additional depreciation
deductions or other tax benefits to BNPLC of the recharacterization.
27. PROPRIETARY INFORMATION AND CONFIDENTIALITY. SGC shall have no
obligation to provide
44
51
proprietary information (as defined in the next sentence) to BNPLC, except and
to the extent that (1) BNPLC reasonably determines that BNPLC cannot accomplish
the purposes of BNPLC's inspection of the Property pursuant to the various
provisions hereof without evaluating such information, and (2) before conducting
any inspections of the Property permitted hereunder BNPLC shall, if requested by
SGC, confirm and ratify the confidentiality agreements covering such proprietary
information set forth in subparagraph 7.(f). For purposes of this Lease
"PROPRIETARY INFORMATION" means SGC's intellectual property, trade secrets and
other confidential information of value to SGC about, among other things, SGC's
products, marketing and corporate strategies, but in no event will "proprietary
information" include any disclosure of substances and materials (and their
chemical composition) which are or previously have been present in, on or under
the Property at the time of any inspections by BNPLC, nor will "proprietary
information" include any additional disclosures reasonably required to permit
BNPLC to determine whether the presence of such substances and materials has
constituted a violation of Environmental Laws or this Lease. In addition, under
no circumstances shall SGC have any obligation to disclose to BNPLC or any other
party any proprietary information of SGC (including, without limitation, any
pending applications for patents or trademarks, any research and design and any
trade secrets) except if and to the limited extent reasonably necessary to
comply with the express provisions of this Lease.
28. USURY SAVINGS CLAUSE. Notwithstanding anything to the contrary
contained in this Lease or the other Operative Documents to the contrary, BNPLC
does not intend to contract for, charge or collect any amount of money that
constitutes interest in excess of the Maximum Rate. As used herein, "MAXIMUM
RATE" shall mean, at any time in question, the maximum rate of interest which,
under applicable law, may be charged. If, notwithstanding the intention of the
parties as explained in Paragraph 26, this Lease and the other Operative
Documents should be construed as a financing arrangement under state law, BNPLC
and SGC agree that it is their intent in the execution of this Lease and the
other Operative Documents to contract in strict compliance with applicable law
concerning usury. In furtherance thereof, BNPLC and SGC stipulate and agree that
none of the terms and provisions contained in this Lease or in the other
Operative Documents shall ever be construed to create a contract to pay for the
use, forbearance or detention of money at a rate in excess of the Maximum Rate.
Neither SGC nor any other parties now or hereafter becoming liable to BNPLC
under the terms of this Lease or the other Operative Documents shall ever be
required to pay interest at a rate in excess of the Maximum Rate, and the
provisions of this paragraph shall control over all other provisions of this
Lease and of the other Operative Documents which may be in apparent conflict
herewith. If the Designated Sale Date is accelerated and as a result thereof any
amounts payable by SGC to BNPLC under or in connection with this Lease or the
other Operative Documents are determined to constitute interest for the actual
period of existence of this Lease in excess of the interest that would have
accrued at the Maximum Rate for such period, BNPLC shall, at its option, either
refund to SGC the amount of such excess or credit such excess as a Qualified
Payment (and thus reduce Stipulated Loss Value, the Break Even Price and other
amounts, the determination of which depend upon Qualified Payments credited to
SGC) and thereby shall render inapplicable any and all penalties of any kind
provided by applicable laws as a result of such excess interest. If BNPLC shall
receive money (or anything else) which is determined to constitute interest and
which would increase the effective interest rate received by BNPLC under or in
connection with this Lease or the other Operative Documents to a rate in excess
of the Maximum Rate, the amount determined to constitute interest in excess of
the Maximum Rate shall, immediately following such determination, at the option
of BNPLC, be returned to SGC or credited as a Qualified Payment, in which event
any and all penalties of any kind under applicable law as a result of such
excess interest shall be inapplicable. If BNPLC shall not actually receive, but
shall contract for, request or demand, a payment of money (or anything else)
which is determined to constitute interest and which would increase the
effective interest rate contracted for or charged to a rate in excess of the
Maximum Rate, BNPLC shall be entitled, following such determination, to waive or
rescind the contractual claim, request or demand for the amount determined to
constitute interest in excess of the lawful rate, in which event any and all
penalties of any kind under applicable law as a result of such excess interest
shall be inapplicable. By execution of this Lease and the Purchase Documents,
SGC agrees that if, at any time, SGC should have reason to
45
52
believe that the transactions evidenced by this Lease or the other Operative
Documents are in fact usurious, it will give BNPLC notice of such condition, and
SGC agrees that BNPLC shall have ninety days in which to make appropriate refund
or other adjustment in order to correct such condition if it in fact exists. The
term "applicable law" as used in this subparagraph shall mean the laws of the
State of Georgia or the laws of the United States, whichever laws allow the
greater rate of interest, as such laws now exist or may be changed or amended or
come into effect in the future.
[The signature pages follow.]
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53
IN WITNESS WHEREOF, SGC and BNPLC have caused this Lease Agreement to be
executed as of October 20, 1998.
"SGC"
SOLECTRON GEORGIA CORPORATION
By: /s/ X. X. XXXXXXX, XX.
------------------------------------
X. X. Xxxxxxx, Xx., President
54
[Continuation of signature pages to Lease Agreement dated to be effective
October 20, 1998]
"BNPLC"
BNP LEASING CORPORATION
By: /s/ XXXXX X. XXX
------------------------------------
Xxxxx X. Xxx, Vice President
55
Exhibit A
LEGAL DESCRIPTION
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 126, 153 and 000,
0xx Xxxxxxxx xx Xxxxxxxx Xxxxxx, Xxxxxxx, which is described as follows:
TO LOCATE THE POINT OF BEGINNING commence at a point formed by the intersection
of the northeastern margin of the right-of-way of Northridge Drive (having an
80-foot right-of-way) and the northwestern margin of the right-of-way of Old
Peachtree Road (having an 80-foot right of way), if both of said rights-of-way
are extended to form a point; thence North 56 degrees 23 minutes 46 seconds West
a distance of 11.43 feet to a point marked by a 1/2-inch rebar pin which is the
POINT OF BEGINNING and which is located on the northeastern margin of the
right-of-way of Northridge Drive; thence northwesterly along the northeastern
margin of the right-of-way of Northridge Drive the following five (5) courses
and distances, or curves, as hereinafter described: thence North 56 degrees 23
minutes 46 seconds West a distance of 216.60 feet to a point; thence
northwesterly along an arc of a curve to the right a distance of 278.76 feet to
a point (said arc being subtended by a chord having a chord bearing of North 44
degrees 21 minutes 15 seconds West, a chord distance of 276.71 feet and a radius
of 663.15 feet); thence North 32 degrees 19 minutes 42 seconds West a distance
of 225.20 feet to a point; thence northwesterly along an arc of a curve to the
left a distance of 312.95 feet to a point (said arc being subtended by a chord
having a chord bearing of North 45 degrees 15 minutes 26 seconds West, a chord
distance of 310.30 feet and a radius of 692.57 feet); thence North 58 degrees 12
minutes 08 seconds West a distance of 308.00 feet to a point marked by a
1/2-inch rebar pin; thence leaving the northeastern margin of the right-of-way
of Northridge Drive and continuing northwesterly, northerly and northeasterly
along an arc of a curve to the right a distance of 18.85 feet to a point marked
by a 1/2-inch rebar pin (said arc being subtended by a chord having a chord
bearing of North 13 degrees 12 minutes 08 seconds West, a chord distance of
16.97 feet and a radius of 12.00 feet) located on the southeasterly margin of
the right-of-way of Northbrook Parkway (having a 100-foot right-of-way); thence
easterly along the southeasterly margin of the right-of-way of Northbrook
Parkway the following four (4) courses and distances, or curves, as hereinafter
described: North 31 degrees 47 minutes 52 seconds East a distance of 164.90 feet
to point; thence northeasterly along an arc of a curve to the right a distance
of 462.34 feet to a point (said arc being subtended by a chord having a chord
bearing of North 46 degrees 47 minutes 52 seconds East, a chord distance of
457.08 feet and a radius of 883.01 feet); thence North 61 degrees 47 minutes 52
seconds East a distance of 277.91 feet to a point; thence northeasterly along an
arc of a curve to the left distance of 518.27 feet to a point marked by a
1/2-inch rebar pin (said arc being subtended by a chord having a chord bearing
of North 45 degrees 13 minutes 11 seconds East, a chord distance of 511.07 feet
and a radius of 895.59 feet); leaving said southerly margin of the right-of-way
of Northbrook Parkway, thence South 61 degrees 21 minutes 31 seconds East a
distance of 1,185.63 feet to a point marked by a 5/8-inch rebar pin which is
located on the western margin of the right-of-way of Old Peachtree Road; thence
South 03 degrees 13 minutes 18 seconds East along the western margin of the
right-of-way of Old Peachtree Road a distance of 199.76 feet to a point; thence
southerly and southwesterly along the western and northwestern margin of the
right-of-way of Old Peachtree Road and being an arc of a curve to the right a
distance of 536.80 feet to a point (said arc being subtended by a chord having a
chord bearing of South 26 degrees 52 minutes 52 seconds West, a chord distance
of 512.44 feet and a radius of 510.85 feet); thence South 56 degrees 59 minutes
02 seconds West along the northwestern margin of the right-of-way of Old
Peachtree Road a distance of 729.16 feet to a point; thence southwesterly along
the northwestern margin of the right-of-way of Old Peachtree Road along an arc
of a curve to the left a distance of 330.46 feet to a point marked by a 1/2 inch
rebar pin (said arc being subtended by a chord having a chord bearing of south
46 degrees 52 minutes 01 seconds West, a chord distance of 328.74 feet and a
radius of 935.72 feet); thence southwesterly, westerly and northwesterly along
an arc of a curve to the right a distance of 18.19 feet tot he POINT OF
BEGINNING (said arc being subtended by a chord having a chord bearing of South
80 degrees 10 minutes 35 seconds West, a chord distance of 16.50 feet and a
radius of 12.00 feet), said parcel containing an aggregate of 49.552 acres,
depicted as Tract 1 (12.208 acres);
56
Tract 2 (10.000 acres) and Tract 3 (27.334 acres), and being more particularly
shown and delineated on that certain survey entitled "As Built Survey for OKI
America, Inc.; Solectron Georgia Corporation; BNP Leasing Corporation and
Chicago Title Insurance Company:, prepared by Pinion & McGaughery Land
Surveyors, Inc, bearing the seal and certification of Xxxxxx X. Xxxxxx, Georgia
Registered Land Surveyor Number 1606, dated July 1, 1998 last revised October 7,
1998, which survey is incorporated herein by reference thereto.
Exhibit A -- Page 2
57
EXHIBIT B
PERMITTED ENCUMBRANCES
This conveyance is subject to the following matters, but only to the extent
the same are still valid and in full force and effect:
1. Declaration of Protective Covenants for Northbrook, Gwinnett County,
Georgia by Weeks NorthBrook MeadowBrook I Partnership, Ltd. and Xxxxx Xxxx,
dated March 11, 1986, filed for record March 14, 1986 at 3:54 p.m.,
recorded in Deed Book 3426, Page 000, Xxxxxxx xx Xxxxxxxx Xxxxxx, Xxxxxxx;
as assigned by that certain Assignment of Declaration of Protective
Covenants for Northbrook from Weeks Northbrook Meadowbrook I Partnership,
Ltd., a Georgia limited partnership to Weeks Development Partnership, a
Georgia general partnership, dated August 24, 1994, filed for record
September 1, 1994 at 3:31 p.m., recorded in Deed Book 10643, Page 286,
aforesaid Record.
2. Those matters as disclosed by that certain survey entitled "As Built Survey
for OKI America, Inc.", prepared by Pinion & XxXxxxxxx Land Surveyors,
Inc., bearing the seal and certification of Xxxxxx X. Xxxxxx, Georgia
Registered Land Surveyor Number 1606, dated July 1, 1998, as follows:
(i) 15-foot building line along northeasterly line of subject property;
(ii) 100-foot building line located along a portion of Old Peachtree Road
near easterly corner of subject property;
(iii)50-foot building lines along Northridge Drive, Northbrook Parkway and
a portion of Old Peachtree Road;
(iv) 75-foot natural buffer in east corner of subject property;
(v) 10-foot no access buffer in east corner of subject property;
(vi) 10-foot, 15-foot and 20-foot drainage easements with 00-xxxx, 00-xxxx,
00-xxxx, 00-xxxx and 60-inch corrugated metal pipes, swales, flared
end sections, manholes, junction boxes and outlet control structure in
southerly, westerly and easterly portions of subject property;
(vii)20-foot sanitary sewer easements with manholes in southerly, westerly
and central portions of subject property;
(viii)branches in southwesterly portion of subject property;
(ix) two (2) detention ponds with earthen berm, 60-foot corrugated metal
pipe and headwall with 10-foot drainage easement surrounding said
ponds in westerly portion of subject property;
(x) water vaults in easterly and northerly portions of subject property;
(xi) liquid oxygen tank located in northerly portion of subject property;
(xii)Xxxxxxx Electric Membership Corporation cubicle located in easterly
corner portion of subject property;
58
(xiii) Southern Xxxx cabinet located in easterly portion of subject
property;
(xiv) guy wire crossing easterly line of subject property;
(xv) ditch in westerly portion of subject property;
(xvi) lights and bollard lights throughout subject property;
(xvii) electric box in central portion of subject property;
(xviii) fire hydrants throughout subject property;
(xix) concrete flumes on northwestern side of building;
(xx) two (2) concrete pads with electrical equipment in easterly portion
of subject property;
(xxi) water meter on southern side of building; and
(xxii) concrete vault (electric) in central portion of subject property.
59
Exhibit D
NOTICE OF REQUEST FOR ACTION BY BNPLC
BNP Leasing Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Lease Agreement dated as of October 20, 1998, between Solectron Georgia
Corporation, as tenant, and BNP Leasing Corporation, as landlord
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Lease referenced above. Pursuant to subparagraph 7.(a)
of the Lease, requests the following of BNPLC:
[INSERT HERE A SPECIFIC DESCRIPTION OF THE ACTION REQUESTED - E.G., "PLEASE
EXECUTE THE ENCLOSED APPLICATION FOR BUILDING PERMIT REQUIRED BY THE CITY
IN CONNECTION WITH CONSTRUCTION OF CERTAIN IMPROVEMENTS WHICH ARE PART OF
THE CONSTRUCTION PROJECT."]
PLEASE NOTE: SUBPARAGRAPH 7.(a) OF THE LEASE OBLIGATES BNPLC NOT TO UNREASONABLY
REFUSE TO COMPLY WITH THE FOREGOING REQUEST, SUBJECT TO TERMS AND CONDITIONS SET
FORTH IN THAT SUBPARAGRAPH. SGC HEREBY CERTIFIES TO BNPLC THAT AFTER CAREFUL
CONSIDERATION SGC BELIEVES THAT ALL SUCH TERMS AND CONDITIONS ARE SATISFIED IN
THE CASE OF THE FOREGOING REQUEST, AND SGC HEREBY RATIFIES AND CONFIRMS ITS
OBLIGATION TO INDEMNIFY BNPLC AGAINST ANY LOSSES BNPLC MAY INCUR OR SUFFER
BECAUSE OF ITS COMPLIANCE WITH SUCH REQUEST AS PROVIDED IN SUBPARAGRAPH 5.(d) OF
THE LEASE.
SGC respectfully requests that BNPLC respond to this notice as soon as
reasonably possible.
Executed this _____ day of ______________, 19___.
SOLECTRON GEORGIA CORPORATION
Name:___________________________________
Title:__________________________________
60
Exhibit E
NOTICE OF REQUEST REQUIRING AN EXPEDITED RESPONSE
BNP Leasing Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Lease Agreement dated as of October 20, 1998, between Solectron Georgia
Corporation, as tenant, and BNP Leasing Corporation, as landlord
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Lease referenced above. SGC asks for an EXPEDITED
RESPONSE to the following request, which is a request made by SGC pursuant to
subparagraph 7.(a) of the Lease:
[INSERT HERE A SPECIFIC DESCRIPTION OF THE ACTION REQUESTED - E.G., "PLEASE
EXECUTE THE ENCLOSED APPLICATION FOR BUILDING PERMIT REQUIRED BY THE CITY
IN CONNECTION WITH CONSTRUCTION OF CERTAIN IMPROVEMENTS WHICH ARE PART OF
THE CONSTRUCTION PROJECT."]
PLEASE NOTE: SUBPARAGRAPH 7.(a) OF THE LEASE OBLIGATES BNPLC NOT TO UNREASONABLY
REFUSE TO COMPLY WITH THE FOREGOING REQUEST, SUBJECT TO TERMS AND CONDITIONS SET
FORTH IN THAT SUBPARAGRAPH. SGC HEREBY CERTIFIES TO BNPLC THAT AFTER CAREFUL
CONSIDERATION SGC BELIEVES THAT ALL SUCH TERMS AND CONDITIONS ARE SATISFIED IN
THE CASE OF THE FOREGOING REQUEST, AND SGC HEREBY RATIFIES AND CONFIRMS ITS
OBLIGATION TO INDEMNIFY BNPLC AGAINST ANY LOSSES BNPLC MAY INCUR OR SUFFER
BECAUSE OF ITS COMPLIANCE WITH SUCH REQUEST AS PROVIDED IN SUBPARAGRAPH 5.(d) OF
THE LEASE.
As you consider the foregoing request, please understand that SGC must ask for
an expedited request for the following reasons:
[INSERT HERE A BRIEF DESCRIPTION OF THE NEED FOR AN EXPEDITED RESPONSE
-E.G., "TO AVOID CRITICAL PATH DELAYS IN THE CONSTRUCTION CONTEMPLATED BY
THE LEASE, SGC MUST SUBMIT THE ENCLOSED APPLICATION FOR BUILDING PERMIT TO
THE CITY OF WITHIN 15 DAYS, AND UNFORTUNATELY THE CITY HAS ONLY RECENTLY
INDICATED THAT SGC WILL NEED THE SIGNATURE OF BNPLC ON THE APPLICATION."]
For the reasons stated above, SGC respectfully requests that BNPLC respond to
this notice as soon as possible. Although SGC would appreciate a sooner
response, SGC believes that it would be unreasonable for BNPLC not to respond to
this notice on or before:
[INSERT HERE A REASONABLE DEADLINE FOR THE RESPONSE - BUT IN NO EVENT PRIOR
TO 10 BUSINESS DAYS AFTER THE DATE OF THIS NOTICE - TAKING INTO ACCOUNT THE
MATERIALS THAT BNPLC WILL HAVE TO REVIEW TO EVALUATE SGC'S
61
REQUEST AND THE PARTICULAR REASONS FOR SGC'S NEED FOR AN EXPEDITED
RESPONSE]
Executed this _____ day of ______________, 19___.
SOLECTRON GEORGIA CORPORATION
Name:___________________________________
Title:__________________________________
Exhibit E -- Page 2
62
Exhibit F
INSURANCE REQUIREMENTS
I. LIABILITY INSURANCE:
A. SGC must maintain commercial general liability ("CGL") insurance on an
occurrence basis, affording afford immediate protection to the limit of not less
than $20,000,000 combined single limit for bodily and personal injury, death and
property damage in respect of any one occurrence.
B. Any deductible or self-insured retention applicable to the CGL
insurance shall not exceed $1,000 at any time when SGC shall continue to have
the right to exercise any Issue 97-10 Election, or shall have previously
exercised an Issue 97-10 Election. After the expiration of SGC's right to
exercise any Issue 97-10 Election, and provided no Issue 97-10 Election has been
exercised by SGC, SGC may increase any deductible or self-insured retention
applicable to such insurance, but not to an amount in excess of $3,000,000.
C. The forms of insurance policies (including endorsements) used to
provide the CGL insurance required by this Lease, and the insurance company or
companies providing the CGL insurance, must be acceptable to BNPLC. BNPLC shall
have the right from time to time and at any time to review and approve such
policy forms (including endorsements) and the insurance company or companies
providing the insurance. Without limiting the generality of the foregoing, BNPLC
may reasonably require (and unless and until SGC is otherwise notified by BNPLC,
BNPLC does require) that such insurance be provided under forms and by companies
consistent with the following:
(1) Forms: CGL Insurance must be provided on Insurance Services
Office ("ISO") forms CG 0001 1093 or CG 0001 0695.
(2) Rating Requirements: Insurance must be provided through insurance
or reinsurance companies rated by the A.M. Best Company of
Oldwick, New Jersey as having a policyholder's rating of A- or
better and a reported financial information rating of VI or
better.
(3) Required Endorsements: CGL Insurance must be endorsed to provide
or include:
(a) blanket contractual liability coverage which insures
contractual liability under the indemnifications set forth in
this Lease (though such coverage or the amount thereof shall in
no way limit such indemnifications);
(c) in any policy containing a general aggregate limit, ISO form
amendment "Aggregate Limits of Insurance Per Location" CG 2504
1185;
(b) a waiver of subrogation, using ISO form CG 2404 1093 (and
under the commercial umbrella, if any), in favor of "BNP Leasing
Corporation and other Interested Parties (as defined in the Lease
Agreement between SOLECTRON GEORGIA CORPORATION and BNP Leasing
Corporation dated October 20, 1998)";
(d) ISO additional insured form CG 2026 1185, without
modification (and under the commercial umbrella, if any),
designating as additional insureds "BNPLC and other
63
Interested Parties, as defined in the Lease Agreement between
SOLECTRON GEORGIA CORPORATION and BNP Leasing Corporation dated
October 20, 1998)"; and
(e) provisions entitling BNPLC to 30 days' notice from the
insurer prior to any cancellation, nonrenewal or material
modification to the CGL coverage.
(4) Other Insurance: Each policy to contain standard CGL "other
insurance" wording, unmodified in any way that would make it
excess over or contributory with the additional insured's own
commercial general liability coverage.
II. PROPERTY INSURANCE:
A. SGC must maintain property insurance in "special form" or against "all
risks," providing the broadest available coverage for all Improvements and
equipment included in the Property, with no exclusions for vandalism, malicious
mischief, or sprinkler leakage, and including coverage against earthquake and
all coverage perils normally included within the definitions of extended
coverage, vandalism, malicious mischief and, if the Property is in a flood zone,
flood. During any period of significant construction on any Improvements, the
property insurance must include builder's completed value risk insurance for
such Improvements.
B. The property insurance must provide coverage in the amount no less
than replacement value (exclusive of land, foundation, footings, excavations and
grading) with endorsements for contingent liability from operation of building
laws, increased cost of construction and demolition costs which may be necessary
to comply with building laws. Subject to the approval of BNPLC, SGC will be
responsible for determining the amount of property insurance to be maintained
from time to time, but SGC must maintain such coverage on an agreed value basis
to eliminate the effects of coinsurance.
C. Any deductible or self-insured retention applicable to the property
insurance shall not exceed $1,000 at any time when SGC shall continue to have
the right to exercise any Issue 97-10 Election, or shall have previously
exercised an Issue 97-10 Election. After the expiration of SGC's right to
exercise any Issue 97-10 Election, and provided no Issue 97-10 Election has been
exercised by SGC, SGC may increase any deductible or self-insured retention
applicable to such insurance, but not to an amount in excess of $3,000,000.
D. The property insurance shall cover not only the value of SGC's
interest in the Improvements, but also the interest of BNPLC, with BNPLC shown
as an insured as its interests may appear.
E. The forms of insurance policies (including endorsements) used to
provide the property insurance required by this Lease, and the insurance company
or companies providing the property insurance, must be acceptable to BNPLC.
BNPLC shall have the right from time to time and at any time to review and
approve such policy forms (including endorsements) and the insurance company or
companies providing such insurance. Without limiting the generality of the
foregoing, BNPLC may reasonably require (and unless and until SGC is otherwise
notified by BNPLC, BNPLC does require) that such insurance be provided under
forms and by companies consistent with the following:
(1) Rating Requirements: Insurance to be provided through insurance
or reinsurance companies rated by the A.M. Best Company of Oldwick,
New Jersey as having (a) a policyholder's rating of A- or better, (b)
a reported financial information rating of no less than VI,
Exhibit F -- Page 2
64
and (c) in the case of each insurance or reinsurance company, a
reported financial information rating which indicates an adjusted
policyholders' surplus equal to or greater than the underwriting
exposure that such company has under the insurance or reinsurance it
is providing for the Property.
(2) Required Endorsements: SGC's property Insurance must be endorsed
to provide or include:
(a) a waiver of subrogation in favor of "BNPLC and other
Interested Parties, as defined in the Lease Agreement
between SOLECTRON GEORGIA CORPORATION and BNP Leasing
Corporation dated October 20, 1998)";
(b) that SGC's insurance is primary, with any policies of BNPLC
or other Interested Parties being excess, secondary and
noncontributing;
(c) that the protection afforded to BNPLC by such insurance
shall not be reduced or impaired by acts or omissions of SGC
or any other beneficiary or insured; and
(d) that BNPLC must be notified at least thirty days prior to
any cancellation, nonrenewal or reduction of insurance
coverage.
III. OTHER INSURANCE RELATED REQUIREMENTS:
A. BNPLC must be notified in writing immediately by SGC of claims against
SGC that might cause a reduction below seventy-five percent (75%) of any
aggregate limit of any policy.
B. SGC's Property insurance must be evidenced by XXXXX form 27 "Evidence
of Property Insurance" completed and interlineated in a manner satisfactory to
BNPLC to show compliance with the requirements of this Exhibit.
B. SGC's CGL insurance must be evidenced by XXXXX form 25 "Certificate of
Insurance" completed and interlineated in a manner satisfactory to BNPLC to show
compliance with the requirements of this Exhibit.
C. Such evidence of required insurance must be delivered upon execution
of this Lease and new certificate or evidence of insurance must be delivered no
later than 30 days prior to expiration of existing policy.
D. Copies of endorsements must be attached to XXXXX forms 25 and 27
delivered to BNPLC.
Exhibit F -- Page 3
65
Exhibit G
COMPLIANCE CERTIFICATE
BNP Leasing Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Gentlemen:
The undersigned, as _____________________________ of Solectron Corporation
("Guarantor"), does hereby certify on behalf of Guarantor and Solectron Georgia
Corporation ("SGC") that the following are true:
1. This Certificate is furnished pursuant to subparagraph 16.(b)(ii) of
that certain Lease Agreement dated as of October 20, 1998 (the "LEASE"; the
terms defined therein being used herein as therein defined) between SGC and you.
2. No Event of Default or material Default by SGC under the Lease has
occurred and is continuing.
3. The representations and warranties of SGC in the Operative Documents
are true and correct in all material respects as of the date hereof as though
made on and as of the date hereof.
4. The representations and warranties of Guarantor in Section 9 of the
Guaranty are true and correct in all material respects as of the date hereof as
though made on and as of the date hereof.
5. Annex 1 attached hereto sets forth financial data and computations
evidencing Guarantor's compliance with certain covenants established in Schedule
A attached to the Guaranty, all of which data and computations are complete,
true and correct.
Executed this _____ day of ______________, 19___.
Solectron Corporation
Name:_________________________
Title:________________________
66
Annex 1 To Compliance Certificate
For the _________________ Ended ________________, 19___
NOTE: References to Sections below are intended to refer to the Sections in Part
3 of Schedule A to the Guaranty.
Actual Required/Permitted
------ ------------------
1. Section 3.09 - Adjusted Leverage Ratio As of the last day of each fiscal
quarter, the amount which is not greater
than (a) 1.75 to 1.00 from the Effective
Date through and including February 28,
1998, (b) 1.50 to 1.00 from May 31, 1998
through and including February 28, 1999,
(c) 1.25 to 1.00 from May 31, 1999
through and including February 28, 2000,
and (d) 1.00 to 1.00 thereafter.
Adjusted Leverage Ratio calculation
(A) Consolidated Funded Debt $_______
plus Guarantee obligations ________
plus Indebtedness with respect to ________
synthetic leases and securitized
assets
plus Indebtedness with respect to ________
letters of credit (including the
Letters of Credit)
minus Permitted Subordinated ________
Indebtedness
TOTAL $_______
Exhibit G -- Page 2
67
(B) operating income $_______
plus depreciation and ________
amortization charges
TOTAL $_______
RATIO OF (A) TO (B) ________
2. Section 3.10 - Minimum Consolidated
Tangible Net Worth As of the last day of each fiscal
quarter following April 30, 1997, the
amount that is not less than the sum of
(without duplication) 80% of
Consolidated Tangible Net Worth measured
as of the end of the fiscal quarter
ended February 28, 1997, plus 50% of
consolidated net income (without
subtracting losses or
acquisition-related charges) for each
fiscal quarter ended after the fiscal
quarter ended February 28, 1997, minus
100% of all acquisition-related charges
if such charges are recorded in the same
fiscal quarter in which the applicable
acquisition is consummated.
(A) Consolidated Tangible Net Worth
calculation:
total shareholders' equity $_______
minus intangible assets ________
Exhibit G -- Page 3
68
Consolidated Tangible Net Worth $_______
(B) Minimum Consolidated Tangible Net
Worth calculation:
Beginning minimum amount $_______
plus 50% of quarterly net income _______
for each fiscal quarter subsequent
to the quarter ended February 28,
1997, with no reduction for losses
or acquisition-related charges
minus 100% of all acquisition-
related charges if such charges are
recorded in the same fiscal quarter
in which the applicable acquisition
is consummated
Minimum Consolidated Tangible Net $_______
Worth
(A) MINUS (B) $_______
3. Section 3.11 - Modified Quick Ratio At the end of any fiscal quarter of
Guarantor when (1) the rating the rating
established by Moody's for the Index
Debt of Guarantor is below Ba2 or (2)
the rating established by S&P for the
Index Debt of Guarantor is below BB, or
(3) neither Moody's nor S&P maintains a
rating for the Index Debt of Guarantor,
the Modified Quick Ratio is to be not
less than 1.0 to 1.0.
(A) Quick Assets calculation:
unencumbered cash $_______
plus unencumbered short term cash ________
investments
Exhibit G -- Page 4
69
plus unencumbered marketable ________
securities which are classified
as short term investments
according to GAAP
plus unencumbered net accounts ________
receivable
plus fair market value of the
following to the extent not
otherwise already included in
Quick Assets and to the extent
having maturities of not longer
than two years:
securities issued or fully ________
guaranteed by the United States
government or any agency thereof
and backed by the full faith and
credit of the United States
certificates of deposit, ________
time deposits, Eurodollar time
deposits, repurchase agreements,
or banker's acceptances that are
(A) issued by either one of the
50 largest (in assets) banks in
the United States or by one of
the 100 largest (in assets)
banks in the world and (B) rated
not less than A- by Standard &
Poor's Corporation or less than
A by Xxxxx'x Investors Service,
Inc.
corporate or municipal ________
bonds rated not less than A- by
Standard & Poor's Corporation or
less than A by Xxxxx'x Investors
Service, Inc.
TOTAL $_______
Exhibit G -- Page 5
70
(B) Current Liabilities according to $_______
GAAP
(C) Payments not included in Current $_______
Liabilities maturing within 12 months
on Indebtedness or which are the
subject of any Guarantee
RATIO OF (A) TO [(B) +(C)] ________
Exhibit G -- Page 6
71
Exhibit H
NOTICE OF LIBOR PERIOD ELECTION
BNP Leasing Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Lease Agreement dated as of October 20, 1998, between Solectron
Georgia Corporation, as tenant, and BNP Leasing Corporation, as landlord
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Lease referenced above. This letter constitutes notice
to you that the LIBOR Period Election under the Lease shall be:
________________ month(s),
beginning with the first Base Rent Period that commences on or after:
________________, ____.
NOTE: YOU SHALL BE ENTITLED TO DISREGARD THIS NOTICE IF THE NUMBER OF MONTHS
SPECIFIED ABOVE IS NOT A PERMITTED NUMBER UNDER THE DEFINITION OF "LIBOR PERIOD
ELECTION" IN THE LIST OF DEFINED TERMS ATTACHED TO THE LEASE, OR IF THE DATE
SPECIFIED ABOVE CONCERNING THE COMMENCEMENT OF THE LIBOR PERIOD ELECTION IS LESS
THAN TEN BUSINESS DAYS AFTER YOUR RECEIPT OF THIS NOTICE. HOWEVER, WE ASK THAT
YOU NOTIFY US IMMEDIATELY IF FOR ANY REASON YOU BELIEVE THIS NOTICE IS
DEFECTIVE.
Executed this _____ day of ______________, 19___.
SOLECTRON GEORGIA CORPORATION
Name:___________________________________
Title:__________________________________
[cc all Participants]
72
Schedule 1
LIST OF DEVELOPMENT DOCUMENTS
-- NONE -
73
Schedule 2
LIST OF CLAIMS PENDING OR THREATENED AGAINST THE PROPERTY
-- NONE -
74
LIST OF DEFINED TERMS
FOR AGREEMENTS BETWEEN
BNP LEASING CORPORATION
AND
SOLECTRON GEORGIA CORPORATION
DATED AS OF OCTOBER 20, 1998
69
75
TABLE OF CONTENTS
PAGE
DEFINED TERM NUMBER
------------------------------------------------------------------------
ABSOLUTE SGC CONSTRUCTION OBLIGATIONS..................................1
ACTIVE NEGLIGENCE......................................................1
ADDITIONAL RENT........................................................1
ADMINISTRATIVE AGENCY FEES.............................................1
ADVANCE DATE...........................................................1
AFFILIATE..............................................................2
APPLICABLE LAWS........................................................2
APPLICABLE PURCHASER...................................................2
ATTORNEYS' FEES........................................................2
BALANCE OF UNPAID CONSTRUCTION-PERIOD INDEMNITY PAYMENTS...............2
BANKING RULES CHANGE...................................................2
BASE RENT..............................................................2
BASE RENT COMMENCEMENT DATE............................................2
BASE RENT DATE.........................................................3
BASE RENT PERIOD.......................................................3
BNPLC..................................................................4
BNPLC'S PARENT.........................................................4
BREAKAGE COSTS.........................................................4
BREAK EVEN PRICE.......................................................4
BUSINESS DAY...........................................................4
CAPITAL ADEQUACY CHARGES...............................................5
CARRYING COSTS.........................................................5
CLOSING CERTIFICATE....................................................5
CMA SUSPENSION EVENT...................................................5
CMA SUSPENSION NOTICE..................................................5
CMA SUSPENSION PERIOD..................................................5
CMA TERMINATION EVENT..................................................5
CODE...................................................................5
COMMITMENT FEE.........................................................5
COMPLETION NOTICE......................................................5
CONSTRUCTION ADVANCES..................................................5
CONSTRUCTION ADVANCE REQUEST...........................................5
CONSTRUCTION ALLOWANCE.................................................5
CONSTRUCTION MILESTONE.................................................6
CONSTRUCTION PERIOD....................................................6
CONSTRUCTION-PERIOD INDEMNITY PAYMENTS.................................6
CONSTRUCTION PROJECT...................................................6
DEBT...................................................................6
DEDUCTIBLE JUDGMENT....................................................6
DEFAULT................................................................6
DEFAULT RATE...........................................................6
DEFECTIVE WORK.........................................................7
DESIGNATED SALE DATE...................................................7
DEVELOPMENT DOCUMENTS..................................................7
EFFECTIVE DATE.........................................................8
EFFECTIVE RATE.........................................................8
ENVIRONMENTAL CONSULTANT...............................................8
-i-
76
PAGE
DEFINED TERM NUMBER
------------------------------------------------------------------------
ENVIRONMENTAL LAWS.....................................................8
ENVIRONMENTAL LOSSES...................................................8
ENVIRONMENTAL REPORT...................................................9
ERISA..................................................................9
ERISA AFFILIATE........................................................9
ERISA TERMINATION EVENT................................................9
ESCROWED PROCEEDS......................................................9
ESTABLISHED MISCONDUCT................................................10
EUROCURRENCY LIABILITIES..............................................10
EURODOLLAR RATE RESERVE PERCENTAGE....................................10
EVENT OF DEFAULT......................................................10
EXCESS FUNDING COMMITMENT.............................................10
EXCLUDED TAXES........................................................10
EXISTING CONTRACT.....................................................11
FAIR MARKET VALUE.....................................................11
FED FUNDS RATE........................................................11
FOCB NOTICE...........................................................12
FUNDED CONSTRUCTION ALLOWANCE.........................................12
FUNDING ADVANCES......................................................12
FUTURE WORK...........................................................12
GAAP..................................................................12
GUARANTOR.............................................................12
GROUND LEASE..........................................................12
GUARANTY..............................................................12
HAZARDOUS SUBSTANCE...................................................12
HAZARDOUS SUBSTANCE ACTIVITY..........................................13
IMPOSITIONS...........................................................13
IMPROVEMENTS..........................................................13
INDEX DEBT............................................................13
INDUSTRIAL HYGIENIST..................................................13
INITIAL FUNDING ADVANCE...............................................13
INTERESTED PARTY......................................................14
ISSUE 97-1 NON-PERFORMANCE-RELATED SUBJECTIVE EVENT OF DEFAULT........14
ISSUE 97-10 ELECTION..................................................14
ISSUE 97-10 PREPAYMENT................................................14
LAND..................................................................14
LANDLORD'S ELECTION TO CONTINUE CONSTRUCTION..........................15
LEASE.................................................................15
LIBOR.................................................................15
LIBOR PERIOD ELECTION.................................................15
LIEN..................................................................16
LIENS REMOVABLE BY BNPLC..............................................16
LIST OF DEFINED TERMS.................................................16
LOSS CUTOFF DATE......................................................16
LOSSES................................................................16
MATERIAL ENVIRONMENTAL COMMUNICATION..................................17
MAXIMUM CONSTRUCTION ALLOWANCE........................................17
-ii-
77
PAGE
DEFINED TERM NUMBER
------------------------------------------------------------------------
MAXIMUM PERMITTED PREPAYMENT..........................................17
MAXIMUM REMARKETING OBLIGATION........................................17
MINIMUM EXTENDED REMARKETING PRICE....................................17
MOODY'S...............................................................17
NORMAL TENANT IMPROVEMENTS............................................17
NOTICE OF SGC'S INTENT TO TERMINATE...................................17
OPERATIVE DOCUMENTS...................................................17
OUTSTANDING CONSTRUCTION ALLOWANCE....................................17
PARTICIPANT...........................................................18
PARTICIPATION AGREEMENT...............................................18
PERMITTED ENCUMBRANCES................................................18
PERMITTED HAZARDOUS SUBSTANCE USE.....................................18
PERMITTED HAZARDOUS SUBSTANCES........................................18
PERMITTED TRANSFER....................................................19
PERSON................................................................19
PERSONAL PROPERTY.....................................................19
PLAN..................................................................19
POTENTIAL LIEN CLAIMANTS..............................................19
PRIME RATE............................................................19
PRIOR WORK............................................................20
PROJECT COSTS.........................................................20
PROJECTED COST OVERRUNS...............................................20
PROPERTY..............................................................21
PURCHASE AGREEMENT....................................................21
PURCHASE OPTION.......................................................21
QUALIFIED PAYMENTS....................................................21
REAL PROPERTY.........................................................21
REIMBURSABLE CONSTRUCTION-PERIOD COSTS................................21
REMEDIAL WORK.........................................................21
RENT..................................................................22
RESIDUAL RISK PERCENTAGE..............................................22
RESPONSIBLE FINANCIAL OFFICER.........................................22
S&P...................................................................22
SCOPE CHANGE..........................................................22
SELLER................................................................22
SGC...................................................................22
SGC'S EXTENDED REMARKETING PERIOD.....................................22
SGC'S EXTENDED REMARKETING RIGHT......................................22
SGC'S INITIAL REMARKETING RIGHTS AND OBLIGATIONS......................22
SPREAD................................................................22
STIPULATED LOSS VALUE.................................................23
SUBSIDIARY............................................................23
SUPPLEMENTAL PAYMENT..................................................23
TERM..................................................................23
THIRD PARTY CONTRACT..................................................23
THIRD PARTY SALE NOTICE...............................................23
THIRD PARTY SALE PROPOSAL.............................................23
-iii-
78
PAGE
DEFINED TERM NUMBER
------------------------------------------------------------------------
THIRD PARTY TARGET PRICE..............................................24
TRANSACTION EXPENSES..................................................24
UNFUNDED BENEFIT LIABILITIES..........................................24
VOLUNTARY SGC CONSTRUCTION CONTRIBUTIONS..............................24
VOLUNTARY RETENTION OF THE PROPERTY...................................24
WORK..................................................................24
-iv-
79
LIST OF DEFINED TERMS
As used in the Lease to which this List of Defined Terms is attached and in
the other Operative Documents (as defined below) into which this List of Defined
Terms is incorporated by reference:
"ABSOLUTE SGC CONSTRUCTION OBLIGATIONS" means the following:
(1) Construction-Period Indemnity Payments required because of or in
connection with or arising out of Environmental Losses incurred or suffered
by any Interested Party;
(2) Construction-Period Indemnity Payments required because of or in
connection with or arising out of Losses incurred or suffered by BNPLC,
when such Losses would not have been incurred or suffered but for any act
or any omission of SGC or of any SGC's contractors or subcontractors during
the period that the Construction Management Agreement remains in force or
during any other period that SGC remains in possession or control of the
Construction Project;
(3) Construction-Period Indemnity Payments required because of or in
connection with or arising out of Losses incurred or suffered by BNPLC that
would not have been incurred but for any fraud, misapplication of funds
(including Construction Advances), illegal acts, or willful misconduct on
the part of the SGC or its employees or agents or any other party for whom
SGC is responsible; and
(4) Construction-Period Indemnity Payments required because of or in
connection with or arising out of Losses incurred or suffered by BNPLC that
would not have been incurred but for any bankruptcy proceeding involving
SGC.
For purposes of this definition, "acts and omissions of SGC" shall include (i)
any decision by SGC to make any Scope Change, (ii) any failure of SGC to
maintain insurance required by the Lease or the Construction Management
Agreement, (iii) any decision not to continue or complete Work under the
Construction Management Agreement because of a change in SGC's facility needs or
in SGC's plans to meet its facility needs (such as, for example, a decision by
SGC to lease or acquire another less expensive facility as an alternative to the
Improvements), (iv) any failure of SGC to correct Defective Work performed prior
to a termination of the Construction Management Agreement as provided in
subparagraphs 5(D) or 5(E) thereof, and (v) any other breach by SGC of the
Construction Management Agreement.
"ACTIVE NEGLIGENCE" of any Person (including BNPLC) means, and is limited
to, the negligent conduct on the Property (and not mere omissions) by such
Person or by others acting and authorized to act on such Person's behalf in a
manner that proximately causes actual bodily injury or property damage for which
SGC does not carry (and is not obligated by the Lease to carry) insurance.
"ACTIVE NEGLIGENCE" shall not include (1) any negligent failure of BNPLC to act
when the duty to act would not have been imposed but for BNPLC's status as owner
of the Property or as a party to the transactions described in the Lease, (2)
any negligent failure of any other Interested Party to act when the duty to act
would not have been imposed but for such party's contractual or other
relationship to BNPLC or participation or facilitation in any manner, directly
or indirectly, of the transactions described in the Lease, or (3) the exercise
in a lawful manner by BNPLC (or any party lawfully claiming through or under
BNPLC) of any right or remedy provided in or under the Lease or any other
Operative Document.
"ADDITIONAL RENT" shall have the meaning assigned to it in subparagraph
4.(c) of the Lease.
"ADMINISTRATIVE AGENCY FEES" shall have the meaning assigned to it in
subparagraph 4.(e) of the Lease.
"ADVANCE DATE" means, regardless of whether any Construction Advance shall
actually be made thereon,
80
the first Business Day of every calendar month, beginning with October 20, 1998
and continuing regularly thereafter to and including the Base Rent Commencement
Date.
"AFFILIATE" of any Person means any other Person controlling, controlled by
or under common control with such Person. For purposes of this definition, the
term "control" when used with respect to any Person means the power to direct
the management of policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise, and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
Notwithstanding the foregoing, for purposes of the Lease and the Purchase
Agreement, SGC's "Affiliates" will not include any Person domiciled outside the
United States.
"APPLICABLE LAWS" means any or all of the following, to the extent
applicable to SGC or the Property or the Lease or the other Operative Documents:
restrictive covenants; zoning ordinances and building codes; flood disaster
laws; health, safety and environmental laws and regulations; the Americans with
Disabilities Act and other laws pertaining to disabled persons; and other laws,
statutes, ordinances, rules, permits, regulations, orders, determinations and
court decisions.
"APPLICABLE PURCHASER" means any third party designated by SGC to purchase
BNPLC's interest in the Property and in any Escrowed Proceeds as provided in the
Purchase Agreement.
"ATTORNEYS' FEES" means the reasonable fees and expenses of counsel to the
parties incurring the same, excluding costs or expenses of in-house counsel
(whether or not accounted for as general overhead or administrative expenses),
but otherwise including printing, photostating, duplicating and other expenses,
air freight charges, and fees billed for law clerks, paralegals, librarians and
others not admitted to the bar but performing services under the supervision of
an attorney. Such terms shall also include all such reasonable fees and expenses
incurred with respect to appeals, arbitrations and bankruptcy proceedings, and
whether or not any manner of proceeding is brought with respect to the matter
for which such fees and expenses were incurred.
"BALANCE OF UNPAID CONSTRUCTION-PERIOD INDEMNITY PAYMENTS" shall have the
meaning assigned to it in subparagraph 1(A)(1) of the Purchase Agreement.
"BANKING RULES CHANGE" means either: (1) the introduction of or any change
after the Effective Date (other than any change by way of imposition or increase
of reserve requirements included in the Eurodollar Rate Reserve Percentage) in
any law or regulation applicable to BNPLC, BNPLC's Parent or any other
Participant, or in the generally accepted interpretation by the institutional
lending community of any such law or regulation, or in the interpretation of any
such law or regulation asserted by any regulator, court or other governmental
authority or (2) the compliance by BNPLC, BNPLC's Parent or any other
Participant with any new guideline or new request after the Effective Date from
any central bank or other governmental authority (whether or not having the
force of law).
"BASE RENT" means the rent payable by SGC pursuant to subparagraph 4.(a) of
the Lease.
"BASE RENT COMMENCEMENT DATE" means the earlier of (1) the last day that
constitutes first business day of a calendar month and that is no more than 364
days after the Effective Date, (2) the first Business Day of the first calendar
month to follow by twenty days or more the date upon which any Completion Notice
is given as provided in the Construction Management Agreement or in the Lease,
(3) the first Business Day of the first calendar month to follow by twenty days
or more BNPLC's receipt of a notice from SGC, given before SGC has exercised any
Issue 97-10 Election and setting forth SGC's express, unconditional, unequivocal
and irrevocable
List of Defined Terms -- Page 2
81
(A) waiver of any right to make any Issue 97-10 Election, and (B) election to
accelerate the Base Rent Commencement Date by delivery such notice,
notwithstanding that after the Base Rent Commencement Date, SGC shall have no
further right to Construction Advances under the Construction Management
Agreement or the Lease, or (4) the first Business Day of the first calendar
month upon which the Funded Construction Allowance shall equal or exceed the
Maximum Construction Allowance. Notwithstanding the forgoing, if for any reason
(including a termination of the Construction Management Agreement) SGC has not
completed the Construction Project thirty days in advance of the scheduled Base
Rent Commencement Date determined pursuant to the first sentence of this
definition, BNPLC shall be entitled (but not obligated) to extend the Base Rent
Commencement Date one or more times and at any time before the Construction
Project actually is complete and ready for occupancy. To so extend the Base Rent
Commencement Date, BNPLC shall notify SGC thereof and of the date to which the
Base Rent Commencement Date is extended, which may be the first Business Day of
any calendar month designated by BNPLC in the notice of extension, provided that
BNPLC will not so designate any date more than sixty days after the date upon
which the Construction Project is expected by BNPLC (at the time of the
designation) to be complete.
"BASE RENT DATE" means a date upon which Base Rent must be paid under the
Lease, all of which dates shall be the first Business Day of a calendar month.
The first Base Rent Date shall be determined as follows:
a) If a LIBOR Period Election of one month is in effect on the
Base Rent Commencement Date, then the first Business Day of the first
calendar month following the Base Rent Commencement Date shall be the
first Base Rent Date.
b) If the LIBOR Period Election in effect on the Base Rent
Commencement Date is three months or six months, then the first
Business Day of the third calendar month following the Base Rent
Commencement Date shall be the first Base Rent Date.
Each successive Base Rent Date after the first Base Rent Date shall be the first
Business Day of the first or third calendar month following the calendar month
which includes the preceding Base Rent Date, determined as follows:
(1) If a LIBOR Period Election of one month is in effect on a
Base Rent Date, then the first Business Day of the first calendar
month following such Base Rent Date shall be the next following Base
Rent Date.
(2) If a LIBOR Period Election of three months or six months is
in effect on a Base Rent Date, then the first Business Day of the
third calendar month following such Base Rent Date shall be the next
following Base Rent Date.
Thus, for example, if the Base Rent Commencement Date falls on the first
Business Day of June, 1999 and a LIBOR Period Election of six months commences
on the Base Rent Commencement Date, then the first Base Rent Date shall be the
first Business Day of September, 1999, and the second Base Rent Date shall be
the first Business Day of December, 1999.
"BASE RENT PERIOD" means a period for which Base Rent must be paid under
the Lease, each of which periods shall correspond to the LIBOR Period Election
for such period. The first Base Rent Period shall begin on and include the Base
Rent Commencement Date, and each successive Base Rent Period shall begin on and
include the Base Rent Date upon which the preceding Base Rent Period ends. Each
Base Rent Period, including the first Base Rent Period, shall end on but not
include the first or second Base Rent Date after the Base Rent Date upon which
such period began, determined as follows:
List of Defined Terms -- Page 3
82
(1) If the LIBOR Period Election for a Base Rent Period is one
month or three months, then such Base Rent Period shall end on the
first Base Rent Date after the Base Rent Date upon which such period
began.
(2) If the LIBOR Period Election for a Base Rent Period is six
months, then such Base Rent Period shall end on the second Base Rent
Date after the Base Rent Date upon which such period began.
The determination of Base Rent Periods can be illustrated by two examples:
1) If SGC makes a LIBOR Period Election of three months for a
hypothetical Base Rent Period beginning on the first Business Day in
January, 2000, then such Base Rent Period will end on but not include
the first Base Rent Date after it begins; that is, such Base Rent
Period will end on the first Business Day in April, 2000, the third
calendar month after January, 2000.
2) If, however, SGC makes a LIBOR Period Election of six months
for the hypothetical Base Rent Period beginning the first Business Day
in January, 2000, then such Base Rent Period will end on but not
include the second Base Rent Date after it begins; that is, the first
Business Day in July, 2000.
"BNPLC" means BNP Leasing Corporation, a Delaware corporation.
"BNPLC'S PARENT" means BNPLC's Affiliate, Banque Nationale de Paris, a bank
organized and existing under the laws of France and any successors of such bank.
"BREAKAGE COSTS" means any and all costs, losses or expenses incurred or
sustained by BNPLC's Parent (as a Participant or otherwise) or any other
Participant, for which BNPLC's Parent or the Participant shall request
reimbursement from BNPLC, because of the resulting liquidation or redeployment
of deposits or other funds:
(1) used to make or maintain Funding Advances upon application of a
Qualified Payment or upon any sale of the Property pursuant to the Purchase
Agreement, if such application or sale occurs on any day other than the
last day of a Construction Period or Base Rent Period; or
(2) reserved to provide a Construction Advance that SGC requests, but
thereafter declines to take for any reason, or that SGC requests but is not
permitted to take because of its failure to satisfy any of the conditions
specified in the Construction Management Agreement.
Breakage Costs will include, for example, losses attributable to any decline in
LIBOR as of the effective date of any application described in the clause (1)
preceding, as compared to LIBOR used to determine the Effective Rate then in
effect. Each determination by BNPLC's Parent or the applicable Participant of
Breakage Costs shall, in the absence of clear and demonstrable error, be
conclusive and binding upon SGC.
"BREAK EVEN PRICE" shall have the meaning assigned to it in subparagraph
1(A)(1) of the Purchase Agreement.
"BUSINESS DAY" means any day that is (1) not a Saturday, Sunday or day on
which commercial banks are generally closed or required to be closed in New York
City, New York or San Francisco, California, and (2) a day
List of Defined Terms -- Page 4
83
on which dealings in deposits of dollars are transacted in the London interbank
market; provided that if such dealings are suspended indefinitely for any
reason, "Business Day" shall mean any day described in clause (1).
"CAPITAL ADEQUACY CHARGES" means any additional amounts BNPLC's Parent or
any other Participant requests BNPLC to pay as compensation for an increase in
required capital as provided in subparagraph 5.(c)(ii) of the Lease.
"CARRYING COSTS" means the charges added to and made a part of the
Outstanding Construction Allowance (and thus also added to and made a part of
the Funded Construction Allowance) from time to time on and before the Base Rent
Commencement Date pursuant to and as more particularly described in subparagraph
6.(a) of the Lease.
"CLOSING CERTIFICATE" means the Closing Certificate and Agreement dated as
of October 20, 1998 executed by SGC in favor of BNPLC, as such Closing
Certificate may be extended, supplemented, amended, restated or otherwise
modified from time to time in accordance with its terms.
"CMA SUSPENSION EVENT" shall have the meaning assigned to it in
subparagraph 5(A) of the Construction Management Agreement.
"CMA SUSPENSION NOTICE" shall have the meaning assigned to it in
subparagraph 5(B)(1) of the Construction Management Agreement.
"CMA SUSPENSION PERIOD" shall have the meaning assigned to it in
subparagraph 5(C) of the Construction Management Agreement.
"CMA TERMINATION EVENT" shall have the meaning assigned to it in
subparagraph 5(B) of the Construction Management Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT FEE" shall have the meaning assigned to it in subparagraph
4.(d) of the Lease.
"COMPLETION NOTICE" means (1) a notice required by subparagraph 1(B) of the
Construction Management Agreement from SGC to BNPLC, advising BNPLC when
construction of the Construction Project is substantially complete, or (2) a
notice permitted by subparagraph 6.(f) of the Lease from BNPLC to SGC, advising
SGC after any Landlord's Election to Complete Construction when construction of
the Construction Project is substantially complete or that BNPLC no longer
intends to continue such construction.
"CONSTRUCTION ADVANCES" means (1) actual advances of funds made by or on
behalf of BNPLC to or on behalf of SGC pursuant to Paragraph 2 of the
Construction Management Agreement, and (2) amounts considered as Construction
Advances pursuant to subparagraph 6.(d) of the Lease.
"CONSTRUCTION ADVANCE REQUEST" shall have the meaning assigned to it in
subparagraph 2(C)(1) of the Construction Management Agreement.
"CONSTRUCTION ALLOWANCE" means the allowance, consisting of Construction
Advances and Carrying Costs, which is to be provided for the Construction
Project as more particularly described in the Construction Management
List of Defined Terms -- Page 5
84
Agreement and Paragraph 6 of the Lease.
"CONSTRUCTION MILESTONE" shall have the meaning assigned to it in
subparagraph 5(B)(2) of the Construction Management Agreement.
"CONSTRUCTION PERIOD" means each successive period of approximately one
month, with the first Construction Period beginning on and including the
Effective Date and ending on but not including the first Advance Date. Each
successive Construction Period after the first Construction Period shall begin
on and include the day on which the preceding Construction Period ends and shall
end on but not include the next following Advance Date, until the last
Construction Period, which shall end on but not include the earlier of the Base
Rent Commencement Date or any Designated Sale Date upon which SGC or any
Applicable Purchaser shall purchase BNPLC's interest in the Property pursuant to
the Purchase Agreement.
"CONSTRUCTION-PERIOD INDEMNITY PAYMENTS" shall have the meaning assigned to
it in subparagraph 5.(e)(ii) of the Lease.
"CONSTRUCTION PROJECT" means the new buildings or other substantial
Improvements to be constructed, or the alteration of existing Improvements, as
described generally in Exhibit B attached to the Construction Management
Agreement.
"DEBT" of any Person means: (i) indebtedness of such Person for borrowed
money; (ii) obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments; (iii) obligations of such Person to pay the deferred
purchase price of property or services; (iv) obligations of such Person as
lessee under leases which shall have been or should be, in accordance with GAAP,
recorded as capital leases; (v) obligations of such Person, contingent or
otherwise, under any lease of real property or related documents (including a
separate purchase agreement) which provide that such Person must purchase or
cause another to purchase any interest in the leased property and thereby
guarantee a minimum residual value of the leased property to the lessor; (vi)
obligations under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a another Person against loss in respect of, indebtedness or obligations
of others of the kinds referred to in the preceding clauses (i) through (v);
(vii) liabilities of another Person secured by a Lien on, or payable out of the
proceeds of production from, property of such Person even though such obligation
shall not be assumed by such Person (but in the case of such liabilities not
assumed by such Person, the liabilities shall constitute Debt of such Person
only to the extent of the value of such Person's property encumbered by the Lien
securing such liabilities); and (viii) Unfunded Benefit Liabilities.
"DEDUCTIBLE JUDGMENT" means a final, liquidated judgment against BNPLC, the
execution of which has not been and will not be stayed pending appeal by BNPLC,
secured by a judgment lien filed against the Property which constitutes a Lien
Removable by BNPLC.
"DEFAULT" means any event which, with the passage of time or the giving of
notice or both, would (if not cured within any applicable cure period)
constitute an Event of Default.
"DEFAULT RATE" means, for any period prior to the Designated Sale Date, a
floating per annum rate equal to two percent (2%) above the Prime Rate, and for
any period commencing on or after the Designated Sale Date, Default Rate shall
mean a floating per annum rate equal to five percent (5%) above the Prime Rate.
However, in no event will the "Default Rate" at any time exceed the maximum
interest rate permitted by law.
List of Defined Terms -- Page 6
85
"DEFECTIVE WORK" shall have the meaning assigned to it in subparagraph
1(A)(2)(e) of the Construction Management Agreement.
"DESIGNATED SALE DATE" means the earlier of:
(1) the first Business Day of October, 2003; or
(2) any Business Day designated as such in an irrevocable,
unconditional notice given by SGC to BNPLC before SGC has made an Issue
97-10 Election; provided, that if the Business Day so designated by SGC is
earlier than sixty days after the date of such notice, then the notice will
be of no effect for purposes of this definition; and provided, further, to
be effective for purposes of this definition, the notice must include an
express, unconditional, unequivocal and irrevocable (A) waiver by SGC of
any remaining right SGC may have under any of the Operative Documents to
make any Issue 97-10 Election, and (B) acknowledgment by SGC that because
of SGC's election to accelerate the Designated Sale Date, the Maximum
Remarketing Obligation will equal the Break Even Price under the Purchase
Agreement; or
(3) any Business Day designated as such in an irrevocable,
unconditional notice given by SGC to BNPLC after SGC has made an Issue
97-10 Election (a notice which SGC might give, for example, to force the
commencement of SGC's Extended Remarketing Period); provided, that if the
Business Day so designated by SGC is earlier than sixty days after the date
of such notice or is earlier than the Base Rent Commencement Date, then the
notice will be of no effect for purposes of this Definition; and provided,
further, to be effective for purposes of this definition, the notice must
include an express, unconditional, unequivocal and irrevocable
acknowledgment by SGC that (A) because SGC has previously made an Issue
97-10 Election, BNPLC has the right to collect Issue 97-10 Prepayments
under the Operative Documents and such right will continue unaffected by
the notice, and (B) because of SGC's election to accelerate the Designated
Sale Date, the Maximum Remarketing Obligation will equal the Break Even
Price under the Purchase Agreement; or
(4) any Business Day designated as such in a notice given by BNPLC to
SGC after the effective date of any termination of the Construction
Management Agreement as provided in subparagraphs 5(D) or 5(E) thereof;
provided, that if the Business Day so designated by BNPLC is earlier than
thirty days after the date of such notice, then the notice will be of no
effect for purposes of this definition; or
(5) any Business Day designated as such in a notice given by BNPLC to
SGC after BNPLC's receipt of a notice from SGC setting forth SGC's election
to terminate the Purchase Option and SGC's Initial Remarketing Rights and
Obligations as provided in subparagraph 4(B) thereof; provided, that if the
Business Day so designated by BNPLC is earlier than thirty days after the
date of such notice, then the notice will be of no effect for purposes of
this definition; or
(6) any Business Day designated as such in a notice given by BNPLC to
SGC when any Event of Default has occurred and is continuing; provided,
that if the Business Day so designated by BNPLC is earlier than thirty days
after the date of such notice, then the notice will be of no effect for
purposes of this definition.
"DEVELOPMENT DOCUMENTS" means the contracts, ordinances and other documents
described in Schedule 1 attached to the Lease, if any, as the same may be
modified from time to time in accordance with the Lease and the
List of Defined Terms -- Page 7
86
Closing Certificate (including modifications authorized pursuant to
subparagraphs 7.(a) and 7.(b) of the Lease), and any applications, permits or
certificates concerning or affecting the use or development of the Property that
may be submitted, issued or executed from time to time as contemplated in such
contracts, ordinances and other documents or that BNPLC may hereafter execute,
approve or consent to at the request of SGC.
"EFFECTIVE DATE" means October 20, 1998.
"EFFECTIVE RATE" means for each Construction Period and for each Base Rent
Period, the per annum rate determined by dividing (A) LIBOR for such
Construction Period or Base Rent Period, as the case may be, by (B) one hundred
percent (100%) minus the Eurodollar Rate Reserve Percentage for such
Construction Period or Base Rent Period. If LIBOR or the Eurodollar Rate Reserve
Percentage changes from Construction Period to Construction Period or from Base
Rent Period to Base Rent Period, then the Effective Rate shall be automatically
increased or decreased as of the date of such change, as the case may be,
without prior notice to SGC. If for any reason BNPLC determines that it is
impossible or unreasonably difficult to determine the Effective Rate with
respect to a given Construction Period or Base Rent Period in accordance with
the foregoing, then the "EFFECTIVE RATE" for that Construction Period or Base
Rent Period shall equal any published index or per annum interest rate
determined in good faith by BNPLC's Parent to be comparable to LIBOR at the
beginning of the first day of that period. A comparable interest rate might be,
for example, the then existing yield on short term United States Treasury
obligations (as compiled by and published in the then most recently published
United States Federal Reserve Statistical Release H.15(519) or its successor
publication), plus or minus a fixed adjustment based on BNPLC's Parent's
comparison of past eurodollar market rates to past yields on such Treasury
obligations. Any determination by BNPLC of the Effective Rate under this
definition shall, in the absence of clear and demonstrable error, be conclusive
and binding upon SGC.
"ENVIRONMENTAL CONSULTANT" means a qualified individual employed by a
qualified firm. Individuals shall be deemed qualified if they (i) possess at
least five years of experience in performing environmental, engineering and
consulting services; (ii) have performed or supervised at least five projects
involving remediation of soil contaminated with hazardous substances, including
at least one project similar to the Remedial Work; (iii) have all licenses
required under applicable law for the Remedial Work; and (iv) have at least a
bachelor's degree in the physical sciences or a related field from an accredited
college or university. A firm shall be deemed qualified if it is: (i) a
nationally recognized, reputable environmental and/or engineering firm in the
business of providing professional environmental engineering and consulting
services; (ii) has experience and expertise in projects involving the Remedial
Work; (iii) maintains policies of insurance which are approved by BNPLC in its
reasonable discretion.
"ENVIRONMENTAL LAWS" means any and all existing and future Applicable Laws
pertaining to safety, health or the environment, or to Hazardous Substances or
Hazardous Substance Activities, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986 (as amended, "CERCLA"), and the
Resource Conservation and Recovery Act of 1976, as amended by the Used Oil
Recycling Act of 1980, the Solid Waste Disposal Act Amendments of 1980, and the
Hazardous and Solid Waste Amendments of 1984 (as amended, "RCRA").
"ENVIRONMENTAL LOSSES" means Losses suffered or incurred by any Interested
Party relating to or arising out of, based on or as a result of: (i) any
Hazardous Substance Activity that occurs or is alleged to have occurred on or
prior to the Loss Cutoff Date; (ii) any violation on or prior to the Loss Cutoff
Date of Environmental Laws relating to the Property or to the ownership, use,
occupancy or operation thereof; (iii) any investigation, inquiry, order,
hearing, action, or other proceeding by or before any governmental or
quasi-governmental agency or
List of Defined Terms -- Page 8
87
authority in connection with any Hazardous Substance Activity that occurs or is
alleged to have occurred in whole or in part on or prior to the Loss Cutoff
Date; or (iv) any claim, demand, cause of action or investigation, or any action
or other proceeding, whether meritorious or not, brought or asserted against any
Interested Party which relates to, arises from, is based on, or results from any
of the matters described in clauses (i), (ii) or (iii) of this definition, or
any allegation of any such matters. For purposes of determining whether Losses
constitute "Environmental Losses," any actual or alleged Hazardous Substance
Activity or violation of Environmental Laws relating to the Property will be
presumed to have occurred prior to the Loss Cutoff Date unless SGC establishes
by clear and convincing evidence to the contrary that the relevant Hazardous
Substance Activity or violation of Environmental Laws did not occur or commence
prior to the Loss Cutoff Date. Even if after the Loss Cutoff Date Losses are
incurred by or asserted against a particular Interested Party that would not
have been incurred or asserted, but for any matter described in clauses (i),
(ii) or (iii) of this definition, or an allegation of any such matter, then such
Losses will constitute Environmental Losses.
"ENVIRONMENTAL REPORT" means collectively the Phase II Sampling Report and
other written reports of SGC's independent environmental consultant (Xxxxxxx
Engineering Science, Inc.) that SGC provided to BNPLC or to BNPLC's
environmental consultant (Xxxxxxxxx Xxxx of Washington Advisors) prior to the
execution of the Lease, which reports may be more specifically identified and
listed in a separate letter executed by SGC and BNPLC and dated as of the
Effective Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations promulgated
with respect thereto.
"ERISA AFFILIATE" means any Person who for purposes of Title IV of ERISA is
a member of SGC's controlled group, or under common control with SGC, within the
meaning of Section 414 of the Internal Revenue Code, and the regulations
promulgated and rulings issued thereunder.
"ERISA TERMINATION EVENT" means (i) the occurrence with respect to any Plan
of a reportable event described in Section 4043(c) of ERISA for which any
penalty or notice thereof has not been waived pursuant to regulations, rulings,
or notices issued by the Pension Benefit Guaranty Corporation pursuant to a
waiver by such corporation under Section 4043(a) of ERISA, or (ii) the filing of
a notice of intent to terminate any Plan or the treatment of any Plan amendment
as a termination under Section 4041 of ERISA (other than in connection with a
standard termination of a fully funded Plan pursuant to Section 4041 of ERISA),
or (iii) the institution of proceedings to terminate any Plan by the Pension
Benefit Guaranty Corporation under Section 4042 of ERISA, or (iv) any other
event or condition which would constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Plan.
"ESCROWED PROCEEDS" means, subject to the exclusions specified in the next
sentence, any money that is received by BNPLC from time to time during the Term
(and any interest earned thereon) from any party (1) under any property
insurance policy as a result of damage to the Property, (2) as compensation for
any restriction imposed by any governmental authority upon the use or
development of the Property or for the condemnation of the Property or any
portion thereof, (3) because of any judgment, decree or award for injury or
damage to the Property or (4) under any title insurance policy or otherwise as a
result of any title defect or claimed title defect with respect to the Property;
provided, however, in determining the amount of "Escrowed Proceeds" there shall
be deducted all expenses and costs of every type, kind and nature (including
Attorneys' Fees) incurred by BNPLC to collect such proceeds. Notwithstanding the
foregoing, "Escrowed Proceeds" will not include (A) any payment to BNPLC by a
Participant or an Affiliate of BNPLC that is made to compensate BNPLC for the
Participant's or Affiliate's share of any Losses BNPLC may incur as a result of
any of the events described in the preceding clauses (1)
List of Defined Terms -- Page 9
88
through (4), (B) any money or proceeds that have been applied as a Qualified
Payment or to pay any Breakage Costs or other costs incurred in connection with
a Qualified Payment, (C) any money or proceeds that, after no less than ten days
notice to SGC, BNPLC returns or pays to a third party because of BNPLC's good
faith belief that such return or payment is required by law, (D) any money or
proceeds paid by BNPLC to SGC or offset against any amount owed by SGC, or (E)
any money or proceeds used by BNPLC in accordance with the Lease for repairs or
the restoration of the Property or to obtain development rights or the release
of restrictions that will inure to the benefit of future owners or occupants of
the Property. Until Escrowed Proceeds are paid to SGC pursuant to Paragraph 11
of the Lease, transferred to a purchaser under the Purchase Agreement as therein
provided or applied as a Qualified Payment or as otherwise described in the
preceding sentence, BNPLC shall keep the same deposited in an interest bearing
account, and all interest earned on such account shall be added to and made a
part of Escrowed Proceeds.
"ESTABLISHED MISCONDUCT" of a Person means, and is limited to: (1) if the
Person is bound by the Lease or the Purchase Agreement, a breach by such Person
of the express provisions of the Lease or the Purchase Agreement that continues
beyond any period for cure provided therein, and (2) conduct of such Person or
its Affiliates that has been determined to constitute wilful misconduct or
Active Negligence in or as a necessary element of a final judgment rendered
against such Person by a court with jurisdiction to make such determination.
Established Misconduct of one Interested Party shall not be attributed to a
second Interested Party unless the second Interested Party is an Affiliate of
the first. Negligence which does not constitute Active Negligence shall not in
any event constitute Established Misconduct. For purposes of this definition,
"conduct of a Person" will include (1) the conduct of an employee of that
Person, but only to the extent that the employee is acting within the scope of
his employment by that Person, as determined in or as a necessary element of a
final judgment rendered against such Person by a court with jurisdiction to make
such determination, and (2) the conduct of an agent of that Person (such as an
independent environmental consultant engaged by that Person), but only to the
extent that the agent is, as determined in or as a necessary element of a final
judgment rendered against such Person by a court with jurisdiction to make such
determination, (x) acting within the scope of the authority granted to him by
such Person, (y) not acting with the consent or approval of or under the
direction of SGC or SGC's Affiliates, employees or agents, and (z) not acting in
good faith to mitigate Losses that such Person may suffer because of a breach or
repudiation by SGC of the Closing Certificate or Lease or the Purchase
Agreement.
"EUROCURRENCY LIABILITIES" shall have the meaning assigned to it in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EURODOLLAR RATE RESERVE PERCENTAGE" means, for purposes of determining the
Effective Rate for any Construction Period or Base Rent Period, the reserve
percentage applicable two Business Days before the first day of such period
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) for BNPLC's Parent with respect to liabilities or deposits
consisting of or including Eurocurrency Liabilities (or with respect to any
other category or liabilities by reference to which LIBOR is determined) having
a term comparable to such period.
"EVENT OF DEFAULT" shall have the meaning assigned to it in subparagraph
17.(a) of the Lease.
"EXCESS FUNDING COMMITMENT" shall have the meaning assigned to it in
subparagraph 2(C)(2)(b) of the Construction Management Agreement.
"EXCLUDED TAXES" means (1) all federal, state and local income taxes upon
Base Rent, Commitment Fees,
List of Defined Terms -- Page 10
89
Administrative Agency Fees, any interest paid to BNPLC or any Participant
pursuant to subparagraph 4.(h) of the Lease and any additional compensation
claimed by BNPLC pursuant to subparagraph 5.(c)(ii) of the Lease; (2) all
federal, state and local income taxes upon any amounts paid as reimbursement for
or to satisfy Losses incurred by BNPLC or any Participant to the extent such
taxes are offset by a corresponding reduction of BNPLC's or the applicable
Participant's income taxes because of BNPLC's or such Participant's deduction of
the reimbursed Losses from its taxable income or because of any tax credits
attributable thereto; (3) taxes imposed by any governmental authority outside
the United States of America; and (4) any transfer or change of ownership taxes
assessed because of BNPLC's transfer or conveyance to any third party of BNPLC's
rights or interests in the Lease or the Purchase Agreement or the Property, but
excluding any such taxes assessed because of any transfer described in clauses
(4) or (6) of the definition of Permitted Transfer below. For purposes of this
definition, income taxes shall include any state or local taxes on the net
income of BNPLC or a Participant, as the case may be, whether or not designated
as an "income tax" or "franchise tax" and regardless of any future increase in
tax rates used to compute such taxes. If, however, a change in Applicable Laws
after the Effective Date results in an increase in such taxes for any reason
other than an increase in the applicable tax rates (e.g., a disallowance of
deductions that would otherwise be available against payments described in
clause (1) of this definition), then for purposes of computing the taxes that
constitute "Excluded Taxes," the change in law will not be considered.
"EXISTING CONTRACT" means the Amended Purchase and Sale Agreement dated as
of October 9, 1998, originally between OKI America, Inc. as Seller and SGC as
Purchaser, covering the Land described in Exhibit A of the Lease.
"FAIR MARKET VALUE" means the fair market value of the Property on or about
the Designated Sale Date (calculated under the assumptions, whether or not then
accurate, that SGC has fulfilled and can be expected to continue to fulfill its
obligations under the Lease and other Operative Documents; that SGC has
maintained the Property in compliance with all Applicable Laws [including
Environmental Laws]; that any construction commenced on the Land but not
completed prior to the Designated Sale Date shall not reduce the value of the
Property; that all Improvements are self-sufficient in the sense that any
easements or offsite facilities needed under the Development Documents or
otherwise for the use of the Improvements will be available at no additional
cost to the owner of the Improvements; that SGC has repaired and restored the
Property after any damage following fire or other casualty; that SGC has
restored the remainder of the Property after any partial taking by eminent
domain; that SGC has completed any contests of and paid any taxes due [other
than Excluded Taxes] or other amounts secured by or allegedly secured by a lien
against the Property, including any assessment liens, but not including Liens
Removable by BNPLC; that no conditions or circumstances on or about the Property
[such as the presence of an endangered species] is discovered that will impede
development of the Property; that development of the Property will not be
hindered or delayed because of the limited availability of utilities or water;
that any purchaser paying fair market value for the Property will receive copies
of all of SGC's books and records which are necessary or useful to a future
owner's or occupant's use of the Property in the manner permitted by the Lease,
including books and records evidencing the testing and validation of the
Property for the uses permitted by the Lease; that without undue cost or delay
any such purchaser can obtain any necessary permits or licenses needed to use
the Property for the purposes permitted by the Lease; and that SGC has cured any
title defects affecting the Property other than Liens Removable by BNPLC, all in
accordance with the standards and requirements of the Lease [as though the Lease
were continuing in force], and the Closing Certificate) as determined by an
independent MAI Certified General Real Estate Appraiser reasonably satisfactory
to BNPLC who has five years or more experience appraising similar properties in
and around Gwinnett County, Georgia.
"FED FUNDS RATE" means, for any period, a fluctuating interest rate
(expressed as a per annum rate and rounded upwards, if necessary, to the next
1/16 of 1%) equal for each day during such period to the weighted
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average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rates are not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by BNPLC's Parent from three Federal funds brokers
of recognized standing selected by BNPLC's Parent. All determinations of the Fed
Funds Rate by BNPLC's Parent shall, in the absence of clear and demonstrable
error, be binding and conclusive upon SGC.
"FOCB NOTICE" shall have the meaning assigned to it in subparagraph 5(E) of
the Construction Management Agreement.
"FUNDED CONSTRUCTION ALLOWANCE" means on any day the Outstanding
Construction Allowance on that day, including all Construction Advances and
Carrying Costs added to the Outstanding Construction Allowance on or prior to
that day, plus the amount of any Qualified Payments deducted on or prior to that
day in the calculation of such Outstanding Construction Allowance, less any
Voluntary SGC Construction Contributions added on or prior to that day in the
calculation of such Qualified Payments.
"FUNDING ADVANCES" means (1) the Initial Funding Advance and (2) all future
advances made by BNPLC's Parent or any other Participant to or on behalf of
BNPLC to allow BNPLC to provide the Construction Allowance under the Lease.
"FUTURE WORK" shall have the meaning assigned to it in subparagraph
2(C)(2)(b) of the Construction Management Agreement.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time, applied on a basis consistent with
those used in the preparation of the financial statements referred to in
subparagraph 16.(b) of the Lease (except for changes concurred in by SGC's
independent public accountants).
"GUARANTOR" means Solectron Corporation, a Delaware corporation.
"GROUND LEASE" means the Ground Lease dated on or about the Effective Date
between BNPLC and Seller, whereby pursuant to the Existing Contract BNPLC leased
back a portion of the Land upon which Improvements existing at the time of
BNPLC's acquisition of the Land.
"GUARANTY" means the Guaranty dated as of October 20, 1998 given by
Guarantor to BNPLC, guaranteeing the obligations of SGC under the Lease,
Purchase Agreement and Closing Certificate, as such Guaranty may be extended,
supplemented, amended, restated or otherwise modified from time to time in
accordance with its terms.
"HAZARDOUS SUBSTANCE" means (i) any chemical, compound, material, mixture
or substance that is now or hereafter defined or listed in, regulated under, or
otherwise classified pursuant to, any Environmental Laws as a "hazardous
substance," "hazardous material," "hazardous waste," "extremely hazardous waste
or substance," "infectious waste," "toxic substance," "toxic pollutant," or any
other formulation intended to define, list or classify substances by reason of
deleterious properties, including ignitability, corrosiveness, reactivity,
carcinogenicity, toxicity or reproductive toxicity; (ii) petroleum, any fraction
of petroleum, natural gas, natural gas liquids, liquified natural gas, synthetic
gas usable for fuel (or mixtures of natural gas and such synthetic gas), and ash
produced by a resource recovery facility utilizing a municipal solid waste
stream, and drilling fluids, produced waters and other
List of Defined Terms -- Page 12
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wastes associated with the exploration, development or production of crude oil,
natural gas or geothermal resources; (iii) asbestos and any asbestos containing
material; and (iv) any other material that, because of its quantity,
concentration or physical or chemical characteristics, poses a significant
present or potential hazard to human health or safety or to the environment if
released into the workplace or the environment.
"HAZARDOUS SUBSTANCE ACTIVITY" means any actual, proposed or threatened
use, storage, holding, release (including any spilling, leaking, leaching,
pumping, pouring, emitting, emptying, dumping, disposing into the environment,
and the continuing migration into or through soil, surface water, groundwater or
any body of water), discharge, deposit, placement, generation, processing,
construction, treatment, abatement, removal, disposal, disposition, handling or
transportation of any Hazardous Substance from, under, in, into or on the
Property, including the movement or migration of any Hazardous Substance from
surrounding property, surface water, groundwater or any body of water under, in,
into or onto the Property and any resulting residual Hazardous Substance
contamination in, on or under the Property. "HAZARDOUS SUBSTANCE ACTIVITY" also
means any existence of Hazardous Substances on the Property that would cause the
Property or the owner or operator thereof to be in violation of, or that would
subject the Property to any remedial obligations under, any Environmental Laws,
including CERCLA and RCRA, assuming disclosure to the applicable governmental
authorities of all relevant facts, conditions and circumstances pertaining to
the Property. "HAZARDOUS SUBSTANCE ACTIVITY" does not, however, include events
or circumstances that do not affect the Property on or about other properties
owned or operated by SGC.
"IMPOSITIONS" means all sales, excise, ad valorem, gross receipts,
business, transfer, stamp, occupancy, rental and other taxes, levies, fees,
charges, surcharges, assessments or penalties which arise out of or are
attributable to the Lease or which are imposed upon BNPLC or the Property
because of the ownership, leasing, occupancy, sale or operation of the Property,
or any part thereof or interest therein, or relating to or required to be paid
by any of the Permitted Encumbrances or the Development Documents, excluding
only Excluded Taxes. "IMPOSITIONS" shall include real estate taxes imposed
because of a change of use or ownership of the Property on or prior to the date
of any sale by BNPLC pursuant to the Purchase Agreement.
"IMPROVEMENTS" means any and all (1) buildings and other real property
improvements now or hereafter erected on the Land, and (2) equipment (e.g., HVAC
systems, elevators and plumbing fixtures) attached to the buildings or other
real property improvements, the removal of which would cause structural or other
material damage to the buildings or other real property improvements or would
materially and adversely affect the value or use of the buildings or other real
property improvements.
"INDEX DEBT" means senior, unsecured, long-term indebtedness for borrowed
money of Guarantor that is not guaranteed by any other Person or subject to any
other credit enhancement.
"INDUSTRIAL HYGIENIST" means an industrial hygienist certified by the
American Board of Industrial Hygiene who is experienced with required and
appropriate health and safety standards and good industrial hygiene practice
related to operations at hazardous waste sites.
"INITIAL FUNDING ADVANCE" means, collectively, the advances of made by
BNPLC's Parent (directly or through one or more of its Affiliates) to or on
behalf of BNPLC on or prior to the effective date of the Lease to cover the cost
of BNPLC's acquisition of the Property and certain Transaction Expenses and
other amounts described in this definition. The amount of the Initial Funding
Advance may be confirmed by a separate closing certificate executed by SGC as of
the Effective Date. To the extent that BNPLC does not itself use the entire
Initial Funding Advance to pay Transaction Expenses incurred by BNPLC or for
other purposes described in the
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preceding sentence, the remainder thereof is being advanced to SGC, with the
understanding that SGC will use any such amount advanced for one or more of the
following purposes: (1) the payment or reimbursement of Transaction Expenses
incurred by SGC; (2) the payment or reimbursement of expenses incurred by SGC in
connection with the Construction Project, including the planning, design,
engineering, construction and permitting of thereof; (3) the maintenance of the
Property; or (4) the payment of Rents next due.
"INTERESTED PARTY" means each of (1) BNPLC, its Affiliates and its
successors and assigns as to the Property or any part thereof or any interest
therein, (2) BNPLC's Parent, and (3) any other Participants and their permitted
successors and assigns under the Participation Agreement; provided, however,
none of the following shall constitute an Interested Party: (a) any Person to
whom BNPLC may transfer an interest in the Property by a conveyance that is not
a Permitted Transfer and others that cannot lawfully claim an interest in the
Property except through or under such a transfer by BNPLC, (b) SGC or any Person
that cannot lawfully claim an interest in the Property except through or under a
conveyance from SGC, or (c) any Applicable Purchaser under the Purchase
Agreement and any Person that cannot lawfully claim an interest in the Property
except through or under a conveyance from such Applicable Purchaser.
"ISSUE 97-1 NON-PERFORMANCE-RELATED SUBJECTIVE EVENT OF DEFAULT" means an
Event of Default that is unrelated to the Property or the use or maintenance
thereof and that results solely from (A) a breach by SGC or Guarantor of a
provision in any Operative Document or the Guaranty, the occurrence of which
breach cannot be objectively determined, or (B) any other event described in
clauses (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiv) or (xvi) of
subparagraph 17(a) of the Lease, the occurrence of which event cannot be
objectively determined. For example, an Event of Default under subparagraph
17.(a)(vii) of the Lease resulting solely from a failure of SGC to "generally"
pay its debts as such debts become due (in contrast to a failure of SGC to pay
Rent to BNPLC as it becomes due under the Lease) would constitute an Issue 97-1
Non-performance-related Subjective Event of Default. In no event, however, will
the term "Issue 97-1 Non-performance-related Subjective Event of Default"
include an Event of Default resulting from (1) a failure of SGC to make any
payment required to BNPLC under the Operative Documents, (2) a breach by
Guarantor of any of sections 3.09, 3.10 or 3.11 of PART 3 of Schedule A attached
to the Guaranty (which set forth financial ratio covenants), (3) any failure of
SGC to use, maintain and insure the Property in accordance with the requirements
of the Lease, or (4) any failure of SGC to pay the full amount of any
Supplemental Payment on the Designated Sale Date as required by the Purchase
Agreement. Except as provided in subparagraph 1(A)(2)(c)(i) of the Purchase
Agreement, the characterization of any Event of Default as an Issue 97-1
Non-performance-related Subjective Event of Default will not affect the rights
or remedies available to BNPLC because of the Event of Default.
"ISSUE 97-10 ELECTION" means any of the following elections by SGC: (1) an
election to terminate the Construction Management Agreement as provided in
subparagraph 5(D) thereof; and (2) an election to terminate SGC's Initial
Remarketing Rights and Obligations as provided in subparagraph 4(B) of the
Purchase Agreement.
"ISSUE 97-10 PREPAYMENT" means a payment to BNPLC, required by subparagraph
4.(f) of the Lease or by subparagraphs 4(B) or 4(C) of the Purchase Agreement,
equal in each case to (A) the Maximum Permitted Prepayment, computed as of the
date on which the payment becomes due, less (B) the accreted value of any prior
payments actually received by BNPLC from SGC constituting Issue 97-10
Prepayments or Voluntary SGC Construction Contributions. For purposes of the
preceding sentence, "accreted value" of a payment shall mean the amount of the
payment plus an amount equal to the interest that would have accrued on the
payment if it bore interest at the Effective Rate.
"LAND" means the land as described in Exhibit A attached to the Lease,
Closing Certificate and Purchase
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93
Agreement. However, upon any amendment to the Lease which modifies the land
covered thereby, the land covered by the Closing Certificate and Purchase
Agreement shall automatically be so modified.
"LANDLORD'S ELECTION TO CONTINUE CONSTRUCTION" shall have the meaning
assigned to it in subparagraph 6.(d) of the Lease.
"LEASE" means the Lease Agreement dated as of October 20, 1998 between
BNPLC, as landlord, and SGC, as tenant, pursuant to which SGC has agreed to
lease BNPLC's interest in the Property, as such Lease Agreement may be extended,
supplemented, amended, restated or otherwise modified from time to time in
accordance with its terms.
"LIBOR" means, for purposes of determining the Effective Rate for each
Construction Period or Base Rent Period, the rate determined by BNPLC's Parent
to be the average rate of interest per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) of the rates at which deposits of dollars are offered or
available to BNPLC's Parent in the London interbank market at approximately
11:00 a.m. (London time) on the second Business Day preceding the first day of
such period. BNPLC shall instruct BNPLC's Parent to consider deposits, for
purposes of making the determination described in the preceding sentence, that
are offered: (i) for delivery on the first day of such Construction Period or
Base Rent Period, as the case may be, (ii) in an amount equal or comparable to
the total (projected on the applicable date of determination by BNPLC's Parent)
Stipulated Loss Value on the first day of such period, and (iii) for a time
equal or comparable to the length of such period. If BNPLC's Parent so chooses,
it may determine LIBOR for any period by reference to the rate reported by the
British Banker's Association on Page 3750 of the Telerate Service at
approximately 11:00 a.m. (London time) on the second Business Day preceding the
first day of such period. If for any reason BNPLC's Parent determines that it is
impossible or unreasonably difficult to determine LIBOR with respect to a given
Construction Period or Base Rent Period in accordance with the foregoing, or if
BNPLC's Parent shall determine that it is unlawful (or any central bank or
governmental authority shall assert that it is unlawful) for BNPLC, BNPLC's
Parent or any Participant to provide or maintain Funding Advances during any
Construction Period or Base Rent Period for which Carrying Costs or Base Rent is
computed by reference to LIBOR, then "LIBOR" for that period shall equal the
rate which is fifty basis points (50/100 of 1%) above the Fed Funds Rate for
that period. All determinations of LIBOR by BNPLC's Parent shall, in the absence
of clear and demonstrable error, be binding and conclusive upon SGC.
"LIBOR PERIOD ELECTION" for the first Base Rent Period means one month and
for any subsequent Base Rent Period means a period of one month, three months or
six months as designated by SGC at least ten Business Days prior to the
commencement of such Base Rent Period by a notice given to BNPLC in the form of
Exhibit H attached to the Lease. (For purposes of the Lease a LIBOR Period
Election for any Base Rent Period shall also be considered the LIBOR Period
Election in effect on (1) the Base Rent Commencement Date or Base Rent Date upon
which such Base Rent Period begins and (2) subsequent Base Rent Dates, if any,
which occur before the date upon which such Base Rent Period ends.) Any LIBOR
Period Election so designated by SGC shall remain in effect for the entire Base
Rent Period specified in SGC's notice to BNPLC (provided such Base Rent Period
commences at least ten Business Days after BNPLC's receipt of the notice) and
for all subsequent Base Rent Periods until a new designation becomes effective
in accordance with the provisions set forth in this definition. Notwithstanding
the foregoing, however: (1) SGC shall not be entitled to designate a LIBOR
Period Election that would cause a Base Rent Period to extend beyond the end of
the scheduled Term; (2) changes in the LIBOR Period Election shall become
effective only upon the commencement of a new Base Rent Period; and (3) if SGC
fails to make a LIBOR Period Election consistent with the foregoing requirements
for any Base Rent Period, or if an Event of Default shall have occurred and be
continuing on the third Business Day preceding the commencement of any Base Rent
Period, the LIBOR Period Election for such Base Rent Period shall be deemed to
be one month.
List of Defined Terms -- Page 15
94
"LIEN" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any lease in the nature
thereof, any agreement to sell receivables with recourse, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction). Customary bankers' rights of set-off arising by operation of
law or by contract (however styled, if the contract grants rights no greater
than those arising by operation of law) in connection with working capital
facilities, lines of credit, term loans and letter of credit facilities and
other contractual arrangements entered into with banks in the ordinary course of
business are not "Liens" for the purposes of the Lease.
"LIENS REMOVABLE BY BNPLC" means, and is limited to, Liens encumbering the
Property that are asserted (1) other than as contemplated by the Lease or the
Purchase Agreement, by BNPLC itself, (2) by third parties lawfully claiming
through or under BNPLC (which for purposes of the Lease shall include any
judgment liens established against the Property because of a judgment rendered
against BNPLC and shall also include any liens established against the Property
to secure past due Excluded Taxes), or (3) by third parties lawfully claiming
under a deed or other instrument duly executed by BNPLC; provided, however,
Liens Removable by BNPLC shall not include (A) any Permitted Encumbrances or
Development Documents (regardless of whether claimed through or under BNPLC),
(B) any of the Operative Documents or any other document executed by BNPLC with
the knowledge of (and without objection by) SGC's counsel contemporaneously with
the execution and delivery of the Operative Documents, (C) Liens which are
neither lawfully claimed through or under BNPLC (as described above) nor claimed
under a deed or other instrument duly executed by BNPLC, (D) Liens claimed by
SGC or claimed through or under a conveyance made by SGC, (E) Liens arising
because of BNPLC's compliance with Applicable Law, the Lease, Permitted
Encumbrances, the Development Documents or any written request made by SGC, (F)
Liens securing the payment of property taxes or other amounts assessed against
the Property by any governmental authority, other than to secure the payment of
past due Excluded Taxes or to secure damages caused by (and attributed by any
applicable principles of comparative fault to) BNPLC's own Established
Misconduct or the Established Misconduct of BNPLC's Parent or BNPLC's other
Affiliates, (G) Liens resulting from or arising in connection with any breach by
SGC of the Closing Certificate, the Lease or the Purchase Agreement; or (H)
Liens resulting from or arising in connection with any Permitted Transfer that
occurs after any Designated Sale Date upon which, for any reason, SGC or an
Affiliate of SGC or any Applicable Purchaser shall not purchase BNPLC's interest
in the Property pursuant to the Purchase Agreement for a net price to BNPLC
(when taken together with any additional payments made by SGC pursuant to
Paragraph 1(A)(2) of the Purchase Agreement, in the case of a purchase by an
Applicable Purchaser) equal to Stipulated Loss Value.
"LIST OF DEFINED TERMS" means this List of Defined Terms, which is attached
to the Lease and incorporated by reference into the other Operative Documents.
"LOSS CUTOFF DATE" means the later of the dates upon which (i) the Lease
terminates, (ii) SGC surrenders possession of the Property or (iii) SGC ceases
to have any leasehold or other interest in the Property under the Lease or
otherwise.
"LOSSES" means the following, to the extent (but only to the extent)
resulting from, arising out of or in connection with events or circumstances
(including the condition of the Property) that actually or allegedly occurred or
existed or may hereafter occur or exist on or before the Loss Cutoff Date: any
and all losses, liabilities, damages (whether actual, consequential, punitive or
otherwise denominated), demands, claims, administrative or legal proceedings,
actions, judgments, causes of action, assessments, fines, penalties, costs and
expenses (including Attorneys' Fees and the fees of outside accountants and
environmental consultants), of any and every kind or character, foreseeable and
unforeseeable, liquidated and contingent, proximate and remote. For purposes of
List of Defined Terms -- Page 16
95
determining whether any loss, liability, damage, demand, claim, administrative
or legal proceeding, action, judgment, cause of action, assessment, fine,
penalty, cost or expense constitutes a "Loss," the events or circumstances
relating thereto will be presumed to have occurred prior to the Loss Cutoff Date
unless SGC establishes by clear and convincing evidence to the contrary that the
relevant events or circumstances did not occur or exist prior to the Loss Cutoff
Date.
"MATERIAL ENVIRONMENTAL COMMUNICATION" means a communication between SGC or
its agents and a regulatory agency or third party, which causes, or potentially
could cause (whether by implementation of or response to said communication), a
material change in the scope, duration, or nature of any Remedial Work.
"MAXIMUM CONSTRUCTION ALLOWANCE" means an amount equal to $50,000,000, less
the Initial Funding Advance.
"MAXIMUM PERMITTED PREPAYMENT" as of any date means the amount equal to the
lesser of the following:
(1) the sum of:
(A) eighty-nine and nine-tenths of one percent (89.9%) of the
aggregate of (i) all Project Costs paid or incurred on or
prior to such date, plus (ii) ninety-seven percent (97%) of
Carrying Costs added to the Outstanding Construction
Allowance on or prior to such date; plus
(B) any amount by which the value of BNPLC's interest in the
Land and its appurtenances are less than the price paid by
BNPLC for the same as determined reasonably and in good
faith by BNPLC after consulting with an independent
appraiser; or
(2) eighty-nine and nine-tenths of one percent (89.9%) of
Stipulated Loss Value on such date.
"MAXIMUM REMARKETING OBLIGATION" shall have the meaning indicated in
subparagraph 1(A)(2)(c) of the Purchase Agreement.
"MINIMUM EXTENDED REMARKETING PRICE" shall have the meaning assigned to it
in subparagraph 2(B) of the Purchase Agreement.
"MOODY'S" means Xxxxx'x Investor Service, Inc.
"NORMAL TENANT IMPROVEMENTS" shall have the meaning assigned to it in
subparagraph 3(A) of the Construction Management Agreement.
"NOTICE OF SGC'S INTENT TO TERMINATE" shall have the meaning assigned to it
in subparagraph 5(D) of the Construction Management Agreement.
"OPERATIVE DOCUMENTS" means the Closing Certificate, the Lease, the
Construction Management Agreement and the Purchase Agreement.
"OUTSTANDING CONSTRUCTION ALLOWANCE" shall have the meaning assigned to it
in subparagraph 6.(a) of
List of Defined Terms -- Page 17
96
the Lease.
"PARTICIPANT" means BNPLC's Parent and any other Person that, upon becoming
a party to the Participation Agreement by executing a supplement thereto as
contemplated therein, agrees from time to time to participate in all or some of
the risks and rewards to BNPLC of the Lease or other Operative Documents. As of
the Effective Date, the only Participant is BNPLC's Parent, but BNPLC may agree
after the Effective Date to share in risks and rewards of the Lease or other
Operative Documents with other Participants. However, no Person other than
BNPLC's Parent and its Affiliates shall qualify as a Participant for purposes of
the Lease or the other Operative Documents or other agreements concerning the
Property to which SGC is a party unless such Person, with SGC's prior written
approval (which approval will not be unreasonably withheld), became a party to
the Participation Agreement by executing a supplement to that agreement as
contemplated therein.
"PARTICIPATION AGREEMENT" means the Participation Agreement dated as of the
Effective Date, between BNPLC and BNPLC's Parent and any other Participants that
may become parties thereto as contemplated therein, pursuant to which BNPLC's
Parent has agreed to participate in the risks and rewards to BNPLC of the Lease
and the Purchase Agreement, as such Participation Agreement may be extended,
supplemented, amended, restated or otherwise modified from time to time in
accordance with its terms.
"PERMITTED ENCUMBRANCES" means (i) the encumbrances and other matters
affecting the Property that are set forth in Exhibit B attached to the Lease,
(ii) any easement agreement or other document affecting title to the Property
executed by BNPLC at the request of or with the consent of SGC, (iii) any liens
from time to time imposed to secure only ad valorem taxes on the Property which,
at the time in question, are not delinquent, and (iv) the Ground Lease and the
terms and conditions of the Existing Contract that survived the conveyance of
the Land from Seller to BNPLC.
"PERMITTED HAZARDOUS SUBSTANCE USE" means the use, generation, storage and
offsite disposal of Permitted Hazardous Substances in strict accordance with
applicable Environmental Laws and with due care given the nature of the
Hazardous Substances involved; provided, the scope and nature of such use,
generation, storage and disposal shall not:
(1) exceed that reasonably required for the construction of the
Construction Project in accordance with the Lease and the Construction
Management Agreement or for the operation of the Property for the purposes
expressly permitted under subparagraph 3.(a) of the Lease; or
(2) include any disposal, discharge or other release of Hazardous
Substances from the Property in any manner that might allow such substances
to reach surface water or groundwater, except (i) through a lawful and
properly authorized discharge (A) to a publicly owned treatment works or
(B) with rainwater or storm water runoff in accordance with Applicable Laws
and any permits obtained by SGC that govern such runoff; or (ii) any such
disposal, discharge or other release of Hazardous Substances for which no
permits are required and which are not otherwise regulated under applicable
Environmental Laws.
Further, notwithstanding anything to the contrary herein contained, Permitted
Hazardous Substance Use shall not include any use of the Property in a manner
that requires a RCRA treatment, storage or disposal permit, including a
landfill, incinerator or other waste disposal facility.
"PERMITTED HAZARDOUS SUBSTANCES" means Hazardous Substances used and
reasonably required for the construction of the Construction Project or for the
use of the Property by SGC and its permitted subtenants and
List of Defined Terms -- Page 18
97
assigns for the purposes expressly permitted by subparagraph 3.(a) of the Lease,
in either case in strict compliance with all Environmental Laws and with due
care given the nature of the Hazardous Substances involved. Without limiting the
generality of the foregoing, Permitted Hazardous Substances shall include usual
and customary office, laboratory and janitorial products.
"PERMITTED TRANSFER" means any one or more of the following: (1) the
creation or conveyance of rights and interests in favor of the BNPLC's Parent or
other Participants pursuant to the terms and conditions of the Participation
Agreement, provided that in any case where rights or interests in the Property
are so created or conveyed, the rights or interests are made expressly subject
to the rights of SGC under the Lease and the Purchase Agreement; (2) any
assignment or conveyance by BNPLC to any present or future Participant of any
lien or security interest against the Property (in contrast to a conveyance of
BNPLC's fee estate) or of any interest in Rent, payments required by or under
the Purchase Agreement or payments to be generated from the Property after the
Term, provided that such assignment or conveyance is made expressly subject to
the rights of SGC under the Lease and the Purchase Agreement; (3) any agreement
to exercise or refrain from exercising rights or remedies under the Lease or the
Purchase Agreement made by BNPLC with any present or future Participant; (4) any
assignment or conveyance by BNPLC requested by SGC or required by any Permitted
Encumbrance, by Development Documents, by the Purchase Agreement or by
Applicable Laws; (5) conveyances or transfers by BNPLC or its Affiliates to
BNPLC or its Affiliates, provided that in the case of any such conveyance or
transfer that covers any interest in the Property, the conveyance or transfer is
made expressly subject to the rights of SGC under the Lease and the Purchase
Agreement; or (6) any other assignment or conveyance by BNPLC when an Event of
Default shall have occurred and be continuing or after a Landlord's Election to
Continue Construction or after the Designated Sale Date (provided, that if the
assignment or conveyance constitutes a sale of BNPLC's fee estate in the
Property, and if at the time of the sale SGC's Extended Remarketing Right under
Paragraph 2 of the Purchase Agreement has not expired or been terminated as
provided in the Purchase Agreement, then the sale will be subject to SGC's
Extended Remarketing Right.)
"PERSON" means an individual, a corporation, a partnership, an
unincorporated organization, an association, a joint stock company, a joint
venture, a trust, an estate, a government or agency or political subdivision
thereof or other entity, whether acting in an individual, fiduciary or other
capacity.
"PERSONAL PROPERTY" shall have the meaning assigned to it on page 2 of the
Lease.
"PLAN" means at any time an employee pension benefit plan which is covered
under Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code and is either (i) maintained by SGC,
Guarantor or any Subsidiary of SGC or Guarantor for employees of SGC, Guarantor
or any Subsidiary of SGC or Guarantor or (ii) maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which SGC, Guarantor or any Subsidiary
of SGC or Guarantor is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions.
"POTENTIAL LIEN CLAIMANTS" means (1) general contractors, or (2) other
parties who have filed any required statutory notices, or who have actually
notified BNPLC or SGC of claims, in order to preserve or establish their right
to a mechanic's or materialman's lien against the Property in connection with
any Construction Project.
"PRIME RATE" means the prime interest rate or equivalent charged by BNPLC's
Parent in the United States of America as announced or published by BNPLC's
Parent from time to time, which need not be the lowest interest rate charged by
BNPLC's Parent. If for any reason BNPLC's Parent does not announce or publish a
prime rate
List of Defined Terms -- Page 19
98
or equivalent, the prime rate or equivalent announced or published by either
Citibank, N.A. or any New York branch or office of Credit Commercial de France
as selected by BNPLC shall be used to compute the rate describe in the preceding
sentence. The prime rate or equivalent announced or published by such bank need
not be the lowest rate charged by it. The Prime Rate may change from time to
time after the Effective Date without notice to SGC as of the effective time of
each change in rates described in this definition.
"PRIOR WORK" shall have the meaning assigned to it in subparagraph
2(C)(2)(b) of the Construction Management Agreement.
"PROJECT COSTS" means the following:
(1) costs incurred for the Work (as defined in the Construction
Management Agreement), including not only hard costs incurred for the new
Improvements described in Exhibit B attached to the Construction Management
Agreement, but also the following costs to the extent reasonably incurred
in connection with the Construction Project:
o soft costs, such as architectural fees, engineering fees and
fees and costs paid in connection with obtaining project
permits and approvals required by governmental authorities
or the Development Documents,
o site preparation costs, and
o costs of offsite and other public improvements required as
conditions of governmental approvals for the Construction
Project;
(2) costs incurred to maintain insurance required by (and consistent
with the requirements of) the Lease prior to the Base Rent Commencement
Date;
(3) a fraction of the cost of title insurance incurred to satisfy the
condition set forth in subparagraph 5(B)(3)(a) of the Construction
Management Agreement, the numerator of which fraction is the difference
computed by subtracting the price paid by BNPLC for the Land from the
maximum dollar amount of coverage provided by the title insurance, and the
denominator of which fraction is equal to such maximum dollar amount of
coverage;
(4) Impositions that have accrued or become due under the Lease prior
to the Base Rent Commencement Date; and
(5) cancellation or termination fees or other compensation payable by
SGC or BNPLC pursuant to any contract concerning the Construction Project
made by SGC or BNPLC with any general contractor, architect, engineer or
other third party because of any election by SGC or BNPLC to cancel or
terminate such contract.
Project Costs will include costs incurred by BNPLC to continue or complete the
Construction Project after any Landlord's Election to Continue Construction as
provided in subparagraph 6(d) of the Lease; provided, however, such costs will
constitute Project Costs only to the extent BNPLC capitalizes such costs in
accordance with GAAP.
"PROJECTED COST OVERRUNS" shall have the meaning assigned to it in
subparagraph 4(A) of the Construction
List of Defined Terms -- Page 20
99
Management Agreement.
"PROPERTY" means the Personal Property and the Real Property, collectively.
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of October 20,
1998 between BNPLC and SGC pursuant to which SGC has agreed to purchase or to
arrange for the purchase by a third party of BNPLC's interest in the Property,
as such Purchase Agreement may be extended, supplemented, amended, restated or
otherwise modified from time to time in accordance with its terms.
"PURCHASE OPTION" shall have the meaning assigned to it in subparagraph
1(A)(1) of the Purchase Agreement.
"QUALIFIED PAYMENTS" means (A) any Issue 97-10 Prepayments received by
BNPLC, (B) any Voluntary SGC Construction Contributions received by BNPLC
pursuant to subparagraph 4(C) of the Construction Management Agreement, and (C)
any payments received by BNPLC from time to time during the Term (1) under any
property insurance policy as a result of damage to the Property, (2) as
compensation for any restriction placed upon the use or development of the
Property or for the condemnation of the Property or any portion thereof, (3)
because of any judgment, decree or award for injury or damage to the Property or
(4) under any title insurance policy or otherwise as a result of any title
defect or claimed title defect with respect to the Property; provided, however,
that (x) in determining the amount of "Qualified Payments", there shall be
deducted all expenses and costs of every kind, type and nature (including taxes,
Breakage Costs and Attorneys' Fees) incurred by BNPLC with respect to the
collection or application of such payments, (y) "Qualified Payments" shall not
include any payment to BNPLC by a Participant or an Affiliate of BNPLC that is
made to compensate BNPLC for the Participant's or Affiliate's share of any
Losses BNPLC may incur as a result of any of the events described in the
preceding clauses (1) through (4) and (z) "Qualified Payments" shall not include
any payments received by BNPLC that BNPLC has paid or is obligated to pay to SGC
for the restoration or repair of the Property or that BNPLC is holding as
Escrowed Proceeds pursuant to Paragraph 11 of the Lease or any other provision
of the Lease. For purposes of computing the total Qualified Payments (and other
amounts dependent upon Qualified Payments, such as Stipulated Loss Value and the
Outstanding Construction Allowance) paid to or received by BNPLC as of any date,
payments described in the preceding clauses (1) through (4) will be considered
as Escrowed Proceeds, not Qualified Payments, until they are actually applied as
Qualified Payments by BNPLC as provided in subparagraph 11.(c) of the Lease.
"REAL PROPERTY" shall have the meaning assigned to it on page 1 of the
Lease.
"REIMBURSABLE CONSTRUCTION-PERIOD COSTS" shall have the meaning assigned to
it in Paragraph 2 of the Construction Management Agreement.
"REMEDIAL WORK" means any investigation, monitoring, clean-up, containment,
remediation, removal, payment of response costs, or restoration work and the
preparation and implementation of any closure or other required remedial plans
that any governmental agency or political subdivision requires or approves (or
could reasonably be expected to require if it was aware of all relevant
circumstances concerning the Property), whether by judicial order or otherwise,
because of the presence of or suspected presence of Hazardous Substances in, on,
under or about the Property or because of any prior Hazardous Substance
Activity. Without limiting the generality of the foregoing, Remedial Work also
means any obligations imposed upon or undertaken by SGC pursuant to Development
Documents or any recommendations or proposals made therein.
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100
"RENT" means the Base Rent and all Additional Rent.
"RESIDUAL RISK PERCENTAGE" means fifteen percent (15%) or such greater
percentage, but in no event greater than eighteen percent (18%), as is necessary
to cause the Lease to satisfy the FAS 13 "90% test" for an operating lease under
GAAP. At any time after the Base Rent Commencement Date, upon request of either
BNPLC or SGC, the parties will execute a written acknowledgment of the amount of
the Residual Risk Percentage (not less than 15% and not more than 18%)
calculated in accordance with this definition.
"RESPONSIBLE FINANCIAL OFFICER" means the chief financial officer, the
controller, the treasurer or the assistant treasurer of either SGC or Guarantor,
as the case may be.
"S&P" means Standard and Poor's Corporation.
"SCOPE CHANGE" shall have the meaning assigned to it in subparagraph
1(A)(1)(b) of the Construction Management Agreement.
"SELLER" means OKI America, Inc., a Delaware corporation.
"SGC" means Solectron Georgia Corporation, a Georgia corporation.
"SGC'S EXTENDED REMARKETING PERIOD" shall have the meaning assigned to it
in subparagraph 2(A) of the Purchase Agreement.
"SGC'S EXTENDED REMARKETING RIGHT" shall have the meaning assigned to it in
subparagraph 2(A) of the Purchase Agreement.
"SGC'S INITIAL REMARKETING RIGHTS AND OBLIGATIONS" shall have the meaning
assigned to it in subparagraph 1(A)(2) of the Purchase Agreement.
"SPREAD" means, for each Construction Period or period beginning on and
including a Base Rent Date and ending on but not including the next Base Rent
Date, the amount established as described below in this definition on the date
that is two Business Days prior to such period by reference to the stated (or
published, implied) rating by S&P or by Xxxxx'x applicable to the Index Debt on
that date. The Spread shall be established at the Level in the pricing grid
below which corresponds to the rating of S&P and Xxxxx'x, respectively,
applicable to the Index Debt; provided that (a) if one, but not both, of Xxxxx'x
or S&P shall not have in effect a rating (stated or published, implied) for the
Index Debt, then the Spread shall be determined solely with reference to the
available rating by the rating agency that still rates the Index Debt; (b) if
the ratings established by Xxxxx'x and S&P for the Index Debt shall indicate two
different but consecutive Levels, the Spread shall be based on the more
favorable to Guarantor of the two Levels; (c) if the ratings established by
Xxxxx'x and S&P for the Index Debt shall indicate two different but
nonconsecutive Levels, the Spread shall be the average of the Spreads
corresponding to such Levels; (d) if the rating established by Xxxxx'x or S&P
for the Index Debt shall be changed (other than as a result of a change in the
rating system of Xxxxx'x or S&P), such change shall be effective on the date on
which it is first announced by the applicable rating agency; (e) notwithstanding
anything to the contrary in (a) through (d) above, but subject to (f) and (g)
below, if either the rating established by Xxxxx'x for the Index Debt of
Guarantor is below Ba2 or the rating established by S&P for the Index Debt of
Guarantor is below BB, the Spread shall be 80.0 basis points; (f)
notwithstanding anything to the contrary in (a) through (e) above, but subject
to (g) below, if Xxxxx'x does not establish a rating for the Index Debt of Ba2
or higher (including if Xxxxx'x has ceased to
List of Defined Terms -- Page 22
101
establish any rating for the Index Debt) and S&P does not establish a rating for
the Index Debt of BB or higher (including if S&P has ceased to establish any
rating of the Index Debt), the Spread xxxx be the difference computed by
subtracting the Effective Rate from the rate that is 50.0 basis points above the
Prime Rate; and (g) notwithstanding anything to the contrary in (a) through (f)
above, on any date where an Event of Default has occurred and is continuing, the
Spread shall equal the Default Rate less the Effective Rate.
===============================================================================================
LEVELS S & P RATING XXXXX'X RATING MARGIN
-----------------------------------------------------------------------------------------------
Level I BBB+ (or better) Baa1 (or better) 40 basis points
-----------------------------------------------------------------------------------------------
Level II BBB Baa2 50 basis points
-----------------------------------------------------------------------------------------------
Level III BBB- Baa3 60 basis points
-----------------------------------------------------------------------------------------------
Level IV BB+ Ba1 75 basis points
-----------------------------------------------------------------------------------------------
Level V BB Ba2 95 basis points
===============================================================================================
All determinations of the Spread by BNPLC shall, in the absence of clear and
demonstrable error, be binding and conclusive for purposes of the Lease. Further
BNPLC may, but shall not be required, to rely on the determination of the Spread
set forth in any certificate delivered by Guarantor pursuant to subparagraph
16.(b)(ii) of the Lease, and no reduction in the Spread will be effective
because of an improvement in the S&P Rating or the Xxxxx'x Rating before the
date that Guarantor has notified BNPLC thereof by delivery of such a
certificate.
"STIPULATED LOSS VALUE" as of any date means the amount equal to the sum of
the Initial Funding Advance, plus the sum of all Construction Advances and
Carrying Costs added to the Outstanding Construction Allowance on or prior to
such date, minus all funds received by BNPLC and applied as Qualified Payments
on or prior to such date. Under no circumstances will any payment of Base Rent,
Commitment Fees or Administrative Agency Fees reduce Stipulated Loss Value.
"SUBSIDIARY" means any corporation of which another corporation owns,
directly or indirectly, such number of outstanding shares as have more than
fifty percent (50%) of the ordinary voting power for the election of directors.
"SUPPLEMENTAL PAYMENT" shall have the meaning assigned to it in
subparagraph 1(A)(2)(c) of the Purchase Agreement.
"TERM" shall have the meaning assigned to it in Paragraph 1.(a) of the
Lease.
"THIRD PARTY CONTRACT" shall have the meaning assigned to it in
subparagraph 1(A)(2)(b) of the Construction Management Agreement.
"THIRD PARTY SALE NOTICE" shall have the meaning assigned to it in
subparagraph 2(C) of the Purchase Agreement.
"THIRD PARTY SALE PROPOSAL" shall have the meaning assigned to it in
subparagraph 2(C) of the Purchase Agreement.
List of Defined TErms -- Page 23
102
"THIRD PARTY TARGET PRICE" shall have the meaning assigned to it in
subparagraph 2(C) of the Purchase Agreement.
"TRANSACTION EXPENSES" means costs incurred in connection with the
preparation and negotiation of the Operative Documents and related documents and
the consummation of the transactions contemplated therein.
"UNFUNDED BENEFIT LIABILITIES" means, with respect to any Plan, the amount
(if any) by which the present value of all benefit liabilities (within the
meaning of Section 4001(a)(16) of ERISA) under the Plan exceeds the market value
of all Plan assets allocable to such benefit liabilities, as determined on the
most recent valuation date of the Plan and in accordance with the provisions of
ERISA for calculating the potential liability of SGC or Guarantor or any ERISA
Affiliate of SGC or Guarantor under Title IV of ERISA.
"VOLUNTARY SGC CONSTRUCTION CONTRIBUTIONS" shall have the meaning assigned
to it in subparagraph 4(C) of the Construction Management Agreement.
"VOLUNTARY RETENTION OF THE PROPERTY" means an affirmative election made by
BNPLC to keep the Property pursuant to, and under the circumstances described in
subparagraph 1(A)(2)(a) of the Purchase Agreement.
"WORK" shall have the meaning assigned to it in subparagraph 1(A)(2)(a) of
the Construction Management Agreement.
List of Defined terms -- Page 24
