EXHIBIT 10.22
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Recording requested by, and when
recorded, please return to:
McGuireWoods LLP
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ATTN: W. Xxxx Xxxxx, Esq.
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(Space Above This Line Reserved for Recorder's Use Only)
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MASTER LEASE
dated as of February 13, 2001
between
ABN AMRO LEASING, INC.,
as the Lessor
and
BEA SYSTEMS, INC.,
as the Lessee
San Jose, California Facility
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This Lease is superior to a deed of trust in favor of ABN AMRO Bank, N.V.,
as Agent (the "Agent") under the Participation Agreement dated as of
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February 13, 2001 among the Lessee, the Lessor, the Participants and the
Agent for the benefit of the Participants. This Lease has been executed in
counterparts. To the extent, if any, that this Lease constitutes chattel
paper (as such term is defined in the Uniform Commercial Code as in effect
in any applicable jurisdiction), no lien on this Lease may be created
through the transfer or possession of any counterpart other than the
original counterpart containing the receipt therefor executed by the Agent
on the signature page hereof.
TABLE OF CONTENTS
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Page
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ARTICLE I.................................................................. 1
1.1 Definitions; Interpretation........................................ 1
ARTICLE II................................................................. 1
2.1 Acceptance and Lease of Property................................... 1
2.2 Acceptance Procedure............................................... 2
2.3 Lease Term......................................................... 2
2.4 Title.............................................................. 2
2.5 Appointment........................................................ 2
2.6 Acceptance; Construction........................................... 2
ARTICLE III................................................................ 2
3.1 Rent............................................................... 2
3.2 Payment of Basic Rent.............................................. 3
3.3 Supplemental Rent.................................................. 3
3.4 Method of Payment.................................................. 3
ARTICLE IV................................................................. 3
4.1 Utility Charges.................................................... 3
ARTICLE V.................................................................. 4
5.1 Quiet Enjoyment.................................................... 4
ARTICLE VI................................................................. 4
6.1 Net Lease.......................................................... 4
6.2 No Termination or Abatement........................................ 5
ARTICLE VII................................................................ 5
7.1 Nature of Transaction; Intent of the Parties....................... 5
7.2 UCC Information.................................................... 8
ARTICLE VIII............................................................... 9
8.1 Condition of the Property.......................................... 9
8.2 Possession and Use of the Property................................. 9
ARTICLE IX................................................................. 10
9.1 Compliance with Requirements of Law and Insurance Requirements..... 10
ARTICLE X.................................................................. 10
10.1 Maintenance and Repair; Return..................................... 10
ARTICLE XI................................................................. 11
11.1 Improvements....................................................... 11
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ARTICLE XII................................................................ 11
12.1 Warranty of Title.................................................. 11
12.2 Grants and Releases of Easements................................... 11
ARTICLE XIII............................................................... 12
13.1 Permitted Contests Other Than in Respect of Indemnities............ 12
ARTICLE XIV................................................................ 13
14.1 General Liability and Workers' Compensation Insurance.............. 13
14.2 Reserved........................................................... 13
14.3 Coverage........................................................... 13
ARTICLE XV................................................................. 14
15.1 Casualty and Condemnation.......................................... 14
15.2 Environmental Matters.............................................. 16
15.3 Notice of Environmental Matters.................................... 16
ARTICLE XVI................................................................ 16
16.1 Termination upon Certain Events.................................... 16
16.2 Procedures......................................................... 17
16.3 Purchase of Property............................................... 18
ARTICLE XVII............................................................... 18
17.1 Lease Events of Default............................................ 18
17.2 Remedies........................................................... 21
17.3 Waiver of Certain Rights........................................... 25
17.4 Further Remedies................................................... 25
17.5 Remedies Cumulative................................................ 29
17.6 The Lessee's Right to Cure......................................... 30
ARTICLE XVIII.............................................................. 30
18.1 The Lessor's Right to Cure the Lessee's Lease Defaults............. 30
ARTICLE XIX................................................................ 30
19.1 Provisions Relating to the Lessee's Termination of this Lease
or Exercise of Purchase Option or Obligation and Conveyance
Upon Remarketing and Conveyance Upon Certain Other Events.......... 30
ARTICLE XX................................................................. 31
20.1 Purchase Option.................................................... 31
20.2 Expiration Date Purchase Obligation................................ 32
20.3 Acceleration of Purchase Obligation................................ 32
ARTICLE XXI................................................................ 33
21.1 Renewal............................................................ 33
ARTICLE XXII............................................................... 33
22.1 Option to Remarket................................................. 33
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22.2 Certain Obligations Continue....................................... 36
22.3 Support Obligations................................................ 37
ARTICLE XXIII.............................................................. 37
23.1 Holding Over....................................................... 37
ARTICLE XXIV............................................................... 38
24.1 Risk of Loss....................................................... 38
ARTICLE XXV................................................................ 39
25.1 Subletting and Assignment.......................................... 39
ARTICLE XXVI............................................................... 39
26.1 Estoppel Certificates.............................................. 39
ARTICLE XXVII.............................................................. 39
27.1 Right to Inspect................................................... 39
27.2 No Waiver.......................................................... 40
ARTICLE XXVIII............................................................. 40
28.1 Acceptance of Surrender............................................ 40
ARTICLE XXIX............................................................... 40
29.1 No Merger of Title................................................. 40
ARTICLE XXX................................................................ 40
30.1 Notices............................................................ 40
ARTICLE XXXI............................................................... 42
31.1 Miscellaneous...................................................... 42
31.2 Amendments and Modifications....................................... 42
31.3 Successors and Assigns............................................. 42
31.4 Headings and Table of Contents..................................... 42
31.5 Counterparts....................................................... 42
31.6 GOVERNING LAW...................................................... 42
31.7 Limitations on Recourse............................................ 42
31.8 Original Lease..................................................... 43
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APPENDICES
APPENDIX I Definitions and Interpretation
EXHIBITS
EXHIBIT A Form of Lease Supplement
EXHIBIT B Legal Description of Land
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MASTER LEASE
THIS MASTER LEASE (as amended, supplemented or otherwise modified from time
to time, this "Lease"), dated as of February 13, 2001 is by and between ABN AMRO
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LEASING, INC., an Illinois corporation, having its principal office at 000 X.
XxXxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000, as the lessor (together with its
permitted successors and assigns, the "Lessor") and BEA SYSTEMS, INC., a
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Delaware corporation, having its principal office at 0000 Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000, as the lessee (the "Lessee").
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W I T N E S S E T H:
- - - - - - - - - -
A. WHEREAS, the Lessor will purchase the Land Interest on the Land
Interest Acquisition Date, and the Land Interest will be leased to the Lessee
subject to the terms of this Lease; and
B. WHEREAS, the Lessor desires to lease to the Lessee and the Lessee
desires to lease from the Lessor, the Property pursuant to this Lease.
C. WHEREAS, the leasing of the Land Interest is an initial step in what
is intended to be a series of transactions between the Lessor and the Lessee
and/or between the Lessee and a third party. After the Lessor acquires the Land
Interest and leases it to Lessee, the Land Interest will be subdivided into
three separate parcels, the Lessor (or another third party lessor) will
construct an office building on each such parcel and, upon completion of
construction, each element of the improved Property will be leased to the Lessee
by the Lessor or another third party lessor pursuant to other documentation
satisfactory to such parties.
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.
1.1 Definitions; Interpretation. Capitalized terms used but not
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otherwise defined in this Lease have the respective meanings specified in
Appendix 1 to this Lease; and the rules of interpretation set forth in Appendix
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1 to this Lease shall apply to this Lease.
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ARTICLE II.
2.1 Acceptance and Lease of Property. Effective as of the Closing Date,
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the Lessor, subject to the satisfaction or waiver of the conditions set forth in
Section 6 of the Participation Agreement, hereby agrees to accept delivery of
the Land Interest to be delivered on the Land Interest Acquisition Date pursuant
to the terms of the Participation Agreement, and to lease to the Lessee
hereunder for the Term (as defined in Section 2.3), the Lessor's interest in
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such Land Interest and the Lessee hereby agrees, expressly for the direct
benefit of the Lessor, to lease commencing on the Lease Commencement Date from
the Lessor for the Term, the Lessor's interest in such Land Interest to be
delivered on such Land Interest Acquisition Date.
2.2 Acceptance Procedure. The Lessor hereby authorizes one or more
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employees of the Lessee, to be designated by the Lessee, as the authorized
representative or representatives of the Lessor to accept delivery on behalf of
the Lessor of the Property identified on the Acquisition Request. The Lessee
hereby agrees that such acceptance of delivery by such authorized representative
or representatives and the execution and delivery by the Lessee on the Land
Interest Acquisition Date of a Lease Supplement in the form of Exhibit A hereto
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(appropriately completed) shall, without further act, constitute the irrevocable
acceptance by the Lessee of the Land Interest which is the subject thereof for
all purposes of this Lease and the other Operative Documents on the terms set
forth therein and herein.
2.3 Lease Term. The term of this Lease (the "Term") with respect to the
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Land Interest shall consist of (i) an agency term (the "Agency Term") beginning
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on the Land Interest Acquisition Date and ending on the earlier of (A) the
Completion of Construction, or (B) the second anniversary of the Closing Date,
and (ii) a basic term (the "Basic Term") commencing on the day following the
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last day of the Agency Term, and ending on the fifth anniversary of the Closing
Date, unless the Term is renewed or earlier terminated in accordance with the
provisions of this Lease.
2.4 Title. The Property is leased to the Lessee without any
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representation or warranty of title, condition of the Property or permitted
uses, express or implied, by the Lessor and subject to the rights of parties in
possession, the existing state of title (including, without limitation, the
Permitted Exceptions) and all applicable Requirements of Law. The Lessee shall
in no event have any recourse against the Lessor for any defect in or exception
to title to the Property, other than for any such defect or exception
constituting a Lessor Lien.
2.5 Appointment. Pursuant to and subject to the terms and conditions set
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forth herein, the Lessor hereby irrevocably designates and appoints the Lessee
as its exclusive agent for the identification and acquisition of the Land
Interest and to oversee the design and construction of those Improvements the
Existing Owner is obligated to design and construct in accordance with the
Property Purchase Agreement. The Lessor hereby authorizes the construction of
the Improvements by the Existing Owner pursuant to the Property Purchase
Agreement.
2.6 Acceptance; Construction. The Lessee hereby unconditionally agrees
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to act as agent of Lessor in accordance with Section 2.5 above. The Lessee will
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use commercially reasonable efforts to cause the Existing Owner to design and
construct the Improvements to be designed and constructed on the Property in
accordance with the Property Purchase Agreement and equipped in compliance with
all Requirements of Law.
ARTICLE III.
3.1 Rent. (a) During the Term, the Lessee shall pay Basic Rent on each
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Payment Date, on the date required under Section 22.1(i) in connection with the
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Lessee's exercise of the Remarketing Option and on any date on which this Lease
shall terminate. Prior to the Basic Term Commencement Date the Advances shall
accrue interest and yield which shall be capitalized and paid as Advances
pursuant to the Participation Agreement. From and after the Basic Term
Commencement Date, Basic Rent shall be payable in cash.
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(b) Neither the Lessee's inability or failure to take possession
of all or any portion of the Property when delivered by the Lessor, nor the
Lessor's inability or failure to deliver all or any portion of the Property to
the Lessee on or before the Lease Commencement Date, whether or not 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 the Property.
3.2 Payment of Basic Rent. Basic Rent shall be paid absolutely net to
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the Lessor, so that this Lease shall yield to the Lessor the full amount
thereof, without setoff, deduction or reduction, whether or not the Lessee's
quiet possession of the Property is disturbed.
3.3 Supplemental Rent. The Lessee shall pay to the Lessor or the Person
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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 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 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.
3.4 Method of Payment. Each payment of Rent shall be made by the Lessee
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to the Lessor by 12:00 noon, Chicago time at the place of payment designated by
Agent 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 or as
otherwise required by the definition of the term "Interest Period" set forth in
Appendix 1 hereto. Payments initiated after 12:00 noon, Chicago time shall be
deemed received on the next succeeding Business Day for purposes of the second
sentence of Section 3.3 hereof, but shall be deemed received on the same day for
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purposes of Section 17.1 hereof.
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ARTICLE IV.
4.1 Utility Charges. Subject to the Lessee's rights under the terms of
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Article XIII relating to permitted contests, 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 Property
during the 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
3
paid over to the Lessee. All charges for utilities imposed with respect to the
Property for a billing period during which this Lease expires or terminates
shall be adjusted and prorated on a daily basis between the Lessor and the
Lessee, and each party shall pay or reimburse the other for each party's pro
rata share thereof, except that to the extent the Lessee retains possession of
the Property after termination or expiration of this Lease, no such adjustment
and proration shall be made. Prior to the Lease Commencement Date, all amounts
payable under this Section 4.1 shall be capitalized and paid as Advances
pursuant to the Participation Agreement. After the Lease Commencement Date, such
amounts shall be payable in cash.
ARTICLE V.
5.1 Quiet Enjoyment. Subject to the rights of the Lessor contained in
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Section 17.2 and the other terms of this Lease and so long as no Lease Event of
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Default shall have occurred and be continuing, the Lessee shall peaceably and
quietly have, hold and enjoy the Property for the Term, free of any claim or
other action by the Lessor or anyone rightfully claiming by, through or under
the Lessor (other than the Lessee) with respect to any matters arising from and
after the Lease Commencement Date.
ARTICLE VI.
6.1 Net Lease. This Lease shall constitute a net lease. It is the
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further express intent of the Lessor and the Lessee that the obligations of the
Lessor and the Lessee hereunder shall be separate and independent covenants and
agreements and that the Basic Rent and Supplemental Rent, and all other charges
and sums payable by the Lessee hereunder, shall commence at the times provided
herein and shall continue to be payable in all events unless the obligations to
pay the same shall be terminated pursuant to an express provision in this Lease.
Any present or future law to the contrary notwithstanding, this Lease shall not
terminate, nor shall the Lessee be entitled to any abatement, suspension,
deferment, reduction, setoff, counterclaim, or defense (other than the defense
of payment) 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
the Property or any part thereof, or the failure of the Property to comply with
all Requirements of Law and Insurance Requirements, including any inability to
occupy or use the 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 the Property or any part
thereof; (iii) any restriction, prevention or curtailment of or interference
with any use of the Property or any part thereof including eviction; (iv) any
defect in title to or rights to the Property or any Lien on such title or rights
or on the 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, the Agent or any Participant; (vi) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceedings relating to the Lessee, the Lessor, the
Agent, any Participant or any other Person, or any action taken with respect to
this Lease by any trustee or receiver of the Lessee, the Lessor, the Agent, 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 vendor, manufacturer, contractor of or for
the Property, the Agent or any Participant; (viii) any
4
failure on the part of the Lessor to perform or comply with any of the terms of
this Lease, any other Operative Document or any other agreement; (ix) any
invalidity or unenforceability or illegality or disaffirmance of this 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 the 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 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 Document 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 Lease.
6.2 No Termination or Abatement. The Lessee shall remain obligated
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under this Lease in accordance with its terms and shall not take any action to
terminate (except as provided herein), rescind or avoid this Lease,
notwithstanding any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution, or other proceeding affecting the Lessor, the Agent,
any Participant or the Lessee or any action with respect to this Lease or any
Operative Document which may be taken by any trustee, receiver or liquidator of
the Lessor, the Agent, any Participant or the Lessee or by any court with
respect to the Lessor, the Agent or any Participant. The Lessee hereby waives,
to the extent permitted by Applicable Law, all right (i) to terminate or
surrender this Lease (except as provided herein) or (ii) to avail itself of any
abatement, suspension, deferment, reduction, setoff, counterclaim or defense
(other than the defense of payment) with respect to any Rent. The Lessee shall
remain obligated under this Lease in accordance with its terms and the Lessee
hereby waives, to the extent permitted by Applicable Law, any and all rights now
or hereafter conferred by statute or otherwise to modify or to avoid strict
compliance with its obligations under this Lease. Notwithstanding any such
statute or otherwise, the Lessee shall be bound by all of the terms and
conditions contained in this Lease.
ARTICLE VII.
7.1 Nature of Transaction; Intent of the Parties. (a) It is the intent
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of the parties hereto that: (i) this Lease constitutes an "operating lease"
pursuant to Statement of Financial Accounting Standards No. 13, as amended and
interpreted, for purposes of the Lessee's financial reporting, and (ii) for
purposes of federal, state, local and foreign Taxes, including without
limitation income or franchise taxes (and any other tax imposed on or measured
by income, including any withholding taxes), and documentary, intangibles, and
transfer taxes, the transaction contemplated hereby is a financing arrangement
and preserves ownership in the Property in the Lessee. Each of the Parties
agrees that it will not, nor will any Person controlled by it, or under common
control with it, directly or indirectly, at any time take any action or fail to
take any action with respect to the filing of any Tax return, report or other
statement, including any income or franchise tax return or amended income or
franchise tax return, inconsistent with the intention of the parties expressed
in this Section 5.1(a) unless, in the case of Lessor or any Participant,
required to do so by an appropriate taxing authority or after a clearly
applicable change in law or as a protective response to a proposed adjustment by
a Governmental Authority,
5
provided, however, that if an appropriate taxing authority shall require Lessor
or any Participant to claim any tax attributes or benefits, such Person shall
promptly notify Lessee thereof and shall permit Lessee to contest such
requirement in a manner consistent with the contest provisions of Section
13.5(f) of the Participation Agreement. Nevertheless, the Lessee acknowledges
and agrees that neither the Agent, the Lessor nor any Participant 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) Anything to the contrary in the Operative Documents
notwithstanding, the Lessor and the Lessee intend and agree that with respect to
the nature of the transactions evidenced by this Lease in the context of
federal, state, local and foreign Taxes and in the context of the exercise of
remedies under the Operative Documents, including, without limitation, in the
case of any insolvency or receivership proceedings or a petition under the
United States bankruptcy laws or any other applicable insolvency laws or statute
of the United States of America or any State or Commonwealth thereof or any
foreign country affecting the Lessee, the Lessor, or any Participant or any
enforcement or collection actions arising out of or relating to bankruptcy or
insolvency laws, (i) the transactions evidenced by this Lease shall be deemed to
be loans made by the Lessor and the Participants as unrelated third party
lenders to the Lessee secured by the Property, (ii) the obligations of the
Lessee under this Lease to pay Basic Rent, Supplemental Rent, Asset Termination
Value, Purchase Option Price, Partial Purchase Option Price or the Residual
Value Guarantee Amount in connection with a purchase of the Property pursuant to
this Lease shall be treated as payments of interest on and principal of,
respectively, loans from the Lessor and the Participants to the Lessee, and
(iii) this Lease grants a security interest and mortgage or deed of trust or
lien, as the case may be, in the Property to the Lessor and assigned by the
Lessor to the Agent for the benefit of the Participants to secure the Lessee's
performance under and payment of all amounts under this Lease and the other
Operative Documents.
(c) Specifically, without limiting the generality of subsections
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(a) and (b) of this Section 7.1 and Section 7.2, the parties hereto intend and
----------- ----------- -----------
agree that, for purposes of filing federal, state and local returns, reports and
other statements relating to income or franchise taxes, or any other taxes
imposed upon or measured by income, (i) the Lessee shall be entitled to take any
deduction, credit, allowance or other reporting position consistent with its
status as owner of the Property; and (ii) neither the Lessor nor any Participant
shall take an initial position on its federal, state and local returns, reports
and other statements relating to income or franchise taxes that is inconsistent
with the Lessee's status as owner of the Property.
(d) [Reserved]
(e) In the event that, after the date hereof, the UCC as enacted
and in effect in any applicable jurisdiction shall be revised or amended or
amendments thereto shall become effective, the Lessee, the Lessor, the Agent and
the Participants shall negotiate in good faith to enter into such amendments to
the Operative Documents as may be reasonably necessary or desirable to reflect
or otherwise address such revisions or amendments.
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(f) Specifically, without limiting the generality of subsection
(b) of Section 7.1, in order to secure the Lessee's obligation to pay Basic
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Rent, Supplemental Rent, Asset Termination Value, the Residual Value Guarantee
Amount, the Purchase Option Price, the Partial Purchase Option Price and all
other obligations owing by the Lessee under the Operative Documents (the
"Obligations"), the Lessee hereby grants, conveys, sells, transfers, assigns and
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sets over unto Chicago Title Insurance Company, as trustee (as "Trustee") for
the benefit of Lessor, WITH POWER OF SALE and right of entry and possession, all
of the Lessee's right, title and interest in and to the following (collectively,
the "Collateral"):
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(i) all right, title and interest of the Lessee in and to
the Property or any part thereof and the reversions, remainders,
rents, issues and profits thereof;
(ii) all right, title and interest of the Lessee in and to
all substitutes and replacements of, and all additions and
improvements to, any Improvements and the Fixtures, subsequently
acquired by the Lessee or constructed, assembled or placed on the
Land Interest, immediately upon such acquisition, release,
construction, assembling or placement, including, without
limitation, any and all building materials whether stored at the
Property or offsite, and, in each such case, without any further
mortgage, conveyance, assignment or other act by the Lessee;
(iii) all right, title and interest of the Lessee in, to and
under all books and records relating to or used in connection with
the operation of the Property or any Fixtures or any part thereof;
(iv) all right, title and interest of the Lessee in and to
all insurance policies (including title insurance policies) required
to be maintained by the Lessee pursuant to this Lease, including the
right to collect and receive such proceeds; and all awards and other
compensation, including the interest payable thereon and the right
to collect and receive the same, made to the owner of the Property
for the taking by eminent domain, condemnation or otherwise, of all
or any part of the Property or any easement or other right therein;
(v) all right, title and interest of the Lessee in and to
(i) all consents, licenses, building permits, certificates of
occupancy and other governmental approvals relating to construction,
completion, occupancy, use or operation of the Property or any part
thereof, provided that any such consent, license, permit,
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certificate or approval that by its terms or by operation of law
would become void, voidable, terminable or revocable or would result
in a breach or default thereunder or under any applicable law if
subjected to the lien granted pursuant to this clause (v) is
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expressly excepted and excluded from this clause (v) to the extent
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necessary to avoid such result, and (ii) all plans and
specifications relating to the Property, in each case to the extent
assignable;
(vi) all Rent and all other rents, payments, purchase
prices, receipts, revenues, issues and profits payable under this
Lease or pursuant to any other lease with respect to the Property;
7
(vii) all proceeds, both cash and noncash, of the foregoing
and any items acquired in substitution of, or replacement for, any
of the foregoing; and
(viii) all right, title and interest of the Lessee in and to
all of the Operative Documents, including, without limitation, the
Lease Supplement, regardless of whether the interest of the Lessee
therein is that of lessee, sublessee, sublessor or borrower.
7.2 UCC Information.
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(a) Specifically, without limiting the generality of subsection
(b) of Section 7.1, the Lessor and the Lessee further intend and agree that, for
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the purpose of securing the Lessee's obligations for the repayment of the above-
described loans from the Lessor and the Participants to the Lessee, (i) this
Lease shall also be deemed to be a security agreement and financing statement
within the meaning of Article 9 of the Uniform Commercial Code, a fixture filing
and a real property mortgage or deed of trust of the Property; (ii) the
conveyance provided for in Article II shall be deemed to be a grant by the
Lessee to the Lessor, assigned by the Lessor to the Agent for the benefit of the
Participants, of a mortgage lien and security interest in all of the Lessee's
right, title and interest in and to the Property and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, investments,
securities or other property, whether in the form of cash, investments,
securities or other property (it being understood that the Lessee hereby
mortgages and grants a security interest in the Property to Lessor to secure
such loans); (iii) the possession by the Lessor or any of its agents of any
notes and such other items of the Collateral as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the Uniform Commercial Code; and (iv) notifications to Persons
holding such property, and acknowledgments, receipts or confirmations from
financial intermediaries, bankers or agents (as applicable) of the Lessee shall
be deemed to have been given for the purpose of perfecting such security
interest under Applicable Law. The Lessor and the Lessee shall, to the extent
consistent with this Lease, take such actions and execute, deliver, file and
record such other documents, financing statements, mortgages and deeds of trust
as may be necessary to ensure that, if this Lease were deemed to create a
security interest in the Property in accordance with this Section, such security
interest would be deemed to be a perfected security interest of first priority
under Applicable Law and will be maintained as such throughout the Term.
(b) For the purposes of the security agreement and financing
statement provided herein the following information applies:
(i) Name and Address of BEA Systems, Inc.
Debtor: 0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(ii) Name and Address ABN AMRO Leasing, Inc.
of Secured Party: 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
8
(iii) Description of the Those items described as
types (or items) Improvements, Fixtures and
by property covered Equipment and other personal
by this Financing property in paragraph 7.1(f)
Statement: hereof
(iv) Description of real See Exhibit D hereto
---------
estate to which collateral
is attached or upon
which it is located:
(v) State of Incorporation Delaware
of Debtor:
ARTICLE VIII.
8.1 Condition of the Property. THE LESSEE ACKNOWLEDGES AND AGREES THAT
-------------------------
ALTHOUGH THE LESSOR WILL HOLD FEE TITLE TO THE PROPERTY, THE LESSEE IS SOLELY
RESPONSIBLE FOR THE PROPERTY. THE LESSEE FURTHER ACKNOWLEDGES AND AGREES THAT IT
IS LEASING THE PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) BY THE LESSOR, THE AGENT OR ANY PARTICIPANT AND IN EACH
CASE SUBJECT TO (A) THE EXISTING STATE OF TITLE, (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 WHICH
MAY EXIST ON THE DATE HEREOF. NEITHER THE LESSOR, THE AGENT NOR ANY PARTICIPANT
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 (INCLUDING BUT NOT LIMITED TO ANY IMPLIED LIABILITY
RELATING TO A COVENANT OF QUIET ENJOYMENT, WHICH THE LESSEE HEREBY EXPRESSLY
WAIVES), VALUE, HABITABILITY, USE, CONDITION, DESIGN, OPERATION, OR FITNESS FOR
USE OF THE PROPERTY (OR ANY PART THEREOF, INCLUDING ANY IMPROVEMENTS EXISTING
THEREON), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS
OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PART THEREOF, INCLUDING ANY
IMPROVEMENTS EXISTING THEREON) AND NEITHER THE LESSOR, THE AGENT NOR ANY
PARTICIPANT SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR
THE FAILURE OF THE PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY REQUIREMENT
OF LAW.
8.2 Possession and Use of the Property. Subject to the next sentence
----------------------------------
hereof, the Property shall be used in a manner consistent with properties of a
similar nature in the businesses in which the Lessee is engaged or as permitted
in any sublease or assignment allowed by Section 25.1 hereof and in compliance
------------
in all respects with any covenants, conditions and restrictions of
9
record and any ordinance or law affecting the use and occupancy of the Property;
and provided that such other uses do not increase the liability, directly or
--------
indirectly, of the Lessor or adversely affect the value, utility or remaining
useful life of the Property. The Lessee shall not without written consent of
Lessor construct any Improvements on the Property. Notwithstanding the preceding
sentence, the Lessor hereby consents to the construction by the Existing Owner
of all Improvements which the Existing Owner is required to undertake and
complete in accordance with the Property Purchase Agreement. The Lessor hereby
authorizes the Lessee to, and the Lessee shall, exercise all rights and remedies
of the buyer under the Property Purchase Agreement to enforce the obligations of
the Existing Owner thereunder; provided, that such authority shall terminate
upon the occurrence and during the continuance of an Event of Default. It is
intended that the construction of Improvements (in addition to those the
Existing Owner must complete under the Property Purchase Agreement) will be
permitted under the terms of one or more subsequent leases either with the
Lessor or a third party lessor and not under these Operative Documents. The
Property shall not be abandoned by the Lessee or any permitted assignee or
sublessee. The Lessee shall pay, or cause to be paid, all charges and costs
required in connection with the use of the Property as contemplated by this
Lease. The Lessee shall not commit or permit any waste of the property or any
part thereof.
ARTICLE IX.
9.1 Compliance with Requirements of Law and Insurance Requirements.
--------------------------------------------------------------
Subject to the terms of Article XIII relating to permitted contests, the Lessee,
------------
at its sole cost and expense, shall (a) comply with all Requirements of Law and
all Insurance Requirements relating to the Property, including the construction,
use, operation, maintenance, repair and restoration thereof and the remarketing
thereof pursuant to Article XXII, whether or not compliance therewith shall
------------
interfere with the use and enjoyment of the Property, and (b) procure, maintain
and comply with all licenses, permits, orders, approvals, consents and other
authorizations required for the use, maintenance-repair and operation of the
Property.
ARTICLE X.
10.1 Maintenance and Repair; Return. (a) The Lessee, at its sole cost and
------------------------------
expense, shall maintain the Property in good condition and repair and make all
necessary repairs thereto, of every kind and nature whatsoever, in each case in
compliance with all applicable Requirements of Law and in compliance with all
Insurance Requirements and on a basis consistent with the operation and
maintenance of commercial properties comparable in type and location to the
Property and in compliance with standard industry practice.
(b) The Lessor shall under no circumstances be required to build any
improvements on the Property, make any repairs, replacements, alterations or
renewals of any nature or description to the Property, make any expenditure
whatsoever in connection with this Lease or maintain the Property in any way.
The Lessor shall not be required to maintain, repair or rebuild all or any part
of the Property, and the Lessee waives any right to (i) require the Lessor to
maintain, repair, or rebuild all or any part of the Property, or (ii) make
repairs at the expense of the Lessor pursuant to any Requirement of Law,
Insurance Requirement, contract, agreement, or covenant, condition or
restriction in effect at any time during the Term.
10
(c) The Lessee shall, upon the expiration or earlier termination of
this Lease (unless the Property is conveyed to the Lessee as provided herein),
vacate and surrender the Property to the Lessor in its then-current, "AS IS"
condition, subject to the Lessee's obligations under Sections 9.1, 10.1(a),
------------ -------
11.1, 12.1, 15.1(e), 15.2, 22.1 and 23.1.
---- ---- ------- ---- ---- ----
(d) The Lessee warrants that it shall cause any Improvements to be
constructed on the Property to be designed and constructed in a workmanlike
manner and all Requirements of Law and in accordance with all Insurance
Requirements, so that, such Improvements will be fit for their intended purpose.
ARTICLE XI.
11.1 Improvements. The Lessee shall not at any time make any improvements
------------
to the Property or any part thereof except as permitted in Section 2.5, Section
----------- -------
2.6 and Section 8.2.
--- -----------
ARTICLE XII.
12.1 Warranty of Title. (a) The Lessee agrees that except as otherwise
-----------------
provided herein and subject to the terms of Article XIII 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, defect,
attachment, levy, title retention agreement or claim upon the Property (or the
Lessor's interest therein) or any Lien, attachment, levy or claim with respect
to the Rent or with respect to any amounts held by the Agent pursuant to the
Participation Agreement or the other Operative Documents, other than Permitted
Exceptions and Lessor Liens.
(b) Nothing contained in this 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 the
Property or any part thereof. NOTICE IS HEREBY GIVEN THAT NEITHER THE LESSOR,
ANY PARTICIPANT NOR THE AGENT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE OR TO ANYONE HOLDING THE
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 IN AND TO THE PROPERTY.
12.2 Grants and Releases of Easements. Provided that no Lease Event of
--------------------------------
Default shall have occurred and be continuing and subject to the provisions of
Articles VIII, IX, X and XI, 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 making of dedications and the granting
of easements, licenses, rights-of-way and other rights and privileges in the
nature of easements reasonably necessary or desirable for the construction of
Improvements planned to be placed upon the Property pursuant to the Property
Purchase Agreement as in effect on the date hereof or as hereafter amended with
Lessor's consent, use, repair, operation or maintenance of the Property as
herein provided; (b) the release of easements, licenses, rights-of-way and other
rights and privileges in the nature of easements which are for
11
the benefit of the Property; (c) the execution of petitions to have the Property
annexed to any municipal corporation or utility district; and (d) the execution
of amendments to any covenants, restrictions, easements, licenses, rights-of-
way, and other rights and privileges in the nature of easements affecting the
Property; provided, however, in each case the Lessee shall have delivered to the
-------- -------
Lessor a Responsible Officer's Certificate stating that (i) such grant or
release does not materially impair the value, utility and remaining useful life
of the Property, (ii) such grant or release is desirable or reasonably necessary
in connection with the construction of such Improvements, use, operation
maintenance, alteration or improvement of the Property, (iii) the Lessee shall
remain obligated under this Lease and under any instrument executed by the
Lessee consenting to the assignment of the Lessor's interest in this Lease as
security for indebtedness, in each such case in accordance with their terms, as
though such grant or release or transfer, had not been effected, and (iv) the
Lessee shall pay and perform any obligations of the Lessor under such grant or
release, and (v) such easements, rights-of-way and other rights shall be prior
and superior to the Lien of the Mortgage. 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 or release to any Person permitted
under this Section 12.2.
------------
ARTICLE XIII.
13.1 Permitted Contests Other Than in Respect of Indemnities. Except to
-------------------------------------------------------
the extent otherwise provided for in Section 13 of the Participation Agreement,
the Lessee, on its own or on the Lessor's behalf but at the Lessee's sole cost
and expense, may contest, by appropriate administrative or judicial proceedings
conducted in good faith and with due diligence, the amount, validity or
application, in whole or in part, of any Requirement of Law, or utility charges
payable pursuant to Section 4.1 or any Lien, attachment, levy, encumbrance or
-----------
encroachment, and the Lessor agrees not to pay, settle or otherwise compromise
any such item, provided that (a) the commencement and continuation of such
--------
proceedings shall suspend the collection thereof from, and suspend the
enforcement thereof against, the Property, the Lessor, the Agent and the
Participants or the Lessee shall have bonded or otherwise secured such amount in
a manner satisfactory to the Lessor and the Agent; (b) there shall be no risk of
the imposition of a Lien as a result of such contest (other than Permitted
Exceptions and, in the case of a contest of a Lien, such Lien being contested)
on the Property and no part of the Property nor any Rent would be in any danger
of being sold, forfeited, lost or deferred as a result of such contest; (c) at
no time during the permitted contest shall there be a risk of the imposition of
criminal liability or material civil liability on the Lessor, the Agent or any
Participant for failure to comply therewith (unless, in the case of civil
liability, the Lessee shall have bonded or otherwise secured such amount in a
manner satisfactory to the Lessor and the Agent); and (d) in the event that, at
any time, there shall be a material risk of extending the application of such
item beyond the end of the Term, then the Lessee shall deliver to the Lessor a
Responsible Officer's Certificate certifying as to the matters set forth in
clauses (a), (b) and (c) of this Section 13.1. The Lessor, at the Lessee's sole
----------- --- --- ------------
cost and expense, shall cooperate in good faith with the Lessee with respect to
any permitted contests conducted by the Lessee pursuant to this Section 13.1 and
------------
shall, at the Lessee's sole cost and expense, execute and deliver to the Lessee
such authorizations and other documents as may reasonably be required in
connection with any such contest and, if reasonably requested by the Lessee,
shall join as a party therein at the Lessee's sole cost and expense.
12
ARTICLE XIV.
14.1 General Liability and Workers' Compensation Insurance. The Lessee
-----------------------------------------------------
shall procure and carry commercial general liability insurance, including
contractual liability, for claims for injuries or death sustained by persons or
damage to property while on the Property and such other general liability
coverages as are ordinarily procured by Persons who own or operate similar
properties and consistent with prudent business practice, which policies shall
include contractual liability endorsements usually and customarily obtained by
lessees of similar projects. Such insurance shall be on terms and in amounts
(which shall be acceptable to the Lessor and in the event of liability insurance
shall be maintained at a level set forth on Schedule 14.2) that are no less
-------------
favorable than insurance maintained by the Lessee with respect to similar
properties that it owns and that are in accordance with prudent business
practice and may be provided under blanket policies maintained by or on behalf
of the Lessee; provided, that during the Agency Term no such policies shall
--------
carry any deductibles. The policy shall be endorsed to name the Lessor, the
Agent and each Participant as additional insureds. 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, the Agent or the Participants may have in force. The Lessee shall,
in the construction of any improvements and the operation of the Property
(including in connection with any Modifications thereof) comply with the
applicable workers' compensation laws and protect the Lessor, the Agent and the
Participants against any liability under such laws.
14.2 Reserved
--------
14.3 Coverage. (a) The Lessee shall furnish the Lessor and the Agent with
--------
(i) certificates of insurance and copies of such policies on the Land Interest
Acquisition Date and, within thirty (30) days after the Closing Date, certified
copies of the insurance policies, showing the insurance required under Section
-------
14.1 to be in effect and naming the Lessor, the Agent and each Participant as
----
additional insureds. Such policies and certificates in respect thereof shall
include a provision for thirty (30) days' advance written notice by the insurer
to the Lessor and the Agent in the event of cancellation of or any significant
reduction in the coverage provided by such insurance.
(b) The Lessee agrees that the insurance policy or policies
required by Section 14.1 shall include (i) 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, the Agent and the Participants, and their respective rights under
and interests in said policies shall not be invalidated or reduced by any act or
omission or negligence of the Lessee or any other Person having any interest in
the Property, and (ii) a so-called "Waiver of Subrogation Clause". The Lessee
hereby waives any and all such rights against the Lessor, the Agent and the
Participants 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
Key Rating Guide or any successor thereto (or if there be
13
none, an organization having a similar national reputation) shall have a general
policyholder rating of "A" and a financial rating of at least 13 in Best's Key
Rating Guide or be otherwise acceptable to the Lessor and the Agent.
(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 XIV except that the Lessor may carry separate liability insurance
-----------
(at its sole cost) 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 XIV 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 14.1 and shall renew or replace each policy prior
------------
to the expiration date thereof; provided, that during the Agency Term such
--------
premiums shall be funded by the Participants through the Lessor and capitalized
as Advances. 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 with respect to the insurance
policies required by this Article XIV to be maintained by the Lessee with
-----------
respect to the Property.
(f) The Lessee hereby waives, releases and discharges the Lessor,
the Agent and each Participant and their agents and employees from all claims
whatsoever arising out of loss, claim, expense or damage to or destruction
covered or coverable by insurance required under this Article XIV
-----------
notwithstanding that such loss, claim, expense or damage may have been caused by
the Lessor, the Agent or any Participant or any of their agents or employees,
and the Lessee agrees to look to the insurance coverage only in the event of
such loss.
ARTICLE XV.
15.1 Casualty and Condemnation. (a) Subject to the provisions of Article
------------------------- -------
XIV, this Article XV and (in the event the Lessee delivers, or is obligated to
--- ----------
deliver, or the Lessor delivers, a Termination Notice) Article XVI, and prior to
-----------
the occurrence and continuation of a Lease Event of Default, the Lessee shall be
entitled to receive (and the Lessor shall pay over to the Lessee, if received by
the Lessor, and hereby irrevocably assigns to the Lessee all of the Lessor's
right, title and interest in) any award, compensation or insurance proceeds to
which the Lessee or the Lessor may become entitled by reason of their respective
interests in the Property (but not proceeds of any performance bond required to
be obtained by the Existing Owner pursuant to the Property Purchase Agreement)
occurring during the Basic Term (i) if all or a portion of the Property is
damaged or destroyed in whole or in part by a Casualty or (ii) if the use,
access, occupancy, easement rights or title to the Property or any part thereof,
is the subject of a Condemnation; provided, however, if a Lease Event of Default
-------- -------
shall have occurred and be continuing, or if such Casualty or Condemnation
occurs during the Agency Term, such award, compensation or insurance proceeds
shall be paid directly to the Agent or, if received by the Lessee, shall be held
in trust for the Agent, and shall be paid over by the Lessee to the Agent (or,
if the Participation Interests have been fully paid, to the Lessor) and held in
accordance with the terms of this paragraph (a). If, contrary to such provision,
-------------
any such award, compensation or insurance proceeds are paid to the Lessor or the
Lessee rather than to the Agent, the Lessor and
14
the Lessee, as the case may be, hereby agree to transfer any such payment to the
Agent. All amounts held by the Lessor or the Agent under the preceding sentences
on account of any award or compensation proceeds either paid directly to the
Lessor or the Agent or turned over to the Lessor or the Agent shall either be
(i) paid to the Lessee for the repair of damage caused by such Casualty or
Condemnation in accordance with paragraph (e) of this Section 15.1, or (ii)
------------- ------------
applied to the purchase price of the Property on a Termination Date resulting
from a Casualty or Condemnation in accordance with paragraph (d) of this Section
------------- -------
15.1 or paragraph (a) of Section 16.2 or the payment of the Residual Value
---- ------------- ------------
Guarantee Amount pursuant to Section 16.2 or 24.1 and the remaining unpaid
------------ ----
portion of the Lease Balance, with any Excess Proceeds being payable to the
Lessee.
(b) [Reserved]
(c) If the Lessor or the Lessee shall receive notice of a Casualty or
of an actual, pending or threatened Condemnation of the 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 Agent promptly after the receipt of such notice.
(d) In the event of a Casualty or receipt of notice by the Lessee or
the Lessor of a Condemnation, the Lessee may deliver to the Lessor and the Agent
a Termination Notice with respect to the Property pursuant to Section 16.1(a) or
---------------
the Lessor may deliver a Termination Notice pursuant to Section 16.1(b). If the
---------------
Lessee or the Lessor does not deliver a Termination Notice within thirty (30)
days after such occurrence, then this Lease shall (subject to the terms and
conditions thereof) remain in full force and effect, and the Lessee shall, at
the Lessee's sole cost and expense (subject to Section 24.1), promptly and
------------
diligently restore the Property pursuant to paragraph (e) of this Section 15.1
------------- ------------
and otherwise in accordance with this Lease. If the Lessee delivers a
Termination Notice within thirty (30) days after such occurrence, a Significant
Event shall irrevocably be deemed to have occurred with respect to the Property,
and, in such event, this Lease shall terminate and the Lessee shall purchase the
Property on the next Payment Date (but in no event to exceed thirty (30) days
after such occurrence) (a "Termination Date") pursuant to Article XVI hereof.
---------------- -----------
(e) If pursuant to this Section 15.1 this Lease shall continue in
------------
full force and effect following a Casualty or Condemnation, the Lessee shall, at
its sole cost and expense (subject to Section 24.1) promptly and diligently
------------
repair any damage to the Property caused by such Casualty or Condemnation so as
to restore the Property to at least the same condition, operation, function and
value as existed immediately prior to such Casualty or Condemnation. Upon
completion of such restoration, the Lessee shall furnish the Lessor a
Responsible Officer's Certificate confirming that such restoration has been
completed pursuant to this Lease. In the event of a Condemnation, any award
proceeds paid to the Lessor pursuant to Section 15.1 not applied to reimburse
the Lessee for repairs or restoration expenses shall be applied to prepay the
Lease Balance.
(f) In no event shall a Casualty or Condemnation with respect to
which this Lease remains in full force and effect under this Section 15.1 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 XIX and XX.
------------ --
15
(g) Any Excess Proceeds received by the Lessor or the Agent in
respect of a Casualty or Condemnation shall be turned over to the Lessee.
15.2 Environmental Matters. Promptly upon the Lessee's actual knowledge
---------------------
of the presence of Hazardous Substances in any portion of the Property in
concentrations and conditions that constitute or could reasonably be expected to
constitute an Environmental Violation, the Lessee shall notify the Lessor in
writing of such condition. In the event of such Environmental Violation, the
Lessee shall, not later than thirty (30) days after the Lessee has actual
knowledge of such Environmental Violation, either, if such Environmental
Violation is a Significant Event, deliver to the Lessor and the Agent a
Responsible Officer's Certificate and a Termination Notice with respect to the
Property pursuant to Section 16.1(a), or, if such Environmental Violation is not
---------------
a Significant Event, at the Lessee's sole cost and expense, promptly and
diligently commence any Response Actions necessary to investigate, remove, clean
up or remediate the Environmental Violation in accordance with the terms of
Section 9.1. If the Lessee does not deliver a Termination Notice with respect to
-----------
the Property pursuant to Section 16.1(a), the Lessee shall, upon completion of
---------------
Response Actions by the Lessee, cause to be prepared by an environmental
consultant reasonably acceptable to the Lessor a report describing the
Environmental Violation and the Response Actions taken by the Lessee (or its
agents) for such Environmental Violation, and a statement by the consultant that
the Environmental Violation has been remedied in compliance in all material
respects with applicable Environmental Law. Each such Environmental Violation
shall be remedied prior to the Expiration Date. Nothing in this Article XV shall
----------
reduce or limit the Lessee's obligations under Sections 13.1, 13.2 or 13.3 of
the Participation Agreement.
15.3 Notice of Environmental Matters. Promptly, but in any event within
-------------------------------
thirty (30) Business Days from the date the Lessee has actual knowledge thereof,
the Lessee shall provide to the Lessor written notice of any material pending or
threatened claim, action or proceeding involving any Environmental Law or any
Release on or in connection with the Property. All such notices shall describe
in reasonable detail the nature of the claim, action or proceeding and the
Lessee's proposed response thereto. In addition, the Lessee shall provide to the
Lessor, within thirty (30) Business Days of receipt, copies of all material
written communications with any Governmental Authority relating to any
Environmental Law in connection with the Property. The Lessee shall also
promptly provide such detailed reports of any such Material environmental claims
as may reasonably be requested by the Lessor and the Agent.
ARTICLE XVI.
16.1 Termination upon Certain Events
-------------------------------
(a) If either: (i) during the Basic Term the Lessee or the Lessor
shall have received notice of a Condemnation, and the Lessee shall have
delivered to the Lessor a Responsible Officer's Certificate that such
Condemnation is a Significant Condemnation; or (ii) during the Basic Term a
Casualty occurs, and the Lessee shall have delivered to the Lessor a Responsible
Officer's Certificate that such Casualty is a Significant Casualty; or (iii)
during the Term an Environmental Violation occurs or is discovered and the
Lessee shall have delivered to the Lessor a Responsible Officer's Certificate
stating that, in the reasonable, good-faith judgment of the Lessee, the cost to
remediate the same will cause the same to be a Significant Event, or
16
(iv) if during the Term the Lessee shall not have delivered a Termination Notice
with respect to such Environmental Violation described in clause (iii) but the
requirements of Section 16.3 are met with respect to such Environmental
Violation; then, the (A) the Lessee shall, simultaneously with the delivery of
the Responsible Officer's Certificate pursuant to the preceding clause (i), (ii)
or (iii) deliver a written notice in the form described in Section 16.2(a) (a
"Termination Notice"), or (B) if clause (iv) is applicable, the Lessor may
------------------
deliver a Termination Notice pursuant to Section 16.3.
(b) If during the Agency Term any of the following shall occur: (i)
a Casualty or Condemnation that Lessor determines is a Significant Casualty or a
Significant Condemnation, (ii) the incurrence by any Lessor Party of any
liabilities, losses, damages or expenses excluded from the Lessee's obligations
under clause (5)(A)(2) of the proviso to Section 13.1 of the Participation
Agreement or under Section 24.1 of this Lease by the proviso to such section, or
------------
(iii) a Lease Event of Default shall occur, the Lessor and the Participants may,
but shall not be required to elect to:
(A) deliver a Termination Notice to the Lessee which shall
terminate their Commitments; and
(B) require the Lessee to:
(1) return the Property to the Lessor or remarket the
Property for the Lessor as provided in clause (c) below; and
----------
(2) pay the maximum Residual Value Guarantee Amount or
Asset Termination Value to the Lessor as provided in clause (c)
----------
below, together with the other amounts referred to therein.
(c) The Lessee shall, at the request of the Lessor, (i)(A) return
the Property to the Lessor or a Person designated by the Lessor on a date
specified by the Lessor (which date shall constitute the Termination Date)
and/or (B) remarket the Property for the Lessor as the Lessor's agent subject to
the Lessor's direction and, in each case, comply with Section 19.1(b) and, to
---------------
the extent applicable, Section 19.2, and (ii) pay to the Lessor (A) the maximum
------------
Residual Value Guarantee Amount on the date that is ten (10) days after the date
the Lessor furnishes the Lessee with the Termination Notice that it will require
the Lessee to return or remarket the Property, provided that the Lessor may
--------
recover from the Lessee, and the Lessee shall be obligated to pay to the Lessor
the Asset Termination Value as of such date (notwithstanding the limitation to
maximum Residual Value Guarantee Amount contained in clause (A) above) if a
----------
Lease Event of Default under Section 17.1(f) or (g) shall have occurred or if
--------------- ---
the event described in clause (b)(i) or (ii) above arose out of a Fully
------------- ----
Indemnifiable Event or constituted an Environmental Obligation. If the Lessee
has paid the Residual Value Guarantee Amount as required herein, proceeds from a
sale of the Property pursuant to this Section 16.1(c) or, if not sold as
---------------
provided in this Section 16.1(c), from a sale of the Property occurring
---------------
thereafter, shall be distributed as provided in Section 3.14 of the
Participation Agreement.
16.2 Procedures. (a) A Termination Notice delivered pursuant to Section
---------- -------
16.1(a) shall contain: (i) notice of termination of this Lease with respect to
-------
the Property or the affected portion
17
thereof on a date that is no later than thirty (30) days after the occurrence of
the applicable event described in clause (i), (ii) or (iii) of Section 16.1(a)
---------- ---- ----- ---------------
(the "Termination Date"), such termination to be effective upon the Lessee's
----------------
payment of the Asset Termination Value (or portion thereof representing the
Property Cost of the affected portion of the Property); and (ii) a binding and
irrevocable agreement of the Lessee to pay the Asset Termination Value and
purchase the Property (or such portion thereof) on the Termination Date.
(b) On the Termination Date, the Lessee shall pay to the Lessor
the Asset Termination Value (or such portion thereof, as applicable), plus all
other amounts owing in respect of Rent for the Property (including Supplemental
Rent) theretofore accruing, and the Lessor shall convey the Lessor's interest in
the Property or such portion thereof to the Lessee (or the Lessee's designee)
all in accordance with Section 19.1 and, to the extent applicable, Section 19.2,
------------ ------------
as well as any Net Proceeds with respect to the Casualty or Condemnation giving
rise to the termination of this Lease with respect to the Property theretofore
received by the Lessor.
16.3 Purchase of Property. Upon receipt of any notice pursuant to
--------------------
Section 15.2 or 15.3, the Lessor or the Required Participants, at the Lessee's
--------------------
expense, shall have the right to select an independent environmental consultant
acceptable to the Lessee, which acceptance shall not be unreasonably withheld or
delayed, to determine the estimated cost of conducting any clean-up or
remediation required as a result of the Environmental Violation disclosed in
such notice. If such independent environmental consultant determines that the
cost of any such clean-up or remediation would exceed fifteen percent (15%) of
the original Property Cost, the Lessor shall, at the direction of the Required
Participants, by written notice require the Lessee to purchase, or arrange for
an Affiliate or other third party to purchase, the Property on the Expiration
Date by delivering a Termination Notice following the requirements of Section
-------
16.2 hereof.
----
ARTICLE XVII.
17.1 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
(other than a payment of Basic Rent due on the Expiration Date, any Termination
Date or any date on which a payment is required to be made under clause (ii))
-----------
within five (5) Business Days after the same has become due and payable or (ii)
Basic Rent, Purchase Option Price, Partial Purchase Option Price, Asset
Termination Value, or Residual Value Guarantee Amount or other amounts due on
the Expiration Date or the Termination Date, including, without limitation,
amounts due pursuant to Sections 16.2, 16.3, 17.2(h), 20.2, 20.3 or 22.1, after
------------- ---- ------- ---- ---- ----
the same has become due and payable;
(b) the Lessee shall fail to make payment of any Supplemental
Rent (other than Supplemental Rent referred to in clause (a) of this Section)
----------
due and payable within five (5) Business Days after the same has become due and
payable;
18
(c) the Lessee shall fail to maintain insurance as required by
Article XIV of this Lease;
-----------
(d) the Lessee shall fail to observe or perform any term,
covenant or condition of the Lessee under this Lease, the Participation
Agreement or any other Operative Document to which it is a party other than
those described in Section 17.1(a), (b), (c), (p), or (q) hereof, or any
--------------- --- --- --- ---
representation or warranty set forth in this Lease or in any other Operative
Document or in any document entered into in connection herewith or therewith or
in any document, certificate or financial or other statement delivered in
connection herewith or therewith shall be false or inaccurate in any Material
way, and, if such failure to perform or misrepresentation or breach of warranty
is other than with respect to a covenant or agreement contained in Section
-------
10.1(b) or 10.2 of the Participation Agreement, such failure or
-------
misrepresentation or breach of warranty shall remain uncured for a period of 30
days after the earlier of (i) the date upon which an executive officer of the
Lessee has actual knowledge thereof and (ii) the date upon which the Agent or
the Lessor gives notice to the Lessee, or such longer period as is reasonably
necessary to cure such default so long as such default cannot be cured merely by
payment of money and so long as the Lessee shall be diligently prosecuting such
cure and such default is cured within ninety (90) days after the earlier of (i)
the date upon which an executive officer of the Lessee has actual knowledge
thereof and (ii) the date upon which the Agent or the Lessor gives notice to the
Lessee thereof;
(e) the Lessee or any of its Subsidiaries shall fail to make any
payment when due on account of any Indebtedness of such Person (other than
Indebtedness referred to in clauses (a) and (b) of this Section 17.1) and such
----------- --- ------------
failure shall continue beyond any grace period provided with respect thereto, if
the amount of such Indebtedness exceeds $10,000,000 or the effect of such
failure is to cause, or permit the holder or holders thereof to cause,
Indebtedness of Lessee and its Subsidiaries (other than Indebtedness referred to
in clauses (a) and (b) of this Section 17.1) in an aggregate amount exceeding
----------- --- ------------
$10,000,000 to become due or (ii) Lessee or any of its Subsidiaries shall
otherwise fail to observe or perform any agreement, term or condition contained
in any agreement or instrument relating to any Indebtedness of such Person
(other than Indebtedness referred to in clauses (a) and (b) of this Section
----------- --- -------
17.1) and such failure shall continue beyond any grace period provided with
----
respect thereto, or any other event shall occur or condition shall exist and any
grace period provided with respect thereto shall have expired, if the effect of
such failure, event or condition is to cause, or permit the holder or holders
thereof to cause, after expiration of any such grace period, Indebtedness of
Lessee and its Subsidiaries (other than Indebtedness referred to in clauses (a)
-----------
and (b) of this Section 17.1) in an aggregate amount exceeding $10,000,000 to
---
become due prior to its stated term (and/or to be secured by cash collateral);
(f) (i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Lessee or any of its Subsidiaries
in an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against the Lessee or any of its Subsidiaries under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator,
19
trustee, custodian or other officer having similar powers over the Lessee or any
of its Subsidiaries, or over all or a substantial part of its property, shall
have been entered; or there shall have occurred the involuntary appointment of
an interim receiver, trustee or other custodian of the Lessee or any of its
Subsidiaries for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of the Lessee or any of its Subsidiaries, and
any such event described in this clause (ii) shall continue for sixty (60) days
-----------
unless dismissed, bonded or discharged;
(g) (i) the Lessee or any of its Subsidiaries shall (i) have an
order for relief entered with respect to it or commence a voluntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; or the Lessee or any of its
Subsidiaries shall make any assignment for the benefit of creditors; (ii) be
unable, or shall fail generally, or shall admit in writing its inability, to pay
its debts as such debts become due; (iii) be dissolved or liquidated in full or
in part; (iv) become insolvent (as such term may be defined or interpreted under
any applicable statute); or (v) the Board of Directors of the Lessee or any of
its Subsidiaries (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to herein
or in Section 17.1(f);
---------------
(h) (i) one or more judgments, orders, decrees or arbitration
awards requiring Lessee and/or its Subsidiaries to pay an aggregate amount of
$5,000,000 or more (exclusive of amounts covered by insurance issued by an
insurer which is a solvent and unaffiliated insurance company and otherwise
satisfying the requirements set forth in Section 14.3(c)) shall be rendered
against Lessee and/or any of its Subsidiaries in connection with any single or
related series of transactions, incidents or circumstances and the same shall
not be satisfied, vacated or stayed for a period of thirty (30) consecutive days
after the issue of levy; (ii) any judgment, writ, assessment, warrant of
attachment, tax lien or execution or similar process shall be issued or levied
against a substantial part of the Property of Lessee or any of its Subsidiaries
and the same shall not be released, stayed, vacated or otherwise dismissed
within thirty (30) days after issue or levy; or (iii) any other judgments,
orders, decrees, arbitration awards, writs, assessments, warrants of attachment,
tax liens or executions or similar process which, alone or in the aggregate, are
reasonable likely to have a Material Adverse Effect are rendered, issued or
levied;
(i) any Operative Document or any material term thereof shall
cease to be, or be asserted by the Lessee or any of its Subsidiaries not to be,
a legal, valid and binding obligation of the Lessee or any of its Subsidiaries
enforceable in accordance with its terms;
(j) any ERISA Event which constitutes grounds for the termination
of any Employee Benefit Plan by the PBGC or for the appointment of a trustee by
the PBGC to administer any Employee Benefit Plan shall occur, or any Employee
Benefit Plan shall be terminated within the meaning of Title IV of ERISA or a
trustee shall be appointed by the PBGC to administer any Employee Benefit Plant;
(k) a Change of Control shall occur;
20
(l) [Reserved.];
(m) the Lessee shall have abandoned or constructively abandoned
all or any material portion of the Property for a period of one hundred eighty
(180) consecutive days which results in the Property not being properly
maintained in accordance with the terms of this Lease;
(n) the Lessee shall have elected to or be required to purchase
the Property pursuant to Sections 16.2 or 16.3 hereof and such purchase shall
---------------------
not have been consummated on the Termination Date pursuant to either such
Section;
(o) [Reserved];
(p) in the event the Lessee is not purchasing the Property upon
the Expiration Date or earlier termination of this Lease, failure to comply with
the return conditions set forth in Sections 19.1(b) and 22.3 hereof; or
---------------- ----
(q) any event(s) or condition(s) which has or have a Material
Adverse Effect shall occur and be continuing or exist.
17.2 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 Property as set forth in Section 20.3,
------------
but with respect to the Lessee's recourse liability, subject to the provisions
of Section 16.1(b) and (c), if such Event of Default arises during the Agency
--------------- ---
Term):
(a) The Lessor may, by notice to the Lessee, terminate the
Commitments and rescind or terminate this Lease as to all or any portion of the
Property as of the date specified in such notice; however, (i) no reletting,
reentry or taking of possession of the Property (or any portion thereof) by the
Lessor will be construed as an election on the Lessor's part to terminate this
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 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 Property 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 the Property promptly to the
Lessor in the manner and condition required by, and otherwise in accordance with
all of the provisions of, Articles VIII, IX and X hereof as if the Property were
------------- -- -
being returned at the end of the Term, and the Lessor shall not be liable for
the reimbursement of the Lessee for any costs and expenses incurred by the
Lessee in connection therewith and (ii) without prejudice to any other remedy
which the Lessor may have for possession of the Property, and to the extent and
in the manner permitted by Applicable Law, enter upon the Property and take
immediate possession of (to the exclusion of the Lessee) the Property or any
part thereof and expel or remove the Lessee and any other Person who may be
occupying the Property, by summary proceedings or otherwise, all without
liability
21
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 Agent or the
Participants in connection with any reletting, including, without limitation,
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 the Property at
public or private sale, as the Lessor may determine, pursuant to such notices
and procedures as may be required by Applicable Law, 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 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) (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 Payment Date, the Payment Date next
preceding the date of such sale)), an amount equal to (A) the excess, if any, of
(1) the Asset Termination Value calculated as of such Payment Date (including
all Rent due and unpaid to and including such Payment Date) less the aggregate
amount of the Cash Collateral, over (2) the net proceeds of such sale, if any
(that is, after deducting all costs and expenses incurred by the Lessor, the
Agent and the Participants 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 or alteration costs); plus (B) interest at the
Overdue Rate on the foregoing amount from such Payment Date until the date of
payment; provided, that the Lessor shall deliver all proceeds from the sale of
--------
the Property and other amounts received hereunder to the Agent for application
as provided in Sections 3.14 and 3.17 of the Participation Agreement.
(d) [Reserved]
(e) Unless the Property has been sold in its entirety, the Lessor
may, subject to Section 17.2(i), whether or not the Lessor shall have exercised
---------------
or shall thereafter at any time exercise any of its rights under paragraph (b),
-------------
(c) or (d) of this Section 17.2 with respect to the Property or portions
--- --- ------------
thereof, demand, by written notice to the Lessee specifying a date (a
"Termination Date") not earlier than 10 Business Days after the date of such
----------------
notice, that the Lessee purchase, on such Termination Date, the Property (or the
remaining portion thereof) in accordance with the provisions of Article XIX and
-----------
Section 20.3;
------------
(f) The Lessor may exercise any other right or remedy that may be
available to it under the Operative Documents or otherwise 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
22
the Term, in which event such suit shall be deemed not to have accrued until the
expiration of the Term;
(g) The Lessor may retain and apply against the Lessor's damages
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 Lease;
(h) [Reserved.]
(i) Notwithstanding anything contained in this Lease to the
contrary, in the event that the Lease Event of Default resulting in the exercise
of remedies by the Lessor hereunder is solely a Lease Event of Default described
in Section 17.1(k) or (q), the Lessee shall have the option or, if the Lessor
--------------- ---
terminates this Lease, the Lessee shall be required to elect to (i) remarket the
Property for 180 days after the occurrence of such Event of Default in
accordance with Article XXII hereof (which period shall constitute the Marketing
------------
Period), with the purchase of the Property to be consummated no later than the
date that is 180 days following the occurrence of such Lease Event of Default
(which date shall constitute the Expiration Date if such option is exercised or
required to be exercised), or (ii) exercise its Purchase Option under Section
-------
20.1 hereof, with the purchase of the Property by the Lessee to be consummated,
----
and the other payments required thereunder to be made to the Lessor, on the next
Payment Date following the occurrence of such Lease Event of Default (which date
shall constitute the Expiration Date if such option is exercised). The Lessee
shall notify the Lessor within ten (10) days after the occurrence of such Lease
Event of Default which option it is exercising. If the Lessee elects to remarket
the Property the Lessee shall pay to the Lessor (i) the maximum Residual Value
Guarantee Amount on the date the Lessee furnishes such notice of exercise of the
Remarketing Option (or, if the Lessor elects, on the date that is ten (10)
Business Days after the Lessor furnishes the Lessee notice that it will require
the Lessee to remarket or purchase the Property), (ii) all breakage costs
incurred by the Participants for the duration of all then current Interest
Periods under the Participation Agreement with respect to the amount so paid
following notices thereof by the Agent, (iii) Basic Rent when due with respect
to the unpaid portion of the Asset Termination Value for the duration of the 180
day Marketing Period and (iv) the other payments required under Section 22.1
------------
when required thereunder and no later than the Expiration Date.
(j) In addition to the other rights and remedies set forth
herein, the Lessor shall have the right to continue this Lease in effect and, as
permitted by Section 1951.4 of the California Civil Code, to enforce, by suit or
otherwise, all covenants and conditions hereof to be performed or complied with
by the Lessee and exercise all of the Lessor's rights and remedies under this
Lease, including, without limitation, the right to recover Basic Rent and
Supplemental Rent from the Lessee as it becomes due under this Lease, even
though the Lessee shall have breached this Lease and abandoned the Property.
Acts of maintenance or preservation, or efforts by the Lessor or on the Lessor's
behalf to relet the Property, or the appointment of a receiver upon the
initiative of the Lessor to protect the Lessor's interest under this Lease shall
not constitute a termination of the Lessee's right to possession of the
Property; provided, however, that the foregoing enumeration shall not be
construed as in any way limiting the actions the Lessor may take without
terminating the Lessee's right to possession. In furtherance of the rights
hereby granted to the Lessor, and to the extent, permitted by law, the Lessee
hereby appoints the
23
Lessor its agent and attorney-in-fact, which appointment shall be deemed to be
coupled with an interest and is irrevocable, with power of substitution, to
enter the Property upon a Lease Event of Default hereunder and remove therefrom
all persons and property (with the right to store such property on the Property
in a public warehouse or elsewhere at the cost and risk and for the account of
the Lessee) and to alter the Property in such manner as the Lessor may deem
necessary or advisable so as to put the Property in good order and to make the
same rentable and from time to time and sublet the Property or any part thereof
for such term or terms whether or not extending beyond the then current term of
this Lease (but such sublease may provide for a new and successive lease to
commence immediately upon the termination of this Lease), at such rentals and
upon such other terms as the Lessor in its sole discretion may deem advisable,
and with the right to make alterations and repairs to the Property; and the
Lessee agrees to pay to the Lessor on demand all reasonable expenses incurred by
the Lessor in such subletting, and in altering, repairing and putting the
Property in good order and condition, and in reletting the same, including fees
of attorneys and architects, and all other reasonable expenses or commissions.
The Lessor shall be the Lessee's agent and representative on the Property in
respect of all matters arising under or in connection with any such sublease
made for the Lessee by the Lessor. Under each such sublease, the Lessee shall
retain the right to enter upon and use the Property, subject to the terms and
conditions of such sublease and the rights of the sublessee thereunder. The
Lessee further agrees to pay to the Lessor, following the date of such
subletting, to and including the date provided in this Lease for the expiration
of the Term, the sums of money which would have been payable by the Lessee as
Basic Rent and Supplemental Rent, deducting only the net amount of rent, if any,
which the Lessor shall actually receive (after deducting from the gross receipts
the expenses, costs and payments of the Lessor which in accordance with the
terms of this Lease would have been borne by the Lessee) in the meantime from
and by any such subletting of the Property, and the Lessee hereby agrees to
remain liable for all sums otherwise payable by the Lessee under this Lease,
including, but not limited to, the expenses of the Lessor aforesaid, as well as
for any deficiency aforesaid. The Lessor shall have the right from time to time
to begin and maintain successive actions or other legal proceedings against the
Lessee for the recovery of such deficiency, expenses or damages or for a sum
equal to any installments of Basic Rent or Supplemental Rent and other sums
payable hereunder, and to recover the same upon the liability of the Lessee
herein provided, which liability it is expressly covenanted shall survive the
commencement or determination of any action to secure possession of the
Property. Nothing herein contained shall be deemed to require the Lessor to wait
to begin such action or other legal proceedings until the date when this Lease
would have expired by limitation had there been no such Lease Event of Default.
Notwithstanding any such subletting without termination, pursuant to the terms
hereof, the Lessor shall retain the right to and may at any time thereafter
elect to terminate this Lease or the Lessee's right to possession of the
Property for any previous breach which remains uncured or for any subsequent
breach by giving the Lessee written notice thereof as herein provided, and in
such event the Lessee shall forfeit any rights or interest under any such
sublease and thereafter the obligations of any such sublessee shall run directly
to the Lessor for its own account. Upon application by the Lessor, a receiver
may be appointed to take possession of the Property, exercise all rights granted
to the Lessor as agent and attorney-in-fact for the Lessee set forth in this
Section 17.2(j) and apply any rentals collected from the Property as hereinabove
---------------
provided. No taking of possession of the Property or other act by the Lessor as
the agent and attorney-in-fact for the Lessee pursuant to the foregoing
provisions, nor any subletting by the Lessor for the Lessee pursuant to the
24
foregoing provisions, nor any such appointment of a receiver shall constitute or
be construed as an election by the Lessor to terminate this Lease or the
Lessee's right to possession of the Property unless a written notice of such
intention be given to the Lessee.
17.3 Waiver of Certain Rights. If this Lease shall be terminated
------------------------
pursuant to Section 17.2, 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 XVII.
------------
17.4 Further Remedies. If the transaction evidenced by this Agreement
----------------
and the other Operative Documents is treated as a loan, upon the occurrence or
existence of any Event of Default and at any time thereafter unless such Event
of Default is waived, the Lessor and the Trustee may with the consent of the
Required Participants, or shall, upon instructions from the Required
Participants, exercise any one or more of the following rights and remedies in
addition to those rights and remedies set forth in Section 17.2 (subject, with
------------
respect to the Lessee's recourse liability, to the provisions of Section 16.1(b)
---------------
and (c) if such Event of Default arises during the Agency Term).
---
(a) Acceleration of Obligations. The Lessor may, by written
---------------------------
notice to the Lessee, terminate this Lease and declare all unpaid Obligations
due and payable. On such termination date (which shall then be the Expiration
Date), the Lessee shall pay the Asset Termination Value (subject to Section
-------
17.2(i)), all unpaid Basic Rent accrued through such date, all Supplemental Rent
--------
due and payable on or prior to such date and all other amounts payable by the
Lessee on the Expiration Date pursuant to this Lease and the other Operative
Documents.
(b) Uniform Commercial Code Remedies. The Lessor may exercise any
--------------------------------
or all of the remedies granted to a secured party under any applicable Uniform
Commercial Code.
(c) Judicial Foreclosure. The Lessor may bring an action in any
--------------------
court of competent jurisdiction to foreclose the security interest in the
Property granted to the Lessor by this Lease or any of the other Operative
Documents. Further, Lessor and/or the Trustee may bring an action or actions in
a court of competent jurisdiction to foreclose this instrument as a mortgage and
to obtain specific enforcement of the covenants of the Lessee hereunder, and the
Lessee agrees that such covenants shall be specifically enforceable by
injunction or any other appropriate equitable remedy and that for the purposes
of any suit brought hereunder the Lessee waives the defense of laches and any
applicable statute of limitations.
(d) Power of Sale. The Lessor may cause some or all of the
-------------
Property including any Collateral constituting personal property, including the
Cash Collateral ("Personal Property Collateral"), to be sold or otherwise
-----------------------------
disposed of in any combination and in any manner permitted by Applicable Law.
(i) Sales of Personal Property. The Lessor may dispose of
--------------------------
any Personal Property Collateral separately from the sale of the
Collateral constituting
25
real property ("Real Property Collateral"), in any manner permitted by
------------------------
Division 9 of the California Uniform Commercial Code, including any public
or private sale, or in any manner permitted by any other applicable
Governmental Rule. Any proceeds of any such disposition shall not cure any
Event of Default or reinstate any Obligation for purposes of Section 2924c
of the California Civil Code. In connection with any such sale or other
disposition, the Lessee agrees that the following procedures constitute a
commercially reasonable sale:
(A) The Lessor shall mail written notice of the sale to the
Lessee not later than thirty (30) days prior to such sale.
(B) Once per week during the three (3) weeks immediately
preceding such sale, the Lessor will publish notice of the sale in a
local daily newspaper of general circulation.
(C) Upon receipt of any written request, the Lessor will
make the Property available to any bona fide prospective purchaser for
inspection during reasonable business hours.
(D) Notwithstanding, the Lessor shall be under no
obligation to consummate a sale if, in its judgment, none of the
offers received by it equals the fair value of the Property offered
for sale.
(E) If the Lessor so requests, the Lessee shall assemble
all of the Personal Property Collateral and make it available to the
Lessor at the site of the Land Interest. Regardless of any provision
of this Agreement or any other Operative Document, the Lessor shall
not be considered to have accepted any property other than cash or
immediately available funds in satisfaction of any Obligation, unless
the Lessor has given express written notice of its election of that
remedy in accordance with California Uniform Commercial Code Section
9505.
The foregoing procedures do not constitute the only procedures that may be
commercially reasonable.
(ii) Lessor's Sales of Real Property or Mixed Collateral. The
---------------------------------------------------
Lessor may choose to dispose of some or all of the Property which consists
solely of Real Property Collateral in any manner then permitted by
Applicable Law, including without limitation a nonjudicial trustee's sale
pursuant to California Civil Code (S)(S)2924 et seq. In its discretion, the
-- ---
Lessor may also or alternatively choose to dispose of some or all of the
Property, in any combination consisting of both Real Property Collateral
and Personal Property Collateral, together in one sale to be held in
accordance with the law and procedures applicable to real property, as
permitted by Section 9501(4) of the California Uniform Commercial Code. The
Lessee agrees that such a sale of Personal Property Collateral together
with Real Property Collateral constitutes a commercially reasonable sale of
the Personal Property Collateral. (For purposes of this Power of Sale,
either a sale of Real
26
Property Collateral alone, or a sale of both Real Property Collateral and
Personal Property Collateral together in accordance with California Uniform
Commercial Code Section 9501(4), will sometimes be referred to as a "Lessor's
--------
Sale"
----
(A) Before any Lessor's Sale, the Lessor shall give such notice
of default and election to sell as may then be required by Applicable Law.
(B) When all time periods then legally mandated have expired,
and after such notice of sale as may then be legally required has been
given, the Lessor shall sell the property being sold at a public auction to
be held at the time and place specified in the notice of sale.
(C) Neither the Lessor nor the Agent shall have any obligation
to make demand on the Lessee before any Lessor's Sale.
(D) From time to time in accordance with then Applicable Law,
the Lessor may postpone any Lessor's Sale by public announcement at the
time and place noticed for that sale.
(E) At any Lessor's Sale, the Lessor shall sell to the highest
bidder at public auction for cash in lawful money of the United States.
(F) The Lessor shall execute and deliver to the purchaser(s) a
deed or deeds conveying the Property being sold without any covenant or
warranty whatsoever, express or implied. The recitals in any such deed of
any matters or facts, including any facts bearing upon the regularity or
validity of any Lessor's Sale, shall be conclusive proof of their
truthfulness. Any such deed shall be conclusive against all Persons as to
the facts recited in it.
(e) Foreclosure Sales.
-----------------
(i) Single or Multiple. If the Property consists of more than one lot,
------------------
parcel or item of property, Lessor may:
(A) Designate the order in which the lots, parcels and/or items
shall be sold or disposed of or offered for sale or disposition; and
(B) Elect to dispose of the lots, parcels and/or items through a
single consolidated sale or disposition to be held or made under the power
of sale granted in Section 17.4(d), or in connection with judicial
---------------
proceedings, or by virtue of a judgment and decree of foreclosure and sale;
or through two or more such sales or dispositions; or in any other manner
the Lessor may deem to be in its best interests (any such sale or
disposition, a "Foreclosure Sale," any two or more, "Foreclosure Sales").
---------------- -----------------
If the Lessor chooses to have more than one Foreclosure Sale, the Lessor at its
option may cause the Foreclosure Sales to be held simultaneously or
successively,
27
on the same day, or on such different days and at such different times and
in such order as it may deem to be in its best interests. No Foreclosure
Sale shall terminate or affect the security interests granted to the Lessor
in the Property by this Lease or any part of the Property which has not
been sold, until all of the Obligations have been paid in full.
(ii) Credit Bids. At any Foreclosure Sale, any Person, including the
-----------
Lessor or any Participant, may bid for and acquire the Property or any part
of it to the extent permitted by Applicable Law. Instead of paying cash for
the Property, the Lessor may settle for the purchase price by crediting the
sales price of the Property against the Obligations in any order and
proportions as the Lessor in its sole discretion may choose.
(f) Additional Rights and Remedies.
------------------------------
(i) In addition to and without limitation of the rights and remedies
otherwise provided in this Section 17.4, Lessor or its employees, acting by
------------
themselves or through a court-appointed receiver, may enter upon, possess,
manage, operate, dispose of and contract to dispose of the Property or any
part thereof; negotiate with governmental authorities with respect to the
Property's environmental compliance and remedial measures; contract for
goods and services, hire agents, employees and counsel, make repairs,
alterations and improvements to the Property necessary, in Lessor's
judgment, to protect or enhance the security hereof; to incur the risks and
obligations ordinarily incurred by owners of property (without any personal
obligation on the part of the receiver); and/or to take any and all other
actions which may be necessary or desirable to comply with Lessee's
obligations hereunder and under the Operative Documents. All sums realized
by the Lessor under this Section 17.4(f)(i), less all costs and expenses
------------------
incurred by it under this Section 17.4(f)(i), including attorneys' fees,
------------------
and less such sums as the Lessor deems appropriate as a reserve to meet
future expenses under this Section 17.4(f)(i), shall be applied to any
Obligations secured hereby in such order as the Lessor shall determine.
Neither application of said sums to said indebtedness nor any other action
taken by the Lessor under this Section 17.4(f)(i) shall cure or waive any
------------------
Event of Default or notice of default hereunder or nullify the effect of
any such notice of default. The Lessor, or any employee or agent of the
Lessor, or a receiver appointed by a court, may take any action or
proceeding hereunder without regard to (i) the adequacy of the security for
the indebtedness secured hereunder, (ii) the existence of a declaration
that the indebtedness secured hereby has been declared immediately due and
payable, or (iii) the filing of a notice of default;
(ii) Lessor shall have the power and authority to execute a written
notice of such Event of Default and, at its election, cause the Property to
be sold to satisfy the Obligations secured hereby. The Lessor shall give
and record such notice as the law then requires as a condition precedent to
a nonjudicial foreclosure sale. When the minimum period of time required by
law after such notice has elapsed, the Lessor, without notice to or demand
upon Lessee except as
28
otherwise required by law, shall sell the Property at the time
and place of sale fixed by it in the notice of sale and in such
order as it or the Lessor may determine, at public auction to the
highest bidder for cash in lawful money of the United States,
payable at time of sale (the Obligations hereby secured being the
equivalent of cash for purposes of said sale). If the Property
consists of several lots, parcels, or items of property, the
Lessor may: (i) designate the order in which such lots, parcels,
or items of property shall be offered for sale or sold, or (ii)
elect to sell such lots, parcels or items through a single sale,
through two or more successive sales, or in any other manner the
Lessor deems in its best interest. The Lessee shall have no right
to direct the order in which the Property is sold. The Lessor may
postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to
time thereafter may postpone such sale by public announcement at
such time fixed by the preceding postponement. The Lessor shall
deliver to the purchaser at such sale a deed or other appropriate
transfer instrument conveying the Property or portion thereof so
sold, but without any covenant or warranty, express or implied.
The recitals in such deed of any matters of facts shall be
conclusive proof of the truthfulness thereof. Any person,
including the Lessor or the Lessee may purchase at such sale.
In connection with any sale or sales hereunder, the Lessor may
elect to treat any of the Property which consists of a right in action or which
is property that can be severed from the real property covered hereby or any
improvements thereon without causing structural damage thereto as if the same
were personal property or a fixture, as the case may be, and dispose of the same
in accordance with applicable law, separate and apart from the sale of real
property. Any sale of any personal property or fixtures hereunder shall be
conducted in any matter permitted by the California Uniform Commercial Code.
After deducting all costs, fees and expenses of the Lessor and of
this trust, including all costs of evidence of title and attorneys' fees in
connection with sale, the Lessor shall apply the proceeds of sale to payment of
all sums so expended under the terms hereof not then repaid; the payment of all
other sums then secured hereby; and the remainder, if any, to the person or
persons legally entitled thereto;
(iii) Lessor shall have the power and authority to resort
to and realize upon the Property and any other security now or
hereafter held by the Lessor in such order and manner as the
Lessor and the Trustee may, in their sole discretion, determine;
and resort to any or all such security may be taken concurrently
or successively and in one or several consolidated or independent
judicial actions or lawfully taken non-judicial proceedings, or
both.
17.5 Remedies Cumulative. The remedies herein provided shall be
-------------------
cumulative and in addition to (and not in limitation of) any other remedies
available at law, equity or otherwise, including, without limitation, any
mortgage foreclosure remedies.
29
17.6 The Lessee's Right to Cure. Notwithstanding any provision
---------------------------
contained in the Lease or any other Operative Document, if a Lease Event of
Default has occurred and is continuing, the Lessee shall have the right to cure
such Lease Event of Default by exercising its Purchase Option and purchasing the
Property in accordance with Section 20.1 at any time prior to such time as a
------------
foreclosure upon or sale of the Property has been completed.
ARTICLE XVIII.
18.1 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 Default or 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 XIV (subject to the limitations set forth in Section 24.1), and may,
----------- ------------
to the fullest extent permitted by law, and notwithstanding any right of quiet
enjoyment in favor of the Lessee, enter upon the 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 out-of-pocket costs
and expenses so incurred (including reasonable 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 on demand (subject to the limitations set forth in Section 24.1), as
------------
Supplemental Rent.
ARTICLE XIX.
19.1 Provisions Relating to the Lessee's Termination of this Lease or
----------------------------------------------------------------
Exercise of Purchase Option or Obligation and Conveyance Upon Remarketing and
-----------------------------------------------------------------------------
Conveyance Upon Certain Other Events. (a) In connection with any termination of
-------------------------------------
this Lease pursuant to the terms of Section 16.1, 16.2 or 16.3 (if the Lessee is
------------ ---- ----
obligated to purchase the Property), or in connection with the Lessee's exercise
of its Purchase Option, Partial Purchase Option or Expiration Date Purchase
Obligation, upon the date on which this Lease is to terminate or upon the
Expiration Date, and upon tender by the Lessee of the amounts set forth in
Sections 16.2(b), 20.1, 20.2, 20.3 or 22.1(m) as applicable, the Lessor shall
---------------- ---- ---- ---- -------
execute and deliver to the Lessee (or to the Lessee's designee) at the Lessee's
cost and expense an assignment or transfer without recourse of the Lessor's
right, title and interest in the Property (which shall include a release,
quitclaim and assignment of all of the Lessor's right, title and interest in and
to any Net Proceeds with respect to the Property or such portion thereof not
previously received by the Lessor), subject to the Permitted Exceptions (other
than Lessor Liens and, so long as all amounts required to be paid upon such
termination or exercise have been paid and discharged in full, free of all Liens
created by the Operative Documents) and any encumbrance caused by the fault,
neglect or intention of the Lessee, in recordable form and otherwise in
conformity with local custom and free and clear of any Lessor Liens. The
Property shall be conveyed to the Lessee "AS IS" and in its then present
condition of title and physical condition free of any Lessor Liens and, so long
as all amounts required to be paid upon such termination or exercise have been
paid and discharged in full, free of all Liens created by the Operative
Documents.
(b) If the Lessee properly exercises the Remarketing Option or
is required to remarket the Property or return the Property to the Lessor
pursuant to Section 17.2(i), then the Lessee shall, on the Expiration Date, and
at its own cost, transfer possession of the Property (or
30
remaining portion thereof) to the Lessor or the independent purchaser thereof,
as the case may be, by surrendering the same into the possession of the Lessor
or such purchaser, as the case may be, free and clear of all Liens other than
Lessor Liens, in good condition (as modified by Modifications permitted by this
Lease), ordinary wear and tear excepted, in compliance with Applicable Law, and
in "broom-swept clean" condition. The Lessee shall cooperate reasonably with the
Lessor and the independent purchaser of the Property (or remaining portion
thereof) in order to facilitate the purchase by such purchaser of the Property
(or remaining portion thereof) which cooperation shall include the following,
all of which the Lessee shall do on or before the Expiration Date: providing all
books and records regarding the maintenance and ownership of the Property (or
remaining portion thereof) and all know-how, data and technical information
relating thereto, providing a current copy of the "as built" Plans and
Specifications for the Property, granting or assigning (to the extent
assignable) all existing licenses necessary for the operation and maintenance of
the Property and cooperating reasonably in seeking and obtaining all necessary
Governmental Action and complying with the provisions of Section 22.3 hereof.
------------
The obligations of the Lessee under this paragraph shall survive the expiration
or termination of this Lease.
ARTICLE XX.
20.1 Purchase Option. (a) Without limitation of the Lessee's
---------------
purchase obligation pursuant to Sections 20.2 or 20.3, unless the Lessee shall
------------- ----
have given notice of its intention to exercise the Remarketing Option and the
Lessor shall have entered into a binding contract to sell the Property, the
Lessee shall have the option (exercisable by giving the Lessor irrevocable
written notice (each, a "Purchase Notice") of the Lessee's election to exercise
---------------
such option) to purchase, or to designate a third party to purchase, (i) all of
the Property (the "Purchase Option") or (ii) any portion of the Land Interest
---------------
now or hereafter constituting a separate legal parcel designated by the Lessee
(the "Partial Purchase Option") provided that the Lessee shall have delivered to
-----------------------
the Lessor with the Purchase Notice a satisfactory appraisal of the Fair Market
Sales Value of the rest of the Property as of the purchase date and the
Expiration Date, reflecting that (i) the Fair Market Sales Value of the Property
is not less than the remaining unpaid Asset Termination Value as of such date
and (ii) the Fair Market Sales Value of the Property as of the Expiration Date
shall not be less than the aggregate Asset Termination Value on such date. The
purchase price in respect of the entire Property (the "Purchase Option Price")
---------------------
shall be equal to the Asset Termination Value or, with respect to such portion
of the Property (the "Partial Purchase Option Price"), a price determined by
-----------------------------
multiplying the Asset Termination Value by the percentage that the Fair Market
Sales Value of the portion of the Property subject to the Partial Purchase
Option bears to the Fair Market Sales Value of that portion of the Property
subject to this Lease immediately prior to such purchase, in each case as shown
on the most recent Appraisal delivered pursuant to the Operative Documents, plus
in each case all other amounts owing in respect of Rent (including Supplemental
Rent) theretofore accruing. The Lessee shall deliver the Purchase Notice to the
Lessor not less than thirty (30) days prior to the purchase date. If the Lessee
exercises its Purchase Option or Partial Purchase Option, pursuant to this
Section 20.1, the Lessor shall transfer, free and clear of Lessor Liens and
------------
Liens under the Operative Documents, to the Lessee or the Lessee's designee, all
of the Lessor's right, title and interest in and to all or the applicable
portion of the Property, as of the date specified in the Purchase Notice upon
receipt of the Purchase Option Price or Partial Purchase Option Price, as the
case may be, and (without duplication) all Rent and all other amounts then due
and payable
31
under this Lease and any other Operative Document, in accordance with Section
-------
19.1(a). In the event of an exercise of the Partial Purchase Option, (i) Lessee
-------
or the third party acquiring such property shall grant any easements reasonably
determined to be necessary by Lessor for the benefit of the remaining Property
and the parties will enter into such amendments to the Operative Documents, and
Lessee shall cause any such amendments to be filed, all as reasonably required
by Lessor so as to preserve the Participants' interests in the retained
Property; and (ii) if the Lessor and the Lessee enter into a replacement
synthetic lease facility for any parcel of the Property to finance the
construction of improvements to such parcel following any exercise of the
Partial Purchase Option in a transaction where the Lessor remains the legal
owner and lessor of such parcel, the Lessor and the Lessee agree that any
3.7(e)(ii) portion capitalized under the Operative Documents shall not be
considered part of the land acquisition costs under such replacement lease
facility.
20.2 Expiration Date Purchase Obligation. Unless (a) the Lessee shall
-----------------------------------
have properly exercised the Purchase Option or the Partial Purchase Option
pursuant to Section 20.1 and purchased all of the Property pursuant thereto, (b)
------------
the Lessee shall have properly exercised the Remarketing Option and shall have
fulfilled all of the conditions of clauses (a) through (j) of Section 22.1
----------- --- ------------
hereof, or (c) the Lessee shall have properly exercised the Renewal Option
pursuant to Section 21.1 and the terms and conditions of a Renewal Term shall
------------
have been agreed upon pursuant to such Section, then, subject to the terms,
conditions and provisions set forth in this Section 20.2, and in accordance with
------------
the terms of Section 19.1(a), the Lessee shall purchase from the Lessor, and the
---------------
Lessor shall assign and convey to the Lessee without recourse, on the Expiration
Date of the Term (as such Term may be renewed pursuant to Section 21.1) all of
------------
the Lessor's right, title and interest in the Property for an amount equal to
the Asset Termination Value (the "Expiration Date Purchase Obligation"). The
-----------------------------------
Lessee may designate, in a notice given to the Lessor not less than five (5)
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
Lease, including, without limitation, the obligation to pay the Lessor an amount
equal to the Asset Termination Value that was not fully and finally paid by such
designee on such Expiration Date.
20.3 Acceleration of Purchase Obligation. (a) The Lessee shall be
-----------------------------------
obligated to purchase for an amount equal to the Asset Termination Value the
Lessor's interest in the Property (notwithstanding any prior election to
exercise its Purchase Option or Partial Purchase Option pursuant to Section
-------
20.1) (i) automatically and without notice upon the occurrence of any Lease
----
Event of Default specified in clause (f) or (g) of Section 17.1, and (ii) as
---------- --- ------------
provided for at Section 17.2(e) immediately upon written demand of the Lessor
upon the occurrence of any other Lease Event of Default (except as provided in
Section 17.2(i) and subject to Section 16.1(b) and (c)) with respect to the
--------------- --------------- ---
Lessee's recourse liability if such Lease Event of Default arises during the
Agency Term.
(b) The Lessee shall be obligated to purchase for an amount
equal to the Asset Termination Value (plus all other amounts (without
duplication) owing in respect of Rent (including Supplemental Rent) theretofore
accruing) (offsetting against such amount, subject to
32
the terms of the Cash Collateral Agreement, the aggregate amount of the Cash
Collateral) immediately upon written demand of the Lessor the Lessor's interest
in the Property at any time during the Term when the Lessor ceases to have title
as contemplated by Section 12.1.
------------
ARTICLE XXI.
21.1 Renewal. (a) Subject to the conditions set forth herein, the Lessee
-------
shall have the option (the "Renewal Option") by written request (the "Renewal
-------------- -------
Request") to the Lessor and the Agent (which request the Agent shall promptly
-------
forward to each Participant) given not later than 180 days prior to the Initial
Expiration Date, to renew the Term for an additional one-year period commencing
on the date following the Expiration Date then in effect. No later than the date
(the "Renewal Response Date") which is ninety (90) days after such request has
---------------------
been delivered to each of the Lessor and the Agent, the Lessor will notify the
Lessee in writing (with a copy to Agent) whether or not it consents to such
Renewal Request (which consent may be granted or denied in its sole discretion
and may be conditioned on receipt of such financial information or other
documentation as may be specified by the Lessor including without limitation a
satisfactory appraisal of the Property), provided that if the Lessor shall fail
to notify the Lessee on or prior to the Renewal Response Date, it shall be
deemed to have denied such Renewal Request. If the Lessor shall have consented
to the Renewal Request, the Renewal Term contemplated by such request shall
become effective as of the Expiration Date then in effect after the Lessor has
consented to such Renewal Request (each an "Extension Effective Date"); provided
------------------------
that such renewal shall be subject to and conditioned upon the following:
(A) on both the Extension Effective Date and the date of
the Renewal Request, (i) no Lease Default or Lease Event of
Default shall have occurred and be continuing, and (ii) the
Lessor and the Agent shall have received a Responsible Officer's
Certificate of the Lessee as to the matters set forth in clause
------
(i) above,
---
(B) the Lessee shall not have exercised the Remarketing
Option, and
(C) the Participants shall have agreed to extend the
Maturity Date contemporaneously therewith pursuant to Section 3.6
of the Participation Agreement such that the Renewal Term will
expire on the same date as the extended Maturity Date.
(b) Any Renewal Term of this Lease shall be on the same terms and
conditions as are set forth in this Lease for the original Term, with such
modifications thereto, if any, as the parties hereto and to the other Operative
Documents may negotiate based upon the current credit information regarding the
Lessee, interest rates and such other factors as the Lessor may consider
relevant. No more than two Renewal Terms shall be permitted hereunder.
ARTICLE XXII.
22.1 Option to Remarket. Subject to the fulfillment of each of the
------------------
conditions set forth in this Section 22.1, the Lessee shall have the option (the
------------
"Remarketing Option") to market
------------------
33
for the Lessor and complete the sale of all, but not less than all, of the
Lessor's interest in the Property on the Expiration Date for the Lessor.
The Lessee's effective exercise and consummation of the Remarketing Option
shall be subject to the due and timely fulfillment of each of the following
provisions as of the dates set forth below.
(a) Not later than one hundred 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
(except by delivery of a Purchase Notice and consummation of the exercise of the
Purchase Option prior to the earlier of (i) the Expiration Date or (ii) the date
on which the Lessor enters into a binding contract to sell the Property pursuant
to the exercise of the Remarketing Option).
(b) The Lessee shall deliver to the Lessor an Environmental Audit of
the Property together with its notice of exercise of the Remarketing Option.
Such Environmental Audit shall be prepared by an environmental consultant
selected by the Lessor following consultation with the Lessee, in the Lessor's
reasonable discretion and shall contain conclusions reasonably satisfactory to
the Lessor as to the environmental status of the Property. If such Environmental
Audit indicates any material exceptions reasonably requiring remedy or further
investigation, the Lessee shall have also delivered a Phase Two environmental
assessment by such environmental consultant prior to the Expiration Date showing
the completion of the remediation of such exceptions, if any, in compliance with
Environmental Laws or such further investigation as required.
(c) On the date of the Lessee's notice to the Lessor of the Lessee's
exercise of the Remarketing Option, no Lease Event of Default or Lease Default
shall exist, and thereafter, no uncured Lease Event of Default or Lease Default
shall exist.
(d) The Lessee shall have completed in all material respects all
restoration and rebuilding of the Property pursuant to Section 15.1(e) and
---------------
shall have fulfilled in all material respects all of the conditions and
requirements in connection therewith pursuant to said Sections, by the date on
which the Lessor receives the Lessee's notice of the Lessee's exercise of 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 restoration and remodeling commenced prior to the Expiration Date. The
Lessee shall not have been excused pursuant to Section 13.1 from complying with
------------
any Applicable Law that involved the extension of the ultimate imposition of
such Applicable Law beyond the last day of the Term. Any Permitted Exceptions on
the Property that were contested by the Lessee shall have been removed.
(e) During the Marketing Period, the Lessee shall, as nonexclusive
agent for the Lessor, use commercially reasonable efforts to sell the Lessor's
interest in the Property on or prior to the Expiration Date (without diminishing
the Lessee's obligation to consummate the sale on the Expiration Date) 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 and
compensating brokers and making the Property available for inspection by
prospective purchasers. The Lessee shall promptly upon request permit inspection
of the Property and any
34
maintenance records relating to the Property by the Lessor, any Participant and
any potential purchasers, and shall otherwise do all things necessary to sell
and deliver possession of the Property to any purchaser. All such marketing of
the Property shall be at the Lessee's sole expense. The Lessee shall allow the
Lessor and any potential qualified purchaser reasonable access to the Property
for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor and the Agent, and
the Lessor will have the right to review the same and the right to submit any
one or more bids. All bids shall be on an all-cash basis unless the Lessor, the
Agent and the Participants shall otherwise agree in their sole discretion. The
Lessee shall procure bids from one or more bona fide prospective purchasers and
shall deliver to the Lessor and the Agent 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 Property. 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, the Agent and the
Participants shall otherwise agree in their sole discretion.
(g) In connection with any such sale of the Property, the Lessee will
provide to the purchaser all customary "seller's" indemnities, representations
and warranties regarding title, absence of Liens (except Lessor Liens) and the
condition of the Property, as well as such other terms and conditions as may be
negotiated between the Lessee and the purchaser. The Lessee shall have obtained,
at its cost and expense, and with the reasonable cooperation of Lessor, 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 the Property. 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 and Liens created by the Operative
Documents. Any agreement as to such sale shall be made subject to the Lessor's
rights hereunder.
(h) The Lessee shall pay directly, and not from the sale proceeds,
all prorations, credits, costs and expenses of the sale of the Property, whether
incurred by the Lessor, the Participants or the Lessee, including without
limitation, the cost of all title insurance, surveys, environmental reports,
appraisals, transfer taxes, the Lessor's, the Participants' and the Agent's
reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow
fees, recording fees, and all applicable documentary and other transfer taxes
(except the foregoing shall not prevent the Lessee from negotiating for the
Person buying the Property to bear some or all of such costs).
(i) The Lessee shall pay to the Agent on the Expiration Date (or to
such other Person as the Lessor shall notify the Lessee in writing, or in the
case of Supplemental Rent, to the Person entitled thereto) an amount equal to
the Residual Value Guarantee Amount, plus (without duplication) all Rent and
----
all other amounts hereunder which have accrued or will accrue prior to or as of
the Expiration Date, in the type of funds specified in Section 3.4 hereof.
-----------
(j) If, within ninety (90) days prior to the Expiration Date, it is
determined (based upon the highest bid by a purchaser to purchase the Property
pursuant to paragraph (f) of this Section 22.1) that there would, after
------------- ------------
giving effect to the proposed sale of the Property, be a
35
Shortfall Amount, the Lessee (i) shall cause to be delivered to the Lessor and
the Agent the End of Term Report required by Section 13.2 of the Participation
Agreement and (ii) shall on the Expiration Date pay to the Agent (or to such
other person as the Lessor shall notify the Lessee in writing), the amounts (not
to exceed the Shortfall Amount) required to be paid pursuant to Section 13.2 of
the Participation Agreement.
(k) The purchase of the Property shall be consummated on the
Expiration Date following the payment by the Lessee pursuant to paragraphs (i)
--------------
and (j) above and contemporaneously with the Lessee's surrender of the Property
---
pursuant to Section 19.1(b) and the gross proceeds (the "Gross Proceeds") of
--------------- --------------
the sale of the Property (i.e., without deduction for any marketing, closing or
other costs, prorations or commissions) shall be paid directly to the Agent.
(l) The Lessee shall not be entitled to exercise or consummate the
Remarketing Option if a circumstance that would permit the Lessor to require the
Lessee to repurchase the Property under Section 16.3 exists and is continuing.
------- ----
(m) No subleases affecting the Property shall be in effect on the
Expiration Date.
(n) If the payment made by the Lessee pursuant to this Section 22.1
is equal to the sum of the Termination Value plus all other amounts owing in
respect of Rent (including Supplemental Rent) theretofore accruing, the Lessor
shall transfer, free and clear of Lessor Liens and Liens under the Operative
Documents to the Lessee's designee, all of the Lessor's right, title and
interest in and to the Property in accordance with Section 19.1(a).
---------------
If one or more of the foregoing provisions shall not be fulfilled as of the
date set forth above, 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 the Property, in which event all of
the Lessee's rights under this Section 22.1 shall immediately terminate and the
------------
Lessee shall be obligated to vacate the Property on the Expiration Date and
comply with the obligations set forth in Section 22.3. 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 the Property.
If the Lessee has paid the Residual Value Guarantee Amount as required
herein, proceeds from a sale of the Property pursuant to the Remarketing Option
or, if not sold as provided in this Section 22.1 from a sale of the Property
------------
occurring thereafter shall be distributed as provided in Section 3.14 of the
Participation Agreement.
22.2 Certain Obligations Continue. During the Marketing Period, the
----------------------------
obligation of the Lessee to pay Rent (including the installment of Basic Rent
due on the fifth anniversary of the Closing Date or at the end of any Renewal
Term, as the case may be) shall continue undiminished until payment in full to
the Lessor, for deposit into an account with the Agent, of the Gross Proceeds,
the Residual Value Guarantee Amount and (without duplication) all other amounts
due to the Lessor with respect to the Property under the Operative Documents.
The Lessor shall have the right, but shall be under no duty, to solicit bids, to
inquire into the efforts of
36
the Lessee to obtain bids or otherwise to take action in connection with any
such sale, other than as expressly provided in this Article XXII.
------------
22.3 Support Obligations. In the event that (A) the Lessee does not elect
-------------------
to purchase the Property on the Expiration Date, (B) this Lease is terminated
without a purchase of the Property by the Lessee as expressly permitted herein,
or (C) pursuant to the Lessor's exercise of remedies under Article XVII, this
------------
Lease is terminated, the Lessee shall, upon the request of the Lessor, exercise
all commercially reasonable efforts to provide the Lessor or other purchaser of
the Property, effective on the Expiration Date or earlier termination of this
Lease, with (i) all permits, certificates of occupancy, governmental licenses
and authorizations necessary to use and operate the Property for its intended
purposes (to the extent such items are transferable), (ii) such easements,
licenses, rights-of-way and other rights and privileges in the nature of an
easement as are reasonably necessary or desirable in connection with the use,
repair, access to or maintenance of the Property, and (iii) any service
agreements, contracts or subcontracts in existence at such time relating to the
use and operation of the Property, in each case to the extent assignable. All
assignments, licenses, easements, agreements and other deliveries required by
clauses (i), (ii) and (iii) of this Section 22.3 shall be in form satisfactory
------------
to the Lessor and shall be fully assignable (including both primary assignments
and assignments given in the nature of security) without payment of any fee,
cost or other charge.
ARTICLE XXIII.
23.1 Holding Over. If the Lessee shall for any reason remain in
------------
possession of the Property after the expiration or earlier termination of this
Lease (unless the Property is conveyed to the Lessee), such possession shall be
as a tenancy at sufferance during which time capitalized interest and yield
shall continue to accrue, to the extent such possession occurs prior to the
Basic Term Commencement Date, or the Lessee shall pay as Supplemental Rent, to
the extent such possession occurs from and after the Basic Term Commencement
Date, that would be payable by the Lessee hereunder were the Lease then in full
force and effect and the Lessee shall continue to pay Basic Rent (or capitalized
interest and yield shall continue to accrue) at an annual rate equal to 110% of
the average rate of Basic Rent (or capitalized interest and yield) payable
hereunder during the Basic Term or prior to the Basis Term Commencement Date, as
the case may be. Such Basic Rent shall be payable from time to time upon demand
by the Lessor. During any period of tenancy at sufferance, the Lessee shall,
subject to the second preceding sentence, be obligated to perform and observe
all of the terms, covenants and conditions of this Lease, but shall have no
rights hereunder other than the right, to the extent given by law to tenants at
sufferance, to continue its occupancy and use of the Property. Nothing contained
in this Article XXIII shall constitute the consent, express or implied, of the
-------------
Lessor to the holding over of the Lessee after the expiration or earlier
termination of this Lease (unless the Property is conveyed to the Lessee), and
nothing contained herein shall be read or construed to relieve the Lessee of its
obligations to purchase or remarket the Property on the Expiration Date pursuant
to Article XX or Article XXII or as preventing the Lessor from maintaining a
---------- ------------
suit for possession of the Property or exercising any other remedy available to
the Lessor at law or in equity or hereunder.
37
ARTICLE XXIV.
24.1 Risk of Loss. The Lessee assumes all risks of loss arising from any
------------
Casualty or Condemnation which arises or occurs prior to the Basic Term
Commencement Date or while the Lessee is in possession of the Property and all
liability for all personal injuries and deaths and damages to property suffered
by any Person or property on or in connection with the Property which arises or
occurs prior to the Basic Term Commencement Date or while the Lessee is in
possession of the Property, except in each case to the extent any such loss or
liability is primarily caused by the gross negligence or willful misconduct of a
Lessor Party; provided, however, that the Lessee shall have no obligation under
-------- -------
this Section 24.1 on account of any such loss or liability arising prior to the
------------
Basic Term Commencement Date, except as follows:
(i) The Lessee shall be liable to the Lessor under this Section
-------
24.1 for all such losses and liabilities Within the Lessee's Control,
----
subject to the following:
(A) if any such loss or liability is not related to an
inability or failure to complete construction of any Improvements
(or if such loss or liability is related to an inability or
failure to complete construction of any Improvements but also
constitutes or arises out of a Fully Indemnifiable Event), the
Lessee's obligations in this Section 24.1 shall not be subject
------------
to any monetary limitation; and
(B) if such loss or liability is related to an inability or
failure to complete construction of any Improvements and such
loss or liability does not constitute or arise out of a Fully
Indemnifiable Event, the Lessee's monetary obligation provided in
this Section 24.1, together with all other amounts payable under
------------
clause (5)(A)(ii) of Section 13.1 of the Participation Agreement
or Section 13.10 of the Participation Agreement and any similarly
limited payment obligation of the Lessee in connection with the
return or sale of the Property under this Lease shall not exceed
the maximum Residual Value Guarantee Amount.
(ii) If any Lessor Party incurs any such loss or liability for
which the Lessee is not liable pursuant to this Section 24.1, the
------------
amount of such loss or liability shall, if such Lessor Party shall so
request by a written notice to the Lessor and the Lessor shall give
its prior written consent thereto, be capitalized pursuant to Section
3.7(e)(ii) of the Participation Agreement.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE LESSEE HEREBY WAIVES THE PROVISIONS
OF THE CALIFORNIA CIVIL CODE SECTIONS 1932(1), 1932(2) AND 1933(4), AND ANY AND
ALL OTHER APPLICABLE EXISTING OR FUTURE LAWS, ORDINANCES AND GOVERNMENTAL
REGULATIONS PERMITTING THE TERMINATION OF THIS LEASE AS A RESULT OF THE DAMAGE
OR DESTRUCTION OF THE PROPERTY BY FIRE, THE ELEMENTS, CASUALTIES, THEFTS,
RIOTS, WARS OR OTHERWISE, AND THE LESSOR SHALL IN NO EVENT BE ANSWERABLE OR
ACCOUNTABLE FOR ANY RISK OF LOSS OF OR DECREASE IN THE ENJOYMENT AND BENEFICIAL
USE OF THE PROPERTY AS A RESULT OF ANY SUCH EVENT.
38
ARTICLE XXV.
25.1 Subletting and Assignment. The Lessee may, without the consent of
-------------------------
the Lessor, sublease the Property or portion thereof to any Person, provided,
--------
that no such sublease shall, in the opinion of the Lessor, adversely affect any
of the Lessor's interests, rights or remedies under the Lease or the Lessor's
title to or interest in the Property. No assignment, sublease or other
relinquishment of possession of the 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 Lease as to the Property,
or portion thereof, so assigned or sublet. Any sublease of the Property shall be
made subject to and subordinated to this Lease and to the rights of the Lessor
hereunder, shall expressly provide for termination at or prior to the earlier of
the applicable Expiration Date or other date of termination of this Lease unless
the Lessee shall have purchased the Property pursuant to Article XX. No assignee
----------
or sublessee shall use the Property in a manner which is substantially different
from the manner in which the Property is used or intended for use by the Lessee
or in any manner not otherwise permitted under Section 8.2, without the prior
-----------
written consent of the Lessor.
ARTICLE XXVI.
26.1 Estoppel Certificates. At any time and from time to time upon not
---------------------
less than twenty (20) 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 (but not
----------------
more than four times per year unless required to satisfy the requirements of any
sublessees and only to the extent that the required information has been
provided to the Certifying Party by the other party) a certificate signed by an
individual having the office of vice president or higher in the Certifying Party
certifying that this Lease is in full force and effect (or that this 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 Lease as the Requesting
Party may reasonably request. Any such certificate furnished pursuant to this
Article XXVI may be relied upon by the Requesting Party, and any existing or
------------
prospective mortgagee, purchaser or lender, and any accountant or auditor, of,
from or to the Requesting Party (or any Affiliate thereof).
ARTICLE XXVII.
27.1 Right to Inspect. During the Term, the Lessee shall upon reasonable
----------------
notice from the Lessor (such notice to be given five (5) Business Days in
advance, except in case of emergency or where a Lease Event of Default has
occurred and is continuing), permit the Lessor, the Agent and their respective
authorized representatives to inspect the Property during normal business hours
and so long as no Event of Default has occurred and is continuing, such
inspections shall be not more than once each quarter, provided that such
inspections shall not unreasonably interfere with the Lessee's business
operations at the Property, and provided, further that the Lessee may, if it so
chooses, be present during such inspections.
39
27.2 No Waiver. No failure by the Lessor or the Lessee to insist upon the
---------
strict performance of any term hereof or to exercise any right, power or remedy
upon a default hereunder, and no acceptance of full or partial payment of Rent
during the continuance of any such default, shall constitute a waiver of any
such default or of any such term. To the fullest extent permitted by law, no
waiver of any default shall affect or alter this Lease, and this Lease shall
continue in full force and effect with respect to any other then existing or
subsequent default.
ARTICLE XXVIII.
28.1 Acceptance of Surrender. No surrender to the Lessor of this Lease or
-----------------------
of all or any portion of the Property or of any part 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
Participation Agreement and termination of the Commitments, the Agent, and no
act by the Lessor or the Agent or any representative or agent of the Lessor or
the Agent, other than a written acceptance, shall constitute an acceptance of
any such surrender.
ARTICLE XXIX.
29.1 No Merger of Title. There shall be no merger of this 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
Lease or the leasehold estate created hereby or any interest in this Lease or
such leasehold estate, or (b) any estate of others in the Property created by
any sublease permitted under this Lease, except as may expressly be stated in a
written instrument duly executed and delivered by the appropriate Person.
ARTICLE XXX.
30.1 Notices. All notices, demands, requests, consents, approvals and other
-------
communications hereunder shall be in writing and delivered (i) personally, (ii)
by a nationally recognized overnight courier service, (iii) by mail (by
registered or certified mail, return receipt requested, postage prepaid) or (iv)
by facsimile, addressed to the respective parties, as follows:
If to the Lessee:
BEA Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Vice President of Real Estate and Corporate Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
40
BEA Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Vice President - Legal
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Lessor:
ABN AMRO Leasing, Inc.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Agent:
ABN AMRO Bank N.V.
Agency Services Department
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxx
Telephone (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
ABN AMRO BANK N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
ABN AMRO Bank N.V.
Credit Administration
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such additional parties and/or other address as such party may hereafter
specify in writing in accordance with this Lease, and shall be effective upon
receipt or refusal thereof.
41
ARTICLE XXXI.
31.1 Miscellaneous. Anything contained in this 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 Lease shall survive such expiration or earlier termination. If any term or
provision of this Lease or any application thereof shall be declared invalid or
unenforceable, the remainder of this 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 Lease, including any right or option described in
Articles XV, XVI, XX, XXI or XXII, 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, acknowledgment and delivery of this Lease.
31.2 Amendments and Modifications. Subject to the requirements,
----------------------------
restrictions and conditions set forth in the Participation Agreement, neither
this Lease, any Lease Supplement 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.
31.3 Successors and Assigns. All the terms and provisions of this Lease
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
31.4 Headings and Table of Contents. The headings and table of contents in
------------------------------
this Lease are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
31.5 Counterparts. This 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.
31.6 GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California without reference to
conflicts of law rules.
31.7 Limitations on Recourse. The parties hereto agree that the Lessor
-----------------------
shall have no personal liability whatsoever to the Lessee or its respective
successors and assigns for any claim based on or in respect of this Lease or any
of the other Operative Documents or arising in any way from the transactions
contemplated hereby or thereby; provided, however, that the 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) for liabilities that
may result from the incorrectness of any representation or warranty expressly
made by it in Section 8.1 of the Participation Agreement or from the failure of
the Lessor to perform its covenants and agreements set forth in Section 10.4(a)
of the Participation Agreement, or (c) for any Taxes based on or measured by any
fees, commission or compensation received by it for acting as the Lessor as
contemplated by
42
the Operative Documents. It is understood and agreed that, except as provided in
the preceding proviso: (i) the 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 the Lessor to the Lessee
are solely nonrecourse obligations except to the extent that it has received
payment from others and are enforceable solely against the Lessor's interest in
the Property; and (iii) all such personal liability of the Lessor is expressly
waived and released as a condition of, and as consideration for, the execution
and delivery of the Operative Documents by the Lessor.
31.8 Original Lease. The single executed original of this Lease marked
"THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on the signature page
thereof and containing the receipt of the Agent therefor on or following the
signature page thereof shall be the Original Executed Counterpart of this Lease
(the "Original Executed Counterpart"). To the extent that this 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
Lease may be created through the transfer or possession of any counterpart other
than the Original Executed Counterpart.
[signature page follows]
43
IN WITNESS WHEREOF, the parties have caused this Lease be duly executed and
delivered as of the date first above written.
BEA SYSTEMS, INC.,
a Delaware corporation, as Lessee
By:____________________________________
Name:__________________________________
Title:_________________________________
ABN AMRO LEASING, INC.,
an Illinois corporation, as Lessor
By:____________________________________
Name:__________________________________
Title:_________________________________
STATE OF _________ )
) SS.:
COUNTY OF ______ )
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared _______________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged [himself/herself] to be a _______________ of
ABN AMRO LEASING, INC., the within named bargainor, a corporation, and that
[he/she] as such __________________, being duly authorized so to do, executed
the foregoing instrument for the purposes therein contained by signing the name
of the corporation by [himself/herself] as such Vice President.
WITNESS my hand and seal, at office, on this the ____ day of _______,
2001.
______________________________
Notary Public
My Commission Expires:
____________________________
STATE OF ___________ )
) SS.:
COUNTY OF _________ )
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared __________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged [himself/herself] to be the _________ of BEA
SYSTEMS, INC., the within named bargainor, a corporation, and that [he/she] as
such _________, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by [himself/herself] as such _________.
WITNESS my hand and seal, at office, on this the ____ day of ______,
2001.
______________________________
Notary Public
My Commission Expires:
____________________________
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of January ___, 2001.
ABN AMRO BANK N.V., as Agent
By:___________________________________
Name:_________________________________
Title:________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
--------------------------------------------------------------------------------
Recording requested by, and when
recorded, please return to: [SEE DOC#42702 FOR EXECUTION
McGuireWoods LLP VERSION OF LEASE SUPPLEMENT]
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ATTN: W. Xxxx Xxxxx, Esq.
--------------------------------------------------------------------------------
(Space Above This Line Reserved
for Recorder's Use Only)
EXHIBIT A TO THE LEASE
LEASE SUPPLEMENT NO. 1,
MEMORANDUM OF LEASE, DEED OF TRUST AND SECURITY AGREEMENT
THIS LEASE SUPPLEMENT NO. 1, MEMORANDUM OF LEASE, DEED OF TRUST AND
SECURITY AGREEMENT (this "Lease Supplement") dated as of February 13, 2001
----------------
between ABN AMRO LEASING, INC., an Illinois corporation, not in its individual
capacity but solely as lessor (the "Lessor"), and BEA SYSTEMS, INC., a Delaware
------
corporation, as lessee (the "Lessee").
------
WHEREAS, the Lessor is the fee owner of the Land Interest described on
Schedule 1 hereto (the "Land Interest") and wishes to lease the Land Interest to
-------------
the Lessee; and
WHEREAS, the Lessee desires to grant a deed of trust lien on its leasehold
interest in the Land Interest created by the Lease to Chicago Title Company, as
Trustee (the "Trustee") for the benefit of the Lessor to secure the Obligations
-------
(as hereinafter defined) of the Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions; Interpretation. For purposes of this Lease
---------------------------
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix 1 to the Master Lease, dated as
of February 13, 2001, between the Lessee and the Lessor; and the rules of
interpretation set forth in Appendix 1 to the Lease shall apply to this Lease
Supplement.
SECTION 2. Land Interest. Attached hereto as Schedule 1 is the
-------------
description of a certain Land Interest. Effective upon the execution and
delivery of this Lease Supplement by the Lessor and the Lessee, the Property
shall be subject to the terms and provisions of the Lease. Subject to the terms
and conditions of the Lease, the Lessor hereby leases to the Lessee for the Term
(as defined below) of the Lease, the Lessor's interest in the Land Interest, and
the Lessee hereby
Exhibit A-1
agrees, expressly for the direct benefit of the Lessor, to lease from the Lessor
for the Term, the Lessor's interest in the Land Interest.
SECTION 3. Parties and Addresses. The Lease is dated as of February 13,
---------------------
2001, between the Lessor, whose principal office is at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 and the Lessee, whose principal office is 0000 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000.
SECTION 4. Lease Term. The term of the Lease shall consist of an Agency
----------
Term beginning on February 13, 2001 and ending on the earlier of the Completion
of Construction and February 13, 2003, and a Basic Term commencing on the day
following the last day of the Agency Term and ending on February 13, 2006 unless
the Term is renewed or earlier terminated in accordance with the provisions of
the Lease. The Lease contains two option periods of one year each which gives
the Lessee the right, with the Participants' prior written consent and subject
to the terms thereof, to extend the term of the Lease to no later than February
13, 2008.
SECTION 5. Ownership of the Property.
-------------------------
(a) It is the intent of the parties hereto that: (i) the Lease constitutes
an "operating lease" pursuant to Statement of Financial Accounting Standards No.
13, as amended and interpreted, for purposes of the Lessee's financial
reporting, and (ii) for purposes of federal, state, local and foreign Taxes,
including without limitation income or franchise taxes (and any other tax
imposed on or measured by income, including any withholding taxes), and
documentary, intangibles, and transfer taxes, the transaction contemplated
hereby is a financing arrangement and preserves ownership in the Property in the
Lessee. Each of the Parties agrees that it will not, nor will any Person
controlled by it, or under common control with it, directly or indirectly, at
any time take any action or fail to take any action with respect to the filing
of any Tax return, report or other statement, including any income or franchise
tax return or amended income or franchise tax return, inconsistent with the
intention of the parties expressed in this Section 5.1(a) unless, in the case of
Lessor or any Participant, required to do so by an appropriate taxing authority
or after a clearly applicable change in law or as a protective response to a
proposed adjustment by a Governmental Authority, provided, however, that if an
appropriate taxing authority shall require Lessor or any Participant to claim
any tax attributes or benefits, such Person shall promptly notify Lessee thereof
and shall permit Lessee to contest such requirement in a manner consistent with
the contest provisions of Section 13.5(f). Nevertheless, the Lessee
acknowledges and agrees that neither the Agent, the Lessor nor any Participant
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) Anything to the contrary in the Operative Documents notwithstanding,
the Lessor and the Lessee intend and agree that with respect to the nature of
the transactions evidenced by the Lease in the context of federal, state and
local Taxes and in the context of the exercise of remedies under the Operative
Documents, including, without limitation, in the case of any insolvency or
receivership proceedings or a petition under the United States bankruptcy laws
or any other applicable insolvency laws or statute of the United States of
America or any State or Commonwealth thereof or any foreign country affecting
the Lessee, the Lessor, or any
Exhibit A-2
Participant or any enforcement or collection actions arising out of or relating
to bankruptcy or insolvency laws, (i) the transactions evidenced by the Lease
shall be deemed to be loans made by the Lessor and the Participants as unrelated
third party lenders to the Lessee secured by the Property, (ii) the obligations
of the Lessee under the Lease to pay Basic Rent, Supplemental Rent, Asset
Termination Value, Purchase Option Price, Partial Purchase Option Price or
Residual Value Guarantee Amount in connection with a purchase of the Property
pursuant to the Lease shall be treated as payments of interest on and principal
of, respectively, loans from the Lessor and the Participants to the Lessee, and
(iii) the Lease grants a security interest and mortgage or deed of trust or
lien, as the case may be, in the Property to the Lessor and assigned by the
Lessor to the Agent for the benefit of the Participants to secure the Lessee's
performance under and payment of all amounts under the Lease and the other
Operative Documents.
(c) Specifically, without limiting the generality of subsections (a) and
-------------------
(b) of this Section 5, the parties hereto intend and agree that, for purposes of
--- ---------
filing federal, state and local returns, reports and other statements relating
to income or franchise taxes, or any other taxes imposed upon or measured by
income, (i) the Lessee shall be entitled to take any deduction, credit,
allowance or other reporting position consistent with its status as owner of the
Property; and (ii) neither the Lessor nor any Participant shall take an initial
position on its federal, state and local returns, reports and other statements
relating to income or franchise taxes that is inconsistent with the Lessee's
status as owner of the Property.
(d) Reserved.
(e) In the event that, after the date hereof, the UCC as enacted and in
effect in any applicable jurisdiction shall be revised or amended, the Lessee,
the Lessor, the Agent and the Participants shall negotiate in good faith to
enter into such amendments to the Operative Documents as may be reasonably
necessary or desirable to reflect or otherwise address such revisions or
amendments.
(f) Specifically, without limiting the generality of subsection (b) of
this Section 5, in order to secure the Lessee's obligation to pay Basic Rent,
---------
Supplemental Rent, Asset Termination Value, the Residual Value Guarantee Amount,
the Purchase Option Price, the Partial Purchase Option Price, and all other
obligations owing by the Lessee under the Operative Documents (the
"Obligations"), the Lessee hereby grants, conveys, sells, transfers, assigns and
-----------
sets over unto the Trustee for the benefit of the Lessor, WITH POWER OF SALE and
right of entry and possession, all of the Lessee's right, title and interest in
and to the following (collectively, the "Collateral"):
----------
(i) all right, title and interest of the Lessee in and to the
Property or any part thereof and the reversions, remainders, rents, issues
and profits thereof;
(ii) all right, title and interest of the Lessee in and to all
substitutes and replacements of, and all additions and improvements to, any
Improvements and the Fixtures, subsequently acquired by the Lessee or
constructed, assembled or placed on the Land Interest, immediately upon
such acquisition, release, construction, assembling or placement,
including, without limitation, any and all building materials whether
stored at
Exhibit A-3
the Property or offsite, and, in each such case, without any further
mortgage, conveyance, assignment or other act by the Lessee;
(iii) all right, title and interest of the Lessee in, to and under
all books and records relating to or used in connection with the operation
of the Property or any Fixtures or any part thereof;
(iv) all right, title and interest of the Lessee in and to all
insurance policies (including title insurance policies) required to be
maintained by the Lessee pursuant to the Lease, including the right to
collect and receive such proceeds; and all awards and other compensation,
including the interest payable thereon and the right to collect and receive
the same, made to the owner of the Property for the taking by eminent
domain, condemnation or otherwise, of all or any part of the Property or
any easement or other right therein;
(v) all right, title and interest of the Lessee in and to (i) all
consents, licenses, building permits, certificates of occupancy and other
governmental approvals relating to construction, completion, occupancy, use
or operation of the Property or any part thereof, provided that any such
--------
consent, license, permit, certificate or approval that by its terms or by
operation of law would become void, voidable, terminable or revocable or
would result in a breach or default thereunder or under any applicable law
if subjected to the lien granted pursuant to this clause (v) is expressly
----------
excepted and excluded from this clause (v) to the extent necessary to avoid
----------
such result, and (ii) all plans and specifications relating to the
Property, in each case to the extent assignable;
(vi) all Rent and all other rents, payments, purchase prices,
receipts, revenues, issues and profits payable under this Lease or pursuant
to any other lease with respect to the Property;
(vii) all proceeds, both cash and noncash, of the foregoing and any
items acquired in substitution of, or replacement for, any of the
foregoing; and
(viii) all right, title and interest of the Lessee in and to all of
the Operative Documents, including, without limitation, the Lease
Supplement, regardless of whether the interest of the Lessee therein is
that of lessee, sublessee, sublessor or borrower.
(g) Specifically, without limiting the generality of subsection (b) of
this Section 5, the Lessor and the Lessee further intend and agree that, for the
---------
purpose of securing the Lessee's obligations for the repayment of the loans from
the Lessor and the Participants to the Lessee, (i) the Lease shall also be
deemed to be a security agreement and financing statement within the meaning of
Article 9 of the Uniform Commercial Code (and specifically, a construction
mortgage, as said term is defined in Section 9-313(1)(c) of the Uniform
Commercial Code), a fixture filing and a real property mortgage or deed of trust
of the Property; (ii) the conveyance provided for in Article II of the Lease
shall be deemed to be a grant by the Lessee to the Lessor and assigned by the
Lessor to the Agent for the benefit of the Participants, of a mortgage lien and
security interest in all of the Lessee's right, title and interest in and to the
Property, except to the
Exhibit A-4
extent that all or a portion of the Property is released from the Lease in
accordance with the Operative Documents, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, investments, securities or
other property, whether in the form of cash, investments, securities or other
property (it being understood that the Lessee hereby mortgages and warrants and
grants a security interest in the Property to Lessor to secure such loans);
(iii) the possession by the Lessor or any of its agents of any notes and such
other items of the Collateral as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" for purposes of perfecting the security interest pursuant to Section 9-
305 of the Uniform Commercial Code; and (iv) notifications to Persons holding
such property, and acknowledgments, receipts or confirmations from financial
intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed
to have been given for the purpose of perfecting such security interest under
Applicable Law. The Lessor and the Lessee shall, to the extent consistent with
the Lease, take such actions and execute, deliver, file and record such other
documents, financing statements, mortgages and deeds of trust as may be
necessary to ensure that, if the Lease were deemed to create a security interest
in the Property in accordance with this Section, such security interest would be
deemed to be a perfected security interest of first priority under Applicable
Law and will be maintained as such throughout the Term.
SECTION 6. Lease Events of Default and Remedies. Sections 17.2 through
------------------------------------ ---------------------
17.5 of the Lease, which are hereby incorporated by reference, set forth the
----
remedies available to the Lessor and the Trustee in the event of a Lease Event
of Default.
SECTION 7. Purchase Option. Sections 17.2(i) and Article XX of the Lease
--------------- ---------------- ----------
contain various purchase options which may be exercised by the Lessee during the
term of the Lease subject to the terms and conditions of said Sections of the
Lease.
SECTION 8. Liens. (a) THIS LEASE SUPPLEMENT IS SUPERIOR TO A DEED OF TRUST
-----
IN FAVOR OF ABN AMRO BANK N.V., AS AGENT (THE "AGENT") UNDER THE PARTICIPATION
-----
AGREEMENT DATED AS OF FEBRUARY 13, 2001 AS AMENDED OR SUPPLEMENTED, BETWEEN THE
LESSOR, THE AGENT AND THE TRUSTEE NAMED THEREIN.
(b) NOTICE IS HEREBY GIVEN THAT NEITHER THE LESSOR, ANY PARTICIPANT NOR
THE AGENT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED
OR TO BE FURNISHED TO THE LESSEE, OR TO ANYONE HOLDING THE PROPERTY OR ANY PART
THEREOF THROUGH OR UNDER THE LESSEE, AND THAT NO MECHANICS' OR OTHER LIENS FOR
ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF
THE LESSOR IN AND TO THE PROPERTY.
SECTION 9. Ratification. Except as specifically modified hereby, the
------------
terms and provisions of the Lease are hereby ratified and confirmed and remain
in full force and effect.
SECTION 10. Original Lease Supplement. The single executed original of
-------------------------
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
Exhibit A-5
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the Original
Executed Counterpart of this Lease Supplement (the "Original Executed
-----------------
Counterpart"). To the extent that this Lease Supplement 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 Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT
REFERENCE TO CONFLICTS OF LAW RULES.
SECTION 12. Counterpart Execution. This Lease Supplement may be executed
---------------------
in any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
SECTION 13. Incorporation by Reference. The terms and provisions of the
--------------------------
Lease are incorporated herein as if they were fully set forth herein and are
made a part of this Lease Supplement.
SECTION 14. Receipt. The Lessee hereby declares and acknowledges that the
-------
Lessee has received, without charge, a true copy of the Lease and this Lease
Supplement No. 1.
SECTION 15. Substitution of Trustee. From time to time, by a writing
-----------------------
signed and acknowledged by Lessor and recorded in the Office of the Recorder of
the County in which the Property is situated, Lessor may with the prior written
consent of Lessee, which consent shall not be unreasonably withheld (except that
Lessee's consent shall not be required during the continuance of any Lease Event
of Default) appoint another trustee to act in the place and stead of Trustee or
any successor. Such writing shall refer to this Lease Supplement No. 1,
Memorandum of Lease, Deed of Trust and Security Agreement and set forth the
date, book and page of its recordation. The recordation of such instrument of
substitution shall discharge Trustee herein named and shall appoint the new
trustee as the trustee hereunder with the same effect as if originally named
Trustee herein. A writing recorded pursuant to the provisions of this paragraph
shall be conclusive proof of the proper substitution of such new trustee.
[signature page follows]
Exhibit A-6
IN WITNESS WHEREOF, the parties have caused this Lease be duly executed and
delivered as of the date first above written.
BEA SYSTEMS, INC.,
a Delaware corporation, as Lessee
By:__________________________________
Name:________________________________
Title:_______________________________
ABN AMRO LEASING, INC.,
an Illinois corporation, as Lessor
By:__________________________________
Name:________________________________
Title:_______________________________
STATE OF ________ )
) SS.:
COUNTY OF ________ )
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared _______________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged [himself/herself] to be a _______________ of
ABN AMRO LEASING, INC., the within named bargainor, a corporation, and that
[he/she] as such __________________, being duly authorized so to do, executed
the foregoing instrument for the purposes therein contained by signing the name
of the corporation by [himself/herself] as such Vice President.
WITNESS my hand and seal, at office, on this the ____ day of _______,
2001.
______________________________
Notary Public
My Commission Expires:
____________________________
STATE OF __________ )
) SS.:
COUNTY OF __________ )
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared __________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged [himself/herself] to be the _________ of BEA
SYSTEMS, INC., the within named bargainor, a corporation, and that [he/she] as
such _________, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by [himself/herself] as such _________.
WITNESS my hand and seal, at office, on this the ____ day of ______,
2001.
______________________________
Notary Public
My Commission Expires:
____________________________
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of January ______, 2001.
ABN AMRO BANK N.V., as Agent
By:___________________________________
Name:_________________________________
Title:________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
SCHEDULE 1
TO LEASE SUPPLEMENT NO. 1
Land Interest Description
All that certain property in the City of San Xxxx, County of Santa Xxxxx, State
of California, described as follows:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map",
which Map was filed for record in the Office of the Recorder of the County
of Santa Xxxxx, State of California, on January 30, 2001, in Book 736 of
Maps, at pages 30, 31 and 32.
EXHIBIT B TO THE LEASE
LEGAL DESCRIPTION OF LAND INTEREST
All that certain property in the City of San Xxxx, County of Santa Xxxxx, State
of California, described as follows:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map",
which Map was filed for record in the Office of the Recorder of the County
of Santa Xxxxx, State of California, on January 30, 2001, in Book 736 of
Maps, at pages 30, 31 and 32.
