EXECUTION COPY
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MASTER LEASE AND DEED OF TRUST
THIS DOCUMENT SECURES FUTURE ADVANCES
Dated as of October 18, 1996
between
SYMANTEC CORPORATION,
as the Lessee
and
SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor.
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This Master Xxxxx and Deed of Trust is subject to a lien in favor of the Lenders
under the Loan Agreement. This Master Xxxxx and Deed of Trust has been executed
in several counterparts. To the extent, if any, that this Master Lease and Deed
of Trust constitutes chattel paper (as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction), no lien on this
Master Lease and Deed of Trust may be created through the transfer or possession
of any counterpart other than the original counterpart containing the receipt
therefor executed by THE SUMITOMO BANK, LIMITED, SAN XXXXXXXXX XXXXXX as the
Agent for the Lenders, on or following the signature page hereof.
MASTER LEASE AND DEED OF TRUST
THIS DOCUMENT SECURES FUTURE ADVANCES
THIS MASTER LEASE AND DEED OF TRUST (this "MASTER LEASE"), dated as of
October 18, 1996, between SUMITOMO BANK LEASING AND FINANCE, INC., a Delaware
corporation, as the Lessor (in such capacity, the "LESSOR"), and SYMANTEC
CORPORATION, a Delaware corporation, as Lessee (in such capacity, the "LESSEE").
W I T N E S S E T H:
WHEREAS, pursuant to a Participation Agreement dated as of the date hereof
(as amended, modified, restated or supplemented from time to time, the
"PARTICIPATION AGREEMENT"), among the Lessee, the Lessor, the various financial
institutions (the "LENDERS") as are or may from time to time become Lenders
under the Loan Agreement, and The Sumitomo Bank, Limited, San Xxxxxxxxx Xxxxxx,
as Administrative Agent (in such capacity, the "AGENT") for the Lenders, the
Lenders and the Lessor have agreed to finance the Lessor's acquisition of each
Property;
WHEREAS, on each Acquisition Date, the Lessor will purchase from one or
more third parties designated by the Lessee certain parcels of Land, together
with the Improvements thereon, if any;
WHEREAS, the Lessor desires to lease to the Lessee, and the Lessee desires
to lease from the Lessor, each Property; and
WHEREAS, each Property will be subject to the terms of this Master Xxxxx;
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
I.1. DEFINITIONS; INTERPRETATION. Capitalized terms used but not
otherwise defined in this Master Lease have the respective meanings specified in
APPENDIX A to this Master Lease; and the rules of interpretation set forth in
APPENDIX A to this Master Lease shall apply to this Master Lease.
ARTICLE II
MASTER LEASE
II.1. ACCEPTANCE AND LEASE OF PROPERTY. Subject to the conditions set
forth in the Participation Agreement, including without limitation the
satisfaction or waiver of the conditions set forth in Article II thereof, the
Lessor hereby agrees to accept pursuant to the terms of the Participation
Agreement delivery on the Closing the Land together with Improvements thereon,
if any, to be delivered by the seller thereof and simultaneously to demise and
lease to the Lessee hereunder and under the Lease Supplement for the Lease Term,
the Lessor's interest in such Land and in such Improvements together with any
Improvements which thereafter may be constructed on such Land pursuant this
Master Lease, and the Lessee hereby agrees, expressly for the direct benefit of
the Lessor, to lease from the Lessor for the Lease Term, the Lessor's interest
in such Land and in such Improvements together with any Improvements which
thereafter may be constructed on such Land pursuant and this Master Lease.
II.2. ACCEPTANCE PROCEDURE. The Lessee hereby agrees that the execution
and delivery by the Lessee on each Acquisition Date of an appropriately
completed Lease Supplement in the form of EXHIBIT A hereto covering the Land and
all Improvements thereon, if any, to be acquired by the Lessor on such
Acquisition Date and all other Improvements which thereafter may be constructed
thereon this Master Lease, shall, without further act, constitute the
irrevocable acceptance by the Lessee of all of the Property
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which is the subject of such Lease Supplement for all purposes of this Master
Lease and the other Operative Documents on the terms set forth therein and
herein, and that such Property, together with any Improvements constructed on
such Property pursuant to the this Master Lease, shall be deemed to be included
in the leasehold estate of this Master Lease and shall be subject to the terms
and conditions of this Master Lease as of the Acquisition Date.
II.3. LEASE TERM. The Base Lease Term (the "BASE LEASE TERM") of this
Master Lease with respect to any Property shall (i) begin on the Acquisition
Date, and (ii) shall end on the seventh (7th) anniversary of the Documentation
Date, unless earlier terminated in accordance with the provisions of this Master
Lease and the other Operative Documents.
II.4. TITLE. Each Property is leased to the Lessee without any
representation or warranty, express or implied, by the Lessor and subject to the
rights of parties in possession, the existing state of title (including, without
limitation, all Liens other than Lessor Liens) and all applicable Requirements
of Law and Property Legal Requirements. The Lessee shall in no event have any
recourse against the Lessor for any defect in or exception to title to any
Property other than resulting from Lessor Liens.
ARTICLE III
PAYMENT OF RENT
III.1. RENT.
(a) During the Lease Term, the Lessee shall pay Basic Rent on each
Basic Rent Payment Date, on the date required under SECTION 20.1(K) in
connection with the Lessee's exercise of the Remarketing Option and on any
date on which this Master Lease shall terminate with respect to any or all
Properties.
(b) The Lessee's inability or failure to take possession of all or
any portion of any Property when
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delivered by the Lessor, nor the Lessor's inability or failure to deliver
all or any portions of this Property to the Lessee where attributable to
any act or omission of the Lessee or any act or omission of the Lessor, or
for any other reason whatsoever, shall delay or otherwise affect the
Lessee's obligation to pay Rent for such Property in accordance with the
terms of this Master Lease.
III.2. PAYMENT OF RENT. Rent shall be paid absolutely net to the Lessor,
so that this Master Lease shall yield to the Lessor the full amount thereof,
without setoff, deduction or reduction.
III.3. SUPPLEMENTAL RENT. The Lessee shall pay to the Lessor or the
Person entitled thereto any and all Supplemental Rent promptly as the same shall
become due and payable, and if the Lessee fails to pay any Supplemental Rent,
the Lessor shall have all rights, powers and remedies provided for herein or by
law or equity or otherwise in the case of nonpayment of Basic Rent. The Lessee
shall pay to the Lessor, as Supplemental Rent, among other things, on demand, to
the extent permitted by applicable Requirements of Law, interest at the
applicable Overdue Rate on any installment of Basic Rent not paid when due for
the period for which the same shall be overdue and on any payment of
Supplemental Rent not paid when due or demanded by the Lessor for the period
from the due date or the date of any such demand, as the case may be, until the
same shall be paid. The expiration or other termination of the Lessee's
obligations to pay Basic Rent hereunder shall not limit or modify the
obligations of the Lessee with respect to Supplemental Rent. Unless expressly
provided otherwise in this Master Lease, in the event of any failure on the part
of the Lessee to pay and discharge any Supplemental Rent as and when due, the
Lessee shall also promptly pay and discharge any fine, penalty, interest or cost
which may be assessed or added under any agreement with a third party for
nonpayment or late payment of such Supplemental Rent, all of which shall also
constitute Supplemental Rent.
III.4. METHOD OF PAYMENT. Each payment of Rent shall be
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made by the Lessee to the Agent prior to 11:00 a.m., San Francisco, California
time to the Agent's account specified on Schedule II to the Participation
Agreement in funds consisting of lawful currency of the United States of America
which shall be immediately available on the scheduled date when such payment
shall be due, unless such scheduled date shall not be a Business Day, in which
case such payment shall be made on the next succeeding Business Day. Payments
received after 12:00 p.m., San Francisco time on the date due shall for the
purpose of SECTION 16.1 hereof be deemed received on such day; PROVIDED,
however, that for the purposes of the second sentence of SECTION 3.3 hereof,
such payments shall be deemed received on the next succeeding Business Day and,
unless the Agent is otherwise able to invest or employ such funds on the date
received, subject to interest at the Overdue Rate as provided in such SECTION
3.3.
ARTICLE IV
QUIET ENJOYMENT; RIGHT TO INSPECT
IV.1. QUIET ENJOYMENT. Subject to SECTIONS 2.4 and 4.2, and subject to
the rights of the Lessor contained in ARTICLE XV and the other terms of the
Operative Documents to which the Lessee is a party, the Lessee shall peaceably
and quietly have, hold and enjoy each Property for the Lease Term, free of any
claim or other action by the Lessor or anyone claiming by, through or under the
Lessor (other than the Lessee) with respect to any matters arising from and
after the applicable Acquisition Date. Such right of quiet enjoyment is
independent of, and shall not affect the Lessor's rights otherwise to initiate
legal action to enforce, the obligations of the Lessee under this Master Lease.
IV.2. RIGHT TO INSPECT. During the Lease Term, the Lessee shall upon
reasonable notice from the Lessor (except that no notice shall be required if a
Lease Event of Default has occurred and is continuing), permit the Lessor and
its authorized representatives to inspect any Property subject to this Master
Lease during normal business hours, provided that such
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inspections shall not unreasonably interfere with the Lessee's business
operations at such Property.
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ARTICLE V
NET LEASE, ETC.
V.1. NET LEASE. This Master Lease shall constitute a net lease. Any
present or future law to the contrary notwithstanding, this Master Lease shall
not terminate, nor shall the Lessee be entitled to any abatement, suspension,
deferment, reduction, setoff, counterclaim, or defense with respect to the Rent,
nor shall the obligations of the Lessee hereunder be affected (except as
expressly herein permitted and by performance of the obligations in connection
therewith) by reason of: (i) any defect in the condition, merchantability,
design, construction, quality or fitness for use of any Property or any part
thereof, or the failure of any Property to comply with all Requirements of Law
and Property Legal Requirements, including any inability to occupy or use any
such Property by reason of such non-compliance; (ii) any damage to, removal,
abandonment, salvage, loss, contamination of or Release from, scrapping or
destruction of or any requisition or taking of any Property or any part thereof;
(iii) any restriction, prevention or curtailment of or interference with any use
of any Property or any part thereof including eviction; (iv) any defect in title
to or rights to any Property or any Lien on such title or rights or on any
Property (other than Lessor Liens); (v) any change, waiver, extension,
indulgence or other action or omission or breach in respect of any obligation or
liability of or by the Lessor or any Participant; (vi) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceedings relating to the Lessee, the Lessor, any Participant or
any other Person, or any action taken with respect to this Master Lease by any
trustee or receiver of the Lessee, the Lessor, any Participant or any other
Person, or by any court, in any such proceeding; (vii) any claim that the Lessee
has or might have against any Person, including without limitation the Lessor,
any Participant, or any vendor, manufacturer, contractor of or for any Property;
(viii) any failure on the part of the Lessor to perform or comply with any of
the terms of this Master Lease (other than performance by Lessor of its
obligations set
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forth in SECTION 2.1 hereof), of any other Operative Document or of any other
agreement; (ix) any invalidity or unenforceability or illegality or
disaffirmance of this Master Lease against or by the Lessee or any provision
hereof or any of the other Operative Documents or any provision of any thereof;
(x) the impossibility or illegality of performance by the Lessee, the Lessor or
both; (xi) any action by any court, administrative agency or other Governmental
Authority; (xii) any restriction, prevention or curtailment of or interference
with the construction on or any use of any Property or any part thereof; or
(xiii) any other cause or circumstances whether similar or dissimilar to the
foregoing and whether or not the Lessee shall have notice or knowledge of any of
the foregoing. The Lessee's agreement in the preceding sentence shall not
affect any claim, action or right the Lessee may have against the Lessor or any
Participant. The parties intend that the obligations of the Lessee hereunder
shall be covenants and agreements that are separate and independent from any
obligations of the Lessor hereunder or under any other Operative Documents and
the obligations of the Lessee shall continue unaffected unless such obligations
shall have been modified or terminated in accordance with an express provision
of this Master Lease.
V.2. NO TERMINATION OR ABATEMENT. The Lessee shall remain obligated under
this Master Lease in accordance with its terms and shall not take any action to
terminate, rescind or avoid this Master Lease (except as provided herein),
notwithstanding any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution, or other proceeding affecting the Lessor or any
Participant, or any action with respect to this Master Lease which may be taken
by any trustee, receiver or liquidator of the Lessor or any Participant or by
any court with respect to the Lessor or any Participant. The Lessee hereby
waives all right (i) to terminate or surrender this Master Lease (except as
provided herein) or (ii) to avail itself of any abatement, suspension,
deferment, reduction, setoff, counterclaim or defense with respect to any Rent.
The Lessee shall remain obligated under this Master Lease in accordance with its
terms and the Lessee hereby waives any and all rights now or hereafter
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conferred by statute or otherwise to modify or to avoid strict compliance with
its obligations under this Master Lease. Notwithstanding any such statute or
otherwise, the Lessee shall be bound by all of the terms and conditions
contained in this Master Lease.
ARTICLE VI
SUBLEASES
VI.1. SUBLETTING. Subject to Section 2.1(r) of the Participation
Agreement, the Lessee may sublease any Property or any portion thereof to any
Person; PROVIDED, HOWEVER, that no sublease or other relinquishment of
possession of any Property shall in any way discharge or diminish any of the
Lessee's obligations to the Lessor hereunder and the Lessee shall remain
directly and primarily liable under this Master Lease as to the Properties, or
portion thereof, so sublet. Each sublease of any Property shall expressly be
made subject to and subordinated to this Master Lease and to the rights of the
Lessor hereunder.
ARTICLE VII
LESSEE ACKNOWLEDGMENTS
VII.1. CONDITION OF THE PROPERTIES. THE LESSEE ACKNOWLEDGES AND AGREES
THAT IT IS LEASING EACH PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR
COVENANT (EXPRESS OR IMPLIED) BY THE LESSOR OR THE LENDERS AND IN EACH CASE
SUBJECT TO (A) THE EXISTING STATE OF TITLE (EXCLUDING LESSOR LIENS), (B) THE
RIGHTS OF ANY PARTIES IN POSSESSION THEREOF, (C) ANY STATE OF FACTS WHICH AN
ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW, AND (D) VIOLATIONS OF
REQUIREMENTS OF LAW AND PROPERTY LEGAL REQUIREMENTS WHICH MAY EXIST ON THE DATE
HEREOF OR ON THE ACQUISITION DATE FOR SUCH PROPERTY. NONE OF THE LESSOR OR THE
LENDERS HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR
COVENANT (EXPRESS OR IMPLIED) OR SHALL BE DEEMED TO HAVE ANY LIABILITY
WHATSOEVER AS TO THE TITLE (OTHER THAN FOR LESSOR LIENS), VALUE, HABITABILITY,
USE,
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CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF ANY PROPERTY (OR ANY PART
THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS
OR IMPLIED, WITH RESPECT TO ANY PROPERTY (OR ANY PART THEREOF) AND NONE OF THE
LESSOR OR THE LENDERS SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT
THEREIN (OTHER THAN FOR LESSOR LIENS) OR THE FAILURE OF ANY PROPERTY, OR ANY
PART THEREOF, TO COMPLY WITH ANY REQUIREMENT OF LAW OR PROPERTY LEGAL
REQUIREMENT.
VII.2. RISK OF LOSS. During the Lease Term the risk of loss of or
decrease in the enjoyment and beneficial use of the Properties as a result of
the damage or destruction thereof by fire, the elements, casualties, thefts,
riots, wars or otherwise is assumed by the Lessee, and the Lessor shall in no
event be answerable or accountable therefor.
ARTICLE VIII
POSSESSION AND USE OF THE PROPERTIES, ETC.
VIII.1. UTILITY CHARGES. The Lessee shall pay or cause to be paid all
charges for electricity, power, gas, oil, water, telephone, sanitary sewer
service and all other rents and utilities used in or on the Properties during
the Lease Term. The Lessee shall be entitled to receive any credit or refund
with respect to any utility charge paid by the Lessee and the amount of any
credit or refund received by the Lessor on account of any utility charges paid
by the Lessee, net of the costs and expenses reasonably incurred by the Lessor
in obtaining such credit or refund, shall be promptly paid over to the Lessee.
VIII.2. POSSESSION AND USE OF THE PROPERTY. Each Property may be used in
all lawful manners consistent with the business of the Lessee and otherwise as
set forth in the applicable Appraisal. The Lessee shall pay, or cause to be
paid, all charges and costs required in connection with the use of the
Properties as contemplated by this Master Lease. The Lessee shall not commit or
permit any waste of the Properties or any part thereof.
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VIII.3. COMPLIANCE WITH REQUIREMENTS OF LAW, PROPERTY LEGAL REQUIREMENTS
AND INSURANCE REQUIREMENTS. Subject to the terms of ARTICLE XII relating to
permitted contests, the Lessee, at its sole cost and expense, shall (a) comply
in all material respects with all Requirements of Law (including all Hazardous
Materials Laws), Property Legal Requirements and Insurance Requirements relating
to the Properties, including the use, construction, operation, maintenance,
repair and restoration thereof and the remarketing thereof pursuant to ARTICLE
XX, whether or not compliance therewith shall require structural or
extraordinary changes in the Improvements or interfere with the use and
enjoyment of the Properties, and (b) procure, maintain and comply with all
licenses, permits, orders, approvals, consents and other authorizations required
for the construction, use, maintenance and operation of the Properties and for
the use, operation, maintenance, repair and restoration of the Improvements.
Notwithstanding the preceding sentence, the Lessee shall be deemed to be in
compliance with all Hazardous Materials Laws for purposes of this Master Lease
notwithstanding any Environmental Violation if the severity of such
Environmental Violation is less than Federal, state or local standards requiring
remediation or removal or, if such standards are exceeded, remediation or
removal is proceeding in accordance with all applicable Hazardous Materials
Laws.
VIII.4. ASSIGNMENT BY LESSEE. The Lessee may not assign this Master Lease
or any of its rights or obligations hereunder in whole or in part to any Person,
except that the Lessee may sublease any Property or portion thereof as permitted
under SECTION 6.1.
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ARTICLE IX
MAINTENANCE AND REPAIR; RETURN
IX.1. MAINTENANCE AND REPAIR; RETURN.
(a) The Lessee, at its sole cost and expense, shall maintain each
Property in good condition (ordinary wear and tear excepted) and make all
necessary repairs thereto, of every kind and nature whatsoever, whether
interior or exterior, ordinary or extraordinary, structural or
nonstructural or foreseen or unforeseen, in each case as required by all
Requirements of Law, Property Legal Requirements and Insurance Requirements
and in no event less than the standards applied by the Lessee in the
operation and maintenance of other comparable properties owned or leased by
the Lessee or its Affiliates.
(b) The Lessor shall under no circumstances be required to build any
improvements on any Property, make any repairs, replacements, alterations
or renewals of any nature or description to any Property, make any
expenditure whatsoever in connection with this Master Lease (other than for
Advances made in accordance with and pursuant to the terms of the
Participation Agreement) or maintain any Property in any way. The Lessee
waives any right to (i) require the Lessor to maintain, repair, or rebuild
all or any part of any Property or (ii) make repairs at the expense of the
Lessor pursuant to any Requirement of Law, Property Legal Requirement,
Insurance Requirement, contract, agreement, or covenant, condition or
restriction in effect at any time during the Lease Term.
(c) The Lessee shall, upon the expiration or earlier termination of
this Master Lease with respect to any Property (other than as a result of
the Lessee's purchase of such Property from the Lessor as provided herein),
vacate and surrender such Property to the Lessor in its then-current, "AS
IS" condition, subject to the Lessee's
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obligations under SECTIONS 8.3, 9.1(a), 10.1, 11.1, 14.1(e), 14.2 and 20.1.
ARTICLE X
MODIFICATIONS, ETC.
X.1. MODIFICATIONS, SUBSTITUTIONS AND REPLACEMENTS. During the Lease
Term, the Lessee, at its sole cost and expense, may at any time and from time to
time make alterations, renovations, improvements and additions to any Property
or any part thereof and substitutions and replacements therefor (collectively,
"MODIFICATIONS"); PROVIDED, HOWEVER, that:
(i) except for any Modification required to be made pursuant to a
Requirement of Law or Property Legal Requirement (a "REQUIRED
MODIFICATION"), no Modification shall adversely affect the value or useful
life of such Property or any part thereof from that which existed
immediately prior to such Modification;
(ii) the Modification shall be done in a good and workmanlike manner;
(iii) the Lessee shall comply in all material respects with all
Requirements of Law (including all Hazardous Materials Laws), Property
Legal Requirements and Insurance Requirements applicable to the
Modification, including the obtaining of all permits and certificates of
occupancy;
(iv) subject to the terms of ARTICLE XII relating to permitted
contests, the Lessee shall pay all costs and expenses and shall discharge
(or cause to be insured or bonded over) within sixty (60) days after the
same shall be filed (or otherwise become effective) any Liens arising with
respect to the Modification;
(v) such Modifications shall comply with Sections 8.3 and 9.1(a); and
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(vi) the Lessee shall be required to obtain the prior written approval
of the Lessor, which approval shall not be unreasonably withheld, and which
shall be deemed to have been given if no response from the Lessor to the
request for consent is received by the Lessee within ten (10) days of the
date of such request, with respect to any alterations that shall Materially
affect any structural element of any Improvements.
All Modifications shall remain part of the realty and shall be subject to this
Master Lease and title thereto shall immediately vest in the Lessor; PROVIDED,
HOWEVER, that Modifications that (x) are not Required Modifications, (y) were
not financed by the Lessor and (z) are readily removable without impairing the
value, utility or remaining useful life of the applicable Property, shall be the
property of the Lessee and shall not be subject to this Master Lease. So long
as no Lease Event of Default has occurred and is continuing, the Lessee may
place upon the Properties any trade fixtures, machinery, equipment, inventory or
other property belonging to the Lessee or third parties and may remove the same
at any time during the Lease Term, subject, however, to the terms of SECTION
9.1(a); PROVIDED, HOWEVER, that such trade fixtures, machinery, equipment,
inventory or other property do not impair the value or useful life of the
applicable Property; PROVIDED, FURTHER, HOWEVER, that the Lessee shall keep and
maintain at the Properties and shall not remove from the Properties any
Equipment financed or otherwise paid for (directly or indirectly) by the Lessor
or any Participant pursuant to the Participation Agreement.
X.2. NOTICE TO THE LESSOR. If the Lessee reasonably expects the cost of
any Modification to any Property to exceed $250,000.00, the Lessee shall deliver
to the Lessor a brief written narrative of the work to be performed in
connection with such Modification prior to making such Modification.
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ARTICLE XI
WARRANT OF TITLE; EASEMENTS
XI.1. WARRANT OF TITLE.
(a) The Lessee agrees that except as otherwise provided herein and
subject to the terms of ARTICLE XII relating to permitted contests, the
Lessee shall not directly or indirectly create or allow to remain, and
shall promptly discharge at its sole cost and expense, any Lien (other than
any Lessor Lien), defect, attachment, levy, title retention agreement or
claim upon any Property or any Lien, attachment, levy or claim with respect
to the Rent or with respect to any amounts held by the Lessor or the
Participants pursuant to the Loan Agreement or the other Operative
Documents, other than Permitted Property Liens and Liens on machinery,
equipment, general intangibles and other personal property not financed by
the proceeds of the Loans or Lessor Amounts.
(b) Nothing contained in this Master Lease shall be construed as
constituting the consent or request of the Lessor, expressed or implied, to
or for the performance by any contractor, mechanic, laborer, materialman,
supplier or vendor of any labor or services or for the furnishing of any
materials for any construction, alteration, addition, repair or demolition
of or to any Property or any part thereof. NOTICE IS HEREBY GIVEN THAT
NONE OF THE LESSOR OR THE LENDERS IS OR SHALL BE LIABLE FOR ANY LABOR,
SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE, OR TO
ANYONE HOLDING A PROPERTY OR ANY PART THEREOF THROUGH OR UNDER THE LESSEE,
AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF THE LESSOR OR ANY
LENDER IN AND TO ANY PROPERTY.
XI.2. GRANTS AND RELEASES OF EASEMENTS; XXXXXX'S WAIVERS. Provided that
no Lease Event of Default shall have occurred and
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be continuing and subject to the provisions of ARTICLES VII, IX and X and
SECTION 8.3 the Lessor hereby consents in each instance to the following actions
by the Lessee, in the name and stead of the Lessor, but at the Lessee's sole
cost and expense: (a) the granting of easements, licenses, rights-of-way and
other rights and privileges in the nature of easements reasonably necessary or
desirable for the use, repair, or maintenance of any Property as herein
provided; (b) the release of existing easements or other rights in the nature of
easements which are for the benefit of any Property; and (c) the execution of
amendments to any covenants and restrictions affecting any Property; PROVIDED,
HOWEVER, that in each case (i) such grant, release, dedication, transfer or
amendment does not materially impair the value or remaining useful life of the
applicable Property, (ii) such grant, release, dedication, transfer or amendment
that in the Lessee's judgment is reasonably necessary in connection with the
use, maintenance, alteration or improvement of the applicable Property, (iii)
such grant, release, dedication, transfer or amendment will not cause the
applicable Property or any portion thereof to fail to comply with the provisions
of this Master Lease or any other Operative Documents and all Property Legal
Requirements (including, without limitation, all applicable zoning, planning,
building and subdivision ordinances, all applicable restrictive covenants and
all applicable architectural approval requirements); (iv) all governmental
consents or approvals required prior to such grant, release, dedication,
transfer, annexation or amendment have been obtained, and all filings required
prior to such action have been made; (v) the Lessee shall remain obligated under
this Master Lease and under any instrument executed by the Lessee consenting to
the assignment of the Lessor's interest in this Master Lease as security for
indebtedness, in each such case in accordance with their terms, as though such
grant, release, dedication, transfer or amendment had not been effected and
(vi) the Lessee shall pay and perform any obligations of the Lessor under such
grant, release, dedication, transfer or amendment. The Lessor acknowledges the
Lessee's right to finance and to secure under the Uniform Commercial Code,
inventory, furnishings, furniture, equipment, machinery, leasehold improvements
and other personal
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property located at the Properties other than Equipment, and Xxxxxx agrees to
execute Lessor waiver forms and release of Xxxxxx's Liens in favor of any
purchase money seller, lessor or lender which has financed or may finance in the
future such items. Without limiting the effectiveness of the foregoing,
provided that no Lease Event of Default shall have occurred and be continuing,
the Lessor shall, upon the request of the Lessee, and at the Lessee's sole cost
and expense, execute and deliver any instruments necessary or appropriate to
confirm any such grant, release, dedication, transfer, annexation or amendment
to any Person permitted under this SECTION 11.2 including landlord waivers with
respect to any of the foregoing. So long as no Event of Default shall have
occurred and be continuing, Xxxxxx is hereby granted an irrevocable power of
attorney (coupled with an interest) to execute the types of documents,
instruments and agreement referred to in this SECTION 11.2. In addition, Lessor
covenants to cooperate and to execute promptly any documents requested by Lessee
under this SECTION 11.2.
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ARTICLE XII
PERMITTED CONTESTS
XII.1. PERMITTED CONTESTS IN RESPECT OF APPLICABLE LAW. If, to the extent
and for so long as (a) a test, challenge, appeal or proceeding for review of any
Applicable Law relating to any Property shall be prosecuted diligently and in
good faith in appropriate proceedings by the Lessee or (b) compliance with such
Applicable Law shall have been excused or exempted by a valid nonconforming use,
variance permit, waiver, extension or forbearance, the Lessee shall not be
required to comply with such Applicable Law but only if and so long as any such
test, challenge, appeal, proceeding, waiver, extension, forbearance or
noncompliance shall not, in the reasonable opinion of the Lessor and the Agent,
involve (A) any risk of criminal liability being imposed on the Lessor or any
Lender or (B) any risk of (1) foreclosure, forfeiture or loss of such Property,
or sale of any Property or any material part thereof, or nonpayment of Rent
(2) civil liability being imposed on the Lessor, any Lender, or such Property,
or (3) enjoinment of, or interference with, the use, possession or disposition
of such Property in any material respect.
The Lessor will not be required to join in any proceedings pursuant to this
SECTION 12.1 unless a provision of any Applicable Law requires that such
proceedings be brought by or in the name of the Lessor; and in that event the
Lessor will join in the proceedings or permit them or any part thereof to be
brought in its name if and so long as (i) the Lessee has not elected the
Remarketing Option and (ii) the Lessee pays all related expenses and indemnifies
the Lessor and the Participants with respect to such proceedings.
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ARTICLE XIII
INSURANCE
XIII.1. PUBLIC LIABILITY AND WORKERS' COMPENSATION INSURANCE.
(a) During the Lease Term, the Lessee shall procure and carry, at the
Lessee's sole cost and expense, commercial general liability insurance for
claims for injuries or death sustained by persons or damage to property
while on the Properties and such other public liability coverages as are
ordinarily procured by the Lessee or its Affiliates who own or operate
similar properties, but in any case shall provide liability coverage of at
least combined single limit for bodily injury or property damage,
$5,000,000 per occurrence and aggregate. Such insurance shall be on terms
and in amounts that are no less favorable than insurance maintained by the
Lessee or such Affiliates with respect to similar properties that they own
and that are in accordance with normal industry practice. The policy shall
be endorsed to name the Lessor as additional insured. The policy shall
also specifically provide that the policy shall be considered primary
insurance which shall apply to any loss or claim before any contribution by
any insurance which the Lessor may have in force.
(b) The Lessee shall in the construction of any Modifications and the
operation of the Properties, comply with the applicable workers'
compensation laws.
XIII.2. HAZARD AND OTHER INSURANCE. During the Lease Term, the Lessee
shall keep, or cause to be kept, such Property insured against loss or damage by
fire, and other risks on terms and in amounts that are no less favorable than
insurance covering other similar properties owned by the Lessee or its
Affiliates and that are in accordance with normal industry practices, but at
least an amount sufficient to cover the replacement cost of the Improvements.
During the construction of any Improvements the
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Lessee shall also maintain or cause to be maintained builders' risk insurance.
All insurance proceeds in respect of any loss or occurrence for which the
proceeds related thereto are (i) less than or equal to $500,000.00, in the
absence of the occurrence and continuance of an Event of Default, shall be
adjusted by and paid to the Lessee for application toward the reconstruction,
repair or refurbishment of the applicable Property and (ii) greater than
$500,000.00, shall be adjusted by and held by the Lessor for application in
accordance with ARTICLE XIV.
XIII.3. INSURANCE COVERAGE.
(a) The Lessee shall furnish the Lessor and the Agent with
certificates showing the insurance required under SECTIONS 13.1 and 13.2 to
be in effect and naming the Lessor as additional insured with respect to
liability coverage (excluding worker's compensation insurance), naming the
Lessor and the Lessee as their interests may appear with respect to
property coverage and naming the Lessor as loss payee with respect to
property coverage and showing the mortgagee endorsement required by SECTION
13.3(c) with respect to such coverage. All such insurance shall be at the
cost and expense of the Lessee. Such certificates shall include a
provision for no less than thirty (30) days' advance written notice by the
insurer to the Lessor in the event of cancellation or reduction of such
insurance.
(b) The Lessee agrees that the insurance policy or policies required
by SECTIONS 13.2 shall include an appropriate clause pursuant to which such
policy shall provide that it will not be invalidated should the Lessee
waive, in writing, prior to a loss, any or all rights of recovery against
any party for losses covered by such policy, and that the insurance in
favor of the Lessor and its rights under and interests in said policies
shall not be invalidated or reduced by any act or omission (including
breach of warranty) or negligence of the Lessee or any other Person having
any interest in any Property other than the Lessor. The Lessee hereby
waives any and all such rights
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against the Lessor to the extent of payments made under such policies.
(c) All such insurance shall be written by reputable insurance
companies that are financially sound and solvent and otherwise reasonably
appropriate considering the amount and type of insurance being provided by
such companies. Any insurance company selected by the Lessee which is
rated in Best's Insurance Guide or any successor thereto (or if there be
none, an organization having a similar national reputation) shall have a
general policyholder rating of "A" and a financial rating of at least
"VIII" or be otherwise acceptable to the Lessor. All insurance policies
required by SECTION 13.2 shall include a standard form mortgagee
endorsement in favor of the Lessor.
(d) The Lessor shall not carry separate insurance concurrent in kind
or form or contributing in the event of loss with any insurance required
under this Article XIII except that the Lessor may, at the Lessor's
expense, carry separate liability insurance so long as (i) the Lessee's
insurance is designated as primary and in no event excess or contributory
to any insurance the Lessor may have in force which would apply to a loss
covered under the Lessee's policy and (ii) each such insurance policy will
not cause the Lessee's insurance required under this Article XIII to be
subject to a coinsurance exception of any kind.
(e) The Lessee shall pay as they become due all premiums for the
insurance required by SECTION 13.1 and SECTION 13.2, and shall renew or
replace each policy prior to the expiration date thereof. Throughout the
Lease Term, at the time each of the Lessee's insurance policies is renewed
(but in no event less frequently than once each year), the Lessee shall
deliver to the Lessor and the Agent certificates of insurance evidencing
that all insurance required by this ARTICLE XIII is being maintained by the
Lessee and is in effect.
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ARTICLE XIV
CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS
XIV.1. CASUALTY AND CONDEMNATION.
(a) Subject to the provisions of this ARTICLE XIV, if all or a
portion of any Property is damaged or destroyed in whole or in part by a
Casualty or if the use, access, occupancy, easement rights or title to any
Property or any part thereof, is the subject of a Condemnation, then
(i) in the case of a Casualty, (x) any insurance proceeds less
than $500,000 payable with respect to such Casualty shall be paid
directly to the Lessee, or if received by the Lessor, shall be paid
over to such Lessee for the reconstruction, refurbishment and repair
of such Property, and (y) any insurance proceeds in excess of $500,000
payable with respect to such Casualty shall be paid to the Lessor to
be applied by disbursement to the Lessee to the restoration of such
Property, and
(ii) in the case of a Condemnation (that is not a Significant
Condemnation) of any part of any Land (not including the applicable
Improvements), any award or compensation relating thereto shall be
paid to the Lessee and in the case of a Significant Condemnation such
award or compensation shall be paid to the Lessor to be applied in the
Lessee's reasonable discretion to the restoration of such Property or
toward the payment of the applicable Lease Balance;
PROVIDED, HOWEVER, that, in each case, if a Lease Event of Default shall
have occurred and be continuing, such award, compensation or insurance
proceeds shall be paid directly to the Lessor or, if received by the
Lessee, shall be held in trust for the Lessor and the Lenders, and shall
be paid over by the Lessee to the Lessor to be distributed in accordance
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with the Article VII of the Participation Agreement. All amounts held by
the Lessor, or the Lenders when a Lease Event of Default exists hereunder
on account of any award, compensation or insurance proceeds either paid
directly to the Lessor or the Lenders or turned over to the Lessor or the
Lenders shall at the option of the Lessor either be (i) paid to the Lessee
for the repair of damage caused by such Casualty or Condemnation in
accordance with CLAUSE (d) of this SECTION 14.1, or (ii) applied to the
purchase price of the related Property on the Termination Date with respect
to such Property in accordance with ARTICLE XV, with any Excess
Casualty/Condemnation Proceeds being payable to the Lessee.
(b) The Lessee may appear in any proceeding or action to negotiate,
prosecute, adjust or appeal any claim for any award, compensation or
insurance payment on account of any such Casualty or Condemnation and shall
pay all expenses thereof. At the Lessee's reasonable request, and at the
Lessee's sole cost and expense, the Lessor and the Lenders shall
participate in any such proceeding, action, negotiation, prosecution or
adjustment. The Lessor and the Lessee agree that this Master Lease shall
control the rights of the Lessor and the Lessee in and to any such award,
compensation or insurance payment.
(c) If the Lessor or the Lessee shall receive notice of a Casualty or
of an actual, pending or threatened Condemnation of any Property or any
interest therein, the Lessor or the Lessee, as the case may be, shall give
notice thereof to the other and to the Lenders promptly after the receipt
of such notice.
(d) If pursuant to this SECTION 14.1 and SECTION 15.1 this Master
Lease shall continue in full force and effect following a Casualty or
Condemnation with respect to any Property, the Lessee shall, at its sole
cost and expense (and, without limitation, if any award, compensation or
insurance payment is not sufficient to restore such Property in accordance
with this CLAUSE (d), or is not covered by
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insurance as in the case of Casualty caused by earthquake, the Lessee shall
pay the shortfall), promptly and diligently repair any damage to such
Property caused by such Casualty or Condemnation in conformity with the
requirements of SECTIONS 9.1 and 10.1 (as modified to give effect to any
subsequent Modifications, any Condemnation affecting such Property and all
applicable Property Legal Requirements) so as to restore such Property to
at least the same condition, operation, function and value as existed
immediately prior to such Casualty or Condemnation with such Modification
as the Lessee may elect in accordance with SECTION 10.1. In such event,
title to such Property shall remain with the Lessor subject to the terms of
this Master Lease. Upon completion of such restoration, the Lessee shall
furnish the Lessor an architect's certificate of substantial completion and
a Responsible Employee's Certificate confirming that such restoration has
been completed pursuant to this Master Lease.
(e) In no event shall a Casualty or Condemnation affect the Lessee's
obligations to pay Rent pursuant to SECTION 3.1 or to perform its
obligations and pay any amounts due on the Expiration Date or pursuant to
ARTICLES XVIII and XXI.
(f) Any Excess Casualty/Condemnation Proceeds received by the Lessor
or the Lenders in respect of a Casualty or Condemnation shall be turned
over to the Lessee.
XIV.2. ENVIRONMENTAL MATTERS. Promptly upon the Lessee's knowledge of the
existence of an Environmental Violation with respect to any Property, the Lessee
shall notify the Lessor in writing of such Environmental Violation. If the
Lessor elects not to terminate this Master Lease with respect to such Property
pursuant to SECTION 15.1, at the Lessee's sole cost and expense, the Lessee
shall promptly and diligently commence any response, clean up, remedial or other
action necessary to remove, clean up or remediate the Environmental Violation in
accordance with the terms of SECTION 8.3 (including the last sentence thereof).
The
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Lessee shall, upon completion of remedial action by the Lessee, cause to be
prepared by an environmental consultant reasonably acceptable to the Lessor a
report describing the Environmental Violation and the actions taken by the
Lessee (or its agents) in response to such Environmental Violation, and a
statement by the consultant that the Environmental Violation has been remedied
in compliance in all material respects with applicable Hazardous Materials Laws.
Each such Environmental Violation shall be remedied prior to the Expiration Date
unless each Property with respect to which an Environmental Violation has
occurred but has not been remedied has been purchased by the Lessee in
accordance with SECTION 18.1 or 18.2. Nothing in this ARTICLE XIV shall reduce
or limit the Lessee's obligations under Sections 13.1, 13.2 or 13.3 of the
Participation Agreement.
XIV.3. NOTICE OF ENVIRONMENTAL MATTERS. Promptly, but in any event within
sixty (60) Business Days from the date the Lessee has actual knowledge thereof,
the Lessee shall provide to the Lessor written notice of any pending or
threatened claim, action or proceeding involving any Hazardous Materials Laws or
any Release on or in connection with any Property. All such notices shall
describe in reasonable detail the nature of the claim, action or proceeding and
the Xxxxxx's proposed response thereto. In addition, the Lessee shall provide
to the Lessor, within sixty (60) Business Days of receipt, copies of all written
communications with any Governmental Authority relating to any Environmental
Violation in connection with any Property. The Lessee shall also promptly
provide such detailed reports of any such material environmental claims as may
reasonably be requested by the Lessor or the Lenders. In the event that the
Lessor receives written notice of any pending or threatened claim, action or
proceeding involving any Hazardous Materials Laws or any Release on or in
connection with any Property, the Lessor shall promptly give notice thereof to
the Lessee.
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ARTICLE XV
TERMINATION OF LEASE
XV.1. PARTIAL TERMINATION UPON CERTAIN EVENTS. If any of the following
occurs with respect to any Property:
(i) a Significant Condemnation occurs; or
(ii) an Environmental Violation occurs or is discovered the cost of
remediation of which would exceed $5,000,000;
and the Lessor shall have given written notice (a "TERMINATION NOTICE") to the
Lessee that, as a consequence of such event, (x) the Lease Supplement relating
to such Property is to be terminated and (y) this Master Lease is to be
terminated with respect to such Property, then the Lessee shall be obligated to
purchase the Lessor's interest in such affected Property on or prior to the next
occurring Basic Rent Payment Date by paying the Lessor an amount equal to the
Property Balance for such affected Property.
XV.2. TERMINATION PROCEDURES. On the date of the payment by the Lessee of
the Property Balance, or the Lease Balance, as the case may be, with respect to
any Property or all Properties, as the case may be, in accordance with SECTION
15.1 (such date, the "TERMINATION DATE"), the Lease Supplement relating to each
such affected Property shall terminate and this Master Lease shall terminate
with respect to each such Property and, concurrent with the Lessor's receipt of
such payment,
(a) the Lessor shall execute and deliver to the Lessee (or to the
Lessee's designee) at the Lessee's cost and expense a special warranty deed
with respect to each such Property, a bill of sale with respect to the
Equipment located on each such Property and an assignment of the Lessor's
entire interest in each such Property (which shall include an assignment of
all of the Lessor's right, title
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and interest in and to any Net Proceeds with respect to each such Property
not previously received by the Lessor), in each case in recordable form and
otherwise in conformity with local custom and free and clear of the Lien of
the Lessor Mortgage and any Lessor Liens attributable to the Lessor;
(b) each such Property shall be conveyed to the Lessee (or to the
Lessee's designee) "AS IS" and in its then present physical condition; and
(c) in the case of a termination pursuant to CLAUSE (i) or (ii) of
SECTION 15.1(a), the Lessor shall convey to the Lessee any Net Proceeds
with respect to the Casualty or Condemnation giving rise to the termination
of this Master Lease with respect to such Property theretofore received by
the Lessor or at the request of the Lessee, such amounts shall be applied
against sums due hereunder.
ARTICLE XVI
EVENTS OF DEFAULT
XVI.1. LEASE EVENTS OF DEFAULT. The occurrence of any one or more of the
following events (whether such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body) shall constitute a "LEASE EVENT OF
DEFAULT":
(a) the Lessee shall fail to make payment of (i) any Basic Rent
within five (5) days after the same has become due and payable, or (ii) any
Property Balance, Purchase Option Price, Loan Balance or Lease Balance,
including, without limitation, amounts due pursuant to SECTIONS 15.1, 15.2,
18.1, 18.2, or 20.1;
(b) the Lessee shall fail to make payment of any
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Supplemental Rent due and payable within five (5) days after receipt of
notice thereof;
(c) the Lessee shall fail to maintain insurance as required by
ARTICLE XIII of this Master Lease;
(d) the Lessee shall fail to deposit with the Collateral Agent,
within the time set forth in Section 6.1 of the Participation Agreement,
the Deficiency Collateral;
(e) the Lessee shall not be in compliance with Section 10.1(f)(i),
(ii) or (iii) of the Participation Agreement;
(f) the Lessee shall fail to observe or perform any term, covenant or
condition of the Lessee under this Lease or the Operative Documents to
which it is party other than those described in SECTION 20.1(a), (b), (c),
(d) or (e) hereof, and such failure shall have continued for thirty (30)
days after the earlier of (i) delivery to the Lessee of written notice
thereof from the Lessor or (ii) a Responsible Employee of the Lessee shall
have knowledge of such failure; PROVIDED FURTHER, that failure by the
Lessee to fully comply with the requirements of SECTION 20.1 hereof shall
not be subject to any cure period; provided, however, that no Event of
Default shall be deemed to have occurred under this subsection until one
hundred twenty (120) days has elapsed so long as throughout such time, the
Lessee is diligently pursuing a cure for such breach (to the extent such
breach may be cured);
(g) any representation or warranty made by the Lessee in any of the
Operative Documents to which it is a party shall prove to have been
Materially inaccurate at the time made, and if such inaccuracy can be
cured, it shall not have been cured within thirty (30) days after the
earlier of (i) delivery to the Lessee of written notice thereof from the
Lessor or (ii) a Responsible Employee of the Lessee shall have knowledge of
such inaccuracy; provided, however, that no Event of Default shall be
deemed to have occurred
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under this subsection until one hundred twenty (120) days has elapsed so
long as throughout such time, the Lessee is diligently pursuing a cure for
such breach (to the extent such breach may be cured);
(h) the Lessee shall (i) admit in writing its inability to pay its
debts generally as they become due, (ii) file a petition under the United
States bankruptcy laws or any other applicable insolvency law or statute of
the United States of America or any State or Commonwealth thereof,
(iii) make a general assignment for the benefit of its creditors,
(iv) consent to the appointment of a receiver of itself or the whole or any
substantial part of its property, (v) fail to cause the discharge of any
custodian, trustee or receiver appointed for the Lessee or the whole or a
substantial part of its property within sixty (60) days after such
appointment, or (vi) file a petition or answer seeking or consenting to
reorganization under the United States bankruptcy laws or any other
applicable insolvency law or statute of the United States of America or any
State or Commonwealth thereof;
(i) insolvency proceedings or a petition under the United States
bankruptcy laws or any other applicable insolvency law or statute of the
United States of America or any State or Commonwealth thereof shall be
filed against the Lessee and not dismissed within ninety (90) days from the
date of its filing, or a court of competent jurisdiction shall enter an
order or decree appointing, without the consent of the Lessee a receiver of
the Lessee or the whole or a substantial part of any of its property and
such order or decree shall not be vacated or set aside within ninety (90)
days from the date of the entry thereof;
(j) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
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member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $5,000,000;
(k) any judgments or orders for the payment of money, in any case not
covered by insurance, individually or in the aggregate in excess of
$5,000,000 shall be rendered against the Lessee, and such judgment or order
shall continue unsatisfied and unstayed (pursuant to laws, rules or court
orders) for a period of thirty (30) days;
(l) an event of default, as defined in any agreement, mortgage,
indenture or instrument under which there may be issued, or by which there
may be secured or evidenced, any indebtedness of the Lessee with respect to
any Property, whether such indebtedness now exists or shall hereafter be
created, shall happen and such indebtedness individually or in the
aggregate shall exceed $5,000,000 and shall be due and payable prior to its
stated maturity;
(m) any Lien granted under any Operative Document shall, in whole or
in part, terminate, cease to be effective against, or cease to be the
legal, valid, binding and enforceable obligation of, the Lessee;
(n) the Lessee shall directly or indirectly contest the validity of
any Operative Document in any manner in any court of competent jurisdiction
or any lien granted by any
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Operative Document; or
(o) a Loan Agreement Event of Default, a Guaranty Event of Default or
a Construction Agency Agreement Event of Default shall have occurred and be
continuing.
XVI.2. REMEDIES. Upon the occurrence of any Lease Event of Default and at
any time thereafter, the Lessor may, so long as such Lease Event of Default is
continuing, do one or more of the following as the Lessor in its sole discretion
shall determine, without limiting any other right or remedy the Lessor may have
on account of such Lease Event of Default (including, without limitation, the
obligation of the Lessee to purchase the Properties as set forth in SECTION
18.2:
(a) The Lessor may, by notice to the Lessee, rescind or terminate
this Master Lease as to any Property or all of the Properties as of the
date specified in such notice; however, (i) no reletting, reentry or taking
of possession of any Property (or any portion thereof) by the Lessor will
be construed as an election on the Lessor's part to terminate this Master
Lease unless a written notice of such intention is given to the Lessee,
(ii) notwithstanding any reletting, reentry or taking of possession, the
Lessor may at any time thereafter elect to terminate this Master Lease for
a continuing Lease Event of Default and (iii) no act or thing done by the
Lessor or any of its agents, representatives or employees and no agreement
accepting a surrender of the Properties shall be valid unless the same be
made in writing and executed by the Lessor;
(b) The Lessor may (i) demand that the Lessee, and the Lessee shall
upon the written demand of the Lessor, return any Property promptly to the
Lessor in the manner and condition required by, and otherwise in accordance
with all of the provisions of, ARTICLES VII and IX and SECTION 8.3 hereof
as if such Property were being returned at the end of the Lease Term, and
the Lessor shall not be liable for the reimbursement of the Lessee for any
costs and expenses
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incurred by the Lessee in connection therewith and (ii) without prejudice
to any other remedy which the Lessor may have for possession of any
Property, and to the extent and in the manner permitted by Applicable Law,
enter upon such Property and take immediate possession of (to the exclusion
of the Lessee) such Property or any part thereof and expel or remove the
Lessee and any other Person who may be occupying such Property, by summary
proceedings or otherwise, all without liability to the Lessee for or by
reason of such entry or taking of possession, whether for the restoration
of damage to property caused by such taking or otherwise and, in addition
to the Lessor's other damages, the Lessee shall be responsible for all
costs and expenses incurred by the Lessor and/or the Lenders in connection
with any reletting, including, without limitation, reasonable brokers' fees
and all costs of any alterations or repairs made by the Lessor;
(c) The Lessor may (i) sell all or any part of any Property at public
sale free and clear of any rights of the Lessee and without any duty to
account to the Lessee with respect to such action or inaction or any
proceeds (except that Excess Proceeds are payable to and shall be paid to
the Lessee) with respect thereto (except to the extent required by CLAUSE
(ii) below if the Lessor shall elect to exercise its rights thereunder) in
which event the Lessee's obligation to pay Basic Rent hereunder for periods
commencing after the date of such sale shall be terminated or
proportionately reduced, as the case may be; and (ii) if the Lessor shall
so elect, demand that the Lessee pay to the Lessor, and the Lessee shall
pay to the Lessor, on the date of such sale, as liquidated damages for loss
of a bargain and not as a penalty (the parties agreeing that the Lessor's
actual damages would be difficult to predict, but the aforementioned
liquidated damages represent a reasonable approximation of such amount) or
(in lieu of Basic Rent due for periods commencing on or after the Payment
Date coinciding with such date of sale (or, if the sale date is not a Basic
Rent Payment Date, the Basic Rent Payment Date
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next preceding the date of such sale)), an amount equal to (A) the excess,
if any, of (1) the Lease Balance calculated as of such Basic Rent Payment
Date (including all Rent due and unpaid to and including such Basic Rent
Payment Date and), over (2) the net proceeds of such sale (that is, after
deducting all costs and expenses incurred by the Lessor incident to such
conveyance, including, without limitation, repossession costs, brokerage
commissions, prorations, transfer taxes, fees and expenses for counsel,
title insurance fees, survey costs, recording fees, and any repair costs);
plus (B) interest at the Overdue Rate on the foregoing amount from such
Basic Rent Payment Date until the date of payment;
(d) The Lessor may, at its option, elect not to terminate this Master
Lease with respect to any Property or all of the Properties and continue to
collect all Basic Rent, Supplemental Rent, and all other amounts due the
Lessor (together with all costs of collection) and enforce the Lessee's
obligations under this Master Lease as and when the same become due, or are
to be performed, and at the option of the Lessor, upon any abandonment of
any Property by the Lessee or re-entry of same by the Lessor, the Lessor
may, in its sole and absolute discretion, elect not to terminate this
Master Lease and may make the necessary repairs in order to relet such
Property, and relet such Property or any part thereof for such term or
terms (which may be for a long term extending beyond the Lease Term of this
Master Lease) and at such rental or rentals and upon such other terms and
conditions as the Lessor in its reasonable discretion may deem advisable;
and upon each such reletting all rentals actually received by the Lessor
from such reletting shall be applied to the Lessee's obligations hereunder
and the other Operative Documents in such order, proportion and priority as
the Lessor may elect in the Lessor's sole and absolute discretion. If such
rentals received from such reletting during any period are less than the
Rent with respect to such Property to be paid during that period by the
Lessee hereunder, the Lessee shall pay
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any deficiency, as calculated by the Lessor, to the Lessor on the next
Basic Rent Payment Date;
(e) Unless all of the Properties have been sold in their entirety,
the Lessor may, whether or not the Lessor shall have exercised or shall
thereafter at any time exercise any of its rights under CLAUSE (b), (c) or
(d) of this SECTION 16.2 with respect to any Properties or any portions
thereof, demand, by written notice to the Lessee specifying a date (a
"TERMINATION DATE") not earlier than twenty (20) days after the date of
such notice, that the Lessee purchase, on such Termination Date, all unsold
Properties and all unsold portions of Properties in accordance with the
provisions of ARTICLE XXI and SECTION 18.2;
(f) The Lessor may exercise any other right or remedy that may be
available to it under Applicable Law, or proceed by appropriate court
action (legal or equitable) to enforce the terms hereof or to recover
damages for the breach hereof. Separate suits may be brought to collect
any such damages for any period(s), and such suits shall not in any manner
prejudice the Lessor's right to collect any such damages for any subsequent
period(s), or the Lessor may defer any such suit until after the expiration
of the Lease Term, in which event such suit shall be deemed not to have
accrued until the expiration of the Lease Term;
(g) The Lessor may retain and apply against the Lease Balance all
sums which the Lessor would, absent such Lease Event of Default, be
required to pay to, or turn over to, the Lessee pursuant to the terms of
this Master Lease;
(h) If a Lease Event of Default shall have occurred and be
continuing, the Lessor, to the extent permitted by Applicable Law, as a
matter of right and with notice to the Lessee, shall have the right to
apply to any court having jurisdiction to appoint a receiver or receivers
of any Property, and the Lessee hereby irrevocably consents to any
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such appointment. Any such receiver(s) shall have all of the usual powers
and duties of receivers in like or similar cases and all of the powers and
duties of the Lessor in case of entry, and shall continue as such and
exercise such powers until the date of confirmation of the sale of such
Property unless such receivership is sooner terminated;
(i) To the maximum extent permitted by law, the Lessee hereby waives
the benefit of any appraisement, valuation, stay, extension, reinstatement
and redemption laws now or hereafter in force and all rights of marshalling
in the event of any sale of any Property or any interest therein;
(j) The Lessor shall be entitled to enforce payment of the
indebtedness and performance of the obligations secured hereby and to
exercise all rights and powers under this instrument or under any of the
other Operative Documents or other agreement or any laws now or hereafter
in force, notwithstanding some or all of the obligations secured hereby may
now or hereafter be otherwise secured, whether by mortgage, security
agreement, pledge, lien, assignment or otherwise. Neither the acceptance
of this instrument nor its enforcement, shall prejudice or in any manner
affect the Lessor's right to realize upon or enforce any other security now
or hereafter held by the Lessor, it being agreed that the Lessor shall be
entitled to enforce this instrument and any other security now or hereafter
held by the Lessor in such order and manner as the Lessor may determine in
its absolute discretion. No remedy herein conferred upon or reserved to
the Lessor is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute. Every power or remedy given by any of
the Operative Documents to the Lessor or to which it may otherwise be
entitled, may be exercised, concurrently or independently, from time to
time and as often as may be deemed expedient by the Lessor. In no event
shall the Lessor, in the exercise of the remedies provided in this
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instrument (including, without limitation, in connection with the
assignment of rents to Lessor, or the appointment of a receiver and the
entry of such receiver onto all or any part of the Properties), be deemed a
"mortgagee in possession," and the Lessor shall not in any way be made
liable for any act, either of commission or omission, in connection with
the exercise of such remedies.
If, pursuant to the exercise by the Lessor of its remedies pursuant to this
SECTION 16.2, the Lease Balance and all other amounts due and owing from the
Lessee under this Master Lease and the other Operative Documents have been paid
in full, then the Lessor shall remit to the Lessee any excess amounts received
by the Lessor.
(k) FORECLOSURE; POWER OF SALE. Lessee hereby grants to First
American Title Guaranty Company, as trustee (together with all successor
trustees, the "TRUSTEE"), IN TRUST, WITH POWER OF SALE, all of Lessee's
right, title and interest in and to the Properties and, upon the occurrence
of a Lease Event of Default, Lessor shall have the power and authority,
after proper notice and lapse of such time as may be required by law, to
cause Trustee to sell any Property or the Properties by notifying Trustee
of that election and depositing with Trustee this instrument and receipts
and evidence of expenditures made and secured hereby as Trustee may
reasonably require. Upon receipt of any such notice from Lessor, Trustee
shall cause to be recorded, published and delivered to Lessee such Notice
of Default and Election to Sell as is then required by applicable statutory
authority and by this instrument, which notice shall set forth, among other
things, the nature of the breach(es) or default(s), the action(s) required
to effect a cure thereof and the time period within which that cure may be
effected. If no cure is effected within the statutory time limits
following recordation of the Notice of Default and Election to Sell and
after Notice of Sale has been given as required by the above-referenced
statutes, Trustee may without further notice or demand sell and convey any
Property or the
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Properties in accordance with the above-referenced statutes. Each Property
may be sold as a whole or in separate lots, parcels or items and in such
order as Lessor may direct, at public auction to the highest bidder for
cash in lawful money of the United States payable at the time of sale.
Trustee shall deliver to such purchaser(s) a good and sufficient deed or
deeds conveying the property so sold, but without any covenant or warranty
express or implied. The recitals in such deed of any matter or fact shall
be conclusive proof of the truthfulness thereof. Any Person, including
Lessee, Trustee or Lessor, may purchase at any sale. After deducting all
costs, fees and expenses of Lessor and Trustee, including costs of evidence
of title in connection with any sale, Lessor shall apply the proceeds of
sale, in the following order of priority, to payment of the following
(collectively, the "OBLIGATIONS"): (i) FIRST, all amounts expended by or
for the account of Lessor under the terms hereof and not then repaid, with
accrued interest at the Overdue Rate; and (ii) SECOND, all other amounts
then due and owing hereunder including, without limitation, all Basic Rent,
Supplemental Rent, the full amount of the Lease Balance as of the date of
sale as if this Lease had been terminated with respect to all of the
Properties then subject to this Lease under SECTION 18.1, and all other
amounts then payable by Lessee under this Lease and the other Operative
Documents, with Lessor having the right to apply the proceeds of sale to
the amounts described above in this clause (ii) in such order, proportion
and priority as Lessor may elect in its sole and absolute discretion. To
the extent permitted by applicable statutes, Trustee may postpone the sale
of all or any portion of any Property or the Properties by public
announcement at the time and place of sale, and from time to time
thereafter may again postpone that sale by public announcement or
subsequently noticed sale, and without further notice may make such sale at
the time fixed at the last postponement or may, in its discretion, give a
new notice of sale. A sale of less than all of any Property or the
Properties or any defective or irregular sale made hereunder shall not
exhaust the power of
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sale provided for herein, and subsequent sales may be made hereunder until
all of the Obligations have been satisfied or all the Properties have been
sold, without defect or irregularity. No action of Lessor or Trustee based
upon the provisions contained herein or contained in the applicable
statutes, including, without limitation, the giving of the Notice of
Default and Election to Sell or the Notice of Sale, shall constitute an
election of remedies which would preclude Lessor from pursuing judicial
foreclosure before a completed sale pursuant to the power of sale contained
herein. Lessor shall have the right, with the irrevocable consent of
Lessee hereby given and evidenced by the execution of this instrument, to
obtain appointment of a receiver by any court of competent jurisdiction
without further notice to Lessee, which receiver shall be authorized and
empowered to enter upon and take possession of any Property or the
Properties, including all personal property used upon or in connection with
the real property herein conveyed, to let any Property or the Properties,
to receive all the rents, issues and profits, if any, which may be due or
become due in respect to the leasing of any Property or the Properties to
another party ("PROPERTY RENTS"), and apply the Property Rents after
payment of all necessary charges and expenses to reduction of the
Obligations in such order, proportion and priority as Lessor may elect. At
the option of Lessor, the receiver shall accomplish entry and taking
possession of any Property or the Properties by actual entry and possession
or by notice to Lessee. The receiver so appointed by a court of competent
jurisdiction shall be empowered to issue receiver's certificates for funds
advanced by Lessor for the purpose of protecting the value of any Property
or the Properties as security for the Obligations. The amounts evidenced
by receiver's certificates shall bear interest at the Overdue Rate and may
be added to the Obligations if the Lessee or a junior lienholder purchases
any Property or the Properties at the trustee's sale. Trustee or any
successor acting hereunder may resign and thereupon be discharged of the
trusts hereunder upon thirty (30) days' prior written notice to
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Lessor. Regardless of whether Trustee resigns, Lessor may, from time to
time, substitute a successor or successors to any Trustee named herein or
acting hereunder in accordance with any statutory procedure for such
substitution; or if Lessor, in its sole and absolute discretion, so elects,
and if permitted by law, Lessor may substitute such successors or
successors by recording, in the office of the recorder of the county or
counties where such Property is located, a document executed by Xxxxxx and
containing the name of the original Lessee and Lessor hereunder, the book
and page where this instrument (or a memorandum hereof) is recorded (and/or
instrument number, as applicable) and the name of the new Trustee, which
instrument shall be conclusive proof of proper substitution of such
successor Trustee or Trustees, who shall, without conveyance from the
predecessor Trustee, succeed to the rights, powers and duties hereunder.
It is acknowledged that A POWER OF SALE HAS BEEN GRANTED IN THIS
INSTRUMENT; A POWER OF SALE MAY ALLOW LESSOR TO TAKE THE PROPERTIES AND
SELL THEM WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY
LESSEE UNDER THIS INSTRUMENT.
Notwithstanding any of the foregoing, the Lessor acknowledges that upon the
occurrence and continuance of a Lease Event of Default solely under CLAUSE (e)
of SECTION 16.1, the Lessor's remedies for such default shall be limited to
recovery of the Loan Balance by liquidation of the Additional Collateral or
through other appropriate means.
XVI.3. WAIVER OF CERTAIN RIGHTS. If this Master Lease shall be terminated
pursuant to SECTION 16.2, the Lessee waives, to the fullest extent permitted by
law, (a) any notice of re-entry or the institution of legal proceedings to
obtain re-entry or possession; (b) any right of redemption, re-entry or
repossession; (c) the benefit of any laws now or hereafter in force exempting
property from liability for rent or for debt or limiting the Lessor with respect
to the election of remedies; and (d) any other rights which might otherwise
limit or modify any of the Lessor's rights or remedies under this ARTICLE XVI.
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ARTICLE XVII
LESSOR'S RIGHT TO CURE
XVII.1. THE LESSOR'S RIGHT TO CURE THE LESSEE'S LEASE DEFAULTS. The
Lessor, without waiving or releasing any obligation or Lease Event of Default,
may (but shall be under no obligation to) remedy any Lease Event of Default for
the account and at the sole cost and expense of the Lessee, including the
failure by the Lessee to maintain the insurance required by ARTICLE XIII, and
may, to the fullest extent permitted by law, and notwithstanding any right of
quiet enjoyment in favor of the Lessee, enter upon any Property for such purpose
and take all such action thereon as may be necessary or appropriate therefor.
No such entry shall be deemed an eviction of the Lessee. All reasonable
out-of-pocket costs and expenses so incurred (including fees and expenses of
counsel), together with interest thereon at the Overdue Rate from the date on
which such sums or expenses are paid by the Lessor, shall be paid by the Lessee
to the Lessor as Supplemental Rent.
ARTICLE XVIII
PURCHASE PROVISIONS
XVIII.1. PURCHASE OF ALL OR SOME OF THE PROPERTIES. Subject to the
conditions contained herein, and without limitation of the Lessee's purchase
obligation pursuant to SECTION 18.2, the Lessee shall have the irrevocable
option on any Business Day to purchase all or some of the Properties subject to
this Master Lease at a price equal to the Lease Balance for such Properties on
the date of such purchase relating to such Property. The Lessee's exercise of
its option pursuant to this SECTION 18.1 shall be subject to the following
conditions:
(i) the Lessee shall have delivered a Purchase Notice to the Lessor
not less than thirty (30) days prior to such purchase, specifying the date
of such purchase, which date shall be a Basic Rent Payment Date;
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(ii) the Lessee shall not have given notice of its intention to
exercise the Remarketing Option.
If the Lessee exercises its option pursuant to this SECTION 18.1 then, upon the
Lessor's receipt of all amounts due in connection therewith, including Break
Costs, if any, the Lessor shall transfer to the Lessee or its designee all of
the Lessor's right, title and interest in and to the applicable Properties in
accordance with the procedures set forth in SECTION 21.1(a), such transfer to be
effective as of the date specified in the Purchase Notice. The Lessee may
designate, in a notice given to the Lessor not less than ten (10) Business Days
prior to the closing of such purchase (time being of the essence), the
transferee or transferees to whom the conveyance shall be made (if other than to
the Lessee), in which case such conveyance shall (subject to the terms and
conditions set forth herein) be made to such designee; PROVIDED, HOWEVER, that
such designation of a transferee or transferees shall not cause the Lessee to be
released, fully or partially, from any of its obligations under this Master
Lease, including, without limitation, the obligation to pay the Lessor the Lease
Balance on such Expiration Date.
XVIII.2. EXPIRATION DATE PURCHASE OBLIGATION. Unless (a) the Lessee shall
have properly exercised its option pursuant to SECTION 18.1 and purchased the
Properties pursuant thereto, or (b) the Lessee shall have properly exercised the
Remarketing Option and shall have fulfilled all of the conditions of CLAUSES (a)
through (l) of SECTION 20.1 hereof and the Lessor shall have sold its interest
in all of the Properties pursuant thereto, then, subject to the terms,
conditions and provisions set forth in this Article, and in accordance with the
terms of SECTION 21.1(a), the Lessee shall purchase from the Lessor, and the
Lessor shall convey to the Lessee, on the Expiration Date all of the Lessor's
interest in all of the Properties for an amount equal to the Lease Balance. The
Lessee may designate, in a notice given to the Lessor not less than ten (10)
Business Days prior to the closing of such purchase (time being of the essence),
the transferee or transferees to whom the conveyance shall be made (if other
than to the Lessee), in which case such
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conveyance shall (subject to the terms and conditions set forth herein) be made
to such designee; PROVIDED, HOWEVER, that such designation of a transferee or
transferees shall not cause the Lessee to be released, fully or partially, from
any of its obligations under this Master Lease, including, without limitation,
the obligation to pay the Lessor the Lease Balance on such Expiration Date.
ARTICLE XIX
RENEWAL TERMS
XIX.1. RENEWAL. Prior to the final Expiration Date, the parties hereto
may agree to renew this Master Lease for one or more additional terms upon terms
and conditions to be mutually agreed upon; PROVIDED, HOWEVER, that nothing
herein shall be construed as a commitment by either party to renew this Master
Lease beyond the Expiration Date.
ARTICLE XX
REMARKETING OPTION
XX.1. OPTION TO REMARKET. Subject to the fulfillment of each of the
conditions set forth in this SECTION 20.1, the Lessee shall have the option (the
"REMARKETING OPTION") to market and complete the sale of all of the Properties
for the Lessor.
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The Lessee's effective exercise and consummation of the Remarketing Option
shall be subject to the due and timely fulfillment of each of the following
provisions as to each of the Properties as of the dates set forth below.
(a) Not later than one hundred and eighty (180) days prior to the
Expiration Date, the Lessee shall give to the Lessor written notice of the
Lessee's exercise of the Remarketing Option, which exercise shall be
irrevocable. Failure by the Lessee to give timely notice shall be deemed
to be an election by the Lessee, without further act thereby, of its
Purchase Option for all of the Properties.
(b) Not later than one hundred and twenty (120) days prior to the
Expiration Date, the Lessee shall deliver to the Lessor an Environmental
Audit for each of the Properties. Such Environmental Audit shall be
prepared by an environmental consultant selected by the Lessor in the
Lessor's reasonable discretion and shall contain conclusions reasonably
satisfactory to the Lessor as to the environmental status of the
Properties. If any such Environmental Audit indicates any exceptions, the
Lessee shall have also delivered prior to the Expiration Date a Phase Two
environmental assessment by such environmental consultant and a written
statement by such environmental consultant indicating that all such
exceptions have been remedied in compliance with Applicable Law.
(c) The Lessee shall have completed all Modifications, restoration
and rebuilding of the affected Properties pursuant to SECTIONS 10.1 and
14.1 (as the case may be) and shall have fulfilled all of the conditions
and requirements in connection therewith pursuant to said Sections, in each
case prior to the date on which the Lessor receives the Lessee's notice of
the Lessee's intention to exercise the Remarketing Option (time being of
the essence), regardless of whether the same shall be within the Lessee's
control. The Lessee shall have also paid the cost of all Modifications
commenced prior to the Expiration Date. The
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Lessee shall not have been excused pursuant to SECTION 12.1 from complying
with any Applicable Law that involved the extension of the ultimate
imposition of such Applicable Law beyond the Expiration of the Term. Any
Permitted Property Liens (other than Lessor Liens) on any Property that
were contested by the Lessee shall have been removed.
(d) During the Marketing Period, the Lessee shall, as nonexclusive
agent for the Lessor, use its best efforts to sell the Lessor's interest in
the Properties and will attempt to obtain the highest purchase price
therefor and for not less than the Fair Market Sales Value. The Lessee
will be responsible for hiring brokers and making the Properties available
for inspection by prospective purchasers. The Lessee shall promptly upon
request permit inspection of any Property and any maintenance records
relating to any Property by the Lessor, any Participant and any potential
purchasers, and shall otherwise do all things necessary to sell and deliver
possession of the Properties to any purchaser. All such marketing of the
Properties shall be at the Lessee's sole expense. The Lessee shall allow
the Lessor and any potential qualified purchaser reasonable access to the
Properties for the purpose of inspecting the same.
(e) The Lessee shall procure bids from one or more bona fide
prospective purchasers and shall deliver to the Lessor and the Participants
not less than ninety (90) days prior to the Expiration Date a binding
written unconditional (except as set forth below), irrevocable offer by
such purchaser or purchasers offering the highest bid to purchase the
Properties. No such purchaser shall be the Lessee or any Subsidiary or
Affiliate of the Lessee. The written offer must specify the Expiration
Date as the closing date unless the Lessor and the Participants shall
otherwise agree in their sole discretion.
(f) The Lessee shall submit all bids to the Lessor and the
Participants, and the Lessor will have the right to
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submit any one or more bids. Any sale by the Lessee shall be for the
highest cash bid submitted to the Lessor. The determination of the highest
bid shall be made by the Lessor prior to the end of the Marketing Period,
but in any event, the Lessor shall have no obligation to approve any bid
for any Property unless each highest bid plus an amount that may be paid by
the Lessee in its sole and absolute discretion (in addition to its
obligations under SECTION 20.1(i)), together with such bid, equals or
exceeds the Property Balance. All bids shall be on an all-cash basis
unless the Lessor and the Participants shall otherwise agree in their sole
discretion.
(g) The Lessee shall have obtained, at its cost and expense, all
required governmental and regulatory consents and approvals and shall have
made all filings as required by Applicable Law in order to carry out and
complete the transfer of each of the Properties. As to the Lessor, any
such sale shall be made on an "as is, with all faults" basis without
representation or warranty by the Lessor other than the absence of Lessor
Liens. Any agreement as to such sale shall be made subject to the Lessor's
rights hereunder.
(h) As between the Lessor and the Lessee the Lessee shall pay
directly, and not from the sale proceeds, all prorations, credits, costs
and expenses of the sale of the Properties, whether incurred by the Lessor
or the Lessee, including without limitation, the cost of all title
insurance, surveys, environmental reports, appraisals, transfer taxes, the
Lessor's reasonable attorneys' fees, the Lessee's attorneys' fees,
commissions, escrow fees,recording fees, and all applicable documentary and
other transfer taxes.
(i) The Lessee shall pay to the Lessor on or prior to the Expiration
Date (or in the case of Supplemental Rent, to the Person entitled thereto)
an amount equal to the Loan Balance PLUS all accrued and unpaid Rent
(including Supplemental Rent, if any) and all other amounts hereunder
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which have accrued or will accrue prior to or as of the Expiration Date, in
the type of funds specified in SECTION 3.4 hereof.
(j) The Lessee shall pay to the Lessor on or prior to the Expiration
Date the amounts, if any, required to be paid pursuant to Section 13.2 of
the Participation Agreement.
(k) The purchase of all of the Properties shall be consummated on the
Expiration Date and the gross proceeds (the "GROSS REMARKETING PROCEEDS")
of the sale of the Properties (less any marketing, closing or other costs,
prorations or commissions) shall be paid directly to the Lessor; PROVIDED,
HOWEVER, that if the sum of (x) the Gross Remarketing Proceeds from such
sale PLUS (y) the Loan Balance received by the Lessor exceeds the Lease
Balance as of such date, then the excess shall be paid to the Lessee on the
Expiration Date.
If the Lessee effectively elects the Remarketing Option and no sale of any
Property is consummated prior to the end of the Marketing Period, Lessee may
exercise its purchase option pursuant to SECTION 18.2 or Lessee shall, in
addition to making the payment required pursuant to SECTION 20.1(i) above, at
its own cost and expense, do each of the following:
(i) execute and deliver to Lessor and the Lessor's title insurance
company an affidavit as to the absence of any Liens (other than Permitted
Liens of the type described in CLAUSE (i), (viii) or (x)), and shall
execute and deliver to the Lessor a statement of termination of this Master
Lease to the extent relating to such Property;
(ii) on the Expiration Date, transfer possession of such Property to
the Lessor or any Person designated by the Lessor, by surrendering the same
into the possession of the Lessor or such Person, as the case may be, in
the condition required by this SECTION 20.1 and in compliance with
Applicable Law; and
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(iii) for a period of up to one year after the Expiration Date,
cooperate reasonably with the Lessor and/or any Person designated by the
Lessor to receive such Property, which cooperation shall include reasonable
efforts with respect to the following, all of which the Lessee shall do on
or before the Expiration Date for such Property or as soon thereafter as is
reasonably practicable: providing copies of all books and records
regarding the maintenance and ownership of such Property and all know-how,
data and technical information relating thereto, providing a current copy
of the applicable Plans and Specifications, granting or assigning all
assignable licenses necessary for the operation and maintenance of such
Property and cooperating reasonably in seeking and obtaining all necessary
Governmental Action. The obligations of the Lessee under this paragraph
shall survive the expiration or termination of this Master Lease.
Except as expressly set forth herein, the Lessee shall have no right, power
or authority to bind the Lessor in connection with any proposed sale of any
Property.
If one or more of the foregoing provisions shall not be fulfilled as of the
date set forth above with respect to any Property, then the Lessor shall declare
by written notice to the Lessee the Remarketing Option to be null and void
(whether or not it has been theretofore exercised by the Lessee) as to all of
the Properties, in which event all of the Lessee's rights under this SECTION
20.1 shall immediately terminate and the Lessee shall be obligated to purchase
all of the Properties pursuant to SECTION 18.2 on the Expiration Date.
XX.2. CERTAIN OBLIGATIONS CONTINUE. During the Marketing Period, the
obligation of the Lessee to pay Rent with respect to each Property (including
the installment of Rent due on the Expiration Date) shall continue undiminished
until payment in full of the Loan Balance and all other amounts due to the
Lessor with respect to the Properties under the Operative Documents to which the
Lessee is a party. The Lessor shall have the right,
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but shall be under no duty, to solicit bids, to inquire into the efforts of the
Lessee to obtain bids or otherwise to take action in connection with any such
sale, other than as expressly provided in this ARTICLE XX.
ARTICLE XXI
PROCEDURES RELATING TO PURCHASE OR REMARKETING
XXI.1. PROVISIONS RELATING TO THE EXERCISE OF PURCHASE OPTION OR
OBLIGATION AND CONVEYANCE UPON REMARKETING AND CONVEYANCE UPON CERTAIN OTHER
EVENTS.
(a) In connection with any termination of this Master Lease with
respect to any Property pursuant to the terms of ARTICLE XV, in connection
with any purchase or in connection with the Lessee's purchase of any
Property in accordance with SECTION 18.1 or in connection with the Lessee's
Expiration Date Purchase Obligation or obligations under SECTION 16.2(e),
then, upon the date on which this Master Lease is to terminate with respect
to the applicable Property and upon the payment of all amounts due under
Section 5.1 of the Construction Agency Agreement, as applicable, and upon
tender by the Lessee of the amounts set forth in ARTICLE XV, SECTIONS
16.2(e), 18.1 or 18.2, as applicable:
(i) the Lessor shall execute and deliver to the Lessee (or to
the Lessee's designee) at the Lessee's cost and expense a grant deed
with respect to such Property or Properties containing representations
and warranties of grantor to the Lessee regarding Lessor Liens, a bill
of sale with respect to the Equipment located on such Property or
Properties and an assignment of the Lessor's entire interest in such
Property or Properties (which shall include an assignment of all of
the Lessor's right, title and interest in and to any Net Proceeds with
respect to such Property or Properties not previously received by
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the Lessor and an assignment of leases of the Properties), in each
case in recordable form and otherwise in conformity with local custom
and free and clear of the Lien of the Lessor Deed of Trust and any
Lessor Liens;
(ii) such Property or Properties shall be conveyed to the Lessee
"AS IS" and in its then present physical condition; and
(iii) the Lessor shall execute and deliver to Xxxxxx and the
Lessee's title insurance company an affidavit as to the Lessor's title
and Lessor Liens and shall execute and deliver to Lessee a statement
of termination of this Master Lease.
(b) If the Lessee properly exercises the Remarketing Option, then the
Lessee shall, on the Expiration Date, and at its own cost, transfer
possession of all of the Properties to the independent purchaser(s)
thereof, in each case by surrendering the same into the possession of the
Lessor or such purchaser(s), as the case may be, free and clear of all
Liens other than Lessor Liens and the lien of the Lessor Mortgage, in good
condition (as modified by Modifications permitted by this Master Lease),
ordinary wear and tear excepted, and in compliance with Applicable Law.
The Lessee shall, on and within a reasonable time before and up to one year
after the Expiration Date, cooperate reasonably with the Lessor and the
independent purchaser(s) of the Properties in order to facilitate the
purchase by such purchaser(s) of the Properties, which cooperation shall
include the following, all of which the Lessee shall do on or before the
Expiration Date or as soon thereafter as is reasonably practicable:
providing copies of all books and records regarding the maintenance and
ownership of the Properties and all know-how, data and technical
information relating thereto, providing a current copy of the Plans and
Specifications for each Property, granting or assigning all licenses
necessary for the operation and maintenance of each
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Property and cooperating reasonably in seeking and obtaining all necessary
Governmental Action. The obligations of the Lessee under this paragraph
shall survive the expiration or termination of this Master Lease.
ARTICLE XXII
ESTOPPEL CERTIFICATES
XXII.1. ESTOPPEL CERTIFICATES. At any time and from time to time upon not
less than ten (10) Business Days' prior request by the Lessor or the Lessee (the
"REQUESTING PARTY"), the other party (whichever party shall have received such
request, the "CERTIFYING PARTY") shall furnish to the Requesting Party a
certificate signed by an individual having the office of vice president or
higher in the Certifying Party certifying that this Master Lease is in full
force and effect (or that this Master Lease is in full force and effect as
modified and setting forth the modifications); the dates to which the Basic Rent
and Supplemental Rent have been paid; to the best knowledge of the signer of
such certificate, whether or not the Requesting Party is in default under any of
its obligations hereunder (and, if so, the nature of such alleged default); and
such other matters under this Master Lease as the Requesting Party may
reasonably request. Any such certificate furnished pursuant to this ARTICLE
XXII may be relied upon by the Requesting Party, and any existing or prospective
mortgagee, purchaser or lender, and any accountant or auditor, of, from or to
the Requesting Party (or any Affiliate thereof).
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ARTICLE XXIII
ACCEPTANCE OF SURRENDER
XXIII.1. ACCEPTANCE OF SURRENDER. No surrender to the Lessor of this
Master Lease or of all or any of the Properties or of any part of any thereof or
of any interest therein shall be valid or effective unless agreed to and
accepted in writing by the Lessor and, prior to the payment or performance of
all obligations under the Loan Agreement and termination of the Commitments, the
Lenders, and no act by the Lessor or the Lenders or any representative or agent
of the Lessor or the Lenders, other than a written acceptance, shall constitute
an acceptance of any such surrender.
ARTICLE XXIV
NO MERGER OF TITLE
XXIV.1. NO MERGER OF TITLE. There shall be no merger of this Master Lease
or of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, in whole or in part,
(a) this Master Lease or the leasehold estate created hereby or any interest in
this Master Lease or such leasehold estate, (b) the fee or groundleasehold
estate in any Property, except as may expressly be stated in a written
instrument duly executed and delivered by the appropriate Person or (c) a
beneficial interest in the Lessor.
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ARTICLE XXV
INTENT OF THE PARTIES
XXV.1. OWNERSHIP OF THE PROPERTIES. (a) The parties hereto intend that
(i) for financial accounting purposes with respect to the Lessee, the Lessor
will be treated as the owner and the lessor of the Properties and the Lessee
will be treated as the lessee of the Properties and (ii) for all other purposes,
including federal and all state and local income tax purposes, state real estate
and commercial law and bankruptcy purposes, (A) this Lease will be treated as a
financing arrangement, (B) the Lessor and the Lenders will be deemed lenders
making loans to the Lessee in an amount equal to the sum of the Lessor Amount
and the outstanding principal amount of the Loans and (C) the Lessee will be
treated as the owner of the Properties and will be entitled to all tax benefits
ordinarily available to an owner of properties like the Properties for such tax
purposes. Nevertheless, the Lessee acknowledges and agrees that neither the
Lessor nor any of the Lenders has made any representations or warranties to the
Lessee concerning the tax, accounting or legal characteristics of the Operative
Documents and that the Lessee has obtained and relied upon such tax, accounting
and legal advice concerning the Operative Documents as it deems appropriate.
(b) It is the intent of the parties hereto that this Lease grants a
security interest and mortgage, as the case may be, on the Properties to the
Lessor to secure Xxxxxx's performance under and payment of all amounts under
this Lease and the other Operative Documents.
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ARTICLE XXVI
MISCELLANEOUS
XXVI.1. SURVIVAL; SEVERABILITY; ETC. Anything contained in this Master
Lease to the contrary notwithstanding, all claims against and liabilities of the
Lessee or the Lessor arising from events commencing prior to the expiration or
earlier termination of this Master Lease shall survive such expiration or
earlier termination for a period of one year except as to indemnification which
shall continue to survive; provided that any such right shall be exercised
within 54 years from the date hereof. If any term or provision of this Master
Lease or any application thereof shall be declared invalid or unenforceable, the
remainder of this Master Lease and any other application of such term or
provision shall not be affected thereby. If any right or option of the Lessee
provided in this Master Lease, including any right or option described in
ARTICLE XIV, XV, XVIII or XX, would, in the absence of the limitation imposed by
this sentence, be invalid or unenforceable as being in violation of the rule
against perpetuities or any other rule of law relating to the vesting of an
interest in or the suspension of the power of alienation of property, then such
right or option shall be exercisable only during the period which shall end
twenty-one (21) years after the date of death of the last survivor of the
descendants of Xxxxxxxx X. Xxxxxxxxx, the former President of the United States,
Xxxxx Xxxx, the deceased automobile manufacturer, and Xxxx X. Xxxxxxxxxxx, the
founder of the Standard Oil Company, known to be alive on the date of the
execution, acknowledgement and delivery of this Master Xxxxx.
XXVI.2. AMENDMENTS AND MODIFICATIONS. Subject to the requirements,
restrictions and conditions set forth in the Participation Agreement, neither
this Master Lease nor any provision hereof may be amended, waived, discharged or
terminated except by an instrument in writing in recordable form signed by the
Lessor and the Lessee.
XXVI.3. NO WAIVER. No failure by the Lessor or the Lessee
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to insist upon the strict performance of any term hereof or to exercise any
right, power or remedy upon a default hereunder, and no acceptance of full or
partial payment of Rent during the continuance of any such default, shall
constitute a waiver of any such default or of any such term. To the fullest
extent permitted by law, no waiver of any default shall affect or alter this
Master Lease, and this Master Lease shall continue in full force and effect with
respect to any other then existing or subsequent default.
XXVI.4. NOTICES. All notices, demands, requests, consents, approvals and
other communications hereunder shall be in writing and directed to the address
described in, and deemed received in accordance with the provisions of, Section
14.3 of the Participation Agreement.
XXVI.5. SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Master Lease shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
XXVI.6. HEADINGS AND TABLE OF CONTENTS. The headings and table of
contents in this Master Lease are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
XXVI.7. COUNTERPARTS. This Master Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
XXVI.8. GOVERNING LAW. THIS MASTER LEASE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
XXVI.9. LIMITATIONS ON RECOURSE. The parties hereto agree that except as
specifically set forth in this Lease or in any other Operative Document, Lessor
shall have no personal liability
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whatsoever to the Lessee or its respective successors and assigns for any claim
based on or in respect of this Master Lease or any of the other Operative
Documents or arising in any way from the transactions contemplated hereby or
thereby and the recourse shall be solely had against the Lessor's interest in
the Property; PROVIDED, HOWEVER, that Lessor shall be liable in its individual
capacity (a) for its own willful misconduct or gross negligence (or negligence
in the handling of funds), (b) breach of any of its representations, warranties
or covenants under the Operative Documents, or (c) for any Tax based on or
measured by any fees, commission or compensation received by it for acting as
the Lessor as contemplated by the Operative Documents. It is understood and
agreed that, except as provided in the preceding sentence: (i) Lessor shall
have no personal liability under any of the Operative Documents as a result of
acting pursuant to and consistent with any of the Operative Documents; (ii) all
obligations of Lessor to the Lessee are solely nonrecourse obligations except to
the extent that it has received payment from others; and (iii) all such personal
liability of Lessor is expressly waived and released as a condition of, and as
consideration for, the execution and delivery of the Operative Documents by
Lessor.
XXVI.10. ORIGINAL LEASE. The single executed original of this Master
Xxxxx marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on the
signature page thereof and containing the receipt thereof of The Sumitomo Bank,
Limited, San Xxxxxxxxx Xxxxxx, as Agent for the Lenders therefor on or following
the signature page thereof shall be the Original Executed Counterpart of this
Master Lease (the "ORIGINAL EXECUTED COUNTERPART"). To the extent that this
Master Lease constitutes chattel paper, as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction, no security
interest in this Master Lease may be created through the transfer or possession
of any counterpart other than the Original Executed Counterpart.
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IN WITNESS WHEREOF, the parties have caused this Master Xxxxx be duly
executed and delivered as of the date first above written.
SYMANTEC CORPORATION,
as Lessee
By
-------------------------------
Name:
Title:
S-1
SUMITOMO BANK LEASING AND FINANCE,
INC., as Lessor
By
-------------------------------
Name:
Title:
S-2
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of the date hereof.
THE SUMITOMO BANK, LIMITED,
SAN FRANCISCO, as Agent for
the Lenders
By
-------------------------------
Name:
Title:
S-3
TABLE OF CONTENTS
Section Page
------- ----
ARTICLE I
DEFINITIONS
1.1..........................................Definitions; Interpretation 1
ARTICLE II
MASTER LEASE
2.1.....................................Acceptance and Lease of Property 2
2.2.................................................Acceptance Procedure 2
2.3...........................................................Lease Term 2
2.4................................................................Title 2
ARTICLE III
PAYMENT OF RENT
3.1.................................................................Rent 3
3.2......................................................Payment of Rent 3
3.3....................................................Supplemental Rent 3
3.4....................................................Method of Payment 4
ARTICLE IV
QUIET ENJOYMENT; RIGHT TO INSPECT
4.1......................................................Quiet Enjoyment 4
4.2.....................................................Right to Inspect 4
ARTICLE V
NET LEASE, ETC.
5.1............................................................Net Lease 5
5.2..........................................No Termination or Abatement 6
ARTICLE VI
1
TABLE OF CONTENTS
(continued)
Section Page
------- ----
SUBLEASES
6.1...........................................................Subletting 6
ARTICLE VII
LESSEE ACKNOWLEDGMENTS
7.1..........................................Condition of the Properties 7
7.2.........................................................Risk of Loss 7
ARTICLE VIII
POSSESSION AND USE OF THE PROPERTIES, ETC.
8.1......................................................Utility Charges 7
8.2...................................Possession and Use of the Property 8
8.3 Compliance with Requirements of Law, Property Legal Requirements
and Insurance Requirements.............................................. 8
8.4.................................................Assignment by Lessee 8
ARTICLE IX
MAINTENANCE AND REPAIR; RETURN
9.1.......................................Maintenance and Repair; Return 8
ARTICLE X
MODIFICATIONS, ETC.
10.1.......................Modifications, Substitutions and Replacements 9
10.2................................................Notice to the Lessor 11
ARTICLE XI
WARRANT OF TITLE; EASEMENTS
11.1....................................................Warrant of Title 11
11.2..................Grants and Releases of Easements; Lessor's Waivers 11
2
TABLE OF CONTENTS
(continued)
Section Page
------- ----
ARTICLE XII
PERMITTED CONTESTS
12.1.....................Permitted Contests in Respect of Applicable Law 13
ARTICLE XIII
INSURANCE
13.1................Public Liability and Workers' Compensation Insurance 13
13.2..........................................Hazard and Other Insurance 14
13.3..................................................Insurance Coverage 14
ARTICLE XIV
CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS
14.1...........................................Casualty and Condemnation 16
14.2...............................................Environmental Matters 18
14.3.....................................Notice of Environmental Matters 18
ARTICLE XV
TERMINATION OF LEASE
15.1.............................Partial Termination upon Certain Events 19
15.2..............................................Termination Procedures 19
ARTICLE XVI
EVENTS OF DEFAULT
16.1.............................................Lease Events of Default 20
16.2............................................................Remedies 23
16.3............................................Waiver of Certain Rights 30
17.1..............The Lessor's Right to Cure the Lessee's Lease Defaults 30
ARTICLE XVIII
3
TABLE OF CONTENTS
(continued)
Section Page
------- ----
PURCHASE PROVISIONS
18.1...........................Purchase of All or Some of the Properties 31
18.2.................................Expiration Date Purchase Obligation 31
ARTICLE XIX
RENEWAL TERMS
19.1.............................................................Renewal 32
ARTICLE XX
REMARKETING OPTION
20.1..................................................Option to Remarket 32
20.2........................................Certain Obligations Continue 36
ARTICLE XXI
PROCEDURES RELATING TO PURCHASE OR REMARKETING
21.1. Provisions Relating to the Exercise of Purchase Option or
Obligation and Conveyance Upon Remarketing and Conveyance Upon Certain
Other Events........................................................... 37
ARTICLE XXII
ESTOPPEL CERTIFICATES
22.1...............................................Estoppel Certificates 38
ARTICLE XXIII
ACCEPTANCE OF SURRENDER
23.1.............................................Acceptance of Surrender 39
ARTICLE XXIV
NO MERGER OF TITLE
4
TABLE OF CONTENTS
(continued)
Section Page
------- ----
24.1..................................................No Merger of Title 39
ARTICLE XXV
INTENT OF THE PARTIES
25.1.........................................Ownership of the Properties 39
ARTICLE XXVI
MISCELLANEOUS
26.1........................................Survival; Severability; Etc. 40
26.2........................................Amendments and Modifications 41
26.3...........................................................No Waiver 41
26.4.............................................................Notices 41
26.5..............................................Successors and Assigns 41
26.6......................................Headings and Table of Contents 41
26.7........................................................Counterparts 41
26.8.......................................................GOVERNING LAW 41
26.9.............................................Limitations on Recourse 41
26.10.....................................................Original Lease 42
EXHIBIT A Form of Lease Supplement
5
