and the balance of this Lease, the balance of this Lease shall control.
ARTICLE IIDEFINITIONS
All defined terms for the Operative Documents are contained in Appendix A.
ARTICLE IIIDEMISE
3.1 Parcels. Subject to the terms, covenants and conditions contained herein
and in each Lease Supplement, Landlord shall, upon delivery of a Lease Supplement executed by Tenant, agree to lease to Tenant the Parcel covered by such Lease Supplement and Tenant agrees to lease
from Landlord the Parcel covered by such Lease Supplement, together with all rights, privileges, easements and appurtenances relating to the Parcels. Tenant agrees that it shall use the Parcels in
accordance with all of the terms and conditions of the Ground Lease, if applicable, and shall comply with all terms and conditions of the Ground Lease.
ARTICLE IVTERM
4.1 Term. The Term of this Lease is specified in
Article 1.
4.2 Holding Over. If Tenant remains in possession of a Parcel after the
expiration of the Term without executing a new lease, such holding over shall be construed as a tenancy from month-to-month, subject to all terms, covenants and conditions herein contained and in the
applicable Lease Supplement. The Base Rent shall be calculated based upon the Default Rate and shall be required to be paid by Tenant during such holding over in the same manner as during the Term.
4.3 Extension of Term. Provided that (i) no Event of Default exists
hereunder or would exist except for the passage of time or giving of notice, and (ii) Landlord, in its sole and absolute discretion, consents, Tenant may request, upon not less than twelve (12)
months prior written notice to Landlord and Administrative Agent, the extension of the Term of this Lease for an additional period under terms which must be mutually agreeable to Landlord and Tenant.
Landlord's consent to the terms of such extension shall be conditioned upon the approval of Administrative Agent and each Rent Purchaser, which may be granted or withheld by such entity in its sole
discretion.
ARTICLE VIMPROVEMENTS
5.1 Improvements. All Improvements existing on Land covered by Lease Supplement
No. 1 and Lease Supplement No. 2 executed as of the Date of Lease were constructed under the Original Construction Management Agreements. Tenant represents and warrants that all such Improvements were
constructed in accordance with the Original Lease and the Original Construction Management Agreements.
5.2 Title to and Nature of Improvements. Subject to the provisions of this
Lease, including, without limitation, Section 21.2, Tenant agrees that any and all Improvements of whatever nature at any time constructed,
placed or maintained on the Land shall be and remain the property of Landlord, subject to Tenant's rights under this Lease and the rights of Administrative Agent and Rent Purchasers under the
Operative Documents.
ARTICLE VIFUNDING
6.1 Funding. On the Funding Date, the entire Commitment Amount shall have been
funded. Landlord, Administrative Agent and all Rent Purchasers shall have no obligation to fund any further Advances to Tenant after the Date of Lease.
ARTICLE VIIRENT
7.1 Base Rent.
(a) The Base Rent to be paid by Tenant under each Lease Supplement shall begin to accrue on the Rent Commencement Date as specified in such Lease Supplement. Tenant
shall pay Base Rent by wire transfer in accordance with the terms of the Participation Agreement. Tenant shall be supplied with such bank account information as Tenant shall require to enable payment
by wire transfer of Federal funds. Tenant shall wire transfer to such account in accordance with the terms of the Participation Agreement until notified of any account change. Base Rent payments shall
be payable monthly in arrears on the fifteenth (15th) day of each successive month, except that the last installment of Base Rent shall be payable on the last day of the Term (each such date shall be
a "Rent Payment Date") and Base Rent payments shall be made to Landlord and Administrative Agent in accordance with the terms of the Participation Agreement. No sooner than thirty (30) days or
later than ten (10) days prior to the due date for any installment of Base Rent hereunder, Landlord and Administrative Agent each shall deliver to Tenant Notices indicating the exact dollar
amount of the Base Rent that is due on such due date to Landlord or Administrative Agent, as applicable (an "Invoice"). If either Landlord or Administrative Agent fails to send an Invoice, Tenant
shall pay the amount shown on the previous month's Invoice from such Entity in accordance with the terms of the Participation Agreement. If Tenant's payment of the amount shown on the previous month's
Invoice is less than the Base Rent due such Entity for such month, Tenant shall pay the difference within ten (10) days after receipt of notice from such Entity of such shortfall. If Tenant's
payment of the amount shown on the previous month's Invoice exceeds the Base Rent due such Entity for such month, then (provided that no Event of Default has occurred which is continuing), such excess
amount shall be credited to the next installment of Base Rent due to such Entity.
(b) Tenant may select the number and amounts of the Portions into which the Lease Investment Balance is to be divided and the Rental Period for each such Portion by
delivering to Administrative Agent and, to the extent Rental Periods may be selected for the Landlord Contribution, Landlord, not less than three (3) Business Days prior to the Date of Lease
and thereafter the last day of each Rental Period for a Portion and in accordance with Section 21.3, an irrevocable written notice in the form of
Exhibit I, appropriately completed (a "Notice of Rental Period Selection"), subject to the following:
(i) Prior to August 15, 2003, the Landlord Contribution shall constitute one Portion and no Rental Periods shall be selected for such Portion, and thereafter no
Portion shall combine the Landlord Contribution with any part of the Rent Purchasers Contribution.
(ii) Each Portion shall be in a minimum amount of $2,500,000 or an integral multiple of $500,000 in excess thereof (except as otherwise provided below);
provided, however, that the total number of Portions outstanding at any time shall not exceed five (5) with respect to the Rent Purchasers
Contribution
(and one such Portion may be in the amount of the remaining balance of the Rent Purchasers Contribution if such balance is less than $2,500,000 or is not an integral multiple of $500,000) or one
(1) in the amount of the Landlord Contribution.
(iii) The initial and each subsequent Rental Period selected by Tenant for each Portion shall be one (1), two (2), three (3), six (6), nine (9) or twelve (12)
months; provided, however, that (A) each Rental Period shall begin and end on the fifteenth (15th) day of the month; (B) no Rental Period
shall
end after the Expiration Date; (C) no Rental Period shall be longer than one (1) month if a Default has occurred and is continuing at the time the Notice of Rental Period Selection is required
to be delivered in accordance with this Section 7.1(b); and (D) each Rental Period for which Tenant fails to make a selection by
delivering a Notice of Rental Period Selection in accordance with this Section 7.1(b) shall be one (1) month.
7.2 Proration. If the Term for any Lease Supplement or this Lease expires or is
otherwise terminated on other than the fifteenth (15th) day of a calendar month, then Base Rent shall be prorated for the period from the immediately preceding Rent Payment Date until the end of the
Term on an Actual/360 Basis.
7.3 No Abatement of Rent. Except as a consequence of a reduction in the Lease
Investment Balance, Tenant shall not be entitled to any abatement, diminution, reduction, setoff or postponement of Base Rent as a consequence of any inconvenience to, interruption of, cessation of or
loss of Tenant's use or enjoyment of the Parcels or as a result of any reason whatsoever, including without limitation, the breach by Landlord of this Lease or the breach by Landlord or any other
Entity of any Operative Document.
7.4 Delinquent Rent. Any Base Rent not paid on the due date shall accrue
interest at the Default Rate from the date such Base Rent was originally due until the date such Base Rent is paid. All interest accrued on past due Base Rent shall be due and payable by Tenant at the
time the Base Rent is paid, or upon demand by Landlord or Administrative Agent, if earlier.
7.5 Additional Rent.
(a) Break Funding Costs. In the event that Landlord, Administrative Agent or
any Rent Purchasers incur Break Funding Costs, Tenant agrees to pay to Landlord, Administrative Agent or any Rent Purchaser any Break Funding Costs claimed by such Entity. The Entity claiming such
Break Funding Costs shall deliver to Tenant a statement setting forth in reasonable detail the calculation used to determine the Break Funding Costs claimed by such Entity. The agreements in this
Section 7.5(a) shall survive the termination of this Lease with respect to any Break Funding Costs on payments that become due during the Term.
(b) Other Additional Rent. Tenant agrees to pay all other Additional Rent when
it becomes due and payable under this Lease, any Lease Supplement or any other Operative Document.
7.6 Rent Upon Default. Tenant agrees to pay, and Landlord agrees to accept, the
entire Lease Investment Balance as Additional Rent upon an Event of Default pursuant to Section 19.1 below. If Tenant pays the entire Lease
Investment Balance, and any other sums owing Landlord, Administrative Agent and each Rent Purchaser, pursuant to Sections 7.6 and 19.1 below,
Landlord shall reconvey the applicable Security Instruments to Tenant and Landlord shall deliver to Tenant a duly executed and acknowledged grant deed conveying title to each of the Parcels to Tenant
or Tenant's designee.
7.7 Security Deposit; Pledge Securities; Reconveyance and Termination. The
Original Security Deposit held by Landlord pursuant to the Original Leases shall be returned to Tenant on the Date of Lease. The pledged securities and collateral held by Landlord and/or any custodian
under the Original Pledge Agreement and the Original Custodial Agreement shall be returned to Tenant on the Date of Lease in accordance with the provisions of the Original Pledge Agreement and the
Original Custodial Agreement governing the return of such pledged securities and collateral upon the expiration or termination of the Original Pledge Agreement. On the Date of Lease, the Original
Adobe Deeds of Trust shall be amended and the Original Pledge Agreement and Original Custodial Agreement shall be terminated.
ARTICLE VIIITAXES; ADDITIONAL CHARGES; GROSS UP
8.1 Real Estate Taxes.
(a) From and after the date of each Lease Supplement, Tenant shall pay during the Term directly to the appropriate taxing authority all Real Estate Taxes (as defined
below) and provide Landlord and Administrative Agent a certified copy of an original official receipt received by Tenant showing payment thereof. If the date of each Lease Supplement occurs on, or the
Lease Supplement Term expires or otherwise terminates on, any date other than the beginning or end of a taxable year, Tenant's obligation to pay Real Estate Taxes shall be prorated on the basis of a
365-day year, so as to include only that portion of the taxable year which is a part of the Lease Supplement Term. Unless a termination of the Lease results from the purchase of the Parcels pursuant
to Article 20 below, any Real Estate Taxes levied against the Parcels which accrue during the Term of this Lease but which would not be due and
payable to the appropriate taxing authority until after the expiration of the Term of this Lease (as the same may be extended) shall be paid by Tenant to Landlord upon such termination. Landlord shall
pay such amounts to the appropriate taxing authority on a timely basis.
(b) Except to the extent that Real Estate Tax bills and statements are sent directly to Tenant by the taxing authority, upon receipt by Landlord of the tax bills or
statements, Landlord will use reasonable efforts to promptly advise Tenant in writing of all Real Estate Taxes and shall deliver copies of all applicable tax bills or statements to Tenant. Tenant
shall pay directly to the taxing authority all Real Estate Taxes prior to the later of (i) thirty (30) days after receipt by Tenant from Landlord of a copy of such bills and statements referred
to above, or (ii) five (5) Business Days prior to delinquency. As used herein, the term "Real Estate Taxes" shall mean any and all taxes, governmental fees and similar charges or
assessments levied or assessed against the Improvements and/or the Land including, without limitation, ad valorem taxes and special assessments applicable to real property specifically set forth in a
Ground Lease; provided, however, that Real Estate Taxes shall not include any Landlord Taxes (as defined below). Real Estate Taxes shall also include any and all documentary, transfer, sales,
mortgage, recording or similar taxes imposed on Landlord or Tenant in connection with any sale of the Parcels to a third party in accordance with this Lease following an Event of Default by Tenant or
in a transaction to which Tenant is a party. As used herein, the term "Landlord Taxes" shall mean any and all franchise, gains, gift, succession, excess profits, gross receipts, revenue, estate,
rental, income or similar taxes or taxes in lieu thereof imposed upon Landlord or any party other than Tenant (or an affiliate thereof) and any withholding tax imposed as a collection device for, in
lieu of, or otherwise related to any of the foregoing without regard to whether such tax is required to be collected by Tenant and without regard to whether Tenant would be liable for such withholding
tax in the event it failed to so withhold. For purposes of the foregoing, an income tax shall include, without limitation, any tax imposed under the United States Internal Revenue Code, as well as any
tax which could qualify as an "income tax" under United States Treasury Regulation Section 1.901-2 (except to the extent any such statute or regulation is subsequently modified to
include a tax or other governmental charge of a materially different type and nature from the taxes currently described therein) and any income tax which may be payable under the laws of any
jurisdiction either now or in the future. Real Estate Taxes for any given tax year shall exclude assessment installments that are not due and payable during such tax year.
8.2 Personal Property Taxes. Tenant shall pay directly to the appropriate
taxing authorities prior to delinquency any and all taxes and assessments levied or assessed during the Term upon or against Tenant's furniture, equipment, trade fixtures and any other personal
property in the Parcels.
8.3 Right to Contest. Tenant shall not be required to pay any Real Estate Taxes
or any other taxes for which Tenant is liable hereunder (including, without limitation, any taxes for which Tenant is required to indemnify Landlord under
Section 22.1) (including penalties and interest), so long as (i) Tenant shall contest the same or the validity thereof by appropriate
legal proceedings in such a manner to prevent the
sale of any portion of the Parcels and (ii) the position to be taken by Tenant pursuant to such contest would have a realistic possibility of success if litigated. For purposes of this Lease,
Tenant may conclusively establish that a position to be taken in a contest would have a realistic possibility of success if litigated by providing to Landlord a letter from counsel stating an opinion
to such effect. In the event of any such contest, Tenant shall, within thirty (30) days after the final determination thereof, pay and discharge the amounts determined to be due in accordance
therewith and with the provisions of this Lease, together with any penalties, fines, interest, costs and expenses that may have accrued thereon or that may have resulted from Tenant's contest. Tenant
also shall have a right to contest any taxes for which it is liable hereunder, but with regard to which the position to be taken pursuant to such contest would not have a realistic possibility of
success if litigated, provided that Tenant pays such taxes on or prior to the date upon which such taxes are asserted to be due by the relevant governmental authority. Notwithstanding the foregoing
provisions of this Section 8.3, Tenant shall have an unconditional right to contest (without prior payment) any taxes imposed by law upon Tenant
rather than upon Landlord. Tenant's decision to pay any taxes prior to contesting its or another party's underlying liability therefor shall not be deemed to imply or suggest that the position to be
taken in such contest would not have a realistic possibility of success if litigated. Landlord shall cooperate fully with Tenant in connection with the exercise of Tenant's right of contest contained
herein, and in the event that applicable law shall require that Landlord, rather than Tenant, pursue legal proceedings for such contest, Landlord will initiate and pursue such contest upon Tenant's
request and in accordance with Tenant's instructions (including, without limitation, Tenant's instructions as to the selection of legal counsel and matters of strategy or settlement); provided,
however, that Landlord shall not be subject to any liability for the payment of any costs or expenses in connection with any such contest or proceedings, and Tenant will indemnify and save harmless
Landlord from any such costs and expenses (including, without limitation, reasonable attorneys' fees, costs of court and appraisal costs), reimbursing Landlord therefor upon demand (or paying such
costs and expenses directly when due, all as directed by Landlord). Tenant shall be entitled to any refund of any taxes and penalties or interest from any governmental authority to the extent the
refund represents moneys paid to the governmental authority by Tenant or paid by Landlord and reimbursed by Tenant.
8.4 Additional Charges. All payments made by Tenant under this Lease and each
other Operative Document shall be made free and clear of, and without reduction or withholding for or on account of, any present or future taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed pursuant to any Legal Requirement, excluding, however, any Landlord Taxes (all such nonexcluded taxes, levies, imposts,
deductions, charges or withholdings being hereinafter called "Additional Charges"). Tenant shall be responsible for the payment of any such Additional Charges; and if any such Additional Charges are
required to be withheld from any amounts payable to Landlord, Administrative Agent or any Rent Purchaser hereunder or under any other Operative Document, then the amounts so payable to Landlord,
Administrative Agent or such Rent Purchaser shall be increased by an amount ("Additional Amount") necessary to yield to Landlord, Administrative Agent or such Rent Purchaser (after payment of all
Additional Charges) the Base Rent, Additional Rent and other amounts payable hereunder or under any other Operative Document at the rates or in the amounts specified in this Lease or such other
Operative Document. Whenever any Additional Charges are required to be withheld by Tenant, such Additional Charges shall be deducted or withheld by Tenant, and shall be paid by Tenant to the
appropriate governmental authority in accordance with applicable Legal Requirements. As promptly as possible thereafter, Tenant shall send
to Landlord and Administrative Agent for their own accounts a copy of an original official receipt (or other evidence of payment) received by Tenant showing payment thereof. If Tenant is required to
pay Landlord, Administrative Agent or any Rent Purchaser any Additional Amount, Landlord shall, and shall request that Administrative Agent and the applicable Rent Purchaser, use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to change its jurisdiction if the making of such a change would avoid the need for, or reduce to the greatest extent
possible the amount of, any such Additional Amount which may thereafter accrue and would not, in the reasonable judgment of Landlord, Administrative Agent or such Rent
Purchaser, be otherwise disadvantageous to it. The agreements in this Section 8.4 shall survive the termination of this Lease with respect to any
Additional Charges or payments that become due during the Term.
ARTICLE IXINSURANCE
9.1 Liability Insurance. At all times during the Term, Tenant shall obtain at
Tenant's sole cost and expense a policy or policies of commercial general liability insurance on an "occurrence" basis against claims for "personal injury" liability, including bodily injury, death or
property damage liability. The liability insurance policy shall contain coverage limits no less than the following: (1) Three Million Dollars ($3,000,000) per person; (2) Five Million
Dollars ($5,000,000) per incident; and (3) One Million Dollars ($1,000,000) for property damage.
9.2 Builders' Risk Insurance. With respect to any Improvements which may be
under construction and not yet covered by insurance under the terms of Section 9.3, Tenant shall maintain or cause to be maintained at Tenant's
sole cost and expense a policy or policies of builders' risk insurance in an amount equal to the value upon completion of the work (exclusive of land, foundation, excavation, grading, landscaping,
architectural and development fees and other items customarily excluded from such coverage), insuring against the risks customarily insured against under such insurance, including fire, vandalism,
malicious mischief, sprinkler leakage, lightning, and windstorm.
9.3 All-Risk Insurance. With respect to any Improvements now or hereafter
situated on the Land, at all times, Tenant shall, at Tenant's sole cost and expense, obtain and maintain, or cause to be obtained and maintained, (a) a policy or policies of all-risk insurance
covering the Improvements, providing coverage against loss or damage by fire, vandalism, malicious mischief, sprinkler leakage, lightning, windstorm, and other insurable perils, as, under good
insurance practice, from time to time are insured against under all-risk coverage for properties of similar character, age and location in an amount or amounts not less than one hundred percent (100%)
of the then actual replacement cost (exclusive of land, foundation, excavations, grading, landscaping, architectural and development fees and other items customarily excluded from such coverage and
without any deduction for depreciation); (b) on and after September 15, 1999, earthquake coverage for the Improvements (excluding any Tenant's Property) in the amount of not less than
$10,000,000.00, with a deductible of not more than $1,000,000.00; and (c) standard flood coverage.
9.4 General Requirements. The insurance required under this
Article IX may be furnished under a "primary" policy and an "umbrella" policy or policies. Landlord, Administrative Agent and each Rent Purchaser
shall be named as an additional insured under Tenant's policy of insurance required under Section 9.1; and such policies shall contain an
endorsement for cross-liability coverage. Landlord shall be named as sole loss payee with respect to all insurance required under Sections 9.2 and
9.3. Tenant shall furnish Landlord and Administrative Agent with certificates from Tenant's insurers with respect to the
insurance required to be carried hereunder on or before the date such insurance is required to be carried. The certificates shall state that such insurance is in full force and effect and that
coverage will not be reduced below the amounts required under this Article IX or otherwise limited or canceled without thirty (30) days' prior
written notice to Landlord and Administrative Agent. Renewal certificates shall be furnished to Landlord and Administrative Agent not less than thirty (30) days prior to the expiration of each such
policy. Any blanket insurance policy or policies that insure Tenant against the risks and for the amounts herein specified shall be deemed to satisfy the obligation of Tenant hereunder, provided that
Landlord, Administrative Agent and each Rent Purchaser shall be named as additional insured parties thereunder as their interest may appear and that the coverage afforded Landlord, Administrative
Agent and each Rent Purchaser will not be reduced or diminished by reason of the use of such blanket policy of insurance, and provided further that the requirements set forth herein are otherwise
satisfied, and provided that any such policy of blanket insurance shall specify the amount of the total insurance allocated to the risks required to be insured hereunder and such allocated amount
meets the requirements of this
Article IX. All insurance required by this Article IX shall be with an insurance company licensed to do business
in the state in which the Parcel is located with a general policyholder's rating, as rated by the most current available "Best" Insurance Reports, of no less than A-VII.
9.5 Waiver of Subrogation. Notwithstanding anything to the contrary contained
herein, to the extent permitted by law and so long as any insurance coverage maintained by Tenant is not diminished by reason thereof, Tenant hereby (a) releases and waives any rights it may
have against Landlord, Administrative Agent, any Rent Purchaser and their respective officers, agents and employees on account of any loss or damages occasioned to Tenant, its property or the Parcels,
and arising from any risk covered by any fire and extended coverage insurance maintained by Tenant, whether or not due to the negligence of Landlord, Administrative Agent, any Rent Purchaser, or their
respective agents, employees, contractors, licensees, invitees or other persons, and (b) waives on behalf of any insurer providing such insurance to Tenant any right of subrogation that any
such insurer may have or acquire against Landlord, Administrative Agent, any Rent Purchaser or such persons by virtue of payment of any loss under such insurance. Tenant shall cause its insurance
policies to contain a waiver of subrogation clauses in accordance with the foregoing.
9.6 Indemnity. Tenant shall protect, defend, indemnify, hold and save Landlord,
Administrative Agent and each Rent Purchaser harmless from and against any and all losses, costs, liabilities or damages (including reasonable attorneys' fees and disbursements and court costs)
arising by reason of: (i) any failure of Tenant to maintain insurance for the benefit of Landlord, Administrative Agent and each Rent Purchaser as required pursuant to this
Article IX; (ii) the failure to obtain the waiver of subrogation clause required by
Section 9.5 hereof; or (iii) the invalidation of such insurance policy required to be obtained by Tenant hereunder by
Tenant's insurer. Tenant's duty to indemnify Landlord, Administrative Agent and each Rent Purchaser under this Section 9.6 shall survive the
expiration or earlier termination of this Lease with respect to events occurring during the Term.
ARTICLE XUSE
10.1 Use.
(a) Permitted. Tenant may use the Parcels for any lawful purpose which shall at
all times be subject to the Ground Lease.
(b) Environmental Compliance.
(i) Defined Terms. The term "Applicable Environmental Laws" shall mean any applicable laws, regulations
or ordinances pertaining to health or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986 or otherwise (as amended, hereinafter called "CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980,
the Solid Waste Disposal Act Amendments of 1980, the Hazardous and Solid Waste Amendments of 1984 or otherwise (as amended, hereinafter called "RCRA"), and the California Health & Safety Code
Section 25501(j). The terms "hazardous substance" and "release" as used in this Lease shall have the meanings specified in CERCLA, and the terms "solid waste" and "disposal" (or "disposed")
shall have the meanings specified in RCRA; provided, in the event either CERCLA or RCRA is amended or superseded by other laws so as to broaden the meaning of any term defined thereby, such broader
meaning shall apply subsequent to the effective date of such amendment or other laws: and, provided further, to the extent that the laws of any state in which a Parcel is located establish a meaning
for "hazardous substance," "release," "solid waste," or "disposal" which is broader than that specified in either CERCLA or RCRA, such broader meaning shall apply.
(ii) Tenant's Covenants. Tenant will not cause or permit the Parcels to be in violation of, or do
anything or permit anything to be done which subjects Landlord, Administrative Agent, any Rent Purchaser, Tenant or the Parcels to any remedial obligations under or which creates a claim or cause of
action against Landlord, Administrative Agent, any Rent Purchaser, Tenant (which relates to the Parcels) or the Parcels under, any Applicable Environmental Laws, including, without limitation, CERCLA,
RCRA, and the environmental laws of the state in which the Parcel is located assuming disclosure to the applicable governmental authorities of all relevant facts, conditions and circumstances, if any,
pertaining to the Parcels and Tenant will promptly notify Landlord and Administrative Agent in writing of any existing, pending or threatened investigation, claim or inquiry of which Tenant has
knowledge by any governmental authority in connection with any Applicable Environmental Laws. Tenant shall obtain any permits, licenses or similar authorizations to construct, occupy, operate or use
any improvements, fixtures and equipment at any time located on the Parcels by reason of any Applicable Environmental Laws. Tenant will not use the Parcels in a manner which will result in the
unlawful disposal or other unlawful release of any hazardous substance or solid waste on or to the Parcels and covenants and agrees to keep or cause the Parcels to be free of any unlawful hazardous
substance, solid waste or environmental contaminants (including, without limitation, arsenic in soil and friable asbestos and any substance containing asbestos deemed hazardous and unlawful by any
Applicable Environmental Law), and to remove the amounts of the same (or if removal is prohibited by law, to take whatever action is required by law) promptly upon discovery at Tenant's sole expense
to the extent required by Applicable Environmental Law. Tenant shall promptly notify Landlord and Administrative Agent in writing of any unlawful disposal or other unlawful release of any hazardous
substance, environmental contaminants or solid wastes on or to the Parcels in violation of Applicable Environmental Law. In the event Tenant fails to comply with or perform any of the foregoing
covenants and obligations, after thirty (30) days' prior written Notice to Tenant, Landlord or Administrative Agent may, but shall be under no obligation to, cause the Parcels to be freed from such
unlawful hazardous substance, unlawful solid waste or unlawful environmental contaminants (or if removal is prohibited by law, to take whatever action is required by law) and the reasonable cost of
the removal or such other action shall be a demand obligation owing by Tenant to the remediating party pursuant to this Lease. Notwithstanding the foregoing, Landlord and Administrative Agent shall
have no right to cause the removal of such materials so long as Tenant both: (1) is diligently and in good faith proceeding to comply with Tenant's obligation to remove such unlawful amounts of
such materials; and (2) has the financial ability to so comply. Subject to the foregoing, Tenant grants to Landlord, and to the extent permitted by the Operative Documents,
Administrative Agent and their respective agents and employees access to the Parcels, and the license to remove the unlawful hazardous substance, unlawful solid waste or environmental contaminants (or
if removal is prohibited by law, to take whatever action is required by law); and agrees to indemnify and save Landlord, Administrative Agent and all Rent Purchasers harmless from all reasonable costs
and expenses involved and from all claims (including consequential damages) asserted or proven against Landlord, Administrative Agent or any Rent Purchaser by any party in connection therewith. Upon
reasonable request by Landlord or, to the extent permitted by the Operative Documents, Administrative Agent for "good cause" (defined below), at any time and from time to time during the Term, Tenant
will provide at Tenant's sole expense an inspection or audit of the Parcels from an engineering or consulting firm approved by the Entity making such request, indicating the presence or absence of any
hazardous substance, solid waste or environmental contaminants located on the Parcels. If Tenant fails to provide same after sixty (60) days' notice, the Entity making such request may order same, and
Tenant grants to such Entity and its respective employees and agents access to the Parcels and a license to undertake any testing reasonably required to obtain such inspection or audit. The reasonable
cost of obtaining such inspection or audit and any expenses incurred by such Entity in connection therewith, shall be a demand obligation owing by Tenant to such Entity pursuant to this Lease.
For purposes of this Section 10.1(b)(2), "good cause" shall mean that the Entity requesting such inspection or audit shall have reasonable
grounds to believe that an unlawful release or an unlawful disposal of hazardous substances or solid wastes has occurred on the Parcels.
(c) Compliance With Legal Requirements. Tenant shall at all-times comply with
all material Legal Requirements applicable to the Land or any improvements now or hereafter situated on the Land and/or the use thereof.
10.2 Contest of Legal Requirements. Tenant shall have the right at its sole
cost and expense to contest the validity of any Legal Requirements applicable to the Parcels by appropriate proceedings diligently conducted in good faith; and upon the request of Tenant and at
Tenant's sole cost and expense, Landlord will join and cooperate with Tenant in such proceedings. Subject to Section 8.3, and any other provision
of this Lease to the contrary notwithstanding, Tenant's right to contest Legal Requirements must be exercised in such a manner as to avoid any exposure of the Parcels or any part thereof to
foreclosure or execution sale or exposure of Landlord, Administrative Agent or any Rent Purchaser to civil or criminal penalties arising from Tenant's non-compliance with such Legal Requirements.
Tenant shall defend and indemnify Landlord, Administrative Agent and each Rent Purchaser against, and hold Landlord, Administrative Agent and each Rent Purchaser harmless from, any and all liability,
loss, cost, damage, injury or expense (including, without limitation, attorneys' fees and costs) which Landlord, Administrative Agent or any Rent Purchaser may sustain or suffer by reason of Tenant's
failure or delay in complying with, or Tenant's contest of, any such Legal Requirements (or Landlord's contest, if requested in writing by Tenant), and Tenant's duty to indemnify Landlord,
Administrative Agent and each Rent Purchaser under this Section 10.2 shall survive the expiration or earlier termination of this Lease.
ARTICLE XIUTILITIES AND SERVICES
11.1 Services to the Parcels. At Tenant's sole cost and expense, Tenant shall
make its own arrangements for the provision of all utilities and services to be provided to or consumed on the Parcels, including, without limitation, air conditioning and ventilation, service
contracts, heating, electric power, telephone,
water (both domestic and fire protection), sanitary sewer, storm drain, natural gas and janitorial services, including for the installation, maintenance and repair of service lines and meters to
measure Tenant's consumption of such utilities.
ARTICLE XIIMAINTENANCE AND REPAIRS; SURRENDER OF THE PARCELS
12.1 Tenant Obligations. Landlord shall have no obligation to maintain the
Parcels. Tenant shall at all times and at Tenants' sole cost and expense maintain the Parcels in good repair, normal wear and tear excepted.
12.2 Surrender of the Parcels. Except as provided in
Section 20.1 below, upon the expiration or earlier termination of the Term, Tenant shall surrender each Parcel to Landlord in its then condition,
subject to compliance by Tenant on or prior to such date with its obligations under this Lease and the other Operative Documents, but including, any condition resulting from: (i) wear and tear;
(ii) obsolescence; (iii) damage that is caused by Landlord or its agents, employees or contractors; and (iv) any improvements, alterations, additions, repairs, replacements or
decorations, in, to or of the Parcels or on the Land which are not Tenant's Property which Tenant may elect to remain on the Land or the Parcels. Title to all Tenant's Property shall be and remain in
Tenant throughout the Term, and at any time during the Term of this Lease, the same may be removed by Tenant, or, at Tenant's abandonment or written election, surrendered with the Parcels, in which
event title to such surrendered property shall, if Landlord so elects in Landlord's sole discretion, be deemed transferred to Landlord. Any of such property that is not
removed from the Parcels on or prior to the expiration or early termination of this Lease or any Lease Supplement shall be considered abandoned and Landlord may deal with it as Landlord elects.
ARTICLE XIIILIENS
13.1 Pay and Discharge Liens. Except for claims that Tenant is contesting in
good faith in such manner as to avoid any exposure of the Parcels or any part thereof to foreclosure or execution sale, Tenant shall promptly pay and discharge all claims for work or labor done,
supplies furnished or services rendered to the Parcels, and shall keep the Parcels free and clear of all mechanics' and materialmen's liens in connection therewith.
ARTICLE XIVASSIGNMENT BY LANDLORD
14.1 Further Mortgages or Encumbrances by Landlord. Except for the Security
Instruments and the Rent Purchasers' Deed of Trust, and any amendments thereto, Landlord shall not cause or create any mortgages, deeds of trust, encumbrances or exception to exist with respect to the
Parcels at any time. Landlord agrees that it will not materially modify any Security Instrument nor will it cause any new bonds or assessments to encumber the Parcels without Tenant approval.
14.2 Landlord's Right to Sell. Subject to Tenant's Purchase Option set forth in
Article 20 hereof, Landlord may not transfer all or any portion of its right, title and interest in any Parcel; provided, however that nothing
contained in this Lease shall be deemed in any way to limit, restrict or otherwise affect the
right of Landlord at any time and from time to time to sell or transfer all or any portion of its right, title and estate in any Parcel, with Tenant's consent, which shall not be unreasonably
withheld, (provided, however, that Landlord acknowledges and agrees that it shall be reasonable for Tenant to withhold its consent if any such sale or transfer proposed by Landlord would result in an
increase in the amount of Real Estate Taxes payable with respect to such Parcel as a consequence of a reassessment thereof) to: (i) a Landlord Affiliate (excluding, however, a non-substantive
entity that is formed specifically for the purposes of owning the Parcels subject to this Lease and has no other substantive operations or which is a special purpose entity under the provisions of
EITF 90-15); (ii) Administrative Agent, any Rent Purchaser, or another financial institution or trust established by such an institution (excluding, however, a non-substantive entity that is
formed specifically for the purposes of owning the Parcels subject to this Lease and has no other substantive operations or which is a special purpose entity under the provisions of EITF 90-15); or
(iii) if an Event of Default has occurred and is continuing at the time of such sale or transfer, to any Entity. Notwithstanding the foregoing, if Tenant consents to the transfer proposed by
Landlord, Landlord shall provide Administrative Agent (or any Affiliate thereof or, with Tenant's consent, any Rent Purchaser to which Administrative Agent may transfer such right) a right of first
refusal with regard to such transfer by giving notice to Administrative Agent that it wishes to undertake such transfer and the terms of such proposed transfer. The Administrative Agent shall notify
Landlord of any decision to exercise such right within thirty (30) days of receipt of such notice from Landlord and, if any such right is not exercised within such time period, Landlord may consummate
such transfer with a third party on the terms offered to Administrative Agent. Any sale or transfer by Landlord whatsoever shall by its express terms recognize and confirm the right of possession of
Tenant to the Parcels and Tenant's other rights arising out of this Lease shall not be affected or disturbed in any way by any such sale, transfer, assignment or conveyance (except for any disturbance
resulting from a foreclosure sale conducted pursuant to the laws of the state where each Parcel is located at which independent third party bids were permitted pursuant to the applicable Security
Instruments all subject to the terms of Section 19.3), and any transferee shall expressly assume in writing all obligations of Landlord to be
performed following the date of transfer. Nothing in this Section 14.2 shall prohibit Landlord from selling rents to any financial institution
pursuant
to the Participation Agreement and/or the Rent Purchase Agreement executed by and between Landlord, Administrative Agent and the Rent Purchasers (without transferring Landlord's interest in the
Parcels) or from granting a security interest to the Rent Purchasers as additional inducement to participate in this transaction.
14.3 Transfer of Funds and Property. At each time Landlord sells, assigns,
transfers or conveys the entire right, title and estate of Landlord in any Parcel and in this Lease, Landlord shall turn over to the transferee any funds or other property then held by Landlord under
this Lease and thereupon all the liabilities and obligations on the part of the Landlord under this Lease arising after the effective date of such sale, assignment, transfer or conveyance shall
terminate as to the transferor and be binding upon the transferee.
ARTICLE XVASSIGNMENT AND SUBLEASING
15.1 Right to Assign.
(a) Tenant's Right. Provided that there is not an Event of Default under this
Lease which is continuing and uncured or if there is such an Event of Default, provided that Tenant cures the Event of Default in connection with the assignment, Tenant shall have the right, at any
time and from time to time during the Term, to assign all of its right, title and estate in a Parcel and in this Lease with the prior written
approval of Landlord and Administrative Agent, which consent shall not be unreasonably withheld. Any such assignee, immediate or remote, shall have the same right of assignment. Any such assignment
shall be evidenced by a written instrument, properly executed and acknowledged by all parties thereto and, at Tenant's election, duly recorded in the Official Records, wherein and whereby the assignee
assumes all of the obligations of Tenant under this Lease. Notwithstanding any such assignment and assumption, Tenant shall remain primarily liable for all obligations and liabilities on the part of
Tenant theretofore or thereafter arising under this Lease and all Lease Supplements.
(b) Notice. Tenant shall, promptly after execution of each assignment, notify
Landlord and Administrative Agent of the name and mailing address of the assignee and shall, on demand, permit Landlord and Administrative Agent to examine and copy the assignment agreement.
15.2 Right to Sublet.
(a) Tenant's Right. Provided that there is not an Event of Default under this
Lease which is continuing and uncured or if there is such an Event of Default, provided that Tenant cures the Event of Default in connection with the sublease, Tenant shall have the right, at any time
and from time to time during the Term, to sublet all or any portion of the Parcels and to extend, modify or renew any sublease without the approval of Landlord. Notwithstanding any such sublease,
Tenant shall remain primarily liable for all obligations and liabilities on the part of Tenant theretofore or thereafter arising under this Lease and all Lease Supplements. It is expressly understood
that Tenant may lease certain ground floor space constructed for retail use and currently existing in the building to third parties without the consent of Landlord or Administrative Agent ("Retail
Leases"), and such Retail Leases may have a maturity date which extends beyond the Expiration Date.
(b) Notice. Tenant shall, promptly after execution of each sublease, notify
Landlord and Administrative Agent of the name and mailing address of the subtenant and shall, on demand, permit Landlord and Administrative Agent to examine and copy the sublease.
(c) Nondisturbance Agreement. Upon Tenant's request, Landlord shall enter into
a non-disturbance and attornment agreement with any subtenant of Tenant under any Retail Lease. Such agreement shall provide that Landlord shall recognize such Retail Lease and not disturb the
subtenant's possession thereunder so long as such subtenant shall not be in default under its Retail
Lease. Tenant shall immediately reimburse Landlord on demand for all reasonable out-of-pocket costs and expenses incurred by Landlord in complying with Landlord's obligations under this
Section 15.2.
15.3 Mortgage by Tenant. Tenant shall not have the right to mortgage, pledge or
otherwise encumber all or any portion of the right, title and estate of Tenant in any Parcel or in this Lease, without the prior written consent of Landlord and Administrative Agent.
ARTICLE XVIEMINENT DOMAIN
16.1 Total or Substantial Taking. If title or access is taken for any public or
quasi-public use, or under any statute or by right of condemnation or eminent domain, or by sale in lieu thereof (a "Taking") with respect to any or all of a Parcel, or if title to so much of the
Parcel or access thereto is Taken, or if the Parcel or access thereto is damaged, blocked or impaired by the Taking, so that, in Tenant's sole discretion, such Parcel or access thereto, even after a
reasonable amount of reconstruction thereof, will no longer be suitable for the conduct of Tenant's (and/or Tenant's subtenants') business, then in any
such event, the Lease Supplement relating to such Parcel shall terminate on the date of such Taking, and, to the extent the compensation for such Taking payable to Landlord pursuant to
Section 16.4 is less than the Purchase Price for such Parcel, Tenant shall pay the balance of the Purchase Price for such Parcel into escrow as
provided in the Participation Agreement for distribution as provided in the Rent Purchase Agreement. Landlord shall not exercise any right to terminate a Ground Lease without Tenant's prior approval,
in Tenant's sole discretion. Tenant shall restore the Parcels to the extent provided in a Ground Lease in the event the applicable Lease Supplement and Ground Lease are terminated. The provisions of
Section 16.4 shall be applicable only as to the compensation allocated to the ground lessee under a Ground Lease in the event of a Taking.
16.2 Partial Taking. If any part of a Parcel, or access thereto, shall be
subject to a Taking, and the Parcel or the remaining part thereof and access thereto will be, in Tenant's reasonable discretion, suitable for the conduct of Tenant's (and/or Tenant's subtenants')
business in a manner consistent with the conduct of such business prior to such Taking, all of the terms, covenants and conditions of this Lease and the Lease Supplement covering such Parcel shall
continue, except that Base Rent shall be adjusted to reflect the decreased Lease Investment Balance remaining after application thereto of the award made to Landlord for such Taking.
16.3 Temporary Taking. If the whole or any part of any Parcel is subject to a
Taking for temporary use or occupancy, this Lease shall not terminate by reason thereof and Tenant shall continue to pay, in the manner and at the times herein specified, the full amount of the Base
Rent payable by Tenant hereunder, and, except only to the extent that Tenant may be prevented from so doing by reason of such Taking, Tenant shall continue to perform and observe all of the other
terms, covenants and conditions hereof on the part of Tenant to be performed and observed, as though the Taking had not occurred. In the event of any such temporary Taking, Tenant shall be entitled to
receive the entire amount of the award made for the Taking, whether paid by way of damages, rent or otherwise. If the temporary Taking is for a term in excess of thirty (30) days, then the Taking
shall be treated as a permanent Taking and be governed by Section 16.1 or 16.2, as applicable.
16.4 Damages. The compensation attributable to the Parcels (in each case the
compensation or value shall be determined as of the date of the Taking) awarded or paid upon any Taking (other than a temporary Taking, which shall be governed by
Section 16.3), whether awarded to Landlord, Tenant, or any of them, shall be held by the Escrow Agent described in
Section 17.3(b), and distributed in the same manner as insurance proceeds pursuant to
Section 17.3. For purposes of this Section 16.4, references to the term "casualty" or
similar terms in Section 17.3 shall be deemed to refer to "Taking." Any portion of such compensation which Tenant does not want to use for any
construction, restoration or reconstruction shall be paid as follows (the order of payment as set forth below shall be the "Distribution Formula"): (i) to
Landlord (but only to the extent of the then-existing Lease Investment Balance and all accrued and unpaid Base Rent and Additional Rent); and (ii) with any remaining excess to be paid to
Tenant. Any compensation in excess of the Lease Investment Balance, plus all accrued and unpaid Base Rent and Additional Rent, shall be paid to Tenant. Any compensation payable to Landlord shall be
deposited in escrow as provided in the Participation Agreement and distributed as provided in the Rent Purchase Agreement.
16.5 Notice and Execution. Immediately upon service of process upon Landlord or
Tenant in connection with any Taking relating to any Parcel or any portion thereof or access thereto, each party shall give the other Notice thereof. Each party agrees to execute and deliver to the
other all instruments that may be required to effectuate the provisions of this Article XVI. Tenant reserves the right to appear in and to
contest any proceedings in connection with any such Taking. Tenant shall immediately reimburse Landlord on demand for all reasonable out-of-pocket costs and expenses incurred by Landlord in complying
with Landlord's obligations under this Section 16.5.
16.6 Terms of Ground Lease. Notwithstanding any of the foregoing provisions of
this Article XVI, Landlord and Tenant acknowledge that in the event of any inconsistency between the foregoing terms of this
Article XVI and Article XI of the Ground Lease, the terms of Article XI of the Ground Lease shall control; and Tenant shall have no
right to terminate this Lease as a consequence of a Taking unless Landlord shall also have the right to terminate the Ground Lease as a consequence thereof (provided that Tenant may exercise the
Purchase Option under Section 20.1 at any time); Landlord shall not exercise any right to terminate the Ground Lease without Tenant's prior
approval, in Tenant's sole discretion; Tenant shall restore the Parcels to the extent provided in the Ground Lease in the event this Lease and the Ground Lease are not terminated; and the provisions
of Section 16.4 above shall be applicable only to the compensation allocated to the ground lessee under the terms of the Ground Lease in the
event of a Taking.
ARTICLE XVIIDAMAGE OR DESTRUCTION
17.1 Casualty. If any of the improvements now or hereafter situated on a Parcel
(including the Improvements) are damaged or destroyed by fire or other casualty, except as provided to the contrary in Section 17.2, this Lease
and corresponding Lease Supplement shall continue in full force and effect without any abatement or reduction in Base Rent, and Tenant, at Tenant's election, shall either (a) restore such
improvements substantially to their condition prior to the damage or destruction, subject to Landlord's approval in accordance with the terms of an applicable construction management agreement, if
any, which shall not be unreasonably withheld, of the plans and general contractor's construction contract; or (b) not restore such improvements and terminate the Lease Supplement for such
Parcel as provided in Section 17.2. Notwithstanding the foregoing, Tenant shall be required to perform, or cause to be performed, at Tenant's
sole cost and expense, any work or service required by any Legal Requirement for the protection of persons or property from any risk, or for the abatement of any nuisance, created by or arising from
the casualty or the damage or destruction caused thereby.
17.2 Termination of Lease Supplement. In the case of: (a) any damage or
casualty of any Improvements located on a particular Parcel, which in the good faith judgment of Tenant's Board of Directors would render the Improvements either unsuitable or uneconomic for
restoration or continued use by Tenant; (b) the damage or destruction of all or substantially all (as determined in good faith by Tenant's Board of Directors) of the Improvements; or (c) the
damage or destruction of the Improvements where restoration cannot (as determined in good faith by Tenant's Board of Directors) reasonably be completed either within 365 days or prior to the
Expiration Date, then Tenant shall elect to terminate the Lease Supplement and exercise the Purchase Option for such Parcel. In the event Tenant terminates the Lease Supplement pursuant to the
preceding sentence, Tenant shall purchase Landlord's interest in such Parcel for a purchase price equal to the Purchase Price for the Parcel as such Purchase Price shall have the meaning set forth in
Section 20.1. The purchase of Landlord's interest in the Parcel shall be pursuant to the
terms of Section 20.1, as applicable to the Parcel. Upon the completion of such purchase, the Lease Supplement and all obligations with respect
to the purchased Parcel shall terminate.
17.3 Insurance Proceeds. In the event of any fire or other casualty, the
proceeds of any insurance policies maintained by Tenant pursuant to Section 9.2 or 9.3 shall be held, applied and dealt with as follows:
(a) If no Event of Default has occurred and is continuing, any proceeds (per occurrence) of such policies attributable to the Improvements below the amount of Two
Million Dollars ($2,000,000.00) or any proceeds directly attributable to improvements constructed on the Property by Tenant solely with its own funds shall be paid directly to Tenant and applied and
used as Tenant may direct in its sole discretion for any construction, restoration or reconstruction purposes in connection with any improvements located on the Land which were destroyed, damaged or
affected by such casualty; provided, however, that Tenant is not at such time in an Event of Default pursuant to this Lease. Any portion of such proceeds which Tenant does not want to use (subject to
the terms of Section 17.3(c)) for any construction, restoration or reconstruction shall be paid in accordance with the Distribution Formula set
forth in Section 16.4 above.
(b) If no Event of Default has occurred and is continuing, any proceeds (per occurrence) of such policies attributable to the Improvements greater than Two Million
Dollars ($2,000,000.00) shall be paid to an escrow agent ("Escrow Agent") mutually agreeable to the parties (but such escrow agent shall not be a party which is related to or affiliated with either of
the parties to this Lease, but shall be bound by the terms of this Article XVII). Such proceeds shall be invested by the Escrow Agent as Tenant
may direct (provided, however, that such proceeds may not be invested in any securities or any debt obligations issued by Tenant). Such proceeds shall be paid by the Escrow Agent to Tenant (or to
third parties as Tenant may direct), as Tenant may direct from time to time as restoration, construction or rebuilding progresses to pay the cost of any restoration, construction or rebuilding on the
Land required by Section 17.1 or any Improvements located upon the Land, so long as Landlord reasonably determines that the following conditions
are satisfied at the time of such request for payment by Tenant: (i) the sum requested has been paid or is then due and payable or will become due and payable within thirty (30) days; (ii)
Tenant has the financial ability (taking into account the insurance proceeds held by the Escrow Agent) to complete the restoration, construction or rebuilding required by
Section 17.1; (iii) Landlord has approved the plans, if any, relating to the restoration of Improvements (which approval shall not be
unreasonably withheld or delayed); and (iv) in Landlord's reasonable judgment, such restoration work required by Section 17.1 in
connection with the Improvements can be completed at least nine(9) months prior to the expiration of the Term. Landlord shall promptly upon request instruct the Escrow Agent to make the
payments requested by Tenant unless one of the four (4) conditions described above is not satisfied at the time of such request. Any excess insurance proceeds existing after either Tenant's
completion of the restoration, construction or rebuilding which Tenant elects to perform or Tenant's failure to comply with the funding condition described in subitems (i), (ii) and (iv)
immediately above in this Section 17.3(b), shall be paid pursuant to the Distribution Formula.
(c) If Tenant elects to terminate the applicable Lease Supplement, Tenant may use any insurance proceeds to pay the purchase price described in
Section 17.2, and all rights of Landlord in insurance proceeds not used to pay the purchase price shall be assigned to Tenant by Landlord at the
time Tenant purchases Landlord's interest in the parcel covered by such Lease Supplement. If either: (1) Tenant has not delivered written notice to Landlord within ninety (90) days after
reaching final written settlement with all insurance companies regarding the amount of proceeds to be paid for the casualty in question, pursuant to which notice Tenant elects to either exercise its
termination rights under Section 17.2 and/or to fully repair or restore pursuant to
Section 17.1; or (2) Landlord reasonably believes that Tenant has abandoned reconstruction or restoration work required by
Section 17.1 (and Tenant shall have failed to diligently recommence reconstruction or restoration work which Tenant is then able to perform
within thirty (30) days after Tenant's receipt from Landlord
of a Notice of Landlord's belief of Tenant's abandonment of the reconstruction or restoration work); then, in either case, the proceeds attributable to the Improvements shall be paid pursuant to the
Distribution Formula.
(d) Any insurance proceeds payable to Landlord under this Article XVII shall be deposited into escrow as provided
in the Participation Agreement and applied pursuant to the Rent Purchase Agreement to reduce the Lease Investment Balance for such Parcel by a like amount.
(e) Notwithstanding any of the foregoing provisions of this Article XVII, Landlord and Tenant acknowledge that in
the event of any inconsistency between the foregoing terms of this Article XVII and any Ground Lease, the terms of the Ground Lease shall
control; and Tenant shall have no right to terminate the applicable Lease Supplement as a consequence of any damage or destruction unless Landlord has the right to terminate the Ground Lease as a
consequence thereof (provided that Tenant may exercise the Purchase Option under Section 20.1 at any time); Landlord shall not exercise any right
to terminate any Ground Lease without Tenant's prior approval, in Tenant's sole discretion; Tenant shall restore or rebuild the Parcels in the manner and subject to the terms of the applicable Ground
Lease in the event the Lease Supplement and Ground Lease are not terminated; and the provisions regarding the application of insurance proceeds provided in
Section 17.3 above shall be subject to the terms of any Ground Lease and the allocation of insurance proceeds between the ground
lessor and ground lessee if provided for therein.
ARTICLE XVIIIQUIET ENJOYMENT
18.1 Quiet Enjoyment. Landlord covenants to secure to Tenant the quiet
possession of the Parcels for the full Term against all persons claiming the same, by, through or in the right of Landlord, subject to Landlord's rights and remedies under
Article XIX upon an Event of Default by Tenant. The existence of any Permitted Title Exceptions shall not be deemed to constitute a breach of
Landlord's obligations hereunder. Tenant shall, immediately upon demand, reimburse Landlord for all reasonable costs, expenses and damages incurred or paid by Landlord in the performance of Landlord's
obligations under this Article XVIII (except for any costs, expenses or damages arising from any Landlord liens or Landlord's willful breach of this
Lease). Landlord agrees that, so long as no Event of Default has occurred and is continuing, Landlord shall not exercise the right to terminate any Ground Lease.
ARTICLE XIXDEFAULT
19.1 Default. Each of the following events shall constitute an event of default
("Event of Default") by Tenant:
(a) Non-Payment. Tenant shall (i) fail to pay on the Expiration Date any
amounts payable by Tenant under this Lease or any of the other Operative Documents, or (ii) fail to pay within five (5) days after the same becomes due, any Base Rent, Additional Rent or
other amounts required under the terms of this Lease or any of the other Operative Documents; or
(b) Specific Defaults. (i) Tenant shall fail to carry any policy of
insurance required by Article IX, (ii) Tenant or any of its Subsidiaries shall fail to perform any covenant, obligation, condition or
agreement set forth in Sections 21.21 and 21.22, or (iii) Tenant shall fail to provide the as-built surveys of the Parcels as required by
Section 3.3 of the Participation Agreement; or
(c) Other Defaults. Tenant or any of its Subsidiaries shall fail to observe or
perform any other covenant, obligation, condition or agreement contained in this Lease or the other Operative Documents and such failure shall continue for fifteen (15) Business Days after the earlier
of (i) Tenant's
written acknowledgment of such failure and (ii) written notice to Tenant by Landlord, Administrative Agent or any Rent Purchaser of such failure; or
(d) Representations and Warranties. Any written representation, warranty,
certificate, information or other statement (financial or otherwise) made or furnished by Tenant or any of its Subsidiaries to Landlord, Administrative Agent or any Rent Purchaser in or in connection
with this Lease or any of the other Operative Documents shall be false, incorrect, incomplete or misleading in any material respect when made or furnished and either:
(i) Tenant has acknowledged that such representation, warranty, certificate, information or other statement was false, incorrect, incomplete or misleading in any
material respect or Landlord, Administrative Agent or any Rent Purchaser has delivered to Tenant written notice to such effect and such representation, warranty, certificate, information or other
statement cannot be remedied; or
(ii) Such representation, warranty, certificate, information or other statement continues to be false, incorrect, incomplete or misleading in any material respect
thirty (30) days after the earlier of (A) Tenant's written acknowledgment that such representation, warranty, certificate, information or other statement was false, incorrect, incomplete or
misleading in any material respect and (B) written notice to Tenant by Landlord, Administrative Agent or any Rent Purchaser to such effect; or
(e) Cross-Default. (i) Tenant or any of its Subsidiaries shall fail to
make any payment on account of any Indebtedness of such Entity (other than the Obligations) when due (whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and such
failure shall continue beyond any period of grace provided with respect thereto, if the amount of such Indebtedness exceeds $5,000,000 or the effect of such failure is to cause, or permit the holder
or holders thereof to cause, Indebtedness of Tenant and its Subsidiaries (other than the Obligations) in an aggregate amount exceeding $5,000,000 to become redeemable, due or otherwise payable
(whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and/or to be secured by cash collateral or (ii) Tenant or any of its Subsidiaries shall otherwise fail to
observe or perform any agreement, term or condition contained in any agreement or instrument relating to any Indebtedness of such Entity (other than the Obligations), or any other event shall occur or
condition shall exist, if the effect of such failure, event or condition is to cause, or permit the holder or holders thereof to cause, Indebtedness of Tenant and its Subsidiaries (other than the
Obligations) in an aggregate amount exceeding $5,000,000 to become redeemable, due or otherwise payable (whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and/or
to be secured by cash collateral; or
(f) Insolvency, Voluntary Proceedings. Tenant or any of its Material
Subsidiaries shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) be unable,
or admit in writing its inability, to pay its debts generally as they mature, (iii) make a general assignment for the benefit of its or any of its creditors, (iv) except as otherwise
provided in Section 21.21(d) below, be dissolved or liquidated in full or in part, (v) become insolvent (as such term may be
defined or interpreted under any applicable statute), (vi) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an
involuntary case or other proceeding commenced against it, or (vi) take any action for the purpose of effecting any of the foregoing; or
(g) Involuntary Proceedings. Proceedings for the appointment of a receiver,
trustee, liquidator or custodian of Tenant or any of its Material Subsidiaries or of all or a substantial part of the property thereof,
or an involuntary case or other proceedings seeking liquidation, reorganization or other relief
with respect to Tenant or any of its Material Subsidiaries or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for
relief entered or such proceeding shall not be dismissed or discharged within sixty (60) days of commencement; or
(h) Judgments. (i) One or more judgments, orders, decrees or arbitration
awards requiring Tenant and/or its Subsidiaries to pay an aggregate amount of $10,000,000 or more (exclusive of amounts covered by insurance issued by an insurer not an Affiliate of Tenant and
otherwise satisfying the requirements set forth in Section 21.20(d) below shall be rendered against Tenant and/or any of its Subsidiaries in
connection with any single or related series of transactions, incidents or circumstances and the same shall not be satisfied, vacated or stayed for a period of ten (10) consecutive days;
(ii) any judgment, writ, assessment, warrant of attachment, tax lien or execution or similar process shall be issued or levied against a substantial part of the property of Tenant and its
Subsidiaries taken as a whole and the same shall not be released, stayed, vacated or otherwise dismissed within ten (10) days after issue or levy; or (iii) any other judgments, orders,
decrees, arbitration awards, writs, assessments, warrants of attachment, tax liens or executions or similar processes which, alone or in the aggregate, are reasonably likely to have a Material Adverse
Effect are rendered, issued or levied; or
(i) Operative Documents. The Operative Documents, taken as a whole, shall cease
to provide Landlord, Administrative Agent or any Rent Purchaser the practical realization of the material rights and remedies intended to be provided thereunder; or any Operative Document shall be
asserted by Tenant or any of its Subsidiaries not to be a legal, valid and binding obligation of Tenant or any of its Subsidiaries enforceable in accordance with its terms; or
(j) Employee Benefit Plans. Any Reportable Event which constitutes grounds for
the termination of any Employee Benefit Plan by the PBGC or for the appointment of a trustee by the PBGC to administer any Employee Benefit Plan shall occur, or any Employee Benefit Plan shall be
terminated within the meaning of Title IV of ERISA or a trustee shall be appointed by the PBGC to administer any Employee Benefit Plan; or
(k) Change of Control. Any Change of Control shall occur; or
(l) Material Adverse Effect. Any event(s) or condition(s) which is (are)
reasonably likely to have a Material Adverse Effect shall occur or exist; or
(m) Ground Lease Default. Tenant shall fail to observe or perform any covenant,
obligation, condition or agreement in any Ground Lease; or
(n) Default in Payment of Purchase Price or Guaranteed Residual Value. Failure
of Tenant to (a) complete the Purchase Option after election (or deemed election pursuant to Section 17.2 or otherwise) to do so,
(b) perform all of its obligations pursuant to the Termination Option if Tenant has elected to exercise the Termination Option (defined in
Section 20.2) (and has not rescinded its election to exercise such option) set forth in
Section 20.2, including, without limitation, the obligations to make the payments required pursuant to
Sections 20.2(b), (d) and (e), or (c) pay the Purchase Price upon a Taking pursuant to
Section 16.1.
19.2 Landlord's Remedies. Landlord shall have the remedies specified below and
the exercise of such remedies shall be subject to the rights of Administrative Agent and the Rent Purchasers set forth in the Participation Agreement and the Rent Purchase Agreement:
(a) Continue Lease. After the occurrence of an Event of Default, Landlord shall
have the right to enforce, by suit or otherwise, all other covenants and conditions hereof to be performed or complied with by Tenant and to exercise all other remedies permitted by the laws of the
state in which the Parcel is located. Upon application by Landlord, a receiver may be appointed to take possession of such Parcel and exercise all rights granted to Landlord as set forth in this
Section 19.3.
(b) Terminate Lease. In connection with an Event of Default, Landlord may
terminate this Lease or any Lease Supplement by giving Tenant Notice thereof at any time after the occurrence of such Event of Default. In such event Tenant shall be obligated to purchase the Parcel
(if Landlord has terminated only the Lease Supplement for such Parcel) or all of the Parcels (if Landlord has terminated this Lease) for an amount equal to the Purchase Price for such Parcel or all of
the Parcels, as applicable, described in the Purchase Option contained in Section 20.1 below (that is, all accrued Base Rent, Additional Rent and
the Lease Investment Balance under each Lease Supplement). Notwithstanding the foregoing, if this Lease or any Lease Supplement is being terminated on the basis of the occurrence of an Event of
Default under Section 19.1(e) or 19.1(l) solely as a result of a Material Adverse Effect, Tenant shall be obligated to pay only the
Guaranteed Residual Value upon such termination but the Security Instruments executed in connection herewith shall continue and remain in full force and effect in accordance with their terms after
such payment with respect to the remainder of the Lease Investment Balance. Landlord shall also have its other remedies at law (including its rights under the Security Instruments), provided, however,
that Tenant's option to purchase the Parcels pursuant to Section 20.1 shall survive any termination of this Lease up through the date of
foreclosure sale under the applicable Security Instruments.
(c) Landlord's Continuing Obligation to Sell. Except in the case of a
foreclosure under the applicable Security Instruments, in the event Landlord obtains possession of a Parcel pursuant to the terms of this Lease (because of Tenant's default, Lease expiration, or
otherwise), Landlord shall be under a continuing obligation to use its commercially reasonable efforts to sell such Parcel to one or more unrelated third parties; provided, however, that Landlord
shall not be required to sell or attempt to sell any portion of such Parcel (i) in a manner, or under circumstances, that could materially impair Landlord's ability to enforce any of its rights or
remedies under the Operative Documents (as determined in Landlord's sole discretion, subject to the rights of Administrative Agent and the Rent Purchasers under the Participation Agreement and the
Rent Purchase Agreement) or (ii) at a time when market conditions render it inadvisable to sell or attempt to sell such Parcel (as determined in Landlord's sole discretion, subject to the
rights of Administrative Agent and the Rent Purchasers under the Participation Agreement and the Rent Purchase Agreement). Upon the occurrence of any such sale, Landlord shall be obligated to pay to
Tenant any excess of the amount realized by Landlord in connection with such sale over the Purchase Price. For purposes of the preceding sentence, the amount realized by Landlord upon a sale of a
Parcel shall be net of Landlord's reasonable sale expenses and other expenses reasonably incurred by Landlord to consummate such sale. Landlord's obligation to pay such excess to Tenant shall survive
any termination of this Lease and shall remain subject to the terms of the Rent Purchase Agreement or Participation Agreement. Tenant agrees that the Landlord will be deemed to be acting in good faith
if it refuses to sell its interest for less than the excess of the Lease Investment Balance over the Guaranteed Residual Value.
19.3 No Waiver. No failure by Landlord or Tenant to insist upon the strict
performance of any term, covenant or condition of this Lease or to exercise any right or remedy consequent upon a breach thereof and no acceptance of full or partial Base Rent or Additional Rent
during the continuance of any breach shall constitute a waiver of any such breach or of the term, covenant, or condition. No term, covenant or condition of this Lease to be performed or complied with
by Tenant or Landlord, and no breach thereof, shall be waived, terminated, altered or modified except by a written instrument executed by Landlord and Tenant. No waiver of any breach shall affect or
alter this Lease, but each and every term, covenant, and condition of this Lease shall continue in full force and effect with respect to any other then existing subsequent breach thereof.
19.4 Effect of Assignment. Notwithstanding an Entity's prior assignment or
transfer of its interest as Tenant under this Lease, so long as Landlord and Administrative Agent have been given Notice of such assignment pursuant to
Section 15.1 and Section 21.3, Landlord shall give such Entity copies of all Notices
required by this Article XIX in connection with any Event of Default, and such Entity shall have the period
granted hereunder to Tenant to cure such Event of Default, unless such Entity shall have been released from all obligations arising under this Lease and all Operative Documents. Landlord may not
assert any rights against such Entity in the absence of such Notice and opportunity to cure, so long as Landlord and Administrative Agent have been given Notice of such assignment pursuant to
Sections 15.1 and 21.3.
19.5 Landlord Right to Perform. If Tenant fails to perform any covenant or
agreement to be performed by Tenant under this Lease, and if the failure or default continues for thirty (30) days after Notice to Tenant (except for emergencies and except for payment of any lien or
encumbrance threatening the imminent sale of any Parcel or any portion thereof, in which case payment or performance may be made as soon as necessary to minimize the damage to person or property
caused by such emergency or to prevent any such sale), Landlord may, but shall have no obligation to, pay the same and perform such covenant or agreement on behalf of and at the expense of Tenant and
do all reasonably necessary work and make all reasonably necessary payments in connection therewith including, but not limited to, the payment of reasonable attorneys' fees and disbursements incurred
by Landlord. Notwithstanding the foregoing, Landlord shall have no right to perform on behalf of Tenant so long as Tenant: (1) is diligently and in good faith attempting to cure such matter and
prosecuting such cure to completion; (2) has the financial ability to so comply; and (3) commenced cure of such matter within thirty (30) days after Tenant's receipt of Notice thereof
from Landlord. Failure by Tenant to comply with the above shall allow Landlord to commence in a reasonable and customary manner and in good faith to attempt to cure such matter. Upon demand, Tenant
shall reimburse Landlord for the reasonable amount so paid, together with interest at the Default Rate from the date incurred until the date repaid. Neither the performance by Landlord pursuant to
this Section 19.5 nor the exercise by Landlord of any of its other rights and remedies shall constitute a cure or waiver of any Event of Default
or nullify any Notice of Default or sale, unless and until all obligations under the Operative Documents are paid in full.
19.6 Landlord's Default. If Landlord fails to perform any covenant or agreement
to be performed by Landlord under Section 14.1, Section 16.4,
Article XX, Article XXI, or
Section 21.8 of this Lease (including, but not limited to, Landlord's failure to keep the Parcels free of any and all liens created by or through
Landlord except as approved by Tenant in writing), and if the failure or default continues for thirty (30) days after Notice to Landlord (except for emergencies and except for payment of any lien or
encumbrance threatening the imminent sale of the Parcels or any portion thereof, in which case payment or cure may be made as soon as necessary to minimize the damage to person or property caused by
such emergency or to prevent any such sale), Tenant may, but shall have no obligation to, pay the same and cure such default on behalf of and, so long as such failure to perform arises due to
Landlord's gross negligence, willful misconduct, or willful breach of this Lease, at the expense of Landlord and do all reasonably necessary work and make all reasonably necessary payments in
connection therewith including, but not limited to, the payment of reasonable attorneys' fees and disbursements incurred by Tenant. Notwithstanding the foregoing, Tenant shall have no right to cure
any such failure to perform by Landlord so long as Landlord is diligently and in good faith attempting to cure such matter. Notwithstanding anything to the contrary, Landlord's liability under this
Lease shall in all events be limited as provided in Section 21.13 below, or as otherwise indicated in this Lease.
ARTICLE XXTENANT'S OPTION TO PURCHASE OR TERMINATE
20.1 Option To Purchase Parcels. Purchase Option. On any Rent Payment Date
during the Term, Tenant shall have the option ("Purchase Option") to purchase all, but not less than all of a Parcel covered by a Lease Supplement. The purchase price ("Purchase Price") for the Parcel
shall be the sum of accrued and unpaid Base Rent, any accrued and unpaid Additional Rent, plus the Lease Investment Balance under the applicable Lease Supplement and expenses incurred by Landlord in
consummating the transfer of the Parcel pursuant to this Article XX. The Purchase Price shall be deposited by Tenant in escrow as provided in the
Participation Agreement and distributed as provided in the Rent Purchase Agreement.
(b) Purchase Option Exercise Notice. If Tenant desires to exercise the Purchase
Option, Tenant shall deliver to Landlord and Administrative Agent thirty (30) days prior written notice ("Purchase Option Exercise Notice") of Tenant's election. If Tenant does not exercise the
Termination Option with respect to any Parcel as provided in Section 20.2 below it shall be deemed to have exercised the Purchase Option with
respect to such Parcel.
(c) Transfer. If Tenant exercises the Purchase Option with respect to a Parcel,
the purchase and sale of the Parcels shall be consummated as follows:
(i) Landlord shall grant and convey the Parcels to Tenant, its authorized agent or assignee, pursuant to a duly executed and acknowledged assignment and assumption of
leasehold interest (as to the Land) and a grant deed as to the Parcels (collectively herein the "Deed"), free and clear of all title defects, liens, encumbrances, deeds of trust, mortgages,
rights-of-way and restrictive covenants or conditions, of record, placed against the Parcels by Landlord except for (A) the Permitted Title Exceptions (but not the Security Instruments), and
(B) any UCC-1 filed or recorded which evidence security interests encumbering the Parcels or any part thereof in favor of Landlord, which security interests Landlord shall cause to be released
so that they no longer affect the Parcels.
(ii) The Purchase Price shall be paid to Landlord upon delivery of the Deed and any other documents reasonably requested by Tenant (the "Additional Documents") to
evidence the transfer of the Parcels subject to the Permitted Title Exceptions (excluding the Security Instruments, and any UCC-1 filed or recorded which evidence security interests encumbering the
Parcels or any part thereof in favor of Landlord, which security interests Landlord shall cause to be released so that they no longer affect the Parcels). In the event that Tenant elects to assign the
Purchase Option pursuant to Section 20.1(d) below, and Tenant's assignee pays an amount less than the Purchase Price for the Parcels, Tenant
shall pay to Landlord any excess of the Purchase Price over the amount paid by such assignee. Landlord shall deliver the Deed and the Additional Documents to Tenant or Tenant's assignee on the date
for closing specified by Tenant in the Purchase Option Exercise Notice. The closing shall take place at the location and in the manner reasonably set forth by Tenant or Tenant's Assignee in the
Purchase Option Exercise Notice; provided that the date of closing shall occur no later than the last day of the Term of the Lease.
(iii) If Landlord shall fail to cause title to be in the condition required in Section 20.1(c)(i) above
within the time herein prescribed for the delivery of the Deed, then Tenant shall have the right (in addition to all other rights provided by law or in equity) by a written notice to Landlord:
(1) to extend the time (notwithstanding the Expiration Date of this Lease) in which Landlord shall clear title and deliver the Deed and Additional Documents, during which extension this Lease
shall remain in full force and
effect, except Tenant shall be released from its obligation to pay Base Rent and Additional Rent during the extension; (2) to accept delivery of the Deed and Additional Documents subject to
such title defects, liens, encumbrances, deeds of trust, mortgages, rights-of-way and restrictive covenants or conditions specified and set forth in the Deed and not cleared by Landlord; (3) to
rescind, by notice to Landlord and without any penalty or liability therefor, any and all obligations Tenant may have under and by virtue of the Purchase Option or the exercise thereof, whereupon this
Lease shall remain in full force and effect; (4) to accept delivery of the Deed and the Additional Documents and if the title exception is curable by the payment of money, Tenant may make such
payment and such payment shall be a credit against the Purchase Price in favor of Tenant.
(iv) Base Rent shall be prorated and paid and all Additional Rent which is then due and payable shall be paid as of the date title to the Parcel is vested of record in
Tenant. Tenant shall pay the escrow fees; the recorder's fee for recording the Deed; the premium for the title insurance policy; all documentary transfer taxes; Tenant's attorneys' fees; Landlord's
reasonable
attorneys' fees; all other costs and expenses incurred by Tenant in consummating the transfer of the Parcel; and all reasonable expenses (except as specified in the next sentence) incurred by Landlord
in consummating the transfer of the Parcel pursuant to this Section 20.1. Landlord shall pay the costs and expenses of clearing title as required
by Section 20.1(c)(i).
(d) Assignment. Tenant shall have the right, without Landlord's consent, to
assign this Purchase Option, in whole, to any Entity at any time, whether or not Tenant also assigns its interest in the Lease. Notwithstanding any such assignment, Tenant shall remain primarily
liable for all obligations and liabilities on the part of Tenant theretofore or thereafter arising under this Lease and all Lease Supplements.
20.2 Termination Option.
(a) Notice. Provided that no Event of Default has occurred and is then
continuing, unless Tenant has notified Landlord and Administrative Agent prior to such date that it elects the Purchase Option, Tenant may, on or before the date which is nine (9) months prior
to the expiration of the Term, exercise an option ("Termination Option") to sell a Parcel; provided, however that at any time Tenant can rescind its election to exercise its Termination Option if it
then exercises its Purchase Option pursuant to Section 20.1 above. The nine (9) month period is referred to herein as the "Sales Period."
(b) Termination Option. After giving the notice set forth in
Section 20.2(a) above Tenant shall then use its best efforts to sell the Parcel for cash to a third party purchaser (who is not an affiliate of
Tenant within the meaning of Rule 405 under the Securities Act of 1933) and, if the Parcels are not conveyed to such purchaser prior to the expiration of the Term, Tenant shall have no further
right to sell the Parcels and Landlord may, at its option, either allow the Tenant to holdover pursuant to Section 4.2 above, or
terminate the Lease, in which case Tenant shall immediately vacate the Parcels and quitclaim all interest of Tenant, if any, therein to Landlord. Tenant shall pay to Landlord, on the last day of the
Term, any Base Rent or Additional Rent due and owing under the applicable Lease Supplement, this Lease or any other Operative Document.
(c) Termination Option Procedures. In the event that Tenant elects the
Termination Option with respect to a Parcel, Tenant shall use its best efforts throughout the Sales Period to obtain a purchaser (who is not an affiliate of Tenant as described above) for the Parcels.
Tenant shall have the exclusive right to market the Parcels during the first three (3) months of the Sales Period (the "Exclusive Period"). Landlord may direct Tenant to hire and pay for no
more than one (1) commission sales agent after the expiration of the Exclusive Period. Except as otherwise provided below, any sale by Tenant shall be for the highest cash bid submitted to
Tenant, including any cash bid submitted by or through Landlord.
The determination of the highest bid shall be made by Landlord prior to the end of the Sales Period. After the end of the Exclusive Period, Landlord may accept any commercially reasonable bid
solicited by Landlord, Tenant or its agent, in which case Tenant's sales effort may be suspended until the earlier of the closing of such sale on the last day of the Term or revocation or rejection of
such cash bid. Notwithstanding the above provisions, Tenant may (i) accept during the Exclusive Period any cash bid which (net of expenses of sale) exceeds the Lease Investment Balance, or
(ii) rescind the Termination Option at any time so long as it is exercising its Purchase Option, which shall be prior and superior to an accepted offer from a third party. If Landlord
undertakes any sales efforts, Tenant shall promptly reimburse Landlord for any reasonable charges, costs and expenses incurred in such effort, including any commissions, allocated time charges, costs
and expenses of internal counsel, external counsel or other attorneys' fees.
(d) Payments under Termination Option. If Tenant elects the Termination Option
with respect to a Parcel, Tenant shall pay into escrow, on the day Tenant elects such Termination Option, in immediately available funds, an amount equal to the Guaranteed Residual Value under the
applicable Lease Supplement. Except as provided in Section 20.2(e), the proceeds (the "Proceeds") of any sale of
a Parcel pursuant to the Termination Option shall be paid into escrow upon any such sale without deductions, and not later than the expiration of the Master Lease Term. All Proceeds and other payments
made by Tenant under this Section 20.2 shall be deposited in escrow as provided in the Participation Agreement and distributed as provided in the
Rent Purchase Agreement.
(e) Procedures Upon Sale under the Termination Option. Any sale pursuant to the
Termination Option shall be consummated on the last day of the Term. To the extent the Proceeds exceed the Lease Investment Balance under the applicable Lease Supplement (after reduction by any
payment of Guaranteed Residual Value made pursuant to Section 20.2(d) above) plus any holdover rent due from Tenant under
Section 4.2 above, such excess shall be paid out of escrow to Tenant. Upon payment to Landlord and Administrative Agent of all amounts due under
this Lease and the Lease Supplement, Landlord shall execute and deliver to the purchaser of a Parcel a grant deed in the same manner and subject to the same conditions and obligations as are set forth
in Section 20.1(c) above and have the same obligation to deliver title and remove exceptions as set forth in said section. Except as provided in
the second sentence of this subparagraph, the Proceeds shall be applied to the Lease Investment Balance under the applicable Lease Supplement (after reduction by any payment of Guaranteed Residual
Value made pursuant to Section 20.2(d) above) plus any holdover rent under
Section 4.2 above.
ARTICLE XXIMISCELLANEOUS
21.1 Relationship. Neither this Lease nor any other Operative Documents or
transactions contemplated hereby or thereby shall in any respect be interpreted, deemed or construed as constituting Landlord, Rent Purchasers, Administrative Agent and Tenant as partners or joint
venturers, one with the other, or as creating any partnership, joint venture, association or, except as set forth in Section 21.2 below, any
other relationship other than that of landlord and tenant: and, except as set forth in Section 21.2 below, both Landlord and Tenant agree not to
make any contrary assertion, contention, claim or counterclaim in any action, suit or other legal proceeding involving either Landlord or Tenant or the subject matter of this Lease.
21.2 Form of Transaction: Certain Tax Matters. Landlord and Tenant hereby agree
and declare that the transactions contemplated by this Lease are intended to constitute, both as to matters of form and substance:
(i) an operating lease for financial accounting purposes, and
(ii) a financing arrangement secured by the Parcels (and not a "true lease") for purposes of Federal, state and local income tax and certain other legal purposes,
including bankruptcy.
Accordingly, and notwithstanding any other provision of this Lease to the contrary, Landlord and Tenant agree and declare that (A) the transactions contemplated hereby are
intended to have a dual, rather than single, form and (B) all references in this Lease to the "Lease" of the Parcels which fail to reference such dual form do so as a matter of convenience only
and do not reflect the intent of Landlord and Tenant as to the true form of such arrangements.
(b) Landlord and Tenant agree that, in accordance with their intentions and the substance of the transactions contemplated hereby, Tenant (and not Landlord) shall be
treated as the owner of the Parcels for Federal, state, local income tax purposes and this Lease shall be treated as a financing arrangement secured by the Parcels. Tenant shall be entitled to take
any deduction, credit allowance or other reporting, filing or other tax position consistent with such characterizations. Landlord shall not file any Federal, state or local income tax returns, reports
or other statements in a manner which is inconsistent with the foregoing provisions of this Section 21.2.
(c) Tenant acknowledges that it has retained accounting, tax and legal advisors to assist it in structuring this Lease and Tenant is not relying on any representations
of Landlord regarding the proper treatment of this transaction for accounting, income tax or any other purpose.
21.3 Notices. Each Notice shall be in writing and shall be sent by personal
delivery, overnight courier (charges prepaid or billed to the sender) or by the deposit of such with the United States Postal Service, or any official successor thereto, designated as registered or
certified mail, return receipt requested, bearing adequate postage and in each case addressed as provided in the Section 1.10. Each Notice shall
be effective upon being personally delivered or actually received. The time period in which a response to any such Notice must be given or any action taken with respect thereto shall commence to run
from the date of personal delivery or receipt of the Notice by the addressee thereof, as reflected on the return receipt of the Notice. Rejection or other refusal to accept shall be deemed to be
receipt of the Notice sent. By giving to the other party at least thirty (30) days' prior Notice thereof, either party to this Lease shall have the right from time to time during the Term of this
Lease to change the address(es) thereof and to specify as the address(es) thereof any other address(es) within the continental United States of America.
21.4 Severability of Provisions. If any term, covenant or condition of this
Lease shall be invalid or unenforceable, the remainder of this Lease, or the application of such term, covenant or condition to Entities or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby.
21.5 Entire Agreement: Amendment. This Lease and each Operative Document
constitutes the entire agreement of Landlord, Administrative Agent, each Rent Purchaser and Tenant with respect to the subject matter hereof and thereof. Neither this Lease nor any provision hereof
may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed as set forth in the Rent Purchase Agreement.
21.6 Memorandum of Amended and Restated Lease. Neither party shall record this
Lease. However, concurrently with the execution of any Lease Supplement, Landlord and Tenant shall execute a Memorandum of Lease ("Memorandum of Lease") in the form attached to each Lease Supplement
and by this reference made a part hereof, which Memorandum of Lease shall be promptly recorded in the Official Records.
21.7 Successors and Assigns. Subject to Articles XIV
and XV, this Lease shall inure to the benefit of and be binding upon Landlord and Tenant and their respective heirs, executors, legal representatives, successors and assigns.
Whenever in this Lease a reference to any Entity is made, such reference shall be deemed to include a reference to the heirs, executors, legal representatives, successors and permitted assigns of such
Entity.
21.8 Commissions. Landlord and Tenant each represent and warrant that neither
has dealt with any broker in connection with this transaction and that no real estate broker, salesperson or finder has the right to claim a real estate brokerage, salesperson's commission or finder's
fee by reason of contact between the parties brought about by such broker, salesperson or finder. Each party shall hold and save the other harmless of and from any and all loss, cost, damage, injury
or expense arising out of or in any way related to claims for real estate broker's or salesperson's commissions or fees based upon allegations made by the claimant that it is entitled to such a fee
from the indemnified party arising out of contact with the indemnifying party or alleged introductions of the indemnifying party to the indemnified party.
21.9 Attorneys' Fees. In the event any action is brought by Landlord or Tenant
against the other to enforce or for the breach of any of the terms, covenants or conditions contained in this Lease, the prevailing party shall be entitled to recover reasonable attorneys' fees to be
fixed by the court, together with costs of suit therein incurred. Tenant shall pay the reasonable attorneys' fees incurred by Landlord for the review and negotiation of this Lease.
21.10 Governing Law. This Lease and the obligations of the parties hereunder
shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of California.
21.11 Counterparts. This Lease may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together shall comprise but a single instrument.
21.12 Time Is of the Essence. Time is of the essence of this Lease, and of each
provision hereof.
21.13 Limitations on Recourse. The obligations of Tenant and Landlord under
this Lease shall be without recourse to any partner, officer, trustee, beneficiary, shareholder, director or employee of Tenant or Landlord. Except for the gross negligence or willful misconduct of
Landlord or for breach of Landlord's obligations to fund pursuant to Article VI above, Landlord's liability to Tenant for any
default by Landlord under this Lease: (1) shall be limited to Landlord's equity in the Parcels; and (2) shall extend to any actual damages of Tenant, but shall not extend to any
foreseeable or unforeseeable consequential damages.
21.14 Estoppel Certificates. Within thirty (30) days after request therefor by
either party, the non-requesting party shall deliver, in recordable form, a certificate to any proposed mortgagee, purchaser, sublessee or assignee and to the requesting party, certifying (if such be
the case) that this Lease is in full force and effect, the date of Tenant's most recent payment of Base Rent, that, to the best of its knowledge, the non-requesting party has no defenses or offsets
outstanding, or stating those claimed, and any other information reasonably requested. Failure to deliver said statement in time shall be
conclusive upon the non-requesting party that: (a) this Lease is in full force and effect, without modification except as may be represented by the requesting party; (b) there are no
uncured defaults in the requesting party's performance and the non-requesting party has no right of offset, counterclaim or deduction against the non-requesting party's obligations hereunder;
(c) no more than one month's Base Rent has been paid in advance; and (d) any other matters reasonably requested in such certificate.
21.15 As-Is Lease. Landlord makes no representations or warranties concerning
the condition, suitability or any other matters relating to the Parcels, and Tenant hereby acknowledges that Tenant leases the Parcels from Landlord on an "as is" basis.
21.16 Net Lease. Except as otherwise provided in this Lease, Tenant agrees that
this Lease is an absolute net Lease, and the Base Rent called for hereunder shall be paid as required inclusive of all expenses associated with the Parcels, including without limitation, Real Estate
Taxes and insurance premiums for the insurance required to be carried hereunder, and all other reasonable and customary costs and expenses incurred by Landlord, in connection with the Parcels or this
Lease, all of which shall be paid or reimbursed by Tenant unless otherwise specifically provided herein. Tenant agrees to reimburse Landlord, within five (5) Business Days following receipt of
any written demand therefor, for all reasonable and customary fees, late charges, title endorsements, and other costs and expenses charged to Landlord which accrue during any period.
21.17 Landlord's Representations and Warranties. Landlord hereby represents and
warrants that:
(a) Landlord has the full right and authority to enter into this Lease, consummate the sale, transfers and assignments contemplated herein and otherwise perform its
obligations under this Lease;
(b) the person or persons signatory to this Lease and any document executed pursuant hereto on behalf of such party have full power and authority to bind such party;
(c) the execution and delivery of this Lease and the performance of such party's obligations hereunder do not and shall not result in the violation of its
organizational documents or any material contract or agreement to which such party may be a party; and
(d) it is duly organized and existing under the laws of the jurisdiction in which it is formed, and is qualified to do business in the State of California.
21.18 Tenant's Representations and Warranties. In order to induce Landlord,
Administrative Agent and each Rent Purchaser to enter into the Operative Documents, Tenant hereby represents and warrants to Landlord, Administrative Agent and each Rent Purchaser as follows:
(a) Due Incorporation, Qualification, etc. Each of Tenant and Tenant's Material
Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) has the power and authority to own, lease
and operate its properties and carry on its business as now conducted; and (iii) is duly qualified, licensed to do business and in good standing as a foreign corporation in each jurisdiction
where the failure to be so qualified or licensed is reasonably likely to have a Material Adverse Effect.
(b) Authority. The execution, delivery and performance by Tenant of each
Operative Document executed, or to be executed, by Tenant and the consummation of the transactions contemplated thereby (i) are within the power of Tenant and (ii) have been duly
authorized by all necessary actions on the part of Tenant.
(c) Enforceability. Each Operative Document executed, or to be executed, by
Tenant has been, or will be, duly executed and delivered by Tenant and constitutes, or will constitute, a legal, valid and binding obligation of Tenant, enforceable against Tenant in accordance with
its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors' rights generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by Tenant of the Operative
Documents executed by Tenant and the performance and consummation of the transactions contemplated thereby do not (i) violate any Legal Requirement applicable to Tenant; (ii) violate any
provision of, or result in the breach or the acceleration of, or entitle any other Entity to accelerate (whether after the giving of notice or lapse of time or both), any Contractual Obligation of
Tenant required by Regulation S-K to be made part of Tenant's public filings; or (iii) result in the creation or imposition of any Lien (or the obligation to create or impose any Lien) upon any
property, asset or revenue of Tenant (except such Liens as may be created in favor of Landlord, Administrative Agent or any Rent Purchaser pursuant to this Lease or the other Operative Documents).
(e) Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Authority is required in connection with the execution and delivery of the Operative Documents executed by Tenant or the performance or
consummation of the transactions contemplated thereby, except for those which have been made or obtained and are in full force and effect.
(f) No Violation or Default. Neither Tenant nor any of its Subsidiaries is in
violation of or in default with respect to (i) any Legal Requirement applicable to such Entity or (ii) any Contractual Obligation of such Entity (nor is there any waiver in effect which,
if not in effect, would result in such a violation or default), where, in each case, such violation or default is reasonably likely to have a Material Adverse Effect. Without limiting the generality
of the foregoing, neither Tenant nor any of its Subsidiaries (A) has violated any Applicable Environmental Laws, (B) has any liability under any Applicable Environmental Laws or
(C) has received notice or other communication of an investigation or is under investigation by any Governmental Authority having authority to enforce Applicable Environmental Laws, where such
violation, liability or investigation is reasonably likely to have a Material Adverse Effect. No Default has occurred and is continuing.
(g) Litigation. Except as disclosed in the 10-Q report filed by Tenant with the
Securities and Exchange Commission for the fiscal quarter ended June 4, 1999, no actions (including derivative actions), suits, proceedings or investigations are pending or, to the knowledge of
Tenant, threatened against Tenant or any of its Subsidiaries at law or in equity in any court or before any other Governmental Authority which (i) is reasonably likely (alone or in the
aggregate) to have a Material
Adverse Effect or (ii) seeks to enjoin, either directly or indirectly, the execution, delivery or performance by Tenant of the Operative Documents or the transactions contemplated thereby.
(h) Title; Possession Under Leases. Tenant and its Material Subsidiaries own
and have good and marketable title, or a valid leasehold interest in, or licenses with respect to, all their respective properties and assets as reflected in the most recent Financial Statements
delivered to Landlord and Administrative Agent (except those assets and properties disposed of in the ordinary course of business or otherwise in compliance with this Lease since the date of such
Financial Statements) and all respective assets and properties acquired by Tenant and its Material Subsidiaries since such date (except those disposed of in the ordinary course of business or
otherwise in compliance with this Lease). Such assets and properties are subject to no Lien, except for Permitted Liens. Each of Tenant and its Material Subsidiaries has complied with all material
obligations under all material leases to which it is a party and enjoys
peaceful and undisturbed possession under such leases subject only to rights of sublessees of Tenant or its Material Subsidiaries.
(i) Financial Statements. The Financial Statements of Tenant and its
Subsidiaries which have been delivered to Landlord and Administrative Agent, (i) are in accordance with the books and records of Tenant and its Subsidiaries, which have been maintained in accordance
with good business practice; (ii) have been prepared in conformity with GAAP; and (iii) fairly present in all material respects the financial conditions and results of operations of
Tenant and its Subsidiaries as of the date thereof and for the period covered thereby. Neither Tenant nor any of its Subsidiaries has any Contingent Obligations, liability for taxes or other
outstanding obligations which are material in the aggregate, except as disclosed in the audited Financial Statements dated November 27, 1998, or unaudited Financial Statements for the fiscal
quarter ended June 4, 1999, furnished by Tenant to Landlord and Administrative Agent prior to the date hereof, or in the Financial Statements delivered to Landlord and Administrative Agent
pursuant to the terms of this Lease.
(j) Equity Securities. All Equity Securities of Tenant have been offered and
sold in compliance with all federal and state securities laws and all other Legal Requirements, except where any failure to comply is not reasonably likely to have a Material Adverse Effect.
(k) No Agreements to Sell Assets; Etc. Neither Tenant nor any of its
Subsidiaries has any legal obligation, absolute or contingent, to any Entity to sell the assets of Tenant or any of its Subsidiaries (except as permitted by
Section 21.21(c), or to effect any merger, consolidation or other reorganization of Tenant or any of its Subsidiaries (except as permitted by
Section 21.21(d) or to enter into any agreement with respect thereto.
(l) Employee Benefit Plans.
(i) Based upon the latest valuation of each Employee Benefit Plan that either Tenant or any ERISA Affiliate maintains or contributes to, or has any obligation under
(which occurred within twelve months of the date of this representation), the aggregate benefit liabilities of such plan within the meaning of § 4001 of ERISA did not exceed the aggregate
value of the assets of such plan. Neither Tenant nor any ERISA Affiliate has any liability with respect to any post-retirement benefit under any Employee Benefit Plan which is a welfare plan (as
defined in section 3(1) of ERISA), other than liability for health plan continuation coverage described in Part 6 of Title I(B) of ERISA, which liability for health plan contribution
coverage is not reasonably likely to have a Material Adverse Effect.
(ii) Each Employee Benefit Plan complies, in both form and operation, in all material respects, with its terms, ERISA and the IRC, and no condition exists or event has
occurred with respect to any such plan which would result in the incurrence by either Tenant or any ERISA Affiliate of any material liability, fine or penalty. Each Employee Benefit Plan, related
trust agreement, arrangement and commitment of Tenant or any ERISA Affiliate is legally valid and
binding and in full force and effect. No Employee Benefit Plan is being audited or investigated by any government agency or is subject to any pending or threatened claim or suit. Neither Tenant nor
any ERISA Affiliate nor any fiduciary of any Employee Benefit Plan has engaged in a prohibited transaction under section 406 of ERISA or section 4975 of the IRC.
(iii) Neither Tenant nor any ERISA Affiliate contributes to or has any material contingent obligations to any Multiemployer Plan. Neither Tenant nor any ERISA Affiliate
has incurred any material liability (including secondary liability) to any Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan under Section 4201 of
ERISA or as a result of a sale of assets described
in Section 4204 of ERISA. Neither Tenant nor any ERISA Affiliate has been notified that any Multiemployer Plan is in reorganization or insolvent under and within the meaning of
Section 4241 or Section 4245 of ERISA or that any Multiemployer Plan intends to terminate or has been terminated under Section 4041A of ERISA.
(m) Other Regulations. Tenant is not subject to regulation under the Investment
Company Act of 1940, the Public Utility Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, any state public utilities code or to any other Governmental
Rule limiting its ability to incur indebtedness.
(n) Patent and Other Rights. Except as disclosed in the 10-Q report filed by
Tenant with the Securities and Exchange Commission for the fiscal quarter ended ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇▇ and its Material Subsidiaries own, license or otherwise have the full right to use, under
validly existing agreements, all material patents, licenses, trademarks, trade names, trade secrets, service marks, copyrights and all rights with respect thereto, which are required to conduct their
businesses as now conducted.
(o) Governmental Charges. Tenant and its Subsidiaries have filed or caused to
be filed all tax returns or requests for extension which are required to be filed by them. Tenant and its Subsidiaries have paid, or made provision for the payment of, all taxes and other Governmental
Charges which have or may have become due pursuant to said returns or otherwise and all other indebtedness, except such Governmental Charges or indebtedness, if any, which are being contested in good
faith and as to which adequate reserves (determined in accordance with GAAP) have been provided or which are not reasonably likely to have a Material Adverse Effect if unpaid.
(p) Margin Securities. No part of the Commitment Amount will be used directly
or indirectly for the purpose of purchasing or carrying, or for payment in full or in part of debt that was incurred for the purposes of purchasing or carrying, any margin security as such term is
defined in Section 207.2 of Regulation G of the Board of Governors of the Federal Reserve System (12 C.F.R., Chapter II, Part 207).
(q) Subsidiaries, Etc. Exhibit
E (as supplemented by Tenant from time to time in a written notice to Landlord and Administrative Agent pursuant to
Section 21.20(a)(iii) sets forth each of Tenant's Subsidiaries, its jurisdiction of organization, the classes of its Equity
Securities and the percentages of shares of each such class owned directly or indirectly by Tenant.
(r) Solvency, Etc. On the Date of Lease and after the execution and delivery of
the Operative Documents and the consummation of the transactions contemplated thereby, (i) the fair value of the property of Tenant is greater than the fair value of the liabilities (including
contingent, subordinated, matured and unliquidated liabilities) of Tenant, (ii) the present fair saleable value of the assets of Tenant is greater than the amount that will be required to pay
the probable liability of Tenant on its debts as they become absolute and matured, (iii) Tenant does not intend to, and does not believe that it will, incur debts or liabilities beyond Tenant's
ability to pay as such debts and liabilities mature and (iv) Tenant is not engaged in or about to engage in business or transactions for which Tenant's property would constitute an unreasonably
small capital.
(s) Catastrophic Events. Neither Tenant nor any of its Subsidiaries and none of
their properties is or has been affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or other casualty that is
reasonably likely to have a Material Adverse Effect. There are no disputes presently subject to grievance procedure, arbitration or litigation under any of the collective bargaining agreements,
employment contracts or employee welfare or incentive plans to which Tenant or any of its Subsidiaries is a party, and there are no strikes, lockouts, work stoppages or slowdowns, or, to the
best knowledge of Tenant, jurisdictional disputes or organizing activities occurring or threatened which alone or in the aggregate are reasonably likely to have a Material Adverse Effect.
(t) No Material Adverse Effect. No event has occurred and no condition exists
which is reasonably likely to have a Material Adverse Effect.
(u) Year 2000 Compatibility. The 10-Q report filed by Tenant with the
Securities and Exchange Commission for the fiscal quarter ended March 5, 1999, describes the actions which Tenant and its Subsidiaries have taken, are planning to take or are taking to address
the "Year 2000 Problem" (that is, the risk that computer applications used by Tenant and its Subsidiaries may be unable to recognize and perform properly date-sensitive functions involving certain
dates prior to and any date on or after December 31, 1999). Based upon the matters described in such report, Tenant believes that the "Year 2000 Problem" will not have a Material Adverse
Effect.
(v) Accuracy of Information Furnished. The Operative Documents and the other
certificates and written statements and information (excluding projections and analyst reports) prepared by and furnished by Tenant and its Subsidiaries to Landlord, Administrative Agent and the Rent
Purchasers in connection with the Operative Documents and the transactions contemplated thereby, taken as a whole, do not contain any untrue statement of a material fact and do not omit to state any
material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All projections furnished by Tenant and its Subsidiaries to Landlord,
Administrative Agent and the Rent Purchasers in connection with the Operative Documents and the transactions contemplated thereby have been based upon reasonable assumptions and represent, as of their
respective dates of presentations, Tenant's and its Subsidiaries' reasonable estimates of the future performance of Tenant and its Subsidiaries.
(w) Offer of Securities, etc. Neither the Tenant nor any person authorized to
act on the Tenant's behalf has, directly or indirectly, offered any interest in any Parcels or any other interest similar thereto (the sale or offer of which would be integrated with the sale or offer
of such interest in a Parcels), for sale to, or solicited any offer to acquire any of the same from, any person other than the Landlord and other "accredited investors" (as defined in Regulation D of
the Securities and Exchange Commission).
(x) Parcels. To the best of Tenant's knowledge, the Parcels will comply in all
material respects with all material requirements of law (including, without limitation, all zoning and land use laws and environmental laws) and insurance requirements.
(y) Flood Hazard Areas. To the best of Tenant's knowledge, except as otherwise
identified on the survey delivered to Landlord in connection with the Original Leases, no portion of any Parcel is located in an area identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency. If any Parcel is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then
flood insurance has been
obtained for such Parcel in accordance with Article IX and in accordance with the National Flood Insurance Act of 1968, as amended.
(z) Lease. Upon the execution and delivery of each Lease Supplement, (i) the
Tenant will have unconditionally accepted the Parcel covered by such Lease Supplement (provided that nothing
contained herein shall be deemed a waiver by the Tenant of any right of action against persons with respect to title to and condition of the Parcel on the Rent Commencement Date other than the
Landlord), (ii) no right of offset will exist with respect to any Base Rent or other sums payable under this Lease, and (iii) no Base Rent under this Lease will have been prepaid.
21.19 Capital Adequacy. If, after the date hereof, Landlord, Administrative
Agent or any Rent Purchaser shall have reasonably determined that the adoption after the date hereof of any Legal Requirement regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or any request or directive regarding capital adequacy, whether or not
having the force of law, of any such Governmental Authority, has or would have the effect of reducing the rate of return on the capital of Landlord or any Rent Purchaser as a consequence of its
obligations hereunder to a level below that which Landlord or any Rent Purchaser could have achieved but for such adoption, change or compliance (taking into consideration Landlord's and Rent
Purchasers' policies with respect to capital adequacy), then from time to time, within fifteen (15) days after written demand (which demand shall be accompanied by a statement setting forth the basis
for such demand) delivered to Tenant by Landlord, Administrative Agent or any Rent Purchaser, Tenant shall pay to Landlord, Administrative Agent and/ or such Rent Purchaser such additional amount or
amounts as will compensate Landlord, Administrative Agent and/or any Rent Purchaser for such reduction.
21.20 Affirmative Covenants of Tenant. Until the termination of this Lease and
the satisfaction in full by Tenant of all Obligations, Tenant will comply, and will cause compliance, with the following affirmative covenants, unless Landlord and Majority Rent Purchasers shall
otherwise consent in writing:
(a) Financial Statements, Reports, etc. Tenant shall furnish to Landlord and
Administrative Agent, with sufficient copies for each Rent Purchaser, the following, each in such form and such detail as Landlord, Administrative Agent or Majority Rent Purchasers shall reasonably
request:
(i) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Tenant, a copy of the Financial Statements of
Tenant and its Subsidiaries (prepared on a consolidated basis) for such quarter and for the fiscal year to date, certified by the chief executive officer or chief financial officer of Tenant to
present fairly in all material respects the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal
year-end audit adjustments);
(ii) As soon as available and in no event later than ninety (90) days after the close of each fiscal year of Tenant, (A) copies of the audited Financial
Statements of Tenant and its Subsidiaries (prepared on a consolidated basis) for such year, audited by KPMG LLP or other independent certified public accountants of recognized national standing
acceptable to Landlord and Administrative Agent, and (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to Landlord and Administrative Agent) and, to the extent
delivered and within ten (10) days after delivery, final management letters delivered by such accountants to the Audit Committee of the Board of Directors in connection with all such Financial
Statements;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and
(ii), a compliance certificate of the chief executive officer, chief financial officer or treasurer of Tenant (a "Compliance
Certificate") which (A) states that the representations and warranties of Tenant set forth in 21.18 and in the other
Operative Documents are true and correct in all material respects as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true as of
such date) and no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action Tenant proposes to take with
respect thereto; (B) sets forth, for the quarter, year or other applicable period covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the
calculation of the financial ratios and tests provided in Sections 21.21(f) and 21.22; (C) upon Landlord's or Administrative
Agent's request, attaches copies of any letters being provided routinely to requesting vendors or customers at such time describing the Year 2000 remediation efforts of Tenant and its Subsidiaries and
(D) lists all Subsidiaries of Tenant and identifies each such Subsidiary which is a Material Subsidiary;
(iv) As soon as available and in no event later than forty-five (45) days after the last day of each fiscal quarter of Tenant, a certificate of the chief financial
officer or treasurer of Tenant which sets forth the calculation of Tenant's Debt/EBITDA Ratio for the consecutive four-quarter period ending as of such date;
(v) As soon as possible and in no event later than five (5) Business Days after any officer of Tenant knows of the occurrence or existence of (A) any
Reportable Event under any Employee Benefit Plan or Multiemployer Plan; (B) any actual litigation, suits or claims against Tenant or any of its Subsidiaries which individually asserts a claim
for monetary damages payable by Tenant or its Subsidiaries of $10,000,000 or more; (C) any other event or condition which is reasonably likely to have a Material Adverse Effect; or
(D) any Default; the statement of the chief executive officer, chief financial officer or treasurer of Tenant setting forth details of such event, condition or Default and the action which
Tenant proposes to take with respect thereto;
(vi) As soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration
statements and reports filed by Tenant or any of its Subsidiaries with any securities exchange or the United States Securities and Exchange Commission (including, without limitation, all 10-Q, 10-K
and 8-K reports); (B) all reports, proxy statements and financial statements sent or made available by Tenant to its security holders; and (C) all press releases concerning any material
developments in the business of Tenant made available by Tenant to the public generally; and