Exhibit 10.86
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AMENDED AND RESTATED
MASTER LEASE AND DEED OF TRUST
THIS DOCUMENT SECURES FUTURE ADVANCES
Dated as of June 1, 2003
between
SELCO SERVICE CORPORATION,
doing business in California as "Ohio SELCO Service Corporation",
as Lessor
and
▇▇▇ RESEARCH CORPORATION,
as Lessee
To the extent, if any, that this Master Lease and Deed of Trust
constitutes chattel paper (as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction), no lien on this Master Lease
and Deed of Trust may be created through the transfer or possession of any
counterpart other than the original counterpart containing the receipt therefor
executed by Key Corporate Capital Inc., as the Administrative Agent, on or
following the signature page hereof. This counterpart is NOT the original
counterpart.
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TABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE I DEFINITIONS........................................................................................... 1
ARTICLE II MASTER LEASE......................................................................................... 2
Section 2.1. Acceptance and Lease of Property.......................................................... 2
Section 2.2. Acceptance Procedure...................................................................... 2
Section 2.3. Lease Term................................................................................ 2
Section 2.4. Title..................................................................................... 2
ARTICLE III PAYMENT OF RENT..................................................................................... 2
Section 3.1. Rent...................................................................................... 2
Section 3.2. Payment of Rent........................................................................... 3
Section 3.3. Supplemental Rent......................................................................... 3
Section 3.4. Method of Payment......................................................................... 3
ARTICLE IV QUIET ENJOYMENT; RIGHT TO INSPECT.................................................................... 3
Section 4.1. Quiet Enjoyment........................................................................... 3
Section 4.2. Right to Inspect.......................................................................... 4
ARTICLE V NET LEASE, ETC........................................................................................ 4
Section 5.1. Net Lease................................................................................. 4
Section 5.2. No Termination or Abatement............................................................... 5
ARTICLE VI SUBLEASES AND ASSIGNMENTS............................................................................ 5
Section 6.1. Subletting................................................................................ 5
Section 6.2 Assignment................................................................................ 6
ARTICLE VII LESSEE ACKNOWLEDGMENTS.............................................................................. 6
Section 7.1. Condition of the Property................................................................. 6
Section 7.2. Risk of Loss.............................................................................. 7
ARTICLE VIII POSSESSION AND USE OF THE PROPERTY, ETC............................................................ 7
Section 8.1. Utility Charges........................................................................... 7
Section 8.2. Possession and Use of the Property........................................................ 7
Section 8.3. Compliance with Requirements of Law and Insurance Requirements............................ 7
ARTICLE IX MAINTENANCE AND REPAIR; RETURN....................................................................... 7
Section 9.1. Maintenance and Repair; Return............................................................ 7
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ARTICLE X MODIFICATIONS, ETC.................................................................................... 8
Section 10.1. Modifications, Substitutions and Replacement............................................. 8
Section 10.2. Notice to the Lessor and Administrative Agent............................................ 9
ARTICLE XI DISCHARGE OF LIENS; EASEMENTS........................................................................ 9
Section 11.1. Discharge of Liens....................................................................... 9
Section 11.2. Grants and Releases of Easements; Lessor Waivers......................................... 10
ARTICLE XII PERMITTED CONTESTS.................................................................................. 11
Section 12.1. Permitted Contest........................................................................ 11
ARTICLE XIII INSURANCE.......................................................................................... 11
Section 13.1. Required Insurance....................................................................... 11
Section 13.2. Insurance Coverage....................................................................... 12
ARTICLE XIV CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS.................................................... 13
Section 14.1. Risk of Loss, Damage or Destruction...................................................... 13
Section 14.2. Casualty and Condemnation................................................................ 13
Section 14.3. Environmental Matters.................................................................... 15
Section 14.4. Notice of Environmental Matters.......................................................... 16
ARTICLE XV TERMINATION OF LEASE................................................................................. 16
Section 15.1. Partial Termination Upon Certain Events.................................................. 16
Section 15.2. Partial Termination Procedures........................................................... 16
ARTICLE XVI EVENTS OF DEFAULT................................................................................... 17
Section 16.1. Lease Events of Default.................................................................. 17
Section 16.2. Remedies................................................................................. 19
Section 16.3. Waiver of Certain Rights................................................................. 22
Section 16.4. Deed of Trust Remedies................................................................... 23
Section 16.5. Excess Proceeds; Return of Properties.................................................... 23
ARTICLE XVII LESSOR'S RIGHT TO CURE............................................................................. 23
Section 17.1. The Lessor's Right to Cure the Lessee's Lease Defaults................................... 23
ARTICLE XVIII PURCHASE PROVISIONS............................................................................... 24
Section 18.1. Purchase of Properties................................................................... 24
Section 18.2. Expiration Date Purchase Obligation...................................................... 24
Section 18.3. Acceleration of Purchase Obligation...................................................... 25
Section 18.4. Failure to Elect Options................................................................. 25
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ARTICLE XIX [INTENTIONALLY OMITTED]............................................................................. 25
ARTICLE XX REMARKETING OPTION................................................................................... 25
Section 20.1. Option to Remarket....................................................................... 25
Section 20.2. Procedures During Remarketing............................................................ 26
Section 20.3. Remedies for Failed Remarketing.......................................................... 28
Section 20.4. No Sale of Property...................................................................... 29
Section 20.5. Return of Excess Amounts................................................................. 29
ARTICLE XXI PROCEDURES RELATING TO PURCHASE OR REMARKETING OPTIONS.............................................. 30
Section 21.1. Provisions Relating to the Exercise of Purchase Option or Obligation and Conveyance
upon Remarketing; Conveyance upon Certain Other Events......................................... 30
ARTICLE XXII ESTOPPEL CERTIFICATES.............................................................................. 31
Section 22.1. Estoppel Certificates.................................................................... 31
ARTICLE XXIII ACCEPTANCE OF SURRENDER........................................................................... 31
Section 23.1. Acceptance of Surrender.................................................................. 31
ARTICLE XXIV NO MERGER OF TITLE................................................................................. 32
Section 24.1. No Merger of Title....................................................................... 32
ARTICLE XXV INTENT OF THE PARTIES............................................................................... 32
Section 25.1. Ownership of the Properties.............................................................. 32
ARTICLE XXVI MISCELLANEOUS...................................................................................... 33
Section 26.1. Severability; Perpetuities; Etc.......................................................... 33
Section 26.2. Amendments and Modifications............................................................. 33
Section 26.3. No Waiver................................................................................ 33
Section 26.4. Notices.................................................................................. 33
Section 26.6. Headings and Table of Contents........................................................... 33
Section 26.7. Counterparts............................................................................. 34
Section 26.8. Governing Law............................................................................ 34
Section 26.9. Original Lease........................................................................... 34
Section 26.10. Time of Essence......................................................................... 34
Section 26.11. Liability Limited....................................................................... 34
Exhibit A - Form of Lease Supplement
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AMENDED AND RESTATED
MASTER LEASE AND DEED OF TRUST
THIS DOCUMENT SECURES FUTURE ADVANCES
THIS AMENDED AND RESTATED MASTER LEASE AND DEED OF TRUST (this "Master
Lease"), dated as of June 1, 2003 between ▇▇▇ RESEARCH CORPORATION, a Delaware
corporation, as Lessee and whose principal offices are located at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Lessee") and SELCO SERVICE CORPORATION,
an Ohio corporation, as Lessor, doing business in California as "Ohio SELCO
Service Corporation", whose principal offices are located at c/o KeyCorp
Leasing, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Lessor").
W I T N E S S E T H :
WHEREAS, pursuant to a Participation Agreement dated as of the date
hereof (as amended, modified, restated or supplemented from time to time, the
"Participation Agreement"), among the Lessee, the Lessor, Key Corporate Capital
Inc., and each other holder from time to time of the Notes, as Lenders (herein,
the "Lenders"), and Key Corporate Capital Inc., as Administrative Agent (in such
capacity, and together with its successors and assigns, the "Administrative
Agent") the Lenders and the Lessor have agreed to finance the acquisition of the
Properties;
WHEREAS, on the initial Acquisition Date the Lessor shall acquire from
Scotiabanc Inc., a Delaware corporation ("SBI"), the real property commonly
known as Buildings #8 and #9 at 46555 and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ and more particularly described in the Lease Supplement attached
hereto as Exhibit A, subject to that certain Lease dated as of January 10, 2000
between SBI, as owner, and Lessee, as lessee (as previously amended, the "SBI
Lease");
WHEREAS, on the Acquisition Date the Lessor shall acquire from the
▇▇▇▇▇▇▇ 2000 Trust, a Delaware business trust ("▇▇▇▇▇▇▇ Trust"), the real
property commonly known as Buildings 1 and 2 at 4540 and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and more particularly described in the Lease Supplement
attached hereto as Exhibit A, subject to that certain Lease dated as of December
6, 2000 between ▇▇▇▇▇▇▇ Trust, as owner, and Lessee, as lessee (as previously
amended, the "▇▇▇▇▇▇▇ Lease");
WHEREAS, this Master Lease shall fully amend, replace and restate the
SBI Lease and the ▇▇▇▇▇▇▇ Lease;
WHEREAS, the Lessor desires to lease to the Lessee, and the Lessee
desires to lease from the Lessor, the Property specified in each Lease
Supplement; and
WHEREAS, the Properties will be subject to the terms of this Master
Lease and the Lease Supplements;
▇▇▇ Research Corporation Amended and Restated Master Lease
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that the SBI Lease and the ▇▇▇▇▇▇▇ Lease
are hereby amended and restated in their entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions; Interpretation. Capitalized terms used
but not otherwise defined in this Master Lease have the respective meanings
specified in Appendix A to the Participation Agreement; and the rules of
interpretation set forth in Appendix A to the Participation Agreement shall
apply to this Master Lease.
ARTICLE II
MASTER LEASE
Section 2.1. Acceptance and Lease of Property. Subject to the
terms and conditions set forth herein and in the Participation Agreement,
including without limitation the satisfaction or waiver of the conditions set
forth in Article VI thereof, the Lessor hereby agrees to accept, pursuant to the
terms of the Participation Agreement, delivery on each Acquisition Date of a
Property from one or more third parties designated by the Lessee and
simultaneously to demise and lease to the Lessee hereunder and under the
relevant Lease Supplement for the Lease Term, the Lessor's interest in such
Property and the Lessee hereby agrees, expressly for the direct benefit of the
Lessor, to lease from the Lessor for the Lease Term the interest of the Lessor
in such Property identified in the applicable Lease Supplement.
Section 2.2. Acceptance Procedure. The Lessee hereby agrees that
the execution and delivery by it of a Lease Supplement on or as of each
Acquisition Date shall, without further act, constitute the irrevocable
acceptance by the Lessee of the Property set forth in such Lease Supplement for
all purposes of this Master Lease and the other Operative Documents on the terms
set forth therein and herein, and that such Property shall be deemed to be
included in the leasehold estate of this Master Lease and shall be subject to
the terms and conditions of this Master Lease as of the Acquisition Date
thereof.
Section 2.3. Lease Term. The Lease Term of this Master Lease for
each Property shall commence on (and include) the Acquisition Date of such
Property and end on (but exclude) the Expiration Date.
Section 2.4. Title. Each Property is leased to the Lessee without
any representation or warranty, express or implied, by the Lessor and subject to
the rights of parties in possession, the existing state of title (including,
without limitation, all Liens) and all applicable Requirements of Law. The
Lessee shall not in any event have any recourse against the Lessor for any
defect in or
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▇▇▇ Research Corporation Amended and Restated Master Lease
exception to title to any Property or leasehold interest therein other than
resulting from Lessor Liens attributable to the Lessor.
ARTICLE III
PAYMENT OF RENT
Section 3.1. Rent. (a) During the Lease Term, the Lessee shall pay
Basic Rent to the Lessor on each Scheduled Payment Date, on the date required
under Section 20.2(h) in connection with the Lessee's exercise of the
Remarketing Option and, with respect to any Property, on any date on which this
Master Lease shall terminate with respect to such Property.
(b) Neither the Lessee's inability or failure to take possession
of all or any portion of any Property when delivered by the Lessor, nor the
inability or failure of the Lessor to deliver all or any portion of any Property
to the Lessee on the Acquisition Date therefor, 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 such Property in accordance with the terms of this
Master Lease.
Section 3.2. Payment of Rent. Rent shall be paid absolutely net to
each Person entitled thereto, so that this Master Lease shall yield to such
Person the full amount thereof, without setoff, deduction or reduction.
Section 3.3. Supplemental Rent. The Lessee shall pay to the Lessor
or any other Person entitled thereto any and all Supplemental Rent promptly as
the same shall become due and payable, and if the Lessee fails to pay any
Supplemental Rent, the Lessor and such other Persons 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 for
the period from the due date until the same shall be paid. The expiration or
other termination of the Lessee's obligations to pay Basic Rent hereunder shall
not limit or modify the obligations of the Lessee with respect to Supplemental
Rent. Unless expressly provided otherwise in this Master Lease or in the
Participation Agreement, 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, to the extent incurred as a result of such
failure on the part of the Lessee, any fine, penalty, interest or cost which may
be assessed or added against any Participant by a third party for nonpayment or
late payment of such Supplemental Rent, all of which shall also constitute
Supplemental Rent.
Section 3.4. Method of Payment. Each payment of Rent payable by
the Lessee to the Lessor under this Master Lease or any other Operative Document
shall be made by the Lessee to the Administrative Agent as assignee of the
Lessor under the Assignment of Lease and Rent (or, if all Loans and all other
amounts owing to the Lenders under the Loan Agreement and the other
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▇▇▇ Research Corporation Amended and Restated Master Lease
Operative Documents have been paid in full and all Commitments of the Lenders
have been permanently terminated, to the Lessor) prior to 2:00 p.m. (New York
City time) to the Account in immediately available funds consisting of lawful
currency of the United States of America on the date when such payment shall be
due.
ARTICLE IV
QUIET ENJOYMENT; RIGHT TO INSPECT
Section 4.1. Quiet Enjoyment. Subject to the terms of each of the
Operative Documents, the Lessee shall peaceably and quietly have, hold and enjoy
each Property for the Lease Term, free of any claim or other action by the
Lessor or anyone claiming by, through or under the Lessor with respect to any
matters arising from and after the Acquisition Date. Such right of quiet
enjoyment is independent of, and shall not affect the rights of the Lessor or
any assignee thereof otherwise to initiate legal action to enforce, the
obligations of the Lessee under this Master Lease.
Section 4.2. Right to Inspect. During the Lease Term, the Lessee
shall upon reasonable notice (except that no notice shall be required if a Lease
Event of Default has occurred and is continuing), and from time to time, permit
the Administrative Agent, any Participant, and their respective authorized
representatives to inspect any Property subject to this Master Lease during
normal business hours, and the Lessee will, upon the request of the
Administrative Agent or any Participant, make available to such Person the books
and records of the Lessee relating to such Property; provided that all such
inspections shall be at the sole expense of the Administrative Agent or such
Participant, as the case may be, unless a Lease Event of Default shall have
occurred and is continuing, in which case such inspection shall be at the sole
expense of the Lessee.
ARTICLE V
NET LEASE, ETC.
Section 5.1. Net Lease. This Master Lease shall constitute a net
lease. Any present or future law to the contrary notwithstanding, this Master
Lease shall not terminate, nor shall the Lessee be entitled to any abatement,
suspension, deferment, reduction, setoff, counterclaim or defense with respect
to the Rent, nor shall the obligations of the Lessee hereunder be affected
(except as expressly herein permitted and by performance of the obligations in
connection therewith) by reason of: (i) any defect in the condition,
merchantability, design, construction, quality or fitness for use of any
Property or any part thereof, or the failure of any Property to comply with all
Requirements of Law, including any inability to occupy or use any Property by
reason of such non-compliance; (ii) any damage to, removal, abandonment,
salvage, loss, contamination of or Release from, scrapping or destruction of or
any requisition or taking of any Property or any part thereof; (iii) any
restriction, prevention or curtailment of or interference with the construction
on or any use of any Property or any part thereof including eviction; (iv) any
defect in title of or rights to any Property or any Lien on such title or rights
or on any
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▇▇▇ Research Corporation Amended and Restated Master Lease
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
Administrative Agent or any Participant; (vi) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceedings relating to the Lessee, the Administrative Agent, any Participant or
any other Person, or any action taken with respect to this Master Lease by any
trustee or receiver of the Lessee, the Administrative Agent, any Participant or
any other Person, or by any court in any such proceeding; (vii) any claim that
the Lessee has or might have against any Person, including, without limitation,
the Administrative Agent, any Participant or any vendor, manufacturer,
contractor of or for any Property; (viii) any failure on the part of the Lessor
to perform or comply with any of the terms of this Master Lease, of any other
Operative Document or of any other agreement; (ix) any invalidity or
unenforceability or illegality or disaffirmance of this Master Lease against or
by the Lessee or any provision hereof or any of the other Operative Documents or
any provision of any thereof; (x) the impossibility or illegality of performance
by the Lessee, the Administrative Agent, any Participant or all of them; (xi)
any action by any court, administrative agency or other Governmental Authority;
or (xii) any other cause or circumstances whether similar or dissimilar to the
foregoing and whether or not the Lessee shall have notice or knowledge of any of
the foregoing. The Lessee's agreement in this Section 5.1 shall not affect any
claim, action or right the Lessee may have against the Lessor or any other
Participant. The parties intend that the obligations of the Lessee hereunder
shall be covenants and agreements that are separate and independent from any
obligations of the Lessor hereunder or under any other Operative Documents, and
the obligations of the Lessee shall continue unaffected unless such obligations
shall have been modified or terminated in accordance with an express provision
of this Master Lease.
Section 5.2. No Termination or Abatement. The Lessee shall remain
obligated under this Master Lease in accordance with its terms and shall not
take any action to terminate, rescind or avoid this Master Lease (except as
provided herein), notwithstanding any action for bankruptcy, insolvency,
reorganization, liquidation, dissolution or other proceeding affecting any
Participant, or any action with respect to this Master Lease which may be taken
by any trustee, receiver or liquidator of any Participant or by any court with
respect to any Participant. The Lessee hereby waives, to the extent permitted by
law, all right (i) to terminate or surrender this Master Lease (except as
provided herein) or (ii) to avail itself of any abatement, suspension,
deferment, reduction, setoff, counterclaim or defense with respect to any Rent.
The Lessee shall remain obligated under this Master Lease in accordance with its
terms and the Lessee hereby waives, to the extent permitted by law, any and all
rights now or hereafter conferred by statute or otherwise to modify or to avoid
strict compliance with its obligations under this Master Lease. Notwithstanding
any such statute or otherwise, the Lessee shall be bound by all of the terms and
conditions contained in this Master Lease and the Lease Supplements.
ARTICLE VI
SUBLEASES AND ASSIGNMENTS
Section 6.1. Subletting. The Lessee may sublease a Property or any
portion thereof to any Person; provided, however, that: (a) no sublease or other
relinquishment of possession of
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▇▇▇ Research Corporation Amended and Restated Master Lease
any Property shall in any way discharge or diminish any of the Lessee's
obligations to the Lessor hereunder and the Lessee shall remain directly and
primarily liable under this Master Lease and each Lease Supplement; (b) each
sublease of such Property shall expressly be made subject to and subordinate to
this Master Lease and the related Lease Supplement and to the rights of the
Lessor hereunder and thereunder; (c) each sublease shall expressly provide for
the surrender of the Property or portion thereof by the applicable sublessee at
the election of the Administrative Agent or the Lessor (as applicable) after the
occurrence of a Lease Event of Default; (d) each sublease shall expressly
provide for termination prior to the Expiration Date unless the Lessee elects to
purchase all of the Properties pursuant to Section 18.1; and (e) the use or uses
under any sublease shall be such that they shall not impair the value or utility
of such Property, as certified by a Responsible Officer of the Lessee; provided
that such certification shall not be binding on the Lessor in the event the
Lessee elects the Remarketing Option.
Section 6.2 Assignment. During the Lease Term, the Lessee may
assign to any Subsidiary or Affiliate of the Lessee at any time, in whole or in
part, any of its right, title or interest in, to or under the Lease or any
portion of any Property; provided that no such assignment shall in any way
discharge or diminish any of the Lessee's obligations to the Lessor hereunder
and the Lessee shall remain directly and primarily liable under this Master
Lease and each Lease Supplement. No such assignment shall be effective unless
(a) made pursuant to assignment and assumption documents in form and substance
satisfactory to the Lessor and the Lenders, (b) an opinion of counsel to the
assignee is delivered to the Lessor and the Lenders as to the due authorization,
execution and delivery, and the enforceability of such assignment and such other
matters as the Lessor and the Lenders may request, (c) the use or uses of any
such assignee shall be such that they do not impair the value or utility of such
Property, as certified by a Responsible Officer of the Lessee; provided that
such certification shall not be binding on the Lessor in the event the Lessee
elects the Remarketing Option, and (d) the Lessee or such assignee shall have
made all filings and taken all other actions necessary or desirable to preserve
and protect the rights and interests of the Lessor, the Administrative Agent and
the Lenders under the Operative Documents, all at the Lessee's sole cost and
expense. The Lessee shall notify the Lessor promptly, and in any event not less
than thirty (30) days prior to, the date of such assignment, and provide the
Lessor and the Lenders with the terms of such proposed assignment.
ARTICLE VII
LESSEE ACKNOWLEDGMENTS
Section 7.1. Condition of the Property. THE LESSEE ACKNOWLEDGES
AND AGREES THAT ALTHOUGH THE LESSOR WILL OWN AND HOLD TITLE TO EACH PROPERTY,
THE LESSEE IS SOLELY RESPONSIBLE FOR SUCH PROPERTY AND ANY ALTERATIONS OR
MODIFICATIONS. THE LESSEE FURTHER ACKNOWLEDGES AND AGREES THAT IT IS LEASING
EACH PROPERTY "AS-IS, WHERE IS, AND WITH ALL FAULTS" WITHOUT REPRESENTATION,
WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY THE ADMINISTRATIVE AGENT, THE
LESSOR OR ANY LENDER 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
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▇▇▇ Research Corporation Amended and Restated Master Lease
AND (D) VIOLATIONS OF REQUIREMENTS OF LAW WHICH MAY EXIST ON THE DATE HEREOF OR
ON THE APPLICABLE ACQUISITION DATE. NEITHER THE ADMINISTRATIVE AGENT, NOR THE
LESSOR 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
ATTRIBUTABLE TO SUCH PERSON), VALUE, SUITABILITY, USE, CONDITION, DESIGN,
OPERATION OR FITNESS FOR USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY OTHER
REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY PROPERTY (OR ANY PART THEREOF) AND NEITHER THE ADMINISTRATIVE
AGENT, NOR THE LESSOR NOR ANY LENDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN OR
PATENT DEFECT THEREIN (OTHER THAN FOR LESSOR LIENS ATTRIBUTABLE TO SUCH PERSON)
OR THE FAILURE OF ANY PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY
REQUIREMENT OF LAW.
Section 7.2. Risk of Loss. During the Lease Term the risk of loss
of or decrease in the enjoyment and beneficial use of each 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 not in
any event be answerable or accountable therefor.
ARTICLE VIII
POSSESSION AND USE OF EACH PROPERTY, ETC.
Section 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 each
Property during the Lease Term. The Lessee shall be entitled to receive any
credit or refund with respect to any utility charge paid by the Lessee and the
amount of any credit or refund received by the Lessor on account of any utility
charges paid by the Lessee, net of the costs and expenses reasonably incurred by
the Lessor in obtaining such credit or refund, shall be promptly paid over to
the Lessee.
Section 8.2. Possession and Use of each Property. The Lessee
covenants that each Property shall be used as an office facility or an assembly
and research and development facility, as applicable, and applying standards of
use no lower than the standards applied by the Lessee or its Affiliates for
other comparable properties owned or leased by the Lessee or its Affiliates. The
Lessee shall pay, or cause to be paid, all charges and costs required in
connection with the use of each Property as contemplated by this Master Lease
and each Lease Supplement. The Lessee shall not commit or permit any waste of
any Property or any part thereof.
Section 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 each 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 each
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▇▇▇ Research Corporation Amended and Restated Master Lease
Property and (b) procure, maintain and comply with all licenses, permits,
orders, approvals, consents and other authorizations required for the
construction, use, maintenance and operation of each Property and for the use,
operation, maintenance, repair and restoration of the Improvements.
ARTICLE IX
MAINTENANCE AND REPAIR; RETURN
Section 9.1. Maintenance and Repair; Return. (a) The Lessee, at
its sole cost and expense, shall maintain each Property in as good condition as
when delivered to the Lessee hereunder (ordinary wear and tear excepted) and
make all necessary repairs thereto, of every kind and nature whatsoever, whether
ordinary or extraordinary or foreseen or unforeseen, in each case as required by
all Requirements of Law and Insurance Requirements and in no event applying
standards of maintenance lower than the standards applied by the Lessee in the
operation and maintenance of other comparable properties owned or leased by the
Lessee or its Affiliates.
(b) The Lessor shall not under any circumstances be required to
build any improvements on any Property, make any repairs, replacements,
alterations or renewals of any nature or description to any Property, make any
expenditure whatsoever in connection with this Master Lease or the applicable
Lease Supplement or maintain any Property in any way. The Lessee waives any
right to (i) require the Lessor to maintain, repair or rebuild all or any part
of any Property or (ii) make repairs at the expense of the Lessor pursuant to
any Requirement of Law, Insurance Requirement, contract, agreement or covenant,
condition or restriction in effect at any time during the Lease Term.
(c) The Lessee shall, upon the expiration or earlier termination
of this Master Lease with respect to each Property (other than as a result of
the Lessee's purchase of the Property from the Lessor as provided herein),
vacate and surrender such Property to the Lessor in the condition required by
this Master Lease.
(d) The Lessee hereby waives any and all rights it may have (i)
under Section 1941 of the California Civil Code, (ii) to make repairs at
Lessor's expense or to vacate the Property as set forth in Section 1942 of the
California Civil Code or (iii) any similar rights under any other Applicable
Law.
ARTICLE X
MODIFICATIONS, ETC.
Section 10.1. Modifications, Substitutions and Replacement. During
the Lease Term, the Lessee, at its sole cost and expense, may at any time and
from time to time make alterations, renovations, improvements and additions to
such Property or any part thereof and substitutions and replacements therefor
(collectively, "Modifications"); provided, however, that:
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▇▇▇ Research Corporation Amended and Restated Master Lease
(a) except for any Modification required to be made
pursuant to a Requirement of Law (a "Required Modification"), no
Modification shall be made if it would adversely affect the
marketability, value, utility or useful life of such Property or any
part thereof from that which existed immediately prior to such
Modification;
(b) the Modification shall be done in a good and
workmanlike manner;
(c) the Modification shall comply with all Insurance
Requirements and all Requirements of Law (including all Environmental
Laws) applicable to such Modification, including the obtaining of any
necessary permits;
(d) 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;
(e) such Modifications shall comply with Sections 8.3 and
9.1(a); and
(f) the Lessee shall be required to obtain the prior
written approval (which approval shall not be unreasonably withheld) of
the Lessor and the Administrative Agent with respect to any structural
alterations (other than Required Modifications) that shall cost in
excess of 20% of the Property Cost of such Property.
All Modifications shall remain part of the realty and shall be subject
to this Master Lease and the applicable Lease Supplement(s) and title thereto
shall immediately vest in the Lessor. So long as no Lease Event of Default has
occurred and is continuing, the Lessee may place upon any Property any trade
fixtures, machinery, equipment, inventory or other property belonging to the
Lessee or third parties and may remove the same at any time during the Lease
Term, subject, however, to the terms of Section 9.1(a); provided, however, that
any trade fixtures placed on a Property do not impair the marketability, value,
utility or useful life of such Property; provided, further, however, that the
Lessee shall keep and maintain at each Property and shall not remove from any
Property any Equipment (except for removal in connection with the maintenance,
repair or replacement of such Equipment).
Section 10.2. Notice to the Lessor and Administrative Agent. If the
Lessee reasonably expects the cost of any Modification to exceed 20% of the
Property Cost of the relevant Property, the Lessee shall deliver to the Lessor
and the Administrative Agent a brief written narrative of the work to be
performed in connection with such Modification prior to making such Modification
and an Officer's Certificate stating that such work when completed will not
impair the marketability, value, utility or useful life of the Property.
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ARTICLE XI
DISCHARGE OF LIENS; EASEMENTS
Section 11.1. Discharge of Liens. (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 (and in any event within sixty (60) days after
notice thereof is received by the Lessee from any Person) discharge (or cause
the same to be insured or otherwise bonded over) at its sole cost and expense,
any Lien, defect, attachment, levy, title retention agreement or claim upon any
Property or any Lien, attachment, levy or claim with respect to any amounts held
by the Lessor or the Administrative Agent pursuant to this Master Lease as
collateral security for the Lessee's obligations or pending performance by the
Lessee, other than (i) Permitted Property Liens and (ii) Liens on machinery,
equipment, inventory, general intangibles and other personal property not
financed by the proceeds of the Loans or Lessor Amounts.
(b) Nothing contained in this Master Lease shall be construed as
constituting the consent or request of the Lessor, the Administrative Agent or
any Lender, expressed or implied, to or for the performance by any contractor,
mechanic, laborer, materialman, supplier or vendor of any labor or services or
for the furnishing of any materials for any construction, alteration, addition,
repair or demolition of or to any Property or any part thereof. NOTICE IS HEREBY
GIVEN THAT NEITHER THE LESSOR NOR THE ADMINISTRATIVE AGENT 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 ANY 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 ADMINISTRATIVE AGENT OR ANY LENDER IN AND TO ANY PROPERTY.
Section 11.2. Grants and Releases of Easements; Lessor Waivers. So
long as 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 hereof, the
Lessor hereby consents in each instance to the following actions by the Lessee,
in the name and stead of the Lessor, but at the Lessee's sole cost and expense:
(a) the granting of easements, licenses, rights-of-way and other rights and
privileges in the nature of easements reasonably necessary or desirable for the
use, repair, or maintenance of any Property or burdening any Property as herein
provided; (b) the release of existing easements or other rights in the nature of
easements which are for the benefit of any Property; (c) if required by
applicable Governmental Authority, the dedication or transfer of unimproved
portions of any Property for road, highway or other public purposes; (d) the
execution of amendments to any covenants and restrictions affecting any
Property; and (e) the execution or release of any similar agreement; 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 any
Property, (ii) such grant, release, dedication, transfer or amendment is, in the
Lessee's judgment, reasonably necessary in connection with the use, maintenance,
alteration or improvement of any Property, (iii) such grant, release,
dedication, transfer or amendment will not cause any Property or any portion
thereof to fail to comply with the provisions of this Master Lease or any other
Operative Document or fail to comply in any respect with all Requirements of
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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) the Lessee shall remain obligated under this
Master Lease and each of the Lease Supplements in accordance with their
respective terms, as though such grant, release, dedication, transfer or
amendment had not been effected, and (vi) the Lessee shall pay and perform any
obligations of the Lessor under such grant, release, dedication, transfer or
amendment. Without limiting the effectiveness of the foregoing, provided that no
Lease Event of Default shall have occurred and be continuing, the Lessor shall,
upon the request of the Lessee, and at the Lessee's sole cost and expense,
execute and deliver any instruments necessary or appropriate to confirm any such
grant, release, dedication, transfer, annexation or amendment to any Person
permitted under this Section 11.2, including landlord waivers with respect to
any of the foregoing.
ARTICLE XII
PERMITTED CONTESTS
Section 12.1. Permitted Contests. If, to the extent and for so long
as (a) a test, challenge, appeal or proceeding for review of any Applicable Law
or any Lien, encumbrance, levy, attachment or encroachment relating to any
Property shall be prosecuted diligently and in good faith in appropriate
proceedings by the Lessee or (b) compliance with any 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 or remove or discharge any Lien, encumbrance, levy, attachment or
encroachment 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 Administrative Agent and the Lenders)
involve (A) any risk of criminal liability being imposed on the Lessor, the
Administrative Agent or any Lender for failure to comply therewith, (B) any risk
of (1) foreclosure, forfeiture or loss of any Property, or any part thereof or
(2) the nonpayment of Rent or (C) any substantial risk of (1) the creation of
any Lien (other than a Permitted Property Lien) on any part of any Property, (2)
civil liability being imposed on the Lessor, the Administrative Agent, any
Lender or any Property unless the Lessee shall have otherwise bonded or secured
such amounts in a manner satisfactory to the Lessor, the Administrative Agent
and the Lenders, as the case may be, or (3) enjoinment of, or interference with,
the use, possession or disposition of any Property in any respect.
Neither the Lessor, the Administrative Agent nor any Lender shall be
required to join in any proceedings pursuant to this Section 12.1 unless a
provision of any Applicable Law requires that such proceedings be brought by or
in the name of such party; and in that event such party will join in the
proceedings or permit them or any part thereof to be brought in its name if and
so long as (i) the Lessee has not elected the Remarketing Option and (ii) the
Lessee pays all related expenses and indemnifies such party (in a manner
satisfactory to such party) with respect to such proceedings.
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ARTICLE XIII
INSURANCE
Section 13.1. Required Insurance. (a) Liability Insurance. During
the Lease Term for each Property, the Lessee shall procure and carry commercial
general liability insurance for claims for injuries or death sustained by
persons or damage to property while on such Property and such other public
liability coverages as are ordinarily procured by the Lessee or its Affiliates
who own or operate similar properties, but in any case shall provide liability
coverage of at least $50,000,000 per occurrence. Such insurance shall be on
terms and in amounts that are no less favorable than insurance maintained by the
Lessee or such Affiliates with respect to similar properties that they own or
lease. The policy shall also specifically provide that the policy shall be
considered primary insurance which shall apply to any loss or claim before any
contribution by any insurance which the Lessor, the Administrative Agent and any
Lender may have in force.
(b) Worker's Compensation Laws. The Lessee shall, in connection
with any Modifications and the operation of the Properties, comply with the
applicable workers' compensation laws.
(c) Hazard and Other Insurance. During the Lease Term for each
Property, the Lessee shall keep, or cause to be kept, each Property insured
against loss or damage by fire, windstorm, environmental risks and other risks
(and during any Modification, builders' all-risk insurance) on terms and in
amounts that are no less favorable than insurance covering other similar
properties owned or leased by the Lessee or its Affiliates; provided that the
Lessee shall also obtain (i) with respect to any Property located at a site that
shall have been assigned a seismic zone factor of 4 under the Uniform Building
Code published from time to time by the International Conference of Building
Officials, coverage for earthquake (provided such coverage is maintained by
owners of similar properties and in accordance with normal industry practice)
and (ii) with respect to any Property located within an area identified as a
special flood hazard area by the Federal Emergency Management Agency, coverage
for flood. The Lessor acknowledges that the Lessee does not currently maintain
earthquake insurance. Subject to the last sentence of this Section 13.1(c) and
the terms of Section 14.2, all insurance proceeds in respect of any loss or
occurrence for which the proceeds related thereto are (i) less than or equal to
$3,000,000, in the absence of the occurrence and continuance of a Lease Event of
Default, shall be adjusted by and paid to the Lessee for application toward the
reconstruction, repair or refurbishment of such Property, and (ii) greater than
$3,000,000 shall be adjusted by the Lessee and the Lessor working together to
jointly resolve such insurance claim (unless a Lease 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 Article
XIV.
(d) Deductibles. During the Lease Term, the insurance required to
be obtained by the Lessee under this Section 13.1 may be subject to such
deductible amounts and self-insured retentions as is consistent with the
Lessee's or its Affiliates' practice for other properties similar to the
Properties owned or leased by the Lessee or its Affiliates; provided that such
deductible amounts and self-insured retentions shall not exceed $1,000,000 with
respect to the insurance required by Section 13.1(a) and $1,000,000 with respect
to the insurance required by Section
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13.1(c). Such insurance may be carried under blanket policies maintained by or
on behalf of the Lessee so long as such policies otherwise comply with the
provisions of this Section 13.1.
Section 13.2. Insurance Coverage. During the Lease Term for each
Property, the Lessee shall cause the insurance required to be maintained by the
Lessee under Section 13.1(a) or 13.1(c), to comply with the provisions of this
Section 13.2. All insurance required under Section 13.1 shall be at the sole
cost and expense of the Lessee.
(a) On each Acquisition Date, the Lessee shall furnish the Lessor
and the Administrative Agent with certificates showing the insurance required
under Section 13.1 to be in effect. Such certificates shall include a provision
for no less than thirty (30) days' advance written notice by the insurer to the
Lessor and the Administrative Agent in the event of cancellation or reduction of
such insurance.
(b) The Lessee agrees that the insurance policy or policies
required by Section 13.1(a) shall (i) name the Administrative Agent, the Lessor
and each Lender as additional insureds (including any insurance policy
maintained in connection with the construction of any Modifications) and (ii)
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, the Administrative Agent
and the Lenders and their respective rights under and interests in such policies
shall not be invalidated or reduced by any act or omission (including breach of
warranty) or negligence of the Lessee or any other Person having any interest in
the Property. The Lessee hereby waives any and all such rights against the
Lessor, the Administrative Agent and the Lenders to the extent of payments made
under such policies. All insurance policies required by Section 13.1(c) shall
name the Administrative Agent as loss payee pursuant to a standard mortgagee
loss payee endorsement.
(c) All such insurance shall be written by reputable insurance
companies that are financially sound and solvent and otherwise reasonably
appropriate considering the amount and type of insurance being provided by such
companies and which shall have a rating by A.M. Best's Key Rating Guide of not
less than "A" and a "Financial Performance Rating" of at least "VIII" and shall
be otherwise reasonably acceptable to the Lenders and the Lessor.
(d) The Lessee shall pay at its sole cost and expense as they
become due all premiums for the insurance required by this Article XIII, and
shall renew or replace each policy prior to the expiration date thereof. During
the Lease Term, the Lessee shall, at the time each of the Lessee's insurance
policies is renewed (but in no event less frequently than once each year),
deliver to the Lessor and the Administrative Agent certificates of insurance
evidencing that all insurance required by this Article XIII is being maintained
by the Lessee and is in effect. Such certificates shall include a provision for
no less than thirty (30) days' advance written notice by the insurer to the
Administrative Agent and the Lessor in the event of cancellation or any material
reduction of such insurance.
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ARTICLE XIV
CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS
Section 14.1. Risk of Loss, Damage or Destruction. At all times
during the Lease Term for each Property, the Lessee bears all risk of loss,
damage, theft, taking, destruction, confiscation, requisition or commandeering,
partial or complete, of or to such Property or any part thereof, however caused
or occasioned, such risk to be borne by the Lessee from the Acquisition Date for
such Property and continuing until such Property has been returned to the Lessor
in accordance with the provisions of this Master Lease or has been purchased by
the Lessee or another Person in accordance with the provisions of this Master
Lease. The Lessee agrees that no occurrence specified in the preceding sentence
shall impair, in whole or in part, any obligation of the Lessee under this
Master Lease, including the obligation to pay Rent.
Section 14.2. Casualty and Condemnation. (a) Insurance Proceeds and
Condemnation Awards. Subject to the provisions of Section 13.1 hereof and this
Article XIV, (x) if all or a portion of any Property is damaged or destroyed in
whole or in part by a Casualty during the Lease Term for such Property, any
insurance proceeds payable with respect to such Casualty shall be adjusted by
and paid directly to the Lessee, or if received by the Administrative Agent or
any Participant, shall be paid over to the Lessee for the reconstruction,
refurbishment and repair of the affected Property, and (y) if the use, access,
occupancy, easement rights or title to any Property or any part thereof is the
subject of a Condemnation during the Lease Term for such Property, then any
award or compensation relating thereto shall be adjusted by and paid to the
Lessee; provided, however, that, in each case, if (A) any Lease Default shall
have occurred and be continuing, (B) such Casualty or Condemnation is an Event
of Loss or (C) the amount of such proceeds, award or compensation equals or
exceeds $2,000,000, then such award, compensation or insurance proceeds shall be
adjusted jointly by the Lessee and the Lessor and paid directly to the
Administrative Agent (as assignee of the Lessor) or, if received by the Lessee,
shall be held in trust for the Participants and shall be paid over by the Lessee
to the Administrative Agent, to be distributed by the Administrative Agent as
follows: (x) in the case of a Lease Default, such amounts shall be distributed
in accordance with Section 7.6(b) of the Participation Agreement or held as
additional security for the Lessee's obligations, and (y) in the case of an
Event of Loss, such amounts shall, in the Lessor's and the Administrative
Agent's reasonable discretion, either (1) be paid to the Lessee for the repair
and restoration of such Property in accordance with Section 14.2(d) or (2) be
applied toward the payment of the applicable Property Cost of the affected
Property and related amounts on the applicable Partial Termination Date in
accordance with Section 15.1, and (z) in the case of proceeds, awards or
compensation equal to or in excess of $2,000,000, such amounts shall be paid to
and held by the Administrative Agent and, so long as no Lease Default shall have
occurred and be continuing, paid to the Lessee upon completion of the repair and
restoration of such Property.
(b) Participation in Proceedings. The Lessee may appear at its own
cost and expense in any proceeding or action to negotiate, prosecute, adjust or
appeal any claim for any award, compensation or insurance payment on account of
any Casualty or Condemnation with respect to any Property 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 Administrative Agent shall participate in
any
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▇▇▇ Research Corporation Amended and Restated Master Lease
such proceeding, action, negotiation, prosecution or adjustment. The Lessor and
the Lessee agree that this Master Lease shall control the rights of the Lessor
and the Lessee in and to any such award, compensation or insurance payment.
(c) Notices of Casualty or Condemnation. In the event of any
Casualty with respect to any Property for which the reasonable anticipated cost
of restoration equals or exceeds 5% of the Property Cost of such Property or of
an actual, pending or threatened Condemnation of any material interest in the
Property, the Lessor or the Lessee, as the case may be, shall give notice
thereof to the other and to the Lenders and the Administrative Agent promptly
after the receipt of such notice.
(d) Repair. If this Master Lease shall continue in full force and
effect with respect to any Property following a Casualty or Condemnation
affecting such Property which occurs at any time during the Lease Term thereof,
then the Lessee shall, so long as such repair may reasonably be expected to be
completed with due diligence prior to Expiration Date, at its sole cost and
expense (utilizing insurance proceeds and condemnation awards as contemplated
hereby; provided, however, that, if any award, compensation or insurance payment
is not sufficient to restore such Property in accordance with this clause (d),
the Lessee shall pay the shortfall), promptly and diligently repair any damage
to such Property caused by such Casualty or Condemnation in conformity with the
requirements of Article XIII and Sections 8.3, 9.1 and 10.1 using the Plans and
Specifications for such Property (as modified to give effect to any subsequent
Modifications, any Condemnation affecting such Property and all Applicable Laws)
so as to restore such Property to at least the same or similar condition,
operation, function and value as existed immediately prior to such Casualty or
Condemnation with such Modifications as the Lessee may elect in accordance with
Section 10.1. In such event, title to such Property shall remain with the Lessor
subject to the terms of this Master Lease. Upon completion of such restoration,
the Lessee shall furnish to the Lessor and the Administrative Agent a
Responsible Officer's Certificate confirming that such restoration has been
completed pursuant to this Master Lease.
(e) Obligations Continue. In no event shall a Casualty or
Condemnation affect the Lessee's obligations to pay Rent pursuant to Section 3.1
hereof or to perform its obligations and pay any amounts due on the Expiration
Date or pursuant to Articles XVIII and XX hereof.
(f) Excess Casualty/Condemnation Proceeds. Upon the earlier of (x)
the date on which all damage to a Property caused by a Casualty or Condemnation
shall have been repaired in accordance with Section 14.2(d) and (y) the date on
which the Property Cost of the applicable Property and all other amounts due and
payable under Section 15.1 shall have been paid to the Administrative Agent in
connection with an Event of Loss Purchase, any Net Proceeds received by the
Lessor, the Administrative Agent or any Lender in respect of such Casualty or
Condemnation, to the extent remaining after any application of such Net Proceeds
to the repair or restoration of the applicable Property or to the payment of the
Property Cost for such Property and such other amounts, as the case may be (any
such Net Proceeds remaining after such application, "Excess
Casualty/Condemnation Proceeds"), shall be promptly turned over to the Lessee.
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▇▇▇ Research Corporation Amended and Restated Master Lease
Section 14.3. Environmental Matters. Promptly upon the Lessee's
obtaining knowledge of the existence of an Environmental Violation with respect
to any Property the cost of remediation of which the Lessee determines in its
reasonable good faith judgment would reasonably be expected to exceed
$1,000,000, the Lessee shall notify the Lessor and the Administrative Agent in
writing of such Environmental Violation. If the Lessor elects not to terminate
this Master Lease with respect to such Property pursuant to Section 15.1, at the
Lessee's sole cost and expense, the Lessee shall promptly and diligently
commence any response, clean up, remedial or other action necessary to remove,
clean up or remediate any such Environmental Violation in accordance with the
terms of Section 8.3. 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
Laws. Each such Environmental Violation shall be remedied prior to the
Expiration Date unless the relevant Property has been purchased by the Lessee in
accordance with Section 15.1, 18.1 or 18.2. Nothing in this Article XIV shall
reduce or limit the Lessee's obligations under Section 13.1, 13.2 or 13.3 of the
Participation Agreement.
Section 14.4. Notice of Environmental Matters. Promptly, but in any
event within thirty (30) days from the date the Lessee has actual knowledge
thereof, the Lessee shall provide to the Lessor and the Administrative Agent
written notice of any notice of any pending or threatened claim, action or
proceeding involving any Environmental Laws or any Release on or in connection
with any Property. All such notices shall describe in reasonable detail the
nature of the claim, action or proceeding and the Lessee's proposed response
thereto. In addition, the Lessee shall provide to the Lessor and the
Administrative Agent, within thirty (30) days of receipt, copies of all written
communications with any Governmental Authority relating to any Environmental
Violation in connection with any Property. The Lessee shall also promptly
provide such detailed reports of any such environmental claims as may reasonably
be requested by any Participant. In the event that the Lessor receives written
notice of any pending or threatened claim, action or proceeding involving any
Environmental Laws or any Release on or in connection with any Property, the
Lessor shall promptly give notice thereof to the Lessee.
ARTICLE XV
TERMINATION OF LEASE
Section 15.1. Partial Termination Upon Certain Events. If, with
respect to any Property (any such Property, an "Affected Property"): (a) an
Event of Loss occurs or (b) an Environmental Violation occurs or is discovered
and the cost of remediation of which the Lessee determines in its reasonable
good faith judgment would reasonably be expected to exceed $5,000,000 and in
either case the Lessor (at the direction of the Required Participants) shall
have given fifteen (15) Business Days' prior written notice (a "Partial
Termination Notice") to the Lessee that, as a consequence of such event, (x) the
Lease Supplement relating to such Property is to be terminated and (y) this
Master Lease is to be terminated with respect to such Property, then the Lessee
shall on the next occurring Scheduled Payment Date (but in any event not later
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▇▇▇ Research Corporation Amended and Restated Master Lease
than the Expiration Date), purchase the interest of the Lessor in the Affected
Property by paying to the Administrative Agent (as assignee of the Lessor) an
amount equal to the sum of (x) the Property Cost of the Affected Property on
such date plus (y) all accrued and unpaid Basic Rent due and owing on such date
plus (z) all Supplemental Rent due and owing on such date, and the Lessor shall
transfer to the Lessee on such date of payment all of the interest of the Lessor
in the Affected Property pursuant to the procedures set forth in Section 15.2
hereof.
Section 15.2. Partial Termination Procedures. On the date of the
payment by the Lessee of all amounts required to be paid under Section 15.1, in
accordance with the procedures set forth in Section 15.1 (such date, the
"Partial Termination Date"), this Master Lease shall terminate with respect to
such Affected Property. The Lessor shall take the following actions in respect
of the applicable Affected Property upon the Administrative Agent's receipt of
all amounts due with respect to such Affected Property and all other amounts
then due in accordance with Section 15.1:
(a) the Lessor shall execute and deliver to the Lessee
(or to the Lessee's designee) at the Lessee's cost and expense (which
expenses include, without limitation, the payment of any transfer
taxes): (i) a deed with respect to the Affected Property containing
representations and warranties regarding the absence of Lessor Liens
attributable to the Lessor (but no other representations or
warranties), (ii) a ▇▇▇▇ of sale with respect to the interest of the
Lessor in any items of personalty or Equipment on such Affected
Property, containing representations and warranties regarding the
absence of Lessor Liens attributable to the Lessor (but no other
representations or warranties), and (iii) an assignment of any and all
other interests of the Lessor in such Affected Property not otherwise
conveyed in such deed or ▇▇▇▇ of sale (which shall include an
assignment of all of the right, title and interest of the Lessor in and
to any Excess Casualty/Condemnation Proceeds), in each case in
recordable form and otherwise in conformity with local custom to the
extent consistent with the foregoing scope of the Lessor's
representations and warranties;
(b) such Affected Property shall be conveyed to the
Lessee (or to the Lessee's designee) "AS IS" and in its then present
physical condition; and
(c) at the request of the Lessee, Net Proceeds with
respect to such Affected Property shall be applied against amounts due
hereunder, and the Lessor shall convey to the Lessee any Excess
Casualty/Condemnation Proceeds with respect to the Affected Property.
ARTICLE XVI
EVENTS OF DEFAULT
Section 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
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▇▇▇ Research Corporation Amended and Restated Master Lease
of any court or any order, rule or regulation of any administrative or
governmental body) shall constitute a "Lease Event of Default":
(a) (i) the Lessee shall fail to make payment of any
Basic Rent upon the same becoming due and payable and such failure
shall continue unremedied for a period of three (3) days or (ii) the
Lessee shall fail to make payment upon the same becoming due and
payable of the Lease Balance, Purchase Option Price, Property Balance,
Property Cost or Maximum Recourse Amount or any amounts payable in
conjunction with the payment of any of the foregoing including, without
limitation, amounts due pursuant to Sections 15.1, 15.2, 18.1, 18.2,
18.3 or 20.2 hereof; or
(b) the Lessee shall fail to make payment of any
Supplemental Rent (other than as specified in clause (a) above) when
due and payable within five (5) days after receipt of notice thereof
from the party to whom the Lessee is obligated to pay such Supplemental
Rent; or
(c) any insurance required to be maintained by the Lessee
pursuant to Article XIII of this Master Lease shall fail to be in
effect or the Lessee defaults in the compliance with Sections 10.1(i),
(j), (k) or (l) of the Participation Agreement; or
(d) the Lessee shall fail to observe or perform any term,
covenant or condition applicable to it under any Operative Document to
which it is a party (other than those described in Section 16.1(a),
(b), or (c) hereof) and such failure shall not be remedied within
thirty (30) days after notice thereof has been given to the Lessee;
provided, that, in the event that such remedy cannot reasonably be
completed within such thirty (30) day period, then Lessee shall have
such additional time as shall be reasonably necessary, so long as
Lessee commences such remedy within such thirty (30) day period and
diligently thereafter prosecutes the same to completion, provided,
further, in no event shall such period exceed ninety (90) days after
such notice; or
(e) the Lessee shall fail to observe or perform any term,
covenant or condition applicable to it under Article XX of this Master
Lease after giving written notice to the Lessor and the Administrative
Agent of the Lessee's exercise of the Remarketing Option; or
(f) any representation or warranty made or expressly
deemed made by the Lessee in any Operative Document to which it is a
party or which is contained in any certificate, document or financial
or other statement furnished at any time under or in connection with
any Operative Document shall prove to have been incorrect, false or
misleading in any material respect on or as of the date made or
expressly deemed made; or
(g) a "Default" or failure of the Lessee or any
Subsidiary of the Lessee to pay when due Indebtedness or Off-Balance
Sheet Obligations in an aggregate amount greater than $15,000,000 (or
the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations
denominated in a currency other than Dollars); or the default by the
Lessee or
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any Subsidiary of the Lessee in the performance of any term, provision
or condition contained in any agreement under which any Indebtedness or
Off-Balance Sheet Obligations in an aggregate amount greater than
$15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet
Obligations denominated in a currency other than Dollars) was created
or is governed, the effect of which is to cause, or to permit the
holder or holders of any Indebtedness or Off-Balance Sheet Obligations
to cause, Indebtedness or Off-Balance Sheet Obligations in an aggregate
amount greater than $15,000,000 (or the Dollar Amount of Indebtedness
or Off-Balance Sheet Obligations denominated in a currency other than
Dollars) to become due prior to its stated maturity; or Indebtedness or
Off-Balance Sheet Obligations in an aggregate amount greater than
$15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet
Obligations denominated in a currency other than Dollars) shall be
declared to be due and payable or required to be prepaid (other than by
a regularly scheduled payment) prior to the stated maturity thereof; or
(h) the Lessee or any Material Subsidiary shall (i) have
an order for relief entered with respect to it under the Bankruptcy
Code or any other bankruptcy, insolvency or other similar law as now or
hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) fail to pay, or admit in writing its inability to pay,
its debts generally as they become due, (iv) apply for, seek, consent
to, or acquiesce in the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial
portion of its Property, (v) institute any proceeding seeking an order
for relief under the Bankruptcy Code or any other bankruptcy,
insolvency or other similar law as now or hereafter in effect or
seeking to adjudicate it as bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under the Bankruptcy Code
or any other law relating to bankruptcy, insolvency or reorganization
or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against
it, (vi) take any corporate action to authorize or effect any of the
foregoing actions or (vii) fail to contest in good faith any
appointment or proceeding described in Section 16.1(i) below; or
(i) without the application, approval or consent of the
Lessee or any Material Subsidiary, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for the Lessee or any
Material Subsidiary or any substantial portion of the Property of any
such Person, or a proceeding described in Section 16.1(h)(v) shall be
instituted against the Lessee or any Material Subsidiary and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of sixty (60) consecutive days; or
(j) the Lessee or any Subsidiary of the Lessee shall fail
within sixty (60) days to pay, bond or otherwise discharge any judgment
or order for the payment of money in excess of $15,000,000 which is not
stayed on appeal or otherwise being appropriately contested in good
faith; or
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(k) the Lessee or any other member of the Controlled
Group shall fail to pay when due any amount or amounts which it shall
have become liable to pay to the PBGC or to any Plan, or any notice of
intent to terminate a Plan having aggregate Unfunded Vested Liabilities
in excess of $5,000,000 shall be filed by a member of the Controlled
Group and/or any Plan administrator, 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 such Plan, or a
condition shall exist which would entitle the PBGC to obtain a decree
adjudicating that any such Plan must be terminated; or
(l) any Operative Document to which the Lessee is a party
or any Lien granted by the Lessee under any Operative Document shall,
in whole or in part, terminate, cease to be effective against, or
(other than as expressly provided therein) cease to be the legal,
valid, binding and enforceable obligation of the Lessee other than as
permitted under, or pursuant to the terms of, or in connection with a
transaction permitted by, any Operative Document; or
(m) the Lessee shall directly or indirectly contest the
effectiveness, validity, binding nature or enforceability of any
Operative Document or any Lien granted under any Operative Document; or
any Operative Document shall cease to be a legal, valid and binding
obligation of the Lessee or cease to be in full force and effect.
Section 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 (and in such order) as
the Lessor in its sole discretion shall determine, without limiting any other
right or remedy the Lessor may have on account of such Lease Event of Default
(including, without limitation, the obligation of the Lessee to purchase all of
the Properties as set forth in Section 18.3):
(a) The Lessor may (i) declare the entire outstanding
Lease Balance to be due and payable together with accrued unpaid Rent
and any other amounts payable under the Operative Documents, (ii)
declare the Commitments to be terminated, whereupon the same shall be
of no further force or effect; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to the
Lessee or any of its Subsidiaries under the Bankruptcy Code, (A) the
obligation of each Participant to make Advances shall automatically be
terminated and (B) the Advances, all interest and Yield thereon and all
other amounts payable under the Operative Documents shall automatically
become and be due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by the
Lessee or (iii) make demand upon the Lessee;
(b) The Lessor may, by notice to the Lessee, rescind or
terminate this Master Lease as of the date specified in such notice;
provided, however, (i) no reletting, reentry or taking of possession of
any Property (or any portion thereof) by the Lessor (or its agents)
will be construed as an election on the Lessor's part to terminate this
Master Lease unless a written notice of such intention is given to the
Lessee, (ii) notwithstanding
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any reletting, reentry or taking of possession, the Lessor may at any
time thereafter elect to terminate this Master Lease for a continuing
Lease Event of Default and (iii) no act or thing done by the Lessor or
any of its agents, representatives or employees and no agreement
accepting a surrender of any Property shall be valid unless the same be
made in writing and executed by the Lessor;
(c) The Lessor may (i) demand that the Lessee, and the
Lessee shall upon the written demand of the Lessor, return all of the
Properties 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 Properties were being
returned at the end of the Lease Term, and the Lessor shall not be
liable for the reimbursement of the Lessee for any costs and expenses
incurred by the Lessee in connection therewith, and (ii) without
prejudice to any other remedy which the Lessor may have for possession
of the Properties, 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 Properties or any part thereof
and expel or remove the Lessee and any other Person who may be
occupying any Property, by summary proceedings or otherwise, all
without liability to the Lessor 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 other
damages of the Lessor, the Lessee shall be responsible for all costs
and expenses incurred by the Lessor, the Administrative Agent and/or
the Lenders in connection with any reletting, including, without
limitation, reasonable brokers' fees and all costs of any alterations
or repairs required to be made by the Lessor so that the Properties
achieve the standard of condition required by this Master Lease;
(d) As more fully set forth in Section 16.4 hereof and in
each Lease Supplement (and consistent with the intent of the parties as
detailed in Article XXV hereof), the Lessor may exercise all remedies
available to a mortgagee, secured party, beneficiary or trustee under
law or equity, including, to the extent permitted by law, the right to
sell all or any part of the Properties at public or private sale, as
the Lessor may determine;
(e) The Lessor may, at its option, elect not to terminate
this Master Lease and continue to collect all Basic Rent, Supplemental
Rent, and all other amounts due to the Lessor (together with all costs
of collection) and enforce the Lessee's obligations under this Master
Lease as and when the same become due, or are to be performed, and at
the option of the Lessor, upon any abandonment of any Property by the
Lessee or re-entry of same by the Lessor, the Lessor may, in its sole
and absolute discretion, elect not to terminate this Master Lease and
may make the necessary repairs in order to relet any Property, and
relet such Property or any part thereof for such term or terms (which
may be for a term extending beyond the Lease Term of this Master Lease)
and at such rental or rentals and upon such other terms and conditions
as the Lessor in its reasonable discretion may deem advisable; and upon
each such reletting, all rentals actually received by the Lessor from
such reletting shall be applied to the Lessee's obligations hereunder
and under the other Operative Documents in the manner provided in
Section 7.6(a) or (c), as applicable, of the Participation Agreement.
If such rentals received from such reletting
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during any period are less than the Rent to be paid during that period
by the Lessee hereunder, the Lessee shall pay any deficiency, as
calculated by the Lessor, to the Administrative Agent on the next
Scheduled Payment Date;
(f) Unless all of the Properties have been sold in their
entirety, the Lessor may, whether or not the Lessor shall have
exercised or shall thereafter at any time exercise any of its rights
under clause (c), (d) or (e) of this Section 16.2 with respect to any
or all of the Properties or any portions thereof, demand, by written
notice to the Lessee specifying a date not earlier than twenty (20)
days after the date of such notice, that the Lessee purchase, on the
date specified in such notice, all of the unsold Properties in
accordance with the provisions of Article XXI and Section 18.2;
(g) 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 rights to collect
any such damages for any subsequent period(s), or the Lessor may defer
any such suit until after the expiration of the Lease Term, in which
event such suit shall be deemed not to have accrued until the
expiration of the Lease Term;
(h) The Lessor may retain and apply against the Lease
Balance all sums which the Lessor would, absent such Lease Event of
Default, be required to pay to, or turn over to, the Lessee pursuant to
the terms of this Master Lease; or
(i) The Lessor, to the extent permitted by Applicable
Law, 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 any part of each Property, and the Lessee
hereby irrevocably consents to any such appointment. Any such receivers
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 applicable Property unless such
receivership is sooner terminated.
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, deed of trust, 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
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remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by any of the Operative Documents to the
Lessor or to which it may otherwise be entitled, may be exercised, concurrently
or independently, from time to time and as often as may be deemed expedient by
the Lessor. In no event shall the Lessor, in the exercise of the remedies
provided in this instrument (including, without limitation, in connection with
the assignment of rents to the Lessor, or the appointment of a receiver and the
entry of such receiver onto all or any part of the Properties), be deemed a
"mortgagee in possession," and the Lessor shall not in any way be made liable
for any act, either of commission or omission, in connection with the exercise
of such remedies.
If requested by the Lessor in connection with the exercise of its
remedies pursuant to this Section 16.2, the Lessee hereby agrees to enter into
an operating agreement with respect to the Properties in connection therewith to
serve as the operator of the Properties on market terms established in good
faith and reasonably acceptable to the Lessor.
Section 16.3. Waiver of Certain Rights. (a) To the maximum extent
permitted by law, the Lessee hereby waives the benefit of any appraisement,
valuation, stay, extension, reinstatement and redemption laws now or hereafter
in force and all rights of marshalling in the event of any sale of any Property
or any interest therein and (b) if this Master Lease shall be terminated
pursuant to Section 16.2, the Lessee waives, to the fullest extent permitted by
law, (i) any notice of re-entry or the institution of legal proceedings to
obtain re-entry or possession; (ii) any right of redemption, re-entry or
repossession; (iii) 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 (iv) any other rights which might otherwise
limit or modify any of the Lessor's rights or remedies under this Article XVI.
Section 16.4. Deed of Trust Remedies. Without limiting any other
remedies set forth in this Master Lease, and also, without limiting the
generality of Article XXV hereof, the Lessor may proceed by a suit or suits in
equity or at law, whether for a foreclosure hereunder or under the Lease
Supplements, or (to the extent permitted by law) for the sale of each Property,
pursuant to a power of sale, or against the Lessee on a recourse basis for the
Lease Balance, or for the specific performance of any covenant or agreement
contained herein or in aid of the execution of any power granted herein, or for
the appointment of a receiver pending any foreclosure hereunder (or under the
Lease Supplements) or the sale of any Property, or for the enforcement of any
other appropriate legal or equitable remedy. The Lessor shall have all rights
available to a beneficiary under a deed of trust or a secured party under the
laws of the state where the relevant Property is located, including, without
limitation, all rights granted under the specific statutes referenced in each
Lease Supplement, if any (each such statute, as amended, is hereinafter referred
to as a "Mortgage Foreclosure Act"). In the event that any provisions of this
Master Lease shall be inconsistent with any Mortgage Foreclosure Act, the
provisions of such Mortgage Foreclosure Act shall take precedence over such
provision of this Master Lease, but shall not invalidate or render unenforceable
any other provision of this Master Lease that can be construed in a manner
consistent with such Mortgage Foreclosure Act. If any provision of this Master
Lease shall grant the Lessor any rights or remedies upon default of the Lessee
which are more limited than the rights that would otherwise be vested in the
Lessor under such Mortgage Foreclosure Act in the absence of such provision, the
Lessor shall be vested with the rights
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granted in such Mortgage Foreclosure Act to the full extent permitted by law.
The Lessee agrees that the agreements of the Lessee herein contained shall be
specifically enforceable by injunction or any other appropriate equitable remedy
and that for the purpose of any suit brought under this subparagraph, the Lessee
hereby waives, to the fullest extent permitted by law, the defense of laches and
any applicable statute of limitations. In the event of foreclosure, the Lessee
authorizes and empowers the Lessor to effect insurance upon the Properties in
amounts aforesaid for a period covering the time of redemption from foreclosure
sale provided by law, and if necessary therefor, to cancel any or all existing
insurance policies required to be maintained under this Master Lease.
Section 16.5. Excess Proceeds; Return of Properties. If, pursuant
to the exercise by the Lessor of its remedies pursuant to Section 16.2 or 16.4,
the Lessor shall have received an amount equal to the Lease Balance, then the
Lessor shall promptly remit to the Lessee any excess amounts received by the
Lessor and, at the sole cost and expense of the Lessee, transfer to the Lessee
(or its designee) all of the Lessor's remaining right, title and interest (if
any) in the Properties in accordance with Section 21.1.
ARTICLE XVII
LESSOR'S RIGHT TO CURE
Section 17.1. The Lessor's Right to Cure the Lessee's Lease
Defaults. The Lessor, without waiving or releasing any obligation or Lease Event
of Default, may (but shall be under no obligation to) remedy any Lease Event of
Default for the account and at the sole cost and expense of the Lessee,
including the failure by the Lessee to maintain the insurance required by
Article XIII, and may, to the fullest extent permitted by law, and
notwithstanding any right of quiet enjoyment in favor of the Lessee, enter upon
any Property for such purpose and take all such action thereon as may be
necessary or appropriate therefor. No such entry shall be deemed an eviction of
the Lessee. All reasonable out-of-pocket costs and expenses so incurred
(including fees and expenses of counsel), together with interest thereon at the
Overdue Rate from the date on which such sums or expenses are paid by the
Lessor, shall be paid by the Lessee to the Lessor as Supplemental Rent.
ARTICLE XVIII
PURCHASE PROVISIONS
Section 18.1. Purchase of Properties. Subject to the conditions
contained herein, and without limitation of the Lessee's purchase obligation
pursuant to Section 18.2 or 18.3, the Lessee shall have the irrevocable option
on any Scheduled Payment Date during the Lease Term to purchase all, but not
less than all (except as set forth in Section 15.14 of the Participation
Agreement), of the Properties subject to this Master Lease (the "Purchase
Option") at a price equal to the aggregate Lease Balance (or, in the case of the
Partial Purchase Option under Section 15.14 of the Participation Agreement, the
Property Balance with respect to any such Property) on the date of such purchase
(as the case may be, the "Purchase Option Price"). The
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▇▇▇ Research Corporation Amended and Restated Master Lease
Lessee's exercise of its option pursuant to this Section 18.1 shall be subject
to the following conditions:
(i) the Lessee shall have delivered a Purchase Notice to
the Lessor and the Administrative Agent not less than thirty (30) days
prior to such purchase, specifying the date of such purchase (and, if
the purchase is for less than all of the Properties, specify the
Property subject to such purchase); and
(ii) the Lessee shall not have delivered (or, if
delivered, shall not have failed to rescind) a written notice of the
Lessee's exercise of the Remarketing Option pursuant to Section
20.1(a).
If the Lessee exercises its option pursuant to this Section 18.1 then,
upon the Administrative Agent's receipt of all amounts due in connection
therewith, the Lessor shall transfer to the Lessee or its designees all of the
Lessor's right, title and interest in and to the Properties in accordance with
the procedures set forth in Section 21.1(a), such transfer to be effective as of
the date specified in the Purchase Notice. The Lessee may designate, in a notice
given to the Lessor and the Administrative Agent not less than ten (10) Business
Days prior to the closing of such purchase (time being of the essence), the
transferee or transferees to whom the conveyance shall be made (if other than to
the Lessee), in which case such conveyance shall (subject to the terms and
conditions set forth herein) be made to such designee; provided, however, that
such designation of a transferee or transferees shall not cause the Lessee to be
released, fully or partially, from any of its obligations under this Master
Lease, including, without limitation, the obligation to pay to the Lessor the
Lease Balance on the date specified in the Purchase Notice.
Section 18.2. Expiration Date Purchase Obligation. Unless (a) the
Lessee shall have properly exercised its option pursuant to Section 18.1 and
purchased all of the Properties pursuant thereto, or (b) the Lessee shall have
properly exercised the Remarketing Option and shall have fulfilled all of the
requirements of Article XX, 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 (or its designee) shall purchase from the Lessor,
and the Lessor shall convey to the Lessee (or its designee), on the Expiration
Date all of the interest of the Lessor in all of the Properties for an amount
equal to the Lease Balance. The Lessee may designate, in a notice given to the
Lessor and the Administrative Agent not less than ten (10) Business Days prior
to the closing of such purchase (time being of the essence), the transferee or
transferees to whom the conveyance shall be made (if other than to the Lessee),
in which case such conveyance shall (subject to the terms and conditions set
forth herein) be made to such designee; provided, however, that such designation
of a transferee or transferees shall not cause the Lessee to be released, fully
or partially, from any of its obligations under this Master Lease, including,
without limitation, the obligation to pay the Lessor the Lease Balance on such
Expiration Date.
Section 18.3. Acceleration of Purchase Obligation. The Lessee shall
be obligated to purchase for an amount equal to the Lease Balance all of the
interest of the Lessor in all of the Properties (notwithstanding any prior
election to exercise its Purchase Option pursuant to Section 18.1) automatically
and without notice upon the occurrence of any Lease Event of
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▇▇▇ Research Corporation Amended and Restated Master Lease
Default described in clause (i) of Section 16.1. Any purchase under this Section
18.3 shall be in accordance with the procedures set forth in Section 21.1(a).
Section 18.4. Failure to Elect Options. IN THE EVENT THE LESSEE
FAILS TO ELECT AN OPTION WITH RESPECT TO A PROPERTY UNDER SECTION 18.1 OR 20.1
AT LEAST 180 DAYS PRIOR TO THE END OF THE LEASE TERM THEN IN EFFECT, THE LESSEE
WILL BE DEEMED TO HAVE ELECTED TO PURCHASE SUCH PROPERTY PURSUANT TO SECTION
18.2.
ARTICLE XIX
[INTENTIONALLY OMITTED]
ARTICLE XX
REMARKETING OPTION
Section 20.1. Option to Remarket. Subject to the fulfillment of
each of the conditions set forth in this Section 20.1 and Section 20.2
(collectively, the "Return Conditions"), the Lessee shall have the option (the
"Remarketing Option") to remarket and complete the sale of all, but not less
than all, of the Properties for the Lessor.
The Lessee's effective exercise and consummation of the Remarketing
Option shall be subject to the due and timely fulfillment of each of the
following provisions and the provisions of Section 20.2 as of the dates set
forth below:
(a) On the date not later than one hundred eighty (180) days prior
to the Expiration Date, the Lessee shall give to the Lessor and the
Administrative Agent written notice of the Lessee's exercise of the Remarketing
Option.
(b) Not later than one hundred and twenty (120) days prior to the
Expiration Date, the Lessee shall deliver to the Lessor an Environmental Audit
for each Property. Each Environmental Audit shall be prepared by an
environmental consultant selected by the Lessor in the Lessor's discretion and
shall contain conclusions satisfactory to the Lessor as to the environmental
status of such Property. If any such Environmental Audit indicates any
exceptions calling for a Phase Two environmental assessment, the Lessee shall
have also delivered prior to the Expiration Date a Phase Two environmental
assessment by such environmental consultant and a written statement by such
environmental consultant indicating that all such exceptions have been remedied
in compliance with Applicable Law.
(c) 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 occur.
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▇▇▇ Research Corporation Amended and Restated Master Lease
(d) The Lessee shall have completed all Modifications, restoration
and rebuilding of each Property pursuant to Sections 10.1 and 14.2 (as the case
may be) and shall have fulfilled all of the conditions and requirements in
connection therewith pursuant to such Sections, in each case prior to the date
on which the Lessor receives the Lessee's notice of the Lessee's intention to
exercise the Remarketing Option (time being of the essence), regardless of
whether the same shall be within the Lessee's control. The Lessee shall have
also paid the cost of all Modifications commenced prior to the Expiration Date.
The Lessee shall not have been excused pursuant to Section 12.1 from complying
with any Applicable Law that involved the extension of the ultimate imposition
of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens
(other than Lessor Liens) on each Property that were contested by the Lessee
shall have been removed and the Lessor shall have received evidence satisfactory
to it that all Liens (other than Lessor Liens and uncontested Permitted Property
Liens of the type described in clauses (i), (vii), (ix) and (x) of the
definition thereof) have been removed.
Section 20.2. Procedures During Remarketing. (a) During the
Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use
its best efforts to sell the interest of the Lessor in each Property for which
the Remarketing Option has been exercised and will attempt to obtain the highest
purchase price therefor and for not less than the Fair Market Sales Value. The
Lessee will be responsible for hiring brokers (if the Lessee so elects) and
making each Property available for inspection by prospective purchasers. The
Lessee shall promptly upon request permit inspection of each Property and any
maintenance records relating to each Property by the Lessor, any Participant and
any potential purchasers, and the Lessee shall otherwise do all things necessary
to sell and deliver possession of each Property to any purchaser. All such
marketing of the Properties shall be at the Lessee's sole expense.
(b) The Lessee shall use best efforts to procure written bids from
one or more bona fide prospective purchasers. No such purchaser shall be the
Lessee or any Affiliate thereof. Each written offer must specify the Expiration
Date as the closing date. 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.
(c) The Lessee shall submit all bids to the Lessor promptly upon
receipt, and the Lessor will have the right to submit any one or more bids. Any
sale by the Lessee shall be for the highest cash bid submitted to the Lessor.
The Lessor shall determine the highest bid prior to the end of the Marketing
Period, but in any event, the Lessor shall have no obligation to approve any bid
for any Property unless the highest bid for such Property equals or exceeds the
Property Cost for such Property plus all Permitted Sales Costs therefor. All
bids shall be on an all-cash basis.
(d) In connection with any such sale of any Property, the Lessee
will provide to the purchaser all customary "seller's" indemnities (including,
without limitation, an environmental indemnity to the extent the same are
required by the purchaser) and representations and warranties regarding title,
absence of Liens (other than Permitted Property Liens of the type described in
clause (i), (vii), (viii) or (x) of the definition thereof) and the condition of
such Property. 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 such Property. As to the Lessor, any such sale
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▇▇▇ Research Corporation Amended and Restated Master Lease
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 attributable to
the Lessor.
(e) Subject to the reimbursement obligations set forth in clause
(h) below, the Lessee shall pay directly, and not from the sale proceeds, all
prorations, credits, costs and expenses of the sale of each Property, whether
incurred by the Lessor or the Lessee, including, without limitation, the cost of
all title insurance, surveys, environmental reports, appraisals, transfer taxes,
the attorneys' fees of the Lessor, the Lessee's attorneys' fees, commissions,
escrow fees, recording fees, and all applicable documentary and other transfer
taxes.
(f) The Lessee shall pay to the Administrative Agent on or prior
to the Expiration Date (or in the case of Supplemental Rent, to the Person
entitled thereto) an amount equal to the Maximum Recourse Amount for each
Property plus all accrued and unpaid Rent (including Supplemental Rent, if any)
for each Property and all other amounts hereunder which have accrued or will
accrue prior to or as of the Expiration Date with respect to each Property, in
the type of funds specified in Section 3.4 hereof.
(g) The Lessee shall pay to the Administrative Agent on or prior
to the Expiration Date the amounts, if any, required to be paid pursuant to
Section 13.2 of the Participation Agreement.
(h) The sale of each Property shall be consummated on the
Expiration Date and the gross proceeds (the "Gross Remarketing Proceeds") of the
sale of each Property (less any marketing, closing or other costs, prorations or
commissions incurred by the Lessor) shall be paid directly to the Administrative
Agent. If the sale of any Property is consummated during the Marketing Period,
then, upon the Administrative Agent's timely receipt of the Gross Remarketing
Proceeds thereof and all other amounts due to the Administrative Agent, the
Lessor and the Participants under this Master Lease and the other Operative
Documents (including all amounts due pursuant to clause (f) above and Article
XIII of the Participation Agreement), the Administrative Agent shall apply such
Gross Remarketing Proceeds, first, to the payment of Permitted Sales Costs, and
second, as set forth in Section 7.4 of the Participation Agreement. If the Gross
Remarketing Proceeds from such sale (if any) of a Property exceeds the sum of
(i) the aggregate Property Balance for such Property being sold as of such date
minus the Maximum Recourse Amount, and other amounts paid to Administrative
Agent pursuant to clause (f) above for such Property plus (ii) all Permitted
Sales Costs with respect to such Property, then the excess shall be paid to the
Lessee on the Expiration Date.
(i) Except as expressly set forth herein, the Lessee shall have no
right, power or authority to bind the Lessor or any Participant in connection
with any proposed sale of any Property.
(j) During the Marketing Period, the obligation of the Lessee to
pay Rent (including the installment of Rent due on the Expiration Date) shall
continue undiminished until payment in full of the Lease Balance and all other
amounts due to the Participants under the Operative Documents to which the
Lessee is a party.
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▇▇▇ Research Corporation Amended and Restated Master Lease
Section 20.3. Remedies for Failed Remarketing. If the Lessee
effectively elects the Remarketing Option with respect to any Property and each
of the conditions and requirements in Sections 20.1 and 20.2 shall have been
satisfied, but nevertheless the Lessee is unable to obtain bids satisfactory to
the Lessor, and the sale of a Property is not consummated prior to the end of
the Marketing Period, the Lessor shall by written notice to the Lessee choose
one or both of the following remedies (which election may be changed at any
time):
(a) Continue Remarketing Efforts. At the request of the
Lessor, the Lessee shall continue to market such Property on behalf of
the Lessor for up to an additional six (6) months and at the sole cost
and expense of the Lessee (subject to Section 20.2(h) above), and
during such extended marketing period continue to comply with the
requirements of Articles IX, X, XI, XIII, XIV and XX at the Lessee's
sole cost and expense. The Lessor shall by written notice to the Lessee
indicate the duration of such extended marketing period (the last day
of such period, the "Extended Expiration Date"), and the Lessor shall
have the option to accelerate or shorten such Extended Expiration Date
at any time. If such Property shall not have been sold prior to the
Extended Expiration Date, the Lessor can then elect the remedies
available under Section 20.3(b) hereof with respect to such unsold
Property.
(b) Return. Demand that such unsold Property be returned
to the Lessor, whereupon the Lessee shall do each of the following at
its own cost and expense:
(i) pay the Maximum Recourse Amount, execute and
deliver to the Lessor and the Lessor's title insurance company
an affidavit as to the absence of any Liens (other than
Permitted Property Liens of the type described in clause (i),
(vii), (viii) or (x) of the definition thereof), and execute
and deliver to the Lessor a statement of termination of this
Master Lease to the extent relating to such Property;
(ii) transfer possession of such Property to the
Lessor or any Person designated by the Lessor, by surrendering
the same into the possession of the Lessor or such Person, as
the case may be, in the condition required by this Master
Lease and in compliance with Applicable Law; and
(iii) cooperate fully with the Lessor and/or any
Person designated by the Lessor to receive such Property,
which cooperation shall include: if requested by the Lessor,
subject to the good faith mutual agreement of the Lessor and
the Lessee, the entering into a property management agreement
with respect to such Property and in connection therewith
serving as the property manager of such Property on market
terms established in good faith and reasonably acceptable to
the Lessor, providing copies of all books and records
regarding the maintenance and ownership of such Property and
all non-proprietary data and technical information relating
thereto, providing a current copy of the applicable Plans and
Specifications, to the extent permitted by Requirements of
Law, granting or assigning all assignable licenses necessary
for the operation and maintenance of such Property and the
seeking and obtaining of all necessary Governmental
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▇▇▇ Research Corporation Amended and Restated Master Lease
Action. The obligations of the Lessee under this paragraph
shall survive the expiration or termination of this Master
Lease.
Section 20.4. No Sale of Property. If the Lessee effectively elects
the Remarketing Option with respect to the Properties and each of the conditions
and requirements in Sections 20.1 and 20.2 shall have been satisfied, but
nevertheless the Lessee is unable to obtain a bid at least equal to the Property
Balance during the Remarketing Period or any extension thereof pursuant to
Section 20.3(a) and the Properties are not sold (due either to the Lessor's
rejection of any bids or the failure to obtain any bids), there shall not be
deemed to be a Lease Event of Default by virtue of such failure to sell the
Properties and the Lessee shall only be obligated to make the payments referred
to in Sections 20.2(e), (f) and (g) hereof.
Section 20.5. Return of Excess Amounts. If, in connection with an
effective election of the Remarketing Option, the Lessee pays the Maximum
Recourse Amount and relinquishes its interest in the Properties, in accordance
with the provisions hereof and of the other Operative Documents, as applicable,
and, at any time thereafter, the Administrative Agent shall have received as of
any date of determination (whether through the Lessee's payment of such Maximum
Recourse Amount, as the case may be, or through the sale or reletting of the
Properties to a third party) an amount exceeding the sum of the following: (i)
the Property Balance of each Property on the date of such determination, (ii) if
such date of determination occurs after the Expiration Date, an Imputed Return
on each Participant's outstanding Loans or Lessor Amounts made with respect to
each Property, during the period from the Expiration Date to such date of
determination, (iii) all costs and expenses (including, without limitation,
legal costs and attorneys' fees) of each of the Participants and the
Administrative Agent incurred in connection with each Property (including,
without limitation, all costs and expenses incurred in connection with any
reletting or sale of each Property or any portion thereof) and (iv) all other
amounts owing to each of the Participants and the Administrative Agent under the
Operative Documents, to the extent relating to each Property or allocable to
each Property, then the Administrative Agent (or, as the case may be, the
Lessor) shall pay such excess over to the Lessee.
ARTICLE XXI
PROCEDURES RELATING TO PURCHASE OR REMARKETING OPTIONS
Section 21.1. Provisions Relating to the Exercise of Purchase
Option or Obligation and Conveyance upon Remarketing; Conveyance upon Certain
Other Events. (a) In connection with any termination of this Master Lease with
respect to any Property pursuant to the terms of Article XV, in connection with
the Lessee's purchase of each Property in accordance with Section 18.1 or 18.2
hereof, in connection with the Lessee's Expiration Date Purchase Obligation or
obligations under Section 16.2(f) or 18.3 or in connection with the Lessor's
receipt of an aggregate amount equal to all amounts set forth in Section 16.5 as
set forth in such Section or in connection with any sale pursuant to the
Remarketing Option in accordance with Article XX, then, upon the date on which
this Master Lease is to terminate and upon tender by the Lessee of
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▇▇▇ Research Corporation Amended and Restated Master Lease
the amounts set forth in Article XV, Sections 16.2(f), 16.5, 18.1, 18.2 or 18.3
hereof, as applicable:
(i) the Lessor shall execute and deliver to the
Lessee (or to the Lessee's designee) at the Lessee's cost and
expense: (x) a quitclaim deed with respect to the relevant
Property containing representations and warranties of grantor
regarding the absence of Lessor Liens attributable to the
Lessor (but no other representations or warranties), (y) a
▇▇▇▇ of sale with respect to the interest of the Lessor in any
items of personalty or Equipment on such Property, containing
representations and warranties of grantor regarding the
absence of Lessor Liens attributable to the Lessor (but no
other representations or warranties), and (z) an assignment of
the entire interest of the Lessor in such Property (which
shall include an assignment of all of the right, title and
interest of the Lessor in and to any Excess
Casualty/Condemnation Proceeds), in each case in recordable
form and otherwise in conformity with local custom to the
extent consistent with the foregoing scope of the Lessor's
representations and warranties and free and clear of the Lien
of the Lessor Mortgage, the Mortgage and any Lessor Liens
attributable to the Lessor;
(ii) such Property shall be conveyed to the
Lessee (or to the Lessee's designee) "AS IS" and in its then
present physical condition;
(iii) the Lessor shall convey to the Lessee any
Excess Casualty/Condemnation Proceeds with respect to such
Property; and
(iv) the Lessor shall execute and deliver to the
Lessee (or its designee) and the Lessee's title insurance
company an affidavit as to the Lessor's title and Lessor Liens
attributable to the Lessor and shall execute and deliver to
the Lessee a statement of termination of this Master Lease
with respect to such Property and termination of the Lease
Supplement (if applicable) covering such Property.
(b) If the Lessee properly exercises the Remarketing Option with
respect to a Property pursuant to Article XX and a satisfactory purchaser is
located, then the Lessee shall, on the Expiration Date, and at its own cost,
transfer possession of such Property to the independent purchaser thereof
(unless otherwise agreed to by such purchaser and Lessee), by surrendering the
same into the possession of such purchaser, free and clear of all Liens other
than Permitted Property Liens of the type described in clause (i), (vii), (viii)
or (x) of the definition thereof, in good condition (as modified by
Modifications permitted by this Master Lease), ordinary wear and tear excepted,
and in compliance with Applicable Law. The Lessee shall cooperate with the
Lessor and the independent purchaser(s) of such Property in order to facilitate
the purchase by such purchaser of such Property, which cooperation shall
include, among other things, the following, all of which the Lessee shall do (or
cause to be done) on or before the Expiration Date or as soon thereafter as is
reasonably practicable: providing copies of all books and records regarding the
maintenance and ownership of such Property and all non-proprietary data and
technical information relating thereto; providing a current copy of the Plans
and Specifications for such Property; to the extent permitted by any Requirement
of Law, granting or assigning all assignable licenses necessary for the
operation and maintenance of such Property; and seeking
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▇▇▇ Research Corporation Amended and Restated Master Lease
and obtaining all necessary Governmental Action. The obligations of the Lessee
under this paragraph shall survive the expiration or termination of this Master
Lease. The Lessor agrees to cooperate and execute such documents as are
necessary to facilitate the foregoing.
ARTICLE XXII
ESTOPPEL CERTIFICATES
Section 22.1. Estoppel Certificates. At any time and from time to
time upon not less than twenty (20) Business Days' prior request by the Lessor
or the Lessee (the "Requesting Party"), the other party (whichever party shall
have received such request, the "Certifying Party") shall furnish to the
Requesting Party a certificate signed by an individual having the office of vice
president, director or higher certifying that this Master Lease is in full force
and effect (or that this Master Lease is in full force and effect as modified
and setting forth the modifications); the dates to which the Basic Rent and
Supplemental Rent have been paid; to the best knowledge of the signer of such
certificate, whether or not the Requesting Party is in default under any of its
obligations hereunder and, if so, the nature of such alleged default; and such
other matters under this Master Lease as the Requesting Party may reasonably
request.
Any such certificate furnished pursuant to this Article XXII may be
relied upon by the Requesting Party, and any existing or prospective mortgagee,
purchaser or lender, and any accountant or auditor, of, from or to the
Requesting Party (or any affiliate thereof).
ARTICLE XXIII
ACCEPTANCE OF SURRENDER
Section 23.1. Acceptance of Surrender. No surrender to the Lessor
of this Master Lease or of all or any of the Properties or of any part of any
thereof or of any interest therein shall be valid or effective unless agreed to
and accepted in writing by the Lessor and, prior to the payment or performance
of all obligations under the Loan Agreement and termination of the Commitments,
the Administrative Agent, and no act by the Lessor or any Lender or any
representative or agent of the Lessor or any Lender other than a written
acceptance, shall constitute an acceptance of any such surrender.
ARTICLE XXIV
NO MERGER OF TITLE
Section 24.1. No Merger of Title. There shall be no merger of this
Master Lease of the leasehold estate created hereby by reason of the fact that
the same Person may acquire, own or hold, directly or indirectly, in whole or in
part, (a) this Master Lease or the leasehold estate created hereby or any
interest in this Master Lease or such leasehold estate, (b) the fee estate in
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▇▇▇ Research Corporation Amended and Restated Master Lease
any Property, except as may expressly be stated in a written instrument duly
executed and delivered by the appropriate Person or (c) a beneficial interest in
the Lessor.
ARTICLE XXV
INTENT OF THE PARTIES
Section 25.1. Ownership of the Properties. (a) The parties hereto
intend that (i) for the Lessee's United States' financial accounting purposes,
the Lessor will be treated as the owner and lessor of an undivided interest in
each Property and the Lessee will be treated as the lessee of each Property
leased by it hereunder and (ii) for federal and all state and local income tax
purposes, state real estate and commercial law and bankruptcy purposes, (A) the
Lease will be treated as a financing arrangement, (B) the Lessor and the Lenders
will be deemed lenders making loans to the Lessee in an amount equal to the sum
of the Lessor Amounts and the outstanding principal amount of the Loans, which
loans are secured by the Properties and (C) the Lessee will be treated as the
owner of each Property and will be entitled to all tax benefits ordinarily
available to an owner of properties similar to the Properties for such tax
purposes. Nevertheless, the Lessee acknowledges and agrees that none of the
Administrative Agent, the Lessor, the Arranger or any Lender has made any
representations or warranties to the Lessee concerning the tax, the Lessee's
accounting or legal characteristics of the Operative Documents and that the
Lessee has obtained and relied upon such tax, accounting and legal advice
concerning the Operative Documents as it deems appropriate. The parties hereto
shall not take any position inconsistent with the intentions expressed herein.
(b) It is the intent of the parties hereto that this Master Lease
grants a security interest and mortgage or deed of trust, as the case may be, on
each Property to the Lessor or for the benefit of the Lessor and the other
Participants to secure the performance of the Lessee under and payment of all
amounts under the Lease and the other Operative Documents all as more
specifically set forth in Section 5 of each Lease Supplement.
ARTICLE XXVI
MISCELLANEOUS
Section 26.1. Severability; Perpetuities; Etc. If any term or
provision of this Master Lease or any application thereof shall be declared
invalid or unenforceable, the remainder of this Master Lease (or any Lease
Supplement) and any other application of such term or provision shall not be
affected thereby. If any right or option of the Lessee provided in this Master
Lease, including any right or option described in Article XIV, XV, XVIII or XX,
would, in the absence of the limitation imposed by this sentence, be invalid or
unenforceable as being in violation of the rule against perpetuities or any
other rule of law relating to the vesting of an interest in or the suspension of
the power of alienation of property, then such right or option shall be
exercisable only during the period which shall end twenty-one (21) years after
the date of death of the last survivor of the descendants of ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, the former President of the United States, ▇▇▇▇▇ ▇▇▇▇, the deceased
automobile manufacturer, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, the founder of the
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▇▇▇ Research Corporation Amended and Restated Master Lease
Standard Oil Company, known to be alive on the date of the execution,
acknowledgment and delivery of this Master Lease.
Section 26.2. Amendments and Modifications. Subject to the
requirements, restrictions and conditions set forth in the Participation
Agreement, neither this Master Lease nor any provision hereof may be amended,
waived, discharged or terminated except by an instrument in writing in
recordable form signed by the parties hereto.
Section 26.3. No Waiver. No failure by the Lessor, the
Administrative Agent, any Participant or the Lessee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy upon a
default hereunder, and no acceptance of full or partial payment of Rent during
the continuance of any such default, shall constitute a waiver of any such
default or of any such term. To the fullest extent permitted by law, no waiver
of any default shall affect or alter this Master Lease, and this Master Lease
shall continue in full force and effect with respect to any other then existing
or subsequent default.
Section 26.4. Notices. All notices, demands, requests, consents,
approvals and other communications hereunder shall be in writing and directed to
the address described in, and deemed received in accordance with the provisions
of, Section 15.3 of the Participation Agreement.
Section 26.5. Successors and Assigns. All the terms and provisions
of this Master Lease shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 26.6. Headings and Table of Contents. The headings and
table of contents in this Master Lease are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
Section 26.7. Counterparts. This Master Lease may be executed in
any number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same instrument.
SECTION 26.8. GOVERNING LAW. THIS MASTER LEASE SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT TITLE 14
OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW (EXCEPT AS OTHERWISE SET
FORTH IN THE LEASE SUPPLEMENT WITH RESPECT TO THE CREATION AND PERFECTION OF THE
LIENS AND SECURITY INTERESTS IN EACH PROPERTY AND THE RIGHTS AND REMEDIES OF THE
LESSOR AND THE PARTICIPANTS WITH RESPECT TO EACH PROPERTY).
Section 26.9. Original Lease. The single executed original of this
Master Lease marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on
the signature page thereof and containing the receipt thereof of KEY CORPORATE
CAPITAL INC., as Administrative Agent for the Lenders therefor on or following
the signature page thereof shall be the Original Executed Counterpart of this
Master Lease (the "Original Executed Counterpart"). To the extent that this
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▇▇▇ Research Corporation Amended and Restated Master Lease
Master Lease constitutes chattel paper, as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction, no security
interest in this Master Lease may be created through the transfer or possession
of any counterpart other than the Original Executed Counterpart.
Section 26.10. Time of Essence. With respect to each of the Lessee's
obligations and the Lessor's obligations hereunder, time is of the essence, and
each such party hereby acknowledges and confirms the foregoing.
Section 26.11. Liability Limited. The obligations of the Lessor
hereunder are subject to the limitations set forth in Section 15.10 of the
Participation Agreement.
Section 26.12. Related Properties. Notwithstanding anything
contained herein or in any other Operative Document to the contrary, in the
event the Land or Improvements comprising Property ▇▇. ▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇ or
Property No. 4 are (a) terminated from this Lease pursuant to Section 15.1
hereof or (b) the Lessee elects to exercise the Partial Purchase Option with
respect thereto, then the Partial Termination or Partial Purchase Option will be
irrevocably deemed to have occurred or have been exercised with respect to the
remaining portion of Property ▇▇. ▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇ or Property No. 4, as
applicable.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Master Lease to be
duly executed and delivered as of the date first above written.
▇▇▇ RESEARCH CORPORATION, as Lessee
By _________________________________________
Name_____________________________________
Its______________________________________
SELCO SERVICE CORPORATION, an Ohio
corporation, doing business in California as
"Ohio SELCO Service Corporation", as
Lessor
By _________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President
S-1
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART, Receipt of this
original counterpart of the foregoing Lease is hereby acknowledged as of the
date hereof.
KEY CORPORATE CAPITAL INC., as
Administrative Agent
By _________________________________________
Name_____________________________________
Its _____________________________________
S-2
EXHIBIT A
TO MASTER LEASE
(CALIFORNIA LEASE SUPPLEMENT)
THIS INSTRUMENT PREPARED BY,
RECORDING REQUESTED BY AND
AFTER RECORDING RETURN TO:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
6600 Sears Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE ONLY
NOTICE: THIS INSTRUMENT SECURES FUTURE ADVANCES UNDER A CREDIT FACILITY IN THE
AGGREGATE AMOUNT OF $58,033,031.30, THE PRIORITY OF WHICH DATE TO THE
RECORDING DATE HEREOF.
NOTICE: THE OBLIGATION THE PERFORMANCE OF WHICH IS SECURED BY THIS DEED OF
TRUST PROVIDES FOR A VARIABLE INTEREST RATE.
LEASE SUPPLEMENT NO. 1
(Memorandum of Lease Supplement,
Memorandum of Amended and Restated Master Lease and Deed of Trust
Fixture Filing and Memorandum of Option to Purchase)
THIS LEASE SUPPLEMENT NO. 1 (Memorandum of Lease Supplement, Memorandum
of Master Lease and Deed of Trust, Fixture Filing and Memorandum of Option to
Purchase) (this "Lease Supplement") dated as of June 1, 2003, between ▇▇▇
RESEARCH CORPORATION, a Delaware corporation, having its principal office at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, as the
Lessee, and SELCO SERVICE CORPORATION, an Ohio corporation, doing business in
California as "OHIO SELCO SERVICE CORPORATION", as Lessor (the "Lessor"), and
whose principal offices are located at c/o KeyCorp Leasing, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ and CHICAGO TITLE COMPANY, a California
corporation, as trustee (`Trustee"), having its principal office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, for the benefit of Lessor and the
Lenders ("Beneficiary").
The Amended and Restated Master Lease and Deed of Trust which this
Lease Supplement supplements and of which this Lease Supplement is a memorandum,
amends, restates, supercedes and replaces the unrecorded leases (a) with a lease
balance of $30,000,000, disclosed by the following recorded documents:
Memorandum of Lease (Lease Supplement), made by and between the ▇▇▇▇▇▇▇ 2000
Trust, a Delaware business trust ("▇▇▇▇▇▇▇ Trust") and the Lessee and recorded
in the Official Records of Alameda County, California ("Official Records") on
December 7, 2000 as Series No. 2000359109 and Memorandum of Lease (Lease
Supplement Land) made by and between the ▇▇▇▇▇▇▇ Trust and the Lessee and
recorded in the Official Records on December 7, 2000 as Series No. 2000359110
and (b) with a lease balance
of $27,146,185.35, disclosed by the following recorded document: Memorandum of
Lease (Lease Supplement), made by and between Scotiabanc, Inc., a Delaware
corporation ("SBI") and Lessee and recorded in the Official Records on January
21, 2000 as Series No. ▇▇▇▇▇▇▇▇▇▇ and Memorandum of Lease (Land) made by and
between SBI and the Lessee and recorded in the Official Records on January 21,
2000 as Series No. 2000019027.
ATTENTION OF RECORDING OFFICERS: Certain of the Property is or will become
"fixtures" (as that term is defined in the California Uniform Commercial Code)
on the real estate described in Schedule I attached hereto and this instrument,
upon being filed for record in the real estate records, shall operate also as a
financing statement upon such of the Property which is or may become fixtures.
The Lessee has an interest of record in the Property. This instrument is to be
recorded in, among other places, the real estate records of the county in which
such property is located.
W I T N E S S E T H :
WHEREAS, the Lessor is the record owner of the land described on
Schedule I attached hereto (the "Subject Land") together with all Improvements
which hereafter may be constructed on the Subject Land (the "Subject
Improvements" and, together with the Subject Land, the "Subject Property");
WHEREAS, the Lessor desires to lease the Subject Property to the Lessee
and the Lessee wishes to lease the Subject Property from the Lessor;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree to enter
into this Lease Supplement, as follows:
1. Certain Terms. Capitalized terms used but not otherwise
defined in this Lease Supplement have the meanings specified in Appendix A to
the Participation Agreement dated as of June 1, 2003 (as amended, restated,
supplemented or otherwise modified from time to time, the "Participation
Agreement"), and the rules of interpretation specified in Appendix A to the
Participation Agreement shall apply to this Lease Supplement.
2. Nature of Transaction. (a) The parties intend that (i) for
financial accounting purposes with respect to the Lessee, the Lessor will be
treated as the owner and lessor of the respective Properties and the Lessee will
be treated as the lessee of such Properties and (ii) for federal, state and
local income tax purposes, state real estate and commercial law purposes and
bankruptcy purposes, (A) the Lease will be treated as a financing arrangement,
(B) the Lessor and the Lenders will be deemed lenders making loans to the Lessee
in an amount equal to the sum of the Lessor Amounts and the outstanding
principal amount of the Loans, which loans are secured by such Properties and
(C) the Lessee will be treated as the owner of such Properties and will be
entitled to all tax benefits ordinarily available to an owner of properties like
such Properties for such tax purposes.
-2-
(b) It is the intent of the parties hereto that this Lease
Supplement grants a security interest and deed of trust, as the case may be, on
the Subject Property to the Trustee for the benefit of the Lessor and the
Lenders to secure the Lessee's performance under and payment of all amounts
under the Lease and the other Operative Documents (the "Subject Obligations").
3. Subject Property; Memorandum of Lease. Attached hereto as
Schedule I is the description of the Subject Land. Effective upon the execution
and delivery of this Lease Supplement by the Lessor and the Lessee, the Subject
Property shall be subject to the terms and provisions of the Master Lease. The
Master Lease is incorporated by reference herein as if set forth herein in its
entirety. Subject to the terms and conditions of the Master Lease, the Lessor
hereby leases the Subject Property to the Lessee for the Lease Term (as defined
below) of this Lease Supplement, and the Lessee hereby agrees with the Lessor to
lease the Subject Property from the Lessor for the Lease Term. The Master Lease
is dated as of June 1, 2003 and is by and between the Lessor and the Lessee.
4. Lease Term; Option to Purchase. The term of this Lease
Supplement (the "Lease Term") shall begin on June 24, 2003 and shall end on June
23, 2008 (the "Expiration Date"). For and in consideration of good and valuable
consideration paid by the Lessee to the Lessor as described in the Master Lease,
the Lessor hereby grants to the Lessee the right to purchase the Subject
Property during the Lease Term of this Lease Supplement on the terms and subject
to the conditions (including, without limitation, payment of the Property
Balance thereof) set forth in Section 18.1 of the Master Lease.
5. Liens and Security Interests. (a) Specifically, without
limiting the generality of Section 2, the Lessor and the Lessee intend and agree
that in the event 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, any Participant or any collection actions, the
transactions evidenced by the Operative Documents shall be regarded as loans
made by the Lenders and the Lessor as unrelated third party lenders to the
Lessee secured by respective Properties (it being understood that the Lessee
hereby deeds, warrants and grants a security interest in the Subject Property
(consisting of a fee deed of trust with respect to the Subject Property) WITH
POWER OF SALE to the Trustee for the benefit of the Lessor and the Lenders to
secure all Lessor Amounts and Loans advanced by the Participants for the
acquisition of the respective Properties together with Yield or interest, as
applicable, thereon, and all other amounts payable under the Operative Documents
in connection therewith, effective on the date hereof).
(b) Specifically, but without limiting the generality of Section
2, the Lessor and the Lessee further intend and agree that, for the purpose of
securing the obligation of the Lessee for the repayment of the above-described
loans from the Lessor and the Lenders to the Lessee, (i) the Master Lease and
the Lease Supplements shall also be deemed to be a security agreement and
financing statement within the meaning of Article 9 of the California Uniform
Commercial Code and a real property deed of trust; (ii) the conveyance provided
for hereby and in Article II of the Master Lease shall be deemed to be a grant
by the Lessee to the Beneficiary of a deed of trust lien and security interest
in all of the right, title and interest of the
-3-
Lessee in and to the Subject Property and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, investments, securities or
other property (it being understood that the Lessee hereby deeds and warrants
and grants a security interest in the Subject Property and all proceeds thereof
to the Lessor to secure all Loans and Lessor Amounts advanced by the
Participants for the acquisition of such Properties (the principal amount of
which shall not exceed in the aggregate $58,033,031.30 outstanding at any given
time), together with Yield or interest thereon, and all other amounts payable
under the Operative Documents in connection therewith) and (iii) the possession
by the Lessor or any of its agents of notes and such other items of property as
constitute instruments, money, negotiable documents, goods or tangible chattel
paper shall be deemed to be "perfection by possession" for purposes of
perfecting the security interest pursuant to Section 9-313 of the California
Uniform Commercial Code and the Lessor hereby acknowledges that it holds
possession of such instruments, money, negotiable documents, goods or tangible
chattel paper for the benefit of the Lessor and the Lenders pursuant to Section
9-313(c) of the California 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 all Applicable Laws. The Lessor and the Lessee shall, to the
extent consistent with the Master Lease and the Lease Supplements, take such
actions and execute, deliver, file and record such other documents, financing
statements and deeds of trust as may be necessary to ensure that, if the Lease
was deemed to create a security interest in the Subject Property in accordance
with this Section, such security interest would be deemed to be a perfected
security interest (subject only to Permitted Property Liens) and will be
maintained as such throughout the Lease Term.
(c) Specifically, but without limiting the foregoing or the
generality of Section 2, the Lessee hereby grants to the Trustee, IN TRUST, WITH
POWER OF SALE, for the benefit of Beneficiary, all of the Lessee's right, title
and interest in and to the following (collectively, the "Mortgaged Property"):
(i) the Subject Property and Appurtenant Rights relating thereto and all
proceeds, both cash and noncash, thereof; (ii) all easements, rights-of-way,
strips and gores of land, vaults, streets, ways, alleys, passages, sewer rights,
waters, water courses, water rights, including, without limitation, the stock in
any water company providing water for irrigation of the Subject Property,
minerals, flowers, shrubs, crops, trees, timber and other emblements now or
hereafter located on the Subject Land or under or above the same or any part or
parcel thereof, and all estates, rights, titles, interests, tenements,
hereditaments and appurtenances, reversions and remainders whatsoever, in any
way belonging, relating or appertaining to the Subject Property or any part
thereof, or which hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by the Lessee from any source;
(iii) if and to the extent acquired by the Lessee with the proceeds of Advances
(and transferred to the Lessor by SBI or ▇▇▇▇▇▇▇ Trust), all right, title and
interest of the Lessee in all furnishings, furniture, fixtures, machinery,
apparatus, Equipment, fittings, appliances, building supplies and materials,
vehicles (excluding the Lessee's personal automobiles), chattels, goods,
consumer goods, farm products, warranties, chattel paper, documents, accounts,
general intangibles, and goodwill related thereto, and all other articles of
personal property of every kind and nature whatsoever, tangible or intangible,
now, heretofore or hereafter acquired and now, heretofore or hereafter (A)
arising out of or related to the ownership of the Subject
-4-
Property, (B) located in, on or about the Subject Property or (C) used or
intended to be used with or in connection with the construction, use, operation
or enjoyment of the Subject Property; (iv) all right, title and interest of the
Lessee in any and all leases, rental agreements and arrangements of any sort now
or hereafter affecting the Subject Property or any portion thereof and providing
for or resulting in the payment of money to the Lessee for the use of the
Subject Property or any portion thereof, whether the user enjoys the Subject
Property or any portion thereof as tenant for years, licensee, tenant at
sufferance or otherwise, and irrespective of whether such leases, rental
agreements and arrangements be oral or written, and including any and all
extensions, renewals and modifications thereof (the "Subject Leases") and
guaranties of the performance or obligations of any tenants or lessees
thereunder, together with all income, rents, issues, profits and revenues from
the Subject Leases (including all tenant security deposits and all other tenant
deposits, whether held by the Lessee or in a trust account, and all other
deposits and escrow funds relating to any Subject Leases), and all the estate,
right, title, interest, property, possession, claim and demand whatsoever at
law, as well as in equity, of the Lessee of, in and to the same; provided,
however, that the Lessee shall have a revocable license to collect and apply
such rental payments and revenues as provided in the Master Lease and the other
Operative Documents; (v) to the extent transferable under any Requirement of
Law, all right, title and interest of the Lessee in, to and under all management
contracts, service contracts, utility contracts, leases of equipment, documents
and agreements relating to the construction of any Improvements (including any
and all construction contracts, architectural contracts, engineering contracts,
designs, plans, specifications, drawings, surveys, tests, reports, bonds and
governmental approvals) and all other contracts, licenses and permits now or
hereafter affecting the Subject Property or any part thereof and all guaranties
and warranties with respect to any of the foregoing (the "Subject Contracts");
(vi) all right, title and interest of the Lessee in any insurance policies or
binders required to be maintained by the Lessee pursuant to the terms of the
Master Lease or now or hereafter relating to the Subject Property, including any
unearned premiums thereon, as further provided in the Master Lease; (vii) all
right, title and interest of the Lessee in any and all awards, payments,
proceeds and the right to receive the same, either before or after any
foreclosure hereunder, as a result of any temporary or permanent injury or
damage to, taking of or decrease in the value of the Subject Property by reason
of casualty, condemnation or otherwise as further provided in the Master Lease;
(viii) all claims and causes of action arising from or otherwise related to any
of the foregoing, and all rights and judgments related to any legal actions in
connection with such claims or causes of action; and (ix) all Modifications,
extensions, additions, improvements, betterments, renewals and replacements,
substitutions, or proceeds of any of the foregoing; all of which foregoing items
are hereby declared and shall be deemed to be a portion of the security for the
indebtedness and Subject Obligations herein described, a portion of the above
described collateral being located upon the Subject Land; provided however that,
without limiting the foregoing, the Mortgaged Property shall not include any
inventory of the Lessee.
6. Remedies. Without limiting any other remedies set forth
herein, in the event that a court of competent jurisdiction rules that each of
the Master Lease and this Lease Supplement constitutes a deed of trust or other
secured financing with respect to the Subject Property as is the intent of the
parties pursuant to Article XXV of the Master Lease, then the Lessor and the
Lessee agree that upon a Lease Event of Default, the Beneficiary may declare all
sums secured hereby immediately due and payable by delivery to the Trustee of
written declaration of default
-5-
and demand for the sale and of written notice of default and of election to
cause to be sold the Subject Property which notice the Trustee shall cause to be
filed for record to the extent required by law. The Beneficiary also shall
deposit with the Trustee the Lease Supplement and all documents evidencing the
Lease Balance and expenditures secured hereby.
After the lapse of such time as may then be required by law following
the recordation of said notice of default, and notice of sale having been given
as then required by law, the Trustee, without demand on the Lessee, shall sell
the Mortgaged Property at the time and place fixed by it in said notice of sale,
either as a whole or in separate parcels, and in such order as it may determine
at public auction to the highest bidder for cash in lawful money of the United
States, payable at time of sale. The Trustee may postpone sale of all or any
portion of the Mortgaged Property by public announcement at such time and place
of sale, and from time to time thereafter may postpone such sale by public
announcement at the time fixed by the preceding postponement. The Trustee shall
deliver to such purchaser its deed conveying the property so sold, but without
any covenant or warranty, express or implied. The recitals in such deed of any
matters or facts shall be conclusive proof of the truthfulness thereof. Any
person, including the Lessee, the Trustee, or the Beneficiary as hereinafter
defined, may purchase at such sale. The Lessee shall have all rights available
to a Trustor under the laws of the jurisdiction in which the Mortgaged Property
is located except to the extent waived in the Operative Documents. The Lessee
agrees that the agreements of the Lessee herein contained shall be specifically
enforceable by injunction or any other appropriate equitable remedy and that for
the purpose of any suit brought under this subparagraph, the Lessee hereby
waives the defense of laches and any applicable statute of limitations.
After deducting all costs, fees and expenses of the Trustee and of this
trust, including cost of evidence of title in connection with sale, the Trustee
shall apply to proceeds of sale to payment of: all sums expended under the terms
hereof, not then repaid, with accrued interest at the amount allowed by law in
effect at the date hereof; all other sums then secured hereby; and the
remainder, if any, to the person or persons legally entitled thereto. In the
event of foreclosure, the Lessee authorizes and empowers the Trustee or the
Beneficiary to effect insurance upon the Subject Property in amounts aforesaid
for a period covering the time of redemption from foreclosure sale provided by
law, and if necessary therefor, to cancel any or all existing insurance
policies. In connection with any sale or sales hereunder, Beneficiary may elect
to treat to the fullest extent permitted by law any of the Mortgaged Property
which consists of a right in action or which is property that can be severed
from the real property covered hereby or any improvements thereon without
causing structural damage thereto as if the same were personal property, and
dispose of the same in accordance with applicable law, separate and apart from
the sale of real property. Any sale of any personal property hereunder shall be
conducted in any manner permitted by Section 9604 or any other applicable
section of the California Commercial Code. Where the Mortgaged Property consists
of real and personal property or fixtures whether or not such personal property
is located on or within the real property, the Beneficiary may elect in its
discretion to exercise its rights and remedies against any or all of the real
property, personal property, and fixtures in such order and manner as is now or
hereafter permitted by applicable law. Without limiting the generality of the
foregoing, the Beneficiary may, in its sole and absolute discretion and without
regard to the adequacy of its security, elect to proceed against any or all of
the real property, personal property and
-6-
fixtures in any manner permitted under Section 9604(a)(1) of the California
Commercial Code; and if the Beneficiary elects to proceed in the manner
permitted under Section 9604(a)(1)(B) of the California Commercial Code, the
power of sale herein granted shall be exercisable with respect to all or any of
the real property, personal property and fixtures covered hereby, as designated
by the Beneficiary, and the Trustee is hereby authorized and empowered to
conduct any such sale of any real property, personal property and fixtures in
accordance with the procedures applicable to real property. Where the Mortgaged
Property consists of real property and personal property, any reinstatement of
the obligation secured hereby, following default and an election by Beneficiary
to accelerate the maturity of said obligation, which is made by the Beneficiary
or any other person or entity permitted to exercise the right of reinstatement
under Section 2924c of the California Civil Code or any successor statute, shall
not, in accordance with the terms of California Commercial Code Section
9604(a)(3)(C), prohibit the Beneficiary from conducting a sale or other
disposition of any personal property or fixtures or from otherwise proceeding
against or continuing to proceed against any personal property or fixtures in
any manner permitted by the California Commercial Code; nor shall any such
reinstatement invalidate, rescind or otherwise affect any sale, disposition or
other proceedings held, conducted or instituted with respect to any personal
property or fixtures prior to such reinstatement or pending at the time of such
reinstatement. Any sums paid to the Beneficiary in effecting any reinstatement
pursuant to Section 2924c of the California Civil Code shall be applied to the
secured obligation and to the Beneficiary's and the Trustee's reasonable costs
and expenses in the manner required by Section 2924c. Should the Beneficiary
elect to sell any portion of the Mortgaged Property which is real property or
which is personal property or fixtures that Beneficiary has elected under
Section 9604(a)(1)(b) of the California Commercial Code to sell together with
real property in accordance with the laws governing a sale of real property, the
Beneficiary or the Trustee shall give such notice of default and election to
sell as may then be required by law. Any requirement of the California
Commercial Code for reasonable notification shall be met by mailing written
notice to the Lessee at its address above set forth at least ten (10) days prior
to the sale or other event for which such notice is required. Notwithstanding
anything to the contrary in this Lease Supplement, the Lessee, in accordance
with the applicable laws of the State of California and applicable provisions of
the California Rules of Procedure, or of any other general or local law or rules
or regulations of the State of California relating to deeds of trust does hereby
declare and assent to the passage of a decree to sell the Mortgaged Property by
the equity court having jurisdiction for the sale thereof and the Trustee
appointed by such decree of court shall have, subject to the terms of the decree
of court, the same authority and power to sell on the terms and conditions
herein set forth. This assent to decree shall not be exhausted in the event the
proceeding is dismissed before the indebtedness secured hereby is paid in full.
7. Non-Responsibility. Nothing contained in this Lease Supplement
shall be construed as constituting the consent or request of the Lessor, the
Administrative Agent, or any other Participant, 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 Subject
Property or any part thereof. NOTICE IS HEREBY GIVEN THAT NEITHER THE LESSOR NOR
THE ADMINISTRATIVE AGENT 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
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SUBJECT 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 ADMINISTRATIVE AGENT OR ANY LENDER
IN AND TO THE SUBJECT PROPERTY.
8. Ratification. The terms and provisions of the Master Lease are
hereby ratified and confirmed and remain in full force and effect. In the event
of any conflict between the terms of the Master Lease and the terms of this
Lease Supplement, the terms of the Master Lease shall control.
9. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA.
10. Counterpart Execution. This Lease Supplement may be executed
in any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
11. Maximum Recourse Amount. The percentage applicable to the
calculation of the Maximum Recourse Amount for the Subject Property is set forth
on Schedule III to the Participation Agreement.
-8-
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Lease Supplement as of the date first above written.
LESSEE:
▇▇▇ RESEARCH CORPORATION, as Lessee
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Name ▇▇▇▇▇ ▇▇▇▇▇▇
Title VP and Treasurer
LESSOR:
SELCO SERVICE CORPORATION, an Ohio
corporation, doing business in
California as "Ohio SELCO Service
Corporation", as Lessor
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President
-9-
STATE OF CALIFORNIA )
) SS.:
COUNTY OF ALAMEDA )
On June ___, 2003 before me, _________________________, personally
appeared ________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed this instrument.
WITNESS my hand and official seal.
[SEAL]
Notary Public
_________________________________
(TYPE OR PRINT NAME)
▇-▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
) SS.:
COUNTY OF BOULDER )
I, the undersigned, a Notary Public in and for said County, in the
State aforesaid, do hereby certify that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the Vice President of
SELCO SERVICE CORPORATION, an Ohio corporation (doing business in California as
"Ohio SELCO Service Corporation"), who is personally known to me to be the same
person whose name is subscribed to the foregoing instrument as such Vice
President, appeared before me this day in person and acknowledged that he signed
and delivered the said instrument as his own free and voluntary act and as the
free and voluntary act and deed of said corporation for the uses and purposes
therein set forth.
Given under my hand and notarial seal, this _____ day of June, 2003.
[NOTERIAL SEAL]
Notary Public
_________________________________
(TYPE OR PRINT NAME)
(SEAL)
Commission Expires:
____________________
A-2
SCHEDULE I
TO LEASE SUPPLEMENT NO. 1
LEGAL DESCRIPTION OF SUBJECT LAND
Property ▇▇. ▇
▇▇▇▇▇▇ ▇▇▇:
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ MAP 5001, FILED MARCH 18, 1987, IN BOOK 168 OF MAPS, AT PAGES
24 THROUGH 26, ALAMEDA COUNTY RECORDS.
RESERVING THEREFROM:
AN EASEMENT FOR PRIVATE ACCESS OVER THAT PORTION LYING WITHIN THE AREA
DESIGNATED "J.A.E." ON SAID MAP.
PARCEL FIVE:
AN EASEMENT FOR PRIVATE ACCESS FOR THE BENEFIT OF PARCEL ONE, ABOVE, OVER THAT
PORTION OF PARCEL 2, PARCEL MAP 5001 DESIGNATED "J.A.E." ON SAID MAP.
Property ▇▇. ▇
▇▇▇▇▇▇ ▇▇▇:
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ MAP 5001, FILED MARCH 18, 1987, IN BOOK 168 OF MAPS, AT PAGES
24 THROUGH 26, ALAMEDA COUNTY RECORDS.
RESERVING THEREFROM:
AN EASEMENT FOR PRIVATE ACCESS OVER THAT PORTION LYING WITHIN THE AREA
DESIGNATED "J.A.E." ON SAID MAP.
PARCEL THREE:
AN EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS THE FOLLOWING DESCRIBED
LANDS, FOR THE BENEFIT OF PARCEL 2, HEREIN, AS CREATED BY THAT CERTAIN
INSTRUMENT RECORDED AUGUST 10, 1994, INSTRUMENT NO. 94-275492, ALAMEDA COUNTY
RECORDS:
A-3
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF FREMONT, COUNTY OF
ALAMEDA, STATE OF CALIFORNIA, BEING A PORTION OF PARCEL 3 AS SHOWN UPON THAT
CERTAIN PARCEL MAP 5001, FILED FOR RECORD IN BOOK 168 OF MAPS, AT PAGES 24, 25
AND 26, ALAMEDA COUNTY RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 3; THENCE ALONG THE
WESTERLY LINE OF PARCEL 3, SOUTH 7(DEGREE) 11' 33" EAST, 150.00 FEET; THENCE THE
FOLLOWING FOUR (4) COURSES AND DISTANCES: NORTH 82(DEGREE) 48' 27" EAST, 12.00
FEET; NORTH 7(DEGREE) 11' 33" WEST, 45.00 FEET; NORTH 4(DEGREE) 16' 47" WEST,
59.04 FEET; AND NORTH 7(DEGREE) 11' 33" WEST, 46.04 FEET TO THE NORTHERLY LINE
OF PARCEL 3; THENCE ALONG SAID NORTHERLY LINE, SOUTH 82(DEGREE) 48' 27" WEST,
15.00 FEET TO THE POINT OF BEGINNING.
PARCEL FOUR:
AN EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS THE FOLLOWING DESCRIBED LANDS
FOR THE BENEFIT OF PARCEL 2, HEREIN, AS CREATED BY THAT CERTAIN INSTRUMENT
RECORDED AUGUST 10, 1994, INSTRUMENT NO. 94-275492, ALAMEDA COUNTY RECORDS.
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF FREMONT, COUNTY OF
ALAMEDA, STATE OF CALIFORNIA, BEING A PORTION OF PARCEL 3, AS SHOWN UPON THAT
CERTAIN PARCEL MAP 5001, FILED FOR RECORD IN BOOK 168 OF MAPS, AT PAGES 24, 25
AND 26, ALAMEDA COUNTY RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE WESTERLY LINE OF PARCEL 3, DISTANT NORTHERLY 25.18
FEET FROM THE SOUTHWESTERLY CORNER THEREOF; THENCE ALONG SAID WESTERLY LINE,
NORTH 7(DEGREE) 11' 33" WEST, 281.49 FEET; THENCE THE FOLLOWING FIVE (5) COURSES
AND DISTANCES: NORTH 82(DEGREE) 48' 27" EAST, 12.00 FEET; SOUTH 7(DEGREE) 11'
33" EAST, 168.34 FEET; SOUTH 37(DEGREE) 48' 27" WEST, 5.66 FEET; SOUTH 7(DEGREE)
11' 33" EAST, 110.09 FEET; AND SOUTH 89(DEGREE) 32' 31" WEST, 8.06 FEET TO THE
POINT OF BEGINNING.
PARCEL SIX:
AN EASEMENT FOR PRIVATE ACCESS FOR THE BENEFIT OF PARCEL TWO, ABOVE, OVER THAT
PORTION OF PARCEL 1, PARCEL MAP 5001 DESIGNATED "J.A.E." ON SAID MAP.
A-4
Property No. 8
PARCEL A:
PARCEL 1, MAP 5736, FILED JULY 29, 1991, BOOK 198 OF PARCEL MAPS, PAGES 27 AND
28, ALAMEDA COUNTY RECORDS.
PARCEL B:
NON-EXCLUSIVE EASEMENTS FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS ON, OVER
AND ACROSS PORTIONS OF PARCELS 1 AND 3, PARCEL MAP 4347, FILED NOVEMBER 16,
1984, BOOK 149 OF PARCEL MAPS, PAGES 21 AND 22, ALAMEDA COUNTY RECORDS, AS
DEFINED AND GRANTED IN THE RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT
EXECUTED BY AND BETWEEN WESTLAND INVESTMENTS, A CALIFORNIA LIMITED PARTNERSHIP,
AND BAYSIDE PARK INVESTORS, A CALIFORNIA LIMITED PARTNERSHIP, RECORDED JANUARY
2, 1987, SERIES NO. 87-000118, ALAMEDA COUNTY RECORDS.
Property No. 9
PARCEL A:
PARCEL 2, PARCEL MAP 5736, FILED JULY 29, 1991, BOOK 198 OF PARCEL MAPS, PAGES
27 AND 28, ALAMEDA COUNTY RECORDS.
PARCEL B:
NON-EXCLUSIVE EASEMENTS FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS ON, OVER
AND ACROSS PORTIONS OF PARCELS 1 AND 3, PARCEL MAP 4347, FILED NOVEMBER 16,
1984, BOOK 149 OF PARCEL MAPS, PAGES 21 AND 22, ALAMEDA COUNTY RECORDS, AS
DEFINED AND GRANTED IN THE RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT
EXECUTED BY AND BETWEEN WESTLAND INVESTMENTS, A CALIFORNIA LIMITED PARTNERSHIP,
AND BAYSIDE PARK INVESTORS, A CALIFORNIA LIMITED PARTNERSHIP, RECORDED JANUARY
2, 1987, SERIES NO. 87-000118, ALAMEDA COUNTY RECORDS.
A-5