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Exhibit 10.2
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LEASE AND OPEN END MORTGAGE
THIS DOCUMENT SECURES FUTURE ADVANCES
Dated as of December 14, 1998
between
FORE SYSTEMS, INC.,
as the Lessee and Mortgagor
and
WILMINGTON TRUST COMPANY,
not in its individual capacity
except as expressly stated herein,
but solely as certificate trustee of
BRUSH CREEK BUSINESS TRUST II,
as the Lessor and Mortgagee
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Construction Program For a
Manufacturing/Office Facility
in Allegheny County, Pennsylvania
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This Lease and Open End Mortgage is subject to a lien in favor of the Lenders
under a Construction Loan Agreement dated as of the date hereof, among the
Lessee and the Lenders, as amended or supplemented from time to time. This Lease
has been executed in several counterparts. To the extent, if any, that this
Lease and Open End Mortgage 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 and Open End Mortgage may be created through the transfer or
possession of any counterpart other than the original counterpart containing the
receipt therefor executed by Mellon Bank, N.A. on or following the signature
page hereof.
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TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS.....................................................3
1.1. Definitions; Interpretation..............................................................................3
ARTICLE II. PURCHASE AND LEASE.............................................3
2.1. Acceptance and Lease of Property.........................................................................3
2.2. Acceptance Procedure.....................................................................................3
2.3. Lease Term...............................................................................................3
2.4. Title....................................................................................................3
2.5. Waiver by Lessor of Lien and Distraint...................................................................4
ARTICLE III. PAYMENT OF RENT...............................................4
3.1. Rent.....................................................................................................4
3.2. Payment of Basic Rent....................................................................................4
3.3. Supplement Rent..........................................................................................4
3.4. Method of Payment........................................................................................5
ARTICLE IV. QUIET ENJOYMENT................................................5
4.1. Quiet Enjoyment..........................................................................................5
ARTICLE V. NET LEASE, ETC..................................................5
5.1. Net Lease................................................................................................5
5.2. No Termination or Abatement..............................................................................6
5.3. No Bar...................................................................................................6
ARTICLE VI. SUBLEASES......................................................6
6.1. Subletting...............................................................................................6
6.2. Assignment of Subleases and Business Interruption Insurance to Lessor....................................7
ARTICLE VII. LESSEE ACKNOWLEDGMENTS.................................................7
7.1. Condition of the Property................................................................................7
7.2. Risk of Loss.............................................................................................8
ARTICLE VIII. POSSESSION AND USE OF THE PROPERTY, ETC........................................8
8.1. Utility Charges..........................................................................................8
8.2. Possession and Use of the Property.......................................................................8
8.3. Compliance with Requirements of Law and Insurance Requirements...........................................8
8.4. Assignment by Lessee.....................................................................................9
ARTICLE IX. MAINTENANCE AND REPAIR; RETURN..........................................9
9.1. Maintenance and Repair; Return...........................................................................9
ARTICLE X. MODIFICATIONS, ETC..............................................9
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10.1. Modifications, Substitutions and Replacements...........................................................9
ARTICLE XI. WARRANT OF TITLE; EASEMENTS............................................10
11.1. Warrant of Title.......................................................................................10
11.2. Grants and Releases of Easements; Lessor's Waivers.....................................................11
ARTICLE XII. PERMITTED CONTESTS....................................................11
12.1. Permitted Contests in Respect of Applicable Law........................................................11
12.2. Permitted Contests in Respect of Real Property Taxes...................................................12
12.3. Joinder of Lessor......................................................................................12
ARTICLE XIII. INSURANCE...................................................12
13.1. Public Liability and Workers' Compensation Insurance...................................................12
13.2. Hazard and Other Insurance.............................................................................13
13.3. Insurance Coverage.....................................................................................13
ARTICLE XIV. CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS.........................................14
14.1. Casualty and Condemnation..............................................................................14
14.2. Environmental Matters..................................................................................16
14.3. Notice of Environmental Matters........................................................................16
ARTICLE XV. TERMINATION OF LEASE..........................................17
15.1. Mandatory Partial or Complete Termination Upon Certain Events..........................................17
15.2. Termination Procedures.................................................................................17
ARTICLE XVI. EVENTS OF DEFAULT............................................18
16.1. Lease Events of Default................................................................................18
16.2. Remedies...............................................................................................20
16.3. Waiver of Certain Rights...............................................................................23
16.4. Ownership of Common Stock..............................................................................23
16.5. Limitation of Recourse During the Interim Term.........................................................24
ARTICLE XVII. LESSOR'S RIGHT TO CURE......................................24
17.1. The Lessor's Right to Cure the Lessee's Lease Defaults.................................................24
ARTICLE XVIII. PURCHASE PROVISIONS.................................................25
18.1. Purchase Option........................................................................................25
18.2. Expiration Date Purchase Obligation....................................................................25
18.3. Acceleration of Purchase Obligation....................................................................25
ARTICLE XIX. RENEWAL TERMS...............................................26
19.1. Renewal................................................................................................26
ARTICLE XX. REMARKETING OPTION.................................................27
20.1. Option to Market.......................................................................................27
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20.2. Certain Obligations Continue...........................................................................29
20.3. Termination of Operative Documents.....................................................................29
ARTICLE XXI. PROCEDURES RELATING TO PURCHASE OR REMARKETING..........................................30
21.1. Provisions Relating to the Exercise of Purchase Option or Obligation and Conveyance Upon
Remarketing and Conveyance Upon Certain Other Events...................................................30
ARTICLE XXII. ESTOPPEL CERTIFICATES............................................31
22.1. Estoppel Certificates..................................................................................31
ARTICLE XXIII. ACCEPTANCE OF SURRENDER.............................................31
23.1. Acceptance of Surrender................................................................................31
ARTICLE XXIV. NO MERGER OF TITLE.............................................32
24.1. No Merger of Title.....................................................................................32
ARTICLE XXV. INTENT OF THE PARTIES.............................................32
25.1. Ownership of the Property..............................................................................32
25.2. Open-End Mortgage......................................................................................33
ARTICLE XXVI. MISCELLANEOUS..................................................34
26.1. Survival; Severability; Etc............................................................................34
26.2. Amendments and Modifications...........................................................................34
26.3. No Waiver..............................................................................................34
26.4. Notices................................................................................................34
26.5. Successors and Assigns.................................................................................34
26.6. Headings and Table of Contents.........................................................................34
26.7. Counterparts...........................................................................................35
26.8. GOVERNING LAW..........................................................................................35
26.9. Limitations on Recourse................................................................................35
26.10. Original Lease.........................................................................................35
26.11. SUBMISSION OF JURISDICTION.............................................................................35
26.12. POWER TO CONFESS JUDGMENT..............................................................................36
26.13. POWER TO EXECUTE ON A JUDGMENT WITHOUT HEARING.........................................................36
26.14. No Merger..............................................................................................37
SCHEDULE 1 SCHEDULE 1 TO LEASE AND OPEN END MORTGAGE
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LEASE AND OPEN END MORTGAGE
THIS DOCUMENT SECURES FUTURE ADVANCES
THIS LEASE AND OPEN END MORTGAGE (this "Lease"), dated as of December
14, 1998, is between WILMINGTON TRUST COMPANY, a banking corporation organized
in the State of Delaware, having an office at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, not in its individual capacity,
except as otherwise expressly stated herein, but solely as trustee of BRUSH
CREEK BUSINESS TRUST II, as the Lessor and as mortgagee (the "Lessor"), and FORE
SYSTEMS, INC., a Delaware corporation, having a principal office at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the Lessee and as mortgagor (the
"Lessee").
W I T N E S S E T H:
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WHEREAS, the Lessee is the owner of the fee simple interest in the Land
described on Exhibit A attached hereto and made a part hereof;
WHEREAS, pursuant to the terms of the Ground Lease, the Lessee has
leased to the Lessor, and the Lessor has leased from the Lessee, the Land;
WHEREAS, the Lessor wishes to sublease to the Lessee, and the Lessee
wishes to sublease from the Lessor, the Land;
WHEREAS, the Lessor wishes to finance the development of certain
Improvements on the Land to be used by the Lessee;
WHEREAS, pursuant to a Participation Agreement dated as of the date
hereof (as amended, modified, restated or supplemented from time to time, the
"Participation Agreement"), among the Lessee, the Lessor, the Certificate
Purchaser and the Construction Lender, the Participants have agreed to finance
the development of certain Improvements on the Land to be used by the Lessee;
WHEREAS, pursuant to the terms of the Construction Agency Agreement,
the Lessee, as Construction Agent, will construct certain Improvements which
will be the property of the Lessor and will become part of the Property subject
to the terms of this Lease; and
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
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ARTICLE I
DEFINITIONS
1.1. Definitions; Interpretation. Capitalized terms used but not
otherwise defined in this Lease have the respective meanings specified in
Appendix 1 to the Participation Agreement; and the rules of interpretation set
forth in Appendix 1 to the Participation Agreement shall apply to this Lease.
ARTICLE II
PURCHASE AND LEASE
2.1. Acceptance and Lease of Property. Subject to the terms and
conditions of this Lease, on the Initial Advance Date the Lessor shall demise
and sublease to the Lessee hereunder for the Term (as hereinafter defined) the
Lessor's interest in the Land, and shall demise and lease to the Lessee for the
Term the Lessor's interest in the Improvements together with any Improvements
which hereafter may be constructed thereon pursuant to the Construction Agency
Agreement or this Lease, and the Lessee hereby agrees, expressly for the direct
benefit of the Lessor, to sublease from the Lessor for the Term the Lessor's
interest in the Land, and to lease from the Lessor for the Term the Lessor's
interest in any Improvements on the Land and in any Improvements on the Land
which hereafter may be constructed thereon pursuant to the Construction Agency
Agreement or this Lease.
2.2. Acceptance Procedure. The Lessee hereby agrees that the execution
and delivery by the Lessee of this Lease shall, without further act, constitute
the irrevocable acceptance by the Lessee of all of the Property for all purposes
of this Lease and the other Operative Documents on the terms set forth therein
and herein, and that all of the Property, together with any Improvements
constructed thereon pursuant to the Construction Agency Agreement or this Lease,
shall be deemed to be included in the leasehold estate of this Lease and shall
be subject to the terms and conditions of this Lease as of the Initial Advance
Date.
2.3. Lease Term. This Lease shall commence and be in full force and
effect on the Initial Advance Date. The Interim Term (the "Interim Term") shall
begin on the Initial Advance Date and shall end on the earlier of (i) the
Completion Date and (ii) the Property becoming subject to this Lease pursuant to
the last sentence of Section 5.1 of the Construction Agency Agreement. The Base
Term (the "Base Term") shall begin on the Base Date and end on the Termination
Date, unless the Base Term is renewed or earlier terminated in accordance with
the provisions of this Lease (the Interim Term and Base Term, as renewed in
accordance with the provisions of this Lease, are referred to collectively as
the "Term"); provided, however, that in no event shall the Term end later than
the tenth (10th) anniversary of the Termination Date.
2.4. Title. The Property is leased to the Lessee without any
representation or warranty, express or implied, by the Lessor and subject to the
rights of parties in possession, the existing state of title (including
Permitted Liens other than Lessor Liens) 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 to the extent resulting from
Lessor Liens.
2.5. Waiver by Lessor of Lien and Distraint. The Lessor expressly
waives, releases and relinquishes unto the Lessee (i) any and all rights the
Lessor has or may have to acquire, perfect or benefit from any statutory or
common law lien against any personal property of the Lessee provided to
landlords under any Applicable Law and (ii) any and all rights the Lessor has or
may have to distraint of the personal property of the Lessee arising from
statutory or common law rights provided to landlords under any
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Applicable Law; provided, however, the foregoing shall in no way negate or
otherwise adversely affect any Lien on any Equipment, Fixtures or other property
of the Lessee located in the Property for which the Lessee has granted a Lien
unto the Lessor pursuant to the Operative Documents.
ARTICLE III
PAYMENT OF RENT
3.1. Rent.
(a) During the Term, the Lessee shall pay Basic Rent on each
Payment Date, on the date required under Section 20.1(i) in connection
with the Lessee's exercise of the Remarketing Option and on any date on
which this Lease shall terminate. Notwithstanding the foregoing, Lessee
shall be under no obligation to pay Basic Rent with respect to the
Facility prior to the expiration of the Interim Term.
(b) Basic Rent shall be due and payable in lawful money of the
United States and shall be paid by wire transfer of immediately
available funds on the due date therefor to such account or accounts at
such bank or banks or to the Lessor or in such other manner as the
Lessor shall from time to time direct in a written notice to the
Lessee.
(c) Neither the Lessee's inability or failure to take
possession of all or any portion of the Property when delivered by the
Lessor, 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 in accordance with the terms of this Lease.
3.2. Payment of Basic Rent. Basic Rent shall be paid absolutely net to
the Lessor, so that this Lease shall yield to the Lessor the full amount
thereof, without setoff, deduction or reduction.
3.3. Supplement Rent. The Lessee shall pay to the Lessor or the Person
entitled thereto any and all Supplemental Rent (including the payment required
pursuant to Section 5.3(h) of the Construction Agency Agreement) promptly as the
same shall become due and payable, and if the Lessee fails to pay any
Supplemental Rent, the Lessor shall have all rights, powers and remedies
provided for herein or by law or equity or otherwise in the case of nonpayment
of Basic Rent. The Lessee shall pay to the Lessor, as Supplemental Rent, among
other things, on demand, to the extent permitted by applicable Requirements of
Law, interest at the applicable Overdue Rate on any installment of Basic Rent
not paid when due for the period for which the same shall be overdue and on any
payment of Supplemental Rent not paid when due or demanded by the Lessor for the
period from the due date or the date of any such demand, as the case may be,
until the same shall be paid. The expiration or other termination of the
Lessee's obligations to pay Basic Rent hereunder shall not limit or modify the
obligations of the Lessee with respect to Supplemental Rent. Unless expressly
provided otherwise in this 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 to the Lessor prior to 11:00 a.m., Eastern standard time at the place of
payment in funds consisting of lawful currency of the United States of America
which shall be immediately available on the scheduled date when such
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payment shall be due, unless such scheduled date shall not be a Business Day, in
which case such payment shall be made on the next succeeding Business Day.
Payments received after 1:00 p.m., Eastern standard time on the date due shall
for the purpose of Section 16.1 hereof be deemed received on such day; provided,
however, that for the purposes of the second sentence of Section 3.3 hereof,
such payments shall be deemed received on the next succeeding Business Day and,
unless the Lessor is otherwise able to invest or employ such funds on the date
received, subject to interest at the Overdue Rate as provided in such Section
3.3.
ARTICLE IV
QUIET ENJOYMENT
4.1. Quiet Enjoyment. Subject to Sections 2.4 hereof and Section
10.1(e) of the Participation Agreement, and subject to the rights of the Lessor
contained in Article XV and the other terms of the Operative Documents to which
the Lessee is a party, the Lessee shall peaceably and quietly have, hold and
enjoy the Property for the Term, free of any claim or other action by the Lessor
or anyone claiming by, through or under the Lessor (other than the Lessee) with
respect to any matters arising from and after the Initial Advance Date. Such
right of quiet enjoyment is independent of, and shall not affect the Lessor's
rights otherwise to initiate legal action to enforce, the obligations of the
Lessee under this Lease.
ARTICLE V
NET LEASE, ETC.
5.1. Net Lease. This Lease shall constitute a net 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 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, 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; (v) any change, waiver, extension,
indulgence or other action or omission or breach in respect of any obligation or
liability of or by the Lessor or any Participant; (vi) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceedings relating to the Lessee, the Lessor, any Participant or
any other Person, or any action taken with respect to this Lease by any trustee
or receiver of the Lessee, the Lessor, any Participant or any other Person, or
by any court, in any such proceeding; (vii) any claim that the Lessee has or
might have against any Person, including the Lessor, any vendor, manufacturer,
contractor of or for any portion of the Property or any Participant; (viii) any
failure on the part of the Lessor to perform or comply with any of the terms of
this Lease (other than performance by the Lessor of its obligations set forth in
Section 2.1 hereof), of any other Operative Document or of any other agreement;
(ix) any invalidity or unenforceability or illegality or disaffirmance of this
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
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separate and independent from any obligations of the Lessor hereunder or under
any other Operative Documents and the obligations of the Lessee shall continue
unaffected unless such obligations shall have been modified or terminated in
accordance with an express provision of this Lease.
5.2. No Termination or Abatement. The Lessee shall remain obligated
under this Lease in accordance with its terms and shall not take any action to
terminate, rescind or avoid this Lease, notwithstanding any action for
bankruptcy, insolvency, reorganization, liquidation, dissolution, or other
proceeding affecting the Lessor or any Participant, or any action with respect
to this Lease which may be taken by any trustee, receiver or liquidator of the
Lessor or any Participant or by any court with respect to the Lessor or any
Participant. The Lessee hereby waives all right (i) to terminate or surrender
this Lease (except as expressly provided herein) or (ii) to avail itself of any
abatement, suspension, deferment, reduction, setoff, counterclaim or defense
with respect to any Rent. The Lessee shall remain obligated under this Lease in
accordance with its terms and the Lessee hereby waives any and all rights now or
hereafter conferred by statute or otherwise to modify or to avoid strict
compliance with its obligations under this Lease. Notwithstanding any such
statute or otherwise, the Lessee shall be bound by all of the terms and
conditions contained in this Lease.
5.3. No Bar. Notwithstanding the foregoing, nothing set forth herein
shall bar, limit, preclude, prevent, stay or otherwise adversely affect the
Lessee's right or ability to bring and pursue any action for monetary damages
against the Lessor or any other Person for any breach or alleged breach of its
obligations hereunder.
ARTICLE VI
SUBLEASES
6.1. Subletting. Lessee agrees to occupy 100% of the Property at all
times during the Term and to use the Property for manufacturing, engineering and
corporate headquarters office purposes, and for no other use, except as
expressly provided in this Section 6.1. The Lessee may not, without the prior
written consent of the Lessor (which may be granted or withheld in the sole
discretion of the Lessor), sublease (or sub-sublease) or license the Property or
any portion thereof to any Person, or permit the Property or any portion thereof
to be used or occupied by any other Person. Any such sublease or attempted
sublease of the Property or any portion thereof without the prior written
consent of the Lessor shall be void and of no force or effect. Except as
expressly set forth in this Section 6.1, the Lessee may, without the consent of
the Lessor, sublease space in the Facility, provided that the aggregate amount
of such subleased space does not exceed 33% of the aggregate space in the
Facility, and provided that (i) no Lease Event of Default shall have occurred
and be continuing, (ii) the proposed subtenant shall have a financial standing,
be of a character, be engaged in a business, and propose to use the Property in
a manner in keeping with the standards set forth in this Lease, (iii) the
character of the business to be conducted or the proposed use of the Facility by
the proposed subtenant shall not violate any provision or restrictions herein
relating to the use or occupancy of the Property, (iv) the subletting shall be
expressly subject to all of the terms, covenants, conditions and obligations on
Lessee's part to be observed and performed under this Lease and the further
condition and restriction that the sublease shall not be assigned, encumbered or
otherwise transferred or the subleased premises further sublet by the subtenant
in whole or in part, or any part thereof suffered or permitted by the subtenant
to be used or occupied by others, without the prior written consent of the
Lessor in each instance, which may be withheld in the Lessor's sole discretion,
(v) the subletting shall end no later than one (1) day before the Expiration
Date, and (vi) at no time shall there be more than four (4) occupants, including
the Lessee, in the Facility. No 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
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Property, or portion thereof, so sublet. Any sublease of the Property shall
expressly be made subject to and subordinated to this Lease and to the rights of
the Lessor hereunder.
6.2. Assignment of Subleases and Business Interruption Insurance to
Lessor. To secure the prompt and full payment by the Lessee of the Rent, the
Lessee hereby assigns to the Lessor, subject to the conditions hereinafter set
forth, all of the Lessee's right, title and interest in and to all subleases
affecting the Property and all rents, issues and profits accruing thereunder,
and all guarantees and security deposits with respect to such subleases, and the
Lessee hereby confers upon the Lessor, the Lenders, the Certificate Purchaser
and their respective agents and representatives, a right of entry in, and
sufficient possession of, the Property to permit and insure the collection by
the Lessor of the rentals and other sums payable under such subleases together
with the proceeds of any business interruption insurance maintained as provided
under Section 13.2 hereof; provided, however, that such assignment, although
presently effective, is given solely as security, and the Lessor hereby
irrevocably waives the right to exercise the Lessor's rights pursuant to this
Section until and unless a Lease Event of Default shall occur and be continuing.
The Lessee hereby irrevocably directs each tenant under any such sublease (each,
a "Subtenant") to pay to the Lessor the rentals or other sums payable under such
Subtenant's sublease when, as and if directed to do so by the Lessor in a
written notice to such Subtenant in which the Lessor shall certify that a Lease
Event of Default shall have occurred and be continuing under this Lease. The
Lessee hereby irrevocably notifies and directs each Subtenant to pay such
amounts to the Lessor in the event such Subtenant receives any such notice from
the Lessor, and the Lessee hereby irrevocably waives any claims for non-payment
of such rentals or other sums that might arise as a result of such payments to
the Lessor. The exercise of the Lessor's right of entry under this Section shall
not constitute an eviction of the Lessee from the Property or any portion
thereof.
ARTICLE VII
LESSEE ACKNOWLEDGMENTS
7.1. Condition of the Property. THE LESSEE ACKNOWLEDGES AND AGREES THAT
ALTHOUGH THE LESSOR WILL OWN AND HOLD TITLE TO THE IMPROVEMENTS, THE
CONSTRUCTION AGENT IS SOLELY RESPONSIBLE UNDER THE TERMS OF THE CONSTRUCTION
AGENCY AGREEMENT FOR THE DESIGN, DEVELOPMENT, BUDGETING AND CONSTRUCTION OF THE
IMPROVEMENTS AND ANY ALTERATIONS OR MODIFICATIONS. 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, TRUST
COMPANY, THE CERTIFICATE PURCHASER OR THE LENDERS 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 OR ON THE INITIAL ADVANCE DATE. NEITHER THE LESSOR, TRUST COMPANY,
THE CERTIFICATE PURCHASER NOR ANY LENDER HAS MADE OR SHALL BE DEEMED TO HAVE
MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) OR SHALL BE
DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE (OTHER THAN FOR LESSOR
LIENS), VALUE, HABITABILITY, USE, CONDITION, DESIGN, OPERATION, OR FITNESS FOR
USE OF THE PROPERTY (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY
OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY
PART THEREOF) AND NEITHER THE LESSOR, TRUST COMPANY, THE CERTIFICATE PURCHASER
NOR ANY LENDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN
(OTHER
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THAN FOR LESSOR LIENS) OR THE FAILURE OF THE PROPERTY, OR ANY PART THEREOF, TO
COMPLY WITH ANY REQUIREMENT OF LAW.
7.2. Risk of Loss. During the Term the risk of loss of or decrease in
the enjoyment and beneficial use of the Property as a result of the damage or
destruction thereof by fire, the elements, casualties, thefts, riots, wars or
otherwise is assumed by the Lessee, and the Lessor shall in no event be
answerable or accountable therefor.
ARTICLE VIII
POSSESSION AND USE OF THE PROPERTY, ETC.
8.1. Utility Charges. The Lessee shall pay or cause to be paid all
charges for electricity, power, gas, oil, water, telephone, sanitary sewer
service and all other rents and utilities used in or on the 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 paid over to the Lessee.
8.2. Possession and Use of the Property. The Property shall be used in
a manner consistent with the Construction Agency Agreement and, after the Base
Date, as a first class manufacturing, engineering and corporate headquarters
office facility, and for no other purpose, and in a manner consistent with the
standards applicable to properties of a similar nature in the geographic area in
which the Facility is located. Lessee (or its sublessees in accordance with
Section 6.1) shall continuously use and occupy substantially all of the useable
area of the Facility during the Term. 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 and the Construction Agency Agreement. The Lessee
shall not commit or permit any waste of the Property or any part thereof.
8.3. Compliance with Requirements of Law and Insurance Requirements.
Subject to the terms of Article XII relating to permitted contests, the Lessee,
at its sole cost and expense, shall (a) comply in all respects with all
Requirements of Law (including all Environmental Laws) and Insurance
Requirements relating to the Property, including the use, construction,
operation, maintenance, repair and restoration thereof and the remarketing
thereof pursuant to Article XX, whether or not compliance therewith shall
require structural or extraordinary changes in the Improvements or interfere
with the use and enjoyment of the Property, and (b) procure, maintain and comply
in all respects with all licenses, permits, orders, approvals, consents and
other authorizations required for the construction, use, maintenance and
operation of the Property and for the use, operation, maintenance, repair and
restoration of the Improvements.
8.4. Assignment by Lessee. The Lessee may not assign this Lease or any
of its rights or obligations hereunder in whole or in part to any Person.
ARTICLE IX
MAINTENANCE AND REPAIR; RETURN
9.1. Maintenance and Repair; Return.
(a) The Lessee, at its sole cost and expense, shall maintain
the Property in a first class condition (ordinary wear and tear
excepted) and make all necessary repairs thereto, of every kind
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and nature whatsoever, whether interior or exterior, ordinary or
extraordinary, structural or nonstructural or foreseen or unforeseen,
in each case as required by all Requirements of Law and Insurance
Requirements and on a basis consistent with the operation and
maintenance of properties comparable in type and location to the
Property.
(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 the Property (other
than for Advances made in accordance with and pursuant to the terms of
the Participation Agreement and the other Operative Documents) 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.
(c) The Lessee shall, upon the expiration or earlier
termination of this Lease, vacate and surrender such Property to the
Lessor in its then-current, "AS IS" condition, subject to the Lessee's
obligations under Sections 8.3, 9.1(a), 10.1, 11.1, 14.1(d), 14.2 and
20.1 of this Lease, unless the Lessee has purchased the Property from
the Lessor as provided herein.
ARTICLE X
MODIFICATIONS, ETC.
10.1. Modifications, Substitutions and Replacements. The Lessee, at its
sole cost and expense, may at any time and from time to time make alterations,
renovations, improvements and additions to the Property or any part thereof and
substitutions and replacements therefor (collectively, "Modifications");
provided, however, that: (i) except for any Modification required to be made
pursuant to a Requirement of Law or an Insurance Requirement (a "Required
Modification"), no Modification shall impair the value, utility or useful life
of the Property or any part thereof from that which existed immediately prior to
such Modification; (ii) the Modification shall be done expeditiously and in a
good and workmanlike manner; (iii) the Lessee shall comply with all Requirements
of Law (including all Environmental Laws) and Insurance Requirements applicable
to the Modification, including the obtaining of all permits and certificates of
occupancy, and the structural integrity of the Property shall not be materially
adversely affected; (iv) subject to the terms of Article XII relating to
permitted contests, the Lessee shall pay all costs and expenses and shall
discharge (or cause to be insured or bonded over) within thirty (30) days after
the same shall be filed (or otherwise become effective) any Liens arising with
respect to the Modification; (v) such Modifications shall comply with Sections
8.3 and 9.1(a); and (vi) the Lessee shall be required to obtain the prior
written approval of the Lessor, which approval shall not be unreasonably
withheld, with respect to any alterations (other than Required Modifications
and/or alterations authorized by the Construction Agency Agreement) that shall
(A) affect any structural element of the Improvements or any major building
system and cost in excess of $500,000 or (B) materially change the nature of the
Facility or the amount of usable area therein or the utility thereof for the
purposes contemplated by the Lessor and the Lessee as of the date hereof. All
Modifications shall remain part of the realty and shall be subject to this Lease
and title thereto shall immediately vest in the Lessor; provided, however, that
Modifications that (x) are not Required Modifications and (y) were not financed
by the Lessor and are readily removable without impairing the value, utility or
remaining useful life of the Property shall be the property of the Lessee and
shall not be subject to this Lease. So long as no Lease Event of Default has
occurred and is continuing, the Lessee may place upon the Property any trade
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fixtures, machinery, equipment or other property belonging to the Lessee or
third parties and may remove the same at any time during the Term, subject,
however, to the terms of Section 9.1(a); provided that such trade fixtures,
machinery, equipment or other property do not materially impair the value,
utility or remaining useful life of the Property; provided, further, that the
Lessee shall keep and maintain at the Property and shall not remove from the
Property any Equipment financed or otherwise paid for (directly or indirectly)
by the Lessor, the Certificate Purchaser or any Lender pursuant to the
Participation Agreement.
ARTICLE XI
WARRANT OF TITLE; EASEMENTS
11.1. Warrant of Title.
(a) The Lessee agrees that except as otherwise provided herein
and subject to the terms of Article XII relating to permitted contests,
the Lessee shall not directly or indirectly create or allow to remain,
and shall promptly discharge at its sole cost and expense, any Lien,
defect, attachment, levy, title retention agreement or claim upon the
Property or any Modifications or any Lien, attachment, levy or claim
with respect to the Rent or with respect to any amounts held by the
Lenders pursuant to the Loan Agreement or the other Loan Documents,
other than Lessor Liens, Permitted Liens and Liens on machinery,
equipment, general intangibles and other personal property not financed
by the proceeds of the Loans or Certificate Amounts.
(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, TRUST COMPANY,
THE CERTIFICATE PURCHASER NOR ANY LENDER 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, THE CERTIFICATE PURCHASER OR ANY LENDER IN AND TO THE
PROPERTY.
11.2. Grants and Releases of Easements; Lessor's Waivers. Provided that
no Lease Event of Default shall have occurred and be continuing and subject to
the provisions of Articles VII, IX and X and Section 8.3 the Lessor hereby
consents in each instance (and shall obtain the consent of any Lenders as may
reasonably be requested by the Lessee) to the following actions by the Lessee,
in the name and stead of the Lessor, but at the Lessee's sole cost and expense:
(a) the granting of easements, licenses, rights-of-way and other rights and
privileges in the nature of easements reasonably necessary or desirable for the
use, repair, or maintenance of the Property as herein provided; (b) the release
of existing easements or other rights in the nature of easements which are for
the benefit of the Property; (c) if required by applicable Governmental
Authority in connection with the Construction, the dedication or transfer of
unimproved portions of the Property for road, highway or other public purposes;
and (d) the execution of amendments to any covenants and restrictions affecting
the Property; provided, however, that in each case (i) such grant, release,
dedication, transfer or amendment does not impair the value, utility or
remaining useful life of the Property, (ii) such grant, release, dedication,
transfer, annexation or amendment is reasonably necessary in connection with the
use, maintenance, alteration or improvement of the Property, (iii) such grant,
release, dedication, transfer, annexation or amendment will not cause the
Property or any portion thereof to fail to
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comply in any respect with the provisions of this Lease or any other Operative
Documents and all Requirements of Law (including, without limitation, all
applicable zoning, planning, building and subdivision ordinances, all applicable
restrictive covenants and all applicable architectural approval requirements);
(iv) all governmental consents or approvals required prior to such grant,
release, dedication, transfer, annexation or amendment have been obtained, and
all filings required prior to such action have been made; (v) such grant,
release, dedication, transfer, annexation or amendment will not result in any
down-zoning of the Property or any portion thereof or a material reduction in
the maximum density or development rights available to the Property under all
Requirements of Law; (vi) 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, release, dedication,
transfer, annexation or amendment had not been effected and (vii) the Lessee
shall pay and perform any obligations of the Lessor under such grant, release,
dedication, transfer, annexation or amendment. The Lessor acknowledges the
Lessee's right to finance and to secure under the Uniform Commercial Code,
inventory, furnishings, furniture, equipment, machinery, leasehold improvements
and other personal property located at the Property other than Equipment, and
Lessor agrees to execute from time to time Lessor waiver forms in favor of any
purchase money seller, lessor or lender which has financed or may finance in the
future such items. Without limiting the effectiveness of the foregoing, provided
that no Lease Event of Default shall have occurred and be continuing, the Lessor
shall, upon the request of the Lessee, and at the Lessee's sole cost and
expense, execute and deliver (and cause the Lenders to execute and deliver) any
instruments necessary or appropriate to confirm any such grant, release,
dedication, transfer, annexation or amendment to any Person permitted under this
Section 11.2 including landlord waivers with respect to any of the foregoing.
ARTICLE XII
PERMITTED CONTESTS
12.1. Permitted Contests in Respect of Applicable Law. If, to the
extent and for so long as (a) a test, challenge, appeal or proceeding for review
of any Applicable Law relating to the Property shall be prosecuted diligently
and in good faith in appropriate proceedings by the Lessee or (b) compliance
with such Applicable Law shall have been excused or exempted by a valid
nonconforming use, variance permit, waiver, extension or forbearance, the Lessee
shall not be required to comply with such Applicable Law but only if and so long
as any such test, challenge, appeal, proceeding, waiver, extension, forbearance
or noncompliance shall not, in the reasonable opinion of the Lessor, the Lenders
and the Certificate Purchaser, involve (A) any risk of criminal liability being
imposed on the Lessor, Trust Company, the Lenders, the Certificate Purchaser or
the Property, or (B) any material risk of (1) foreclosure, forfeiture or loss of
the Property, or any material part thereof, or (2) the nonpayment of Rent or (C)
any risk of (1) the sale of, or the creation of any Lien (other than a Permitted
Lien) on, any part of the Property, (2) material civil liability being imposed
on the Lessor, Trust Company, the Certificate Purchaser, any Lender or the
Property, or (3) enjoinment of, or interference with, the use, possession or
disposition of the Property in any material respect.
12.2. Permitted Contests in Respect of Real Property Taxes.
Notwithstanding anything to the contrary contained in Article XIII of the
Participation Agreement or any other provision of any Operative Documents,
Lessee shall have the absolute right to contest, appeal or otherwise challenge
(i) any assessment of the Property for real property Tax imposed by any
Governmental Authority, (ii) the millage rates imposed for real property Tax by
any Governmental Authority, (iii) the allocation of the items constituting real
property and personal property included within the Property made by any
Governmental Authority in connection with such real property Tax and (iv) the
uniformity or constitutionality of such real property Tax; provided, however,
(A) such contest is diligently pursued and prosecuted in good faith to
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completion by the Lessee, (B) no Lease Event of Default has occurred and is
continuing, (C) the Property is not subject to imminent foreclosure or sale by
any Governmental Authority and (D) neither the Lessor nor any Participant will
be subject to criminal liability or any material civil liability in connection
with such contest, appeal or challenge.
12.3. Joinder of Lessor. The Lessor will not be required to join in any
proceedings pursuant to this Article XII unless a provision of any Applicable
Law requires, or, in the good faith opinion of the Lessee, it is helpful to the
Lessee, that such proceedings be brought by or in the name of the Lessor; and in
that event the Lessor will join in the proceedings or permit them or any part
thereof to be brought in its name if and so long as (i) no Lease Event of
Default or Lease Default has occurred and is continuing and (ii) the Lessee pays
all related expenses and indemnifies the Lessor and the Participants to the
satisfaction of the respective indemnitees.
ARTICLE XIII
INSURANCE
13.1. Public Liability and Workers' Compensation Insurance. (a) During
the Term the Lessee shall procure and carry, at the Lessee's sole cost and
expense, and shall cause each contractor to procure and carry, commercial
general liability insurance for claims for injuries or death sustained by
persons or damage to property while on the Property and such other public
liability coverages as are ordinarily procured by the Lessee or its Affiliates
who own or operate similar properties. Such insurance shall be on terms and in
amounts that are no less favorable than insurance maintained by the Lessee or
its Affiliates with respect to similar properties that they own and that are in
accordance with normal industry practice, but in any case shall provide
liability coverage of at least $5,000,000 per person, $10,000,000 per occurrence
and $5,000,000 for property damage per occurrence. The policy shall be endorsed
to name the Lessor, Trust Company, the Certificate Purchaser and the Lenders 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, Trust Company, the
Certificate Purchaser or the Lenders may have in force.
(b) The Lessee shall, in the construction of the Improvements
(including in connection with any Modifications thereof) and the operation of
the Property, comply with the applicable workers' compensation laws.
13.2. Hazard and Other Insurance. During the Term the Lessee shall
keep, or cause to be kept, the Property insured against loss or damage by fire
and other risks on terms and in amounts that are no less favorable than
insurance covering other similar properties owned by the Lessee or its
Affiliates and that are in accordance with normal industry practice, but in any
event in amounts not less than the then full insurable value (actual replacement
value) of the Improvements and Equipment. During the construction of any
Improvements the Lessee shall also maintain or cause to be maintained builders'
risk insurance in form and substance as set forth on Schedule 1, together with
such additional requirements to the extent comparable to the insurance required
for projects similar to the construction contemplated by the Operative
Documents. All insurance proceeds in respect of any loss or occurrence for which
the proceeds related thereto are (i) less than or equal to $1,000,000, in the
absence of the occurrence and continuance of an Event of Default, shall be
adjusted by and paid to the Lessee for application toward the reconstruction,
repair or refurbishment of the Property and (ii) greater than $1,000,000, shall
be adjusted jointly by the Lessee and the Lessor (unless an Event of Default has
occurred and is continuing, in which case such proceeds shall be adjusted solely
by the Lessor) and held by the Lessor for application in accordance with
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Article XIV hereof. In addition, the Lessee shall at all times during the Term
maintain business interruption insurance payable in an aggregate amount not less
than $10,000,000.
13.3. Insurance Coverage.
(a) The Lessee shall furnish the Lessor, the Certificate
Purchaser and the Lenders with certificates showing the insurance
required under Sections 13.1 and 13.2 to be in effect and naming the
Lessor, Trust Company, the Certificate Purchaser and the Lenders as
additional insureds with respect to liability coverage (excluding
worker's compensation insurance), naming the Lenders, the Lessor, the
Certificate Purchaser and the Lessee as their interests may appear with
respect to casualty coverage and naming the Lenders as loss payee with
respect to casualty coverage and showing the mortgagee endorsement
required by Section 13.3(c) with respect to such coverage. All such
insurance shall be maintained at the cost and expense of the Lessee,
except that during the Interim Term such insurance shall be maintained
at the cost and expense of the Lessor. Such certificates shall include
a provision for no less than thirty (30) days' advance written notice
by the insurer to the Lessor and the Lenders in the event of
cancellation or reduction of such insurance. In addition, the Lessee
shall cause the Lessor, the Trust Company, the Certificate Purchaser
and the Lenders as additional insureds under all liability policies
maintained with respect to the Construction.
(b) The Lessee agrees that the insurance policy or policies
required by Section 13.2, shall include an appropriate clause pursuant
to which such policy shall provide that it will not be invalidated
should the Lessee waive, in writing, prior to a loss, any or all rights
of recovery against any party for losses covered by such policy, and
that the insurance in favor of the Lessor, Trust Company, the
Certificate Purchaser and the Lenders 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. The Lessee hereby waives any and
all such rights against the Lessor, Trust Company, the Certificate
Purchaser and the Lenders to the extent of payments made under such
policies.
(c) Except as otherwise permitted by clause (d), 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 shall have a
general policyholder rating of "A" and a financial rating of at least
"12" or (if not so rated) be otherwise reasonably acceptable to the
Lenders and the Certificate Purchaser. All insurance policies required
by Section 13.2 shall include a standard form mortgagee endorsement in
favor of the Lenders.
(d) The Lessee may meet the requirements of this Article XIII
with respect to liability and worker's compensation insurance through
one or more policies covering more than one location of Lessee. Except
during the Interim Term, the Lessee may meet the requirements of this
Article XIII with respect to worker's compensation insurance through a
self-insurance program of the Lessee and its Affiliates.
(e) The Lessor shall not carry separate insurance concurrent
in kind or form or contributing in the event of loss with any insurance
required under this Article XIII except that the Lessor may carry
separate liability insurance so long as (i) the Lessee's insurance is
designated as primary and in no event excess or contributory to any
insurance the Lessor may have in force which would apply to a loss
covered under the Lessee's policy and (ii) each such insurance policy
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will not cause the Lessee's insurance required under this Article XIII
to be subject to a coinsurance exception of any kind.
(f) Except during the Interim Term, the Lessee shall pay as
they become due all premiums for the insurance required by Section 13.1
and Section 13.2, and shall renew or replace each policy prior to the
expiration date thereof. Throughout the Term, at the time each of the
Lessee's insurance policies is renewed (but in no event less frequently
than once each year), the Lessee shall deliver to the Lessor, the
Certificate Purchaser and the Lenders certificates of insurance
evidencing that all insurance required by this Article XIII is being
maintained by the Lessee and is in effect.
(g) The Lessee agrees that notwithstanding anything to the
contrary in this Article XIII, during the Interim Term, the insurance
policy or policies required by Section 13.1 and 13.2 shall not (i) be
funded by a program of self-insurance (or any similar funding
mechanism), and (ii) carry any deductible or similar co-payment of any
kind in excess of $1,000. During the Interim Term, the amount of any
deductibles permitted under this clause (g) shall be paid through
Advances to the extent available under the Approved Construction
Budget, including contingencies listed therein to the extent not
previously utilized.
ARTICLE XIV
CASUALTY AND CONDEMNATION;
ENVIRONMENTAL MATTERS
14.1. Casualty and Condemnation.
(a) Subject to the provisions of this Article XIV, if all or a
portion of the Facility is subject to a Casualty or if the use, access,
occupancy, easement rights or title to the Facility or any part
thereof, is the subject of a Condemnation, then (i) in the case of any
Casualty where the cost of restoration of the Facility is less than or
equal to $1,000,000, any insurance proceeds payable with respect to
such Casualty shall be paid directly to the Lessee, or if received by
the Lessor or the Lenders, shall be paid over to the Lessee for the
reconstruction, refurbishment and repair of the Facility, (ii) in the
case of any Casualty not constituting a Significant Casualty where the
cost of restoration of the Facility is greater than $1,000,000, any
insurance proceeds payable with respect to such Casualty shall be paid
directly to the Lessor, and at the option of the Lessee (x) to be
applied, in accordance with the then prevailing construction loan
guidelines of the Lenders, to reimburse the Lessee for the
reconstruction, refurbishment and repair of the Facility, or (y) to be
applied toward the payment of the Lease Balance with respect to the
Facility, (iii) in the case of a Significant Casualty, any insurance
proceeds payable with respect to such Casualty shall be paid to the
Lenders to be applied in the Lenders' discretion to the restoration of
the Facility or toward the payment of the Lease Balance with respect to
the Facility and (iv) in the case of a Condemnation of any part of the
Land (not including the Facility) that does not render the Facility
unsuitable for continued use as property of the type of the Facility
immediately prior to such Condemnation, any award or compensation
relating thereto shall be paid to the Lessee and in the case of all
other Condemnations such award or compensation shall be paid to the
Lenders to be applied in their reasonable discretion to the restoration
of the Property or toward the payment of the Lease Balance; provided,
however, that if a Lease Event of Default shall have occurred and be
continuing, all such awards, compensation or insurance proceeds shall
be paid directly to the Lenders or, if received by the Lessee, shall be
held in trust for the Lenders, and shall be paid over by the Lessee to
the Lenders (or, if the Loans have been fully paid, to the Lessor). If,
contrary to such provision, any such award, compensation or insurance
proceeds are paid to the Lessee or the
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Lessor rather than to the Lenders, the Lessee and the Lessor, as the
case may be, hereby agree to transfer any such payment to the Lenders.
All amounts held by the Lessor or the Lenders when a Lease Event of
Default exists hereunder on account of any award, compensation or
insurance proceeds either paid directly to the Lessor or the Lenders or
turned over to the Lessor or the Lenders shall either be (i) paid to
the Lessee for the repair of damage caused by such Casualty or
Condemnation in accordance with paragraph (d) of this Section 14.1, or
(ii) applied to the purchase price of the Facility on the date of
purchase pursuant to Section 15.1 hereof or the Lessor's remedies
pursuant to Article XVI hereof, with any Excess Proceeds being payable
to the Lessee.
(b) The Lessee may appear in any proceeding or action to
negotiate, prosecute, adjust or appeal any claim for any award,
compensation or insurance payment on account of any such Casualty or
Condemnation and shall pay all expenses thereof. At the Lessee's
reasonable request, and at the Lessee's sole cost and expense, the
Lessor and the Lenders shall participate in any such proceeding,
action, negotiation, prosecution or adjustment. The Lessor and the
Lessee agree that this Lease shall control the rights of the Lessor and
the Lessee in and to any such award, compensation or insurance payment.
(a) If the Lessor or the Lessee shall receive notice of a
Casualty or of an actual, pending or threatened Condemnation of the
Facility or any interest therein, the Lessor or the Lessee, as the case
may be, shall give notice thereof to the other and to the Lenders
promptly after the receipt of such notice.
(d) If pursuant to this Section 14.1 and Section 15.1 this
Lease shall continue in full force and effect following a Casualty or
Condemnation with respect to the Facility, the Lessee shall, at its
sole cost and expense (and, without limitation, if any award,
compensation or insurance payment is not sufficient to restore the
Facility in accordance with this paragraph, the Lessee shall pay the
shortfall[, subject in all events to Section 14.1(g) below]), promptly
and diligently repair any damage to the Facility caused by such
Casualty or Condemnation in conformity with the requirements of
Sections 9.1 and 10.1 using the as-built Plans and Specifications for
the Facility (as modified to give effect to any subsequent
Modifications, any Condemnation affecting the Facility and all
applicable Requirements of Law) so as to restore the Facility to at
least the same operation, use and value as existed immediately prior to
such Casualty or Condemnation with such Modification as the Lessee may
elect in accordance with Section 10.1. In such event, title to the
Facility shall remain with the Lessor. Upon completion of such
restoration, the Lessee shall furnish the Lessor an architect's
certificate of substantial completion and a Responsible Employee's
Certificate confirming that such restoration has been completed
pursuant to this Lease.
(e) In no event shall a Casualty or Condemnation affect the
Lessee's obligations to pay Rent pursuant to Section 3.1 or to perform
its obligations and pay any amounts due on the Expiration Date or
pursuant to Articles XVIII and XXI.
(f) Absent a Lease Event of Default, Excess Proceeds received
by the Lessor or the Lenders in respect of a Casualty or Condemnation
shall be turned over to the Lessee.
(g) Notwithstanding any provision to the contrary contained
herein (including in Article XV) or in the other Operative Documents,
should a Casualty or Condemnation occur during the Interim Term (A) as
the result of an Unrelated Indemnity Event, such Casualty or
Condemnation shall not be an Event of Default under any Operative
Document and such Casualty or Condemnation shall not give rise to any
obligation on the part of the Lessee, Construction, Holding
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or Guarantor under any indemnity obligation under the Operative
Documents, including under Article XIII of the Participation Agreement
or (B) as the result of a non-willful act or omission of any
Construction Agency Person, Lessee, Construction Agent, Holding and
Guarantor shall not be required to pay more than the Maximum Guaranteed
Amount on a recourse basis for any damages or other payments arising
from such Casualty or Condemnation. Notwithstanding any provision to
the contrary in the Operative Documents, during the Interim Term in the
event of a Casualty or Condemnation covered in Section 14.1(g)(A), all
proceeds shall be paid to the Participants and distributed pursuant to
the Construction Loan Agreement and all negotiating and adjustments
with any insurance company or Governmental Authority shall be conducted
solely by the Participants. The Lessee shall have no right to
participate in or be included in any way in such proceeds, negotiations
or adjustments.
14.2. Environmental Matters. Promptly upon the Lessee's actual
knowledge of the existence of an Environmental Violation, the Lessee shall
notify the Lessor in writing of such Environmental Violation. If the Lessor
elects not to terminate this Lease pursuant to Section 15.1, at the Lessee's
sole cost and expense, the Lessee shall promptly and diligently commence any
response, clean up, remedial or other action necessary to remove, clean up or
remediate the Environmental Violation in accordance with the terms of Section
8.3. If the Lessor does not deliver a Termination Notice with respect to such
Property pursuant to Section 15.1, the Lessee shall, upon completion of remedial
action by the Lessee, cause to be prepared by an environmental consultant
reasonably acceptable to the Lessor a report describing the Environmental
Violation and the actions taken by the Lessee (or its agents) in response to
such Environmental Violation, and a statement by the consultant that the
Environmental Violation has been remedied in compliance in all respects with
applicable Environmental Law. Nothing in this Article XIV shall reduce or limit
the Lessee's obligations under Sections 13.1, 13.2 or 13.3 of the Participation
Agreement.
14.3. Notice of Environmental Matters. Promptly, but in any event
within ten (10) Business Days after 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 ten (10) Business Days of receipt, copies of all material
written communications with any Governmental Authority relating to any
Environmental Violation 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, the Lenders or the Certificate
Purchaser. In the event that the Lessor receives 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, the Lessor shall
promptly give notice thereof to the Lessee.
ARTICLE XV
TERMINATION OF LEASE
15.1. Mandatory Partial or Complete Termination Upon Certain Events.
Subject to the provisions of Section 14.1(g), if either:
(a) a Significant Condemnation occurs; or
(b) a Significant Casualty occurs; or
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(c) an Environmental Violation is discovered the cost of
remediation of which would exceed $100,000, and the Lessee has not
within ten (10) Business Days of such discovery of such Environmental
Violation deposited with the Custodian (x) additional cash in the
Collateral Account in an amount equal to the anticipated cost of the
remediation (which anticipated cost shall be subject to review and
adjustment by the Participants after consultation with an environmental
engineer) of such Environmental Violation, together with an amount
equal to any other costs and expenses which are reasonably likely to be
incurred in connection with such Environmental Violation, or (y) in
lieu of cash in the amounts described in clause (x) above, Marketable
Collateral having a Collateral Value equivalent to the amount of cash
required to be deposited in accordance with clause (x); or
(d) an Environmental Violation occurs or is discovered the
cost of remediation of which would exceed $5,000,000;
and the Lessor shall have given written notice to the Lessee that the Lease is
to be terminated with respect to the Facility as a consequence of the occurrence
of such an event (a "Termination Notice"), then, the Lessee shall be obligated
to purchase the Lessor's interest in the Facility on or prior to the date
occurring thirty (30) days after the date of the Termination Notice by paying
the Lessor an amount equal to the Lease Balance and any Supplemental Rent
(exclusive of the Make-Whole Premium in connection with a termination as the
result of an occurrence under clause (a) or (b) above, and with a Make-Whole
Premium in connection with a termination as the result of an occurrence under
clause (c) or (d) above) then due and payable.
15.2. Termination Procedures. On the date of the payment by the Lessee
of the entire Lease Balance and any accrued but unpaid interest and yield in
accordance with Section 15.1 (such date, the "Termination Date"), this Lease
shall terminate with respect to the Facility and, concurrent with the Lessor's
receipt of such payment,
(a) the Lessor shall execute and deliver to the Lessee (or to
the Lessee's designee) at the Lessee's cost and expense a quitclaim
deed with respect to the Facility, an assignment (without recourse,
representation or warranty by the Lessor other than as to the absence
of Lessor Liens) of the Lessor's interest in and to the Ground Lease, a
quitclaim ▇▇▇▇ of sale with respect to the Equipment and an assignment
of the Lessor's entire interest in the Facility (which shall include an
assignment of all of the Lessor's right, title and interest in and to
any Net Proceeds not previously received by the Lessor and existing
subleases and security deposits thereunder), in each case in recordable
form and otherwise in conformity with local custom and free and clear
of the Lien of the Mortgage and any Lessor Liens attributable to the
Lessor;
(b) the Facility shall be conveyed to such Person "AS IS" and
in its then present physical condition; and
(c) in the case of a termination pursuant to clause (a) or (b)
of Section 15.1, the Lessor shall convey to the Lessee any Net Proceeds
with respect to the Casualty or Condemnation giving rise to the
termination of this Lease theretofore received by the Lessor or at the
request of the Lessee, such amounts shall be applied against sums due
hereunder.
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ARTICLE XVI
EVENTS OF DEFAULT
16.1. 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" and a "Lease Event of Default" as such term is defined in the Existing
Lease:
(a) the Lessee shall fail to make payment of (i) any Basic
Rent after the same has become due and payable or (ii) any Purchase
Option Price, Loan Balance or Lease Balance, including amounts due
pursuant to Section 15.1, 18.1, 18.2, 18.3 or 20.1; provided, however,
that the failure to make any payment described in clause (i) or (ii)
shall not constitute a Lease Event of Default so long as (x) such
payment is made within five (5) days of the date such payment is due
and payable, (y) such failure shall not have occurred more than five
(5) times during the Term, and (z) such failure shall not have occurred
for more than two consecutive payments due under this Lease; or
(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 receipt of
notice thereof; or
(c) the Lessee shall fail to maintain insurance as required by
Article XIII of this Lease or shall violate the observance of its
obligations under Sections 6.1 or 8.2 hereof, or under Section 10.3 of
the Participation Agreement; or
(d) The Lessee shall fail to observe or perform any term,
covenant or condition of the Lessee under this Lease or the
Participation Agreement other than those described in Section 16.1(a),
(b) or (c) hereof, or shall fail to perform or observe in any respect
any covenant, condition or agreement to be performed or observed by it
under any other Operative Document (except those described in the
parenthetical of Section 16.1(f)), and, in each such case, such failure
shall have continued for thirty (30) days after the earlier of (i)
delivery to the Lessee of written notice thereof from Lessor or (ii) a
Responsible Employee of the Lessee shall have knowledge of such
failure; provided, however, that if such failure is capable of cure but
cannot be cured by payment of money or cannot be cured by diligent
efforts within such thirty (30)-day period but such diligent efforts
shall be properly commenced within the cure period and the Lessee is
diligently pursuing, and shall continue to pursue diligently, remedy of
such failure, the cure period shall be extended for an additional
period of time as may be necessary to cure not to exceed an additional
one hundred fifty (150) days or to extend beyond the Expiration Date;
provided further, that failure by the Lessee to fully comply with the
requirements of Section 20.1 hereof shall not be subject to any cure
period; or
(e) any representation or warranty made by the Lessee in any
of the Operative Documents shall prove to have been inaccurate in any
material respect at the time made, and if such inaccuracy can be cured,
it shall not have been cured within forty-five (45) days, after the
earlier of (i) delivery to the Lessee of written notice thereof from
the Lessor or (ii) a Responsible Employee of the Lessee shall have
knowledge of such inaccuracy; or
(f) a default by Lessee or Holding beyond any applicable grace
period shall have occurred and be continuing under the Construction
Agency Agreement, the Guaranty, the Guaranty
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Agreement, the Pledge and Security Agreement, the Existing Lease, the
Swap Agreement or any "Operative Document" as such term is defined in
the Existing Lease, or any of the agreements, documents or instruments
executed in connection with the Mellon Revolver Facility (other than a
default arising solely under Sections 6.1(o), 8.3(z), 10.1(a)(vi) and
(vii) or from the Allegheny Agreements, as defined in the Existing
Lease (except for a failure by Lessee to pay sums due under the
Allegheny Agreements) and, during the Interim Term, Section 10.3 of the
Participation Agreement under the Existing Lease (if the failure to
comply with such Section shall arise from, be caused by or relate to,
any act or omission of the Lessee, anything within the reasonable
control of the Lessee or anything that could have been avoided through
the use of best efforts by the Lessee), Sections 3.1(d) and 3.1(j) of
the Guaranty Agreement under the Existing Lease, Sections 13.2 and 16.4
of the Lease under the Existing Lease, Sections 3(a)(4), 4(i)(1) and
5(i) of the Note and Security Agreement pertaining to the Mellon
Revolver Facility), or the Existing Lease shall have terminated; or
(g) the Lessee shall (i) admit in writing its inability to pay
its debts generally as they become due, (ii) file a petition under the
United States bankruptcy laws or any other applicable insolvency law or
statute of the United States of America or any State or Commonwealth
thereof, (iii) make a general assignment for the benefit of its
creditors, (iv) consent to the appointment of a receiver of itself or
the whole or any substantial part of its property, (v) fail to cause
the discharge of any custodian, trustee or receiver appointed for it,
or the whole or a substantial part of its property within sixty (60)
days after such appointment, or (vi) file a petition or answer seeking
or consenting to reorganization under the United States bankruptcy laws
or any other applicable insolvency law or statute of the United States
of America or any State or Commonwealth thereof; or
(h) insolvency proceedings or a petition under the United
States bankruptcy laws or any other applicable insolvency law or
statute of the United States of America or any State or Commonwealth
thereof shall be filed against the Lessee and not dismissed within
sixty (60) days from the date of its filing, or a court of competent
jurisdiction shall enter an order or decree appointing, without the
consent of the Lessee, a receiver of the Lessee, or the whole or a
substantial part of any of its property, and such order or decree shall
not be vacated or set aside within ninety (90) days from the date of
the entry thereof; or
(i) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $500,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there
shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or
more Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation in excess of
$500,000; or
(j) any final, non-appealable judgments or orders for the
payment of money individually or in the aggregate in excess of
$2,695,150 (which amount shall be adjusted annually, on the date of the
submission by the Lessee of the financial statements referred to in
Section 10.1(a)(i) of the
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Participation Agreement, to an amount equal to 0.5% of the Tangible Net
Worth of the Lessee as shown on such financial statements) shall be
rendered against the Lessee, and such judgment or order shall continue
unsatisfied, unstayed (pursuant to laws, rules or court orders) and
unbonded for a period of thirty (30) days; or
(k) an event of default (beyond any applicable grace and cure
period) as defined in any agreement, mortgage, indenture or instrument,
under which there may be issued, or by which there may be secured or
evidenced, any Debt of the Lessee, whether such Debt now exists or
shall hereafter be created, shall occur and such Debt individually or
in the aggregate shall exceed $5,393,000 (which amount shall be
adjusted annually, on the date of the submission by the Lessee of the
financial statements referred to in Section 10.1(a)(i) of the
Participation Agreement, to an amount equal to 1.0% of the Tangible Net
Worth of the Lessee as shown on such financial statements); provided,
however, an Event of Default shall occur under this Section only if the
event of default causing the acceleration of Debt is the result of an
event of default by the Lessee that would constitute an Event of
Default under this Lease, such as (by way of example) the failure to
make payments when due on such Debt; or
(l) any Lien granted under any Operative Document shall, in
whole or in part, terminate, cease to be effective against, or cease to
be the legal, valid, binding and enforceable obligation of, the Lessee
as a result of any act or omission of the Lessee; or
(m) the Lessee or Holding shall directly or indirectly contest
the validity of any Operative Document in any manner in any court of
competent jurisdiction or any Lien granted by any Operative Document,
or the Lessee shall repudiate, or purport to discontinue or terminate,
the Guaranty or Guaranty Agreement, or the Guaranty or Guaranty
Agreement shall cease to be a legal, valid and binding obligation or
shall cease to be in full force and effect for any reason.
16.2. 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 the
obligation of the Lessee to purchase the Property as set forth in Section 18.3):
(a) The Lessor may, by notice to the Lessee, rescind or
terminate this Lease 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 VII and
IX and Section 8.3 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
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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 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, the Lenders and/or the Certificate
Purchaser in connection with any reletting, including reasonable
brokers' fees and all costs of any alterations or repairs made by the
Lessor;
(c) The Lessor may (i) sell all or any part of the Property at
public sale free and clear of any rights of the Lessee and without any
duty to account to the Lessee with respect to such action or inaction
or any proceeds (except that Excess Proceeds are payable to and shall
be paid to the Lessee) with respect thereto (except to the extent
required by clause (ii) below if the Lessor shall elect to exercise its
rights thereunder) in which event the Lessee's obligation to pay Basic
Rent hereunder for periods commencing after the date of such sale shall
be terminated or proportionately reduced, as the case may be; and (ii)
if the Lessor shall so elect, demand that the Lessee pay to the Lessor,
and the Lessee shall pay to the Lessor, on the date of such sale, as
liquidated damages for loss of a bargain and not as a penalty (the
parties agreeing that the Lessor's actual damages would be difficult to
predict, but the aforementioned liquidated damages represent a
reasonable approximation of such amount) (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 Lease Balance calculated as of such Payment
Date (including all Rent due and unpaid to and including such Payment
Date), over (2) the net proceeds of such sale (that is, after deducting
all costs and expenses incurred by the Lessor, the Lenders and the
Certificate Purchaser incident to such conveyance, including
repossession costs, brokerage commissions, prorations, transfer taxes,
fees and expenses for counsel, title insurance fees, survey costs,
recording fees, and any repair costs); plus (B) interest at the Overdue
Rate on the foregoing amount from such Payment Date until the date of
payment;
(d) The Lessor may, at its option, elect not to terminate this
Lease and continue to collect all Basic Rent, Supplemental Rent, and
all other amounts due the Lessor (together with all costs of
collection) and enforce the Lessee's obligations under this Lease as
and when the same become due, or are to be performed, and at the option
of the Lessor, upon any abandonment of the Property by the Lessee or
re-entry of same by the Lessor, the Lessor may, in its sole and
absolute discretion, elect not to terminate this Lease and may make the
necessary repairs in order to relet the Property, and relet the
Property or any part thereof for such term or terms (which may be for a
term extending beyond the Term of this Lease) and at such rental or
rentals and upon such other terms and conditions as the Lessor in its
reasonable discretion may deem advisable; and upon each such reletting
all rentals actually received by the Lessor from such reletting shall
be applied to the Lessee's obligations hereunder and the other
Operative Documents in such order, proportion and priority as the
Lessor may elect in the Lessor's sole and absolute discretion. If such
rentals received from such reletting during any period are less than
the Rent with respect to the Property to be paid during that period by
the Lessee hereunder, the Lessee shall pay any deficiency, as
calculated by the Lessor, to the Lessor on the next Payment Date;
(e) Unless the Property has been sold in its entirety, the
Lessor may, whether or not the Lessor shall have exercised or shall
thereafter at any time exercise any of its rights under
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paragraph (b), (c) or (d) of this Section 16.2 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 days after
the date of such notice, that the Lessee purchase, on such Termination
Date, the Improvements (or the remaining portion thereof) in accordance
with the provisions of Article XXI and Section 18.2;
(f) The Lessor may exercise any other right or remedy that may
be available to it under Applicable Law, or proceed by appropriate
court action (legal or equitable) to enforce the terms hereof or to
recover damages for the breach hereof. Separate suits may be brought to
collect any such damages for any period(s), and such suits shall not in
any manner prejudice the Lessor's right to collect any such damages for
any subsequent period(s), or the Lessor may defer any such suit until
after the expiration of the 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; or
(h) If a Lease Event of Default shall have occurred and be
continuing, the Lessor, as a matter of right and without notice to the
Lessee, shall have the right to apply to any court having jurisdiction
to appoint a receiver or receivers of the Property, and the Lessee
hereby irrevocably consents to any such appointment. Any such
receiver(s) shall have all of the usual powers and duties of receivers
in like or similar cases and all of the powers and duties of the Lessor
in case of entry, and shall continue as such and exercise such powers
until the date of confirmation of the sale of the Property unless such
receivership is sooner terminated.
(i) To the maximum extent permitted by law, the Lessee hereby
waives the benefit of any appraisement, valuation, stay, extension,
reinstatement and redemption laws now or hereafter in force and all
rights of marshaling in the event of any sale of the Property or any
interest therein.
(j) The Lessor shall be entitled to enforce payment of the
indebtedness and performance of the obligations secured hereby and to
exercise all rights and powers under this instrument or under any of
the other Operative Documents or other agreement or any laws now or
hereafter in force, notwithstanding some or all of the obligations
secured hereby may now or hereafter be otherwise secured, whether by
mortgage, security agreement, pledge, lien, assignment or otherwise.
Neither the acceptance of this instrument nor its enforcement, shall
prejudice or in any manner affect the Lessor's right to realize upon or
enforce any other security now or hereafter held by the Lessor, it
being agreed that the Lessor shall be entitled to enforce this
instrument and any other security now or hereafter held by the Lessor
in such order and manner as the Lessor may determine in its absolute
discretion. No remedy herein conferred upon or reserved to the Lessor
is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. Every power or remedy given
by any of the Operative Documents to the Lessor or to which it may
otherwise be entitled, may be exercised, concurrently or independently,
from time to time and as often as may be deemed expedient by the
Lessor. In no event shall the Lessor, in the exercise of the remedies
provided in this instrument (including in connection with the
assignment of rents to Lessor, or the appointment of a receiver and the
entry of such receiver on to all or any part of the Property), be
deemed a "mortgagee in possession," and the Lessor shall not in
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any way be made liable for any act, either of commission or omission,
in connection with the exercise of such remedies.
(k) An action of mortgage foreclosure as now provided by
Pennsylvania Procedural Rules 1141 to 1148, both inclusive, or other
appropriate proceedings now or hereafter prescribed by law, may
forthwith be commenced and prosecuted to judgment, execution and sale,
for the collection of the whole amount of such Lease Balance and the
Make-Whole Premium, together with all fees, costs and expenses of such
proceedings, including reasonable attorney's fees and expenses. And all
errors in such proceedings, together with any stays of or exemptions
from execution, or extensions of time of payment, which may be given by
any Act or Acts of Assembly now in force, or which may be enacted
hereafter, are hereby forever waived and released.
If, pursuant to the exercise by the Lessor of its remedies pursuant to this
Section 16.2, the Lease Balance and all other amounts due and owing from the
Lessee under this Lease and the other Operative Documents have been paid in
full, then the Lessor shall remit to the Lessee any excess amounts received by
the Lessor. Amounts received by the Lessor from the Collateral Account will be
applied against the Lessee's liabilities hereunder.
16.3. Waiver of Certain Rights. If this Lease shall be terminated
pursuant to Section 16.2, the Lessee waives, to the fullest extent permitted by
law, (a) any notice of re-entry or the institution of legal proceedings to
obtain re-entry or possession; (b) any right of redemption, re-entry or
repossession; (c) the benefit of any laws now or hereafter in force exempting
property from liability for rent or for debt or limiting the Lessor with respect
to the election of remedies; and (d) any other rights which might otherwise
limit or modify any of the Lessor's rights or remedies under this Article XVI.
16.4. Ownership of Common Stock. In the event that (i) during the
Interim Term as the result of any act or omission of Lessee, or anything within
the control of Lessee, or anything that could not have been avoided through the
use of best efforts by Lessee, or (ii) during the Base Term more than 50% of the
common stock of the Lessee shall at any time be owned by any single Person
and/or the Affiliates of such Person, which is not an owner of more than 50% of
the common stock of the Lessee as of the Documentation Date, without the prior
written consent of the Board of Directors of the Lessee, the Construction
Lender, the Certificate Purchaser and all Tranche A Lenders and Tranche B
Lenders, then the principal amount of the Construction Loan, the Certificate,
the Tranche A Notes and/or Tranche B Notes held by such non-consenting
Construction Lender, Certificate Purchaser, Tranche A Lenders and/or Tranche B
Lenders, as the case may be, shall at the option of any such Person become
immediately due and payable.
16.5. Limitation of Recourse During the Interim Term. Notwithstanding
any provision to the contrary contained in this Lease or any other Operative
Documents, prior to the commencement of the Base Term, the aggregate amount
payable by the Lessee on a recourse basis under this Article XVI and under
Section 18.3 as the result of a Construction Agency Event of Default which is
due solely to an Unrelated Event shall be subject to the limitations on recourse
liability set forth in Section 13.1B.(2) of the Participation Agreement and (ii)
prior to the commencement of the Base Term, before requiring Lessee to pay
amounts in connection with a Construction Agency Event of Default as set forth
in Section 13.1B.(2), Lessor shall determine Lessor's Actual Loss with respect
to such Construction Agency Event of Default, it being agreed that upon the
occurrence of a Construction Agency Event of Default, Lessor may exercise one or
more of Lessor's remedies set forth in Sections 16.2(a), (b), (c), (f), (g) and
(k), and Lessee shall be liable to Lessor only for an amount on a recourse basis
(excluding any amounts which Lessor may receive upon a sale of the Property)
equal to the lesser of Lessor's Actual Loss and the amount Lessee may be
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required to pay pursuant to Section 13.1B.(2) of the Participation Agreement
(and in the case of any Construction Agency Event of Default not related to an
Unrelated Event, Lessee shall be liable for the full Actual Loss, and the
foregoing limits in Section 13.1B(2) of the Participation Agreement shall not
apply); provided, however, in the event that Lessor, in the course of exercising
Lessor's remedies, determines that the Actual Loss to Lessor is in excess of the
Actual Loss previously determined, Lessee shall pay to Lessor such excess
amounts immediately upon demand, but in no event shall Lessee be required to pay
on a recourse basis (excluding any amounts which Lessor may receive upon a sale
of the Property) sums to Lessor in excess of that Lessee may be required to pay
pursuant to Section 13.1B.(2) of the Participation Agreement (except in the case
of a Construction Agency Event of Default not related to an Unrelated Event, in
which case Lessee shall be liable for the full Actual Loss, and the foregoing
limits in Section 13.1B(2) of the Participation Agreement shall not apply).
ARTICLE XVII
LESSOR'S RIGHT TO CURE
17.1. The Lessor's Right to Cure the Lessee's Lease Defaults. The
Lessor, upon two (2) Business Days prior notice (except that in any circumstance
in which there is a risk of imminent harm to any Person or property or any
possibility of criminal liability to any Participant, no notice shall be
required), 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 XIII, 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 reasonable out-of-pocket costs and expenses so incurred
(including fees and expenses of counsel), together with interest thereon at the
Overdue Rate from the date on which such sums or expenses are paid by the
Lessor, shall be paid by the Lessee to the Lessor on demand.
ARTICLE XVIII
PURCHASE PROVISIONS
18.1. Purchase Option. Without limitation of the Lessee's purchase
obligation pursuant to Sections 18.2 or 18.3, the Lessee shall have the option
at any time (exercisable by giving the Lessor irrevocable written notice (the
"Purchase Notice") of the Lessee's election to exercise such option) to purchase
the Improvements on the date specified in such Purchase Notice at a price equal
to the Lease Balance(the "Purchase Option Price") (plus all other amounts owing
in respect of Rent including Supplemental Rent theretofore accruing), provided,
however, that Lessee may only give notice of and exercise the Purchase Option
(hereinafter defined) under this Section 18.1 simultaneously with and on the
same date of Lessee's exercise of its rights with respect to all "Improvements"
under Section 18.1 of the Existing Lease, as such term is defined in the
Existing Lease, and may only exercise its rights under Section 18.1 of the
Existing Lease with respect to all "Improvements" (and not merely with respect
to the "Manufacturing Facility") as such terms are defined in the Existing
Lease, and may only do so simultaneously with its exercise of its rights under
this Section 18.1. The Lessee shall deliver the Purchase Notice to the Lessor
not more than three hundred sixty (360) days and not less than ninety (90) days
prior to such purchase. If the Lessee exercises its option to purchase the
Improvements pursuant to this Section 18.1 (the "Purchase Option"), the Lessor
shall transfer to the Lessee or its designee all of the Lessor's right, title
and interest in and to the Improvements as of the date specified in the Purchase
Notice upon receipt of the Purchase Option Price in accordance with Section
21.1(a) and the "Purchase Option Price" as such term is defined in the Existing
Lease in accordance with Section 21.1(a) of the Existing Lease.
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18.2. Expiration Date Purchase Obligation. Unless (a) the Lessee shall
have properly exercised the Purchase Option pursuant to Section 18.1 and
purchased the Improvements pursuant thereto, or (b) the Lessee shall have
properly exercised the Remarketing Option and shall have fulfilled all of the
conditions of clauses (a) through (k) of Section 20.1 hereof and the Lessor
shall have sold its interest in the Improvements pursuant thereto, then, subject
to the terms, conditions and provisions set forth in this Article, and in
accordance with the terms of Section 21.1(a), the Lessee shall purchase from the
Lessor, and the Lessor shall convey to the Lessee, on the Expiration Date all of
the Lessor's interest in the Improvements for an amount equal to the Lease
Balance (plus all other amounts owing in respect of Rent including Supplemental
Rent theretofore accruing). The Lessee may designate, in a notice given to the
Lessor not less than ten (10) Business Days prior to the closing of such
purchase (time being of the essence), the transferee or transferees to whom the
conveyance shall be made (if other than to the Lessee), in which case such
conveyance shall (subject to the terms and conditions set forth herein) be made
to such designee; provided, however, that such designation of a transferee or
transferees shall not cause the Lessee to be released, fully or partially, from
any of its obligations under this Lease, including the obligation to pay the
Lessor the Lease Balance on such Expiration Date.
18.3. Acceleration of Purchase Obligation.
(a) The Lessee shall be obligated to purchase for an amount
equal to the Lease Balance (plus all other amounts owing in respect of
Rent including Supplemental Rent theretofore accruing) the Lessor's
interest in the Improvements (notwithstanding any prior election to
exercise its Purchase Option pursuant to Section 18.1) (i)
automatically and without notice upon the occurrence of any Lease Event
of Default specified in clause (g) or (h) of Section 16.1 and (ii) as
provided for at Section 16.2(e) immediately upon written demand of the
Lessor upon the occurrence of any other Lease Event of Default in
existence at the expiration of the Interim Term.
(b) After the expiration of the Interim Term, the Lessee shall
be obligated to purchase for an amount equal to the Lease Balance (plus
all other amounts owing in respect of Rent including Supplemental Rent
theretofore accruing) immediately upon written demand of the Lessor the
Lessor's interest in the Improvements at any time during the Term when
(i) the Lessor ceases to have title as contemplated by Section 11.1 or
(ii) any Operative Document to which the Lessee is a party shall cease
to be in full force and effect, or shall cease to give the Lessor or
the Lenders the Liens, rights, powers and privileges purported to be
created thereby or (iii) the purchase obligation under the Existing
Lease shall have been accelerated for reasons other than an
acceleration as a result of a default under provisions in the Existing
Lease and documents related to the Existing Lease as expressly listed
in Section 16.1(f).
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ARTICLE XIX
RENEWAL TERMS
19.1. Renewal. Subject to the conditions set forth herein, the Lessee
and the Lessor may agree to renew the Base Term for the Property for one or more
terms (each, a "Renewal Term"), with each such Renewal Term to commence on the
first day following the Expiration Date then in effect for the Property and end
on the fifth anniversary of such day, provided, however, that Lessee may only
exercise its renewal rights under this Section 19.1 simultaneously with and on
the same day of Lessee's exercise of its rights under Section 19.1 of the
Existing Lease. The effective extension of the Base Term for the "Property" as
such term is defined the Existing Lease and the Property under this Lease shall
be subject to the satisfaction of each of the conditions contained in Section
19.1 of the Existing Lease and each of the following conditions:
(a) the Lessee shall have delivered, not later than 365 days
prior to the Expiration Date then in effect for the Property, written
notice to the Lessor and each Participant of the Lessee's request to
extend the Base Term for the Property;
(b) on both the date of delivery of the notice referred to in
clause (a) and on the Expiration Date then in effect for the Property,
(i) no Event of Default shall have occurred and be continuing, and (ii)
by delivery of written notice of its intent to renew the Base Term, the
Lessee shall be deemed to represent to the Lessor as to the matters set
forth in clause (i) of this condition (b);
(c) the Lessee shall not have exercised the Remarketing Option
with respect to the Improvements; and
(d) the Certificate Purchaser, the Tranche A Lenders and the
Tranche B Lender, in the exercise of their sole discretion, shall have
agreed with the Lessee (w) to the extension of the Maturity Date with
respect to the Loans and Certificate Amounts, (x) upon the Rent
applicable for such Renewal Term, (y) upon the conditions for
permitting such renewal (including the delivery of an appraisal
satisfactory in form and substance to each Participant and such other
conditions as any Participant, in its sole discretion, may request) and
(z) upon such other modification to this Lease as the Participants and
the Lessor then deem appropriate;
provided, however, that in no event shall there be more than two Renewal Terms
for the Property.
ARTICLE XX
REMARKETING OPTION
20.1. Option to Market. Subject to the fulfillment of each of the
conditions set forth in this Section 20.1, the Lessee shall have the option (the
"Remarketing Option") to market and complete the sale of the Improvements for
the Lessor , provided, however, that Lessee may only exercise the Remarketing
Option under this Section 20.1 simultaneously with and on the same date of
Lessee's exercise of its rights under Section 20.1 of the Existing Lease.
The Lessee's effective exercise and consummation of the "Remarketing
Option" as such term is defined under the Existing Lease, and the Remarketing
Option hereunder shall be subject to the due and timely fulfillment of each of
the provisions set forth in Section 20.1 of the Existing Lease and each of the
following provisions as to the Land and Improvements as of the dates set forth
below.
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(a) Not later than 365 days prior to the Expiration Date, the
Lessee shall give to the Lessor written notice of the Lessee's exercise
of the Remarketing Option. In connection with the Remarketing Option,
the Land and Improvements shall be sold together in the same
transaction to the same purchaser(s). At any time after electing to
exercise the Remarketing Option and prior to the sale of the Property
(or the execution and delivery of a binding agreement to sell the
Property) pursuant to the Remarketing Option, the Lessee may elect, in
its sole discretion, to exercise the Purchase Option.
(b) Not later than one hundred twenty (120) days prior to the
Expiration Date, the Lessee shall deliver to the Lessor an
Environmental Audit for the Property. Such Environmental Audit shall be
prepared by an environmental consultant selected by the Lessor in the
Lessor's reasonable discretion and shall contain conclusions reasonably
satisfactory to the Lessor as to the environmental status of the
Property. If any such Environmental Audit indicates any exceptions, 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 remedying of such exceptions in compliance with
Applicable Law.
(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 Lease Event of Default
or Lease Default shall exist.
(d) The Improvements shall have been constructed in accordance
with the Plans and Specifications not later than one day prior to the
Expiration Date. The Lessee shall have completed in all material
respects all Modifications, restoration and rebuilding of the affected
Property pursuant to Sections 10.1 and 14.1 (as the case may be), shall
have removed any walkways and other Improvements connecting the
Property to any other property, to the extent requested by any
Participant, and shall have fulfilled in all material respects all of
the conditions and requirements in connection therewith pursuant to
said Sections, in each case 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 Modifications commenced prior to the Expiration Date. The Lessee
shall not have been excused pursuant to Section 12.1 from complying
with any Applicable Law that involved the extension of the ultimate
imposition of such Applicable Law beyond the last day of the Term. Any
Permitted Liens (other than Lessor Liens) on the Property that were
contested by the Lessee shall be removed prior to the Expiration Date.
(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 Improvements (as well as its
interest in the Land) for cash and will attempt to obtain for the
Improvements the highest purchase price therefor, and in any event not
less than the Lease Balance. The Lessee will be responsible for hiring
brokers and making the Property available for inspection by prospective
purchasers. The Lessee shall promptly upon request permit inspection of
the Property and any 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.
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(f) The Lessee shall submit all bids to the Lessor and the
Participants, 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 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 Participants not less than ninety (90) days prior to the
Expiration Date a binding written unconditional (except as set forth
below), irrevocable offer by such purchaser or purchasers offering the
highest all cash bid to purchase the Property (unless otherwise agreed
to by the Lessor and the Participants). No such purchaser shall be the
Lessee, or any Subsidiary or Affiliate of the Lessee. The written offer
must specify the Expiration Date as the closing date unless the Lessor
and the Participants shall otherwise agree in their sole discretion.
(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 such Property,
including an environmental indemnity to the extent the same are
required by the purchaser. The Lessee shall have obtained, at its cost
and expense, all required governmental and regulatory consents and
approvals and shall have made all filings as required by Applicable Law
in order to carry out and complete the transfer of 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. Any agreement as to such sale shall be made
subject to the Lessor's rights hereunder and shall be in form and
substance satisfactory to the Lessor. Should the Lessee submit a bona
fide, arms-length offer from a third-party to purchase the Property
acceptable to the Participants, and the provisions of this Section 20.1
shall have been satisfied in the sole discretion of the Participants,
and provided that no Lease Event of Default shall have occurred and be
continuing, the Lessor shall notify the Lessee of its approval of the
offer and acknowledge that the Lessor will deliver the agreements and
instruments which it is obligated to deliver pursuant to Section 21.1.
(h) The Lessee shall pay or cause to be paid directly, and not
from the sale proceeds, any prorations, credits, costs and expenses of
the sale of the Property, whether incurred by the Lessor or the Lessee,
including the cost of all title insurance, surveys, environmental
reports, appraisals, transfer taxes, the Lessor's reasonable attorneys'
fees, the Lessee's attorneys' fees, commissions, escrow fees, recording
fees, and all applicable documentary and other transfer taxes.
(i) Lessee shall pay to the Lessor 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 Basic Rent and all other amounts under any Operative
Document which have accrued as of the Expiration Date, in the type of
funds specified in Section 3.4 hereof.
(j) Lessee shall pay to the Lessor on or prior to the
Expiration Date the amounts, if any, required to be paid pursuant to
Section 13.2 of the Participation Agreement.
(k) Lessee shall pay to the Lessor on the Expiration Date the
Termination Rental Amount.
(l) The purchase of the Property shall be consummated on the
Expiration Date and the Gross Proceeds from Improvements shall be paid
directly to the Lessor or its assignee; provided, however, that if the
sum of the Gross Proceeds from Improvements, the amounts, if any,
required to be paid pursuant to Section 13.2 of the Participation
Agreement, the principal portion of Basic Rent and the Termination
Rental Amount exceeds the Lease Balance (minus amounts paid by the
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Lessor solely as a result of Unrelated Indemnity Events) as of such
date, then the excess shall be paid to the Lessee on the Expiration
Date.
If one or more of the foregoing provisions or the provisions set forth
in Section 20.1 of the Existing Lease shall not be fulfilled as of the date set
forth above with respect to the Property, then the Lessor shall declare by
written notice to the Lessee the Remarketing Option and the "Remarketing Option"
as such term is defined in the Existing Lease to be null and void (whether or
not it has been theretofore exercised by the Lessee), in which event all of the
Lessee's rights under this Section 20.1 and under Section 20.1 of the Existing
Lease shall immediately terminate and the Lessee shall be obligated to purchase
the Improvements pursuant to Section 18.2 and the "Improvements" as such term is
defined in the Existing Lease on the Expiration Date.
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 Improvements.
Notwithstanding anything to the contrary in this Section 20.1, Section
5.2(iii) of the Participation Agreement and of the "Participation Agreement" as
such term is defined in the Existing Lease shall be controlling.
20.2. Certain Obligations Continue. During the Marketing Period, the
obligation of the Lessee to pay Rent (including the installment of Basic Rent
due on the Expiration Date) shall continue undiminished until payment in full of
all other amounts due to the Lessor with respect to the Property under the
Operative Documents to which the Lessee is a party. The Lessor shall have the
right, but shall be under no duty, to solicit bids, to inquire into the efforts
of the Lessee to obtain bids or otherwise to take action in connection with any
such sale, other than as expressly provided in this Article XX.
20.3. Termination of Operative Documents. Upon the closing of the sale
of the Property pursuant to the Remarketing Option in accordance with Article XX
of this Lease and payment by Lessee of all other obligations then due and
payable hereunder and under the other Operative Documents, the obligation of the
Lessee to pay any remaining Lease Balance (exclusive of those obligations that
expressly survive the Expiration Date) shall terminate and become null and void,
all Liens created under the Operative Documents shall be terminated of record
and the Lease Balance shall be deemed to be fully paid in its entirety;
provided, that such obligations shall be reinstated in their entirety if at any
time any payment (in whole or in part) of any such obligations is rescinded or
must otherwise be restored upon the insolvency, bankruptcy or reorganization of
the Lessee or otherwise.
ARTICLE XXI
PROCEDURES RELATING TO PURCHASE OR REMARKETING
21.1. Provisions Relating to the Exercise of Purchase Option or
Obligation and Conveyance Upon Remarketing and Conveyance Upon Certain Other
Events.
(a) In connection with the Lessee's exercise of its Purchase
Option or Expiration Date Purchase Obligation, upon the Expiration
Date, or in connection with a purchase of the Improvements under
Article XV or Section 16.2(e) hereof or the payment of all amounts due
under Section 5.1 of the Construction Agency Agreement and upon tender
by the Lessee of the amounts set forth in Article XV, Sections 16.2(e),
18.1, 18.2 or 18.3 hereof or Section 5.1 of the Construction Agency
Agreement, as applicable:
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(i) the Lessor shall execute and deliver to the
Lessee (or to the Lessee's designee) at the Lessee's cost and
expense a quitclaim deed with respect to the Improvements, an
assignment of the Lessor's interest in the Ground Lease (or a
termination of the Ground Lease, if applicable, quitclaim ▇▇▇▇
of sale with respect to the Equipment and an assignment of the
Lessor's entire interest in the Improvements (which shall
include an assignment of all of the Lessor's right, title and
interest in and to any Net Proceeds not previously received by
the Lessor), in each case in recordable form and otherwise in
conformity with local custom and free and clear of the Lien of
the Mortgage (and any other Lien arising in connection with
the Operative Documents) and any Lessor Liens attributable to
the Lessor;
(ii) the Improvements shall be conveyed to the Lessee
"AS IS" and in its then present physical condition;
(iii) the Lessor shall execute and deliver to Lessee
and the Lessee's title insurance company an affidavit as to
the absence of any Lessor Liens and shall cause the
Participants to execute and deliver a release of Mortgage and
termination statements for any financing statements which are
of record on the Initial Advance Date;
(iv) the Lessor shall execute and deliver such other
affidavits and certificates reasonably requested by any title
insurance company insuring title to the Property with respect
to the absence of Lessor Liens, as well as a FIRPTA affidavit;
and
(v) in the event of a sale of the Property to a
Person other than the Lessee, the Lessor and the Lessee shall
execute an instrument in recordable form declaring this Lease
to be terminated as of the date of closing of the sale of the
Property, and releasing any Lien granted pursuant to this
Lease encumbering the Property.
(b) If the Lessee properly exercises the Remarketing Option,
then the Lessee shall, on the Expiration Date, and at its own cost,
transfer possession of the Property to the independent purchaser(s)
thereof, in each case by surrendering the same into the possession of
the Lessor or such purchaser(s), as the case may be, free and clear of
all Liens other than Lessor Liens and the lien of the Mortgage, in good
condition (as modified by Modifications permitted by this Lease),
ordinary wear and tear excepted, and in compliance with Applicable Law
and the provisions of this Lease, and the Lessee shall execute and
deliver to the purchaser at the Lessee's cost and expense a special
warranty deed with respect to the Property, a ▇▇▇▇ of sale with respect
to the Equipment, in each case in recordable form and otherwise in
conformity with local custom and free and clear of all Liens, other
than Permitted Liens; the Lessee shall execute and deliver to purchaser
and the purchaser's title insurance company an affidavit as to the
absence of any Liens (other than Permitted Liens), and such other
affidavits and certificates reasonably requested by any title insurance
company insuring title to the Property, as well as a FIRPTA affidavit,
and an instrument in recordable form declaring this Lease to be
terminated on the date of closing of the sale of the Property; the
Lessor shall execute and deliver to purchaser an assignment of Lessor's
interest in the Ground lease without recourse, representation or
warranty. The Lessee shall, on and within a reasonable time before and
up to one year after the Expiration Date, cooperate reasonably with the
Lessor and the independent purchaser(s) of the Property in order to
facilitate the purchase by such purchaser(s) of the Property, which
cooperation shall include the following, all of which the Lessee shall
do on or before the Expiration Date or as soon thereafter as is
reasonably practicable: providing all books and records regarding the
maintenance and ownership of the Property and all know-how, data and
technical information relating thereto, providing a current copy of the
Plans
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and Specifications for the Improvements, granting or assigning all
licenses necessary for the operation and maintenance of the Property
and cooperating reasonably in seeking and obtaining all necessary
Governmental Action. The obligations of the Lessee under this paragraph
shall survive the expiration or termination of this Lease.
ARTICLE XXII
ESTOPPEL CERTIFICATES
22.1. 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 in
the case of the Lessor, as Certifying Party, 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 Lessor by the
Lessee or the Lenders) 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 XXII may be
relied upon by the Requesting Party, and any existing or prospective mortgagee,
purchaser or lender, and any accountant or auditor, of, from or to the
Requesting Party (or any Affiliate thereof).
ARTICLE XXIII
ACCEPTANCE OF SURRENDER
23.1. Acceptance of Surrender. No surrender to the Lessor of this Lease
or of all or any portion of the Property or of any part of any thereof or of any
interest therein shall be valid or effective unless agreed to and accepted in
writing by the Lessor and, prior to the payment or performance of all
obligations under the Loan Agreement and termination of the Commitments, the
Lenders, and no act by the Lessor or the Lenders or any representative or agent
of the Lessor or the Lenders, other than a written acceptance, shall constitute
an acceptance of any such surrender.
ARTICLE XXIV
NO MERGER OF TITLE
24.1. 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, (b) the fee or ground leasehold estate in the Property,
except as may expressly be stated in a written instrument duly executed and
delivered by the appropriate Person or (c) a beneficial interest in the Lessor.
ARTICLE XXV
INTENT OF THE PARTIES
25.1. Ownership of the Property. (a) It is the intent of the parties
hereto that for all purposes other than financial accounting purposes,
including, state, real estate, commercial law, bankruptcy and
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federal, state and local income tax purposes, the transaction contemplated
hereby is a financing arrangement and preserves ownership in the Property in the
Lessee.
(b) It is the intent of the parties hereto that
(i) the obligations of the Lessee under the Lease to
pay Basic Rent and Supplemental Rent or Lease Balance in
connection with any purchase of the Property pursuant to the
Lease shall be treated as payments of interest on and
principal of, respectively, loans from the Lessor, the
Certificate Purchaser and the Lenders to the Lessee, and (ii)
the Lease grants a security interest and mortgage, as the case
may be, on the Property to the Lessor to secure Lessee's
performance under and payment of all amounts under the Lease
and the other Operative Documents.
(c) Specifically, without limiting the generality of
subsection (b) of this Section 25.1, the Lessor and the Lessee intend
and agree that with respect to the nature of the transactions evidenced
by the Lease in the context of the exercise of remedies under the
Operative Documents, including, in the case of any insolvency or
receivership proceedings or a petition under the United States
bankruptcy laws or any other applicable insolvency laws or statute of
the United States of America or any State or Commonwealth thereof
affecting the Lessee, the Lessor, the Certificate Purchaser or any
Participant or any enforcement or collection actions, the transactions
evidenced by the Lease are loans made by the Lessor, Certificate
Purchaser and the Lenders as unrelated third party lenders to the
Lessee secured by the Property (it being understood that Lessee hereby
mortgages, grants, bargains, sells, releases, confirms, conveys,
assigns, transfers and sets over to the Lessor, for the benefit of the
Lenders and the Certificate Purchaser, and grants a security interest
in, the Property (consisting of a first fee mortgage with respect to
all right, title and interest of the Lessee in and to the fee title to,
and reversionary interest in, the Land and Improvements) and a first
leasehold mortgage on the Lessee's leasehold estate under this Lease,
all to secure such loans, effective on the date hereof, to have and to
hold such interests in the Property unto the Lessor, for the benefit of
the Lenders and the Certificate Purchaser and their respective
successors and assigns, forever, to secure all Obligations and all
amounts payable by Lessee, the Construction Agent and the Guarantors
under the Operative Documents, provided always that these presents are
upon the express condition that, if all amounts due under the Lease and
the other Operative Documents shall have been paid and satisfied in
full, then this instrument and the estate hereby granted shall cease
and become void).
(d) Specifically, but without limiting the generality of
subsection (b) of this Section 25.1, the Lessor and the Lessee further
intend and agree that, with respect to that portion of the Property
constituting personal property, for the purpose of securing the
Lessee's obligations for the repayment of the above-described loans
from the Lessor, the Certificate Purchaser and the Lenders 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; (ii) the conveyance provided for hereby shall be
deemed to be a grant by the Lessee to the Lessor, for the benefit of
the Lenders and the Certificate Purchaser, of a mortgage lien and
security interest in all of the Lessee's present and future right,
title and interest in and to such portion of the Property, including
but not limited to the Lessee's leasehold estate therein and all
proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, investments, securities or other property, whether in the
form of cash, investments, securities or other property to secure such
loans, effective on the date hereof, to have and to hold such interests
in the Property unto the Lessor, for the benefit of the Lenders and the
Certificate Purchaser and their respective successors and assigns,
forever, provided always that
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these presents are upon the express condition that, if all amounts due
under the Lease shall have been paid and satisfied in full, then this
instrument and the estate hereby granted shall cease and become void;
(iii) the possession by the Lessor of notes and such other items of
property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party"
for purposes of perfecting the security interest pursuant to Section
9-305 of the 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 with priority over all
Liens other than Permitted Liens, under Applicable Law and will be
maintained as such throughout the Term.
25.2. Open-End Mortgage. In the event that a court of competent
jurisdiction rules that this instrument constitutes a mortgage, deed or trust or
other secured financing as is the intent of the parties pursuant to Section
25.1, this instrument shall be deemed to be an Open-End Mortgage as defined in
42 Pa. C.S.A. section 8143(f) and, as such, is entitled to the benefits of
Senate ▇▇▇▇ 693, 1989 session of the General Assembly of Pennsylvania (the
"Act") as codified at 42 Pa. C.S.A. section 8143 et seq. The parties to this
instrument intend that, in addition to any other debt or obligations secured
hereby, this instrument shall secure unpaid balances of advances made pursuant
to the Operative Documents after this instrument is left for record with the
Recorder's Office of the County where the Property is located, whether such
advances are made pursuant to an obligation of the Lessor or otherwise. The
maximum principal amount of unpaid indebtedness secured by this instrument is
TWENTY-FIVE MILLION DOLLARS ($25,000,000) plus interest thereon, which
indebtedness may consist of present and future loans made under the Operative
Documents, fees payable pursuant thereto, advances made with respect to the
Property for the payment of, among other things, taxes, assessments, maintenance
charges, insurance premiums and the like, and costs and expenses, including but
not limited to attorney's fees, incurred for the protection of the Property or
the lien and security of this instrument or by reason of a Lease Event of
Default.
ARTICLE XXVI
MISCELLANEOUS
26.1. Survival; Severability; Etc. 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
for a period of one year except as to indemnification which shall continue to
survive. 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 XIV, XV, XVIII, XIX or XX, would, in the absence of
the limitation imposed by this sentence, be invalid or unenforceable as being in
violation of the rule against perpetuities or any other rule of law relating to
the vesting of an interest in or the suspension of the power of alienation of
property, then such right or option shall be exercisable only during the period
which shall end twenty-one (21) years after the date of death of the last
survivor of the descendants of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, the former President of
the United States, ▇▇▇▇▇ ▇▇▇▇, the deceased automobile manufacturer, and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, the founder of
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Lease
37
the Standard Oil Company, known to be alive on the date of the execution,
acknowledgment and delivery of this Lease.
26.2. Amendments and Modifications. Subject to the requirements,
restrictions and conditions set forth in the Participation Agreement, neither
this Lease nor any provision hereof may be amended, waived, discharged or
terminated except by an instrument in writing in recordable form signed by the
Lessor and the Lessee.
26.3. No Waiver. No failure by the Lessor or the Lessee to insist upon
the strict performance of any term hereof or to exercise any right, power or
remedy upon a default hereunder, and no acceptance of full or partial payment of
Rent during the continuance of any such default, shall constitute a waiver of
any such default or of any such term. To the fullest extent permitted by law, no
waiver of any default shall affect or alter this Lease, and this Lease shall
continue in full force and effect with respect to any other then existing or
subsequent default.
26.4. Notices. All notices, demands, requests, consents, approvals and
other communications hereunder shall be in writing (including by facsimile), and
directed to the address described in, and deemed received in accordance with the
provisions of, Section 14.3 of the Participation Agreement.
26.5. 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.
26.6. 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.
26.7. 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.
26.8. GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
26.9. Limitations on Recourse. The parties hereto agree that except as
specifically set forth in the Lease or in any other Operative Document, Trust
Company 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 Trust
Company shall be liable in its individual capacity (a) for its own willful
misconduct or gross negligence (or negligence in the handling of funds), or (b)
for any Tax based on or measured by any fees, commission or compensation
received by it for acting as the Lessor as contemplated by the Operative
Documents. It is understood and agreed that, except as provided in the preceding
sentence: (i) Trust Company 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 Trust Company to the Lessee are
solely nonrecourse obligations except to the extent that it has received payment
from others; (iii) all such personal liability of Trust Company is expressly
waived and released as a condition of, and as consideration for, the execution
and delivery of the Operative Documents by Trust Company; and (iv) this Lease is
executed and delivered by Trust Company solely in the exercise of the powers
expressly conferred upon it as the Lessor under the Trust Agreement. It is
expressly understood and agreed by the parties hereto that (a) this Lease is
executed and delivered by
34
Lease
38
Wilmington Trust Company, not individually or personally, except as expressly
stated herein, but solely as Certificate Trustee of Brush Creek Business Trust
II, a statutory Delaware business trust created under the Trust Agreement, in
the exercise of the powers and authority conferred and vested in it under the
Trust Agreement, (b) each of the representations, undertakings and agreements
herein made by the Certificate Trustee on the part of the Trust is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company, except as expressly stated herein, but is made and
intended for the purpose of binding only the Trust and (c) except as expressly
stated herein or in the other Operative Documents, under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Certificate Trustee or the Trust under this Lease or the other Operative
Documents.
26.10. Original Lease. The single executed original of this Lease
marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on or following
the signature page thereof and containing the receipt of the Certificate Trustee
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.
26.11. SUBMISSION OF JURISDICTION. TO THE FULLEST EXTENT PERMITTED BY
LAW, THE LESSOR AND LESSEE HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA AND ANY
COURT OF THE COMMONWEALTH OF PENNSYLVANIA FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR IN CONNECTION WITH THE OPERATIVE DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY. THE LESSOR AND LESSEE IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH SUCH PARTY MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDINGS BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
/s/ BEH
---------
26.12. POWER TO CONFESS JUDGMENT. THE LESSEE HEREBY AUTHORIZES AND
EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE
COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE AFTER A DEFAULT UNDER THIS LEASE, THE
GUARANTY, THE CONSTRUCTION AGENCY AGREEMENT, OR ANY OF THE OPERATIVE DOCUMENTS
TO APPEAR FOR THE LESSEE, AND, WITH OR WITHOUT DECLARATION FILED, CONFESS
JUDGMENT AGAINST THE LESSEE IN FAVOR OF THE LESSOR, AS OF ANY TERM, FOR THE
UNPAID OBLIGATIONS HEREUNDER, AND INCLUDING, WITHOUT LIMITATION, ALL ACCRUED AND
UNPAID INTEREST, CHARGES, EXPENSES OR OTHER AMOUNTS PAYABLE UNDER THIS LEASE,
THE GUARANTY, THE CONSTRUCTION AGENCY AGREEMENT, OR UNDER ANY OF THE OPERATIVE
DOCUMENTS, WHETHER BY ACCELERATION OR OTHERWISE WITH COSTS OF SUIT AND A
REASONABLE ATTORNEY'S COMMISSION AS CERTIFIED BY THE LESSOR WITH RELEASE OF ALL
ERRORS, WAIVING ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION TO
THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAIVED BY THE LESSEE. NO SINGLE
EXERCISE OF THE FOREGOING POWER TO CONFESS
35
Lease
39
JUDGMENT SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE
SHALL BE HELD BY ANY COURT TO BE VALID, VOIDABLE, OR VOID, BUT THE POWER SHALL
CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE
LESSOR SHALL ELECT, UNTIL SUCH TIME AS THE LESSOR SHALL HAVE RECEIVED PAYMENT IN
FULL OF THE RENT, OBLIGATIONS, INTEREST AND COSTS AND ALL AMOUNTS PAYABLE UNDER
THIS LEASE.
BY SIGNING THIS INSTRUMENT, THE LESSEE HEREBY ACKNOWLEDGES THAT IT HAS
READ, HAS HAD THE OPPORTUNITY TO HAVE IT REVIEWED BY LEGAL COUNSEL, UNDERSTANDS,
AND AGREES TO THE PROVISIONS CONTAINED HEREIN, INCLUDING THE CONFESSION OF
JUDGMENT PROVISION AND UNDERSTANDS THAT A CONFESSION OF JUDGMENT CONSTITUTES A
WAIVER OF RIGHTS IT OTHERWISE WOULD HAVE TO PRIOR NOTICE AND A HEARING BEFORE A
JUDGMENT IS ENTERED AGAINST IT AND WHICH MAY RESULT IN A COURT JUDGMENT AGAINST
THE LESSEE WITHOUT PRIOR NOTICE OR HEARING AND THAT THE AMOUNTS PAYABLE UNDER
THIS LEASE MAY BE COLLECTED FROM THE LESSEE REGARDLESS OF ANY CLAIM THE LESSEE
MAY HAVE AGAINST THE LESSOR.
/s/ BEH
---------
26.13. POWER TO EXECUTE ON A JUDGMENT WITHOUT HEARING. THE LESSEE
HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF
RECORD OR THE SHERIFF WITHIN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO
TAKE ALL ACTION ALLOWED BY OR PROVIDED FOR IN THE PENNSYLVANIA RULES OF CIVIL
PROCEDURE OR OTHER APPLICABLE RULES OF CIVIL PROCEDURE TO EXECUTE ON ANY
JUDGMENT ENTERED AGAINST THE LESSEE PURSUANT TO THE CONFESSION OF JUDGMENT SET
FORTH ABOVE WITHOUT PRIOR NOTICE OR HEARING OF ANY NATURE WHATSOEVER, WAIVING
ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION, TO THE EXTENT THAT
SUCH LAWS MAY LAWFULLY BE WAIVED BY THE LESSEE. NO SINGLE EXERCISE OF THE
FOREGOING POWER TO EXECUTE ON JUDGMENT WITHOUT A HEARING SHALL BE DEEMED TO
EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT
TO BE VALID, VOIDABLE OF VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT
MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE LESSOR SHALL ELECT UNTIL SUCH
TIME AS THE LESSOR SHALL HAVE RECEIVED PAYMENT IN FULL OF THE RENT, OBLIGATIONS,
INTEREST AND COSTS AND ALL AMOUNTS PAYABLE UNDER THIS LEASE.
BY SIGNING THIS INSTRUMENT THE LESSEE HEREBY ACKNOWLEDGES THAT IT HAS
READ, HAS HAD THE OPPORTUNITY TO HAVE IT REVIEWED BY LEGAL COUNSEL, UNDERSTANDS
AND AGREES TO THE PROVISIONS CONTAINED HEREIN, INCLUDING THE POWER TO EXECUTE ON
JUDGMENT WITHOUT A HEARING, AND UNDERSTANDS THAT THE POWER TO EXECUTE ON A
JUDGMENT WITHOUT A HEARING CONSTITUTES A WAIVER OF RIGHTS IT OTHERWISE WOULD
HAVE TO PRIOR NOTICE AND A HEARING BEFORE EXECUTION ON A JUDGMENT, AND THAT THE
AMOUNTS PAYABLE UNDER THIS LEASE MAY BE COLLECTED FROM THE LESSEE REGARDLESS OF
ANY CLAIM THAT THE LESSEE MAY HAVE AGAINST THE LESSOR.
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Lease
40
26.14. No Merger. If the fee simple interest in the Property and the
leasehold interest therein shall be held by the same party, the interest in the
Property granted to the Certificate Trustee pursuant to the Ground Lease and the
interest of the Lessee in the Lease shall not terminate or be merged and the
Ground Lease and the Lease shall remain in full force and effect.
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Lease
41
IN WITNESS WHEREOF, the parties have caused this Lease be duly executed
and delivered as of the date first above written.
Attest: FORE SYSTEMS, INC.
/s/ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: SR. VP & CHIEF FINANCIAL OFFICER
--------------------------------
Attest:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Secretary
S-1
42
Attest: WILMINGTON TRUST COMPANY, not in its
individual capacity except as expressly stated
herein, but solely as Certificate Trustee
/s/ Illegible By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: FINANCIAL SERVICES OFFICER
--------------------------------
Certificate of Residence
------------------------
I hereby certify that the precise and complete post office address of
the within named mortgagee is ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Attorney for Wilmington Trust Company, as
Certificate Trustee
S-2
43
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of the date hereof.
Attest: MELLON BANK, N.A.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------- -----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
--------------------------
▇-▇
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ )
------------ ) ss.:
COUNTY OF ALLEGHENY )
---------
The foregoing Lease was acknowledged before me, the
undersigned Notary Public, in the County of ALLEGHENY, PENNSYLVANIA, this 4TH
--------- ------------ ---
day of December, 1998, by ▇▇▇▇▇ ▇. ▇▇▇▇▇, as SR. V.P. & CFO, of FORE
--------------- --------------
SYSTEMS, INC., a Delaware corporation, on behalf of the corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[Notarial Seal] -----------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires: 7-5-2001
---------------------
45
STATE OF DELAWARE )
-------- ) ss.:
COUNTY OF NEW CASTLE )
----------
The foregoing Lease was acknowledged before me, the
undersigned Notary Public, in the County of NEW CASTLE, DE, this 14TH
---------- --- ----
day of December, 1998, by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as FIN. SVS. OFFICER, of
----------------- -----------------
Wilmington Trust Company, a Delaware banking corporation, not in its individual
capacity, but solely as Certificate Trustee, on behalf of the Certificate
Trustee.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
[Notarial Seal] -----------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires: October 31, 2002
---------------------
46
COMMONWEALTH OF PENNSYLVANIA )
------------ ) ss.:
COUNTY OF ALLEGHENY )
---------
The foregoing Lease was acknowledged before me, the
undersigned Notary Public, in the County of ALLEGHENY, PENNA., this 14TH
--------- ------ ----
day of December, 1998, by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Vice President, of Mellon
--------------- --------------
Bank, N.A., on behalf of the Mellon Bank, N.A.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
[Notarial Seal] -----------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires: November 23, 2000
---------------------
47
Commonwealth of Pennsylvania )
) ss.
County of Allegheny )
RECORDED on this _______ day of ____________ A.D.
19__, in the Recorder's office of said County, in Mortgage Book Vol. ______,
Page ________.
Given under my hand and the seal of the said
office, the date above written.
, Recorder
------------------