SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 25, 1998
BECKMAN COULTER, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware
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(State or other Jurisdiction of Incorporation)
001-10109 95-104-0600
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(Commission File Number) (IRS Employer Identification No.)
4300 N. Harbor Boulevard, Fullerton, CA 92834-3100
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(Address of Principal Executive Offices) (Zip Code)
(714) 871-4848
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Registrant's Telephone Number
<PAGE>
INDEX
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Page
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Item 2. Acquisition or Disposition of Assets 2
Item 7. Financial Information and Exhibits 3
Signature 5
Exhibit Index
<PAGE>
Item 2 - Acquisition or Disposition of Assets
On June 25, 1998, Beckman Coulter, Inc. (the "Company")
completed a sale and leaseback of three of its properties and
Coulter Corporation, a wholly-owned subsidiary of the Company,
completed a sale and leaseback of a fourth property. The
following table identifies the properties sold and the buyer and
seller of each:
Property Buyer Seller
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Brea, CA NPDC-EY Brea Trust The Company
NPDC-RI Brea Trust
Chaska, MN Cardbeck Chaska Trust The Company
Miami, FL Cardbeck Miami Trust Coulter Corporation
Palo Alto, CA NPDC-EY Palo Alto Trust The Company
NPDC-RI Palo Alto Trust
The Palo Alto property is owned by Stanford University and leased to
the Company under a long term ground lease. The Company sold its interest
in the ground lease to the buyers.
The aggregate purchase proceeds for the four properties,
which were paid in cash at closing, totaled approximately
$244,000,000 before closing costs and transaction expenses. The
principal use of the proceeds was to reduce debt incurred in
financing the Company's 1997 acquisition of Coulter Corporation.
The purchasers of the properties are not affiliated with the
Company.
Concurrently with the sale of the properties, the Company
entered into long term leases for the three properties it sold and
Coulter Corporation entered into a long term ground lease for the
property it sold. Coulter's rental payments are guaranteed by the
Company. The initial term of each of the leases is twenty years,
with options to renew for up to an additional thirty years. Annual
rentals, are approximately $21,500,000. The Company expects
to pay the rents as they come due out of cash generated by
operations. The leases provide for the rents to be paid in
Japanese Yen.
The operations conducted at each of the properties consist
of administrative, research and development, and manufacturing
activities. The Company expects to continue conducting these
activities at the properties in substantially the same form as
prior to the sale.
<PAGE>
Item 7 - Financial Statements and Exhibits
Exhibit 2.1 - Purchase and Sale Agreement made as of June 25, 1998 among
Beckman Coulter, Inc., NPDC-EY Brea Trust, and NPDC-RI Brea Trust.
Exhibit 2.2 - Purchase and Sale Agreement made as of June 25, 1998 between
Beckman Coulter, Inc. and Cardbeck Chaska Trust.
Exhibit 2.3 - Purchase and Sale Agreement made as of June 25, 1998 between
Coulter Corporation and Cardbeck Miami Trust.
Exhibit 2.4 - Assignment and Sale Agreement made as of June 25, 1998 among
Beckman Coulter, Inc., NPDC-EY Palo Alto Trust, and NPDC-RI Palo
Alto Trust.
Exhibit 2.5 - Lease Agreement made as of June 25, 1998 among Beckman Coulter,
Inc., NPDC-EY Brea Trust, and NPDC-RI Brea Trust.
Exhibit 2.6 - Lease Agreement made as of June 25, 1998 between Beckman
Coulter, Inc. and Cardbeck Chaska Trust.
Exhibit 2.7 - Lease Agreement made as of June 25, 1998 between Coulter
Corporation and Cardbeck Miami Trust.
Exhibit 2.8 - Lease Agreement made as of June 25, 1998 among Beckman Coulter,
Inc., NPDC-EY Palo Alto Trust, and NPDC-RI Palo Alto Trust.
Exhibit 2.9 - Lease Modification Agreement made as of June 25, 1998 among
Beckman Coulter, Inc., NPDC-EY Brea Trust, and NPDC-RI Brea Trust.
Exhibit 2.10 - Lease Modification Agreement made as of June 25, 1998 between
Beckman Coulter, Inc. and Cardbeck Chaska Trust.
Exhibit 2.11 - Lease Modification Agreement made as of June 25, 1998 between
Coulter Corporation and Cardbeck Miami Trust.
Exhibit 2.12 - Lease Modification Agreement made as of June 25, 1998 among
Beckman Coulter, Inc., NPDC-EY Palo Alto Trust, and NPDC-RI Palo
Alto Trust.
Exhibit 2.13 - Guaranty of Lease, executed as of June 25, 1998, by Beckman
Coulter, Inc. for the benefit of Cardbeck Miami Trust.
Exhibit 99.1 - Press Release "Beckman Coulter Announces Debt Reduction
Milestone" dated July 9, 1998
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, as amended, the registrant has duly caused this report
to be signed on its behalf by the undersigned hereunto duly
authorized.
BECKMAN COULTER, INC.
By: JAMES T. GLOVER
James T. Glover
Vice President and Controller
Dated: July 9, 1998
<PAGE>
EXHIBIT INDEX
FORM 8-K
Exhibit
Number
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2.1 Purchase and Sale Agreement made as of June 25, 1998 among
Beckman Coulter, Inc., NPDC-EY Brea Trust, and NPDC-RI Brea Trust.
2.2 Purchase and Sale Agreement made as of June 25, 1998 between
Beckman Coulter, Inc. and Cardbeck Chaska Trust.
2.3 Purchase and Sale Agreement made as of June 25, 1998 between
Coulter Corporation and Cardbeck Miami Trust.
2.4 Assignment and Sale Agreement made as of June 25, 1998 among
Beckman Coulter, Inc., NPDC-EY Palo Alto Trust, and NPDC-RI Palo
Alto Trust.
2.5 Lease Agreement made as of June 25, 1998 among Beckman Coulter,
Inc., NPDC-EY Brea Trust, and NPDC-RI Brea Trust.
2.6 Lease Agreement made as of June 25, 1998 between Beckman
Coulter, Inc. and Cardbeck Chaska Trust.
2.7 Lease Agreement made as of June 25, 1998 between Coulter
Corporation and Cardbeck Miami Trust.
2.8 Lease Agreement made as of June 25, 1998 among Beckman Coulter,
Inc., NPDC-EY Palo Alto Trust, and NPDC-RI Palo Alto Trust.
2.9 Lease Modification Agreement made as of June 25, 1998 among
Beckman Coulter, Inc., NPDC-EY Brea Trust, and NPDC-RI Brea Trust.
2.10 Lease Modification Agreement made as of June 25, 1998 between
Beckman Coulter, Inc. and Cardbeck Chaska Trust.
2.11 Lease Modification Agreement made as of June 25, 1998 between
Coulter Corporation and Cardbeck Miami Trust.
2.12 Lease Modification Agreement made as of June 25, 1998 among
Beckman Coulter, Inc., NPDC-EY Palo Alto Trust, and NPDC-RI Palo
Alto Trust.
2.13 Guaranty of Lease, executed as of June 25, 1998, by Beckman
Coulter, Inc. for the benefit of Cardbeck Miami Trust.
99.1 Press Release "Beckman Coulter Announces Debt Reduction
Milestone" dated July 9, 1998
EXHIBIT 2.1
Execution Copy
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
BECKMAN COULTER, INC.,
AS SELLER,
AND
NPDC-EY BREA TRUST AND NPDC-RI BREA TRUST,
COLLECTIVELY AS PURCHASERS
JUNE 25, 1998
200 and 250 S. Kraemer Boulevard
Brea, California
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1. "Agreement" 1
1.2. "Documents" 1
1.3. "FF&E" 1
1.4. "Improvements" 2
1.5. "Intangible Property" 2
1.6. "Land" 2
1.7. "Lease" 2
1.8. "Premises" 2
1.9. "Property" 2
1.10. "Purchase Price" 2
1.11. "Seller's Knowledge" 2
1.12. "Title Company" 3
SECTION 2. PURCHASE AND SALE 3
2.1. Purchase and Sale 3
2.2 Exclusion of FF&E 3
SECTION 3. CLOSING 3
3.1 Closing 3
3.2 Purchase Price 3
SECTION 4. CONDITIONS TO PURCHASERS' OBLIGATION TO CLOSE 3
4.1 Closing Documents 4
SECTION 5. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE 5
5.1 Purchase Price 5
5.2 Closing Documents 5
SECTION 6. REPRESENTATION AND WARRANTIES OF SELLER 6
6.1 Status and Authority of Seller 6
6.2 Action of Seller 6
6.3 No Violations of Agreements 6
6.4 Litigation 6
6.5 Existing Agreements, Etc. 6
6.6 Disclosure 7
6.7 Utilities, Etc. 7
6.8 Compliance With Law 7
6.9 Taxes 7
6.10 Hazardous Substances 7
6.11 Insurance 8
6.12 Rights of Third Parties 8
6.13 Assessments 8
6.14 Rent Laws 8
6.15 Zoning Laws 8
6.16 Condition of Improvements 9
6.17 Tax Abatement 9
6.18 Reduction of Access 9
6.19 No Condemnation 9
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASERS 9
7.1 Status and Authority of Purchasers 9
7.2 Action of Purchasers 9
SECTION 8. APPORTIONMENTS 10
8.1 Real Property Apportionments 10
8.2 Transactional Expenses 10
8.3 Survival 10
SECTION 9. DEFAULT 11
9.1 Default by Seller 11
9.2 Default by Purchasers 11
9.3 Survival 11
SECTION 10. MISCELLANEOUS 11
10.1 Agreement to Indemnify 11
10.2 Brokerage Commissioners 12
10.3 Publicity 12
10.4 Notices 12
10.5 Waivers, Etc. 14
10.6 Change of Ownership Statements 14
10.7 Proprietary Rights 14
10.8 Assignment; Successors and Assigns 15
10.9 Severability 15
10.10 Counterparts, Etc. 15
10.11 Cardinal Capital Partners 15
10.12 Governing Law 15
10.13 Venue and Jurisdiction 16
10.14 Attorneys' Fees 16
10.15 Section and Other Headings 16
10.16 Nonliability of Officers 16
<PAGE>
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of June 25,
1998, by and between BECKMAN COULTER, INC., a Delaware
corporation ("Seller"), and NPDC-EY BREA TRUST, a Delaware
business trust ("NPDC-EY"), and NPDC-RI BREA TRUST, a Delaware
business trust ("NPDC-RI," collectively with NPDC-EY, the
"Purchasers").
RECITALS
WHEREAS, the Seller is the owner of the Property (all
capitalized terms used and not otherwise defined herein having
the meanings ascribed to such terms in Section 1);
WHEREAS, the Purchasers desire to purchase the Property, as
more fully set forth below; and
WHEREAS, the Seller is willing to sell the Property to the
Purchasers, subject to and upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby
acknowledged, the Seller and the Purchasers hereby agree as
follows:
SECTION 1.
DEFINITIONS
Capitalized terms used in this Agreement shall have the
meanings set forth below or in the Section of this Agreement
referred to below:
1.1. "Agreement" shall mean this Purchase and Sale
Agreement, including all Schedules and Exhibits hereto, as it and
they may be amended from time to time as herein provided.
1.2. "Documents" shall mean all books, records and
files relating to the operation, maintenance, management or
leasing of the Premises belonging to the Seller.
1.3. "FF&E" shall mean all appliances, trade fixtures,
appurtenances, equipment (including, without limitation, machine
racking, shelving, conveyor equipment and lifts), furniture,
inventory, furnishings and articles of tangible personal property
of every kind and nature whatsoever owned by the Seller and
located in or at, or used in connection with the operation of the
current tenant's business at the Premises, but specifically
excluding fixtures and equipment attached to the Premises and
used in connection with the operation of the Premises (e.g., HVAC
system equipment and fixtures), but excluding the property listed
on Schedule B attached hereto and made a part hereof.
1.4. "Improvements" shall mean all buildings, fixtures,
equipment, walls, fences, landscaping and other structures and
improvements (excluding the FF&E) situated on, affixed or
appurtenant to the Land.
1.5. "Intangible Property" shall mean all books,
records and files relating to the maintenance, management or
operation of the Premises belonging to the Seller; all
transferable or assignable permits, certificates of occupancy,
operating permits, sign permits, development rights and
approvals, certificates, licenses, warranties and guarantees,
rights to deposits, and all other transferable intangible
property, miscellaneous rights, benefits and privileges of any
kind or character belonging to the Seller with respect to the
Premises, in each case to the extent Seller's interest therein is
assignable or transferable but excluding any intangible property
owned or belonging to the Seller in connection with the FF&E and
exclusive of equipment leases, trade names, service marks, and
telephone exchange numbers.
1.6. "Land" shall mean the applicable tract, piece and
parcel of land, as more particularly described in Schedule A
attached hereto and made a part hereof, together with all
easements, rights and appurtenances relating thereto.
1.7. "Lease" shall mean the lease to be entered into
between NPDC-EY, as Landlord, NPDC-RI, as Remainder Landlord, and
the Seller, as Tenant, with respect to the Premises and shall
include the Lease Modification Agreement dated as of the date
hereof between the Purchaser, as landlord, and Seller, as tenant.
1.8. "Premises" shall mean, collectively, the Land and
the Improvements.
1.9. "Property" shall mean, collectively, the Premises,
Intangible Property and Documents.
1.10. "Purchase Price" shall have the meaning given
such term in Section 2.1.
1.11. "Seller's Knowledge" shall mean, for Seller,
the actual knowledge of, including any written notices received
by, any officers of the Seller.
1.12. "Title Company" shall mean First American
Title Insurance Company.
SECTION 2
PURCHASE AND SALE
2.1. Purchase and Sale. In consideration of the mutual
covenants herein contained, Purchasers hereby agree to purchase
from Seller, and Seller hereby agrees to sell to Purchasers, all
of Seller's right, title and interest in and to the Property for
$81,800,000 (the "Purchase Price"), subject to and in accordance
with the terms and conditions of this Agreement.
2.2. Exclusion of FF&E. The FF&E shall remain the
property of the Seller and is not included in the transaction
contemplated herein.
SECTION 3.
CLOSING
3.1. Closing. The closing of the sale and purchase of
the Property (the "Closing") shall take place at the offices of
Latham & Watkins, 633 W. Fifth Street, Suite 4000, Los Angeles,
California at 10:00 AM, local time, on June 25, 1998, or at such
other place, at such other time and on such other date as shall
be mutually agreed upon by the Seller and Purchasers (the actual
date of the Closing being herein referred to as the "Closing
Date").
3.2. Purchase Price. The Purchase Price shall be
payable by Purchasers to the Seller in the amount set forth in
Section 2.1, and shall be payable on the Closing Date by wire
transfer of immediately available funds to the account or
accounts designated by the Seller by notice to Purchasers prior
to the Closing Date.
SECTION 4.
CONDITIONS TO PURCHASERS' OBLIGATION TO CLOSE
The obligation of Purchasers to acquire the Property on
the Closing Date shall be subject to the satisfaction of the
following conditions on and as of the Closing Date:
4.1. Closing Documents. Seller shall have delivered to
Purchasers or their designees:
(a) Four Grant Deeds, with respect to the
Premises, in proper statutory form for recording, duly executed
and acknowledged by Seller, conveying title to the Premises, in
form and substance satisfactory to Purchasers and to the Title
Company;
(b) Four Bills of Sale, in form and substance
reasonably satisfactory to Seller and Purchasers, duly executed
and acknowledged by Seller, with respect to all of the Seller's
right, title and interest in, to and under the Documents, and the
Intangible Property, and any items of personal property included
on Schedule B to be conveyed to Purchasers in accordance with the
terms of this Agreement;
(c) A non-foreign affidavit with respect to
Seller as required by Internal Revenue Code Section 1445(b)(2)
and the regulations issued thereunder, for the Premises conveyed;
(d) To the extent the same are in the Seller's
possession, copies of agreements pertaining to the Property;
(e) The Lease, duly executed by Seller;
(f) An opinion of Seller's counsel addressed to
Purchasers and Purchasers' lender that the Lease (i) has been
duly executed and delivered by Seller and (ii) is enforceable in
accordance with its terms under the laws of the State of
California, except for bankruptcy, equitable principles and other
customary exceptions thereto;
(g) A certificate of Seller's Secretary or
Assistant Secretary evidencing that those officers acting for
Seller have full authority to consummate the transactions
contemplated by this Agreement, including the execution of the
Lease. Such evidence shall recite resolutions of the board of
directors of Seller;
(h) An Owner's Policy of Title Insurance (a
"Title Policy") on the current ALTA form with a so-called
"extended coverage" endorsement issued through the Title Company
and insuring, for an amount equal to the Purchase Price, that
good and marketable fee simple title to the Premises is vested in
Purchasers;
(i) An as-built survey of the Premises, dated
within ninety (90) days of the Closing Date and certified to
Purchasers, Purchasers' lender and the Title Company, which has
been prepared in accordance with the "Minimum Standard Detail
Requirements for Land Title Surveys" jointly established by ALTA
and ACSM;
(j) Unless required to be posted at the
Improvements, the original, or a certified copy of the current
certificate of occupancy or its legal equivalent for the
Property, with all amendments thereto (unless the municipality
where the Improvements are located does not issue such
certificate or its legal equivalent); and
(k) Such other conveyance documents,
certificates, deeds, affidavits and other instructions as
Purchasers or the Title Company may reasonably require.
SECTION 5.
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
The obligation of the Seller to convey the Property on
the Closing Date to Purchasers is subject to the satisfaction of
the following conditions precedent on and as of the Closing Date:
5.1. Purchase Price. Purchasers shall deliver to the
Seller the Purchase Price as provided in Section 3.2.
5.2. Closing Documents. Purchasers shall have
delivered to Seller:
(a) The Lease, duly executed by Purchasers;
(b) An opinion of Purchasers' counsel addressed
to Seller that Purchasers have the requisite power and authority
and have taken all necessary action to enter into and perform
their obligations under this Agreement and to consummate the
transactions contemplated hereby;
(c) An opinion of Purchasers' counsel addressed
to Seller that the Qualified Exchange Agreement (as defined in
the Lease Modification Agreement) (i) has been duly executed and
delivered by Purchasers, and (ii) is enforceable in accordance of
the laws of the State of New York, except for bankruptcy,
equitable principles and other customary exceptions thereto.
(d) A Certification from Purchaser as to the
identities and addresses of all beneficial owners of the
Purchaser; and
(e) A duly executed SPE Covenant and Pledge
Agreement from each beneficial owner of Purchaser.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF SELLER
To induce Purchasers to enter into this Agreement,
Seller represents and warrants to Purchasers as of the Closing
Date as follows:
6.1. Status and Authority of Seller. Seller is a
corporation duly organized, validly existing and in corporate
good standing under the laws of the State of Delaware, and has
all requisite power and authority under the laws of the State of
Delaware and its respective charter documents to enter into and
perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. Seller has duly qualified
to transact business in the jurisdiction where the Property is
located.
6.2. Action of Seller. Seller has taken all necessary
action to authorize the execution, delivery and performance of
this Agreement, and upon the execution and delivery of any
document to be delivered by Seller on or prior to the Closing
Date, such document shall constitute the valid and binding
obligation and agreement of Seller, enforceable against Seller in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors.
6.3. No Violations of Agreements. Neither the
execution of this Agreement, nor the consummation by Seller of
the transactions contemplated by this Agreement will (a) result
in a breach of the terms, conditions or provisions of, or
constitute a default under, or result in a termination of, any
agreement or instrument to which Seller is a party, (b) violate
any restriction to which Seller is subject, (c) constitute a
violation of any applicable code, resolution, law, statute,
regulation, ordinance, judgment, rule, decree, or order, or (d)
except as expressly contemplated hereby, result in the creation
of any lien, charge or encumbrance upon the Property. Seller has
received no notice of and, to Seller's Knowledge, is not in
default under any agreement or instrument where the liability
thereunder might adversely affect Seller's ability to perform its
obligations under this Agreement.
6.4. Litigation. Seller has received no written notice
of and, to Seller's Knowledge, no action or proceeding is pending
or threatened and no investigation looking toward such an action
has begun, which (a) questions the validity of this Agreement or
any action taken or to be taken pursuant hereto, or (b) will
result in any material adverse change in the business, operation,
affairs or condition of the Property, or (c) result in or subject
the Property to a material liability, or (d) involves
condemnation or eminent domain proceedings against any part of
the Property.
6.5. Existing Agreements, Etc. To Seller's Knowledge,
other than the agreements provided to Purchasers prior to the
Closing Date, there are no existing material agreements affecting
the Property which will be binding on Purchasers subsequent to
the Closing Date.
6.6. Disclosure. To Seller's Knowledge, there is no
fact or condition which materially and adversely affects the
condition of the Property which has not been set forth in this
Agreement, or in the other documents, certificates or statements
furnished to Purchasers in connection with the transactions
contemplated hereby.
6.7. Utilities, Etc. To Seller's Knowledge, all
utilities and services necessary for the current use and
operation of the Premises (including, without limitation, road
access, gas, water, electricity and telephone) are available
thereto and are of sufficient capacity to meet adequately all
needs and requirements necessary for the current use and
operation of the Premises. To Seller's Knowledge, no fact,
condition or proceeding exists which would result in the
termination or impairment of the furnishing of such utilities to
the Premises.
6.8. Compliance With Law. To Seller's Knowledge, the
Premises and the use and operation thereof do not violate any
material federal, state, municipal and other governmental
statutes, ordinances, by-laws, rules, regulations or any other
legal requirements, including, without limitation, those relating
to construction, occupancy, zoning, adequacy or parking,
environmental protection, occupational health and safety and fire
safety applicable thereto. There are presently in effect all
material licenses, permits and other authorizations necessary for
the current use, occupancy and operation of the Premises. Seller
has not received written notice of any threatened request,
application, proceeding, plan, study, or accord which would
materially adversely affect the present use or zoning of the
Property or which would modify or realign any adjacent street or
highway.
6.9. Taxes. To Seller's Knowledge, other than the
amounts disclosed by tax bills, no taxes or special assessments
of any kind (special, bond or otherwise) are or have been levied
with respect to the Property, or any portion thereof, which are
outstanding or unpaid, other than amounts not yet due and payable
or, if due and payable, not yet delinquent.
6.10. Hazardous Substances. Except as may be
disclosed in any environmental report and related information
(the "Report," as listed on Schedule C) delivered by Seller to
Purchasers prior to the date hereof, to Seller's Knowledge, the
Property is free of any "hazardous substance" (as that term is
defined in the Comprehensive Environmental Response,
Compensation, and Liability Act, and the rules and regulations
promulgated pursuant thereto, as from time to time amended and
any other applicable federal, state or local law, collectively
"laws"), contaminant, oil, radioactive or other materials the
removal of which is required or the maintenance of which is
prohibited by any local, state or federal agency, authority or
governmental unit (such hazardous substances the removal of which
is required and/or the maintenance of which is prohibited being
hereinafter referred to as "Dangerous Substances"). Seller does
not now, nor has it or any of its affiliated entities ever
disposed of any Dangerous Substances on the Property and, except
as disclosed in the Report, to Seller's Knowledge, the Property
was never used for such purpose, and the Property contains no
Dangerous Substances in violation of applicable laws. Except as
disclosed in the Report, to Seller's Knowledge, there are no
underground storage tanks located on the Property in violation of
applicable laws. Neither Seller nor any current tenant nor
occupant of the Property has dumped or landfilled any garbage or
refuse on the Property, and to Seller's Knowledge the Property
was never used for such purpose. Except as may be shown on
surveys of the Property delivered to Purchasers at Closing, to
Seller's Knowledge, the Property is not located within an area
that has been designated by the Federal Insurance Administration,
the Army Corps of Engineers, or any other governmental agency or
body as being subject to special flood areas. Seller hereby
indemnifies and holds Purchasers harmless for and against any
loss, liability, claim or expense (including, without limitation,
cleanup, engineering and attorney's fees and expenses and court
costs) that Purchasers may incur by reason of (i) the Property
containing any Dangerous Substances on or prior to the Closing
Date and (ii) the representation contained in this subsection
being false.
6.11. Insurance. Seller has received no written
notice from any insurance carrier of defects or inadequacies in
the Property which, if uncorrected, would result in a termination
of insurance coverage or an increase in the premium charged
therefor.
6.12. Rights of Third Parties. Except as
previously disclosed to Purchasers or as contained in this
Agreement, the Property is not subject to any agreements of sale,
or any options, or other rights of third parties to acquire any
interest therein.
6.13. Assessments. Seller has received no notice
of and to Seller's Knowledge there is no ordinance pending
authorizing improvements, the cost of which might be assessed
against Purchasers or the Property.
6.14. Rent Laws. Seller has received no notice of
and to Seller's Knowledge there are no rent control or rent
stabilization laws or ordinances which restrict or control the
amount of rent which may be charged for the leasing of the
Premises.
6.15. Zoning Laws. To Seller's Knowledge, the
Property is not in violation of any applicable building and
zoning laws, rules, codes or regulations ("Zoning Laws"). To
Seller's Knowledge, the conformity of the Property (or the use
thereof for its intended purposes) with the Zoning Laws is not
based, in whole or in part, upon the Improvements or the current
uses thereof, being a so-called "non-conforming" use or similar
exemption.
6.16. Condition of Improvements. To Seller's
Knowledge, the Improvements, including the roofs and foundations
thereof, and all fixtures, machinery and equipment attached or
appurtenant to the Improvements and/or used in the operation
thereof, including, but not limited to, the heating, air
conditioning, ventilating, electrical, lighting, elevator and
plumbing systems thereof, located or used in connection with such
Improvements, are in satisfactory and usable condition, and there
are no structural or other material defects therein or the
necessity for any material repairs or replacements thereof.
6.17. Tax Abatement. Except as previously
disclosed to Purchasers, there are no tax abatements, exemptions
or special assessments affecting the Property.
6.18. Reduction of Access. Seller has no knowledge
of any fact or condition existing which would result or could
result in the termination or reduction of the current access from
the Property to existing thoroughfares, or any reduction in or to
sewer or other utility services presently serving the Premises.
6.19. No Condemnation. To Seller's Knowledge, no
condemnation proceedings, eminent domain proceedings or similar
actions or proceedings are now pending, or threatened against the
Premises or any portion thereof.
SECTION 7.
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
To induce the Seller to enter in this Agreement,
Purchasers represent and warrant to the Seller as follows:
7.1. Status and Authority of Purchasers. Purchasers
are business trusts duly organized and validly existing under the
laws of the State of Delaware and have all requisite power and
authority under the laws of such state and under their charter
documents to enter into and perform their obligations under this
Agreement and to consummate the transactions contemplated hereby.
7.2. Action of Purchasers. Purchasers have taken all
necessary action to authorize the execution, delivery and
performance of this Agreement, and upon the execution and
delivery of any document to be delivered by Purchasers on or
prior to any Closing Date such document (other than any Qualified
Exchange Agreement (as defined in the Lease Modification
Agreement)) shall constitute the valid and binding obligation and
agreement of Purchasers, enforceable against Purchasers in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors.
SECTION 8.
APPORTIONMENTS
8.1. Real Property Apportionments. There shall be no
prorations or apportionments hereunder insofar as the Seller
shall be required to pay all items usually prorated in
transactions of the type described herein, including all real
property taxes applicable to any period prior to the Closing
Date.
8.2. Transaction Expenses. The Seller will pay all
fees and expenses associated with the transaction contemplated
hereby, including but not limited to, fees and expenses
associated with the negotiation and preparation of documents,
fees of outside legal counsel for the Seller, but not the
Purchasers, the advisory fees and expenses of Citicorp Real
Estate, Inc., appraisal fees, recording and survey costs,
transfer taxes (including, without limitation, any transfer taxes
triggered or required by recording a Memorandum of Lease) and
title insurance premiums and other title charges. Purchasers
shall bear the fees and expenses of outside legal counsel and
other outside consultants and advisors for Purchasers, including
the costs of such in connection with the negotiation and
preparation of the documents as well as any evaluative surveys
and reports ordered and obtained by Purchasers.
8.3. Survival. The obligations of the parties under
this Section 8 shall survive the Closing.
SECTION 9.
DEFAULT
9.1. Default by Seller. Seller shall indemnify
Purchasers against, and hold Purchasers harmless from, any and
all loss, damage, liability or expense, including court costs and
reasonable attorneys' fees, which Purchasers may incur or sustain
by reason of or arising from (a) any misrepresentation made by or
on behalf of Seller contained herein or in any certificate or
other instrument furnished or to be furnished by Seller
hereunder, or (b) any breach of Seller's warranties, covenants or
representations set forth in Section 6 hereof.
9.2. Default by Purchasers. Purchasers shall indemnify
Seller against and hold Seller harmless from any and all loss,
damage, liability or expense, including court costs and
reasonable attorneys' fees, which Seller may incur or sustain by
reason of, or arising from, any misrepresentation made by
Purchasers contained herein.
9.3 Survival. The provisions of this Section 9 shall
survive the Closing for a period of two (2) years.
SECTION 10.
MISCELLANEOUS
10.1. Agreement to Indemnify.
(a) Subject to any express provisions of this
Agreement to the contrary, Seller shall indemnify and hold
harmless Purchasers from and against any and all obligations,
claims, losses, damages, liabilities, and expenses (including,
without limitation, reasonable attorneys' and accountants' fees
and disbursements) arising out of events, contractual
obligations, acts or omissions of the Seller that occurred in
connection with the ownership or operation of the Property prior
to the Closing, or any damage to property of others or injury to
or death of any person or any claims for any debts or obligations
occurring on or about or in connection with the Property or any
portion thereof at any time or times prior to the Closing.
(b) Whenever any party shall learn through the
filing of a claim or the commencement of a proceeding or
otherwise of the existence of any liability for which the other
party is or may be responsible under this Agreement, the party
learning of such liability shall notify the other party promptly
and furnish such copies of documents (and make originals thereof
available) and such other information as such party may have that
may be used or useful in the defense of such claims and shall
afford said other party full opportunity to defend the same in
the name of such party and shall generally cooperate with said
other party in the defense of any such claim.
(c) The provisions of this Section 10.1 shall
survive the Closing and the termination of this Agreement.
10.2. Brokerage Commissions. Each of the parties
hereto represents to the other parties that, except for Citicorp
Real Estate, Inc., it dealt with no broker, finder or like agent
in connection with this Agreement or the transactions
contemplated hereby, and that it reasonably believes that there
is no basis for any other person or entity to claim a commission
or other compensation for bringing about this Agreement or the
transactions contemplated hereby. Seller shall indemnify and
hold harmless Purchasers and their respective legal
representatives, heirs, successors and assigns from and against
any loss, liability or expense, including, reasonable attorneys'
fees, arising out of any claim or claims for commissions or other
compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder or
like agent, if such claim or claims are based in whole or in part
on dealings with Seller. Purchasers shall indemnify and hold
harmless Seller and each of its legal representatives, heirs,
successors and assigns from and against any loss, liability or
expense, including, reasonable attorneys' fees, arising out of
any claim or claims for commissions or other compensation for
bringing about this Agreement or the transactions contemplated
hereby made by any broker, finder or like agent, if such claim or
claims are based in whole or in part on dealings with Purchasers,
other than any such claim made by Citicorp Real Estate, Inc.
Seller shall pay the commission of Citicorp Real Estate, Inc.
pursuant to a separate agreement with Citicorp Real Estate, Inc.
Nothing contained in this section shall be deemed to create any
rights in any third party. The provisions of this Section 10.2
shall survive the Closing and any termination of this Agreement.
10.3. Publicity. Except as required by law or
contractual obligations, the parties agree that no party shall,
with respect to this Agreement and the transactions contemplated
hereby, contact or conduct negotiations with public officials,
make any public pronouncements, or otherwise furnish information
regarding this Agreement or the transactions contemplated to any
third party without the consent of the other party, which consent
shall not be unreasonably withheld; provided, however, that the
parties may issue press releases, enter into discussions with
rating agencies, and respond to inquiries from investors. No
party, or its employees shall trade in the securities of any
parent or affiliate of Seller or of Purchasers until a public
announcement of the transactions contemplated by this Agreement
has been made. No party shall record this Agreement or any
notice thereof.
10.4. Notices.
(a) All notices, demands, requests, consents,
approvals, offers, statements and other instruments or
communications required or permitted to be given pursuant to the
provisions of this Agreement (collectively "Notice" or "Notices")
shall be in writing and shall be deemed to have been given for
all purposes (i) three (3) days after having been sent by United
States mail, by registered or certified mail, return receipt
requested, postage prepaid, addressed to the other party at its
address as stated below, (ii) one (1) day after having been sent
by Federal Express or other nationally recognized air courier
service, to the Addresses stated below or (iii) one (1) day after
having been transmitted via facsimile, provided that a conforming
signed original is mailed to the party to receive the notice on
the date it is transmitted:
If to Seller
Office of General Counsel
Beckman Coulter, Inc.
4300 N. Harbor Boulevard
Fullerton, California 92834-3100
Facsimile No.: (714) 773-7936
with copy to:
Latham & Watkins
633 West 5th Street
Suite 4000
Los Angeles, California 90071
Attention: Martha B. Jordan, Esq.
Facsimile No.: (213) 891-8763
If to Purchasers
NPDC-EY BREA TRUST/NPDC-RI BREA TRUST
c/o Cardinal Capital Partners, Inc.
8411 Preston Road
Dallas, Texas 75225
Facsimile No.: (214) 696-9845
with copy to:
Goldfarb & Fleece
345 Park Avenue
New York, New York 10154
Attention: Steven B. Shore, Esq.
Facsimile No.: (212) 751-3738
(b) Upon not less than fifteen (15) days written
notice to the other party, Seller or Purchasers shall each have
the right to (i) add a copy party and a copy address to those
specified above, (ii) change its address specified above, and
(iii) change its copy addressee or copy address specified above
or specified in a notice delivered pursuant to subparagraph
(a) above.
10.5. Waivers, Etc. Any waiver of any term or
condition of this Agreement, or of the breach of any covenant,
representation or warranty contained herein, in any one instance,
shall not operate as or be deemed to be or construed as a further
or continuing waiver of any other breach of such term, condition,
covenant, representation or warranty or any other term,
condition, covenant, representation or warranty, nor shall any
failure at any time or times to enforce or require performance of
any provision hereof operate as a waiver of or affect in any
manner such party's right at a later time to enforce or require
performance of such provision or any other provision hereof. This
Agreement may not be amended, nor shall any waiver, change,
modification, consent or discharge be effected, except by an
instrument in writing executed by or on behalf of the party
against whom enforcement of any amendment, waiver, change,
modification, consent or discharge is sought.
10.6. Change of Ownership Statements. Prior to
filing any change of ownership statements, if any, with any
governmental authority or agency in connection with the sale
pursuant to this Agreement, Purchasers shall provide Seller with
copies of such statements. Notwithstanding the provisions of
Section 10.4, if Landlord provides such copies by facsimile, same
shall be deemed to have been given on the date transmitted.
10.7. Proprietary Rights. This Agreement does not
grant to Purchasers any right, title, or interest in or to
Seller's proprietary rights or information, including, but not
limited to Seller's name, trade marks, trade names, trade dress,
trade symbols, copyrights, patents, patent applications,
inventions, trade secrets, product names or designations, model
names or numbers, processes, models, prototypes, designs, or
formulas and Seller specifically retains the right to remove any
personal property or signage which includes any such proprietary
rights or information and may remove any such proprietary rights
from the property.
10.8. Assignment; Successors and Assigns. This
Agreement and all rights and obligations hereunder shall not be
assignable by any party without the written consent of the other
parties. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns. This
Agreement is not intended and shall not be construed to create
any rights in or to be enforceable in any part by any other
persons.
10.9. Severability. If any provision of this
Agreement shall be held or deemed to be, or shall in fact be,
invalid, inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all
jurisdictions or in all cases, because of the conflict of any
provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have
the effect of rendering the provision or provisions in question
invalid, inoperative or unenforceable in any other jurisdiction
or in any other case or circumstance or of rendering any other
provision or provisions herein contained invalid, inoperative or
unenforceable to the extent that such other provisions are not
themselves actually in conflict with such constitution, statute
or rule of public policy, but this Agreement shall be reformed
and construed in any such jurisdiction or case as if such
invalid, inoperative or unenforceable provision had never been
contained herein and such provision reformed so that it would be
valid, operative and enforceable to the maximum extent permitted
in such jurisdiction or in such case.
10.10. Counterparts, Etc. This Agreement may be
executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement constitutes the
entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede and take the place of
any other instruments purporting to be an agreement of the
parties hereto relating to the subject matter hereof. This
Agreement may not be amended or modified in any respect other
than by the written agreement of all of the parties hereto.
10.11. Cardinal Capital Partners. For all purposes
under Section 6 of this Agreement, disclosure to Cardinal Capital
Partners, Inc., a Texas corporation, shall be deemed to be a
disclosure to Purchasers.
10.12. Governing Law. This Agreement shall be
interpreted, construed, applied and enforced in accordance with
the laws of the State of California, regardless of (i) where this
Agreement is executed or delivered; or (ii) where any payment or
other performance required by this Agreement is made or required
to be made; or (iii) where any breach of any provision of this
Agreement occurs, or any cause of action otherwise accrues; or
(iv) where any action or other proceeding is instituted or
pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or
domestication of any party; or (vi) whether the laws of the forum
jurisdiction otherwise would apply the laws of a jurisdiction
other than the State of California; or (vii) any combination of
the foregoing.
10.13. Venue and Jurisdiction. To the maximum extent
permitted by applicable law, any action to enforce, arising out
of, or relating in any way to, any of the provisions of this
Agreement may be brought and prosecuted in such court or courts
located in the State of California as is provided by law; and the
parties consent to the jurisdiction of said court or courts
located in the State of California and to service of process by
registered mail, return receipt requested, or by any other manner
provided by law.
10.14. Attorneys' Fees. If any lawsuit or arbitration
or other legal proceeding arises in connection with the
interpretation or enforcement of this Agreement, the prevailing
party therein shall be entitled to receive from the other party
the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in connection therewith, in preparation
therefor and on appeal therefrom, which amounts shall be included
in any judgment therein.
10.15. Section and Other Headings. The headings
contained in this Agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation of this
Agreement.
10.16. Nonliability of Officers. NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF SELLER OR OF PURCHASERS SHALL
BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, SELLER OR PURCHASERS. ALL
PERSONS DEALING WITH SELLER OR PURCHASERS, IN ANY WAY, SHALL LOOK
ONLY TO THE ASSETS OF SELLER OR PURCHASERS, AS APPLICABLE, FOR
THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed as a sealed instrument as of the date
first above written.
SELLER:
BECKMAN COULTER, INC.
By: JAMES T. GLOVER
Its: Vice President and Controller
PURCHASERS:
NPDC-EY BREA TRUST
By: M. SCOTT KIPP
Its: Administrative Trustee
NPDC-RI BREA TRUST
By: M. SCOTT KIPP
Its: Administrative Trustee
<PAGE>
Schedule A - LEGAL DESCRIPTION OF THE LAND
Schedule B - LIST OF FF&E BEING TRANSFERRED
Schedule C - LIST OF ENVIRONMENTAL REPORTS
<PAGE>
EXHIBIT 2.2
Execution Copy
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
BECKMAN COULTER, INC.,
AS SELLER,
AND
CARDBECK CHASKA TRUST,
AS PURCHASER
JUNE 25, 1998
317 and 1000 Lake Hazeltine Drive
Chaska, Minnesota
<PAGE>
TABLE OF CONTENTS
SECTION 1. DEFINITIONS
1.1. "Agreement"
1.2. "Documents"
1.3. "FF&E"
1.4. "Improvements"
1.5. "Intangible Property"
1.6. "Land"
1.7. "Lease"
1.8. "Premises"
1.9. "Property"
1.10. "Purchase Price"
1.11. "Seller's Knowledge"
1.12. "Title Company"
SECTION 2. PURCHASE AND SALE
2.1. Purchase and Sale
2.2 Exclusion of FF&E
SECTION 3. CLOSING
3.1 Closing
3.2 Purchase Price
SECTION 4. CONDITIONS TO PURCHASERS' OBLIGATION TO CLOSE
4.1 Closing Documents
SECTION 5. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
5.1 Purchase Price
5.2 Closing Documents
SECTION 6. REPRESENTATION AND WARRANTIES OF SELLER
6.1 Status and Authority of Seller
6.2 Action of Seller
6.3 No Violations of Agreements
6.4 Litigation
6.5 Existing Agreements, Etc.
6.6 Disclosure
6.7 Utilities, Etc.
6.8 Compliance With Law
6.9 Taxes
6.10 Hazardous substances
6.11 Insurance
6.12 Rights of Third Parties
6.13 Assessments
6.14 Rent Laws
6.15 Zoning Laws
6.16 Condition of Improvements
6.17 Tax Abatement
6.18 Reduction of Access
6.19 No Condemnation
6.20 Operating Permits
6.21 Well and Sewage Treatment System Disclosure
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASERS
7.1 Status and Authority of Purchaser
7.2 Action of Purchaser
SECTION 8. APPORTIONMENTS
8.1 Real Property Apportionments
8.2 Transaction Expenses
8.3 Survival
SECTION 9. DEFAULT
9.1 Default by Seller
9.2 Default by Purchaser
9.3 Survival
SECTION 10. MISCELLANEOUS
10.1 Agreement to Indemnify
10.2 Brokerage Commissions
10.3 Publicity
10.4 Notices
10.5 Waivers, Etc.
10.6 Change of Ownership Statements
10.7 Proprietary Rights
10.8 Assignment; Successors and Assigns
10.9 Severability
10.10 Counterparts, Etc.
10.11 Cardinal Capital Partners
10.12 Governing Law
10.13 Venue and Jurisdiction
10.14 Attorneys' Fees
10.15 Section and Other Headings
10.16 Nonliability of Officers
<PAGE>
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of June 25,
1998, by and between BECKMAN COULTER, INC., a Delaware
corporation ("Seller"), and CARDBECK CHASKA TRUST, a Delaware
business trust ("Purchaser").
RECITALS
WHEREAS, the Seller is the owner of the Property (all
capitalized terms used and not otherwise defined herein having
the meanings ascribed to such terms in Section 1);
WHEREAS, the Purchaser desires to purchase the Property, as
more fully set forth below; and
WHEREAS, the Seller is willing to sell the Property to the
Purchaser, subject to and upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby
acknowledged, the Seller and the Purchaser hereby agree as
follows:
SECTION 1.
DEFINITIONS
Capitalized terms used in this Agreement shall have the
meanings set forth below or in the Section of this Agreement
referred to below:
1.1. "Agreement" shall mean this Purchase and Sale
Agreement, including all Schedules and Exhibits hereto, as it and
they may be amended from time to time as herein provided.
1.2. "Documents" shall mean all books, records and
files relating to the operation, maintenance, management or
leasing of the Premises belonging to the Seller.
1.3. "FF&E" shall mean all appliances, trade fixtures,
appurtenances, equipment (including, without limitation, machine
racking, shelving, conveyor equipment and lifts), furniture,
inventory, furnishings and articles of tangible personal property
of every kind and nature whatsoever owned by the Seller and
located in or at, or used in connection with the operation of the
current tenant's business at the Premises, but specifically
excluding fixtures and equipment attached to the Premises and
used in connection with the operation of the Premises (e.g., HVAC
system equipment and fixtures, but excluding the property listed
on Schedule B attached hereto and made a part hereof).
1.4. "Improvements" shall mean all buildings, fixtures,
equipment, walls, fences, landscaping and other structures and
improvements (excluding the FF&E) situated on, affixed or
appurtenant to the Land.
1.5. "Intangible Property" shall mean all books,
records and files relating to the maintenance, management or
operation of the Premises belonging to the Seller; all
transferable or assignable permits, certificates of occupancy,
operating permits, sign permits, development rights and
approvals, certificates, licenses, warranties and guarantees,
rights to deposits, and all other transferable intangible
property, miscellaneous rights, benefits and privileges of any
kind or character belonging to the Seller with respect to the
Premises, in each case to the extent Seller's interest therein is
assignable or transferable but excluding any intangible property
owned or belonging to the Seller in connection with the FF&E and
exclusive of equipment leases, trade names, service marks, and
telephone exchange numbers.
1.6. "Land" shall mean the applicable tract, piece and
parcel of land, as more particularly described in Schedule A
attached hereto and made a part hereof, together with all
easements, rights and appurtenances relating thereto.
1.7. "Lease" shall mean the lease to be entered into
between the Purchaser, as landlord, and the Seller, as tenant,
with respect to the Premises and shall include the Lease
Modification Agreement dated as of the date hereof between the
Purchaser, as landlord, and Seller, as tenant.
1.8. "Premises" shall mean, collectively, the Land and
the Improvements.
1.9. "Property" shall mean, collectively, the Premises,
Intangible Property and Documents.
1.10. "Purchase Price" shall have the meaning given
such term in Section 2.1.
1.11. "Seller's Knowledge" shall mean, for Seller,
the actual knowledge of, including any written notices received
by, any officers of the Seller.
1.12. "Title Company" shall mean First American
Title Insurance Company.
SECTION 2.
PURCHASE AND SALE
2.1. Purchase and Sale. In consideration of the mutual
covenants herein contained, Purchaser hereby agrees to purchase
from Seller, and Seller hereby agrees to sell to Purchaser, all
of Seller's right, title and interest in and to the Property for
$15,000,000 (the "Purchase Price"), subject to and in accordance
with the terms and conditions of this Agreement. Seller shall
convey and Purchaser shall accept fee simple title to the
Property in accordance with the terms of this Agreement, subject
only to the matters ("Permitted Exceptions") set forth in the
Title Policy as defined in Section 4.1(h).
2.2. Exclusion of FF&E. The FF&E shall remain the
property of the Seller and is not included in the transaction
contemplated herein.
SECTION 3.
SECTION CLOSING
3.1. Closing. The closing of the sale and purchase of
the Property (the "Closing") shall take place at the offices of
Latham & Watkins, 633 W. Fifth Street, Suite 4000, Los Angeles,
California at 10:00 AM, local time, on June 25, 1998, or at such
other place, at such other time and on such other date as shall
be mutually agreed upon by the Seller and Purchaser (the actual
date of the Closing being herein referred to as the "Closing
Date").
3.2. Purchase Price. The Purchase Price shall be
payable by Purchaser to the Seller in the amount set forth in
Section 2.1, and shall be payable on the Closing Date by wire
transfer of immediately available funds to the account or
accounts designated by the Seller by notice to Purchaser prior to
the Closing Date.
SECTION 4.
CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE
The obligation of Purchaser to acquire the Property on
the Closing Date shall be subject to the satisfaction of the
following conditions on and as of the Closing Date:
4.1 Closing Documents. Seller shall have delivered to
Purchaser or its designees:
(a) A deed, with respect to the Premises, in
proper statutory form for recording, duly executed and
acknowledged by Seller, conveying title to the Premises, in form
and substance satisfactory to Purchaser and to the Title Company;
(b) A bill of sale, in form and substance
reasonably satisfactory to Seller and Purchaser, duly executed
and acknowledged by Seller, with respect to all of the Seller's
right, title and interest in, to and under the Documents, and the
Intangible Property, and any items of personal property included
on Schedule B to be conveyed to Purchaser in accordance with the
terms of this Agreement;
(c) A non-foreign affidavit with respect to
Seller as required by Internal Revenue Code Section 1445(b)(2)
and the regulations issued thereunder, for the Premises conveyed;
(d) To the extent the same are in the Seller's
possession, copies of agreements pertaining to the Property;
(e) The Lease, duly executed by Seller;
(f) An opinion of Seller's counsel addressed to
Purchaser and Purchaser's lender that the Lease (i) has been duly
executed and delivered by Seller and (ii) is enforceable in
accordance with its terms under the laws of the State of
Minnesota, except for bankruptcy, equitable principles and other
customary exceptions thereto;
(g) A certificate of Seller's Secretary or
Assistant Secretary evidencing that those officers acting for
Seller have full authority to consummate the transactions
contemplated by this Agreement, including the execution of the
Lease. Such evidence shall recite resolutions of the board of
directors of Seller;
(h) An Owner's Policy of Title Insurance (a
"Title Policy") on the current ALTA form with a so-called
"extended coverage" endorsement issued through the Title Company
and insuring, for an amount equal to the Purchase Price, that
good and marketable fee simple title to the Premises is vested in
Purchaser;
(i) An as-built survey of the Premises, dated
within ninety (90) days of the Closing Date and certified to
Purchaser, Purchaser's lender and the Title Company, which has
been prepared in accordance with the "Minimum Standard Detail
Requirements for Land Title Surveys" jointly established by ALTA
and ACSM;
(j) Unless required to be posted at the
Improvements, the original, or a certified copy of the current
certificate of occupancy or its legal equivalent for the
Property, with all amendments thereto (unless the municipality
where the Improvements are located does not issue such
certificate or its legal equivalent); and
(k) Such other conveyance documents,
certificates, deeds, affidavits and other instructions as
Purchaser or the Title Company may reasonably require.
SECTION 5.
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
The obligation of the Seller to convey the Property on
the Closing Date to Purchaser is subject to the satisfaction of
the following conditions precedent on and as of the Closing Date:
5.1. Purchase Price. Purchaser shall deliver to the Seller
the Purchase Price as provided in Section 3.2.
5.2. Closing Documents. Purchaser shall have delivered to
Seller:
(a) The Lease, duly executed by Purchaser;
(b) An opinion of Purchaser's counsel addressed to
Seller that Purchaser has the requisite power and authority and
has taken all necessary action to enter into and perform its
obligations under this Agreement and to consummate the
transactions contemplated hereby;
(c) An opinion of Purchaser's counsel addressed to
Seller that the Qualified Exchange Agreement (as defined in the
Lease Modification Agreement) (i) has been duly executed and
delivered by Purchaser, and (ii) is enforceable in accordance of
the laws of the State of New York, except for bankruptcy,
equitable principles and other customary exceptions thereto;
(d) A Certification from Purchaser as to the
identities and addresses of all beneficial owners of the
Purchaser; and
(e) A duly executed SPE Covenant and Pledge Agreement from each
beneficial owner of Purchaser.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF SELLER
To induce Purchaser to enter into this Agreement,
Seller represents and warrants to Purchaser as of the Closing
Date as follows:
6.1. Status and Authority of Seller. Seller is a
corporation duly organized, validly existing and in corporate
good standing under the laws of the State of Delaware, and has
all requisite power and authority under the laws of the State of
Delaware and its respective charter documents to enter into and
perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. Seller has duly qualified
to transact business in the jurisdiction where the Property is
located.
6.2. Action of Seller. Seller has taken all necessary
action to authorize the execution, delivery and performance of
this Agreement, and upon the execution and delivery of any
document to be delivered by Seller on or prior to the Closing
Date, such document shall constitute the valid and binding
obligation and agreement of Seller, enforceable against Seller in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors.
6.3. No Violations of Agreements. Neither the
execution of this Agreement, nor the consummation by Seller of
the transactions contemplated by this Agreement will (a) result
in a breach of the terms, conditions or provisions of, or
constitute a default under, or result in a termination of, any
agreement or instrument to which Seller is a party, (b) violate
any restriction to which Seller is subject, (c) constitute a
violation of any applicable code, resolution, law, statute,
regulation, ordinance, judgment, rule, decree, or order, or (d)
except as expressly contemplated hereby, result in the creation
of any lien, charge or encumbrance upon the Property. Seller has
received no notice of and, to Seller's Knowledge, is not in
default under any agreement or instrument where the liability
thereunder might adversely affect Seller's ability to perform its
obligations under this Agreement.
6.4. Litigation. Seller has received no written notice
of and, to Seller's Knowledge, no action or proceeding is pending
or threatened and no investigation looking toward such an action
has begun, which (a) questions the validity of this Agreement or
any action taken or to be taken pursuant hereto, or (b) will
result in any material adverse change in the business, operation,
affairs or condition of the Property, or (c) result in or subject
the Property to a material liability, or (d) involves
condemnation or eminent domain proceedings against any part of
the Property.
6.5. Existing Agreements, Etc. To Seller's Knowledge,
other than the agreements provided to Purchaser prior to the
Closing Date, there are no existing material agreements affecting
the Property which will be binding on Purchaser subsequent to the
Closing Date.
6.6. Disclosure. To Seller's Knowledge, there is no
fact or condition which materially and adversely affects the
condition of the Property which has not been set forth in this
Agreement, or in the other documents, certificates or statements
furnished to Purchaser in connection with the transactions
contemplated hereby.
6.7. Utilities, Etc. To Seller's Knowledge, all
utilities and services necessary for the current use and
operation of the Premises (including, without limitation, road
access, gas, water, storm drainage facilities, electricity and
telephone) are available thereto and are of sufficient capacity
to meet adequately all needs and requirements necessary for the
current use and operation of the Premises. To Seller's
Knowledge, no fact, condition or proceeding exists which would
result in the termination or impairment of the furnishing of such
utilities to the Premises.
6.8. Compliance With Law; Covenants, Agreements, Etc..
To Seller's Knowledge, the Premises and the use and operation
thereof (a) do not violate any material federal, state, municipal
and other governmental statutes, ordinances, by-laws, rules,
regulations or any other legal requirements, including, without
limitation, those relating to construction, occupancy, zoning,
adequacy or parking, environmental protection, occupational
health and safety and fire safety applicable thereto and (b)
comply in all material respects with covenants, agreements,
restrictions and encumbrances contained in any instrument, either
of record or to Seller's Knowledge, which may require repairs,
modifications or alterations in or to the Premises or any part
thereof. There are presently in effect all material licenses,
permits, certificates of occupancy and other authorizations
necessary for the current use, occupancy and operation of the
Premises. Seller has not received written notice of any
threatened request, application, proceeding, plan, study, or
accord which would materially adversely affect the present use or
zoning of the Property or which would modify or realign any
adjacent street or highway.
6.9. Taxes. To Seller's Knowledge, other than the
amounts disclosed by tax bills, no taxes or special assessments
of any kind (special, bond or otherwise) are or have been levied
with respect to the Property, or any portion thereof, which are
outstanding or unpaid, other than amounts not yet due and payable
or, if due and payable, not yet delinquent.
6.10. Hazardous Substances. Except as may be
disclosed in any environmental report and related information
(the "Report," as listed on Schedule C) delivered by Seller to
Purchaser prior to the date hereof, to Seller's Knowledge, the
Property is free of any "hazardous substance" (as that term is
defined in the Comprehensive Environmental Response,
Compensation, and Liability Act, and the rules and regulations
promulgated pursuant thereto, as from time to time amended and
any other applicable federal, state or local law, collectively
"laws"), contaminant, oil, radioactive or other materials the
removal of which is required or the maintenance of which is
prohibited by any local, state or federal agency, authority or
governmental unit (such hazardous substances the removal of which
is required and/or the maintenance of which is prohibited being
hereinafter referred to as "Dangerous Substances"). Seller does
not now, nor has it or any of its affiliated entities ever
disposed of any Dangerous Substances on the Property and, except
as disclosed in the Report, to Seller's Knowledge, the Property
was never used for such purpose, and the Property contains no
Dangerous Substances in violation of applicable laws. Except as
disclosed in the Report, to Seller's Knowledge, there are no
underground storage tanks located on the Property in violation of
applicable laws. Neither Seller nor any current tenant nor
occupant of the Property has dumped or landfilled any garbage or
refuse on the Property, and to Seller's Knowledge the Property
was never used for such purpose. Except as may be shown on
surveys of the Property delivered to Purchaser at Closing, to
Seller's Knowledge, the Property is not located within an area
that has been designated by the Federal Insurance Administration,
the Army Corps of Engineers, or any other governmental agency or
body as being subject to special flood areas. Seller hereby
indemnifies and holds Purchaser harmless for and against any
loss, liability, claim or expense (including, without limitation,
cleanup, engineering and attorney's fees and expenses and court
costs) that Purchaser may incur by reason of (i) the Property
containing any Dangerous Substances on or prior to the Closing
Date and (ii) the representation contained in this subsection
being false.
6.11. Insurance. Seller has received no written
notice from any insurance carrier of defects or inadequacies in
the Property which, if uncorrected, would result in a termination
of insurance coverage or an increase in the premium charged
therefor.
6.12. Rights of Third Parties. Except as
previously disclosed to Purchaser or as contained in this
Agreement, the Property is not subject to any agreements of sale,
or any options, or other rights of third parties to acquire any
interest therein.
6.13. Assessments. Seller has received no notice
of and to Seller's Knowledge there is no ordinance pending
authorizing improvements, the cost of which might be assessed
against Purchaser or the Property.
6.14. Rent Laws. Seller has received no notice of
and to Seller's Knowledge there are no rent control or rent
stabilization laws or ordinances which restrict or control the
amount of rent which may be charged for the leasing of the
Premises.
6.15. Zoning Laws. To Seller's Knowledge, the
Property is not in violation of any applicable building and
zoning laws, rules, codes or regulations ("Zoning Laws"). To
Seller's Knowledge, the conformity of the Property (or the use
thereof for its intended purposes) with the Zoning Laws is not
based, in whole or in part, upon the Improvements or the current
uses thereof, being a so-called "non-conforming" use or similar
exemption.
6.16. Condition of Improvements. To Seller's
Knowledge, the Improvements, including the roofs and foundations
thereof, and all fixtures, machinery and equipment attached or
appurtenant to the Improvements and/or used in the operation
thereof, including, but not limited to, the heating, air
conditioning, ventilating, electrical, lighting, elevator and
plumbing systems thereof, located or used in connection with such
Improvements, are in satisfactory and usable condition, all
sidewalks, parking facilities, storm drainage and irrigation
systems, exterior siding and floors are in good repair, and there
are no structural or other material defects therein or the
necessity for any material repairs or replacements thereof. The
Seller has not received any notice from any bonding or insurance
company of any defects or inadequacies in the Premises, or any
part thereof, which would adversely affect the insurability of
the same or cause the imposition of extraordinary premiums or
charges thereon or of any termination or threatened termination
of any policy of insurance or bond.
6.17. Tax Abatement. Except as previously
disclosed to Purchaser, there are no tax abatements, exemptions
or special assessments affecting the Property.
6.18. Reduction of Access. Seller has no knowledge
of any fact or condition existing which would result or could
result in the termination or reduction of the current access from
the Property to existing thoroughfares, or any reduction in or to
sewer or other utility services presently serving the Premises.
6.19. No Condemnation. To Seller's Knowledge, no
condemnation proceedings, eminent domain proceedings or similar
actions or proceedings are now pending, or threatened against the
Premises or any portion thereof.
6.20. Operating Permits. Seller now possesses all
material licenses, certificates, permits, certificates of
occupancy, easements and rights-of-way that are required to own,
operate, use and maintain the Premises as it is currently owned
and operated, used and maintained (collectively, "Operating
Permits"). Seller has not received any notice of any uncured
violation or of any present violation of any Operating Permit or
any applicable building, zoning or other ordinances, resolutions,
statutes or regulations of any governmental agency (including,
but not limited to, environmental control agencies or any
Insurance Board of Underwriters) with respect to the use,
maintenance, condition or operation of the Premises or any part
thereof. To Seller's Knowledge, the Premises conform to all and
do not violate any other laws, orders, ordinances, permits,
rules, regulations and requirements and is being used in
conformity with the Operating Permits.
6.21. Well and Sewage Treatment System Disclosure.
To Seller's Knowledge, the Premises contain no "wells" within the
meaning of Minn. Stat. Section 103I.005, Subdivision 21 nor do
the Premises contain a "sewage treatment system" within the
meaning of Minn. Stat. Section 115.55, Subdivision 6. This
representation is intended to satisfy the disclosure requirements
of Minn. Stat. Section 103I.235, Subdivision 1(a) and Minn. Stat.
Section 115.55, Subdivision 6.
SECTION 7.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
To induce the Seller to enter in this Agreement,
Purchaser represents and warrants to the Seller as follows:
7.1. Status and Authority of Purchaser. Purchaser is a
business trust duly organized and validly existing under the laws
of the State of Delaware and has all requisite power and
authority under the laws of such state and under its charter
documents to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby.
7.2. Action of Purchaser. Purchaser has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement, and upon the execution and
delivery of any document to be delivered by Purchaser on or prior
to any Closing Date such document (other than any Qualified
Exchange Agreement (as defined in the Lease Modification
Agreement)) shall constitute the valid and binding obligation and
agreement of Purchaser, enforceable against Purchaser in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors.
SECTION 8.
APPORTIONMENTS
8.1. Real Property Apportionments. There shall be no
prorations or apportionments hereunder insofar as the Seller
shall be required to pay all items usually prorated in
transactions of the type described herein, including all real
property taxes applicable to any period prior to the Closing
Date.
8.2. Transaction Expenses. The Seller will pay all
fees and expenses associated with the transaction contemplated
hereby, including but not limited to, fees and expenses
associated with the negotiation and preparation of documents,
fees of outside legal counsel for the Seller, but not the
Purchaser, the advisory fees and expenses of Citicorp Real
Estate, Inc., appraisal fees, recording and survey costs,
transfer taxes (including, without limitation, any transfer taxes
triggered or required by recording a Memorandum of Lease) and
title insurance premiums and other title charges. Purchaser
shall bear the fees and expenses of outside legal counsel and
other outside consultants and advisors for Purchaser, including
the costs of such in connection with the negotiation and
preparation of the documents as well as any evaluative surveys
and reports ordered and obtained by Purchaser.
8.3. Survival. The obligations of the parties under
this Section 8 shall survive the Closing.
SECTION 9.
DEFAULT
9.1. Default by Seller. Seller shall indemnify
Purchaser against, and hold Purchaser harmless from, any and all
loss, damage, liability or expense, including court costs and
reasonable attorneys' fees, which Purchaser may incur or sustain
by reason of or arising from (a) any misrepresentation made by or
on behalf of Seller contained herein or in any certificate or
other instrument furnished or to be furnished by Seller
hereunder, or (b) any breach of Seller's warranties, covenants or
representations set forth in Section 6 hereof.
9.2. Default by Purchaser. Purchaser shall indemnify
Seller against and hold Seller harmless from any and all loss,
damage, liability or expense, including court costs and
reasonable attorneys' fees, which Seller may incur or sustain by
reason of, or arising from, any misrepresentation made by
Purchaser contained herein.
9.3. Survival. The provisions of this Section 9 shall
survive the Closing for a period of two (2) years.
SECTION 10.
MISCELLANEOUS
10.1. Agreement to Indemnify.
(a) Subject to any express provisions of this
Agreement to the contrary, Seller shall indemnify and hold
harmless Purchaser from and against any and all obligations,
claims, losses, damages, liabilities, and expenses (including,
without limitation, reasonable attorneys' and accountants' fees
and disbursements) arising out of events, contractual
obligations, acts or omissions of the Seller that occurred in
connection with the ownership or operation of the Property prior
to the Closing, or any damage to property of others or injury to
or death of any person or any claims for any debts or obligations
occurring on or about or in connection with the Property or any
portion thereof at any time or times prior to the Closing.
(b) Whenever any party shall learn through the
filing of a claim or the commencement of a proceeding or
otherwise of the existence of any liability for which the other
party is or may be responsible under this Agreement, the party
learning of such liability shall notify the other party promptly
and furnish such copies of documents (and make originals thereof
available) and such other information as such party may have that
may be used or useful in the defense of such claims and shall
afford said other party full opportunity to defend the same in
the name of such party and shall generally cooperate with said
other party in the defense of any such claim.
(c) The provisions of this Section 10.1 shall
survive the Closing and the termination of this Agreement.
10.2. Brokerage Commissions. Each of the parties
hereto represents to the other parties that, except for Citicorp
Real Estate, Inc., it dealt with no broker, finder or like agent
in connection with this Agreement or the transactions
contemplated hereby, and that it reasonably believes that there
is no basis for any other person or entity to claim a commission
or other compensation for bringing about this Agreement or the
transactions contemplated hereby. Seller shall indemnify and
hold harmless Purchaser and its respective legal representatives,
heirs, successors and assigns from and against any loss,
liability or expense, including, reasonable attorneys' fees,
arising out of any claim or claims for commissions or other
compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder or
like agent, if such claim or claims are based in whole or in part
on dealings with Seller. Purchaser shall indemnify and hold
harmless Seller and each of its legal representatives, heirs,
successors and assigns from and against any loss, liability or
expense, including, reasonable attorneys' fees, arising out of
any claim or claims for commissions or other compensation for
bringing about this Agreement or the transactions contemplated
hereby made by any broker, finder or like agent, if such claim or
claims are based in whole or in part on dealings with Purchaser,
other than any such claim made by Citicorp Real Estate, Inc.
Seller shall pay the commission of Citicorp Real Estate, Inc.
pursuant to a separate agreement with Citicorp Real Estate, Inc.
Nothing contained in this section shall be deemed to create any
rights in any third party. The provisions of this Section 10.2
shall survive the Closing and any termination of this Agreement.
10.3. Publicity. Except as required by law or
contractual obligations, the parties agree that no party shall,
with respect to this Agreement and the transactions contemplated
hereby, contact or conduct negotiations with public officials,
make any public pronouncements, or otherwise furnish information
regarding this Agreement or the transactions contemplated to any
third party without the consent of the other party, which consent
shall not be unreasonably withheld; provided, however, that the
parties may issue press releases, enter into discussions with
rating agencies, and respond to inquiries from investors. No
party, or its employees shall trade in the securities of any
parent or affiliate of Seller or of Purchaser until a public
announcement of the transactions contemplated by this Agreement
has been made. No party shall record this Agreement or any
notice thereof.
10.4. Notices.
(a) All notices, demands, requests, consents,
approvals, offers, statements and other instruments or
communications required or permitted to be given pursuant to the
provisions of this Agreement (collectively "Notice" or "Notices")
shall be in writing and shall be deemed to have been given for
all purposes (i) three (3) days after having been sent by United
States mail, by registered or certified mail, return receipt
requested, postage prepaid, addressed to the other party at its
address as stated below, (ii) one (1) day after having been sent
by Federal Express or other nationally recognized air courier
service, to the Addresses stated below or (iii) one (1) day after
having been transmitted via facsimile, provided that a conforming
signed original is mailed to the party to receive the notice on
the date it is transmitted:
If to Seller
Office of General Counsel
Beckman Coulter, Inc.
4300 N. Harbor Boulevard
Fullerton, California 92834-3100
Facsimile No.: (714) 773-7936
with copy to:
Latham & Watkins
633 West 5th Street
Suite 4000
Los Angeles, California 90071
Attention: Martha B. Jordan, Esq.
Facsimile No.: (213) 891-8763
If to Purchaser
Cardbeck Chaska Trust
c/o Cardinal Capital Partners, Inc.
8411 Preston Road
Dallas, Texas 75225
Facsimile No.: (214) 696-9845
with copy to:
Goldfarb & Fleece
345 Park Avenue
New York, New York 10154
Attention: Steven B. Shore, Esq.
Facsimile No.: (212) 751-3738
(b) Upon not less than fifteen (15) days written
notice to the other party, Seller or Purchaser shall each have
the right to (i) add a copy party and a copy address to those
specified above, (ii) change its address specified above, and
(iii) change its copy addressee or copy address specified above
or specified in a notice delivered pursuant to subparagraph (a)
above.
10.5. Waivers, Etc. Any waiver of any term or
condition of this Agreement, or of the breach of any covenant,
representation or warranty contained herein, in any one instance,
shall not operate as or be deemed to be or construed as a further
or continuing waiver of any other breach of such term, condition,
covenant, representation or warranty or any other term,
condition, covenant, representation or warranty, nor shall any
failure at any time or times to enforce or require performance of
any provision hereof operate as a waiver of or affect in any
manner such party's right at a later time to enforce or require
performance of such provision or any other provision hereof. This
Agreement may not be amended, nor shall any waiver, change,
modification, consent or discharge be effected, except by an
instrument in writing executed by or on behalf of the party
against whom enforcement of any amendment, waiver, change,
modification, consent or discharge is sought.
10.6. Change of Ownership Statements. Prior to
filing any change of ownership statements, if any, with any
governmental authority or agency in connection with the sale
pursuant to this Agreement, Purchaser shall provide Seller with
copies of such statements. Notwithstanding the provisions of
Section 10.4, if Landlord provides such copies by facsimile, same
shall be deemed to have been given on the date transmitted.
10.7. Proprietary Rights. This Agreement does not
grant to Purchaser any right, title, or interest in or to
Seller's proprietary rights or information, including, but not
limited to Seller's name, trade marks, trade names, trade dress,
trade symbols, copyrights, patents, patent applications,
inventions, trade secrets, product names or designations, model
names or numbers, processes, models, prototypes, designs, or
formulas and Seller specifically retains the right to rename any
personal property or signage which includes any such proprietary
rights or information and may remove any such proprietary rights
from the property.
10.8. Assignment; Successors and Assigns. This
Agreement and all rights and obligations hereunder shall not be
assignable by any party without the written consent of the other
parties. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns. This
Agreement is not intended and shall not be construed to create
any rights in or to be enforceable in any part by any other
persons.
10.9. Severability. If any provision of this
Agreement shall be held or deemed to be, or shall in fact be,
invalid, inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all
jurisdictions or in all cases, because of the conflict of any
provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have
the effect of rendering the provision or provisions in question
invalid, inoperative or unenforceable in any other jurisdiction
or in any other case or circumstance or of rendering any other
provision or provisions herein contained invalid, inoperative or
unenforceable to the extent that such other provisions are not
themselves actually in conflict with such constitution, statute
or rule of public policy, but this Agreement shall be reformed
and construed in any such jurisdiction or case as if such
invalid, inoperative or unenforceable provision had never been
contained herein and such provision reformed so that it would be
valid, operative and enforceable to the maximum extent permitted
in such jurisdiction or in such case.
10.10. Counterparts, Etc. This Agreement may
be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement constitutes the
entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede and take the place of
any other instruments purporting to be an agreement of the
parties hereto relating to the subject matter hereof. This
Agreement may not be amended or modified in any respect other
than by the written agreement of all of the parties hereto.
10.11. Cardinal Capital Partners. For all
purposes under Section 6 of this Agreement, disclosure to
Cardinal Capital Partners, Inc., a Texas corporation, shall be
deemed to be a disclosure to Purchaser.
10.12. Governing Law. This Agreement shall be
interpreted, construed, applied and enforced in accordance with
the laws of the State of California, regardless of (i) where this
Agreement is executed or delivered; or (ii) where any payment or
other performance required by this Agreement is made or required
to be made; or (iii) where any breach of any provision of this
Agreement occurs, or any cause of action otherwise accrues; or
(iv) where any action or other proceeding is instituted or
pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or
domestication of any party; or (vi) whether the laws of the forum
jurisdiction otherwise would apply the laws of a jurisdiction
other than the State of California; or (vii) any combination of
the foregoing.
10.13. Venue and Jurisdiction. To the maximum
extent permitted by applicable law, any action to enforce,
arising out of, or relating in any way to, any of the provisions
of this Agreement may be brought and prosecuted in such court or
courts located in the State of California as is provided by law;
and the parties consent to the jurisdiction of said court or
courts located in the State of California and to service of
process by registered mail, return receipt requested, or by any
other manner provided by law.
10.14. Attorneys' Fees. If any lawsuit or
arbitration or other legal proceeding arises in connection with
the interpretation or enforcement of this Agreement, the
prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including
reasonable attorneys' fees incurred in connection therewith, in
preparation therefor and on appeal therefrom, which amounts shall
be included in any judgment therein.
10.15. Section and Other Headings. The
headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or
interpretation of this Agreement.
10.16. Nonliability of Officers. NO TRUSTEE,
OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF SELLER OR OF PURCHASER
SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SELLER OR PURCHASER.
ALL PERSONS DEALING WITH SELLER OR PURCHASER, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF SELLER OR PURCHASER, AS APPLICABLE,
FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed as a sealed instrument as of the date
first above written.
SELLER:
BECKMAN COULTER, INC.
By: WILLIAM H. MAY
Its: Vice President, General Counsel
and Secretary
PURCHASER:
CARDBECK CHASKA TRUST.
By: M. SCOTT KIPP
Its: Administrative Trustee
<PAGE>
Schedule A - LEGAL DESCRIPTION OF THE LAND
Schedule B - LIST OF FF&E BEING TRANSFERRED - NONE
Schedule C - LIST OF ENVIRONMENTAL REPORTS
<PAGE>
EXHIBIT 2.3
Execution Copy
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
COULTER CORPORATION,
AS SELLER,
AND
CARDBECK MIAMI TRUST,
AS PURCHASER
JUNE 25, 1998
11800 SW 147th Avenue
Miami, Florida
<PAGE>
TABLE OF CONTENTS
SECTION 1. DEFINITIONS
1.1. "Agreement"
1.2. "Documents"
1.3. "FF&E"
1.4. "Guaranty of Lease"
1.5. "Guarantor"
1.6. "Improvements"
1.7. "Intangible Property"
1.8. "Land"
1.9. "Lease"
1.10. "Premises"
1.11. "Property"
1.12. "Purchase Price"
1.13. "Seller's Knowledge"
1.14. "Title Company"
SECTION 2. PURCHASE AND SALE
2.1. Purchase and Sale
2.2 Exclusion of FF&E
SECTION 3. CLOSING
3.1 Closing
3.2 Purchase Price
SECTION 4. CONDITIONS TO PURCHASERS' OBLIGATION TO CLOSE
4.1 Closing Documents
SECTION 5. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
5.1 Purchase Price
5.2 Closing Documents
SECTION 6. REPRESENTATION AND WARRANTIES OF SELLER
6.1 Status and Authority of Seller
6.2 Action of Seller
6.3 No Violations of Agreements
6.4 Litigation
6.5 Existing Agreements, Etc.
6.6 Disclosure
6.7 Utilities, Etc.
6.8 Compliance With Law
6.9 Taxes
6.10 Hazardous substances
6.11 Insurance
6.12 Rights of Third Parties
6.13 Assessments
6.14 Rent Laws
6.15 Zoning Laws
6.16 Condition of Improvements
6.17 Tax Abatement
6.18 Reduction of Access
6.19 No Condemnation
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASERS
7.1 Status and Authority of Purchasers
7.2 Action of Purchaser
SECTION 8. APPORTIONMENTS
8.1 Real Property Apportionments
8.2 Transactional Expenses
8.3 Survival
SECTION 9. DEFAULT
9.1 Default by Seller
9.2 Default by Purchasers
9.3 Survival
SECTION 10. MISCELLANEOUS
10.1 Agreement to Indemnify
10.2 Brokerage Commissioners
10.3 Publicity
10.4 Notices
10.5 Waivers, Etc.
10.6 Change of Ownership Statements
10.7 Proprietary Rights
10.8 Assignment; Successors and Assigns
10.9 Severability
10.10 Counterparts, Etc.
10.11 Cardinal Capital Partners
10.12 Governing Law
10.13 Venue and Jurisdiction
10.14 Attorneys' Fees
10.15 Section and Other Headings
10.16 Nonliability of Officers
<PAGE>
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of June 25,
1998, by and between COULTER CORPORATION, a Delaware corporation
("Seller"), and CARDBECK MIAMI TRUST, a Delaware business
("Purchaser").
RECITALS
WHEREAS, the Seller is the owner of the Property (all
capitalized terms used and not otherwise defined herein having
the meanings ascribed to such terms in Section 1);
WHEREAS, the Purchaser desires to purchase the Property, as
more fully set forth below; and
WHEREAS, the Seller is willing to sell the Property to the
Purchaser, subject to and upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby
acknowledged, the Seller and the Purchaser hereby agree as
follows:
SECTION 1.
DEFINITIONS
Capitalized terms used in this Agreement shall have the
meanings set forth below or in the Section of this Agreement
referred to below:
1.1. "Agreement" shall mean this Purchase and Sale
Agreement, including all Schedules and Exhibits hereto, as it and
they may be amended from time to time as herein provided.
1.2. "Documents" shall mean all books, records and
files relating to the operation, maintenance, management or
leasing of the Premises belonging to the Seller.
1.3. "FF&E" shall mean all appliances, trade fixtures,
appurtenances, equipment (including, without limitation, machine
racking, shelving, conveyor equipment and lifts), furniture,
inventory, furnishings and articles of tangible personal property
of every kind and nature whatsoever owned by the Seller and
located in or at, or used in connection with the operation of the
current tenant's business at the Premises, but specifically
excluding fixtures and equipment attached to the Premises and
used in connection with the operation of the Premises (e.g., HVAC
system equipment and fixtures), but excluding the property listed
on Schedule B attached hereto and made a part hereof.
1.4. "Guaranty of Lease" shall mean that certain
Guaranty of Lease dated as of June 25, 1998, executed by
Guarantor.
1.5. "Guarantor" shall mean Beckman Coulter, Inc., a
Delaware corporation.
1.6. "Improvements" shall mean all buildings, fixtures,
equipment, walls, fences, landscaping and other structures and
improvements (excluding the FF&E) situated on, affixed or
appurtenant to the Land.
1.7. "Intangible Property" shall mean all books,
records and files relating to the maintenance, management or
operation of the Premises belonging to the Seller; all
transferable or assignable permits, certificates of occupancy,
operating permits, sign permits, development rights and
approvals, certificates, licenses, warranties and guarantees,
rights to deposits, and all other transferable intangible
property, miscellaneous rights, benefits and privileges of any
kind or character belonging to the Seller with respect to the
Premises, in each case to the extent Seller's interest therein is
assignable or transferable but excluding any intangible property
owned or belonging to the Seller in connection with the FF&E and
exclusive of equipment leases, trade names, service marks, and
telephone exchange numbers.
1.8. "Land" shall mean the applicable tract, piece and
parcel of land, as more particularly described in Schedule A
attached hereto and made a part hereof, together with all
easements, rights and appurtenances relating thereto.
1.9. "Lease" shall mean the lease to be entered into
between the Purchaser, as landlord, and the Seller, as tenant,
with respect to the Premises and shall include the Lease
Modification Agreement dated as of the date hereof between the
Purchaser, as landlord, and Seller, as tenant.
1.10. "Premises" shall mean, collectively, the Land
and the Improvements.
1.11. "Property" shall mean, collectively, the
Premises, Intangible Property and Documents.
1.12. "Purchase Price" shall have the meaning given
such term in Section 2.1.
1.13. "Seller's Knowledge" shall mean, for Seller,
the actual knowledge of, including any written notices received
by, any officers of the Seller.
1.14. "Title Company" shall mean First American
Title Insurance Company.
SECTION 2.
PURCHASE AND SALE
2.1. Purchase and Sale. In consideration of the mutual
covenants herein contained, Purchaser hereby agrees to purchase
from Seller, and Seller hereby agrees to sell to Purchaser, all
of Seller's right, title and interest in and to the Property for
$57,000,000 (the "Purchase Price"), subject to and in accordance
with the terms and conditions of this Agreement.
2.2. Exclusion of FF&E. The FF&E shall remain the
property of the Seller and is not included in the transaction
contemplated herein.
Section 1.
SECTION 3.
CLOSING
3.1. Closing. The closing of the sale and purchase of
the Property (the "Closing") shall take place at the offices of
Latham & Watkins, 633 W. Fifth Street, Suite 4000, Los Angeles,
California at 10:00 AM, local time, on June 25, 1998, or at such
other place, at such other time and on such other date as shall
be mutually agreed upon by the Seller and Purchaser (the actual
date of the Closing being herein referred to as the "Closing
Date").
3.2. Purchase Price. The Purchase Price shall be
payable by Purchaser to the Seller in the amount set forth in
Section 2.1, and shall be payable on the Closing Date by wire
transfer of immediately available funds to the account or
accounts designated by the Seller by notice to Purchaser prior to
the Closing Date.
SECTION 4.
CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE
The obligation of Purchaser to acquire the Property on
the Closing Date shall be subject to the satisfaction of the
following conditions on and as of the Closing Date:
4.1. Closing Documents. Seller shall have delivered to
Purchaser or its designees:
(a) A special warranty deed, with respect to the
Premises, in proper statutory form for recording, duly executed
and acknowledged by Seller, conveying title to the Premises, in
form and substance satisfactory to Purchaser and to the Title
Company;
(b) A bill of sale, in form and substance
reasonably satisfactory to Seller and Purchaser, duly executed
and acknowledged by Seller, with respect to all of the Seller's
right, title and interest in, to and under the Documents, and the
Intangible Property, and any items of personal property included
on Schedule B to be conveyed to Purchaser in accordance with the
terms of this Agreement;
(c) A non-foreign affidavit with respect to
Seller as required by Internal Revenue Code Section 1445(b)(2)
and the regulations issued thereunder, for the Premises conveyed;
(d) To the extent the same are in the Seller's
possession, copies of agreements pertaining to the Property;
(e) The Lease, duly executed by Seller;
(f) The Guaranty of Lease, duly executed by
Guarantor;
(g) An opinion of Seller's counsel addressed to
Purchaser and Purchaser's lender that the Lease (i) has been duly
executed and delivered by Seller and (ii) is enforceable in
accordance with its terms under the laws of the State of Florida,
except for bankruptcy, equitable principles and other customary
exceptions thereto;
(h) An opinion of Guarantor's counsel addressed
to Purchaser and Purchaser's lender that the Guaranty of Lease
(i) has been duly executed and delivered by Guarantor, and (ii)
is enforceable in accordance with the laws of the State of
Florida, except for bankruptcy, equitable principles and other
customary exceptions thereto;
(i) A certificate of Seller's Secretary or
Assistant Secretary evidencing that those officers acting for
Seller have full authority to consummate the transactions
contemplated by this Agreement, including the execution of the
Lease. Such evidence shall recite resolutions of the board of
directors of Seller;
(j) A certificate of Guarantor's Secretary or
Assistant Secretary evidencing that those officers acting for
Guarantor have full authority to execute and deliver the Guaranty
of Lease. Such evidence shall recite resolutions of the Board of
Directors of Guarantor;
(k) An Owner's Policy of Title Insurance (a
"Title Policy") on the current ALTA form with a so-called
"extended coverage" endorsement issued through the Title Company
and insuring, for an amount equal to the Purchase Price, that
good and marketable fee simple title to the Premises is vested in
Purchaser;
(l) An as-built survey of the Premises, dated
within ninety (90) days of the Closing Date and certified to
Purchaser, Purchaser's lender and the Title Company, which has
been prepared in accordance with the "Minimum Standard Detail
Requirements for Land Title Surveys" jointly established by ALTA
and ACSM;
(m) Unless required to be posted at the
Improvements, the original, or a certified copy of the current
certificate of occupancy or its legal equivalent for the
Property, with all amendments thereto (unless the municipality
where the Improvements are located does not issue such
certificate or its legal equivalent); and
(n) Such other conveyance documents,
certificates, deeds, affidavits and other instructions as
Purchaser or the Title Company may reasonably require.
SECTION 5.
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
The obligation of the Seller to convey the Property on
the Closing Date to Purchaser is subject to the satisfaction of
the following conditions precedent on and as of the Closing Date:
5.1. Purchase Price. Purchaser shall deliver to the
Seller the Purchase Price as provided in Section 3.2.
5.2. Closing Documents. Purchaser shall have delivered
to Seller:
(a) The Lease, duly executed by Purchaser;
(b) An opinion of Purchaser's counsel addressed
to Seller that Purchaser has the requisite power and authority
and has taken all necessary action to enter into and perform its
obligations under this Agreement and to consummate the
transactions contemplated hereby;
(c) An opinion of Purchaser's counsel addressed
to Seller that the Qualified Exchange Agreement (as defined in
the Lease Modification Agreement) (i) has been duly executed and
delivered by Purchaser, and (ii) is enforceable in accordance of
the laws of the State of New York, except for bankruptcy,
equitable principles and other customary exceptions thereto;
(d) A Certification from Purchaser as to the
identities and addresses of all beneficial owners of the
Purchaser; and
(e) A duly executed SPE Covenant and Pledge
Agreement from each beneficial owner of Purchaser.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF SELLER
To induce Purchaser to enter into this Agreement,
Seller represents and warrants to Purchaser as of the Closing
Date as follows:
6.1. Status and Authority of Seller. Seller is a
corporation duly organized, validly existing and in corporate
good standing under the laws of the State of Delaware, and has
all requisite power and authority under the laws of the State of
Delaware and its respective charter documents to enter into and
perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. Seller has duly qualified
to transact business in the jurisdiction where the Property is
located.
6.2. Action of Seller. Seller has taken all necessary
action to authorize the execution, delivery and performance of
this Agreement, and upon the execution and delivery of any
document to be delivered by Seller on or prior to the Closing
Date, such document shall constitute the valid and binding
obligation and agreement of Seller, enforceable against Seller in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors.
6.3. No Violations of Agreements. Neither the
execution of this Agreement, nor the consummation by Seller of
the transactions contemplated by this Agreement will (a) result
in a breach of the terms, conditions or provisions of, or
constitute a default under, or result in a termination of, any
agreement or instrument to which Seller is a party, (b) violate
any restriction to which Seller is subject, (c) constitute a
violation of any applicable code, resolution, law, statute,
regulation, ordinance, judgment, rule, decree, or order, or (d)
except as expressly contemplated hereby, result in the creation
of any lien, charge or encumbrance upon the Property. Seller has
received no notice of and, to Seller's Knowledge, is not in
default under any agreement or instrument where the liability
thereunder might adversely affect Seller's ability to perform its
obligations under this Agreement.
6.4. Litigation. Seller has received no written notice
of and, to Seller's Knowledge, no action or proceeding is pending
or threatened and no investigation looking toward such an action
has begun, which (a) questions the validity of this Agreement or
any action taken or to be taken pursuant hereto, or (b) will
result in any material adverse change in the business, operation,
affairs or condition of the Property, or (c) result in or subject
the Property to a material liability, or (d) involves
condemnation or eminent domain proceedings against any part of
the Property.
6.5. Existing Agreements, Etc. To Seller's Knowledge,
other than the agreements provided to Purchaser prior to the
Closing Date, there are no existing material agreements affecting
the Property which will be binding on Purchaser subsequent to the
Closing Date.
6.6. Disclosure. To Seller's Knowledge, there is no
fact or condition which materially and adversely affects the
condition of the Property which has not been set forth in this
Agreement, or in the other documents, certificates or statements
furnished to Purchaser in connection with the transactions
contemplated hereby.
6.7. Utilities, Etc. To Seller's Knowledge, all
utilities and services necessary for the current use and
operation of the Premises (including, without limitation, road
access, gas, water, electricity and telephone) are available
thereto and are of sufficient capacity to meet adequately all
needs and requirements necessary for the current use and
operation of the Premises. To Seller's Knowledge, no fact,
condition or proceeding exists which would result in the
termination or impairment of the furnishing of such utilities to
the Premises.
6.8. Compliance With Law. To Seller's Knowledge, the
Premises and the use and operation thereof do not violate any
material federal, state, municipal and other governmental
statutes, ordinances, by-laws, rules, regulations or any other
legal requirements, including, without limitation, those relating
to construction, occupancy, zoning, adequacy or parking,
environmental protection, occupational health and safety and fire
safety applicable thereto. There are presently in effect all
material licenses, permits and other authorizations necessary for
the current use, occupancy and operation of the Premises. Seller
has not received written notice of any threatened request,
application, proceeding, plan, study, or accord which would
materially adversely affect the present use or zoning of the
Property or which would modify or realign any adjacent street or
highway.
6.9. Taxes. To Seller's Knowledge, other than the
amounts disclosed by tax bills, no taxes or special assessments
of any kind (special, bond or otherwise) are or have been levied
with respect to the Property, or any portion thereof, which are
outstanding or unpaid, other than amounts not yet due and payable
or, if due and payable, not yet delinquent.
6.10. Hazardous Substances. Except as may be
disclosed in any environmental report and related information
(the "Report," as listed on Schedule C) delivered by Seller to
Purchaser prior to the date hereof, to Seller's Knowledge, the
Property is free of any "hazardous substance" (as that term is
defined in the Comprehensive Environmental Response,
Compensation, and Liability Act, and the rules and regulations
promulgated pursuant thereto, as from time to time amended and
any other applicable federal, state or local law, collectively
"laws"), contaminant, oil, radioactive or other materials the
removal of which is required or the maintenance of which is
prohibited by any local, state or federal agency, authority or
governmental unit (such hazardous substances the removal of which
is required and/or the maintenance of which is prohibited being
hereinafter referred to as "Dangerous Substances"). Seller does
not now, nor has it or any of its affiliated entities ever
disposed of any Dangerous Substances on the Property and, except
as disclosed in the Report, to Seller's Knowledge, the Property
was never used for such purpose, and the Property contains no
Dangerous Substances in violation of applicable laws. Except as
disclosed in the Report, to Seller's Knowledge, there are no
underground storage tanks located on the Property in violation of
applicable laws. Neither Seller nor any current tenant nor
occupant of the Property has dumped or landfilled any garbage or
refuse on the Property, and to Seller's Knowledge the Property
was never used for such purpose. Except as may be shown on
surveys of the Property delivered to Purchaser at Closing, to
Seller's Knowledge, the Property is not located within an area
that has been designated by the Federal Insurance Administration,
the Army Corps of Engineers, or any other governmental agency or
body as being subject to special flood areas. Seller hereby
indemnifies and holds Purchaser harmless for and against any
loss, liability, claim or expense (including, without limitation,
cleanup, engineering and attorney's fees and expenses and court
costs) that Purchaser may incur by reason of (i) the Property
containing any Dangerous Substances on or prior to the Closing
Date and (ii) the representation contained in this subsection
being false.
6.11. Insurance. Seller has received no written
notice from any insurance carrier of defects or inadequacies in
the Property which, if uncorrected, would result in a termination
of insurance coverage or an increase in the premium charged
therefor.
6.12. Rights of Third Parties. Except as
previously disclosed to Purchaser or as contained in this
Agreement, the Property is not subject to any agreements of sale,
or any options, or other rights of third parties to acquire any
interest therein.
6.13. Assessments. Seller has received no notice
of and to Seller's Knowledge there is no ordinance pending
authorizing improvements, the cost of which might be assessed
against Purchaser or the Property.
6.14. Rent Laws. Seller has received no notice of
and to Seller's Knowledge there are no rent control or rent
stabilization laws or ordinances which restrict or control the
amount of rent which may be charged for the leasing of the
Premises.
6.15. Zoning Laws. To Seller's Knowledge, the
Property is not in violation of any applicable building and
zoning laws, rules, codes or regulations ("Zoning Laws"). To
Seller's Knowledge, the conformity of the Property (or the use
thereof for its intended purposes) with the Zoning Laws is not
based, in whole or in part, upon the Improvements or the current
uses thereof, being a so-called "non-conforming" use or similar
exemption.
6.16. Condition of Improvements. To Seller's
Knowledge, the Improvements, including the roofs and foundations
thereof, and all fixtures, machinery and equipment attached or
appurtenant to the Improvements and/or used in the operation
thereof, including, but not limited to, the heating, air
conditioning, ventilating, electrical, lighting, elevator and
plumbing systems thereof, located or used in connection with such
Improvements, are in satisfactory and usable condition, and there
are no structural or other material defects therein or the
necessity for any material repairs or replacements thereof.
6.17. Tax Abatement. Except as previously
disclosed to Purchaser, there are no tax abatements, exemptions
or special assessments affecting the Property.
6.18. Reduction of Access. Seller has no knowledge
of any fact or condition existing which would result or could
result in the termination or reduction of the current access from
the Property to existing thoroughfares, or any reduction in or to
sewer or other utility services presently serving the Premises.
SECTION 7.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
To induce the Seller to enter in this Agreement,
Purchaser represents and warrants to the Seller as follows:
7.1. Status and Authority of Purchaser. Purchaser is a
business trust duly organized and validly existing under the laws
of the State of Delaware and has all requisite power and
authority under the laws of such state and under its charter
documents to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby.
7.2. Action of Purchaser. Purchaser has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement, and upon the execution and
delivery of any document to be delivered by Purchaser on or prior
to any Closing Date such document (other than any Qualified
Exchange Agreement (as defined in the Lease Modification
Agreement)) shall constitute the valid and binding obligation and
agreement of Purchaser, enforceable against Purchaser in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors.
SECTION 8.
APPORTIONMENTS
8.1. Real Property Apportionments. There shall be no
prorations or apportionments hereunder insofar as the Seller
shall be required to pay all items usually prorated in
transactions of the type described herein, including all real
property taxes applicable to any period prior to the Closing
Date.
8.2. Transaction Expenses. The Seller will pay all
fees and expenses associated with the transaction contemplated
hereby, including but not limited to, fees and expenses
associated with the negotiation and preparation of documents,
fees of outside legal counsel for the Seller, but not the
Purchaser, the advisory fees and expenses of Citicorp Real
Estate, Inc., appraisal fees, recording and survey costs,
transfer taxes (including, without limitation, any transfer taxes
triggered or required by recording a Memorandum of Lease) and
title insurance premiums and other title charges. Purchaser
shall bear the fees and expenses of outside legal counsel and
other outside consultants and advisors for Purchaser, including
the costs of such in connection with the negotiation and
preparation of the documents as well as any evaluative surveys
and reports ordered and obtained by Purchaser.
8.3. Survival. The obligations of the parties under
this Section 8 shall survive the Closing.
SECTION 9.
DEFAULT
9.1. Default by Seller. Seller shall indemnify
Purchaser against, and hold Purchaser harmless from, any and all
loss, damage, liability or expense, including court costs and
reasonable attorneys' fees, which Purchaser may incur or sustain
by reason of or arising from (a) any misrepresentation made by or
on behalf of Seller contained herein or in any certificate or
other instrument furnished or to be furnished by Seller
hereunder, or (b) any breach of Seller's warranties, covenants or
representations set forth in Section 6 hereof.
9.2. Default by Purchaser. Purchaser shall indemnify
Seller against and hold Seller harmless from any and all loss,
damage, liability or expense, including court costs and
reasonable attorneys' fees, which Seller may incur or sustain by
reason of, or arising from, any misrepresentation made by
Purchaser contained herein.
9.3. Survival. The provisions of this Section 9 shall
survive the Closing for a period of two (2) years.
SECTION 10.
MISCELLANEOUS
10.1. Agreement to Indemnify.
(a) Subject to any express provisions of this
Agreement to the contrary, Seller shall indemnify and hold
harmless Purchaser from and against any and all obligations,
claims, losses, damages, liabilities, and expenses (including,
without limitation, reasonable attorneys' and accountants' fees
and disbursements) arising out of events, contractual
obligations, acts or omissions of the Seller that occurred in
connection with the ownership or operation of the Property prior
to the Closing, or any damage to property of others or injury to
or death of any person or any claims for any debts or obligations
occurring on or about or in connection with the Property or any
portion thereof at any time or times prior to the Closing.
(b) Whenever any party shall learn through the
filing of a claim or the commencement of a proceeding or
otherwise of the existence of any liability for which the other
party is or may be responsible under this Agreement, the party
learning of such liability shall notify the other party promptly
and furnish such copies of documents (and make originals thereof
available) and such other information as such party may have that
may be used or useful in the defense of such claims and shall
afford said other party full opportunity to defend the same in
the name of such party and shall generally cooperate with said
other party in the defense of any such claim.
(c) The provisions of this Section 10.1 shall
survive the Closing and the termination of this Agreement.
10.2. Brokerage Commissions. Each of the parties
hereto represents to the other parties that, except for Citicorp
Real Estate, Inc., it dealt with no broker, finder or like agent
in connection with this Agreement or the transactions
contemplated hereby, and that it reasonably believes that there
is no basis for any other person or entity to claim a commission
or other compensation for bringing about this Agreement or the
transactions contemplated hereby. Seller shall indemnify and
hold harmless Purchaser and its respective legal representatives,
heirs, successors and assigns from and against any loss,
liability or expense, including, reasonable attorneys' fees,
arising out of any claim or claims for commissions or other
compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder or
like agent, if such claim or claims are based in whole or in part
on dealings with Seller. Purchaser shall indemnify and hold
harmless Seller and each of its legal representatives, heirs,
successors and assigns from and against any loss, liability or
expense, including, reasonable attorneys' fees, arising out of
any claim or claims for commissions or other compensation for
bringing about this Agreement or the transactions contemplated
hereby made by any broker, finder or like agent, if such claim or
claims are based in whole or in part on dealings with Purchaser,
other than any such claim made by Citicorp Real Estate, Inc.
Seller shall pay the commission of Citicorp Real Estate, Inc.
pursuant to a separate agreement with Citicorp Real Estate, Inc.
Nothing contained in this section shall be deemed to create any
rights in any third party. The provisions of this Section 10.2
shall survive the Closing and any termination of this Agreement.
10.3. Publicity. Except as required by law or
contractual obligations, the parties agree that no party shall,
with respect to this Agreement and the transactions contemplated
hereby, contact or conduct negotiations with public officials,
make any public pronouncements, or otherwise furnish information
regarding this Agreement or the transactions contemplated to any
third party without the consent of the other party, which consent
shall not be unreasonably withheld; provided, however, that the
parties may issue press releases, enter into discussions with
rating agencies, and respond to inquiries from investors. No
party, or its employees shall trade in the securities of any
parent or affiliate of Seller or of Purchaser until a public
announcement of the transactions contemplated by this Agreement
has been made. No party shall record this Agreement or any
notice thereof.
10.4. Notices.
(a) All notices, demands, requests, consents,
approvals, offers, statements and other instruments or
communications required or permitted to be given pursuant to the
provisions of this Agreement (collectively "Notice" or "Notices")
shall be in writing and shall be deemed to have been given for
all purposes (i) three (3) days after having been sent by United
States mail, by registered or certified mail, return receipt
requested, postage prepaid, addressed to the other party at its
address as stated below, (ii) one (1) day after having been sent
by Federal Express or other nationally recognized air courier
service, to the Addresses stated below or (iii) one (1) day after
having been transmitted via facsimile, provided that a conforming
signed original is mailed to the party to receive the notice on
the date it is transmitted:
If to Seller
Office of General Counsel
Beckman Coulter, Inc.
4300 N. Harbor Boulevard
Fullerton, California 92834-3100
Facsimile No.: (714) 773-7936
with copy to:
Latham & Watkins
633 West 5th Street
Suite 4000
Los Angeles, California 90071
Attention: Martha B. Jordan, Esq.
Facsimile No.: (213) 891-8763
If to Purchaser
Cardbeck Miami Trust
c/o Cardinal Capital Partners, Inc.
8411 Preston Road
Dallas, Texas 75225
Facsimile No.: (214) 696-9845
with copy to:
Goldfarb & Fleece
345 Park Avenue
New York, New York 10154
Attention: Steven B. Shore, Esq.
Facsimile No.: (212) 751-3738
(b) Upon not less than fifteen (15) days written
notice to the other party, Seller or Purchaser shall each have
the right to (i) add a copy party and a copy address to those
specified above, (ii) change its address specified above, and
(iii) change its copy addressee or copy address specified above
or specified in a notice delivered pursuant to subparagraph
(a) above.
10.5. Waivers, Etc. Any waiver of any term or
condition of this Agreement, or of the breach of any covenant,
representation or warranty contained herein, in any one instance,
shall not operate as or be deemed to be or construed as a further
or continuing waiver of any other breach of such term, condition,
covenant, representation or warranty or any other term,
condition, covenant, representation or warranty, nor shall any
failure at any time or times to enforce or require performance of
any provision hereof operate as a waiver of or affect in any
manner such party's right at a later time to enforce or require
performance of such provision or any other provision hereof. This
Agreement may not be amended, nor shall any waiver, change,
modification, consent or discharge be effected, except by an
instrument in writing executed by or on behalf of the party
against whom enforcement of any amendment, waiver, change,
modification, consent or discharge is sought.
10.6. Change of Ownership Statements. Prior to
filing any change of ownership statements, if any, with any
governmental authority or agency in connection with the sale
pursuant to this Agreement, Purchaser shall provide Seller with
copies of such statements. Notwithstanding the provisions of
Section 10.4, if Landlord provides such copies by facsimile, same
shall be deemed to have been given on the date transmitted.
10.7. Proprietary Rights. This Agreement does not
grant to Purchaser any right, title, or interest in or to
Seller's or Guarantor's proprietary rights or information,
including, but not limited to Seller's or Guarantor's name, trade
marks, trade names, trade dress, trade symbols, copyrights,
patents, patent applications, inventions, trade secrets, product
names or designations, model names or numbers, processes, models,
prototypes, designs, or formulas and Seller specifically retains
the right to remove any personal property or signage which
includes any such proprietary rights or information and may
remove any such proprietary rights from the property.
10.8. Assignment; Successors and Assigns. This
Agreement and all rights and obligations hereunder shall not be
assignable by any party without the written consent of the other
parties, except that Seller may assign this Agreement to
Guarantor, in which case Guarantor shall assume and become liable
for all the obligations of "Seller" hereunder. This Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement is not intended
and shall not be construed to create any rights in or to be
enforceable in any part by any other persons.
10.9. Severability. If any provision of this
Agreement shall be held or deemed to be, or shall in fact be,
invalid, inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all
jurisdictions or in all cases, because of the conflict of any
provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have
the effect of rendering the provision or provisions in question
invalid, inoperative or unenforceable in any other jurisdiction
or in any other case or circumstance or of rendering any other
provision or provisions herein contained invalid, inoperative or
unenforceable to the extent that such other provisions are not
themselves actually in conflict with such constitution, statute
or rule of public policy, but this Agreement shall be reformed
and construed in any such jurisdiction or case as if such
invalid, inoperative or unenforceable provision had never been
contained herein and such provision reformed so that it would be
valid, operative and enforceable to the maximum extent permitted
in such jurisdiction or in such case.
10.10. Counterparts, Etc. This Agreement may
be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement constitutes the
entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede and take the place of
any other instruments purporting to be an agreement of the
parties hereto relating to the subject matter hereof. This
Agreement may not be amended or modified in any respect other
than by the written agreement of all of the parties hereto.
10.11. Cardinal Capital Partners. For all
purposes under Section 6 of this Agreement, disclosure to
Cardinal Capital Partners, Inc., a Texas corporation, shall be
deemed to be a disclosure to Purchaser.
10.12. Governing Law. This Agreement shall be
interpreted, construed, applied and enforced in accordance with
the laws of the State of California, regardless of (i) where this
Agreement is executed or delivered; or (ii) where any payment or
other performance required by this Agreement is made or required
to be made; or (iii) where any breach of any provision of this
Agreement occurs, or any cause of action otherwise accrues; or
(iv) where any action or other proceeding is instituted or
pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or
domestication of any party; or (vi) whether the laws of the forum
jurisdiction otherwise would apply the laws of a jurisdiction
other than the State of California; or (vii) any combination of
the foregoing.
10.13. Venue and Jurisdiction. To the maximum
extent permitted by applicable law, any action to enforce,
arising out of, or relating in any way to, any of the provisions
of this Agreement may be brought and prosecuted in such court or
courts located in the State of California as is provided by law;
and the parties consent to the jurisdiction of said court or
courts located in the State of California and to service of
process by registered mail, return receipt requested, or by any
other manner provided by law.
10.14. Attorneys' Fees. If any lawsuit or
arbitration or other legal proceeding arises in connection with
the interpretation or enforcement of this Agreement, the
prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including
reasonable attorneys' fees incurred in connection therewith, in
preparation therefor and on appeal therefrom, which amounts shall
be included in any judgment therein.
10.15. Section and Other Headings. The
headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or
interpretation of this Agreement.
10.16. Nonliability of Officers. NO TRUSTEE,
OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF SELLER OR OF PURCHASER
SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SELLER OR PURCHASER.
ALL PERSONS DEALING WITH SELLER OR PURCHASER, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF SELLER OR PURCHASER, AS APPLICABLE,
FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed as a sealed instrument as of the date
first above written.
SELLER:
COULTER CORPORATION
By: William H. May
Its: Vice President and Secretary
PURCHASER:
CARDBECK MIAMI TRUST
By: M. SCOTT KIPP
Its: Administrative Trustee
<PAGE>
Schedule A - LEGAL DESCRIPTION OF THE LAND
Schedule B - LIST OF FF&E BEING TRANSFERRED - NONE
Schedule C - LIST OF ENVIRONMENTAL REPORTS
<PAGE>
EXHIBIT 2.4
Execution Copy
ASSIGNMENT AND SALE AGREEMENT
BY AND BETWEEN
BECKMAN COULTER, INC.,
AS SELLER,
AND
NPDC-EY PALO ALTO TRUST AND NPDC-RI PALO ALTO TRUST,
COLLECTIVELY AS PURCHASERS
JUNE 25, 1998
1050 Page Mill Road
Palo Alto, California
<PAGE>
TABLE OF CONTENTS
SECTION 1. DEFINITIONS
1.1. "Agreement"
1.2. "Documents"
1.3. "FF&E"
1.4. "Improvements"
1.5. "Intangible Property"
1.6. "Land"
1.7. "Lease"
1.8. "Premises"
1.9. "Property"
1.10. "Purchase Price"
1.11. "Seller's Knowledge"
1.12. "Title Company"
SECTION 2. PURCHASE AND SALE
2.1. Purchase and Sale
2.2 Exclusion of FF&E
SECTION 3. CLOSING
3.1 Closing
3.2 Purchase Price
SECTION 4. CONDITIONS TO PURCHASERS' OBLIGATION TO CLOSE
4.1 Closing Documents
SECTION 5. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
5.1 Purchase Price
5.2 Closing Documents
SECTION 6. REPRESENTATION AND WARRANTIES OF SELLER
6.1 Status and Authority of Seller
6.2 Action of Seller
6.3 No Violations of Agreements
6.4 Litigation
6.5 Existing Agreements, Etc.
6.6 Disclosure
6.7 Utilities, Etc.
6.8 Compliance With Law
6.9 Taxes
6.10 Hazardous substances
6.11 Insurance
6.12 Rights of Third Parties
6.13 Assessments
6.14 Rent Laws
6.15 Zoning Laws
6.16 Condition of Improvements
6.17 Tax Abatement
6.18 Reduction of Access
6.19 No Condemnation
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASERS
7.1 Status and Authority of Purchasers
7.2 Action of Purchasers
SECTION 8. APPORTIONMENTS
8.1 Real Property Apportionments
8.2 Transactional Expenses
8.3 Survival
SECTION 9. DEFAULT
9.1 Default by Seller
9.2 Default by Purchasers
9.3 Survival
SECTION 10. MISCELLANEOUS
10.1 Agreement to Indemnify
10.2 Brokerage Commissioners
10.3 Publicity
10.4 Notices
10.5 Waivers, Etc.
10.6 Change of Ownership Statements
10.7 Proprietary Rights
10.8 Assignment; Successors and Assigns
10.9 Severability
10.10 Counterparts, Etc.
10.11 Cardinal Capital Partners
10.12 Governing Law
10.13 Venue and Jurisdiction
10.14 Attorneys' Fees
10.15 Section and Other Headings
10.16 Nonliability of Officers
<PAGE>
ASSIGNMENT AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of June 25,
1998, by and between BECKMAN COULTER, INC., a Delaware
corporation ("Seller"), and NPDC-EY PALO ALTO TRUST, a Delaware
business trust ("NPDC-EY"), and NPDC-RI PALO ALTO TRUST, a
Delaware business trust ("NPDC-RI," collectively with NPDC-EY,
the "Purchasers").
RECITALS
WHEREAS, pursuant to that certain Lease dated as of December
28, 1955, between The Board of Trustees of the Leland Stanford
Junior University, a body having corporate powers under the laws
of the State of California ("Stanford"), and Seller, Seller
leases the Property (all capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to such terms in
Section 1) from Stanford;
WHEREAS, the Purchasers desire to purchase Seller's
leasehold interest in the Premises and to purchase the Intangible
Property and the Documents, as more fully set forth below; and
WHEREAS, the Seller is willing to sell its leasehold
interests in the Property to the Purchasers, subject to and upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby
acknowledged, the Seller and the Purchasers hereby agree as
follows:
SECTION 1
DEFINITIONS
Capitalized terms used in this Agreement shall have the
meanings set forth below or in the Section of this Agreement
referred to below:
1.1 "Agreement" shall mean this Assignment and Sale
Agreement, including all Schedules and Exhibits hereto, as it and
they may be amended from time to time as herein provided.
1.2 "Documents" shall mean all books, records and
files relating to the operation, maintenance, management or
leasing of the Premises belonging to the Seller.
1.3 "FF&E" shall mean all appliances, trade fixtures,
appurtenances, equipment (including, without limitation, machine
racking, shelving, conveyor equipment and lifts), furniture,
inventory, furnishings and articles of tangible personal property
of every kind and nature whatsoever owned by the Seller and
located in or at, or used in connection with the operation of the
current tenant's business at the Premises, but specifically
excluding fixtures and equipment attached to the Premises and
used in connection with the operation of the Premises (e.g., HVAC
system equipment and fixtures), but excluding the property listed
on Schedule B attached hereto and made a part hereof.
1.4 "Improvements" shall mean all buildings, fixtures,
equipment, walls, fences, landscaping and other structures and
improvements (excluding the FF&E) situated on, affixed or
appurtenant to the Land.
1.5 "Intangible Property" shall mean all books,
records and files relating to the maintenance, management or
operation of the Premises belonging to the Seller; all
transferable or assignable permits, certificates of occupancy,
operating permits, sign permits, development rights and
approvals, certificates, licenses, warranties and guarantees,
rights to deposits, and all other transferable intangible
property, miscellaneous rights, benefits and privileges of any
kind or character belonging to the Seller with respect to the
Premises, in each case to the extent Seller's interest therein is
assignable or transferable but excluding any intangible property
owned or belonging to the Seller in connection with the FF&E and
exclusive of equipment leases, trade names, service marks, and
telephone exchange numbers.
1.6 "Land" shall mean the applicable tract, piece and
parcel of land, as more particularly described in Schedule A
attached hereto and made a part hereof, together with all
easements, rights and appurtenances relating thereto.
1.7 "Lease" shall mean the lease to be entered into
between NPDC-EY, as Landlord, NPDC-RI, as Remainder Landlord, and
the Seller, as Tenant, with respect to the Premises and shall
include the Lease Modification Agreement dated as of the date
hereof between the Purchaser, as landlord, and Seller, as tenant.
1.8 "Premises" shall mean, collectively, the Land and
the Improvements.
1.9 "Property" shall mean, collectively, the Premises,
Intangible Property and Documents.
1.10 "Purchase Price" shall have the meaning given such
term in Section 2.1.
1.11 "Seller's Knowledge" shall mean, for Seller, the
actual knowledge of, including any written notices received by,
any officers of the Seller.
1.12 "Title Company" shall mean First American Title
Insurance Company.
SECTION 2.
PURCHASE AND SALE
2.1 Purchase and Sale. In consideration of the mutual
covenants herein contained, Purchasers hereby agree to purchase
from Seller, and Seller hereby agrees to sell to Purchasers, all
of Seller's right, title and interest in and to the Property for
$90,522,000 (the "Purchase Price"), subject to and in accordance
with the terms and conditions of this Agreement.
2.2 Exclusion of FF&E. The FF&E shall remain the
property of the Seller and is not included in the transaction
contemplated herein.
SECTION 3.
CLOSING
3.1 Closing. The closing of the sale and purchase of
the Property (the "Closing") shall take place at the offices of
Latham & Watkins, 633 W. Fifth Street, Suite 4000, Los Angeles,
California at 10:00 AM, local time, on June 25, 1998, or at such
other place, at such other time and on such other date as shall
be mutually agreed upon by the Seller and Purchasers (the actual
date of the Closing being herein referred to as the "Closing
Date").
3.2 Purchase Price. The Purchase Price shall be
payable by Purchasers to the Seller in the amount set forth in
Section 2.1, and shall be payable on the Closing Date by wire
transfer of immediately available funds to the account or
accounts designated by the Seller by notice to Purchasers prior
to the Closing Date.
SECTION 4.
CONDITIONS TO PURCHASERS' OBLIGATION TO CLOSE
The obligation of Purchasers to acquire the Property on
the Closing Date shall be subject to the satisfaction of the
following conditions on and as of the Closing Date:
4.1 Closing Documents. Seller shall have delivered to
Purchasers or their designees:
(a) Assignments of Ground Lease Interests, with
respect to the Premises, in proper statutory form for recording,
duly executed and acknowledged by Seller, conveying Seller's
leasehold interests in the Premises, in form and substance
satisfactory to Purchasers and to the Title Company;
(b) Bills of Sale, in form and substance
reasonably satisfactory to Seller and Purchasers, duly executed
and acknowledged by Seller, with respect to all of the Seller's
right, title and interest in, to and under the Documents, and the
Intangible Property, and any items of personal property included
on Schedule B to be conveyed to Purchasers in accordance with the
terms of this Agreement;
(c) A non-foreign affidavit with respect to
Seller as required by Internal Revenue Code Section 1445(b)(2)
and the regulations issued thereunder, for the Premises conveyed;
(d) To the extent the same are in the Seller's
possession, copies of agreements pertaining to the Property;
(e) The Lease, duly executed by Seller;
(f) An opinion of Seller's counsel addressed to
Purchasers and Purchasers' lender that the Lease (i) has been
duly executed and delivered by Seller and (ii) is enforceable in
accordance with its terms under the laws of the State of
California, except for bankruptcy, equitable principles and other
customary exceptions thereto;
(g) A certificate of Seller's Secretary or
Assistant Secretary evidencing that those officers acting for
Seller have full authority to consummate the transactions
contemplated by this Agreement, including the execution of the
Lease. Such evidence shall recite resolutions of the board of
directors of Seller;
(h) An Owner's Policy of Title Insurance (a
"Title Policy") on the current ALTA form with a so-called
"extended coverage" endorsement issued through the Title Company
and insuring, for an amount equal to the Purchase Price, that
good and marketable leasehold title to the Premises is vested in
Purchasers;
(i) An as-built survey of the Premises, dated
within ninety (90) days of the Closing Date and certified to
Purchasers, Purchasers' lender and the Title Company, which has
been prepared in accordance with the "Minimum Standard Detail
Requirements for Land Title Surveys" jointly established by ALTA
and ACSM;
(j) Unless required to be posted at the
Improvements, the original, or a certified copy of the current
certificate of occupancy or its legal equivalent for the
Property, with all amendments thereto (unless the municipality
where the Improvements are located does not issue such
certificate or its legal equivalent); and
(k) Such other conveyance documents,
certificates, deeds, affidavits and other instructions as
Purchasers or the Title Company may reasonably require.
SECTION 5.
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
The obligation of the Seller to convey the Property on
the Closing Date to Purchasers is subject to the satisfaction of
the following conditions precedent on and as of the Closing Date:
5.1. Purchase Price. Purchasers shall deliver to the
Seller the Purchase Price as provided in Section 3.2.
5.2. Closing Documents. Purchasers shall have
delivered to Seller:
(a) The Lease, duly executed by Purchasers;
(b) An opinion of Purchasers' counsel addressed
to Seller that Purchasers have the requisite power and authority
and have taken all necessary action to enter into and perform
their obligations under this Agreement and to consummate the
transactions contemplated hereby;
(c) An opinion of Purchasers' counsel addressed
to Seller that the Qualified Exchange Agreement (as defined in
the Lease Modification Agreement) (i) has been duly executed and
delivered by Purchasers, and (ii) is enforceable in accordance of
the laws of the State of New York, except for bankruptcy,
equitable principles and other customary exceptions thereto;
(d) A Certification from Purchaser as to the
identities and addresses of all beneficial owners of the
Purchaser; and
(e) A duly executed SPE Covenant and Pledge
Agreement from each beneficial owner of Purchaser.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF SELLER
To induce Purchasers to enter into this Agreement,
Seller represents and warrants to Purchasers as of the Closing
Date as follows:
6.1. Status and Authority of Seller. Seller is a
corporation duly organized, validly existing and in corporate
good standing under the laws of the State of Delaware, and has
all requisite power and authority under the laws of the State of
Delaware and its respective charter documents to enter into and
perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. Seller has duly qualified
to transact business in the jurisdiction where the Property is
located.
6.2 Action of Seller. Seller has taken all necessary
action to authorize the execution, delivery and performance of
this Agreement, and upon the execution and delivery of any
document to be delivered by Seller on or prior to the Closing
Date, such document shall constitute the valid and binding
obligation and agreement of Seller, enforceable against Seller in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors.
6.3. No Violations of Agreements. Neither the
execution of this Agreement, nor the consummation by Seller of
the transactions contemplated by this Agreement will (a) result
in a breach of the terms, conditions or provisions of, or
constitute a default under, or result in a termination of, any
agreement or instrument to which Seller is a party, (b) violate
any restriction to which Seller is subject, (c) constitute a
violation of any applicable code, resolution, law, statute,
regulation, ordinance, judgment, rule, decree, or order, or (d)
except as expressly contemplated hereby, result in the creation
of any lien, charge or encumbrance upon the Property. Seller has
received no notice of and, to Seller's Knowledge, is not in
default under any agreement or instrument where the liability
thereunder might adversely affect Seller's ability to perform its
obligations under this Agreement.
6.4 Litigation. Seller has received no written notice
of and, to Seller's Knowledge, no action or proceeding is pending
or threatened and no investigation looking toward such an action
has begun, which (a) questions the validity of this Agreement or
any action taken or to be taken pursuant hereto, or (b) will
result in any material adverse change in the business, operation,
affairs or condition of the Property, or (c) result in or subject
the Property to a material liability, or (d) involves
condemnation or eminent domain proceedings against any part of
the Property.
6.5. Existing Agreements, Etc. To Seller's Knowledge,
other than the agreements provided to Purchasers prior to the
Closing Date, there are no existing material agreements affecting
the Property which will be binding on Purchasers subsequent to
the Closing Date.
6.6 Disclosure. To Seller's Knowledge, there is no
fact or condition which materially and adversely affects the
condition of the Property which has not been set forth in this
Agreement, or in the other documents, certificates or statements
furnished to Purchasers in connection with the transactions
contemplated hereby.
6.7 Utilities, Etc. To Seller's Knowledge, all
utilities and services necessary for the current use and
operation of the Premises (including, without limitation, road
access, gas, water, electricity and telephone) are available
thereto and are of sufficient capacity to meet adequately all
needs and requirements necessary for the current use and
operation of the Premises. To Seller's Knowledge, no fact,
condition or proceeding exists which would result in the
termination or impairment of the furnishing of such utilities to
the Premises.
6.8 Compliance With Law. To Seller's Knowledge, the
Premises and the use and operation thereof do not violate any
material federal, state, municipal and other governmental
statutes, ordinances, by-laws, rules, regulations or any other
legal requirements, including, without limitation, those relating
to construction, occupancy, zoning, adequacy or parking,
environmental protection, occupational health and safety and fire
safety applicable thereto. There are presently in effect all
material licenses, permits and other authorizations necessary for
the current use, occupancy and operation of the Premises. Seller
has not received written notice of any threatened request,
application, proceeding, plan, study, or accord which would
materially adversely affect the present use or zoning of the
Property or which would modify or realign any adjacent street or
highway.
6.9 Taxes. To Seller's Knowledge, other than the
amounts disclosed by tax bills, no taxes or special assessments
of any kind (special, bond or otherwise) are or have been levied
with respect to the Property, or any portion thereof, which are
outstanding or unpaid, other than amounts not yet due and payable
or, if due and payable, not yet delinquent.
6.10 Hazardous Substances. Except as may be disclosed
in any environmental report and related information (the
"Report," as listed on Schedule C) delivered by Seller to
Purchasers prior to the date hereof, to Seller's Knowledge, the
Property is free of any "hazardous substance" (as that term is
defined in the Comprehensive Environmental Response,
Compensation, and Liability Act, and the rules and regulations
promulgated pursuant thereto, as from time to time amended and
any other applicable federal, state or local law, collectively
"laws"), contaminant, oil, radioactive or other materials the
removal of which is required or the maintenance of which is
prohibited by any local, state or federal agency, authority or
governmental unit (such hazardous substances the removal of which
is required and/or the maintenance of which is prohibited being
hereinafter referred to as "Dangerous Substances"). Seller does
not now, nor has it or any of its affiliated entities ever
disposed of any Dangerous Substances on the Property and, except
as disclosed in the Report, to Seller's Knowledge, the Property
was never used for such purpose, and the Property contains no
Dangerous Substances in violation of applicable laws. Except as
disclosed in the Report, to Seller's Knowledge, there are no
underground storage tanks located on the Property in violation of
applicable laws. Neither Seller nor any current tenant nor
occupant of the Property has dumped or landfilled any garbage or
refuse on the Property, and to Seller's Knowledge the Property
was never used for such purpose. Except as may be shown on
surveys of the Property delivered to Purchasers at Closing, to
Seller's Knowledge, the Property is not located within an area
that has been designated by the Federal Insurance Administration,
the Army Corps of Engineers, or any other governmental agency or
body as being subject to special flood areas. Seller hereby
indemnifies and holds Purchasers harmless for and against any
loss, liability, claim or expense (including, without limitation,
cleanup, engineering and attorney's fees and expenses and court
costs) that Purchasers may incur by reason of (i) the Property
containing any Dangerous Substances on or prior to the Closing
Date and (ii) the representation contained in this subsection
being false.
6.11. Insurance. Seller has received no written
notice from any insurance carrier of defects or inadequacies in
the Property which, if uncorrected, would result in a termination
of insurance coverage or an increase in the premium charged
therefor.
6.12. Rights of Third Parties. Except as
previously disclosed to Purchasers or as contained in this
Agreement, the Property is not subject to any agreements of sale,
or any options, or other rights of third parties to acquire any
interest therein.
6.13. Assessments. Seller has received no notice
of and to Seller's Knowledge there is no ordinance pending
authorizing improvements, the cost of which might be assessed
against Purchasers or the Property.
6.14. Rent Laws. Seller has received no notice of
and to Seller's Knowledge there are no rent control or rent
stabilization laws or ordinances which restrict or control the
amount of rent which may be charged for the leasing of the
Premises.
6.15. Zoning Laws. To Seller's Knowledge, the
Property is not in violation of any applicable building and
zoning laws, rules, codes or regulations ("Zoning Laws"). To
Seller's Knowledge, the conformity of the Property (or the use
thereof for its intended purposes) with the Zoning Laws is not
based, in whole or in part, upon the Improvements or the current
uses thereof, being a so-called "non-conforming" use or similar
exemption.
6.16 Condition of Improvements. To Seller's Knowledge,
the Improvements, including the roofs and foundations thereof,
and all fixtures, machinery and equipment attached or appurtenant
to the Improvements and/or used in the operation thereof,
including, but not limited to, the heating, air conditioning,
ventilating, electrical, lighting, elevator and plumbing systems
thereof, located or used in connection with such Improvements,
are in satisfactory and usable condition, and there are no
structural or other material defects therein or the necessity for
any material repairs or replacements thereof.
6.17. Tax Abatement. Except as previously
disclosed to Purchasers, there are no tax abatements, exemptions
or special assessments affecting the Property.
6.18. Reduction of Access. Seller has no knowledge
of any fact or condition existing which would result or could
result in the termination or reduction of the current access from
the Property to existing thoroughfares, or any reduction in or to
sewer or other utility services presently serving the Premises.
6.19. No Condemnation. To Seller's Knowledge, no
condemnation proceedings, eminent domain proceedings or similar
actions or proceedings are now pending, or threatened against the
Premises or any portion thereof.
SECTION 7.
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
To induce the Seller to enter in this Agreement,
Purchasers represent and warrant to the Seller as follows:
7.1. Status and Authority of Purchasers. Purchasers
are business trusts duly organized and validly existing under the
laws of the State of Delaware and have all requisite power and
authority under the laws of such state and under their charter
documents to enter into and perform their obligations under this
Agreement and to consummate the transactions contemplated hereby.
7.2. Action of Purchasers. Purchasers have taken all
necessary action to authorize the execution, delivery and
performance of this Agreement, and upon the execution and
delivery of any document to be delivered by Purchasers on or
prior to any Closing Date such document (other than any Qualified
Exchange Agreement (as defined in the Lease Modification
Agreement)) shall constitute the valid and binding obligation and
agreement of Purchasers, enforceable against Purchasers in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors.
SECTION 8.
APPORTIONMENTS
8.1. Real Property Apportionments. There shall be no
prorations or apportionments hereunder insofar as the Seller
shall be required to pay all items usually prorated in
transactions of the type described herein, including all real
property taxes applicable to any period prior to the Closing
Date.
8.2 Transaction Expenses. The Seller will pay all
fees and expenses associated with the transaction contemplated
hereby, including but not limited to, fees and expenses
associated with the negotiation and preparation of documents,
fees of outside legal counsel for the Seller, but not the
Purchasers, the advisory fees and expenses of Citicorp Real
Estate, Inc., appraisal fees, recording and survey costs,
transfer taxes (including, without limitation, any transfer taxes
triggered or required by recording a Memorandum of Lease) and
title insurance premiums and other title charges. Purchasers
shall bear the fees and expenses of outside legal counsel and
other outside consultants and advisors for Purchasers, including
the costs of such in connection with the negotiation and
preparation of the documents as well as any evaluative surveys
and reports ordered and obtained by Purchasers.
8.3 Survival. The obligations of the parties under
this Section 8 shall survive the Closing.
SECTION 9.
DEFAULT
9.1. Default by Seller. Seller shall indemnify
Purchasers against, and hold Purchasers harmless from, any and
all loss, damage, liability or expense, including court costs and
reasonable attorneys' fees, which Purchasers may incur or sustain
by reason of or arising from (a) any misrepresentation made by or
on behalf of Seller contained herein or in any certificate or
other instrument furnished or to be furnished by Seller
hereunder, or (b) any breach of Seller's warranties, covenants or
representations set forth in Section 6 hereof.
9.2. Default by Purchasers. Purchasers shall indemnify
Seller against and hold Seller harmless from any and all loss,
damage, liability or expense, including court costs and
reasonable attorneys' fees, which Seller may incur or sustain by
reason of, or arising from, any misrepresentation made by
Purchasers contained herein.
9.3. Survival. The provisions of this Section 9 shall
survive the Closing for a period of two (2) years.
SECTION 10.
MISCELLANEOUS
10.1. Agreement to Indemnify.
(a) Subject to any express provisions of this
Agreement to the contrary, Seller shall indemnify and hold
harmless Purchasers from and against any and all obligations,
claims, losses, damages, liabilities, and expenses (including,
without limitation, reasonable attorneys' and accountants' fees
and disbursements) arising out of events, contractual
obligations, acts or omissions of the Seller that occurred in
connection with the ownership or operation of the Property prior
to the Closing, or any damage to property of others or injury to
or death of any person or any claims for any debts or obligations
occurring on or about or in connection with the Property or any
portion thereof at any time or times prior to the Closing.
(b) Whenever any party shall learn through the
filing of a claim or the commencement of a proceeding or
otherwise of the existence of any liability for which the other
party is or may be responsible under this Agreement, the party
learning of such liability shall notify the other party promptly
and furnish such copies of documents (and make originals thereof
available) and such other information as such party may have that
may be used or useful in the defense of such claims and shall
afford said other party full opportunity to defend the same in
the name of such party and shall generally cooperate with said
other party in the defense of any such claim.
(c) The provisions of this Section 10.1 shall
survive the Closing and the termination of this Agreement.
10.2. Brokerage Commissions. Each of the parties
hereto represents to the other parties that, except for Citicorp
Real Estate, Inc., it dealt with no broker, finder or like agent
in connection with this Agreement or the transactions
contemplated hereby, and that it reasonably believes that there
is no basis for any other person or entity to claim a commission
or other compensation for bringing about this Agreement or the
transactions contemplated hereby. Seller shall indemnify and
hold harmless Purchasers and their respective legal
representatives, heirs, successors and assigns from and against
any loss, liability or expense, including, reasonable attorneys'
fees, arising out of any claim or claims for commissions or other
compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder or
like agent, if such claim or claims are based in whole or in part
on dealings with Seller. Purchasers shall indemnify and hold
harmless Seller and each of its legal representatives, heirs,
successors and assigns from and against any loss, liability or
expense, including, reasonable attorneys' fees, arising out of
any claim or claims for commissions or other compensation for
bringing about this Agreement or the transactions contemplated
hereby made by any broker, finder or like agent, if such claim or
claims are based in whole or in part on dealings with Purchasers,
other than any such claim made by Citicorp Real Estate, Inc.
Seller shall pay the commission of Citicorp Real Estate, Inc.
pursuant to a separate agreement with Citicorp Real Estate, Inc.
Nothing contained in this section shall be deemed to create any
rights in any third party. The provisions of this Section 10.2
shall survive the Closing and any termination of this Agreement.
10.3. Publicity. Except as required by law or
contractual obligations, the parties agree that no party shall,
with respect to this Agreement and the transactions contemplated
hereby, contact or conduct negotiations with public officials,
make any public pronouncements, or otherwise furnish information
regarding this Agreement or the transactions contemplated to any
third party without the consent of the other party, which consent
shall not be unreasonably withheld; provided, however, that the
parties may issue press releases, enter into discussions with
rating agencies, and respond to inquiries from investors. No
party, or its employees shall trade in the securities of any
parent or affiliate of Seller or of Purchasers until a public
announcement of the transactions contemplated by this Agreement
has been made. No party shall record this Agreement or any
notice thereof.
10.4. Notices.
(a) All notices, demands, requests, consents,
approvals, offers, statements and other instruments or
communications required or permitted to be given pursuant to the
provisions of this Agreement (collectively "Notice" or "Notices")
shall be in writing and shall be deemed to have been given for
all purposes (i) three (3) days after having been sent by United
States mail, by registered or certified mail, return receipt
requested, postage prepaid, addressed to the other party at its
address as stated below, (ii) one (1) day after having been sent
by Federal Express or other nationally recognized air courier
service, to the Addresses stated below or (iii) one (1) day after
having been transmitted via facsimile, provided that a conforming
signed original is mailed to the party to receive the notice on
the date it is transmitted:
If to Seller
Office of General Counsel
Beckman Coulter, Inc.
4300 N. Harbor Boulevard
Fullerton, California 92834-3100
Facsimile No.: (714) 773-7936
with copy to:
Latham & Watkins
633 West 5th Street
Suite 4000
Los Angeles, California 90071
Attention: Martha B. Jordan, Esq.
Facsimile No.: (213) 891-8763
If to Purchasers
NPDC-EY PALO ALTO TRUST/NPDC-RI PALO ALTO TRUST
c/o Cardinal Capital Partners, Inc.
8411 Preston Road
Dallas, Texas 75225
Facsimile No.: (214) 696-9845
with copy to:
Goldfarb & Fleece
345 Park Avenue
New York, New York 10154
Attention: Steven B. Shore, Esq.
Facsimile No.: (212) 751-3738
(b) Upon not less than fifteen (15) days written
notice to the other party, Seller or Purchasers shall each have
the right to (i) add a copy party and a copy address to those
specified above, (ii) change its address specified above, and
(iii) change its copy addressee or copy address specified above
or specified in a notice delivered pursuant to subparagraph (a)
above.
10.5. Waivers, Etc. Any waiver of any term or
condition of this Agreement, or of the breach of any covenant,
representation or warranty contained herein, in any one instance,
shall not operate as or be deemed to be or construed as a further
or continuing waiver of any other breach of such term, condition,
covenant, representation or warranty or any other term,
condition, covenant, representation or warranty, nor shall any
failure at any time or times to enforce or require performance of
any provision hereof operate as a waiver of or affect in any
manner such party's right at a later time to enforce or require
performance of such provision or any other provision hereof. This
Agreement may not be amended, nor shall any waiver, change,
modification, consent or discharge be effected, except by an
instrument in writing executed by or on behalf of the party
against whom enforcement of any amendment, waiver, change,
modification, consent or discharge is sought.
10.6. Change of Ownership Statements. Prior to
filing any change of ownership statements, if any, with any
governmental authority or agency in connection with the sale
pursuant to this Agreement, Purchasers shall provide Seller with
copies of such statements. Notwithstanding the provisions of
Section 10.4, if Landlord provides such copies by facsimile, same
shall be deemed to have been given on the date transmitted.
10.7. Proprietary Rights. This Agreement does not
grant to Purchasers any right, title, or interest in or to
Seller's proprietary rights or information, including, but not
limited to Seller's name, trade marks, trade names, trade dress,
trade symbols, copyrights, patents, patent applications,
inventions, trade secrets, product names or designations, model
names or numbers, processes, models, prototypes, designs, or
formulas and Seller specifically retains the right to remove any
personal property or signage which includes any such proprietary
rights or information and may remove any such proprietary rights
from the property.
10.8 Assignment; Successors and Assigns. This
Agreement and all rights and obligations hereunder shall not be
assignable by any party without the written consent of the other
parties. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns. This
Agreement is not intended and shall not be construed to create
any rights in or to be enforceable in any part by any other
persons.
10.9. Severability. If any provision of this
Agreement shall be held or deemed to be, or shall in fact be,
invalid, inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all
jurisdictions or in all cases, because of the conflict of any
provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have
the effect of rendering the provision or provisions in question
invalid, inoperative or unenforceable in any other jurisdiction
or in any other case or circumstance or of rendering any other
provision or provisions herein contained invalid, inoperative or
unenforceable to the extent that such other provisions are not
themselves actually in conflict with such constitution, statute
or rule of public policy, but this Agreement shall be reformed
and construed in any such jurisdiction or case as if such
invalid, inoperative or unenforceable provision had never been
contained herein and such provision reformed so that it would be
valid, operative and enforceable to the maximum extent permitted
in such jurisdiction or in such case.
10.10. Counterparts, Etc. This Agreement may be
executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement constitutes the
entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede and take the place of
any other instruments purporting to be an agreement of the
parties hereto relating to the subject matter hereof. This
Agreement may not be amended or modified in any respect other
than by the written agreement of all of the parties hereto.
10.11. Cardinal Capital Partners. For all purposes
under Section 6 of this Agreement, disclosure to Cardinal Capital
Partners, Inc., a Texas corporation, shall be deemed to be a
disclosure to Purchasers.
10.12. Governing Law. This Agreement shall be
interpreted, construed, applied and enforced in accordance with
the laws of the State of California, regardless of (i) where this
Agreement is executed or delivered; or (ii) where any payment or
other performance required by this Agreement is made or required
to be made; or (iii) where any breach of any provision of this
Agreement occurs, or any cause of action otherwise accrues; or
(iv) where any action or other proceeding is instituted or
pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or
domestication of any party; or (vi) whether the laws of the forum
jurisdiction otherwise would apply the laws of a jurisdiction
other than the State of California; or (vii) any combination of
the foregoing.
10.13. Venue and Jurisdiction. To the maximum extent
permitted by applicable law, any action to enforce, arising out
of, or relating in any way to, any of the provisions of this
Agreement may be brought and prosecuted in such court or courts
located in the State of California as is provided by law; and the
parties consent to the jurisdiction of said court or courts
located in the State of California and to service of process by
registered mail, return receipt requested, or by any other manner
provided by law.
10.14. Attorneys' Fees. If any lawsuit or arbitration
or other legal proceeding arises in connection with the
interpretation or enforcement of this Agreement, the prevailing
party therein shall be entitled to receive from the other party
the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in connection therewith, in preparation
therefor and on appeal therefrom, which amounts shall be included
in any judgment therein.
10.15. Section and Other Headings. The headings
contained in this Agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation of this
Agreement.
10.16. Nonliability of Officers. NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF SELLER OR OF PURCHASERS SHALL
BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, SELLER OR PURCHASERS. ALL
PERSONS DEALING WITH SELLER OR PURCHASERS, IN ANY WAY, SHALL LOOK
ONLY TO THE ASSETS OF SELLER OR PURCHASERS, AS APPLICABLE, FOR
THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed as a sealed instrument as of the date
first above written.
SELLER:
BECKMAN COULTER, INC.
By: James T. Glover
Its: Vice President and Controller
PURCHASERS:
NPDC-EY PALO ALTO TRUST
By: M. SCOTT KIPP
Its: Administrative Trustee
NPDC-RI PALO ALTO TRUST
By: M. SCOTT KIPP
Its: Administrative Trustee
<PAGE>
Schedule A - LEGAL DESCRIPTION OF THE LAND
Schedule B - LIST OF FF&E BEING TRANSFERRED
Schedule C - LIST OF ENVIRONMENTAL REPORTS
<PAGE>
EXHIBIT 2.5
Execution Copy
LEASE
among
BECKMAN COULTER, INC.
as Tenant
NPDC - EY BREA TRUST
as Landlord
and
NPDC - RI BREA TRUST
as Remainder Landlord
Dated June 25, 1998
PROPERTY
200 and 250 S. Kraemer Boulevard
Brea, California
<PAGE>
TABLE OF CONTENTS
1. Certain Definitions...............................................1
2. Demise of Premises; Use of Personal Property......................6
3. Term..............................................................7
4. Rent..............................................................8
5. Net Lease.........................................................9
6. Title and Condition..............................................11
7. Taxes; Insurance and Legal Requirements..........................12
8. Use..............................................................13
9. Maintenance and Repair...........................................14
10. Liens............................................................16
11. Alterations......................................................16
12. Condemnation.....................................................17
13. Insurance........................................................20
14. Damage, Destruction..............................................22
15. Restoration......................................................24
16. Subordination to Financing.......................................26
17. Assignment; Subleasing...........................................28
18. Permitted Contests...............................................29
19. Default..........................................................31
20. Landlord's Remedies..............................................33
21. Notices..........................................................35
22. Memorandum of Lease; Estoppel Certificates.......................36
23. Surrender and Holding Over.......................................37
24. No Merger of Title...............................................38
25. Landlord and Lender Exculpation..................................39
26. Hazardous Substances.............................................39
27. Right of First Refusal to Purchase...............................41
28. Purchase Procedure...............................................43
29. Entry by Landlord and Lender.....................................45
30. Statements.......................................................46
31. No Usury.........................................................46
32. Broker...........................................................46
33. Waiver of Landlord's Lien........................................47
34. No Waiver........................................................47
35. Separability.....................................................47
36. Indemnification..................................................48
37. Permitted Encumbrances...........................................49
38. Headings.........................................................49
39. Modifications....................................................49
40. Successors, Assigns..............................................50
41. Merger...........................................................50
42. Confidentiality..................................................50
43. Specific Requirements of Special Purpose Entity..................51
44. Joinder of Remainder Landlord....................................56
45. Counterparts.....................................................57
46. Time of the Essence..............................................57
47. Governing Law....................................................57
<PAGE>
THIS LEASE AGREEMENT is made as of this 25th day of June,
1998, by and between NPDC - EY BREA TRUST, a Delaware business
trust, having an office at c/o Cardinal Capital Partners, Inc.,
8411 Preston Road, 8th Floor, Dallas, Texas 75225-5520
("Landlord"), NPDC - RI BREA TRUST, a Delaware business trust
("Remainder Landlord"), having an office at c/o Cardinal Capital
Partners, Inc., 8411 Preston Road, 8th Floor, Dallas, Texas 75225-
5520 , and BECKMAN COULTER, INC., a Delaware corporation, having
its principal office at 4300 N. Harbor Boulevard, P.O. Box 3100,
Fullerton, California 92834-3100, ("Tenant").
In consideration of the rents and provisions herein
stipulated to be paid and performed, Landlord and Tenant hereby
covenant and agree as follows:
1. Certain Definitions.
(a) "Additional Rent" shall mean all sums required to
be paid by Tenant to Landlord hereunder other than Basic Rent and
Non-Rent Monetary Obligations, which sums shall constitute rental
hereunder.
(b) "Affiliate" shall mean, as to any Person, any
other Person that, directly or indirectly, is in Control of, is
Controlled by or is under common Control with such Person or is a
director or officer of such Person or of an Affiliate of such
Person.
(c) "Adjoining Property" shall mean all sidewalks,
curbs, and vault spaces adjoining any of the Leased Premises.
(d) "Alteration" or "Alterations" shall mean any or
all changes, additions, improvements, reconstructions or
replacements of any of the Improvements or any personal property
of Landlord, both interior or exterior, and ordinary and
extraordinary; provided that any personal property of the
Landlord which is listed on Exhibit D ("Tenant's Severable
Personal Property") which is hereinafter replaced by Tenant shall
become Trade Fixtures owned by the Tenant.
(e) "Basic Rent" shall mean Basic Rent as defined in
Section 4.
(f) "Basic Rent Payment Dates" shall mean the Basic
Rent Payment Dates as defined in Section 4.
(g) "Beneficiary" shall mean the holder of the
beneficial interest in Landlord or any permitted successors or
assigns.
(h) "Business Day" shall mean any day other than a
Saturday, Sunday or any other day on which the banking
institutions in the State of New York are authorized by law or
executive action to close.
(i) "Commencement Date" shall mean the Commencement
Date as defined in Section 3.
(j) "Condemnation" shall mean a Taking and/or a
Requisition.
(k) "Control" (including "Controlled by") shall mean
with respect to any Person either (i) ownership, directly or
through other entities, of more than 50% of all beneficial equity
interest in such Person, and (ii) the power to direct the
management, operation and business of such Person.
(l) "Default Rate" shall mean an annual rate of
interest equal to the Prime Rate plus five (5) percentage points,
but in no event greater than the maximum interest rate permitted
by Legal Requirements.
(m) "Event of Default" shall mean an Event of Default
as defined in Section 19.
(n) "Insurance Requirement" or "Insurance
Requirements" shall mean, as the case may be, any one or more of
the terms of each insurance policy required to be carried by
Tenant under this Lease and the requirements of the issuer of
such policy, and whenever Tenant shall be engaged in making any
Alteration or Alterations, repairs or construction work of any
kind (collectively, "Work"), the term "Insurance Requirement" or
"Insurance Requirements" shall be deemed to include a requirement
that Tenant obtain or cause its contractor to obtain completed
value builder's risk insurance when the estimated cost of the
Work in any one instance exceeds the sum of One Hundred Thousand
($100,000.00) Dollars and that Tenant or its contractor shall
obtain worker's compensation insurance or other adequate
insurance coverage covering all persons employed in connection
with the Work, whether by Tenant, its contractors or
subcontractors and with respect to whom death or bodily injury
claims could be asserted against Landlord.
(o) "Intangible Property" shall mean all books,
records and files relating to the maintenance, management or
operation of the Leased Premises belonging to the Landlord or
Tenant; all permits, certificates of occupancy, operating
permits, sign permits, development rights and approvals,
certificates, licenses, warranties and guarantees, rights to
deposits, and all other intangible property, miscellaneous
rights, benefits and privileges of any kind or character
belonging to Landlord with respect to the Leased Premises.
(p) "Law" shall mean any constitution, statute or rule
of law.
(q) "Lease Modification Agreement" shall mean the
Lease Modification Agreement dated of even date herewith, with
respect to the Leased Premises by and between the Landlord and
the Tenant.
(r) "Legal Requirement" or "Legal Requirements" shall
mean, as the case may be, any one or more of all present and
future laws, codes, ordinances, orders, judgments, decrees,
injunctions, rules, regulations and requirements, even if
unforeseen or extraordinary, of every duly constituted
governmental authority or agency (but excluding those which by
their terms are not applicable to and do not impose any
obligation on Tenant, Landlord or the Leased Premises) and all
covenants, restrictions and conditions now or hereafter of record
which may be applicable to Tenant, to Landlord or to any of the
Leased Premises, or to the use, manner of use, occupancy,
possession, operation, maintenance, alteration, repair or
reconstruction of any of the Leased Premises, even if compliance
therewith (i) necessitates structural changes or improvements
(including changes required to comply with the "Americans with
Disabilities Act") or results in interference with the use or
enjoyment of any of the Leased Premises or (ii) requires Tenant
to carry insurance other than as required by the provisions of
this Lease.
(s) "Lender" shall mean the entity identified to
Tenant as such in writing, which makes a Loan to Landlord,
secured in whole or in part by a Mortgage and evidenced by a Note
or which is the holder of a Mortgage and Note as a result of an
assignment thereof, and when a Mortgage secures multiple Notes
held by one or more noteholders, the trustee acting on behalf of
such holders, provided such trustee has been identified as such
in writing to Tenant.
(t) "Loan" shall mean a loan made by a Lender to
Landlord secured in whole or in part by a Mortgage and evidenced
by a Note or Notes.
(u) "Loan Repayment Date" shall mean the date of
payment in full of all Loans outstanding to all Lenders and the
release or reconveyance of all Mortgages of all Lenders.
(v) "Mortgage" shall mean a first priority mortgage or
similar security instrument hereafter executed covering the
Leased Premises from Landlord to Lender.
(w) "Net Award" shall mean the entire award payable to
Landlord by reason of a Condemnation, less any actual and
reasonable expenses incurred by Landlord in collecting such
award.
(x) "Net Proceeds" shall mean the entire proceeds of
any property casualty insurance required under Section 12(a),
less any actual and reasonable expenses incurred by Landlord or
Tenant in collecting such proceeds.
(y) "Non-Rent Monetary Obligations" shall mean any
liquidated damages, penalties, fines, or late fees which Tenant
assumes or agrees to pay or discharge pursuant to this Lease.
(z) "Note" or "Notes" shall mean a promissory note or
notes hereafter executed from Landlord to Lender, which Note or
Notes will be secured in whole or in part by a Mortgage and an
assignment of leases and rents.
(aa) "Permitted Encumbrances" shall mean those
covenants, restrictions, reservations, liens, conditions,
encroachments, easements and other matters of title that affect
the Leased Premises as of Landlord's acquisition thereof, but
excepting any such matters arising from the acts of Landlord
(such as liens arising as a result of judgments against
Landlord).
(bb) "Person" shall mean any individual, corporation,
partnership, joint venture, estate, trust, unincorporated
association, any federal, state, county or municipal government
or any bureau, department or agency thereof and any fiduciary
acting in such capacity on behalf of any of the foregoing.
(cc) "Prime Rate" shall mean the rate of interest
announced publicly by Citibank, N.A. or its successor, from time
to time, as Citibank N.A.'s or such successor's base rate, or if
there be no such base rate, then the rate of interest charged by
Citibank, N.A. or such successor to its most creditworthy
customers on commercial loans having a ninety (90) day duration.
(dd) "Purchase Procedure" shall mean the procedure set
forth in Section 28 to be used if any circumstance described
herein wherein Tenant exercises its right of first refusal to
purchase the Leased Premises.
(ee) "Qualified Purchaser" shall mean any person or
entity which is a "United States Person" within the meaning of
Section 7701(a)(30) of the Internal Revenue Code of 1986 as
amended (the "Code"), and as to which withholding of tax under
section 1441 of the Code and the Regulations thereunder is not
required who does not: (i) manufacture or sell products which
are the same as or substantially the same as products
manufactured or sold by Tenant, or (ii) conduct substantially the
same type of manufacturing operations as Tenant.
(ff) "Requisition" shall mean any temporary
condemnation or confiscation of the use or occupancy of any of
the Leased Premises by any governmental authority, civil or
military, whether pursuant to an agreement with such governmental
authority in settlement of or under threat of any such
requisition or confiscation, or otherwise.
(gg) "Restoration" shall mean the restoration of the
Leased Premises after any Taking or damage by casualty as nearly
as possible to their value, condition and character existing
immediately prior to such Taking or damage and shall include the
demolition, planning, and permitting periods required to complete
such restoration.
(hh) "State" shall mean the state in which the Leased
Premises are situated.
(ii) "Taking" shall mean any taking of any of the
Leased Premises in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or by reason
of any agreement with any condemnor in settlement of or under
threat of any such condemnation or other eminent domain
proceedings.
(jj) "Taxes" shall mean taxes of every kind and nature
(including real, ad valorem and personal property, income,
franchise, withholding, profits and gross receipts taxes), all
charges and/or taxes for any easement or agreement maintained for
the benefit of any of the Leased Premises, all general and
special assessments, levies, permits, inspection and license
fees, all utility charges, all ground rents, and all other public
charges and/or taxes whether of a like or different nature, even
if unforeseen or extraordinary, imposed upon or assessed, prior
to or during the Term, against Landlord, Tenant or any of the
Leased Premises as a result of or arising in respect of the
occupancy, leasing, use, maintenance, operation, management,
repair or possession thereof, or any activity conducted on the
Leased Premises, or the Basic Rent, Additional Rent, or Non-Rent
Monetary Obligations, including without limitation, any gross
income tax, sales tax, occupancy tax or excise tax levied by any
governmental body on or with respect to such Basic Rent,
Additional Rent, or Non-Rent Monetary Obligations, but
specifically excluding those items enumerated in Section 7.
(kk) "Term" shall mean the initial term of this Lease,
as extended pursuant to any renewal that has become effective.
(ll) "Trade Fixtures" shall mean all movable walls and
partitions, base and wall cabinets, computer power system (UPS
units), paging system, telephone system, trash compactors,
laboratory casework, security system, telephone/data system,
projection screens, emergency generators, demountable metal
partitions, warehouse racking systems, trade equipment and trade
machinery (including, without limitation, machinery racking,
conveyor equipment, lifts, and appliances), counters, cases,
furniture, inventory, shelving and similar fixtures (even if
affixed to the Improvements (as hereinafter defined)), and
articles of tangible personal property of every kind and nature
whatsoever, which are owned or leased by Tenant (other than
personal property of Landlord which Tenant is permitted to use
pursuant to this Lease) and used in the operation of the business
conducted on the Leased Premises and all modifications,
replacements, alterations and additions to such property.
2. Demise of Premises; Use of Personal Property.
(a) Landlord hereby demises and lets to Tenant and
Tenant hereby takes and leases from Landlord for the Term and
upon the provisions hereinafter specified the following described
property (collectively, the "Leased Premises"): (i) the premises
described in Exhibit "A" attached hereto and made a part hereof
together with the easements, rights and appurtenances thereunto
belonging or appertaining (collectively, the "Land"); (ii) the
buildings, structures, fixtures and other improvements
constructed and to be constructed on the Land (collectively, the
"Improvements"), together with all additions and accessions
thereto, substitutions therefor and replacements thereof
permitted by this Lease excepting therefrom Tenant's Trade
Fixtures and all property that does not constitute real property
under the laws of the State.
(b) Landlord hereby authorizes, without any
compensation except as provided in this Lease, Tenant to use any
and all personal property and Intangible Property of Landlord
located on the Leased Premises and Landlord shall not remove, or
authorize the removal of, any such personal property and
Intangible Property from the Leased Premises. All of Tenant's
obligations with respect to Leased Premises shall also apply to
all such personal property and Intangible Property. Tenant shall
have the right to inspect, examine and photocopy (at Tenant's
expense) any and all such personal property and Intangible
Property.
3. Term.
(a) Tenant shall have and hold the Leased Premises for
an initial term commencing on the date hereof (the "Commencement
Date") and ending on June 30, 2018 (the "Expiration Date").
(b) Provided the Lease shall not have been terminated
pursuant to the provisions hereof, this Lease and the term
thereof may be extended for up to six (6) renewal terms of five
(5) years each upon Tenant giving notice, in accordance with the
provisions of Section 21, to Landlord of such renewal at least
twelve (12) months prior to the expiration of the then current
Term, time being deemed to be of the essence with respect to
Tenant's exercise of such renewal option. Any such extension or
renewal of the Term shall be subject to all of the provisions of
this Lease, and all such provisions shall continue in full force
and effect In the event that Tenant fails to timely renew the
Term as hereinabove provided, then Landlord shall have the right
in addition to any rights granted in Section 29, during the
remainder of the Term then in effect to (i) advertise the
availability of the Leased Premises for sale or for reletting,
and (ii) show the Leased Premises to prospective Qualified
Purchasers, lenders or tenants at such reasonable times during
normal business hours as Landlord may select. If Tenant fails to
timely renew the Term as hereinabove provided, then all options
with regard to subsequent extensions or renewals of the Term
shall expire and be null and void.
4. Rent.
(a) Tenant shall pay to Landlord or Lender on behalf
of Landlord, if directed by Landlord, as annual rent for the
Leased Premises during the Term ("Basic Rent"), the sum of Seven
Million One Hundred Ninety-eight Thousand Four Hundred
($7,198,400) dollars during the initial term and the sums set
forth on Exhibit "B" for the renewal terms, which rent shall be
paid in equal monthly installments in advance commencing on the
first Business Day of the second month next following the
Commencement Date and continuing on the first Business Day of
each month thereafter during the Term (the said days being called
the "Basic Rent Payment Dates"), and shall pay the same at NPDC -
EY Brea Trust, c/o Cardinal Capital Partners, Inc., 8411 Preston
Road, 8th Floor, Dallas, Texas 75225-5520, or at such other place
or to such other person on behalf of Landlord as Landlord from
time to time may designate to Tenant in writing, in funds which
at the time of such payment shall be legal tender for the payment
of public or private debts in the United States and if required
by Lender by wire transfer in immediately available federal funds
to such account in such bank as Lender shall designate from time
to time. Basic Rent for the period from the Commencement Date to
the first day of the second month next following the Commencement
Date shall be paid on the date provided as the first payment date
under the Qualified Exchange Agreement (as defined in the Lease
Modification Agreement) with respect to this Lease and shall be
calculated on a prorata basis.
(b) If any installment of Basic Rent is not paid on
the date due, Tenant shall pay Landlord interest on such overdue
payment at the Default Rate, accruing from the due date of such
payment until the same is paid.
(c) Tenant shall pay as and discharge before the
imposition of any fine, lien, interest or penalty that may be
added thereto for late payment thereof, as Non-Rent Monetary
Obligations, all other amounts and obligations which Tenant
assumes or agrees to pay or discharge pursuant to this Lease,
together with every fine, penalty, interest and cost which may be
added by the party to whom such payment is due for nonpayment or
late payment thereof. In the event of any failure by Tenant to
pay or discharge any of the foregoing, Landlord and Lender shall
have all rights, powers and remedies provided herein, by law or
otherwise, in the event of nonpayment of Basic Rent. Landlord and
Lender shall have the right to make such payment, in which case
Tenant shall immediately reimburse such payment (including
interest at the Default Rate) to Landlord or Lender, as the case
may be. Any Additional Rent or Non-Rent Monetary Obligations
payable to Landlord shall be paid in lawful money of the United
States to the party to whom Basic Rent is paid.
5. Net Lease.
(a) It is the intention of the parties hereto that the
obligations of Tenant hereunder shall be separate and independent
covenants and agreements, and that Basic Rent, Additional Rent,
Non-Rent Monetary Obligations and all other sums payable by
Tenant hereunder shall continue to be payable in all events, and
that the obligations of Tenant hereunder shall continue
unaffected, unless the requirement to pay or perform the same
shall have been terminated pursuant to an express provision of
this Lease. This is a net Lease and Basic Rent, Additional Rent,
Non-Rent Monetary Obligations and all other sums payable
hereunder by Tenant shall be paid without notice or demand, and
without setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense, except as
otherwise specifically set forth herein. This Lease shall not
terminate and Tenant shall not have any right to terminate this
Lease during the Term (except as otherwise expressly provided
herein). Tenant agrees that, except as otherwise expressly
provided herein, it shall not take any action to terminate,
rescind or avoid this Lease notwithstanding (i) the bankruptcy,
insolvency, reorganization, composition, readjustment,
liquidation, dissolution, winding-up or other proceeding
affecting Landlord, (ii) the exercise of any remedy, including
foreclosure, under the Mortgage, (iii) any action with respect to
this Lease (including the disaffirmance hereof) which may be
taken by Landlord under the Federal Bankruptcy Code or by any
trustee, receiver or liquidator of Landlord or by any court under
the Federal Bankruptcy Code or otherwise, (iv) the Taking of the
Leased Premises or any portion thereof (except as specifically
provided in Section 12(b) below), (v) the prohibition or
restriction of Tenant's use of the Leased Premises under any
Legal Requirement or otherwise, (vi) the destruction of the
Leased Premises or any portion thereof, (vii) the eviction of
Tenant from possession of the Leased Premises, by paramount title
or otherwise, or (viii) default by Landlord hereunder or under
any other agreement between Landlord and Tenant. Tenant waives
all rights which are not expressly stated herein but which may
now or hereafter otherwise be conferred by law to quit, terminate
or surrender this Lease or any of the Leased Premises; to any
setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense of or to
Basic Rent, Additional Rent, Non-Rent Monetary Obligations or any
other sums payable under this Lease, and for any statutory lien
or offset right against Landlord or its property, each except as
otherwise expressly provided herein.
(b) Tenant shall pay directly to the proper
authorities charged with the collection thereof all charges for
water, sewer, gas, oil, electricity, telephone and other
utilities or services used or consumed on the Leased Premises
during the Term, whether designated as a charge, tax, assessment,
fee or otherwise, including, without limitation, water and sewer
use charges and taxes, if any, all such charges to be paid as the
same from time to time become due. It is understood and agreed
that Tenant shall make its own arrangements for the installation
or provision of all such utilities and that Landlord shall be
under no obligation to furnish any utilities to the Leased
Premises and shall not be liable for any interruption or failure
in the supply of any such utilities to the Leased Premises.
6. Title and Condition.
(a) The Leased Premises are demised and let subject to
the Permitted Encumbrances and all Legal Requirements and
Insurance Requirements, including any existing violation of any
thereof, without representation or warranty by Landlord; it being
understood and agreed, however, that the recital of the Permitted
Encumbrances herein shall not be construed as a revival of any
thereof which for any reason may have expired.
(b) Without limiting the effect of Landlord's covenant
set forth in Section 8(c), the Landlord makes no, and expressly
hereby denies any, representations or warranties regarding the
condition or suitability of, or title to, the Leased Premises.
Tenant agrees that it takes the Leased Premises "as is," without
any such representation or warranty.
(c) Landlord hereby conditionally assigns, without
recourse or warranty whatsoever, to Tenant, all warranties,
guaranties and indemnities, express or implied, and similar
rights which Landlord may have against any manufacturer, seller,
engineer, contractor or builder in respect of any of the Leased
Premises, including, but not limited to, any rights and remedies
existing under contract or pursuant to the Uniform Commercial
Code (collectively, the "guaranties"). Such assignment shall
remain in effect so long as no Event of Default exists hereunder
or until the expiration or sooner termination of this Lease.
Landlord shall also retain the right to enforce any guaranties so
assigned in the name of Tenant upon the occurrence of an Event of
Default. Landlord hereby agrees to execute and deliver at
Tenant's sole cost and expense such further documents, including
powers of attorney, as Tenant may reasonably request (and which
in the good faith judgment of Landlord, do not adversely affect a
substantial interest of Landlord), in order that Tenant may have
the full benefit of the assignment effected or intended to be
effected by this Section 6. Upon the occurrence, and during the
continuancy of an Event of Default or the expiration or
termination of this Lease, the guaranties shall automatically
revert to Landlord. The foregoing provision of reversion shall
be self-operative and no further instrument of reassignment shall
be required. Upon the curing of such Event of Default, the
assignment and guaranties shall be automatically reassigned and
reinstated and revert to Tenant. The foregoing provision of
reassignment, reinstatement and reversion shall be self-operative
and no further instrument of reassignment shall be required. In
confirmation of such reassignment each of Tenant and Landlord
shall execute and deliver promptly any certificate or other
instrument which Landlord or Tenant may request at Tenant's sole
cost and expense. Any monies collected by Tenant under any of
the guaranties after the occurrence of and during the
continuation of an Event of Default shall be held in trust by
Tenant and promptly paid over to Landlord.
7. Taxes; Insurance and Legal Requirements.
(a) Tenant shall, subject to the provisions of Section
18 hereof relating to contests, before interest or penalties are
due thereon, pay and discharge all Taxes. Landlord shall, within
three (3) Business Days, deliver to Tenant any bill, invoice,
notice or correspondence Landlord receives with respect to any
Tax. Nothing herein shall obligate Tenant to pay, and the term
"Taxes" shall exclude, federal, state or local (i) franchise,
capital stock or similar taxes, if any, of Landlord, (ii) income,
excess profits or other taxes, if any, of Landlord, determined on
the basis of or measured by its net income or gross income (in
lieu of net income), as applicable (except "Taxes" shall include
any gross income tax, sales tax, occupancy tax or excise tax
levied by any governmental body or authority with regard to Basic
Rent, Additional Rent or Non-Monetary Obligations, provided such
assessment or levy is not in lieu of net income tax payable by
Landlord), or (iii) any estate, inheritance, succession, gift,
capital levy or similar taxes, unless there is a change in the
method of taxation in effect at the commencement of this Lease
which results in taxes referred to in clauses (i) and (ii) above
being levied in lieu of or a substitute for any other tax or
assessment upon or with respect to any of the Leased Premises
which, if such other tax or assessment were in effect at the
commencement of the term of this Lease, would be payable by
Tenant. In the event that any assessment against any of the
Leased Premises may be paid in installments, Tenant shall have
the option to pay such assessment in installments; and in such
event, Tenant shall be liable only for those installments (and
all resulting interest thereon) which become due and payable in
respect of the Term. Tenant shall prepare and file all tax
reports required by governmental authorities which relate to the
Taxes. Tenant shall deliver to Landlord and/or Lender, within
thirty (30) days of Landlord's or Lender's, as the case may be,
request therefor: (i) copies of all settlements and notices
pertaining to the Taxes which may be issued by any governmental
authority; and (ii) evidence of payment for payments of all
Taxes made during each calendar year of the Term.
(b) Tenant shall promptly comply with and conform to
all of the Legal Requirements and Insurance Requirements, subject
to the provisions of Section 18 hereof
8. Use.
(a) Tenant may use the Leased Premises for any lawful
purpose. In no event shall the Leased Premises be used for any
purpose which shall violate any of the provisions of any recorded
covenants, restrictions or agreements applicable to the Leased
Premises either specifically or through broader application to
any center or industrial park of which the Leased Premises may be
a part. Tenant agrees that with respect to any such recorded
covenants, restrictions or agreements, Tenant shall observe,
perform and comply with and carry out the provisions thereof
required therein to be observed and performed by Landlord.
(b) Subject to Tenant's rights of contest under
Section 18 hereof, Tenant shall not permit any unlawful
occupation, business or trade to be conducted on any of the
Leased Premises or any use to be made thereof contrary to
applicable Legal Requirements or Insurance Requirements. Subject
to Tenant's rights of contest under Section 18 hereof, Tenant
shall not use, occupy or permit any of the Leased Premises to be
used or occupied, nor do or permit anything to be done in or on
any of the Leased Premises, in a manner which would (i) violate
any certificate of occupancy or equivalent certificate affecting
any of the Leased Premises, (ii) make void or voidable any
insurance which Tenant is required hereunder to maintain then in
force with respect to any of the Leased Premises, (iii) affect in
any manner the ability of Tenant to obtain any insurance which
Tenant is required to furnish hereunder, (iv) cause any injury or
damage to any of the Improvements unless pursuant to Alterations
permitted under Section 11 hereof, or (v) constitute a public or
private nuisance or waste.
(c) Subject to all of the provisions of this Lease, so
long as no Event of Default exists hereunder, Landlord covenants
that neither it nor any party claiming by, through or under it,
shall do any act to disturb the peaceful and quiet occupation and
enjoyment of the Leased Premises by Tenant. Landlord may enter
upon and examine any of the Leased Premises at reasonable times
after reasonable notice and during business hours and exercise
any rights and privileges granted to Landlord under the
provisions of this Lease. During an Event of Default or in an
emergency, Landlord's access to the Leased Premises shall not be
restricted as provided in the immediately preceding sentence.
9. Maintenance and Repair.
(a) Except for any Alterations that Tenant is
permitted to make hereunder, Tenant shall at all times, including
any Requisition period, put, keep and maintain the Leased
Premises, including, without limitation, the roof, landscaping,
walls (interior and exterior), footings, foundations and
structural components of the Leased Premises, and the Adjoining
Property, in good order and repair, and shall promptly make all
repairs and replacements (substantially equivalent in quality and
workmanship to the original work) of every kind and nature,
whether foreseen or unforeseen, which may be required to be made
upon or in connection with any of the Leased Premises in order to
keep and maintain the Leased Premises in good order and repair,
reasonable wear and tear excepted (whether or not the need for
such repairs occurs as a result of Tenant's use, any prior use,
the elements or the age of the Leased Premises). Tenant shall do
or cause others to do all shoring of the Leased Premises or
Adjoining Property or of foundations and walls of the
Improvements and every other act necessary or appropriate for
preservation and safety thereof, by reason of or in connection
with any excavation or other building operation upon any of the
Leased Premises or Adjoining Property, whether or not Landlord
shall, by reason of any Legal Requirements or Insurance
Requirements, be required to take such action or be liable for
failure to do so. Landlord shall not be required to make any
repair, whether foreseen or unforeseen, or to maintain any of the
Leased Premises or Adjoining Property in any way, and Tenant
hereby expressly waives the right to make repairs at the expense
of the Landlord, which right may otherwise be provided for in any
law now or hereafter in effect. Tenant shall, in all events,
make all repairs for which it is responsible hereunder promptly,
and all repairs shall be in a good, proper and workmanlike
manner.
(b) If Tenant shall be in default under any of the
provisions of this Section 9, Landlord or Lender may, after ten
(10) days notice to Tenant and failure of Tenant to commence to
cure during said period or to diligently prosecute such cure to
completion once begun, but immediately upon notice in the event
of an emergency (that is, imminent danger of injury to persons or
property), do whatever is necessary to cure such default as may
be reasonable under the circumstances for the account of and at
the expense of Tenant. In the event of an emergency, before
Landlord or Lender may, in addition to all remedies under this
Lease, avail itself of its rights under this Section 9(b),
Landlord or Lender, as the case may be, shall send written notice
to Tenant of the situation by facsimile. All actual and
reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) so incurred by Landlord
or Lender, together with interest thereon at the Default Rate
from the date of payment of the expense, shall constitute
Additional Rent payable by Tenant under this Lease and shall be
paid by Tenant to Landlord or Lender (as applicable) on demand.
Landlord and Tenant agree that, in the event of an emergency,
expenditures which might otherwise be unreasonable (such as
overtime) may nevertheless be reasonable under the circumstances.
(c) Tenant shall from time to time replace with other
similar operational equipment or parts any of the mechanical
systems or other equipment included in the Improvements which
shall have become worn out, obsolete or unusable for the purpose
for which it is intended, been taken by a Condemnation as
provided in Section 12, or been lost, stolen, damaged or
destroyed as provided in Section 14. Tenant shall repair at its
sole cost and expense all damage to the Leased Premises caused by
the removal of equipment or any other personal property of Tenant
at any time, including upon expiration or earlier termination of
this Lease.
10. Liens.
Tenant shall not, directly or indirectly, create or
permit to be created or to remain, and shall promptly discharge,
any lien on any of the Leased Premises, on the Basic Rent,
Additional Rent, Non-Rent Monetary Obligations or on any other
sums payable by Tenant under this Lease, other than the Mortgage
(and any assignment of leases, rents or profits collateral
thereto), the Permitted Encumbrances and any mortgage, lien,
encumbrance or other charge created by or resulting from any act
or omission by Landlord or those claiming by, through or under
Landlord.
11. Alterations.
(a) Tenant shall not make any Alterations which would
result, after giving consideration to the completed alteration,
in a material diminution in the value of the Leased Premises
without Landlord's written consent. So long as there are no
Events of Default under this Lease, Tenant may make any other
Alterations without the prior written consent of the Landlord
provided such Alterations comply with all of the provisions of
the following sentence. All Alterations to Improvements shall be
performed in a good and workmanlike manner, and shall be
expeditiously completed in compliance with all Legal
Requirements, (i) all work done in connection with any such
Alteration shall comply with all Insurance Requirements, (ii)
Tenant shall promptly pay all costs and expenses of any such
Alteration, and shall discharge all liens filed against any of
the Leased Premises arising out of the same, (iii) Tenant shall
procure and pay for all permits and licenses required in
connection with any such Alteration, (iv) any Alteration the
estimated cost of which exceeds One Million ($1,000,000) Dollars
shall be made under the supervision of a licensed architect or
engineer in accordance with detailed plans and specifications
which shall be submitted to Landlord and Lender at least twenty
(20) days prior to the commencement of the Alterations, and (v)
any Alteration the estimated cost of which exceed Five Hundred
Fifty Thousand ($550,000.00) Dollars shall be secured by a
payment and performance bond issued by a company having a rating
of BBB or higher from Standard & Poor's. Upon completion of any
Alteration costing in excess of ($1,000,000), Tenant will provide
as-built plans and specifications or record drawings to Landlord
and Lender.
(b) Title to all Alterations that (a) are readily
removable without causing damage by more than a de minimis extent
to the Leased Premises, (b) will not reduce the value, useful
life or utility of the Leased Premises if removed, and (c) are
not required for the lawful use or occupancy of the Leased
Premises ("Severable Alterations") will vest in the Tenant. The
Landlord shall have the right, but not the obligation, to
purchase from the Tenant any or all such Severable Alterations
for their fair market value at the end of the Term.
(c) Title to all Alterations that are not Severable
Alterations, exclusive of Trade Fixtures ("Non-Severable
Alterations"), will immediately vest in the Landlord and become
subject to the Lease whether or not the cost thereof shall have
been paid or financed by or through the Landlord.
12. Condemnation.
(a) Immediately upon obtaining knowledge of the
institution of any proceeding for Condemnation, Tenant shall
notify Landlord and Lender thereof and Landlord and Lender shall
be entitled to participate in any Condemnation proceeding at
Tenant's expense. Landlord immediately upon obtaining knowledge
of the institution of any proceeding for Condemnation, shall
notify Tenant thereof and Tenant shall have the right to
participate in such proceedings at its own expense. Subject to
the provisions of this Section 12 and Section 15, Tenant hereby
irrevocably assigns to Lender or to Landlord, in that order, any
award or payment in respect of any Condemnation, except that
Tenant does not assign to Lender or to Landlord any award or
payment on account of Tenant's Trade Fixtures or other tangible
personal property, its leasehold interests (unless the lack of
such assignment of Tenant's leasehold interest would reduce the
award to Landlord had the leasehold interests been assigned to
Landlord), moving expenses, relocation and similar claims, if
available, to the extent Tenant shall have a right to make a
separate claim therefor against the condemnor; it being agreed,
however, that Tenant shall in no event be entitled to any payment
that reduces the award to which Landlord is or would be entitled
for the condemnation of the Leased Premises.
(b) If (i) the entire Leased Premises or (ii) at least
fifteen percent (15%) of the Leased Premises, the loss of which
even after restoration would, in Tenant's reasonable business
judgment, be substantially and materially adverse to the business
operations of Tenant, shall be the subject of a Taking by a duly
constituted authority or agency having jurisdiction, then Tenant
shall have the right, exercisable within thirty (30) days after
the Taking has occurred, to serve notice upon Landlord and Lender
("Tenant's Termination Notice") to terminate this Lease on any
Basic Rent Payment Date specified in such notice, which date (the
"Termination Date") shall be no sooner than the first Basic Rent
Payment Date occurring at least thirty (30) days after the date
of Tenant's Termination Notice and not later than the third Basic
Rent Payment Date occurring after the date of Tenant's
Termination Notice. In the event that during the initial term
Tenant shall serve such notice upon Landlord and Lender of its
intention to terminate this Lease on the Termination Date, Tenant
shall, as part of such notice, offer (which offer may be rejected
by Landlord and Lender as set forth below) to purchase the Leased
Premises and the award, or if no part of the Leased Premises
shall remain, the entire award for the applicable price computed
as of the Closing Date in accordance with the schedule annexed
hereto and marked Exhibit "C" (the "Purchase Price") plus all
other amounts which may be due and owing to Lender or Landlord by
reason of any default by Tenant in complying with its obligations
under this Lease (the "Additions to Purchase Price"). In the
event that the Tenant's Termination Notice is not accompanied by
the offer to purchase, such Tenant's Termination Notice shall be
deemed null and void. Landlord shall give notice accepting or
rejecting such offer to Tenant within thirty (30) days after the
giving of Tenant's Termination Notice. If Landlord shall not
elect to accept Tenant's said offer to purchase, this Lease shall
be terminated as above provided and the entire award made in the
Condemnation proceeding shall be paid to Lender, or if there is
no Lender, to Landlord; provided, however, Landlord's notice to
reject Tenant's said offer to purchase shall be void and of no
effect unless accompanied by the written notice of Lender to the
effect that Lender also elects not to accept Tenant's said offer
to purchase. Should said notices of Landlord and/or Lender
accepting or rejecting Tenant's said offer to purchase not be
served within said period of thirty (30) days, then and in that
event, the said offer shall be deemed accepted. In the event
that Landlord and Lender shall accept or be deemed to have
accepted Tenant's offer to purchase, title shall close and the
Purchase Price and Additions to Purchase Price shall be paid as
hereinafter provided and in such event Tenant shall be entitled
to and shall receive any and all awards then or thereafter made
in the Condemnation proceeding and Landlord shall assign or in
case of any award previously made, deliver to Tenant on the
Closing Date such award as may be made.
In the event Landlord and Lender shall accept Tenant's
offer to purchase, or be deemed to have accepted Tenant's offer,
any purchase pursuant to this Section 12(b) shall be in
accordance with the Purchase Procedure.
In the event that during any renewal term Tenant shall
serve Tenant's Termination Notice upon Landlord and Lender, this
Lease and the Term hereof shall terminate on the Termination
Date. In such event the entire award made in Condemnation
proceeding shall be retained by Lender or Landlord, in that
order.
(c) In the event of any Condemnation of part of the
Leased Premises which does not result in a termination of this
Lease, the Net Award of such Condemnation shall be paid and
disbursed in accordance with the requirements of Section 15 and,
promptly after such Condemnation, Tenant shall commence and
diligently continue to perform the Restoration.
Upon the payment to Landlord or Lender of the Net Award
of a Taking which falls within the provisions of this
subparagraph (c), Landlord and Lender shall, to the extent
received, make that portion of the Net Award equal to the cost of
Restoration (the "Restoration Award") available to Tenant for
Restoration, in accordance with the provisions of Section 15, and
the balance remaining (the "net surplus award") shall be the
property of Lender or Landlord in that order. Following the
making of the condemnation award and on completion of the repairs
or alterations made by Tenant as herein provided, the monthly
installment of Basic Rent for each month during the remaining
term hereof, commencing with the lease payment for the month
after the month in which such construction is completed, shall be
reduced by an amount equal to one-twelfth (1/12th) of 8.80% of
the net surplus award paid to Lender or Landlord, in that order.
In the event of a Requisition of any of the Leased
Premises, Landlord shall apply the Net Award of such Requisition,
to the extent available, to the installments of Basic Rent,
Additional Rent, Non-Rent Monetary Obligations or other sums
payable by Tenant hereunder thereafter payable and Tenant shall
pay the balance remaining thereafter. Upon the expiration of the
Term, any portion of such Net Award that shall not previously
have been credited to Tenant on account of the Basic Rent,
Additional Rent, and Non-Rent Monetary Obligations shall be
retained by Landlord or Lender.
(d) Except with respect to an award or payment to
which Tenant is entitled pursuant to the foregoing provisions of
this Section 12, no agreement with any condemnor in settlement of
or under threat of any Condemnation shall be made by either
Landlord or Tenant without the written consent of the other, and
of Lender, if the Leased Premises are then subject to a Mortgage,
which consent shall not be unreasonably withheld or delayed
provided such award or payment is applied in accordance with this
Lease.
13. Insurance.
(a) Tenant shall maintain at its sole cost and expense
the following insurance on the Leased Premises:
(i) Insurance against loss or damage to the
Improvements under an All Risk Policy, which shall include flood
insurance and earthquake insurance each to the extent applicable
and which may contain such self retention levels, exclusions and
deductibles as are from time to time customary or standard in the
industry, in amounts to prevent Landlord or Tenant from becoming
a co-insurer under the applicable policies (except in the case of
earthquake insurance coverage), and in any event in amounts not
less than the actual replacement cost of the Improvements
(excluding footings and foundations and parts of the Improvements
which are not insurable).
(ii) Contractual and commercial general liability
insurance against claims for bodily injury, death or property
damage occurring on, in or about any of the Leased Premises or
the Adjoining Property, which insurance shall be written on a so-
called occurrence basis," and shall provide minimum protection
with a combined single limit in an amount not less than Five
Million ($5,000,000) Dollars (or in such increased limits from
time to time to reflect declines from the date hereof in the
purchasing power of the dollar as Landlord may reasonably
request).
(iii) Worker's compensation insurance covering
all persons employed by Tenant on the Leased Premises in
connection with any work done on or about any of the Leased
Premises.
(b) The insurance required by Section 13(a) shall be
written by companies having a rating of BBB or higher from
Standard & Poor's. All companies providing insurance required by
Section 13(a) shall be authorized to do an insurance business in
the State or otherwise agreed to by Landlord and Lender. The
insurance policies shall be for a term of not less than one year,
and shall (except for worker's compensation insurance) name
Landlord, Remainder Landlord, Tenant and any Lender as additional
insured parties, as their respective interests may appear. If
said insurance or any part thereof shall expire, be withdrawn,
become void by breach of any condition thereof by Tenant or
should the insurer's claims-paying ability decrease below
investment grade as required above, Tenant shall immediately
obtain new or additional insurance reasonably satisfactory to
Landlord and Lender.
(c) Each insurance policy referred to above shall, to
the extent applicable, contain standard non-contributory
mortgagee clauses in favor of any Lender. As evidence of the
insurance specified in Section 13(a)(i), required to be
maintained by Tenant, Tenant shall deliver to Landlord an ACORD
27 Evidence of Property Insurance or other certificate providing
at least the same assurances (or, if limited by Legal
Requirements, then a certificate providing as many of the same
assurances as allowed by applicable law). As evidence of the
insurance specified in Section 13(a)(ii) and (iii), required to
be maintained by Tenant, Tenant shall deliver to Landlord an
ACORD 25 Certificate of Insurance or other certificate providing
at least the same assurances. Each policy required to be carried
by Tenant shall also provide that any loss otherwise payable
thereunder shall be payable notwithstanding (i) any act or
omission of Landlord, or Tenant which might, absent such
provision, result in a forfeiture of all or a part of such
insurance payment, (ii) any foreclosure or other action or
proceeding taken by any Lender pursuant to any provision of the
Mortgage upon the happening of an event of default therein, or
(iii) any change in title or ownership of any of the Leased
Premises.
(d) Tenant shall pay at least ten (10) Business Days
prior to cancellation all premiums for the insurance required by
this Section 13, shall renew or replace each policy and shall
deliver to Landlord and Lender, the appropriate assurances for
such renewals or replacements in accordance with the provisions
of this Section 13 at least ten (10) Business Days prior to
cancellation of the then-effective coverage. In the event of
Tenant's failure to maintain any of the insurance required by
this Section 13, Landlord or Lender shall be entitled to procure
such insurance. Any sums expended by Landlord or Lender in
procuring such insurance shall be Additional Rent and shall be
repaid by Tenant, together with interest thereon at the Default
Rate, from the time of payment by Landlord or Lender until fully
paid by Tenant immediately upon written demand therefor by
Landlord or Lender, as the case may be.
(e) Anything in this Section 13 to the contrary
notwithstanding, any insurance which Tenant is required to obtain
pursuant to Section 13(a) may be carried under a "blanket" policy
or policies covering other properties or liabilities of Tenant,
provided that such "blanket" policy or policies otherwise comply
with the provisions of this Section 13. In the event any such
insurance is carried under a blanket policy, Tenant shall deliver
to Landlord and Lender upon request a certified copy of those
provisions of the blanket policy that pertain to the Leased
Premises to evidence the issuance and effectiveness of the
policy, the amount and character of the coverage with respect to
the Leased Premises and the presence in the policy of provisions
of the character required in the above sections of this Section
13.
14. Damage, Destruction.
(a) In the event of any casualty loss exceeding
$500,000 as reasonably estimated by Tenant, Tenant shall give
Landlord and Lender immediate notice thereof. Tenant shall
adjust, collect by check made payable to the Trustee, except as
otherwise provided in Section 14(b), and compromise any and all
such claims, with the consent of Lender and Landlord, not to be
unreasonably withheld or delayed and Landlord and Lender shall
have the right to join with Tenant therein. All proceeds
pertaining to, or allocable to the Leased Premises (subject to
Section 14(b)) shall be paid to a Trustee which shall be a
federally insured bank or other financial institution, selected
by Landlord and Tenant and reasonably satisfactory to Lender (the
"Trustee"). If the Leased Premises shall be covered by a
Mortgage, Lender, if it so desires, shall be the Trustee. Each
insurer is hereby authorized and directed upon the occurrence and
during the continuance of an Event of Default to make payment
under said policies directly to such Trustee instead of to
Landlord and Tenant jointly.
(b) All insurance proceeds received for business
interruption loss and proceeds received in connection with
continuation of business after an event of casualty loss (i.e.,
such as compensation for salaries of employees who might be
displaced by such casualty and/or the resulting Restoration)
shall be payable directly to Tenant and not to the Trustee.
(c) In the event of any casualty (whether or not
insured against) resulting in damage to the Leased Premises or
any part thereof, the Term shall nevertheless continue and there
shall be no abatement or reduction of Basic Rent, Additional
Rent, Non-Rent Monetary Obligations or any other sums payable by
Tenant hereunder. The Net Proceeds of such insurance payment
shall be retained by the above-mentioned Trustee and, promptly
after such casualty, Tenant shall commence and diligently
continue to perform the Restoration to the Leased Premises. Upon
payment to the Trustee of such Net Proceeds, the Trustee shall,
to the extent available, make the Net Proceeds available to
Tenant for restoration, in accordance with the provisions of
Section 15. Tenant shall, whether or not the Net Proceeds are
sufficient for the purpose, promptly repair or replace the
Improvements as nearly as possible to their value and condition
and character immediately prior to such event and otherwise in
accordance with all Insurance Requirements and Legal Requirements
and the provisions of this Lease (including Tenant's making any
desired Alterations allowed hereunder) and the Net Proceeds of
such loss shall thereupon be payable to Tenant, subject to the
provisions of Section 15 hereof.
(d) In the event that any damage or destruction shall
occur at such time as Tenant shall not have maintained insurance
in accordance with Section 13(a)(i), Tenant shall pay to the
Trustee the amount of the proceeds that would have been payable
had such insurance program been in effect (the "Tenant Insurance
Payment").
15. Restoration.
The Net Proceeds and Tenant Insurance Payment (the
aggregate estimated amount of which and any interest thereon
being herein defined as the "Restoration Fund") paid to the
Trustee shall be disbursed by the Trustee in accordance with the
following conditions:
(a) At the time of any disbursement, no Event of
Default shall exist and no mechanics' or materialmen's liens
shall have been filed and remain undischarged and unbonded.
(b) If the cost of Restoration exceeds $500,000, prior
to commencement of the Restoration, the architects, contracts,
contractors and plans and specifications for the Restoration
shall have been approved by Landlord and Lender, which approval
shall not be unreasonably withheld or delayed.
(c) Each request for disbursement shall be accompanied
by a certificate of Tenant, signed by the President, Treasurer or
any Vice President of Tenant, describing the completed work for
which payment is requested, stating the cost incurred in
connection therewith and stating that Tenant has not previously
received payment for such work and the certificate to be
delivered by Tenant upon completion of the work shall, in
addition, state that the work has been completed and complies
with the applicable requirements of this Lease and all Legal
Requirements and Insurance Requirements.
(d) Disbursements shall be made from time to time in
an amount not exceeding the cost of the work completed since the
last disbursement upon receipt by Landlord and Lender of (1)
satisfactory evidence, including architects' certificates, of the
stage of completion, of the estimated cost of completion and of
performance of the work to date in a good and workmanlike manner
in accordance with the contracts and plans and specifications
approved by Landlord and Lender, (2) waivers of liens, (3) a
satisfactory bring down of title insurance, and (4) other
evidence of cost and payment so that Landlord can verify that the
amounts disbursed from time to time are represented by work that
is completed in place and free and clear of mechanics' liens and
mechanics' lien enforcement actions.
(e) The Trustee, at Landlord's or Lender's election,
shall retain ten (10%) percent from each disbursement of the
Restoration Fund (such 10% retainage requirement shall be reduced
for all amounts required to be retained by owner pursuant to the
construction contracts for such Restoration) until the
Restoration is fully completed and the Leased Premises are
available for their intended use, in the reasonable judgment of
the Lender, including the issuance of any necessary certificate
of occupancy.
(f) The Restoration Fund shall be kept in a separate
interest-bearing account federally insured to the extent
applicable by the Trustee or by Lender.
Prior to commencement of Restoration and at any time
during Restoration, if the estimated cost of Restoration, as
reasonably determined by Landlord or Lender, exceeds the amount
of the Restoration Fund, the amount of such excess shall be paid
by Tenant to the Trustee to be added to the Restoration Fund
prior to any further disbursement or Tenant shall fund at its own
expense the costs of such Restoration until the remaining
Restoration Fund is, or will be, sufficient for the completion of
the Restoration. In no event shall Tenant be required to pay
into the Restoration Fund an amount greater than the difference
between the estimated cost of Restoration and the total estimated
proceeds from insurance. Except for the payment to Landlord or
Lender of the net surplus award, referred to in Section 12(c),
any sum in the Restoration Fund which remains in the Restoration
Fund upon the completion of Restoration (including interest
earned) shall be paid to Tenant. For purposes of determining the
source of funds with respect to the disposition of funds
remaining after the completion of Restoration, the Net Proceeds
or the Restoration Award shall be deemed to be disbursed prior to
any amount added by Tenant.
If Tenant does not diligently pursue the completion of
the Restoration to the satisfaction of Landlord, Landlord shall
have the right to give written notice to Tenant, which notice
shall specify the exact reason(s) Landlord maintains that Tenant
is not pursuing the completion of the Restoration (the
"Restoration Notice"). Upon receipt of the Restoration Notice,
Tenant shall have thirty (30) days to either: (i) cure the
deficiencies specified in the Restoration Notice, or if such
deficiency cannot be cured within such period of thirty (30)
days, such period shall be extended for such longer time as
reasonably necessary provided that Tenant has commenced to cure
such deficiency within said period of thirty (30) days and is
actively, diligently and in good faith proceeding with continuity
to remedy such failure; or (ii) demonstrate to Landlord in
writing, with sufficient supporting documentation attached, that
to the extent that Tenant is not hampered by a legal impediment
not caused by Tenant (which shall include, without limitation,
delays or stoppages caused by delays in the permitting process).
Tenant is actively, diligently, and in good faith proceeding with
continuity to complete the Restoration. If Tenant fails to do
either of the preceding within such thirty (30) day period,
Trustee shall pay the balance of the Restoration Fund to Lender
to satisfy, in whole or in part, the Loan. In such event, any
sum which remains in the Restoration Fund upon the satisfaction
of the Loan shall be paid to Landlord.
16. Subordination to Financing.
(a) Subject to the following provisions of this
Section 16(a), Tenant agrees that this Lease shall, upon
Landlord's and Lender's (if any) written request, be subject and
subordinate to the lien of any Mortgage, and Tenant agrees, upon
demand, without cost, to execute instruments as may be required
to further effectuate or confirm such subordination, in form and
substance reasonably satisfactory to Landlord, provided that
Lender shall provide Tenant with a written non-disturbance
agreement in form and substance reasonably satisfactory to Tenant
confirming that: (i) so long as no Event of Default shall be
outstanding, Tenant's tenancy shall not be disturbed, (ii) nor
shall this Lease, or any and all modifications or amendments
thereto as then in effect, be affected by any default under such
Mortgage (other than a default that relates to a default under
this Lease), (iii) in the event of a foreclosure or other
enforcement of any such Mortgage, or sale in lieu thereof, the
purchaser at such foreclosure sale or pursuant to a deed in lieu
thereof shall be bound to Tenant for the Term of this Lease and
any extensions thereof, the rights of Tenant hereunder shall
expressly survive, and this Lease shall in all respects continue
in full force and effect so long as no Event of Default by Tenant
has occurred and is continuing, and (iv) so long as no Event of
Default by Tenant has occurred and is continuing, Tenant shall
not be named as a party defendant in any such foreclosure suit,
except as may be required by Legal Requirements. Any Mortgage to
which this Lease is now or hereafter subordinate shall provide,
in effect, that during the time this Lease is in force all
insurance proceeds and condemnation awards shall be paid as
provided in this Lease or used for restoration as provided in
this Lease.
(b) Notwithstanding the provisions of subdivision (a)
of this Section 16, the holder of the Mortgage to which this
Lease is subject and subordinate, as provided in said subdivision
(a), shall have the right, at its sole option, at any time, to
subordinate and subject the Mortgage, in whole or in part, to
this Lease by recording a unilateral declaration to such effect.
(c) At any time prior to the expiration of the Term,
Tenant agrees, at the election and upon demand of any owner of
the Leased Premises, or of Lender who has granted non-disturbance
to Tenant pursuant to Section 16(a) above, to attorn, from time
to time, to any such owner or Lender, upon the then executory
terms and conditions of this Lease, for the remainder of the term
originally demised in this Lease and for any renewal term. The
provisions of this subdivision (c) shall inure to the benefit of
any such owner or Lender, shall apply notwithstanding that, as a
matter of law, this Lease may terminate upon the foreclosure of
the Mortgage, shall be self-operative upon any such demand, and
no further instrument shall be required to give effect to said
provisions.
(d) Each of Tenant and Landlord agrees that, if
requested by the other, each shall, without charge, enter into
(i) a Subordination, Non-Disturbance and Attornment Agreement
reasonably requested by Lender, provided such agreement contains
provisions relating to non-disturbance in accordance with the
provisions of subparagraph (a), and (ii) an agreement with Lender
whereby Tenant shall agree for the benefit of Lender that Tenant
will not, without in each case the prior written consent of
Lender, which shall not be unreasonably withheld, conditioned or
delayed, (a) amend, modify, cancel or surrender the term of this
Lease except as expressly permitted by the provisions of this
Lease, or enter into any agreement with Landlord so to do, or (b)
pay any installment of Basic Rent more than one (1) month in
advance of the due date thereof or otherwise than in the manner
provided for in this Lease.
(e) At any time after Landlord has advised Tenant of
the existence of a "Lender" hereunder, and before such Lender has
confirmed to Tenant that the lien of its Mortgage has been
released, Tenant shall not (and shall not be obligated, even upon
the request of Landlord, to) execute any agreement or document
purporting to subordinate this Lease to the lien of any mortgage
or deed of trust other than the Mortgage held by Lender.
17. Assignment; Subleasing.
(a) Tenant (or Tenant's wholly-owned subsidiary or an
entity controlled by or in common control with Tenant) is
currently in occupancy and is operating its business at the
Leased Premises. Tenant may assign its interest in this Lease or
sublease any portion(s) of the Leased Premises without the prior
written consent of Landlord. In the event of an assignment or
sublease to an entity not affiliated with the Tenant involving
greater than thirty-three percent (33%) of the Leased Premises,
Tenant shall give Notice to Landlord of such assignment or
sublease by providing an executed copy of each such assignment or
sublease, as the case may be. No sublease under, or assignment
of this Lease shall relieve Tenant of its obligations hereunder,
which shall continue as the obligations of a principal and not as
the obligations of a surety or a guarantor. The joint and
several liability of Tenant named herein and any immediate and
remote successor in interest of Tenant (by assignment or
otherwise), and the due performance of the obligations of this
Lease on Tenant's part to be performed or observed, shall not in
any way be discharged, released or impaired by any (i) agreement
which modifies any of the rights or obligations of the parties
under this Lease, (ii) stipulation which extends the time within
which an obligation under this Lease is to be performed, (iii)
waiver of the performance of an obligation required under this
Lease, or (iv) failure to enforce any of the obligations set
forth in this Lease, unless in each case, the same has been
consented to by Landlord and Lender.
(b) Each sublease of the Leased Premises or any part
thereof shall be subject and subordinate to the provisions of
this Lease. Tenant agrees that in the case of an assignment,
Tenant shall, not less than ten (10) days prior to the execution
and delivery of any such assignment as described in this Section
17(b), give notice of such assignment to Landlord and Lender.
Tenant further agrees that in the case of such assignment, Tenant
shall, within fifteen (15) days after the execution and delivery
of any such assignment, deliver to Landlord and Lender (i) a
duplicate original of such assignment in recordable form and (ii)
an agreement executed and acknowledged by the assignee in
recordable form wherein the assignee shall agree to assume and
agree to observe and perform all of the applicable terms and
provisions of this Lease on the part of the Tenant to be observed
and performed from and after the date of such assignment, and, in
the case of a sublease, Tenant shall, within fifteen (15) days
after the execution and delivery of such sublease, deliver to
Landlord and Lender a duplicate original of such sublease.
(c) Upon the occurrence of an Event of Default under
this Lease, Landlord shall have the right to collect and enjoy
all rents and other sums of money payable under any sublease of
any of the Leased Premises, and Tenant hereby irrevocably and
unconditionally assigns such rents and money to Landlord, which
assignment may be exercised upon and after (but not before) the
occurrence of an Event of Default, taking into account any
applicable cure periods.
(d) Any sublease shall provide that upon notice from
Landlord and/or Lender of an Event of Default, all rent due under
such sublease shall be paid as so directed. In the event
Landlord and/or Lender give such notice under such sublease and
Tenant is not then in default under this Lease, then Tenant shall
have the right to withhold rent payments due under this Lease in
amounts totaling the amount of rent actually paid under such
sublease as such was directed. In no event shall Landlord or
Lender have the right to direct the payment of sublease rents to
any party other than Tenant except in an aggregate amount equal
to or less than the aggregate amounts due hereunder.
18. Permitted Contests.
(a) Notwithstanding any provision of this Lease to the
contrary, after prior written notice to Landlord and Lender,
Tenant shall not be required to (i) pay any Tax, (ii) comply with
any Legal Requirement, or (iii) discharge or remove any lien, so
long as Tenant shall contest, in good faith and at its expense,
the existence, the amount or the validity thereof, the amount of
the damages caused thereby, or the extent of its or Landlord's
liability therefor, by appropriate proceedings which shall
operate during the pendency thereof to prevent (v) the collection
of, or other realization upon, the Tax or lien so contested, (w)
the sale, forfeiture, attachment or loss of any of the Leased
Premises, any Basic Rent, Additional Rent, or Non-Rent Monetary
Obligations to satisfy the same or to pay any damages caused by
the violation of the same, (x) any interference with the use or
occupancy of any of the Leased Premises, (y) any interference
with the payment of any Basic Rent, Additional Rent, or Non-Rent
Monetary Obligations, and (z) the cancellation of any fire or
other insurance policy. In no event shall Tenant pursue any
contest with respect to any Tax, Legal Requirement, or lien
referred to above in such manner that exposes Landlord, Tenant or
Lender, to any criminal or civil liability, penalty or sanction.
Tenant shall provide Lender or Landlord in that order, as
security for such contest, an amount of cash or bond equal to
125% of the amount being contested, or other security
satisfactory in the reasonable opinion of Lender or Landlord in
that order, in assuring the payment, compliance, discharge,
removal or other action, including all costs, attorneys' fees,
interest and penalties, in the event that the contest is
unsuccessful. No such security shall be required if the amount
involved in the contest shall not exceed one tenth (1/10th) of
one percent (1%) of the tangible net worth of Tenant, computed in
accordance with generally accepted accounting principles
consistently applied, as determined by its most recent publicly
filed financial statements (10Q and 10K) if Tenant is a publicly
held company. While any such proceedings are pending and the
required security is held by Lender or Landlord, in that order,
Lender or Landlord, as the case may be, shall not have the right
to pay, remove or cause to be discharged the Tax, Legal
Requirement or lien thereby being contested unless Landlord or
Lender reasonably believes that any one or more of the conditions
in subdivisions (v) through (z) shall not be prevented during the
pendency of the contest. Tenant further agrees that each such
contest shall be promptly and diligently prosecuted to a final
conclusion, except that Tenant shall, so long as all of the
conditions of the first sentence of this Section 18 are at all
times complied with, have the right to attempt to settle or
compromise such contest through negotiations. Tenant shall pay
any and all judgments, decrees and costs (including all
attorneys' fees and expenses) in connection with any such contest
and shall, promptly after the final determination of such
contest, fully pay and discharge the amounts which shall be
levied, assessed, charged or imposed or be determined to be
payable therein or in connection therewith, together with all
penalties, fines, interest, costs and expenses thereof or in
connection therewith, and perform all acts the performance of
which shall be ordered or decreed as a result thereof. Upon such
payment, any cash deposit shall be refunded and any outstanding
bond shall be terminated.
(b) Upon receipt of any supplemental bill, notice, or
similar communication in connection with a property tax
reassessment relating to the Leased Premises (in each such
instance, a "Reassessment Claim"), Landlord shall within three
(3) Business Days provide Notice of such Reassessment Claim to
Tenant. Tenant shall have the right to directly discuss with,
negotiate with, or otherwise communicate with any governmental
authority or agency in connection with such a Reassessment Claim.
If a power of attorney is required by any governmental authority
or agency to allow Tenant to contest such Reassessment Claim,
Landlord shall provide Tenant with a properly executed power of
attorney.
Tenant shall have the right to contest the amount or
validity of any such Reassessment Claim by appropriate legal or
administrative proceedings, conducted in good faith and with due
diligence, provided that (a) Tenant complies with the provisions
of Section 18(a) with respect thereto, (b) the foregoing shall in
no way be construed as relieving, modifying or extending Tenant's
obligation to pay any Reassessment Claim as finally determined,
and (c) no part of the Leased Premises shall be in any immediate
danger of sale, forfeiture, attachment or loss. Landlord agrees
to join in any such proceedings if required legally to prosecute
such contest, provided that Landlord shall not thereby be
subjected to any liability therefor (including, without
limitation, for the payment of any costs or expenses in
connection therewith) unless Tenant agrees by agreement in form
and substance reasonably satisfactory to Landlord, to assume and
indemnify Landlord with respect to the same.
19. Default.
The occurrence of any one or more of the following
events shall constitute an Event of Default under this Lease:
(a) Tenant's failure to make any payment of Basic Rent
when due which continues unremedied for a period of three (3)
days, provided, however, Tenant shall not be entitled to an
opportunity to cure such default if Tenant has failed to make
Basic Rent payments on two (2) or more occasions within the
previous twelve (12) month period.
(b) Tenant's failure to make payment of Additional
Rent, Non-Rent Monetary Obligations or other sum herein required
to be paid by Tenant and such default shall continue for a period
of ten (10) days after notice by Landlord or Lender to Tenant.
(c) Tenant's failure to duly perform and observe, or
Tenant's violation or breach of, any other provision hereof if
such failure shall continue for a period of thirty (30) days
after notice thereof from Landlord or Lender, or if such failure
cannot be cured within such period of thirty (30) days, such
period shall be extended for such longer time as reasonably
necessary provided that Tenant has commenced to cure such default
within said period of thirty (30) days and is actively,
diligently and in good faith proceeding with continuity to remedy
such failure. Tenant agrees that after receiving any such notice
of default referred to above in this subparagraph (c), Tenant
shall, upon request of Landlord or Lender, advise the requesting
party of Tenant's progress in curing such default.
(d) Tenant shall (i) voluntarily be adjudicated a
bankrupt or insolvent, or (ii) consent to the appointment of a
receiver or trustee for itself or for any of the Leased Premises,
(iii) file a petition seeking relief under the bankruptcy or
other similar laws of the United States, any state or any
jurisdiction, or (iv) make a general assignment for the benefit
of creditors.
(e) A court shall enter an order, judgment or decree
appointing a receiver or trustee for it or for any of the Leased
Premises or approving a petition filed against Tenant which seeks
relief under the bankruptcy or other similar laws of the United
States, any state or any jurisdiction, and such order, judgment
or decree shall remain in force, undischarged or unstayed sixty
days after it is entered.
(f) Tenant shall in any insolvency proceedings be
liquidated or dissolved or shall begin proceedings towards its
liquidation or dissolution.
(g) The estate or interest of Tenant in any of the
Leased Premises shall be levied upon or attached in any
proceeding and such estate or interest is about to be sold or
transferred or such process shall not be vacated or discharged
within sixty (60) days after such levy or attachment.
20. Landlord's Remedies.
After the occurrence of an Event of Default by Tenant,
Landlord shall have the right to exercise the following remedies:
(a) Landlord may, at its option, continue this Lease
in full force and effect, without terminating Tenant's right to
possession of the Leased Premises, in which event Landlord shall
have the right to collect Basic Rent, Additional Rent, and Non-
Rent Monetary Obligations when due. In the alternative.
Landlord shall have the right to peaceably re-enter the Leased
Premises on the terms set forth in subparagraph (b) below, but
without such re-entry being deemed a termination of the Lease or
an acceptance by Landlord of a surrender thereof. Landlord shall
also have the right, at its option, from time to time, without
terminating this Lease, to relet the Leased Premises, or any part
thereof, with or without legal process, as the agent, and for the
account, of Tenant upon such terms and conditions as Landlord may
deem advisable (which terms may be materially different from the
terms of this Lease), in which event the rents received on such
reletting shall be applied (i) first to the reasonable and actual
expenses of such reletting and collection, including without
limitation necessary renovation and alterations of the Leased
Premises, reasonable and actual attorneys' fees and any
reasonable and actual real estate commissions paid, and (ii)
thereafter toward payment of all sums due or to become due
Landlord hereunder. If a sufficient amount to pay such expenses
and sums shall not be realized or secured, then Tenant shall pay
Landlord any such deficiency monthly, and Landlord may bring an
action therefor as such monthly deficiency shall arise. Landlord
shall not, in any event, be required to pay Tenant any sums
received by Landlord on a reletting of the Leased Premises in
excess of the rent provided in this Lease, but such excess shall
reduce any accrued present or future obligations of Tenant
hereunder. Landlord's re-entry and reletting of the Leased
Premises without termination of this Lease shall not preclude
Landlord from subsequently terminating this Lease as set forth
below.
(b) Landlord may terminate this Lease by written
notice to Tenant specifying a date therefor, which shall be no
sooner than thirty (30) days following notice to Tenant, and this
Lease shall then terminate on the date so specified as if such
date had been originally fixed as the expiration date of the
Term. In the event of such termination, Landlord shall be
entitled to recover from Tenant the worth at the time of the
award of all of the following:
(i) Any obligation which has accrued prior to the
date of termination, plus,
(ii) The amount of unpaid Basic Rent and all other
charges which would have accrued after termination until the time
of award, plus,
(iii) The amount of unpaid rent for the
balance of the Term (excluding any option periods or portions
thereof not previously exercised).
As used in this Section 20(b) the term, "worth at the
time of the award", shall be computed by allowing simple interest
at the Default Rate for past due obligations, and employing a
discount rate equal to 8.5% on anticipated future obligations, on
the amount of the obligations payable on the date of such
calculation. In the event this Lease shall be terminated as
provided above, by summary proceedings or otherwise, Landlord,
its agents, servants or representatives may immediately or at any
time thereafter peaceably re-enter and resume possession of the
Leased Premises and remove all persons and property therefrom, by
summary dispossession proceedings.
(c) Intentionally Deleted.
(d) Landlord may recover from Tenant, and Tenant shall
pay to Landlord upon demand, as Additional Rent, such reasonable
and actual expenses as Landlord may incur in recovering
possession of the Leased Premises, placing the same in good order
and condition and repairing the same for reletting, and all other
reasonable and actual expenses, commissions and charges incurred
by Landlord in exercising any remedy provided herein or as a
result of any Event of Default by Tenant hereunder (including
without limitation attorneys' fees).
Except as provided in Section 9(b) or 13(e), at any time upon
prior notice to Tenant, Landlord and Lender shall have the right,
but shall not be required, to pay such sums or do any act which
requires the expenditure of monies which may be necessary or
appropriate by reason of the failure or neglect of Tenant to
comply with any of its obligations under this Lease (Landlord and
Lender shall not, however, exercise any such rights unless the
failure or neglect shall have ripened into an Event of Default),
and in the event of the exercise of such right by Landlord or
Lender, Tenant agrees to pay to Landlord or Lender forthwith upon
demand, as Additional Rent, all such sums including reasonable
attorneys fees, together with interest thereon at the Default
Rate.
statements and other instruments or communications
required or permitted to be given pursuant to the provisions of
this Lease (collectively "Notice" or "Notices") shall be in
writing and shall be deemed to have been given for all purposes
(i) three (3) days after having been sent by United States mail,
by registered or certified mail, return receipt requested,
postage prepaid, addressed to the other party at its address as
stated below, (ii) one (1) day after having been sent by Federal
Express or other nationally recognized air courier service, to
the Addresses stated below or (iii) one (1) day after having been
transmitted via facsimile, provided that a conforming signed
original is mailed to the party to receive the notice on the date
it is transmitted:
(a) If to Landlord, at the address set forth on the
first page of this Lease. Notice to be delivered to Landlord via
facsimile shall be transmitted to (214) 696-9845.
(b) If to Tenant, at the address set forth on the
first page of this Lease, Attention: Office of General Counsel.
Notices to be given to Tenant via facsimile shall be transmitted
to the attention of: William B. May at (714) 773-7936.
If any Lender shall have advised Tenant by Notice in
the manner aforesaid that it is the holder of a Mortgage and
stating in said Notice its address for the receipt of Notices,
then simultaneously with the giving of any Notice by Tenant to
Landlord, Tenant shall serve one or more copies of such Notice
upon Lender in the manner aforesaid and no Notice shall be
effective unless and until Lender shall be sent a copy thereof.
For the purposes of this paragraph, any party may substitute its
address by giving fifteen days' notice to the other party in the
manner provided above.
(c) If to Remainder Landlord, at the address set forth
on the first page of this Lease. Notice to be delivered to
Landlord via facsimile shall be transmitted to (214) 696-9845.
22. Memorandum of Lease; Estoppel Certificates.
(a) Each party shall, upon the request of the other
party, execute, deliver and record, file or register from time to
time all such instruments as may be required by any present or
future law in order to evidence the respective interests of
Landlord and Tenant in any of the Leased Premises, and shall
cause a memorandum of this Lease, and any supplement hereto or to
such other instrument, if any, as may be appropriate, to be
recorded, filed or registered and re-recorded, refiled or re-
registered in such manner and in such places as may be required
by any present or future law in order to give public notice and
protect the validity of this Lease. In the event of any
discrepancy between the provisions of said recorded memorandum of
this Lease or any other recorded instrument referring to this
Lease and the provisions of this Lease, the provisions of this
Lease shall prevail.
(b) Landlord, Lender and Tenant shall, at any time and
from time to time, upon not less than twenty (20) days' prior
written request by the other (or, in the case of an estoppel
certificate requested of either, upon not less than twenty (20)
days' prior written request of Lender), execute, acknowledge and
deliver to the other a statement in writing, executed by Landlord
or Tenant by, a President, Vice President or authorized general
partner, principal officer or agent thereof certifying (i) that
this Lease is unmodified and in full effect (or, if there have
been modifications, that this Lease is in full effect as
modified, setting forth such modifications), (ii) the dates to
which Basic Rent payable hereunder has been paid, (iii) that to
the knowledge of the party executing such certificate, no default
by either Landlord or Tenant exists hereunder or specifying each
such default of which such party may have knowledge; (iv) the
remaining Term hereof; (v) with respect to a certificate signed
by Tenant, that to the knowledge of the party executing such
certificate, there are no proceedings pending or threatened
against Tenant before or by any court or administrative agency
which if adversely decided would materially and adversely affect
the financial condition and operations of Tenant or if any such
proceedings are pending or threatened to said party's knowledge,
specifying and describing the same; (vi) with respect to a
certificate signed by Tenant, that no rent has been paid under
the Lease for more than one (1) month in advance; and (vii) with
respect to a certificate signed by Tenant, that to Tenant's
knowledge Tenant is in full compliance with all Federal, State
and local laws, ordinances, rules and regulations affecting its
use of the Leased Premises, including but not limited to the
handling, storage and disposal of hazardous and/or toxic
materials used or generated as a result of its business conducted
on or about the Leased Premises. It is intended that any such
statements may be relied upon by Lender, the recipient of such
statements or their assignees or by any prospective mortgagee,
purchaser, assignee or subtenant of the Leased Premises.
23. Surrender and Holding Over.
Upon the expiration or earlier termination of this
Lease, Tenant shall peaceably leave and surrender the Leased
Premises (except as to any portion thereof with respect to which
this Lease has previously terminated) to Landlord in the same
condition in which the Leased Premises were originally received
from Landlord at the commencement of this Lease, except as to any
repair or Alteration as permitted or required by any provision of
this Lease, and except for ordinary wear and tear and damage by
fire, casualty or condemnation but only to the extent Tenant is
not required to repair the same hereunder. Tenant may remove at
Tenant's sole cost and expense from the Leased Premises on or
prior to such expiration or earlier termination Tenant's Trade
Fixtures and personal property which are owned by Tenant or third
parties other than Landlord, and Tenant at its expense shall, on
or prior to such expiration or earlier termination, repair any
damage caused by such removal. Tenant's Trade Fixtures and
personal property not so removed at the end of the Term or within
fifteen (15) days after the earlier termination of the Term for
any reason whatsoever shall become the property of Landlord, and
Landlord may thereafter cause such property to be removed from
the Leased Premises. Landlord shall not in any manner or to any
extent be obligated to reimburse Tenant for any property which
becomes the property of Landlord as a result of such expiration
or earlier termination. Upon such expiration or earlier
termination, no party shall have any further rights or
obligations hereunder except as specifically provided herein.
Any holding over by Tenant of the Leased Premises after
the expiration or earlier termination of the term of this Lease
or any extensions thereof, with the consent of Landlord, shall
operate and be construed as tenancy from month to month only, at
one hundred fifty percent (150%) of the Basic Rent reserved
herein and upon the same terms and conditions as contained in
this Lease. Notwithstanding the foregoing, any holding over
without Landlord's consent shall entitle Landlord, in addition to
collecting Basic Rent at a rate of one hundred fifty percent
(150%) thereof, to exercise all rights and remedies provided by
law or in equity, including the remedies of Section 20.
24. No Merger of Title.
There shall be no merger of this Lease nor of the
leasehold estate created by this Lease with the fee estate in or
ownership of any of the Leased Premises by reason of the fact
that the same person, corporation, firm or other entity may
acquire or hold or own, directly or indirectly, (i) this Lease or
the leasehold estate created by this Lease or any interest in
this Lease or in such leasehold estate and (ii) the fee estate or
ownership of any of the Leased Premises or any interest in such
fee estate or ownership. No such merger shall occur unless and
until all persons, corporations, firms and other entities having
any interest in (x) this Lease or the leasehold estate created by
this Lease and (y) the fee estate in or ownership of the Leased
Premises including, without limitation, Lender's interest
therein, or any part thereof sought to be merged shall join in a
written instrument effecting such merger and shall duly record
the same.
25. Landlord and Lender Exculpation.
Anything contained herein to the contrary
notwithstanding, any claim based on or in respect of any
liability of Landlord under this Lease shall be enforced only
against the Landlord's interest in Leased Premises and shall not
be enforced against the Landlord individually or personally.
Tenant agrees that any assignment by Landlord to Lender of
Landlord's interest in this Lease, or the rent, payable
hereunder, whether absolute or conditional in nature or
otherwise, whether such assignment is made to the Lender solely
as additional collateral related to a mortgage or otherwise, and
the acceptance thereof by Lender shall never be treated as an
assumption by Lender of any obligations of Landlord hereunder
unless Lender shall, by notice sent to Tenant, specifically
elect, and that Lender shall be treated as having assumed
Landlord's obligations hereunder only upon purchase of the Leased
Premises pursuant to foreclosure of the Mortgage or by deed in
lieu thereof, or other conveyance and then only subject to the
limitations set forth in the first sentence hereof.
26. Hazardous Substances.
(a) Tenant represents and warrants that it will not
on, about, or under the Leased Premises, use, permit, make, treat
or dispose of any "hazardous substances" as that term is defined
in the Comprehensive Environmental Response, Compensation and
Liability Act, and the rules and regulations promulgated pursuant
thereto, as from time to time amended, 42 U.S.C. Section 9601 et
seq. (the "Act") or any Hazardous Materials (as hereinafter
defined), but the foregoing shall not prevent the use, to the
extent necessary and customary in the normal conduct of Tenant's
business, of any such substances in accordance with all Legal
Requirements and Tenant represents and warrants that it will at
all times comply with the Act and any other federal, state or
local laws, rules or regulations governing hazardous substances
or Hazardous Materials. Hazardous Materials as used herein shall
include, without limitation, all chemicals, petroleum, crude oil
or any fraction thereof, hydrocarbons, polychlorinated biphenyls
(PCBs), asbestos, asbestos-containing materials and/or products,
urea formaldehyde, or any substances which are classified as
"hazardous" or "toxic" under the Act; hazardous waste as defined
under the Solid Waste Disposal Act, as amended 42 U.S.C. Section
6901; air pollutants regulated under the Clean Air Act, as
amended, 42 U.S.C. Section 7401, et seq.; pollutants as defined
under the Clean Water Act, as amended, 33 U.S.C. Section 1251, et
seq., any pesticide as defined by Federal Insecticide, Fungicide,
and Rodenticide Act, as amended, 7 U.S.C. Section 136, et seq.,
any hazardous chemical substance or mixture or imminently
hazardous substance or mixture regulated by the Toxic Substances
Control Act, as amended, 15 U.S.C. Section 2601, et seq., any
substance listed in the United States Department of
Transportation Table at 45 CFR 172.101; any chemicals included in
regulations promulgated under the above listed statutes or any
modifications thereof or successor statutes thereto; any
explosives, radioactive material, and any chemical regulated by
state statutes similar to the federal statutes listed above and
regulations promulgated under such state statutes. Landlord
shall, upon the request of Tenant, promptly execute all permits
or such other instruments as may be required by Legal
Requirements, the Act, the federal statutes listed above or
similar state statutes to be executed by the owner of the
property, provided such documents are in form and substance
reasonably satisfactory to Landlord.
(b) To the extent required by the Act and/or any other
Legal Requirements, Tenant shall remove any hazardous substances
(as defined in the Act) and Hazardous Materials (as defined
above) whether now or hereafter existing on, about or under the
Leased Premises and whether or not arising out of or in any
manner connected with Tenant's occupancy of the Leased Premises
during the Initial Term or any extension or renewal Term thereof.
Tenant shall and hereby does agree to defend, indemnify and hold
Lender and Landlord, their officers, directors, shareholders,
partners and employees harmless from and against any and all
causes of actions, suits, demands or judgments of any nature
whatsoever, losses, damages, penalties, expenses, fees, claims,
costs (including response and remedial costs), and liabilities,
including, but not limited to, attorneys fees and costs of
litigation, arising out of or in any manner connected with (i)
the violation of and liability under any environmental Legal
Requirements with respect to the Leased Premises; and (ii) the
"release" or "threatened release" of or failure to remove, as
required by this Section 26, "hazardous substances" (as defined
in the Act) and Hazardous Materials (as defined above) on, about
or under the Leased Premises or any portion or portions thereof,
now or hereafter existing during the Initial Term and any
extension or renewal Term whether or not arising out of or in any
manner connected with Tenants' occupancy of the Leased Premises
during the Initial Term or any extension or renewal Term. The
obligations of Tenant under this Section 26(b) shall survive any
termination of this Lease.
(c) The Tenant represents, warrants and covenants that
it will not install any underground storage tank without
specific, prior written approval from the Landlord, which may be
withheld in its sole discretion. The Tenant will not store
combustible or flammable materials on the Leased Premises in
violation of the Act and any Legal Requirements governing
Hazardous Materials.
27. Right of First Refusal to Purchase.
(a) If, at any time and from time to time during the
term of the Lease (excluding the first eighteen (18) months of
this Lease), Landlord decides to sell, exchange or otherwise
transfer the Leased Premises to a Qualified Purchaser, either by
direct transfer or indirectly as a result of a change or transfer
of 25% or more of the ownership interests in and to Landlord to a
Qualified Purchaser, or otherwise by operation of law, Landlord
shall give written notice to Tenant of the terms of such
transfer. Landlord's notice shall set forth the economic terms
on which Landlord has received a bona fide offer to sell the
Leased Premises or such ownership interest to a third party (or
from which Landlord's owners intend to transfer their interests
to a third party, if applicable) and offer to Tenant a cash or
cash equivalent price and terms for which Tenant may purchase the
Leased Premises or such ownership interest, and which cash
equivalent price and terms will not include the purchase by
Tenant of other property of Landlord or require repayment of the
debt of Landlord, but may provide for the assumption of debt
secured by the property. In the event of an offer or proposed
transfer on other than an all cash basis (other than requiring
the assumption of property specific debt), Landlord shall
reasonably and in good faith determine the cash equivalent price.
Tenant shall have thirty (30) days after receipt of the notice in
which to elect to acquire the Leased Premises or such ownership
interest on the terms contained in the notice. Such election to
purchase shall be by written notice to Landlord. If Tenant fails
to accept such offer in accordance with this paragraph within the
applicable time period, Tenant shall be conclusively presumed to
have rejected such offer, in which event Landlord shall be free,
at any time thereafter, to sell the Leased Premises or such
ownership interest to a Qualified Purchaser at a purchase price
and upon terms and conditions not more favorable to the Qualified
Purchaser than those contained in Landlord's notice to Tenant,
except as specifically provided below. Upon Landlord's request,
Tenant shall affirm in writing within five (5) Business Days,
after expiration of the applicable time period, that such offer
has been rejected. This right of first refusal shall not apply
to: (i) any offer or sale incidental to the exercise of any
remedy by Lender or any mortgagee or beneficiary under any
mortgage, deed of trust or similar security instrument creating a
lien on the interest of Landlord in the Leased Premises, (ii) any
transfer by or among the owners of Landlord to any other owner of
Landlord, or a transfer by any beneficial owner to such owner's
immediate family or lineal descendants or a trust for the benefit
of any one or more of the foregoing, or to a corporation or other
entity in which any one or more of the foregoing has a
controlling interest, or to an entity controlled by, under common
control with or controlling Landlord or to an organization
qualified under section 501(c)(3) of the Internal Revenue Code or
to a wholly-owned subsidiary of such an organization, (iii) a
transaction or transfer resulting from the sale, reorganization
or consolidation of all or substantially all of the assets of any
of the constituent owners of Landlord, or (iv) any transfer
resulting from the death or incompetence of any individual. If
Landlord desires to sell or offer for sale the Leased Premises or
such ownership interest for a lower purchase price or on terms
more favorable to the Qualified Purchaser than offered to and not
accepted by Tenant, Landlord shall not convey the Leased Premises
or such ownership interest without first again offering to Tenant
the right to purchase the Leased Premises or such ownership
interest as provided above; provided, however, that such sale or
offer shall only be deemed to be more favorable if the proposed
sale price and terms shall be less than ninety-five percent (95%)
of the sale price (or cash equivalent price) offered to Tenant.
In the event Landlord is required to re-offer the Leased Premises
or such ownership interest to Tenant pursuant to the preceding
sentence, Tenant shall have ten (10) Business Days after receipt
of such re-offer in which to elect to acquire the Leased Premises
or such ownership interest on the terms contained in such notice
after which time Landlord shall be free to sell the Leased
Premises or such ownership interest on such terms. The
provisions of this paragraph shall apply to each subsequent price
reduction, if any, meeting the criteria set forth herein. Any
purchase pursuant to this Section 27 shall be in accordance with
the Purchase Procedure. Any conveyance by Landlord of the Leased
Premises or such ownership interest to any person other than to
Tenant shall be made subject to this Lease, including the
continuing right of first refusal granted to Tenant under this
Section 27, and this Lease shall continue in full force and
effect. Upon any conveyance by Landlord of the Leased Premises
or such ownership interest, Landlord shall provide Tenant with
copies of any change of ownership statements prior to the filing
of such statements with any governmental authority or agency.
Notwithstanding the provisions of Section 21, if Landlord
provides such copies by facsimile, same shall be deemed to have
been given on the date transmitted.
28. Purchase Procedure.
(a) In the event of the purchase by the Tenant of the
Leased Premises pursuant to any provision of this Lease, the
terms and conditions of this Section 28 shall apply. At a time
and place and the date fixed for such purchase in this Lease, or
at such other place, time or date as the Landlord and the Tenant
shall mutually agree:
(i) the Tenant shall pay the purchase price to
the Landlord by wire transfer of immediately available federal
funds, in lawful money of the United States, to an account or
accounts designated by the Landlord, together with all Basic
Rent, Additional Rent, and Non-Rent Monetary Obligations accrued
and unpaid as of such date, subject in the case of a purchase of
the Leased Premises pursuant to Section 12, to the reduction of
the purchase price of the Leased Premises by the Landlord's
application to the payment of such purchase price of the amount
of any Award paid to and retained by the Landlord or Lender with
respect to the Leased Premises; and
(ii) the Landlord shall execute and deliver to the
Tenant a grant deed (or other form appropriate for the applicable
jurisdiction) in recordable form, and such other instrument or
instruments as may be appropriate, to transfer the Leased
Premises to the Tenant free and clear of all material liens
(other than Permitted Encumbrances, liens created or suffered
through or by or with the consent of Tenant, and any installment
of Taxes due and payable after the Commencement Date and this
Lease), together with such evidence of the Landlord's authority
to sell the Leased Premises to the Tenant, and of the
authorization of the sale of the Leased Premises, and the
execution and delivery of the deed by the Landlord, and of such
other matters as the Tenant may reasonably request, all of which
shall be reasonably satisfactory to the Tenant in form and
substance, and a certification of non-foreign status as required
by the Foreign Investment in Real Property Tax Act and the
regulations promulgated thereunder and any similar certificates
required by the State. In the case of a purchase of the Leased
Premises by the Tenant pursuant to Section 12, the Landlord shall
also pay to the Tenant the Award received by the Landlord and not
previously applied to Restoration or paid to the Tenant by the
Landlord with respect to the Leased Premises (unless the Tenant
shall have received a credit against the purchase price in
respect thereof or, if payment of the Award has not been made as
of the closing of the purchase of the Leased Premises, assigned
to the Tenant the right to receive the Landlord's portion of the
Award relating to the Leased Premises when such Award is paid).
(b) In the case of a purchase pursuant to this Lease
under Section 12(b), the Tenant shall pay all charges incident to
such transfer, including all recording fees, reasonable
attorneys' fees, costs and expenses, title insurance premiums, if
any, survey costs and transfer taxes or other similar taxes (the
"Transaction Costs"). However, in the case of a purchase
pursuant to the exercise of Tenant's right of first refusal under
Section 27 of this Lease, the Tenant shall pay only those
Transaction Costs to be paid by a purchaser under the terms set
forth in Landlord's notice of the terms of such proposed transfer
in accordance with Section 27.
(c) In the event of the termination of this Lease with
respect to the Leased Premises as herein provided, the
obligations and liabilities of the Landlord and the Tenant, as
the case may be, whether actual or contingent, under this Lease
that arose at or prior to such termination and that are expressly
stated herein to survive the termination of this Lease shall
survive termination.
(d) The Tenant shall execute and deliver to the
Landlord an environmental indemnity agreement, in form, scope and
substance reasonably acceptable to the Landlord, pursuant to
which the Tenant shall agree to be liable for and pay, and shall
indemnify, hold harmless and defend Landlord from and against,
any Claim arising under environmental Legal Requirements from and
after the effective date of the purchase pursuant to this Section
28.
29. Entry by Landlord and Lender.
Landlord, Lender and their authorized representatives
and experts shall have the right upon reasonable notice (which
shall be not less than 48 hours except in the case of emergency)
to enter the Leased Premises at all reasonable business hours,
(and at all other times in the event of an emergency), for (i)
the purpose of inspecting the same, (ii) the purpose of doing any
work under Section 9, (and, in each case, may take all such
action thereon as may be necessary or appropriate for any such
purpose (but nothing contained in this Lease or otherwise shall
create or imply any duty upon the part of Landlord or Lender to
make any such inspection or do any such work)), and (iii) the
purpose of showing the Leased Premises to prospective Qualified
Purchasers and mortgagees and, at any time within twelve (12)
months prior to the expiration of the term of this Lease for the
purpose of showing the same to prospective tenants. No such
entry shall constitute an eviction of Tenant but any such entry
shall be done by Landlord in such reasonable manner as to
minimize any disruption of Tenant's business operation. Landlord
shall obtain the agreement of the Lender or any other person who
enters the Leased Premises to comply with the provisions of
Section 42. Tenant shall reasonably cooperate with Landlord,
Lender and/or their authorized representatives and experts in
connection with any such inspection.
30. Statements.
Tenant named herein shall each submit to Lender and
Landlord (i) within 45 days of the end of each of the first three
fiscal quarters of each fiscal year of Tenant named herein,
quarterly balance sheets, income and cash flow statements for
Tenant named herein, certified by a senior financial officer of
Tenant; (ii) within 90 days of the end of each fiscal year,
annual balance sheets, income and cash flow statements for Tenant
named herein, certified by an independent public accountant.
Quarterly 10Qs as filed with the Securities and Exchange
Commission shall satisfy the requirements contained in (i)
herein. Copies of the 10 Ks filed with the Securities and
Exchange Commission will satisfy the requirement contained in
(ii) herein. The obligations of Tenant named herein shall
continue whether or not this Lease shall have been assigned by
Landlord or Tenant.
31. No Usury.
The intention of the parties being to conform strictly
to the usury laws now in force in the State, whenever any
provision herein provides for payment by Tenant to Landlord of
interest at a rate in excess of the legal rate permitted to be
charged, such rate herein provided to be paid shall be deemed
reduced to such legal rate.
32. Broker.
Landlord and Tenant represent and warrant to each other
that, except for Citicorp Real Estate, Inc. (which amounts, if
any, shall be the responsibility of Tenant pursuant to a separate
agreement), neither party negotiated with any broker in
connection with this Lease and that this Lease was negotiated
directly by Landlord and Tenant. Each party hereby agrees to
indemnify the other against all claims, damages, costs and
expenses incurred by the indemnified party as a result of the
breach of the foregoing representation or warranty by the
indemnifying party.
33. Waiver of Landlord's Lien.
Landlord hereby waives any right to distrain Trade
Fixtures or any property of Tenant and any Landlord's lien or
similar lien upon Trade Fixtures and any other property of Tenant
regardless of whether such lien is created or otherwise.
Landlord agrees, at the request of Tenant, to execute a waiver of
any Landlord's or similar lien for the benefit of any present or
future holder of a security interest in or lessor of any of Trade
Fixtures or any other personal property of Tenant. Landlord
acknowledges and agrees in the future to acknowledge (in a
written form reasonably satisfactory to Tenant) to such persons
and entities at such times and for such purposes as Tenant may
reasonably request that Trade Fixtures are Tenant's property and
not part of Improvements (regardless of whether or to what extent
such Trade Fixtures are affixed to the Improvements) or otherwise
subject to the terms of this Lease.
34. No Waiver.
No delay or failure by either party to enforce its
rights hereunder shall be construed as a waiver, modification or
relinquishment thereof.
35. Separability.
If any term or provision of this Lease or the
application thereof to any provision of this Lease or the
application thereof to any person or circumstances shall to any
extent be invalid and unenforceable, the remainder of this Lease,
or the application of such term or provision to person or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and shall be enforced to
the extent permitted by law.
36. Indemnification.
(a) Tenant agrees to defend, pay, protect, indemnify,
save and hold harmless (the "General Indemnity") Landlord and
Lender, and their respective officers, directors, shareholders,
partners, beneficiaries and employees (each an "Indemnified
Party") from and against any and all liabilities, losses,
damages, penalties, costs, expenses (including reasonable
attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature whatsoever, howsoever caused,
arising from this Lease or the use, non-use, occupancy,
condition, design, construction, maintenance, repair or
rebuilding of any of or otherwise relating to, the Leased
Premises or Adjoining Property, and any injury to or death of any
person or persons or any loss of or damage to any property, real
or personal, in any manner arising therefrom connected therewith
or occurring thereon (collectively, "Losses").
(b) The General Indemnity shall not apply to Losses
that are attributable to or for: (i) acts or events occurring
after expiration of the Term and redelivery of the Leased
Premises to the Landlord, (ii) taxes (whether or not indemnified
by the Tenant under other agreements) based on the income,
receipts or profits of Landlord, unless included within the
definition of "Taxes" as defined in this Lease, (iii) the
negligence or willful misconduct or breach of any representation
or warranty by the Landlord or the Lender, or their respective
employees, agents, or contractors in this Lease, (iv) any
obligation or liability of the Indemnified Parties in this Lease,
or (v) any losses resulting from the imposition of any lien which
the Landlord is required to lift and discharge and which Tenant
is not obligated to lift and discharge under this Lease.
(c) From and after the Loan Repayment Date, Landlord
shall indemnify and hold harmless Tenant from and against any and
all obligations, claims, losses, damages, liabilities and
expenses (including, without limitation, reasonable attorneys'
and accountants' fees and disbursements) arising out of the gross
negligence or willful misconduct of Landlord or its employees,
agents or contractors or breach by Landlord of any material
representation, warranty or covenant in this Lease.
37. Permitted Encumbrances.
Tenant agrees that Tenant is obligated to and shall
perform all obligations of the owner of the Leased Premises and
pay all expenses which the owner of the Leased Premises may be
required to pay in accordance with the Permitted Encumbrances.
Tenant further covenants and agrees to indemnify, defend and hold
harmless Landlord and Lender against any claim, loss or damage
suffered by Landlord or Lender by reason of Tenant's failure to
perform any obligations or pay any expenses as required under any
of the Permitted Encumbrances or comply with the terms and
conditions of any of the Permitted Encumbrances as hereinabove
provided during the term of this Lease.
38. Headings.
The paragraph headings in this Lease are used only for
convenience in finding the subject matters and are not part of
this Lease or to be used in determining the intent of the parties
or otherwise interpreting this Lease.
39. Modifications.
(a) This Lease may be modified, amended, discharged or
waived only by an agreement in writing signed by the party
against whom enforcement of any such modification, amendment,
discharge or waiver is sought. Each of Tenant and Landlord
agrees that it will not modify or amend this Lease without the
written consent of Lender within any period during which there is
a Lender hereunder. In the event of any inconsistent instruction
from Landlord and Lender, Tenant shall comply with the
instruction of Lender.
(b) The parties hereto agree that it is intended that
the Lease and the Lease Modification Agreement together (i)
represent a single, indivisible agreement between the parties and
(ii) are interdependent and interrelated.
40. Successors, Assigns.
The covenants of this Lease shall run with the Land and
bind Tenant, the heirs, distributees, personal representatives,
successors and permitted assigns of Tenant and all present and
subsequent encumbrances and subtenants of any of the Leased
Premises, and shall inure to the benefit of and bind Landlord,
its successors and assigns. In the event there is more than one
Tenant, the obligation of each shall be joint and several. The
term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners of the
Leased Premises or holder of the Mortgage in possession at the
time in question of the Leased Premises and in the event of any
transfer or transfers of the title of the Leased Premises, the
Landlord herein named (and in case of any subsequent transfers or
conveyances, the then grantor) shall be automatically freed and
relieved from and after the date of such transfer and conveyance
of all personal liability as respects the performance of any
covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed.
41. Merger.
The Tenant shall have the right to consolidate or merge
with another corporation, or sell substantially all of its assets
to a person or entity without the prior consent of the Landlord;
provided however in the event of a transfer or assignment of this
lease in connection therewith Tenant or its successor in interest
shall satisfy the requirements of Section 17(b).
42. Confidentiality.
Landlord agrees that any information it obtains about
Tenant's business operations, finances, existing and proposed
products, facilities (but not the Leased Premises owned by
Landlord), and manufacturing processes is Tenant's confidential
and proprietary information. Landlord agrees that it will
maintain Tenant's confidential and proprietary information in
confidence, will not disclose or disseminate the information to
any third party, without Tenant's express prior written consent,
and will use the information only for purposes of enforcing
Landlord's rights and fulfilling Landlord's obligations in
connection with this Lease. Landlord agrees to inform all of its
employees, officers, and directors to whom the information is
given of the confidential nature of such information.
Notwithstanding the foregoing, nothing contained herein shall
prevent Landlord from disclosing information or materials if
Landlord can demonstrate that: (i) it is required to do so by
Legal Requirements; (ii) the information being so disclosed is in
the public domain at the time of its disclosure; (iii) the
information being so disclosed was obtained by Landlord on a non-
confidential basis from a source other than Tenant; or (iv) the
information being so disclosed was known to Landlord on a non-
confidential basis prior to its disclosure to Landlord by Tenant.
43. Specific Requirements of Special Purpose Entity.
From and after the Loan Repayment Date:
(a) Landlord represents, warrants and covenants as follows:
(i) The purpose for which the Landlord is organized shall
be limited solely to (a) owning, holding, selling,
leasing, transferring, exchanging, operating and
managing the Leased Premises, (b) entering into the
loan with the Lender, (c) refinancing the Leased
Premises in connection with a permitted repayment of
the loan and (d) transacting any and all lawful
business for which a borrower may be organized under
its constitutive law that is incident, necessary and
appropriate to accomplish the foregoing.
(ii) Landlord does not own and will not own any asset or
property other than (a) the Leased Premises, and
(b) incidental personal property necessary for and
used or to be used in connection with the ownership or
operation of the Leased Premises.
(iii) Landlord will not engage in any business other than
the business for which it is organized under clause
(i) above.
(iv) Landlord will not enter into any contract or agreement
with any Affiliate of the Landlord, any Beneficiary of
Landlord, any owner of the Landlord, any guarantor or
any Affiliate of any Beneficiary, owner or guarantor,
except upon terms and conditions that are intrinsically
fair, commercially reasonable and substantially similar
to those that would be available on an arms-length
basis with third parties not Affiliated with the
Landlord.
(v) Landlord has not incurred and will not incur any
indebtedness other than (a) the loan with Lender,
(b) trade and operational debt incurred in the
ordinary course of business with trade creditors and
in amounts as are normal and reasonable under the
circumstances, provided such debt is not evidenced by
a note and is paid when due, and (c) indebtedness
incurred in the financing of equipment and other
personal property used on the Leased Premises. No
indebtedness other than the loan with Lender may be
secured (subordinate or pari passu) by the Leased
Premises.
(vi) Landlord has not made and will not make any loans or
advances to any entity or Person (including any
Affiliate or Beneficiary, any guarantor or any
Affiliate of any Beneficiary or guarantor), shall not
buy or hold evidence of indebtedness issued by any
other Person or entity (other than cash and investment
grade securities) and shall not acquire obligations or
securities of its Affiliates or owners, including
partners, members, Beneficiaries or shareholders, as
appropriate.
(vii) Landlord is and will remain solvent and Landlord will
pay its debts and liabilities (including, as
applicable, shared personnel and overhead expenses)
from its assets as the same shall become due unless
such insolvency or failure to pay debts and
liabilities is caused by Tenant's default under this
Lease.
(viii)Landlord has done or caused to be done and will do
all things necessary to observe organizational
formalities and preserve its existence, and Landlord
will not, nor will Landlord permit any Beneficiary,
Affiliate of Landlord or any guarantor to amend,
modify or otherwise change the partnership
certificate, partnership agreement, articles of
incorporation and bylaws, operating agreement, trust
or other organizational documents of Landlord or any
SPC Party (as defined below) which is in violation of
the provisions of this Section 43 without the prior
written consent of Tenant.
(ix) Landlord will maintain all of its books, records,
financial statements and bank accounts separate from
those of its Affiliates and any other Person or
entity. Landlord's assets will not be listed as
assets on the financial statement of any other entity.
Landlord, if required by law to file a separate tax
return, will file its own tax returns and will not
file a consolidated federal income tax return with any
other corporation. Landlord shall maintain its books,
records, resolutions and agreements as official
records.
(x) Landlord will be, and at all times will hold itself
out to be the public as, a legal entity separate and
distinct from any other entity (including any
Affiliate, Beneficiary or guarantor of Landlord),
shall correct any known misunderstanding regarding its
status as a separate entity, shall conduct business in
its own name, shall not identify itself or any of its
Affiliates as a division or part of the other and
shall maintain and utilize separate stationery,
invoices and checks.
(xi) Landlord will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of
its size and character and in light of its
contemplated business operations.
(xii) Neither Landlord nor any Beneficiary or Affiliate will
seek the dissolution, winding up, liquidation,
consolidation or merger in whole or in part, or,
except in accordance with Section 27, the sale of
material assets of the Landlord.
(xiii) Landlord will not commingle the funds and other assets
of Landlord with those of any Affiliate or
Beneficiary, any guarantor, or any Affiliate of any
Beneficiary or guarantor, or any other Person, and
will not participate in any cash management system
with any such party.
(xiv) Landlord will not commingle its assets with those of
any other Person or entity and will hold all of its
assets in its own name.
(xv) Landlord will not guarantee or become obligated for
the debts of any other entity or Person and does not
and will not hold itself out as being responsible for
the debts or obligations of any other Person.
(xvi) If Landlord is a limited partnership or a limited
liability company, each general partner or managing
member (each, an "SPC Party") shall be a corporation
whose sole asset is its interest in Landlord and each
such SPC Party will at all times comply, and will
cause Landlord to comply, with each of the
representations, warranties, and covenants contained
in this Section 43 as if such representation, warranty
or covenant was made directly by such SPC Party.
(xvii) Landlord shall at all times cause there to be at least
one duly appointed member of the board of directors
(an "Independent Director") of each SPC Party in
Landlord who is not at the time of initial appointment
and has not been at any time during the preceding five
(5) years: (a) a stockholder, director, officer,
employee, partner, attorney or counsel of the
corporation, the Landlord or any Affiliate of either
of them; (b) a customer, supplier or other Person who
derives more than 10% of its purchases or revenues
from its activities with the corporation, the Landlord
or any Affiliate of either of them; (c) a Person or
other entity Controlling or under common Control with
any such stockholder, partner, customer, supplier or
other Person; or (d) a member of the immediate family
of any such stockholder, director, officer, employee,
partner, customer, supplier or other Person. (As used
herein, the term "Control" means the possession,
directly or indirectly, of the power to direct or
cause the direction of management, policies or
activities of a Person or entity, whether through
ownership of voting securities, by contract or
otherwise). If Landlord is a trust, there shall at
all times be one independent trustee who at all times
meets the criteria for an Independent Director.
(xviii)Landlord shall not cause or permit the board of
directors of each SPC Party in Landlord to take any
action which, under the terms of any certificate of
incorporation, by-laws or any voting trust agreement
with respect to any common stock, require the vote of
any SPC Party in Landlord unless at the time of such
action there shall be at least one member who is an
Independent Director. If Landlord is a trust,
Landlord shall not cause or permit the Landlord to
take any action which under the terms of the trust
agreement requires the vote of the independent trustee
unless at the time of such action there shall be at
least one independent trustee who meets the criteria
for an Independent Director.
(xix) Landlord shall conduct its business so that the
assumptions made with respect to Landlord in that
certain opinion letter dated June 25, 1998 (the
"Insolvency Opinion") delivered by Hiersche, Martens,
Hayward, Drakely & Urbach, P.C. in connection with the
loan with Lender shall be true and correct in all
respects. In the event of the sale or transfer of the
Leased Premises or the transfer of any part of the
beneficial interest in Landlord in accordance with the
provisions of the Section 8 of the Mortgage, Landlord
shall conduct its business so that the assumptions
with respect to the Landlord in the non-consolidation
opinion delivered pursuant to Section 8(f)(iv) of the
Mortgage shall be true and correct in all respects.
(xx) Landlord shall allocate fairly and reasonably any
overhead expenses that are shared with an Affiliate,
including paying for office space and services
performed by any employee of an Affiliate.
(xxi) The stationery, invoices, and checks utilized by
Landlord or utilized to collect its funds or pay its
expenses shall bear its own name and shall not bear
the name of any other entity unless such entity is
clearly designated as being Landlord's agent.
(xxii) Landlord shall not pledge its assets for the benefit
of any other Person or entity, other than with respect
to the loan with Lender.
(xxiii)Landlord shall not identify itself as a division of
any other Person or entity.
(xxiv) Landlord shall pay the salaries of its own employees,
if any, from its own funds.
(xxv) Landlord shall maintain a sufficient number of
employees in light of its contemplated business
operations.
(b) From and after the Loan Repayment Date, the
representations, warranties, and covenants of this Section 43
shall apply to and be binding on any of Landlord's successors in
interest.
(c) From and after the Loan Repayment Date: Landlord
acknowledges that monetary damages may not be an adequate remedy
for Tenant if Landlord should be determined to be in default
under this Section 43. Accordingly, Landlord agrees that upon
any default by Landlord under this Section 43, Tenant shall have
the option to institute an action for specific performance under
this Section.
44. Joinder of Remainder Landlord.
(a) Except as provided in subsection (b) of this
Section 44, Remainder Landlord joins in the execution of this
Lease solely for the purposes of (i) consenting to the terms and
conditions of this Lease and the execution thereof by Landlord
and (ii) if the Landlord's interest in the Leased Premises
expires prior to the end of the term of this Lease, Remainder
Landlord shall become the Landlord for all purposes hereunder and
Remainder Landlord specifically agrees that (x) it will be bound,
from and after that time only, by all terms, covenants and
conditions of this Lease and (y) it will be jointly and severally
liable with Landlord for all actions, inactions, defaults, and
breaches of Landlord under the Lease prior to such time.
(b) Notwithstanding anything to the contrary contained
in subsection (a) of this Section 44, Remainder Landlord
specifically agrees that (i) Remainder Landlord will not transfer
all or any portion of any interest it has in the Leased Premises
to any Person other than a Qualified Purchaser, and
(ii) Remainder Landlord will be bound by the provisions of
Section 27 and Section 43 of this Lease.
(c) Landlord, Remainder Landlord and Tenant hereby
agree that until the expiration of the Landlord's interest in the
Leased Premises, (i) any reference in Section 43 of this Lease
shall mean (x) with respect to Landlord, Landlord's interest in
the Leased Premises and (y) with respect to Remainder Landlord,
Remainder Landlord's interest in the Leased Premises; and
(ii) for all purposes under this Lease, Tenant may treat Landlord
as the sole Landlord under this Lease, and need not obtain from
Remainder Landlord any consent, waivers, approval or other action
and Remainder Landlord will be bound by any and all such
consents, waivers, approvals or other actions taken by Landlord
prior to the expiration of the Landlord's interest in the Leased
Premises; provided that Tenant agrees that any notice required to
be provided to Landlord under this Lease shall also be sent to
Remainder Landlord.
(d) Remainder Landlord hereby agrees with Tenant, for
the benefit of Tenant and its successors and assigns that if
Tenant or any of its successors or assigns acquires the Leased
Premises, then (i) any right of first refusal granted by
Remainder Landlord shall automatically terminate without any
further action by Remainder Landlord; and (ii) Remainder Landlord
shall obtain the written consent (in recordable form) of the
beneficiary of any such right of first refusal to the automatic
termination of such right of first refusal pursuant to this
subsection (d).
45. Counterparts.
This Lease may be executed in several counterparts,
which together shall be deemed one and the same instrument.
46. Time of the Essence.
Time is of the essence in this Lease and each and every
provision hereof in which any date or time is specified.
47. Governing Law.
This Lease shall be governed by and construed according
to the laws of the State.
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have caused
this instrument to be executed under seal as of the day and year
first above written.
LANDLORD:
NPDC - EY BREA TRUST
M. SCOTT KIPP
By: M. Scott Kipp
Its: Administrative Trustee
TENANT:
BECKMAN COULTER, INC.
By: WILLIAM H. MAY
Its: Vice President, General Counsel
and Secretary
REMAINDER LANDLORD:
NPDC - RI BREA TRUST
M. SCOTT KIPP
By: M. Scott Kipp
Its: Administrative Trustee
<PAGE>
EXHIBIT
A - PROPERTY DESCRIPTION
B - RENEWAL RENT
C - PURCHASE PRICE UPON INVOLUNTARY TERMINATION
D - TENANT'S SEVERABLE PERSONAL PROPERTY
<PAGE>
EXHIBIT B
RENEWAL RENT
Renewal Period Annual Rent
1st and 2nd Renewal Terms $7,198,400
3rd through 6th Renewal Terms The greater of Basic Rent for
the prior annual period
and 95% of Fair Rental
Value at commencement of
Renewal Term
For purposes of this Lease, "Fair Rental Value" shall be
determined by mutual agreement of the Landlord and Tenant. If
the Landlord and Tenant are unable to agree on such value within
fifteen (15) months prior to the expiration of the then current
Term, then "Fair Rental Value" shall mean, as to the Leased
Premises, the value, determined consistently with standard
appraisal methodology, that would be obtained at an arms-length
transaction for cash between informed and willing parties,
neither of whom is under any compulsion to lease or rent, for the
leasing of the Leased Premises (but which value shall not include
any value attributable to (i) any Severable Alterations made
during the Term of this Lease by the Tenant, (ii) any of the
Landlord's Severable Personal Property, or (iii) any of Tenant's
Trade Fixtures).
Such appraisal shall be completed by an appraiser mutually
selected by Landlord and Tenant. If Landlord and Tenant are
unable to agree on the selection of a mutually acceptable
appraiser, then Landlord shall submit a list of names, from which
Tenant shall, within fifteen (15) days after Landlord's
submission, select one appraiser to complete the appraisal.
EXHIBIT 2.6
Execution Copy
LEASE
between
BECKMAN COULTER, INC.
as Tenant
and
CARDBECK CHASKA TRUST
as Landlord
Dated June 25, 1998
PROPERTY
317 and 1000 Lake Hazeltine Drive
Chaska, Minnesota
<PAGE>
TABLE OF CONTENTS
Page
1. Certain Definitions...............................................1
2. Demise of Premises; Use of Personal Property......................6
3. Term..............................................................7
4. Rent..............................................................8
5. Net Lease.........................................................9
6. Title and Condition..............................................11
7. Taxes; Insurance and Legal Requirements..........................12
8. Use..............................................................13
9. Maintenance and Repair...........................................14
10. Liens............................................................16
11. Alterations......................................................16
12. Condemnation.....................................................17
13. Insurance........................................................20
14. Damage, Destruction..............................................23
15. Restoration......................................................24
16. Subordination to Financing.......................................26
17. Assignment; Subleasing...........................................28
18. Permitted Contests...............................................30
19. Default..........................................................32
20. Landlord's Remedies..............................................33
21. Notices..........................................................36
22. Memorandum of Lease; Estoppel Certificates.......................37
23. Surrender and Holding Over.......................................38
24. No Merger of Title...............................................39
25. Landlord and Lender Exculpation..................................40
26. Hazardous Substances.............................................40
27. Right of First Refusal to Purchase...............................42
28. Purchase Procedure...............................................44
29. Entry by Landlord and Lender.....................................46
30. Statements.......................................................47
31. No Usury.........................................................47
32. Broker...........................................................48
33. Waiver of Landlord's Lien........................................48
34. No Waiver........................................................48
35. Separability.....................................................49
36. Indemnification..................................................49
37. Permitted Encumbrances...........................................50
38. Headings.........................................................50
39. Modifications....................................................50
40. Successors, Assigns..............................................51
41. Merger...........................................................51
42. Confidentiality..................................................52
43. Specific Requirements of Special Purpose Entity..................52
44. Counterparts.....................................................54
45. Time is of the Essence...........................................54
46. Governing Law....................................................54
<PAGE>
THIS LEASE AGREEMENT is made as of this 25th day of June,
1998, by and between CARDBECK CHASKA TRUST, a Delaware business
trust, having an office at c/o Cardinal Capital Partners, Inc.,
8411 Preston Road, 8th Floor, Dallas, Texas 75225-5520
("Landlord"), , and BECKMAN COULTER, INC., a Delaware
corporation, having its principal office at 4300 N. Harbor
Boulevard, P.O. Box 3100, Fullerton, California 92834-3100,
("Tenant").
In consideration of the rents and provisions herein
stipulated to be paid and performed, Landlord and Tenant hereby
covenant and agree as follows:
1. Certain Definitions.
(a) "Additional Rent" shall mean all sums required to
be paid by Tenant to Landlord hereunder other than Basic Rent and
Non-Rent Monetary Obligations, which sums shall constitute rental
hereunder.
(b) "Adjoining Property" shall mean all sidewalks,
curbs, and vault spaces adjoining any of the Leased Premises.
(c) "Affiliate" of any Person shall mean any other
Person directly or indirectly controlling, controlled by or under
common control with such Person. For purposes of this
definition, the term "control" (including the correlative
meanings of the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management policies of such
Person, whether through the ownership of voting securities or by
contract or otherwise, provided (but without limiting the
foregoing) that no pledge of voting securities of any Person
without the current right to exercise voting rights with respect
thereto shall by itself be deemed to constitute control over such
Person.
(d) "Alteration" or "Alterations" shall mean any or
all changes, additions, improvements, reconstructions or
replacements of any of the Improvements or any personal property
of Landlord, both interior or exterior, and ordinary and
extraordinary.
(e) "Basic Rent" shall mean Basic Rent as defined in
Section 4.
(f) "Basic Rent Payment Dates" shall mean the Basic
Rent Payment Dates as defined in Section 4.
(g) "Business Day" shall mean any day other than a
Saturday, Sunday or any other day on which the banking
institutions in the State of New York are authorized by law or
executive action to close.
(h) "Commencement Date" shall mean the Commencement
Date as defined in Section 3.
(i) "Condemnation" shall mean a Taking and/or a
Requisition.
(j) "Default Rate" shall mean an annual rate of
interest equal to the Prime Rate plus five (5) percentage points,
but in no event greater than the maximum interest rate permitted
by Legal Requirements.
(k) "Event of Default" shall mean an Event of Default
as defined in Section 19.
(l) "Insurance Requirement" or "Insurance
Requirements" shall mean, as the case may be, any one or more of
the terms of each insurance policy required to be carried by
Tenant under this Lease and the requirements of the issuer of
such policy, and whenever Tenant shall be engaged in making any
Alteration or Alterations, repairs or construction work of any
kind (collectively, "Work"), the term "Insurance Requirement" or
"Insurance Requirements" shall be deemed to include a requirement
that Tenant obtain or cause its contractor to obtain completed
value builder's risk insurance when the estimated cost of the
Work in any one instance exceeds the sum of One Hundred Thousand
($100,000.00) Dollars and that Tenant or its contractor shall
obtain worker's compensation insurance or other adequate
insurance coverage covering all persons employed in connection
with the Work, whether by Tenant, its contractors or
subcontractors and with respect to whom death or bodily injury
claims could be asserted against Landlord.
(m) "Intangible Property" shall mean all books,
records and files relating to the maintenance, management or
operation of the Leased Premises belonging to the Landlord or
Tenant; all permits, certificates of occupancy, operating
permits, sign permits, development rights and approvals,
certificates, licenses, warranties and guarantees, rights to
deposits, and all other intangible property, miscellaneous
rights, benefits and privileges of any kind or character
belonging to Landlord with respect to the Leased Premises.
(n) "Law" shall mean any constitution, statute or rule
of law.
(o) "Lease Modification Agreement" shall mean the
Lease Modification Agreement dated of even date herewith, with
respect to the Leased Premises by and between the Landlord and
the Tenant.
(p) "Legal Requirement" or "Legal Requirements" shall
mean, as the case may be, any one or more of all present and
future laws, codes, ordinances, orders, judgments, decrees,
injunctions, rules, regulations and requirements, even if
unforeseen or extraordinary, of every duly constituted
governmental authority or agency (but excluding those which by
their terms are not applicable to and do not impose any
obligation on Tenant, Landlord or the Leased Premises) and all
covenants, restrictions and conditions now or hereafter of record
which may be applicable to Tenant, to Landlord or to any of the
Leased Premises, or to the use, manner of use, occupancy,
possession, operation, maintenance, alteration, repair or
reconstruction of any of the Leased Premises, even if compliance
therewith (i) necessitates structural changes or improvements
(including changes required to comply with the "Americans with
Disabilities Act") or results in interference with the use or
enjoyment of any of the Leased Premises or (ii) requires Tenant
to carry insurance other than as required by the provisions of
this Lease.
(q) "Lender" shall mean the entity identified to
Tenant as such in writing, which makes a Loan to Landlord,
secured in whole or in part by a Mortgage and evidenced by a Note
or which is the holder of a Mortgage and Note as a result of an
assignment thereof, and when a Mortgage secures multiple Notes
held by one or more noteholders, the trustee acting on behalf of
such holders, provided such trustee has been identified as such
in writing to Tenant.
(r) "Loan" shall mean a loan made by a Lender to
Landlord secured in whole or in part by a Mortgage and evidenced
by a Note or Notes.
(s) "Loan Repayment Date" shall mean the date of
payment in full of all Loans outstanding to all Lenders and the
release or reconveyance of all Mortgages of all Lenders.
(t) "Mortgage" shall mean a first priority mortgage or
similar security instrument hereafter executed covering the
Leased Premises from Landlord to Lender.
(u) "Net Award" shall mean the entire award payable to
Landlord by reason of a Condemnation, less any actual and
reasonable expenses incurred by Landlord in collecting such
award.
(v) "Net Proceeds" shall mean the entire proceeds of
any property casualty insurance required under Section 12(a),
less any actual and reasonable expenses incurred by Landlord or
Tenant in collecting such proceeds.
(w) "Non-Rent Monetary Obligations" shall mean any
liquidated damages, penalties, fines, or late fees which Tenant
assumes or agrees to pay or discharge pursuant to this Lease.
(x) "Note" or "Notes" shall mean a promissory note or
notes hereafter executed from Landlord to Lender, which Note or
Notes will be secured in whole or in part by a Mortgage and an
assignment of leases and rents.
(y) "Permitted Encumbrances" shall mean those
covenants, restrictions, reservations, liens, conditions,
encroachments, easements and other matters of title that affect
the Leased Premises as of Landlord's acquisition thereof, but
excepting any such matters arising from the acts of Landlord
(such as liens arising as a result of judgments against
Landlord).
(z) "Person" shall mean any individual, corporation,
limited liability company, partnership, association, trust, or
any other entity or organization, including any government or
political subdivision or any agency or instrumentality thereof.
(aa) "Prime Rate" shall mean the rate of interest
announced publicly by Citibank, N.A. or its successor, from time
to time, as Citibank N.A.'s or such successor's base rate, or if
there be no such base rate, then the rate of interest charged by
Citibank, N.A. or such successor to its most creditworthy
customers on commercial loans having a ninety (90) day duration.
(bb) "Purchase Procedure" shall mean the procedure set
forth in Section 28 to be used if any circumstance described
herein wherein Tenant exercises its right of first refusal to
purchase the Leased Premises.
(cc) "Qualified Purchaser" shall mean any person or
entity which is a "United States Person" within the meaning of
Section 7701(a)(30) of the Internal Revenue Code of 1986 as
amended (the "Code"), and as to which withholding of tax under
section 1441 of the Code and the Regulations thereunder is not
required who does not: (i) manufacture or sell products which
are the same as or substantially the same as products
manufactured or sold by Tenant, or (ii) conduct substantially the
same type of manufacturing operations as Tenant.
(dd) "Requisition" shall mean any temporary
condemnation or confiscation of the use or occupancy of any of
the Leased Premises by any governmental authority, civil or
military, whether pursuant to an agreement with such governmental
authority in settlement of or under threat of any such
requisition or confiscation, or otherwise.
(ee) "Restoration" shall mean the restoration of the
Leased Premises after any Taking or damage by casualty as nearly
as possible to their value, condition and character existing
immediately prior to such Taking or damage and shall include the
demolition, planning, and permitting periods required to complete
such restoration.
(ff) "State" shall mean the state in which the Leased
Premises are situated.
(gg) "Taking" shall mean any taking of any of the
Leased Premises in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or by reason
of any agreement with any condemnor in settlement of or under
threat of any such condemnation or other eminent domain
proceedings.
(hh) "Taxes" shall mean taxes of every kind and nature
(including real, ad valorem and personal property, income,
franchise, withholding, profits and gross receipts taxes), all
charges and/or taxes for any easement or agreement maintained for
the benefit of any of the Leased Premises, all general and
special assessments, levies, permits, inspection and license
fees, all utility charges, all ground rents, and all other public
charges and/or taxes whether of a like or different nature, even
if unforeseen or extraordinary, imposed upon or assessed, prior
to or during the Term, against Landlord, Tenant or any of the
Leased Premises as a result of or arising in respect of the
occupancy, leasing, use, maintenance, operation, management,
repair or possession thereof, or any activity conducted on the
Leased Premises, or the Basic Rent, Additional Rent, or Non-Rent
Monetary Obligations, including without limitation, any gross
income tax, sales tax, occupancy tax or excise tax levied by any
governmental body on or with respect to such Basic Rent,
Additional Rent, or Non-Rent Monetary Obligations, but
specifically excluding those items enumerated in Section 7.
(ii) "Term" shall mean the initial term of this Lease,
as extended pursuant to any renewal that has become effective.
(jj) "Trade Fixtures" shall mean all movable walls and
partitions, base and wall cabinets, computer power system (UPS
units), paging system, telephone system, trash compactors,
laboratory casework, security system, telephone/data system,
projection screens, emergency generators, demountable metal
partitions, warehouse racking systems, trade equipment and trade
machinery (including, without limitation, machinery racking,
conveyor equipment, lifts, and appliances), counters, cases,
furniture, inventory, shelving and similar fixtures (even if
affixed to the Improvements (as hereinafter defined)), and
articles of tangible personal property of every kind and nature
whatsoever, which are owned or leased by Tenant (other than
personal property of Landlord which Tenant is permitted to use
pursuant to this Lease) and used in the operation of the business
conducted on the Leased Premises and all modifications,
replacements, alterations and additions to such property.
2. Demise of Premises; Use of Personal Property.
(a) Landlord hereby demises and lets to Tenant and
Tenant hereby takes and leases from Landlord for the Term and
upon the provisions hereinafter specified the following described
property (collectively, the "Leased Premises"): (i) the premises
described in Exhibit "A" attached hereto and made a part hereof
together with the easements, rights and appurtenances thereunto
belonging or appertaining (collectively, the "Land"); (ii) the
buildings, structures, fixtures and other improvements
constructed and to be constructed on the Land (collectively, the
"Improvements"), together with all additions and accessions
thereto, substitutions therefor and replacements thereof
permitted by this Lease excepting therefrom Tenant's Trade
Fixtures and all property that does not constitute real property
under the laws of the State.
(b) Landlord hereby authorizes, without any
compensation except as provided in this Lease, Tenant to use any
and all personal property and Intangible Property of Landlord
located on the Leased Premises and Landlord shall not remove, or
authorize the removal of, any such personal property and
Intangible Property from the Leased Premises. Tenant shall have
the right to inspect, examine and photocopy (at Tenant's expense)
any and all such personal property and Intangible Property.
3. Term.
(a) Tenant shall have and hold the Leased Premises for
an initial term commencing on the date hereof (the "Commencement
Date") and ending on June 30, 2018 (the "Expiration Date").
(b) Provided the Lease shall not have been terminated
pursuant to the provisions hereof, this Lease and the term
thereof may be extended for up to six (6) renewal terms of five
(5) years each upon Tenant giving notice, in accordance with the
provisions of Section 21, to Landlord of such renewal at least
twelve (12) months prior to the expiration of the then current
Term, time being deemed to be of the essence with respect to
Tenant's exercise of such renewal option. Any such extension or
renewal of the Term shall be subject to all of the provisions of
this Lease, and all such provisions shall continue in full force
and effect In the event that Tenant fails to timely renew the
Term as hereinabove provided, then Landlord shall have the right
in addition to any rights granted in Section 29, during the
remainder of the Term then in effect to (i) advertise the
availability of the Leased Premises for sale or for reletting,
and (ii) show the Leased Premises to prospective Qualified
Purchasers, lenders or tenants at such reasonable times during
normal business hours as Landlord may select. If Tenant fails to
timely renew the Term as hereinabove provided, then all options
with regard to subsequent extensions or renewals of the Term
shall expire and be null and void.
4. Rent.
(a) Tenant shall pay to Landlord or Lender on behalf
of Landlord, if directed by Landlord, as annual rent for the
Leased Premises during the Term ("Basic Rent"), the sum of One
Million Three Hundred Twenty Thousand ($1,320,000) dollars during
the initial term and the sums set forth on Exhibit "B" for the
renewal terms, which rent shall be paid in equal monthly
installments in advance commencing on the first Business Day of
the second month next following the Commencement Date and
continuing on the first Business Day of each month thereafter
during the Term (the said days being called the "Basic Rent
Payment Dates"), and shall pay the same at Cardbeck Chaska Trust,
c/o Cardinal Capital Partners, Inc., 8411 Preston Road, 8th
Floor, Dallas, Texas 75225-5520, or at such other place or to
such other person on behalf of Landlord as Landlord from time to
time may designate to Tenant in writing, in funds which at the
time of such payment shall be legal tender for the payment of
public or private debts in the United States and if required by
Lender by wire transfer in immediately available federal funds to
such account in such bank as Lender shall designate from time to
time. Basic Rent for the period from the Commencement Date to
the first day of the second month next following the Commencement
Date shall be paid on the date provided as the first payment date
under the Qualified Exchange Agreement (as defined in the Lease
Modification Agreement) with respect to this Lease and shall be
calculated on a prorata basis.
(b) If any installment of Basic Rent is not paid on
the date due, Tenant shall pay Landlord interest on such overdue
payment at the Default Rate, accruing from the due date of such
payment until the same is paid.
(c) Tenant shall pay as and discharge before the
imposition of any fine, lien, interest or penalty that may be
added thereto for late payment thereof, as Non-Rent Monetary
Obligations, all other amounts and obligations which Tenant
assumes or agrees to pay or discharge pursuant to this Lease,
together with every fine, penalty, interest and cost which may be
added by the party to whom such payment is due for nonpayment or
late payment thereof. In the event of any failure by Tenant to
pay or discharge any of the foregoing, Landlord and Lender shall
have all rights, powers and remedies provided herein, by law or
otherwise, in the event of nonpayment of Basic Rent. Landlord and
Lender shall have the right to make such payment, in which case
Tenant shall immediately reimburse such payment (including
interest at the Default Rate) to Landlord or Lender, as the case
may be. Any Additional Rent or Non-Rent Monetary Obligations
payable to Landlord shall be paid in lawful money of the United
States to the party to whom Basic Rent is paid.
5. Net Lease.
(a) It is the intention of the parties hereto that the
obligations of Tenant hereunder shall be separate and independent
covenants and agreements, and that Basic Rent, Additional Rent,
Non-Rent Monetary Obligations and all other sums payable by
Tenant hereunder shall continue to be payable in all events, and
that the obligations of Tenant hereunder shall continue
unaffected, unless the requirement to pay or perform the same
shall have been terminated pursuant to an express provision of
this Lease. This is a net Lease and Basic Rent, Additional Rent,
Non-Rent Monetary Obligations and all other sums payable
hereunder by Tenant shall be paid without notice or demand, and
without setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense, except as
otherwise specifically set forth herein. This Lease shall not
terminate and Tenant shall not have any right to terminate this
Lease during the Term (except as otherwise expressly provided
herein). Tenant agrees that, except as otherwise expressly
provided herein, it shall not take any action to terminate,
rescind or avoid this Lease notwithstanding (i) the bankruptcy,
insolvency, reorganization, composition, readjustment,
liquidation, dissolution, winding-up or other proceeding
affecting Landlord, (ii) the exercise of any remedy, including
foreclosure, under the Mortgage, (iii) any action with respect to
this Lease (including the disaffirmance hereof) which may be
taken by Landlord under the Federal Bankruptcy Code or by any
trustee, receiver or liquidator of Landlord or by any court under
the Federal Bankruptcy Code or otherwise, (iv) the Taking of the
Leased Premises or any portion thereof (except as specifically
provided in Section 12(b) below), (v) the prohibition or
restriction of Tenant's use of the Leased Premises under any
Legal Requirement or otherwise, (vi) the destruction of the
Leased Premises or any portion thereof, (vii) the eviction of
Tenant from possession of the Leased Premises, by paramount title
or otherwise, or (viii) default by Landlord hereunder or under
any other agreement between Landlord and Tenant. Tenant waives
all rights which are not expressly stated herein but which may
now or hereafter otherwise be conferred by law to quit, terminate
or surrender this Lease or any of the Leased Premises; to any
setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense of or to
Basic Rent, Additional Rent, Non-Rent Monetary Obligations or any
other sums payable under this Lease, and for any statutory lien
or offset right against Landlord or its property, each except as
otherwise expressly provided herein.
(b) Tenant shall pay directly to the proper
authorities charged with the collection thereof all charges for
water, sewer, gas, oil, electricity, telephone and other
utilities or services used or consumed on the Leased Premises
during the Term, whether designated as a charge, tax, assessment,
fee or otherwise, including, without limitation, water and sewer
use charges and taxes, if any, all such charges to be paid as the
same from time to time become due. It is understood and agreed
that Tenant shall make its own arrangements for the installation
or provision of all such utilities and that Landlord shall be
under no obligation to furnish any utilities to the Leased
Premises and shall not be liable for any interruption or failure
in the supply of any such utilities to the Leased Premises.
6. Title and Condition.
(a) The Leased Premises are demised and let subject to
the Permitted Encumbrances and all Legal Requirements and
Insurance Requirements, including any existing violation of any
thereof, without representation or warranty by Landlord; it being
understood and agreed, however, that the recital of the Permitted
Encumbrances herein shall not be construed as a revival of any
thereof which for any reason may have expired.
(b) Without limiting the effect of Landlord's covenant
set forth in Section 8(c), the Landlord makes no, and expressly
hereby denies any, representations or warranties regarding the
condition or suitability of, or title to, the Leased Premises.
Tenant agrees that it takes the Leased Premises "as is," without
any such representation or warranty.
(c) Landlord hereby conditionally assigns, without
recourse or warranty whatsoever, to Tenant, all warranties,
guaranties and indemnities, express or implied, and similar
rights which Landlord may have against any manufacturer, seller,
engineer, contractor or builder in respect of any of the Leased
Premises, including, but not limited to, any rights and remedies
existing under contract or pursuant to the Uniform Commercial
Code (collectively, the "guaranties"). Such assignment shall
remain in effect so long as no Event of Default exists hereunder
or until the expiration or sooner termination of this Lease.
Landlord shall also retain the right to enforce any guaranties so
assigned in the name of Tenant upon the occurrence of an Event of
Default. Landlord hereby agrees to execute and deliver at
Tenant's sole cost and expense such further documents, including
powers of attorney, as Tenant may reasonably request (and which
in the good faith judgment of Landlord, do not adversely affect a
substantial interest of Landlord), in order that Tenant may have
the full benefit of the assignment effected or intended to be
effected by this Section 6. Upon the occurrence, and during the
continuancy of an Event of Default or the expiration or
termination of this Lease, the guaranties shall automatically
revert to Landlord. The foregoing provision of reversion shall
be self-operative and no further instrument of reassignment shall
be required. Upon the curing of such Event of Default, the
assignment and guaranties shall be automatically reassigned and
reinstated and revert to Tenant. The foregoing provision of
reassignment, reinstatement and reversion shall be self-operative
and no further instrument of reassignment shall be required. In
confirmation of such reassignment each of Tenant and Landlord
shall execute and deliver promptly any certificate or other
instrument which Landlord or Tenant may request at Tenant's sole
cost and expense. Any monies collected by Tenant under any of
the guaranties after the occurrence of and during the
continuation of an Event of Default shall be held in trust by
Tenant and promptly paid over to Landlord.
7. Taxes; Insurance and Legal Requirements.
(a) Tenant shall, subject to the provisions of Section
18 hereof relating to contests, before interest or penalties are
due thereon, pay and discharge all Taxes. Landlord shall, within
three (3) Business Days, deliver to Tenant any bill, invoice,
notice or correspondence Landlord receives with respect to any
Tax. Nothing herein shall obligate Tenant to pay, and the term
"Taxes" shall exclude, federal, state or local (i) franchise,
capital stock or similar taxes, if any, of Landlord, (ii) income,
excess profits or other taxes, if any, of Landlord, determined on
the basis of or measured by its net income or gross income (in
lieu of net income), as applicable (except "Taxes" shall include
any gross income tax, sales tax, occupancy tax or excise tax
levied by any governmental body or authority with regard to Basic
Rent, Additional Rent or Non-Monetary Obligations, provided such
assessment or levy is not in lieu of net income tax payable by
Landlord), or (iii) any estate, inheritance, succession, gift,
capital levy or similar taxes, unless there is a change in the
method of taxation in effect at the commencement of this Lease
which results in taxes referred to in clauses (i) and (ii) above
being levied in lieu of or a substitute for any other tax or
assessment upon or with respect to any of the Leased Premises
which, if such other tax or assessment were in effect at the
commencement of the term of this Lease, would be payable by
Tenant. In the event that any assessment against any of the
Leased Premises may be paid in installments, Tenant shall have
the option to pay such assessment in installments; and in such
event, Tenant shall be liable only for those installments (and
all resulting interest thereon) which become due and payable in
respect of the Term. Tenant shall prepare and file all tax
reports required by governmental authorities which relate to the
Taxes. Tenant shall deliver to Landlord and/or Lender, within
thirty (30) days of Landlord's or Lender's, as the case may be,
request therefor: (i) copies of all settlements and notices
pertaining to the Taxes which may be issued by any governmental
authority; and (ii) evidence of payment for payments of all
Taxes made during each calendar year of the Term.
(b) Tenant shall promptly comply with and conform to
all of the Legal Requirements and Insurance Requirements, subject
to the provisions of Section 18 hereof
8. Use.
(a) Tenant may use the Leased Premises for any lawful
purpose. In no event shall the Leased Premises be used for any
purpose which shall violate any of the provisions of any recorded
covenants, restrictions or agreements applicable to the Leased
Premises either specifically or through broader application to
any center or industrial park of which the Leased Premises may be
a part. Tenant agrees that with respect to any such recorded
covenants, restrictions or agreements, Tenant shall observe,
perform and comply with and carry out the provisions thereof
required therein to be observed and performed by Landlord.
(b) Subject to Tenant's rights of contest under
Section 18 hereof, Tenant shall not permit any unlawful
occupation, business or trade to be conducted on any of the
Leased Premises or any use to be made thereof contrary to
applicable Legal Requirements or Insurance Requirements. Subject
to Tenant's rights of contest under Section 18 hereof, Tenant
shall not use, occupy or permit any of the Leased Premises to be
used or occupied, nor do or permit anything to be done in or on
any of the Leased Premises, in a manner which would (i) violate
any certificate of occupancy or equivalent certificate affecting
any of the Leased Premises, (ii) make void or voidable any
insurance which Tenant is required hereunder to maintain then in
force with respect to any of the Leased Premises, (iii) affect in
any manner the ability of Tenant to obtain any insurance which
Tenant is required to furnish hereunder, (iv) cause any injury or
damage to any of the Improvements unless pursuant to Alterations
permitted under Section 11 hereof, or (v) constitute a public or
private nuisance or waste.
(c) Subject to all of the provisions of this Lease, so
long as no Event of Default exists hereunder, Landlord covenants
that neither it nor any party claiming by, through or under it,
shall do any act to disturb the peaceful and quiet occupation and
enjoyment of the Leased Premises by Tenant. Landlord may enter
upon and examine any of the Leased Premises at reasonable times
after reasonable notice and during business hours and exercise
any rights and privileges granted to Landlord under the
provisions of this Lease. During an Event of Default or in an
emergency, Landlord's access to the Leased Premises shall not be
restricted as provided in the immediately preceding sentence.
9. Maintenance and Repair.
(a) Except for any alterations that Tenant is
permitted to make hereunder, Tenant shall at all times, including
any Requisition period, put, keep and maintain the Leased
Premises, including, without limitation, the roof, landscaping,
walls (interior and exterior), footings, foundations and
structural components of the Leased Premises, and the Adjoining
Property, in good order and repair, and shall promptly make all
repairs and replacements (substantially equivalent in quality and
workmanship to the original work) of every kind and nature,
whether foreseen or unforeseen, which may be required to be made
upon or in connection with any of the Leased Premises in order to
keep and maintain the Leased Premises in good order and repair,
reasonable wear and tear excepted (whether or not the need for
such repairs occurs as a result of Tenant's use, any prior use,
the elements or the age of the Leased Premises). Tenant shall do
or cause others to do all shoring of the Leased Premises or
Adjoining Property or of foundations and walls of the
Improvements and every other act necessary or appropriate for
preservation and safety thereof, by reason of or in connection
with any excavation or other building operation upon any of the
Leased Premises or Adjoining Property, whether or not Landlord
shall, by reason of any Legal Requirements or Insurance
Requirements, be required to take such action or be liable for
failure to do so. Landlord shall not be required to make any
repair, whether foreseen or unforeseen, or to maintain any of the
Leased Premises or Adjoining Property in any way, and Tenant
hereby expressly waives the right to make repairs at the expense
of the Landlord, which right may otherwise be provided for in any
law now or hereafter in effect. Tenant shall, in all events,
make all repairs for which it is responsible hereunder promptly,
and all repairs shall be in a good, proper and workmanlike
manner.
(b) If Tenant shall be in default under any of the
provisions of this Section 9, Landlord or Lender may, after ten
(10) days notice to Tenant and failure of Tenant to commence to
cure during said period or to diligently prosecute such cure to
completion once begun, but immediately upon notice in the event
of an emergency (that is, imminent danger of injury to persons or
property), do whatever is necessary to cure such default as may
be reasonable under the circumstances for the account of and at
the expense of Tenant. In the event of an emergency, before
Landlord or Lender may, in addition to all remedies under this
Lease, avail itself of its rights under this Section 9(b),
Landlord or Lender, as the case may be, shall send written notice
to Tenant of the situation by facsimile. All actual and
reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) so incurred by Landlord
or Lender, together with interest thereon at the Default Rate
from the date of payment of the expense, shall constitute
Additional Rent payable by Tenant under this Lease and shall be
paid by Tenant to Landlord or Lender (as applicable) on demand.
Landlord and Tenant agree that, in the event of an emergency,
expenditures which might otherwise be unreasonable (such as
overtime) may nevertheless be reasonable under the circumstances.
(c) Tenant shall from time to time replace with other
similar operational equipment or parts any of the mechanical
systems or other equipment included in the Improvements which
shall have become worn out, obsolete or unusable for the purpose
for which it is intended, been taken by a Condemnation as
provided in Section 12, or been lost, stolen, damaged or
destroyed as provided in Section 14. Tenant shall repair at its
sole cost and expense all damage to the Leased Premises caused by
the removal of equipment or any other personal property of Tenant
at any time, including upon expiration or earlier termination of
this Lease.
10. Liens.
Tenant shall not, directly or indirectly, create or
permit to be created or to remain, and shall promptly discharge,
any lien on any of the Leased Premises, on the Basic Rent,
Additional Rent, Non-Rent Monetary Obligations or on any other
sums payable by Tenant under this Lease, other than the Mortgage
(and any assignment of leases, rents or profits collateral
thereto), the Permitted Encumbrances and any mortgage, lien,
encumbrance or other charge created by or resulting from any act
or omission by Landlord or those claiming by, through or under
Landlord.
11. Alterations.
(a) Tenant shall not make any Alterations which would
result, after giving consideration to the completed alteration,
in a material diminution in the value of the Leased Premises
without Landlord's written consent. So long as there are no
Events of Default under this Lease, Tenant may make any other
Alterations without the prior written consent of the Landlord
provided such Alterations comply with all of the provisions of
the following sentence. All Alterations to Improvements shall be
performed in a good and workmanlike manner, and shall be
expeditiously completed in compliance with all Legal
Requirements, (i) all work done in connection with any such
Alteration shall comply with all Insurance Requirements, (ii)
Tenant shall promptly pay all costs and expenses of any such
Alteration, and shall discharge all liens filed against any of
the Leased Premises arising out of the same, (iii) Tenant shall
procure and pay for all permits and licenses required in
connection with any such Alteration, (iv) any Alteration the
estimated cost of which exceeds Four Hundred Thousand ($400,000)
Dollars shall be made under the supervision of a licensed
architect or engineer in accordance with detailed plans and
specifications which shall be submitted to Landlord and Lender at
least twenty (20) days prior to the commencement of the
Alterations, and (v) any Alteration the estimated cost of which
exceed Five Hundred Fifty Thousand ($550,000.00) Dollars shall be
secured by a payment and performance bond issued by a company
having a rating of BBB or higher from at least one of Standard &
Poor's, Moody's, or Duff & Phelps. Upon completion of any
Alteration costing in excess of ($400,000), Tenant will provide
as-built plans and specifications or record drawings to Landlord
and Lender.
(b) Title to all Alterations that (a) are readily
removable without causing damage by more than a de minimis extent
to the Leased Premises, (b) will not reduce the value, useful
life or utility of the Leased Premises if removed, and (c) are
not required for the lawful use or occupancy of the Leased
Premises ("Severable Alterations") will vest in the Tenant. The
Landlord shall have the right, but not the obligation, to
purchase from the Tenant any or all such Severable Alterations
for their fair market value at the end of the Term.
(c) Title to all Alterations that are not Severable
Alterations, exclusive of Trade Fixtures ("Non-Severable
Alterations"), will immediately vest in the Landlord and become
subject to the Lease whether or not the cost thereof shall have
been paid or financed by or through the Landlord.
12. Condemnation.
(a) Immediately upon obtaining knowledge of the
institution of any proceeding for Condemnation, Tenant shall
notify Landlord and Lender thereof and Landlord and Lender shall
be entitled to participate in any Condemnation proceeding at
Tenant's expense. Landlord immediately upon obtaining knowledge
of the institution of any proceeding for Condemnation, shall
notify Tenant thereof and Tenant shall have the right to
participate in such proceedings at its own expense. Subject to
the provisions of this Section 12 and Section 15, Tenant hereby
irrevocably assigns to Lender or to Landlord, in that order, any
award or payment in respect of any Condemnation, except that
Tenant does not assign to Lender or to Landlord any award or
payment on account of Tenant's Trade Fixtures or other tangible
personal property, its leasehold interests (unless the lack of
such assignment of Tenant's leasehold interest would reduce the
award to Landlord had the leasehold interests been assigned to
Landlord), moving expenses, relocation and similar claims, if
available, to the extent Tenant shall have a right to make a
separate claim therefor against the condemnor; it being agreed,
however, that Tenant shall in no event be entitled to any payment
that reduces the award to which Landlord is or would be entitled
for the condemnation of the Leased Premises.
(b) If (i) the entire Leased Premises or (ii) at least
fifteen percent (15%) of the Leased Premises, the loss of which
even after restoration would, in Tenant's reasonable business
judgment, be substantially and materially adverse to the business
operations of Tenant, shall be the subject of a Taking by a duly
constituted authority or agency having jurisdiction, then Tenant
shall have the right, exercisable within thirty (30) days after
the Taking has occurred, to serve notice upon Landlord and Lender
("Tenant's Termination Notice") to terminate this Lease on any
Basic Rent Payment Date specified in such notice, which date (the
"Termination Date") shall be no sooner than the first Basic Rent
Payment Date occurring at least thirty (30) days after the date
of Tenant's Termination Notice and not later than the third Basic
Rent Payment Date occurring after the date of Tenant's
Termination Notice. In the event that during the initial term
Tenant shall serve such notice upon Landlord and Lender of its
intention to terminate this Lease on the Termination Date, Tenant
shall, as part of such notice, offer (which offer may be rejected
by Landlord and Lender as set forth below) to purchase the Leased
Premises and the award, or if no part of the Leased Premises
shall remain, the entire award for the applicable price computed
as of the Closing Date in accordance with the schedule annexed
hereto and marked Exhibit "C" (the "Purchase Price") plus all
other amounts which may be due and owing to Lender or Landlord by
reason of any default by Tenant in complying with its obligations
under this Lease (the "Additions to Purchase Price"). In the
event that the Tenant's Termination Notice is not accompanied by
the offer to purchase, such Tenant's Termination Notice shall be
deemed null and void. Landlord shall give notice accepting or
rejecting such offer to Tenant within thirty (30) days after the
giving of Tenant's Termination Notice. If Landlord shall not
elect to accept Tenant's said offer to purchase, this Lease shall
be terminated as above provided and the entire award made in the
Condemnation proceeding shall be paid to Lender, or if there is
no Lender, to Landlord; provided, however, Landlord's notice to
reject Tenant's said offer to purchase shall be void and of no
effect unless accompanied by the written notice of Lender to the
effect that Lender also elects not to accept Tenant's said offer
to purchase. Should said notices of Landlord and/or Lender
accepting or rejecting Tenant's said offer to purchase not be
served within said period of thirty (30) days, then and in that
event, the said offer shall be deemed accepted. In the event
that Landlord and Lender shall accept or be deemed to have
accepted Tenant's offer to purchase, title shall close and the
Purchase Price and Additions to Purchase Price shall be paid as
hereinafter provided and in such event Tenant shall be entitled
to and shall receive any and all awards then or thereafter made
in the Condemnation proceeding and Landlord shall assign or in
case of any award previously made, deliver to Tenant on the
Closing Date such award as may be made.
In the event Landlord and Lender shall accept Tenant's
offer to purchase, or be deemed to have accepted Tenant's offer,
any purchase pursuant to this Section 12(b) shall be in
accordance with the Purchase Procedure.
In the event that during any renewal term Tenant shall
serve Tenant's Termination Notice upon Landlord and Lender, this
Lease and the Term hereof shall terminate on the Termination
Date. In such event the entire award made in Condemnation
proceeding shall be retained by Lender or Landlord, in that
order.
(c) In the event of any Condemnation of part of the
Leased Premises which does not result in a termination of this
Lease, the Net Award of such Condemnation shall be paid and
disbursed in accordance with the requirements of Section 15 and,
promptly after such Condemnation, Tenant shall commence and
diligently continue to perform the Restoration.
Upon the payment to Landlord or Lender of the Net Award
of a Taking which falls within the provisions of this
subparagraph (c), Landlord and Lender shall, to the extent
received, make that portion of the Net Award equal to the cost of
Restoration (the "Restoration Award") available to Tenant for
Restoration, in accordance with the provisions of Section 15, and
the balance remaining (the "net surplus award") shall be the
property of Lender or Landlord in that order. Following the
making of the condemnation award and on completion of the repairs
or alterations made by Tenant as herein provided, the monthly
installment of Basic Rent for each month during the remaining
term hereof, commencing with the lease payment for the month
after the month in which such construction is completed, shall be
reduced by an amount equal to one-twelfth (1/12th) of 8.80% of
the net surplus award paid to Lender or Landlord, in that order.
In the event of a Requisition of any of the Leased
Premises, Landlord shall apply the Net Award of such Requisition,
to the extent available, to the installments of Basic Rent,
Additional Rent, Non-Rent Monetary Obligations or other sums
payable by Tenant hereunder thereafter payable and Tenant shall
pay the balance remaining thereafter. Upon the expiration of the
Term, any portion of such Net Award that shall not previously
have been credited to Tenant on account of the Basic Rent,
Additional Rent, and Non-Rent Monetary Obligations shall be
retained by Landlord or Lender.
(d) Except with respect to an award or payment to
which Tenant is entitled pursuant to the foregoing provisions of
this Section 12, no agreement with any condemnor in settlement of
or under threat of any Condemnation shall be made by either
Landlord or Tenant without the written consent of the other, and
of Lender, if the Leased Premises are then subject to a Mortgage,
which consent shall not be unreasonably withheld or delayed
provided such award or payment is applied in accordance with this
Lease.
13. Insurance.
(a) Tenant shall maintain at its sole cost and expense
the following insurance on the Leased Premises:
(i) Insurance against loss or damage to the
Improvements under an All Risk Policy, which shall include flood
insurance to the extent applicable and which may contain such
self retention levels, exclusions and deductibles as are from
time to time customary or standard in the industry, in amounts to
prevent Landlord or Tenant from becoming a co-insurer under the
applicable policies (except in the case of earthquake insurance
coverage), and in any event in amounts not less than the actual
replacement cost of the Improvements (excluding footings and
foundations and parts of the Improvements which are not
insurable).
(ii) Contractual and commercial general liability
insurance against claims for bodily injury, death or property
damage occurring on, in or about any of the Leased Premises or
the Adjoining Property, which insurance shall be written on a so-
called occurrence basis," and shall provide minimum protection
with a combined single limit in an amount not less than Five
Million ($5,000,000) Dollars (or in such increased limits from
time to time to reflect declines from the date hereof in the
purchasing power of the dollar as Landlord may reasonably
request).
(iii) Worker's compensation insurance covering
all persons employed by Tenant on the Leased Premises in
connection with any work done on or about any of the Leased
Premises.
(b) The insurance required by Section 13(a) shall be
written by companies having a rating of BBB or higher from at
least one of Standard & Poor's, Moody's, or Duff & Phelps. All
companies providing insurance required by Section 13(a) shall be
authorized to do an insurance business in the State or otherwise
agreed to by Landlord and Lender. The insurance policies shall
be for a term of not less than one year, and shall (except for
worker's compensation insurance) name Landlord, Tenant and any
Lender as additional insured parties, as their respective
interests may appear. If said insurance or any part thereof
shall expire, be withdrawn, become void by breach of any
condition thereof by Tenant or should the insurer's claims-paying
ability decrease below investment grade as required above, Tenant
shall immediately obtain new or additional insurance reasonably
satisfactory to Landlord and Lender.
(c) Each insurance policy referred to above shall, to
the extent applicable, contain standard non-contributory
mortgagee clauses in favor of any Lender. As evidence of the
insurance specified in Section 13(a)(i), required to be
maintained by Tenant, Tenant shall deliver to Landlord an ACORD
27 Evidence of Property Insurance or other certificate providing
at least the same assurances (or, if limited by Legal
Requirements, then a certificate providing as many of the same
assurances as allowed by applicable law). As evidence of the
insurance specified in Section 13(a)(ii) and (iii), required to
be maintained by Tenant, Tenant shall deliver to Landlord an
ACORD 25 Certificate of Insurance or other certificate providing
at least the same assurances. Each policy required to be carried
by Tenant shall also provide that any loss otherwise payable
thereunder shall be payable notwithstanding (i) any act or
omission of Landlord, or Tenant which might, absent such
provision, result in a forfeiture of all or a part of such
insurance payment, (ii) any foreclosure or other action or
proceeding taken by any Lender pursuant to any provision of the
Mortgage upon the happening of an event of default therein, or
(iii) any change in title or ownership of any of the Leased
Premises.
(d) Tenant shall pay at least ten (10) Business Days
prior to cancellation all premiums for the insurance required by
this Section 13, shall renew or replace each policy and shall
deliver to Landlord and Lender, the appropriate assurances for
such renewals or replacements in accordance with the provisions
of this Section 13 at least ten (10) Business Days prior to
cancellation of the then-effective coverage. In the event of
Tenant's failure to maintain any of the insurance required by
this Section 13, Landlord or Lender shall be entitled to procure
such insurance. Any sums expended by Landlord or Lender in
procuring such insurance shall be Additional Rent and shall be
repaid by Tenant, together with interest thereon at the Default
Rate, from the time of payment by Landlord or Lender until fully
paid by Tenant immediately upon written demand therefor by
Landlord or Lender, as the case may be.
(e) Anything in this Section 13 to the contrary
notwithstanding, any insurance which Tenant is required to obtain
pursuant to Section 13(a) may be carried under a "blanket" policy
or policies covering other properties or liabilities of Tenant,
provided that such "blanket" policy or policies otherwise comply
with the provisions of this Section 13. In the event any such
insurance is carried under a blanket policy, Tenant shall deliver
to Landlord and Lender upon request a certified copy of those
provisions of the blanket policy that pertain to the Leased
Premises to evidence the issuance and effectiveness of the
policy, the amount and character of the coverage with respect to
the Leased Premises and the presence in the policy of provisions
of the character required in the above sections of this Section
13.
14. Damage, Destruction.
(a) In the event of any casualty loss exceeding
$500,000 as reasonably estimated by Tenant, Tenant shall give
Landlord and Lender immediate notice thereof. Tenant shall
adjust, collect by check made payable to the Trustee, except as
otherwise provided in Section 14(b), and compromise any and all
such claims, with the consent of Lender and Landlord, not to be
unreasonably withheld or delayed and Landlord and Lender shall
have the right to join with Tenant therein. All proceeds
pertaining to, or allocable to the Leased Premises (subject to
Section 14(b)) shall be paid to a Trustee which shall be a
federally insured bank or other financial institution, selected
by Landlord and Tenant and reasonably satisfactory to Lender (the
"Trustee"). If the Leased Premises shall be covered by a
Mortgage, Lender, if it so desires, shall be the Trustee. Each
insurer is hereby authorized and directed upon the occurrence and
during the continuance of an Event of Default to make payment
under said policies directly to such Trustee instead of to
Landlord and Tenant jointly.
(b) All insurance proceeds received for business
interruption loss and proceeds received in connection with
continuation of business after an event of casualty loss (i.e.,
such as compensation for salaries of employees who might be
displaced by such casualty and/or the resulting Restoration)
shall be payable directly to Tenant and not to the Trustee.
(c) In the event of any casualty (whether or not
insured against) resulting in damage to the Leased Premises or
any part thereof, the Term shall nevertheless continue and there
shall be no abatement or reduction of Basic Rent, Additional
Rent, Non-Rent Monetary Obligations or any other sums payable by
Tenant hereunder. The Net Proceeds of such insurance payment
shall be retained by the above-mentioned Trustee and, promptly
after such casualty, Tenant shall commence and diligently
continue to perform the Restoration to the Leased Premises. Upon
payment to the Trustee of such Net Proceeds, the Trustee shall,
to the extent available, make the Net Proceeds available to
Tenant for restoration, in accordance with the provisions of
Section 15. Tenant shall, whether or not the Net Proceeds are
sufficient for the purpose, promptly repair or replace the
Improvements as nearly as possible to their value and condition
and character immediately prior to such event and otherwise in
accordance with all Insurance Requirements and Legal Requirements
and the provisions of this Lease (including Tenant's making any
desired Alterations allowed hereunder) and the Net Proceeds of
such loss shall thereupon be payable to Tenant, subject to the
provisions of Section 15 hereof.
(d) In the event that any damage or destruction shall
occur at such time as Tenant shall not have maintained insurance
in accordance with Section 13(a)(i), Tenant shall pay to the
Trustee the amount of the proceeds that would have been payable
had such insurance program been in effect (the "Tenant Insurance
Payment").
15. Restoration.
The Net Proceeds and Tenant Insurance Payment (the
aggregate estimated amount of which and any interest thereon
being herein defined as the "Restoration Fund") paid to the
Trustee shall be disbursed by the Trustee in accordance with the
following conditions:
(a) At the time of any disbursement, no Event of
Default shall exist and no mechanics' or materialmen's liens
shall have been filed and remain undischarged and unbonded.
(b) If the cost of Restoration exceeds $500,000, prior
to commencement of the Restoration, the architects, contracts,
contractors and plans and specifications for the Restoration
shall have been approved by Landlord and Lender, which approval
shall not be unreasonably withheld or delayed.
(c) Each request for disbursement shall be accompanied
by a certificate of Tenant, signed by the President, Treasurer or
any Vice President of Tenant, describing the completed work for
which payment is requested, stating the cost incurred in
connection therewith and stating that Tenant has not previously
received payment for such work and the certificate to be
delivered by Tenant upon completion of the work shall, in
addition, state that the work has been completed and complies
with the applicable requirements of this Lease and all Legal
Requirements and Insurance Requirements.
(d) Disbursements shall be made from time to time in
an amount not exceeding the cost of the work completed since the
last disbursement upon receipt by Landlord and Lender of (1)
satisfactory evidence, including architects' certificates, of the
stage of completion, of the estimated cost of completion and of
performance of the work to date in a good and workmanlike manner
in accordance with the contracts and plans and specifications
approved by Landlord and Lender, (2) waivers of liens, (3) a
satisfactory bring down of title insurance, and (4) other
evidence of cost and payment so that Landlord can verify that the
amounts disbursed from time to time are represented by work that
is completed in place and free and clear of mechanics' liens and
mechanics' lien enforcement actions.
(e) The Trustee, at Landlord's or Lender's election,
shall retain ten (10%) percent from each disbursement of the
Restoration Fund (such 10% retainage requirement shall be reduced
for all amounts required to be retained by owner pursuant to the
construction contracts for such Restoration) until the
Restoration is fully completed and the Leased Premises are
available for their intended use, in the reasonable judgment of
the Lender, including the issuance of any necessary certificate
of occupancy.
(f) The Restoration Fund shall be kept in a separate
interest-bearing account federally insured to the extent
applicable by the Trustee or by Lender.
Prior to commencement of Restoration and at any time
during Restoration, if the estimated cost of Restoration, as
reasonably determined by Landlord or Lender, exceeds the amount
of the Restoration Fund, the amount of such excess shall be paid
by Tenant to the Trustee to be added to the Restoration Fund
prior to any further disbursement or Tenant shall fund at its own
expense the costs of such Restoration until the remaining
Restoration Fund is, or will be, sufficient for the completion of
the Restoration. In no event shall Tenant be required to pay
into the Restoration Fund an amount greater than the difference
between the estimated cost of Restoration and the total estimated
proceeds from insurance. Except for the payment to Landlord or
Lender of the net surplus award, referred to in Section 12(c),
any sum in the Restoration Fund which remains in the Restoration
Fund upon the completion of Restoration (including interest
earned) shall be paid to Tenant. For purposes of determining the
source of funds with respect to the disposition of funds
remaining after the completion of Restoration, the Net Proceeds
or the Restoration Award shall be deemed to be disbursed prior to
any amount added by Tenant.
If Tenant does not diligently pursue the completion of
the Restoration to the satisfaction of Landlord, Landlord shall
have the right to give written notice to Tenant, which notice
shall specify the exact reason(s) Landlord maintains that Tenant
is not pursuing the completion of the Restoration (the
"Restoration Notice"). Upon receipt of the Restoration Notice,
Tenant shall have thirty (30) days to either: (i) cure the
deficiencies specified in the Restoration Notice, or if such
deficiency cannot be cured within such period of thirty (30)
days, such period shall be extended for such longer time as
reasonably necessary provided that Tenant has commenced to cure
such deficiency within said period of thirty (30) days and is
actively, diligently and in good faith proceeding with continuity
to remedy such failure; or (ii) demonstrate to Landlord in
writing, with sufficient supporting documentation attached, that
to the extent that Tenant is not hampered by a legal impediment
not caused by Tenant (which shall include, without limitation,
delays or stoppages caused by delays in the permitting process).
Tenant is actively, diligently, and in good faith proceeding with
continuity to complete the Restoration. If Tenant fails to do
either of the preceding within such thirty (30) day period,
Trustee shall pay the balance of the Restoration Fund to Lender
to satisfy, in whole or in part, the Loan. In such event, any
sum which remains in the Restoration Fund upon the satisfaction
of the Loan shall be paid to Landlord.
16. Subordination to Financing.
(a) Subject to the following provisions of this
Section 16(a), Tenant agrees that this Lease shall, upon
Landlord's and Lender's (if any) written request, be subject and
subordinate to the lien of any Mortgage, and Tenant agrees, upon
demand, without cost, to execute instruments as may be required
to further effectuate or confirm such subordination, in form and
substance reasonably satisfactory to Landlord, provided that
Lender shall provide Tenant with a written non-disturbance
agreement in form and substance reasonably satisfactory to Tenant
confirming that: (i) so long as no Event of Default shall be
outstanding, Tenant's tenancy shall not be disturbed, (ii) nor
shall this Lease, or any and all modifications or amendments
thereto as then in effect, be affected by any default under such
Mortgage (other than a default that relates to a default under
this Lease), (iii) in the event of a foreclosure or other
enforcement of any such Mortgage, or sale in lieu thereof, the
purchaser at such foreclosure sale or pursuant to a deed in lieu
thereof shall be bound to Tenant for the Term of this Lease and
any extensions thereof, the rights of Tenant hereunder shall
expressly survive, and this Lease shall in all respects continue
in full force and effect so long as no Event of Default by Tenant
has occurred and is continuing, and (iv) so long as no Event of
Default by Tenant has occurred and is continuing, Tenant shall
not be named as a party defendant in any such foreclosure suit,
except as may be required by Legal Requirements. Any Mortgage to
which this Lease is now or hereafter subordinate shall provide,
in effect, that during the time this Lease is in force all
insurance proceeds and condemnation awards shall be paid as
provided in this Lease or used for restoration as provided in
this Lease.
(b) Notwithstanding the provisions of subdivision (a)
of this Section 16, the holder of the Mortgage to which this
Lease is subject and subordinate, as provided in said subdivision
(a), shall have the right, at its sole option, at any time, to
subordinate and subject the Mortgage, in whole or in part, to
this Lease by recording a unilateral declaration to such effect.
(c) At any time prior to the expiration of the Term,
Tenant agrees, at the election and upon demand of any owner of
the Leased Premises, or of Lender who has granted non-disturbance
to Tenant pursuant to Section 16(a) above, to attorn, from time
to time, to any such owner or Lender, upon the then executory
terms and conditions of this Lease, for the remainder of the term
originally demised in this Lease and for any renewal term. The
provisions of this subdivision (c) shall inure to the benefit of
any such owner or Lender, shall apply notwithstanding that, as a
matter of law, this Lease may terminate upon the foreclosure of
the Mortgage, shall be self-operative upon any such demand, and
no further instrument shall be required to give effect to said
provisions.
(d) Each of Tenant and Landlord agrees that, if
requested by the other, each shall, without charge, enter into
(i) a Subordination, Non-Disturbance and Attornment Agreement
reasonably requested by Lender, provided such agreement contains
provisions relating to non-disturbance in accordance with the
provisions of subparagraph (a), and (ii) an agreement with Lender
whereby Tenant shall agree for the benefit of Lender that Tenant
will not, without in each case the prior written consent of
Lender, which shall not be unreasonably withheld, conditioned or
delayed, (a) amend, modify, cancel or surrender the term of this
Lease except as expressly permitted by the provisions of this
Lease, or enter into any agreement with Landlord so to do, or (b)
pay any installment of Basic Rent more than one (1) month in
advance of the due date thereof or otherwise than in the manner
provided for in this Lease.
(e) At any time after Landlord has advised Tenant of
the existence of a "Lender" hereunder, and before such Lender has
confirmed to Tenant that the lien of its Mortgage has been
released, Tenant shall not (and shall not be obligated, even upon
the request of Landlord, to) execute any agreement or document
purporting to subordinate this Lease to the lien of any mortgage
or deed of trust other than the Mortgage held by Lender.
17. Assignment; Subleasing.
(a) Tenant (or Tenant's wholly-owned subsidiary or an
entity controlled by or in common control with Tenant) is
currently in occupancy and is operating its business at the
Leased Premises. Tenant may assign its interest in this Lease or
sublease any portion(s) of the Leased Premises without the prior
written consent of Landlord. In the event of an assignment or
sublease to an entity not affiliated with the Tenant involving
greater than thirty-three percent (33%) of the Leased Premises,
Tenant shall give Notice to Landlord of such assignment or
sublease by providing an executed copy of each such assignment or
sublease, as the case may be. No sublease under, or assignment
of this Lease shall relieve Tenant of its obligations hereunder,
which shall continue as the obligations of a principal and not as
the obligations of a surety or a guarantor. The joint and
several liability of Tenant named herein and any immediate and
remote successor in interest of Tenant (by assignment or
otherwise), and the due performance of the obligations of this
Lease on Tenant's part to be performed or observed, shall not in
any way be discharged, released or impaired by any (i) agreement
which modifies any of the rights or obligations of the parties
under this Lease, (ii) stipulation which extends the time within
which an obligation under this Lease is to be performed, (iii)
waiver of the performance of an obligation required under this
Lease, or (iv) failure to enforce any of the obligations set
forth in this Lease, unless in each case, the same has been
consented to by Landlord and Lender.
(b) Each sublease of the Leased Premises or any part
thereof shall be subject and subordinate to the provisions of
this Lease. Tenant agrees that in the case of an assignment,
Tenant shall, not less than ten (10) days prior to the execution
and delivery of any such assignment as described in this Section
17(b), give notice of such assignment to Landlord and Lender.
Tenant further agrees that in the case of such assignment, Tenant
shall, within fifteen (15) days after the execution and delivery
of any such assignment, deliver to Landlord and Lender (i) a
duplicate original of such assignment in recordable form and (ii)
an agreement executed and acknowledged by the assignee in
recordable form wherein the assignee shall agree to assume and
agree to observe and perform all of the applicable terms and
provisions of this Lease on the part of the Tenant to be observed
and performed from and after the date of such assignment, and, in
the case of a sublease, Tenant shall, within fifteen (15) days
after the execution and delivery of such sublease, deliver to
Landlord and Lender a duplicate original of such sublease.
(c) Upon the occurrence of an Event of Default under
this Lease, Landlord shall have the right to collect and enjoy
all rents and other sums of money payable under any sublease of
any of the Leased Premises, and Tenant hereby irrevocably and
unconditionally assigns such rents and money to Landlord, which
assignment may be exercised upon and after (but not before) the
occurrence of an Event of Default, taking into account any
applicable cure periods.
(d) Any sublease shall provide that upon notice from
Landlord and/or Lender of an Event of Default, all rent due under
such sublease shall be paid as so directed. In the event
Landlord and/or Lender give such notice under such sublease and
Tenant is not then in default under this Lease, then Tenant shall
have the right to withhold rent payments due under this Lease in
amounts totaling the amount of rent actually paid under such
sublease as such was directed. In no event shall Landlord or
Lender have the right to direct the payment of sublease rents to
any party other than Tenant except in an aggregate amount equal
to or less than the aggregate amounts due hereunder.
18. Permitted Contests.
(a) Notwithstanding any provision of this Lease to the
contrary, after prior written notice to Landlord and Lender,
Tenant shall not be required to (i) pay any Tax, (ii) comply with
any Legal Requirement, or (iii) discharge or remove any lien, so
long as Tenant shall contest, in good faith and at its expense,
the existence, the amount or the validity thereof, the amount of
the damages caused thereby, or the extent of its or Landlord's
liability therefor, by appropriate proceedings which shall
operate during the pendency thereof to prevent (v) the collection
of, or other realization upon, the Tax or lien so contested, (w)
the sale, forfeiture, attachment or loss of any of the Leased
Premises, any Basic Rent, Additional Rent, or Non-Rent Monetary
Obligations to satisfy the same or to pay any damages caused by
the violation of the same, (x) any interference with the use or
occupancy of any of the Leased Premises, (y) any interference
with the payment of any Basic Rent, Additional Rent, or Non-Rent
Monetary Obligations, and (z) the cancellation of any fire or
other insurance policy. In no event shall Tenant pursue any
contest with respect to any Tax, Legal Requirement, or lien
referred to above in such manner that exposes Landlord, Tenant or
Lender, to any criminal or civil liability, penalty or sanction.
Tenant shall provide Lender or Landlord in that order, as
security for such contest, an amount of cash or bond equal to
125% of the amount being contested, or other security
satisfactory in the reasonable opinion of Lender or Landlord in
that order, in assuring the payment, compliance, discharge,
removal or other action, including all costs, attorneys' fees,
interest and penalties, in the event that the contest is
unsuccessful. No such security shall be required if the amount
involved in the contest shall not exceed one tenth (1/10th) of
one percent (1%) of the tangible net worth of Tenant, computed in
accordance with generally accepted accounting principles
consistently applied, as determined by its most recent publicly
filed financial statements (10Q and 10K) if Tenant is a publicly
held company. While any such proceedings are pending and the
required security is held by Lender or Landlord, in that order,
Lender or Landlord, as the case may be, shall not have the right
to pay, remove or cause to be discharged the Tax, Legal
Requirement or lien thereby being contested unless Landlord or
Lender reasonably believes that any one or more of the conditions
in subdivisions (v) through (z) shall not be prevented during the
pendency of the contest. Tenant further agrees that each such
contest shall be promptly and diligently prosecuted to a final
conclusion, except that Tenant shall, so long as all of the
conditions of the first sentence of this Section 18 are at all
times complied with, have the right to attempt to settle or
compromise such contest through negotiations. Tenant shall pay
any and all judgments, decrees and costs (including all
attorneys' fees and expenses) in connection with any such contest
and shall, promptly after the final determination of such
contest, fully pay and discharge the amounts which shall be
levied, assessed, charged or imposed or be determined to be
payable therein or in connection therewith, together with all
penalties, fines, interest, costs and expenses thereof or in
connection therewith, and perform all acts the performance of
which shall be ordered or decreed as a result thereof. Upon such
payment, any cash deposit shall be refunded and any outstanding
bond shall be terminated.
(b) Upon receipt of any supplemental bill, notice, or
similar communication in connection with a property tax
reassessment relating to the Leased Premises (in each such
instance, a "Reassessment Claim"), Landlord shall within three
(3) Business Days provide Notice of such Reassessment Claim to
Tenant. Tenant shall have the right to directly discuss with,
negotiate with, or otherwise communicate with any governmental
authority or agency in connection with such a Reassessment Claim.
If a power of attorney is required by any governmental authority
or agency to allow Tenant to contest such Reassessment Claim,
Landlord shall provide Tenant with a properly executed power of
attorney.
Tenant shall have the right to contest the amount or
validity of any such Reassessment Claim by appropriate legal or
administrative proceedings, conducted in good faith and with due
diligence, provided that (a) Tenant complies with the provisions
of Section 18(a) with respect thereto, (b) the foregoing shall in
no way be construed as relieving, modifying or extending Tenant's
obligation to pay any Reassessment Claim as finally determined,
and (c) no part of the Leased Premises shall be in any immediate
danger of sale, forfeiture, attachment or loss. Landlord agrees
to join in any such proceedings if required legally to prosecute
such contest, provided that Landlord shall not thereby be
subjected to any liability therefor (including, without
limitation, for the payment of any costs or expenses in
connection therewith) unless Tenant agrees by agreement in form
and substance reasonably satisfactory to Landlord, to assume and
indemnify Landlord with respect to the same.
19. Default.
The occurrence of any one or more of the following
events shall constitute an Event of Default under this Lease:
(a) Tenant's failure to make any payment of Basic Rent
when due which continues unremedied for a period of three (3)
days, provided, however, Tenant shall not be entitled to an
opportunity to cure such default if Tenant has failed to make
Basic Rent payments on two (2) or more occasions within the
previous twelve (12) month period.
(b) Tenant's failure to make payment of Additional
Rent, Non-Rent Monetary Obligations or other sum herein required
to be paid by Tenant and such default shall continue for a period
of ten (10) days after notice by Landlord or Lender to Tenant.
(c) Tenant's failure to duly perform and observe, or
Tenant's violation or breach of, any other provision hereof if
such failure shall continue for a period of thirty (30) days
after notice thereof from Landlord or Lender, or if such failure
cannot be cured within such period of thirty (30) days, such
period shall be extended for such longer time as reasonably
necessary provided that Tenant has commenced to cure such default
within said period of thirty (30) days and is actively,
diligently and in good faith proceeding with continuity to remedy
such failure. Tenant agrees that after receiving any such notice
of default referred to above in this subparagraph (c), Tenant
shall, upon request of Landlord or Lender, advise the requesting
party of Tenant's progress in curing such default.
(d) Tenant shall (i) voluntarily be adjudicated a
bankrupt or insolvent, or (ii) consent to the appointment of a
receiver or trustee for itself or for any of the Leased Premises,
(iii) file a petition seeking relief under the bankruptcy or
other similar laws of the United States, any state or any
jurisdiction, or (iv) make a general assignment for the benefit
of creditors.
(e) A court shall enter an order, judgment or decree
appointing a receiver or trustee for it or for any of the Leased
Premises or approving a petition filed against Tenant which seeks
relief under the bankruptcy or other similar laws of the United
States, any state or any jurisdiction, and such order, judgment
or decree shall remain in force, undischarged or unstayed sixty
days after it is entered.
(f) Tenant shall in any insolvency proceedings be
liquidated or dissolved or shall begin proceedings towards its
liquidation or dissolution.
(g) The estate or interest of Tenant in any of the
Leased Premises shall be levied upon or attached in any
proceeding and such estate or interest is about to be sold or
transferred or such process shall not be vacated or discharged
within sixty (60) days after such levy or attachment.
20. Landlord's Remedies.
After the occurrence of an Event of Default by Tenant,
Landlord shall have the right to exercise the following remedies:
(a) Landlord may, at its option, continue this Lease
in full force and effect, without terminating Tenant's right to
possession of the Leased Premises, in which event Landlord shall
have the right to collect Basic Rent, Additional Rent, and Non-
Rent Monetary Obligations when due. In the alternative.
Landlord shall have the right to peaceably re-enter the Leased
Premises on the terms set forth in subparagraph (b) below, but
without such re-entry being deemed a termination of the Lease or
an acceptance by Landlord of a surrender thereof. Landlord shall
also have the right, at its option, from time to time, without
terminating this Lease, to relet the Leased Premises, or any part
thereof, with or without legal process, as the agent, and for the
account, of Tenant upon such terms and conditions as Landlord may
deem advisable (which terms may be materially different from the
terms of this Lease), in which event the rents received on such
reletting shall be applied (i) first to the reasonable and actual
expenses of such reletting and collection, including without
limitation necessary renovation and alterations of the Leased
Premises, reasonable and actual attorneys' fees and any
reasonable and actual real estate commissions paid, and (ii)
thereafter toward payment of all sums due or to become due
Landlord hereunder. If a sufficient amount to pay such expenses
and sums shall not be realized or secured, then Tenant shall pay
Landlord any such deficiency monthly, and Landlord may bring an
action therefor as such monthly deficiency shall arise. Landlord
shall not, in any event, be required to pay Tenant any sums
received by Landlord on a reletting of the Leased Premises in
excess of the rent provided in this Lease, but such excess shall
reduce any accrued present or future obligations of Tenant
hereunder. Landlord's re-entry and reletting of the Leased
Premises without termination of this Lease shall not preclude
Landlord from subsequently terminating this Lease as set forth
below.
(b) Landlord may terminate this Lease by written
notice to Tenant specifying a date therefor, which shall be no
sooner than thirty (30) days following notice to Tenant, and this
Lease shall then terminate on the date so specified as if such
date had been originally fixed as the expiration date of the
Term. In the event of such termination, Landlord shall be
entitled to recover from Tenant the worth at the time of the
award of all of the following:
(i) Any obligation which has accrued prior to the
date of termination, plus,
(ii) The amount of unpaid Basic Rent and all other
charges which would have accrued after termination until the time
of award, plus,
(iii) The amount of unpaid rent for the
balance of the Term (excluding any option periods or portions
thereof not previously exercised).
As used in this Section 20(b) the term, "worth at the
time of the award", shall be computed by allowing simple interest
at the Default Rate for past due obligations, and employing a
discount rate equal to 8.5% on anticipated future obligations, on
the amount of the obligations payable on the date of such
calculation. In the event this Lease shall be terminated as
provided above, by summary proceedings or otherwise, Landlord,
its agents, servants or representatives may immediately or at any
time thereafter peaceably re-enter and resume possession of the
Leased Premises and remove all persons and property therefrom, by
summary dispossession proceedings.
(c) Intentionally Deleted.
(d) Landlord may recover from Tenant, and Tenant shall
pay to Landlord upon demand, as Additional Rent, such reasonable
and actual expenses as Landlord may incur in recovering
possession of the Leased Premises, placing the same in good order
and condition and repairing the same for reletting, and all other
reasonable and actual expenses, commissions and charges incurred
by Landlord in exercising any remedy provided herein or as a
result of any Event of Default by Tenant hereunder (including
without limitation attorneys' fees).
Except as provided in Section 9(b) or 13(e), at any
time upon prior notice to Tenant, Landlord and Lender shall have
the right, but shall not be required, to pay such sums or do any
act which requires the expenditure of monies which may be
necessary or appropriate by reason of the failure or neglect of
Tenant to comply with any of its obligations under this Lease
(Landlord and Lender shall not, however, exercise any such rights
unless the failure or neglect shall have ripened into an Event of
Default), and in the event of the exercise of such right by
Landlord or Lender, Tenant agrees to pay to Landlord or Lender
forthwith upon demand, as Additional Rent, all such sums
including reasonable attorneys fees, together with interest
thereon at the Default Rate.
(e) The various rights and remedies reserved to
Landlord herein are cumulative, the rights and remedies described
in Section 20(a)-(d) shall survive termination of this Lease and
Landlord may pursue any and all such rights and remedies and any
other available to Landlord under applicable law or equity,
whether at the same time or otherwise (to the extent not
inconsistent with specific provisions of this Lease); provided,
however, that no remedy of termination shall be available to
Landlord except as expressly set forth in Section 20(b) after the
occurrence of an Event of Default. Notwithstanding anything
herein to the contrary, Landlord expressly waives its right to
forcibly dispossess Tenant from the Leased Premises, whether
peaceably or otherwise, without judicial process, such that
Landlord shall not be entitled to any "commercial lockout" or any
other provisions of applicable law which permit landlords to
dispossess tenants from commercial properties without the benefit
of judicial review.
21. Notices.
All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications
required or permitted to be given pursuant to the provisions of
this Lease (collectively "Notice" or "Notices") shall be in
writing and shall be deemed to have been given for all purposes
(i) three (3) days after having been sent by United States mail,
by registered or certified mail, return receipt requested,
postage prepaid, addressed to the other party at its address as
stated below, (ii) one (1) day after having been sent by Federal
Express or other nationally recognized air courier service, to
the Addresses stated below or (iii) one (1) day after having been
transmitted via facsimile, provided that a conforming signed
original is mailed to the party to receive the notice on the date
it is transmitted:
(a) If to Landlord, at the address set forth on the
first page of this Lease. Notice to be delivered to Landlord via
facsimile shall be transmitted to (214) 696-9845.
(b) If to Tenant, at the address set forth on the
first page of this Lease, Attention: Office of General Counsel.
Notices to be given to Tenant via facsimile shall be transmitted
to the attention of: William B. May at (714) 773-7936.
If any Lender shall have advised Tenant by Notice in the manner
aforesaid that it is the holder of a Mortgage and stating in said
Notice its address for the receipt of Notices, then
simultaneously with the giving of any Notice by Tenant to
Landlord, Tenant shall serve one or more copies of such Notice
upon Lender in the manner aforesaid and no Notice shall be
effective unless and until Lender shall be sent a copy thereof.
For the purposes of this paragraph, any party may substitute its
address by giving fifteen days' notice to the other party in the
manner provided above.
22. Memorandum of Lease; Estoppel Certificates.
(a) Each party shall, upon the request of the other
party, execute, deliver and record, file or register from time to
time all such instruments as may be required by any present or
future law in order to evidence the respective interests of
Landlord and Tenant in any of the Leased Premises, and shall
cause a memorandum of this Lease, and any supplement hereto or to
such other instrument, if any, as may be appropriate, to be
recorded, filed or registered and re-recorded, refiled or re-
registered in such manner and in such places as may be required
by any present or future law in order to give public notice and
protect the validity of this Lease. In the event of any
discrepancy between the provisions of said recorded memorandum of
this Lease or any other recorded instrument referring to this
Lease and the provisions of this Lease, the provisions of this
Lease shall prevail.
(b) Landlord, Lender and Tenant shall, at any time and
from time to time, upon not less than twenty (20) days' prior
written request by the other (or, in the case of an estoppel
certificate requested of either, upon not less than twenty (20)
days' prior written request of Lender), execute, acknowledge and
deliver to the other a statement in writing, executed by Landlord
or Tenant by, a President, Vice President or authorized general
partner, principal officer or agent thereof certifying (i) that
this Lease is unmodified and in full effect (or, if there have
been modifications, that this Lease is in full effect as
modified, setting forth such modifications), (ii) the dates to
which Basic Rent payable hereunder has been paid, (iii) that to
the knowledge of the party executing such certificate, no default
by either Landlord or Tenant exists hereunder or specifying each
such default of which such party may have knowledge; (iv) the
remaining Term hereof; (v) with respect to a certificate signed
by Tenant, that to the knowledge of the party executing such
certificate, there are no proceedings pending or threatened
against Tenant before or by any court or administrative agency
which if adversely decided would materially and adversely affect
the financial condition and operations of Tenant or if any such
proceedings are pending or threatened to said party's knowledge,
specifying and describing the same; (vi) with respect to a
certificate signed by Tenant, that no rent has been paid under
the Lease for more than one (1) month in advance; and (vii) with
respect to a certificate signed by Tenant, that to Tenant's
knowledge Tenant is in full compliance with all Federal, State
and local laws, ordinances, rules and regulations affecting its
use of the Leased Premises, including but not limited to the
handling, storage and disposal of hazardous and/or toxic
materials used or generated as a result of its business conducted
on or about the Leased Premises. It is intended that any such
statements may be relied upon by Lender, the recipient of such
statements or their assignees or by any prospective mortgagee,
purchaser, assignee or subtenant of the Leased Premises.
23. Surrender and Holding Over.
Upon the expiration or earlier termination of this
Lease, Tenant shall peaceably leave and surrender the Leased
Premises (except as to any portion thereof with respect to which
this Lease has previously terminated) to Landlord in the same
condition in which the Leased Premises were originally received
from Landlord at the commencement of this Lease, except as to any
repair or Alteration as permitted or required by any provision of
this Lease, and except for ordinary wear and tear and damage by
fire, casualty or condemnation but only to the extent Tenant is
not required to repair the same hereunder. Tenant may remove at
Tenant's sole cost and expense from the Leased Premises on or
prior to such expiration or earlier termination Tenant's Trade
Fixtures and personal property which are owned by Tenant or third
parties other than Landlord, and Tenant at its expense shall, on
or prior to such expiration or earlier termination, repair any
damage caused by such removal. Tenant's Trade Fixtures and
personal property not so removed at the end of the Term or within
fifteen (15) days after the earlier termination of the Term for
any reason whatsoever shall become the property of Landlord, and
Landlord may thereafter cause such property to be removed from
the Leased Premises. Landlord shall not in any manner or to any
extent be obligated to reimburse Tenant for any property which
becomes the property of Landlord as a result of such expiration
or earlier termination. Upon such expiration or earlier
termination, no party shall have any further rights or
obligations hereunder except as specifically provided herein.
Any holding over by Tenant of the Leased Premises after
the expiration or earlier termination of the term of this Lease
or any extensions thereof, with the consent of Landlord, shall
operate and be construed as tenancy from month to month only, at
one hundred fifty percent (150%) of the Basic Rent reserved
herein and upon the same terms and conditions as contained in
this Lease. Notwithstanding the foregoing, any holding over
without Landlord's consent shall entitle Landlord, in addition to
collecting Basic Rent at a rate of one hundred fifty percent
(150%) thereof, to exercise all rights and remedies provided by
law or in equity, including the remedies of Section 20.
24. No Merger of Title.
There shall be no merger of this Lease nor of the
leasehold estate created by this Lease with the fee estate in or
ownership of any of the Leased Premises by reason of the fact
that the same person, corporation, firm or other entity may
acquire or hold or own, directly or indirectly, (i) this Lease or
the leasehold estate created by this Lease or any interest in
this Lease or in such leasehold estate and (ii) the fee estate or
ownership of any of the Leased Premises or any interest in such
fee estate or ownership. No such merger shall occur unless and
until all persons, corporations, firms and other entities having
any interest in (x) this Lease or the leasehold estate created by
this Lease and (y) the fee estate in or ownership of the Leased
Premises including, without limitation, Lender's interest
therein, or any part thereof sought to be merged shall join in a
written instrument effecting such merger and shall duly record
the same.
25. Landlord and Lender Exculpation.
Anything contained herein to the contrary
notwithstanding, any claim based on or in respect of any
liability of Landlord under this Lease shall be enforced only
against the Landlord's interest in Leased Premises and shall not
be enforced against the Landlord individually or personally.
Tenant agrees that any assignment by Landlord to Lender of
Landlord's interest in this Lease, or the rent, payable
hereunder, whether absolute or conditional in nature or
otherwise, whether such assignment is made to the Lender solely
as additional collateral related to a mortgage or otherwise, and
the acceptance thereof by Lender shall never be treated as an
assumption by Lender of any obligations of Landlord hereunder
unless Lender shall, by notice sent to Tenant, specifically
elect, and that Lender shall be treated as having assumed
Landlord's obligations hereunder only upon purchase of the Leased
Premises pursuant to foreclosure of the Mortgage or by deed in
lieu thereof, or other conveyance and then only subject to the
limitations set forth in the first sentence hereof.
26. Hazardous Substances.
(a) Tenant represents and warrants that it will not
on, about, or under the Leased Premises, use, permit, make, treat
or dispose of any "hazardous substances" as that term is defined
in the Comprehensive Environmental Response, Compensation and
Liability Act, and the rules and regulations promulgated pursuant
thereto, as from time to time amended, 42 U.S.C. Section 9601 et
seq. (the "Act") or any Hazardous Materials (as hereinafter
defined), but the foregoing shall not prevent the use, to the
extent necessary and customary in the normal conduct of Tenant's
business, of any such substances in accordance with all Legal
Requirements and Tenant represents and warrants that it will at
all times comply with the Act and any other federal, state or
local laws, rules or regulations governing hazardous substances
or Hazardous Materials. Hazardous Materials as used herein shall
include, without limitation, all chemicals, petroleum, crude oil
or any fraction thereof, hydrocarbons, polychlorinated biphenyls
(PCBs), asbestos, asbestos-containing materials and/or products,
urea formaldehyde, or any substances which are classified as
"hazardous" or "toxic" under the Act; hazardous waste as defined
under the Solid Waste Disposal Act, as amended 42 U.S.C. Section
6901; air pollutants regulated under the Clean Air Act, as
amended, 42 U.S.C. Section 7401, et seq.; pollutants as defined
under the Clean Water Act, as amended, 33 U.S.C. Section 1251, et
seq., any pesticide as defined by Federal Insecticide, Fungicide,
and Rodenticide Act, as amended, 7 U.S.C. Section 136, et seq.,
any hazardous chemical substance or mixture or imminently
hazardous substance or mixture regulated by the Toxic Substances
Control Act, as amended, 15 U.S.C. Section 2601, et seq., any
substance listed in the United States Department of
Transportation Table at 45 CFR 172.101; any chemicals included in
regulations promulgated under the above listed statutes or any
modifications thereof or successor statutes thereto; any
explosives, radioactive material, and any chemical regulated by
state statutes similar to the federal statutes listed above and
regulations promulgated under such state statutes. Landlord
shall, upon the request of Tenant, promptly execute all permits
or such other instruments as may be required by Legal
Requirements, the Act, the federal statutes listed above or
similar state statutes to be executed by the owner of the
property, provided such documents are in form and substance
reasonably satisfactory to Landlord.
(b) To the extent required by the Act and/or any other
Legal Requirements, Tenant shall remove any hazardous substances
(as defined in the Act) and Hazardous Materials (as defined
above) whether now or hereafter existing on, about or under the
Leased Premises and whether or not arising out of or in any
manner connected with Tenant's occupancy of the Leased Premises
during the Initial Term or any extension or renewal Term thereof.
Tenant shall and hereby does agree to defend, indemnify and hold
Lender and Landlord, their officers, directors, shareholders,
partners and employees harmless from and against any and all
causes of actions, suits, demands or judgments of any nature
whatsoever, losses, damages, penalties, expenses, fees, claims,
costs (including response and remedial costs), and liabilities,
including, but not limited to, attorneys fees and costs of
litigation, arising out of or in any manner connected with (i)
the violation of and liability under any environmental Legal
Requirements with respect to the Leased Premises; and (ii) the
"release" or "threatened release" of or failure to remove, as
required by this Section 26, "hazardous substances" (as defined
in the Act) and Hazardous Materials (as defined above) on, about
or under the Leased Premises or any portion or portions thereof,
now or hereafter existing during the Initial Term and any
extension or renewal Term whether or not arising out of or in any
manner connected with Tenants' occupancy of the Leased Premises
during the Initial Term or any extension or renewal Term. The
obligations of Tenant under this Section 26(b) shall survive any
termination of this Lease.
(c) The Tenant represents, warrants and covenants that
it will not install any underground storage tank without
specific, prior written approval from the Landlord, which may be
withheld in its sole discretion. The Tenant will not store
combustible or flammable materials on the Leased Premises in
violation of the Act and any Legal Requirements governing
Hazardous Materials.
27. Right of First Refusal to Purchase.
(a) If, at any time and from time to time during the
term of the Lease (excluding the first eighteen (18) months of
this Lease), Landlord decides to sell, exchange or otherwise
transfer the Leased Premises to a Qualified Purchaser, either by
direct transfer or indirectly as a result of a change or transfer
of 25% or more of the ownership interests in and to Landlord to a
Qualified Purchaser, or otherwise by operation of law, Landlord
shall give written notice to Tenant of the terms of such
transfer. Landlord's notice shall set forth the economic terms
on which Landlord has received a bona fide offer to sell the
Leased Premises or such ownership interest to a third party (or
from which Landlord's owners intend to transfer their interests
to a third party, if applicable) and offer to Tenant a cash or
cash equivalent price and terms for which Tenant may purchase the
Leased Premises or such ownership interest, and which cash
equivalent price and terms will not include the purchase by
Tenant of other property of Landlord or require repayment of the
debt of Landlord, but may provide for the assumption of debt
secured by the property. In the event of an offer or proposed
transfer on other than an all cash basis (other than requiring
the assumption of property specific debt), Landlord shall
reasonably and in good faith determine the cash equivalent price.
Tenant shall have thirty (30) days after receipt of the notice in
which to elect to acquire the Leased Premises or such ownership
interest on the terms contained in the notice. Such election to
purchase shall be by written notice to Landlord. If Tenant fails
to accept such offer in accordance with this paragraph within the
applicable time period, Tenant shall be conclusively presumed to
have rejected such offer, in which event Landlord shall be free,
at any time thereafter, to sell the Leased Premises or such
ownership interest to a Qualified Purchaser at a purchase price
and upon terms and conditions not more favorable to the Qualified
Purchaser than those contained in Landlord's notice to Tenant,
except as specifically provided below. Upon Landlord's request,
Tenant shall affirm in writing within five (5) Business Days,
after expiration of the applicable time period, that such offer
has been rejected. This right of first refusal shall not apply
to: (i) any offer or sale incidental to the exercise of any
remedy by Lender or any mortgagee or beneficiary under any
mortgage, deed of trust or similar security instrument creating a
lien on the interest of Landlord in the Leased Premises, (ii) any
transfer by or among the owners of Landlord to any other owner of
Landlord, or a transfer by any beneficial owner to such owner's
immediate family or lineal descendants or a trust for the benefit
of any one or more of the foregoing, or to a corporation or other
entity in which any one or more of the foregoing has a
controlling interest, or to an entity controlled by, under common
control with or controlling Landlord or to an organization
qualified under section 501(c)(3) of the Internal Revenue Code or
to a wholly-owned subsidiary of such an organization, (iii) a
transaction or transfer resulting from the sale, reorganization
or consolidation of all or substantially all of the assets of any
of the constituent owners of Landlord, or (iv) any transfer
resulting from the death or incompetence of any individual. If
Landlord desires to sell or offer for sale the Leased Premises or
such ownership interest for a lower purchase price or on terms
more favorable to the Qualified Purchaser than offered to and not
accepted by Tenant, Landlord shall not convey the Leased Premises
or such ownership interest without first again offering to Tenant
the right to purchase the Leased Premises or such ownership
interest as provided above; provided, however, that such sale or
offer shall only be deemed to be more favorable if the proposed
sale price and terms shall be less than ninety-five percent (95%)
of the sale price (or cash equivalent price) offered to Tenant.
In the event Landlord is required to re-offer the Leased Premises
or such ownership interest to Tenant pursuant to the preceding
sentence, Tenant shall have ten (10) Business Days after receipt
of such re-offer in which to elect to acquire the Leased Premises
or such ownership interest on the terms contained in such notice
after which time Landlord shall be free to sell the Leased
Premises or such ownership interest on such terms. The
provisions of this paragraph shall apply to each subsequent price
reduction, if any, meeting the criteria set forth herein. Any
purchase pursuant to this Section 27 shall be in accordance with
the Purchase Procedure. Any conveyance by Landlord of the Leased
Premises or such ownership interest to any person other than to
Tenant shall be made subject to this Lease, including the
continuing right of first refusal granted to Tenant under this
Section 27, and this Lease shall continue in full force and
effect. Upon any conveyance by Landlord of the Leased Premises
or such ownership interest, Landlord shall provide Tenant with
copies of any change of ownership statements prior to the filing
of such statements with any governmental authority or agency.
Notwithstanding the provisions of Section 21, if Landlord
provides such copies by facsimile, same shall be deemed to have
been given on the date transmitted.
28. Purchase Procedure.
(a) In the event of the purchase by the Tenant of the
Leased Premises pursuant to any provision of this Lease, the
terms and conditions of this Section 28 shall apply. At a time
and place and the date fixed for such purchase in this Lease, or
at such other place, time or date as the Landlord and the Tenant
shall mutually agree:
(i) the Tenant shall pay the purchase price to
the Landlord by wire transfer of immediately available federal
funds, in lawful money of the United States, to an account or
accounts designated by the Landlord, together with all Basic
Rent, Additional Rent, and Non-Rent Monetary Obligations accrued
and unpaid as of such date, subject in the case of a purchase of
the Leased Premises pursuant to Section 12, to the reduction of
the purchase price of the Leased Premises by the Landlord's
application to the payment of such purchase price of the amount
of any Award paid to and retained by the Landlord or Lender with
respect to the Leased Premises; and
(ii) the Landlord shall execute and deliver to the
Tenant a grant deed (or other form appropriate for the applicable
jurisdiction) in recordable form, and such other instrument or
instruments as may be appropriate, to transfer the Leased
Premises to the Tenant free and clear of all material liens
(other than Permitted Encumbrances, liens created or suffered
through or by or with the consent of Tenant, and any installment
of Taxes due and payable after the Commencement Date and this
Lease), together with such evidence of the Landlord's authority
to sell the Leased Premises to the Tenant, and of the
authorization of the sale of the Leased Premises, and the
execution and delivery of the deed by the Landlord, and of such
other matters as the Tenant may reasonably request, all of which
shall be reasonably satisfactory to the Tenant in form and
substance, and a certification of non-foreign status as required
by the Foreign Investment in Real Property Tax Act and the
regulations promulgated thereunder and any similar certificates
required by the State. In the case of a purchase of the Leased
Premises by the Tenant pursuant to Section 12, the Landlord shall
also pay to the Tenant the Award received by the Landlord and not
previously applied to Restoration or paid to the Tenant by the
Landlord with respect to the Leased Premises (unless the Tenant
shall have received a credit against the purchase price in
respect thereof or, if payment of the Award has not been made as
of the closing of the purchase of the Leased Premises, assigned
to the Tenant the right to receive the Landlord's portion of the
Award relating to the Leased Premises when such Award is paid).
(b) In the case of a purchase pursuant to this Lease
under Section 12(b), the Tenant shall pay all charges incident to
such transfer, including all recording fees, reasonable
attorneys' fees, costs and expenses, title insurance premiums, if
any, survey costs and transfer taxes or other similar taxes (the
"Transaction Costs"). However, in the case of a purchase
pursuant to the exercise of Tenant's right of first refusal under
Section 27 of this Lease, the Tenant shall pay only those
Transaction Costs to be paid by a purchaser under the terms set
forth in Landlord's notice of the terms of such proposed transfer
in accordance with Section 27.
(c) In the event of the termination of this Lease with
respect to the Leased Premises as herein provided, the
obligations and liabilities of the Landlord and the Tenant, as
the case may be, whether actual or contingent, under this Lease
that arose at or prior to such termination and that are expressly
stated herein to survive the termination of this Lease shall
survive termination.
(d) The Tenant shall execute and deliver to the
Landlord an environmental indemnity agreement, in form, scope and
substance reasonably acceptable to the Landlord, pursuant to
which the Tenant shall agree to be liable for and pay, and shall
indemnify, hold harmless and defend Landlord from and against,
any Claim arising under environmental Legal Requirements from and
after the effective date of the purchase pursuant to this Section
28.
29. Entry by Landlord and Lender.
Landlord, Lender and their authorized representatives
and experts shall have the right upon reasonable notice (which
shall be not less than 48 hours except in the case of emergency)
to enter the Leased Premises at all reasonable business hours,
(and at all other times in the event of an emergency), for (i)
the purpose of inspecting the same, (ii) the purpose of doing any
work under Section 9, (and, in each case, may take all such
action thereon as may be necessary or appropriate for any such
purpose (but nothing contained in this Lease or otherwise shall
create or imply any duty upon the part of Landlord or Lender to
make any such inspection or do any such work)), and (iii) the
purpose of showing the Leased Premises to prospective Qualified
Purchasers and mortgagees and, at any time within twelve (12)
months prior to the expiration of the term of this Lease for the
purpose of showing the same to prospective tenants. No such
entry shall constitute an eviction of Tenant but any such entry
shall be done by Landlord in such reasonable manner as to
minimize any disruption of Tenant's business operation. Landlord
shall obtain the agreement of the Lender or any other person who
enters the Leased Premises to comply with the provisions of
Section 42. Tenant shall reasonably cooperate with Landlord,
Lender and/or their authorized representatives and experts in
connection with any such inspection.
30. Statements.
Tenant named herein shall each submit to Lender and
Landlord (i) within 45 days of the end of each of the first three
fiscal quarters of each fiscal year of Tenant named herein,
quarterly balance sheets, income and cash flow statements for
Tenant named herein, certified by a senior financial officer of
Tenant; (ii) within 90 days of the end of each fiscal year,
annual balance sheets, income and cash flow statements for Tenant
named herein, certified by an independent public accountant.
Quarterly 10Qs as filed with the Securities and Exchange
Commission shall satisfy the requirements contained in (i)
herein. Copies of the 10 Ks filed with the Securities and
Exchange Commission will satisfy the requirement contained in
(ii) herein. The obligations of Tenant named herein shall
continue whether or not this Lease shall have been assigned by
Landlord or Tenant.
31. No Usury.
The intention of the parties being to conform strictly
to the usury laws now in force in the State, whenever any
provision herein provides for payment by Tenant to Landlord of
interest at a rate in excess of the legal rate permitted to be
charged, such rate herein provided to be paid shall be deemed
reduced to such legal rate.
32. Broker.
Landlord and Tenant represent and warrant to each other
that, except for Citicorp Real Estate, Inc. (which amounts, if
any, shall be the responsibility of Tenant pursuant to a separate
agreement), neither party negotiated with any broker in
connection with this Lease and that this Lease was negotiated
directly by Landlord and Tenant. Each party hereby agrees to
indemnify the other against all claims, damages, costs and
expenses incurred by the indemnified party as a result of the
breach of the foregoing representation or warranty by the
indemnifying party.
33. Waiver of Landlord's Lien.
Landlord hereby waives any right to distrain Trade
Fixtures or any property of Tenant and any Landlord's lien or
similar lien upon Trade Fixtures and any other property of Tenant
regardless of whether such lien is created or otherwise.
Landlord agrees, at the request of Tenant, to execute a waiver of
any Landlord's or similar lien for the benefit of any present or
future holder of a security interest in or lessor of any of Trade
Fixtures or any other personal property of Tenant. Landlord
acknowledges and agrees in the future to acknowledge (in a
written form reasonably satisfactory to Tenant) to such persons
and entities at such times and for such purposes as Tenant may
reasonably request that Trade Fixtures are Tenant's property and
not part of Improvements (regardless of whether or to what extent
such Trade Fixtures are affixed to the Improvements) or otherwise
subject to the terms of this Lease.
34. No Waiver.
No delay or failure by either party to enforce its
rights hereunder shall be construed as a waiver, modification or
relinquishment thereof.
35. Separability.
If any term or provision of this Lease or the
application thereof to any provision of this Lease or the
application thereof to any person or circumstances shall to any
extent be invalid and unenforceable, the remainder of this Lease,
or the application of such term or provision to person or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and shall be enforced to
the extent permitted by law.
36. Indemnification.
(a) Tenant agrees to defend, pay, protect, indemnify,
save and hold harmless (the "General Indemnity") Landlord and
Lender, and their respective officers, directors, shareholders,
partners, beneficiaries and employees (each an "Indemnified
Party") from and against any and all liabilities, losses,
damages, penalties, costs, expenses (including reasonable
attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature whatsoever, howsoever caused,
arising from this Lease or a Qualified Exchange Agreement
relating to any of the Leased Premises or Adjoining Property or
the use, non-use, occupancy, condition, design, construction,
maintenance, repair or rebuilding of any of or otherwise relating
to, the Leased Premises or Adjoining Property, and any injury to
or death of any person or persons or any loss of or damage to any
property, real or personal, in any manner arising therefrom
connected therewith or occurring thereon (collectively,
"Losses").
(b) The General Indemnity shall not apply to Losses
that are attributable to or for: (i) acts or events occurring
after expiration of the Term and redelivery of the Leased
Premises to the Landlord, (ii) taxes (whether or not indemnified
by the Tenant under other agreements) based on the income,
receipts or profits of Landlord, unless included within the
definition of "Taxes" as defined in this Lease, (iii) the
negligence or willful misconduct or breach of any representation
or warranty by the Landlord or the Lender, or their respective
employees, agents, or contractors in this Lease or a Qualified
Exchange Agreement, (iv) any obligation or liability of the
Indemnified Parties in this Lease or a Qualified Exchange
Agreement (as defined in the Lease Modification Agreement), or
(v) any losses resulting from the imposition of any lien which
the Landlord is required to lift and discharge and which Tenant
is not obligated to lift and discharge under this Lease.
(c) From and after the Loan Repayment Date, Landlord
shall indemnify and hold harmless Tenant from and against any and
all obligations, claims, losses, damages, liabilities and
expenses (including, without limitation, reasonable attorneys'
and accountants' fees and disbursements) arising out of the gross
negligence or willful misconduct of Landlord or its employees,
agents or contractors or breach by Landlord of any material
representation, warranty or covenant in this Lease or a Qualified
Exchange Agreement.
37. Permitted Encumbrances.
Tenant agrees that Tenant is obligated to and shall
perform all obligations of the owner of the Leased Premises and
pay all expenses which the owner of the Leased Premises may be
required to pay in accordance with the Permitted Encumbrances.
Tenant further covenants and agrees to indemnify, defend and hold
harmless Landlord and Lender against any claim, loss or damage
suffered by Landlord or Lender by reason of Tenant's failure to
perform any obligations or pay any expenses as required under any
of the Permitted Encumbrances or comply with the terms and
conditions of any of the Permitted Encumbrances as hereinabove
provided during the term of this Lease.
38. Headings.
The paragraph headings in this Lease are used only for
convenience in finding the subject matters and are not part of
this Lease or to be used in determining the intent of the parties
or otherwise interpreting this Lease.
39. Modifications.
(a) This Lease may be modified, amended, discharged or
waived only by an agreement in writing signed by the party
against whom enforcement of any such modification, amendment,
discharge or waiver is sought. Each of Tenant and Landlord
agrees that it will not modify or amend this Lease without the
written consent of Lender within any period during which there is
a Lender hereunder. In the event of any inconsistent instruction
from Landlord and Lender, Tenant shall comply with the
instruction of Lender.
(b) The parties hereto agree that it is intended that
the Lease and the Lease Modification Agreement together (i)
represent a single, indivisible agreement between the parties and
(ii) are interdependent and interrelated.
40. Successors, Assigns.
The covenants of this Lease shall run with the Land and
bind Tenant, the heirs, distributees, personal representatives,
successors and permitted assigns of Tenant and all present and
subsequent encumbrances and subtenants of any of the Leased
Premises, and shall inure to the benefit of and bind Landlord,
its successors and assigns. In the event there is more than one
Tenant, the obligation of each shall be joint and several. The
term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners of the
Leased Premises or holder of the Mortgage in possession at the
time in question of the Leased Premises and in the event of any
transfer or transfers of the title of the Leased Premises, the
Landlord herein named (and in case of any subsequent transfers or
conveyances, the then grantor) shall be automatically freed and
relieved from and after the date of such transfer and conveyance
of all personal liability as respects the performance of any
covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed.
41. Merger.
The Tenant shall have the right to consolidate or merge
with another corporation, or sell substantially all of its assets
to a person or entity without the prior consent of the Landlord;
provided however in the event of a transfer or assignment of this
lease in connection therewith Tenant or its successor in interest
shall satisfy the requirements of Section 17(b).
42. Confidentiality.
Landlord agrees that any information it obtains about Tenant's
business operations, finances, existing and proposed products,
facilities (but not the Leased Premises owned by Landlord), and
manufacturing processes is Tenant's confidential and proprietary
information. Landlord agrees that it will maintain Tenant's
confidential and proprietary information in confidence, will not
disclose or disseminate the information to any third party,
without Tenant's express prior written consent, and will use the
information only for purposes of enforcing Landlord's rights and
fulfilling Landlord's obligations in connection with this Lease.
Landlord agrees to inform all of its employees, officers, and
directors to whom the information is given of the confidential
nature of such information. Notwithstanding the foregoing,
nothing contained herein shall prevent Landlord from disclosing
information or materials if Landlord can demonstrate that: (i)
it is required to do so by Legal Requirements; (ii) the
information being so disclosed is in the public domain at the
time of its disclosure; (iii) the information being so disclosed
was obtained by Landlord on a non-confidential basis from a
source other than Tenant; or (iv) the information being so
disclosed was known to Landlord on a non-confidential basis prior
to its disclosure to Landlord by Tenant.
43. Specific Requirements of Special Purpose Entity.
From and after the Loan Repayment Date:
(a) The Landlord shall (i) hold itself out as an
entity that is legally and in fact separate from any other Person
or entity; (ii) conduct its business in its own name and use its
own name for the purposes of obtaining required registrations,
licenses, and permits (whether governmental, administrative or
otherwise) necessary to the conduct of its business;
(iii) correct any known misunderstanding regarding its separate
identity; (iv) maintain its books and records separate from any
other Person or entity and, if required by law to file tax
returns, file any tax return separate from any other Person or
entity; (v) maintain its funds and accounts separate from any
other Person or entity; (vi) not commingle its assets with those
of any other Person or entity; (vii) maintain financial
statements separate from the financial statements of any other
Person or entity; (viii) use stationery, invoices and checks
separate from those of any other Person or entity; (ix) pay its
liabilities out of its own funds; (x) not acquire obligations or
securities of its Affiliates; (xi) pay the salaries of its
employees, if any, and maintain a sufficient number of employees
in light of its contemplated business operations; (xii) allocate
fairly and reasonably any overhead for shared office space;
(xiii) maintain adequate capital in light of its contemplated
business operations and purpose; (xiv) not guarantee or become
obligated for the debts of any other Person or entity or hold out
its credit as being available to satisfy the obligations of
others; (xv) except as set forth in the loan documents with
Lender, not pledge its assets for the benefit of any other Person
or entity or make any loans or advances to any Person or entity;
(xvi) not create, incur, assume, guaranty, agree to purchase or
repurchase or provide funds in respect of any indebtedness other
than the loan with Lender and unsecured trade debt incurred in
the ordinary course of business; (xvii) not engage in any
business or activity other than holding an interest in and
leasing the Leased Premises and the exercise of rights under and
the performance of obligations under the loan documents with
Lender, and businesses and activities directly related thereto;
(xviii) not purchase or agree to purchase any property or asset
(other than the Leased Premises and the property reference in
Section 2(b)); (xix) not dissolve, liquidate, consolidate, or
merge; (xx) not amend its organizational documents to violate the
provisions of this Section 43 without the prior written consent
of Tenant; and (xxi) not, except as otherwise provided in the
loan documents with Lender, grant any lien (or consent to such
lien) on the Leased Premises or any interest therein to, or for
the benefit of, any Person or entity other than the Lender,
without the Lender's and Tenant's prior written consent.
(b) From and after the Loan Repayment Date, the
representations, warranties and covenants of this Section 43
shall apply to and be binding on any of the Landlord's successors
in interest.
(c) From and after the Loan Repayment Date: Landlord
acknowledges that monetary damages may not be an adequate remedy
for Tenant if Landlord should be determined to be in default
under this Section 43. Accordingly, Landlord agrees that upon
any default by Landlord under this Section 43, Tenant shall have
the option to institute an action for specific performance under
this Section.
44. Counterparts.
This Lease may be executed in several counterparts,
which together shall be deemed one and the same instrument.
45. Time of the Essence.
Time is of the essence in this Lease and each and every
provision hereof in which any date or time is specified.
46. Governing Law.
This Lease shall be governed by and construed according
to the laws of the State.
IN WITNESS WHEREOF, Landlord and Tenant have caused
this instrument to be executed under seal as of the day and year
first above written.
LANDLORD:
CARDBECK CHASKA TRUST
M. SCOTT KIPP
By: M. Scott Kipp
Its: Administrative Trustee
TENANT:
BECKMAN COULTER, INC.
By: JAMES T. GLOVER
Its: Vice President and Controller
<PAGE>
EXHIBITS
A - Property Description
B - Renewal Rent
C - Purchase Price Upon Involuntary Termination
<PAGE>
EXHIBIT B
RENEWAL RENT
Renewal Period Annual Rent
1st and 2nd Renewal Terms $1,320,000
3rd through 6th Renewal Terms The greater of Basic Rent for the
prior annual period and 95% of Fair
Rental Value at commencement of
Renewal Term
For purposes of this Lease, "Fair Rental Value" shall
be determined by mutual agreement of the Landlord and Tenant. If
the Landlord and Tenant are unable to agree on such value within
fifteen (15) months prior to the expiration of the then current
Term, then "Fair Rental Value" shall mean, as to the Leased
Premises, the value, determined consistently with standard
appraisal methodology, that would be obtained at an arms-length
transaction for cash between informed and willing parties,
neither of whom is under any compulsion to lease or rent, for the
leasing of the Leased Premises (but which value shall not include
any value attributable to (i) any Severable Alterations made
during the Term of this Lease by the Tenant, or (ii) any of
Tenant's Trade Fixtures).
Such appraisal shall be completed by an appraiser
mutually selected by Landlord and Tenant. If Landlord and Tenant
are unable to agree on the selection of a mutually acceptable
appraiser, then Landlord shall submit a list of names, from which
Tenant shall, within fifteen (15) days after Landlord's
submission, select one appraiser to complete the appraisal.
EXHIBIT 2.7
Execution Copy
LEASE
between
COULTER CORPORATION
as Tenant
and
CARDBECK MIAMI TRUST
as Landlord
Dated June 25, 1998
PROPERTY
11800 S.W. 147th Avenue
Miami, Florida
TABLE OF CONTENTS
Page
1. Certain Definitions...............................................1
2. Demise of Premises; Use of Personal Property......................6
3. Term..............................................................7
4. Rent..............................................................8
5. Net Lease.........................................................9
6. Title and Condition..............................................10
7. Taxes; Insurance and Legal Requirements..........................11
8. Use..............................................................12
9. Maintenance and Repair...........................................14
10. Liens............................................................15
11. Alterations......................................................16
12. Condemnation.....................................................17
13. Insurance........................................................20
14. Damage, Destruction..............................................22
15. Restoration......................................................24
16. Subordination to Financing.......................................26
17. Assignment; Subleasing...........................................28
18. Permitted Contests...............................................29
19. Default..........................................................31
20. Landlord's Remedies..............................................33
21. Notices..........................................................35
22. Memorandum of Lease; Estoppel Certificates.......................36
23. Surrender and Holding Over.......................................37
24. No Merger of Title...............................................38
25. Landlord and Lender Exculpation..................................39
26. Hazardous Substances.............................................39
27. Right of First Refusal to Purchase...............................41
28. Purchase Procedure...............................................43
29. Entry by Landlord and Lender.....................................45
30. Statements.......................................................46
31. No Usury.........................................................46
32. Broker...........................................................46
33. Waiver of Landlord's Lien........................................47
34. No Waiver........................................................47
35. Separability.....................................................47
36. Indemnification..................................................47
37. Permitted Encumbrances...........................................48
38. Headings.........................................................49
39. Modifications....................................................49
40. Successors, Assigns..............................................49
41. Merger...........................................................50
42. Confidentiality..................................................50
43. Specific Requirements of Special Purpose Entity..................51
44. Counterparts.....................................................55
45. Time of the Essence..............................................56
46. Governing Law....................................................56
<PAGE>
THIS LEASE AGREEMENT is made as of this 25th day of June,
1998, by and between CARDBECK MIAMI TRUST, a Delaware business
trust, having an office at c/o Cardinal Capital Partners, Inc.,
8411 Preston Road, 8th Floor, Dallas, Texas 75225-5520
("Landlord"), , and COULTER CORPORATION, a Delaware corporation,
having its principal office at 4300 N. Harbor Boulevard, P.O. Box
3100, Fullerton, California 92834-3100, ("Tenant").
In consideration of the rents and provisions herein stipulated to
be paid and performed, Landlord and Tenant hereby covenant and
agree as follows:
1. Certain Definitions.
(a) "Additional Rent" shall mean all sums required to
be paid by Tenant to Landlord hereunder other than Basic Rent and
Non-Rent Monetary Obligations, which sums shall constitute rental
hereunder.
(b) "Affiliate" shall mean, as to any Person, any
other Person that, directly or indirectly, is in Control of, is
Controlled by or is under common Control with such Person or is a
director or officer of such Person or of an Affiliate of such
Person.
(c) "Adjoining Property" shall mean all sidewalks,
curbs, and vault spaces adjoining any of the Leased Premises.
(d) "Alteration" or "Alterations" shall mean any or
all changes, additions, improvements, reconstructions or
replacements of any of the Improvements or any personal property
of Landlord, both interior or exterior, and ordinary and
extraordinary.
(e) "Basic Rent" shall mean Basic Rent as defined in
Section 4.
(f) "Basic Rent Payment Dates" shall mean the Basic
Rent Payment Dates as defined in Section 4.
(g) "Beneficiary" shall mean the holder of the
beneficial interest in Landlord or any permitted successors or
assigns.
(h) "Business Day" shall mean any day other than a
Saturday, Sunday or any other day on which the banking
institutions in the State of New York are authorized by law or
executive action to close.
(i) "Commencement Date" shall mean the Commencement
Date as defined in Section 3.
(j) "Condemnation" shall mean a Taking and/or a
Requisition.
(k) "Control" (including "Controlled by") shall mean
with respect to any Person either (i) ownership, directly or
through other entities, of more than 50% of all beneficial equity
interest in such Person, and (ii) the power to direct the
management, operation and business of such Person.
(l) "Default Rate" shall mean an annual rate of
interest equal to the Prime Rate plus five (5) percentage points,
but in no event greater than the maximum interest rate permitted
by Legal Requirements.
(m) "Event of Default" shall mean an Event of Default
as defined in Section 19.
(n) "Guarantor" shall mean Beckman Coulter, Inc., a
Delaware corporation.
(o) "Insurance Requirement" or "Insurance
Requirements" shall mean, as the case may be, any one or more of
the terms of each insurance policy required to be carried by
Tenant under this Lease and the requirements of the issuer of
such policy, and whenever Tenant shall be engaged in making any
Alteration or Alterations, repairs or construction work of any
kind (collectively, "Work"), the term "Insurance Requirement" or
"Insurance Requirements" shall be deemed to include a requirement
that Tenant obtain or cause its contractor to obtain completed
value builder's risk insurance when the estimated cost of the
Work in any one instance exceeds the sum of One Hundred Thousand
($100,000.00) Dollars and that Tenant or its contractor shall
obtain worker's compensation insurance or other adequate
insurance coverage covering all persons employed in connection
with the Work, whether by Tenant, its contractors or
subcontractors and with respect to whom death or bodily injury
claims could be asserted against Landlord.
(p) "Intangible Property" shall mean all books,
records and files relating to the maintenance, management or
operation of the Leased Premises belonging to the Landlord or
Tenant; all permits, certificates of occupancy, operating
permits, sign permits, development rights and approvals,
certificates, licenses, warranties and guarantees, rights to
deposits, and all other intangible property, miscellaneous
rights, benefits and privileges of any kind or character
belonging to Landlord with respect to the Leased Premises.
(q) "Law" shall mean any constitution, statute or rule
of law.
(r) "Lease Modification Agreement" shall mean the
Lease Modification Agreement dated of even date herewith, with
respect to the Leased Premises by and between the Landlord and
the Tenant.
(s) "Legal Requirement" or "Legal Requirements" shall
mean, as the case may be, any one or more of all present and
future laws, codes, ordinances, orders, judgments, decrees,
injunctions, rules, regulations and requirements, even if
unforeseen or extraordinary, of every duly constituted
governmental authority or agency (but excluding those which by
their terms are not applicable to and do not impose any
obligation on Tenant, Landlord or the Leased Premises) and all
covenants, restrictions and conditions now or hereafter of record
which may be applicable to Tenant, to Landlord or to any of the
Leased Premises, or to the use, manner of use, occupancy,
possession, operation, maintenance, alteration, repair or
reconstruction of any of the Leased Premises, even if compliance
therewith (i) necessitates structural changes or improvements
(including changes required to comply with the "Americans with
Disabilities Act") or results in interference with the use or
enjoyment of any of the Leased Premises or (ii) requires Tenant
to carry insurance other than as required by the provisions of
this Lease.
(t) "Lender" shall mean the entity identified to
Tenant as such in writing, which makes a Loan to Landlord,
secured in whole or in part by a Mortgage and evidenced by a Note
or which is the holder of a Mortgage and Note as a result of an
assignment thereof, and when a Mortgage secures multiple Notes
held by one or more noteholders, the trustee acting on behalf of
such holders, provided such trustee has been identified as such
in writing to Tenant.
(u) "Loan" shall mean a loan made by a Lender to
Landlord secured in whole or in part by a Mortgage and evidenced
by a Note or Notes.
(v) "Loan Repayment Date" shall mean the date of
payment in full of all Loans outstanding to all Lenders and the
release or reconveyance of all Mortgages of all Lenders.
(w) "Mortgage" shall mean a first priority mortgage or
similar security instrument hereafter executed covering the
Leased Premises from Landlord to Lender.
(x) "Net Award" shall mean the entire award payable to
Landlord by reason of a Condemnation, less any actual and
reasonable expenses incurred by Landlord in collecting such
award.
(y) "Net Proceeds" shall mean the entire proceeds of
any property casualty insurance required under Section 12(a),
less any actual and reasonable expenses incurred by Landlord or
Tenant in collecting such proceeds.
(z) "Non-Rent Monetary Obligations" shall mean any
liquidated damages, penalties, fines, or late fees which Tenant
assumes or agrees to pay or discharge pursuant to this Lease.
(aa) "Note" or "Notes" shall mean a promissory note or
notes hereafter executed from Landlord to Lender, which Note or
Notes will be secured in whole or in part by a Mortgage and an
assignment of leases and rents.
(bb) "Permitted Encumbrances" shall mean those
covenants, restrictions, reservations, liens, conditions,
encroachments, easements and other matters of title that affect
the Leased Premises as of Landlord's acquisition thereof, but
excepting any such matters arising from the acts of Landlord
(such as liens arising as a result of judgments against
Landlord).
(cc) "Person" shall mean any individual, corporation,
partnership, joint venture, estate, trust, unincorporated
association, any federal, state, county or municipal government
or any bureau, department or agency thereof and any fiduciary
acting in such capacity on behalf of any of the foregoing.
(dd) "Prime Rate" shall mean the rate of interest
announced publicly by Citibank, N.A. or its successor, from time
to time, as Citibank N.A.'s or such successor's base rate, or if
there be no such base rate, then the rate of interest charged by
Citibank, N.A. or such successor to its most creditworthy
customers on commercial loans having a ninety (90) day duration.
(ee) "Purchase Procedure" shall mean the procedure set
forth in Section 28 to be used if any circumstance described
herein wherein Tenant exercises its right of first refusal to
purchase the Leased Premises.
(ff) "Qualified Purchaser" shall mean any person or
entity which is a "United States Person" within the meaning of
Section 7701(a)(30) of the Internal Revenue Code of 1986 as
amended (the "Code"), and as to which withholding of tax under
section 1441 of the Code and the Regulations thereunder is not
required who does not: (i) manufacture or sell products which
are the same as or substantially the same as products
manufactured or sold by Tenant, or (ii) conduct substantially the
same type of manufacturing operations as Tenant.
(gg) "Requisition" shall mean any temporary
condemnation or confiscation of the use or occupancy of any of
the Leased Premises by any governmental authority, civil or
military, whether pursuant to an agreement with such governmental
authority in settlement of or under threat of any such
requisition or confiscation, or otherwise.
(hh) "Restoration" shall mean the restoration of the
Leased Premises after any Taking or damage by casualty as nearly
as possible to their value, condition and character existing
immediately prior to such Taking or damage and shall include the
demolition, planning, and permitting periods required to complete
such restoration.
(ii) "State" shall mean the state in which the Leased
Premises are situated.
(jj) "Taking" shall mean any taking of any of the
Leased Premises in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or by reason
of any agreement with any condemnor in settlement of or under
threat of any such condemnation or other eminent domain
proceedings.
(kk) "Taxes" shall mean taxes of every kind and nature
(including real, ad valorem and personal property, income,
franchise, withholding, profits and gross receipts taxes), all
charges and/or taxes for any easement or agreement maintained for
the benefit of any of the Leased Premises, all general and
special assessments, levies, permits, inspection and license
fees, all utility charges, all ground rents, and all other public
charges and/or taxes whether of a like or different nature, even
if unforeseen or extraordinary, imposed upon or assessed, prior
to or during the Term, against Landlord, Tenant or any of the
Leased Premises as a result of or arising in respect of the
occupancy, leasing, use, maintenance, operation, management,
repair or possession thereof, or any activity conducted on the
Leased Premises, or the Basic Rent, Additional Rent, or Non-Rent
Monetary Obligations, including without limitation, any gross
income tax, sales tax, occupancy tax or excise tax levied by any
governmental body on or with respect to such Basic Rent,
Additional Rent, or Non-Rent Monetary Obligations, but
specifically excluding those items enumerated in Section 7.
(ll) "Term" shall mean the initial term of this Lease,
as extended pursuant to any renewal that has become effective.
(mm) "Trade Fixtures" shall mean all movable walls and
partitions, base and wall cabinets, computer power system (UPS
units), paging system, telephone system, trash compactors,
laboratory casework, security system, telephone/data system,
projection screens, emergency generators, demountable metal
partitions, warehouse racking systems, trade equipment and trade
machinery (including, without limitation, machinery racking,
conveyor equipment, lifts, and appliances), counters, cases,
furniture, inventory, shelving and similar fixtures (even if
affixed to the Improvements (as hereinafter defined)), and
articles of tangible personal property of every kind and nature
whatsoever, which are owned or leased by Tenant (other than
personal property of Landlord which Tenant is permitted to use
pursuant to this Lease) and used in the operation of the business
conducted on the Leased Premises and all modifications,
replacements, alterations and additions to such property.
2. Demise of Premises; Use of Personal Property.
(a) Landlord hereby demises and lets to Tenant and
Tenant hereby takes and leases from Landlord for the Term and
upon the provisions hereinafter specified the following described
property (collectively, the "Leased Premises"): (i) the premises
described in Exhibit "A" attached hereto and made a part hereof
together with the easements, rights and appurtenances thereunto
belonging or appertaining (collectively, the "Land"); (ii) the
buildings, structures, fixtures and other improvements
constructed and to be constructed on the Land (collectively, the
"Improvements"), together with all additions and accessions
thereto, substitutions therefor and replacements thereof
permitted by this Lease excepting therefrom Tenant's Trade
Fixtures and all property that does not constitute real property
under the laws of the State.
(b) Landlord hereby authorizes, without any
compensation except as provided in this Lease, Tenant to use any
and all personal property and Intangible Property of Landlord
located on the Leased Premises and Landlord shall not remove, or
authorize the removal of, any such personal property and
Intangible Property from the Leased Premises. Tenant shall have
the right to inspect, examine and photocopy (at Tenant's expense)
any and all such personal property and Intangible Property.
3. Term.
(a) Tenant shall have and hold the Leased Premises for
an initial term commencing on the date hereof (the "Commencement
Date") and ending on June 30, 2018 (the "Expiration Date").
(b) Provided the Lease shall not have been terminated
pursuant to the provisions hereof, this Lease and the term
thereof may be extended for up to six (6) renewal terms of five
(5) years each upon Tenant giving notice, in accordance with the
provisions of Section 21, to Landlord of such renewal at least
twelve (12) months prior to the expiration of the then current
Term, time being deemed to be of the essence with respect to
Tenant's exercise of such renewal option. Any such extension or
renewal of the Term shall be subject to all of the provisions of
this Lease, and all such provisions shall continue in full force
and effect In the event that Tenant fails to timely renew the
Term as hereinabove provided, then Landlord shall have the right
in addition to any rights granted in Section 29, during the
remainder of the Term then in effect to (i) advertise the
availability of the Leased Premises for sale or for reletting,
and (ii) show the Leased Premises to prospective Qualified
Purchasers, lenders or tenants at such reasonable times during
normal business hours as Landlord may select. If Tenant fails to
timely renew the Term as hereinabove provided, then all options
with regard to subsequent extensions or renewals of the Term
shall expire and be null and void.
4. Rent.
(a) Tenant shall pay to Landlord or Lender on behalf
of Landlord, if directed by Landlord, as annual rent for the
Leased Premises during the Term ("Basic Rent"), the sum of Five
Million Sixteen Thousand ($5,016,000) dollars during the initial
term and the sums set forth on Exhibit "B" for the renewal terms,
which rent shall be paid in equal monthly installments in advance
commencing on the first Business Day of the second month next
following the Commencement Date and continuing on the first
Business Day of each month thereafter during the Term (the said
days being called the "Basic Rent Payment Dates"), and shall pay
the same at Cardbeck Miami Trust, c/o Cardinal Capital Partners,
Inc., 8411 Preston Road, 8th Floor, Dallas, Texas 75225-5520, or
at such other place or to such other person on behalf of Landlord
as Landlord from time to time may designate to Tenant in writing,
in funds which at the time of such payment shall be legal tender
for the payment of public or private debts in the United States
and if required by Lender by wire transfer in immediately
available federal funds to such account in such bank as Lender
shall designate from time to time. Basic Rent for the period
from the Commencement Date to the first day of the second month
next following the Commencement Date shall be paid on the date
provided as the first payment date under the Qualified Exchange
Agreement (as defined in the Lease Modification Agreement) with
respect to this Lease and shall be calculated on a prorata basis.
(b) If any installment of Basic Rent is not paid on
the date due, Tenant shall pay Landlord interest on such overdue
payment at the Default Rate, accruing from the due date of such
payment until the same is paid.
(c) Tenant shall pay as and discharge before the
imposition of any fine, lien, interest or penalty that may be
added thereto for late payment thereof, as Non-Rent Monetary
Obligations, all other amounts and obligations which Tenant
assumes or agrees to pay or discharge pursuant to this Lease,
together with every fine, penalty, interest and cost which may be
added by the party to whom such payment is due for nonpayment or
late payment thereof. In the event of any failure by Tenant to
pay or discharge any of the foregoing, Landlord and Lender shall
have all rights, powers and remedies provided herein, by law or
otherwise, in the event of nonpayment of Basic Rent. Landlord and
Lender shall have the right to make such payment, in which case
Tenant shall immediately reimburse such payment (including
interest at the Default Rate) to Landlord or Lender, as the case
may be. Any Additional Rent or Non-Rent Monetary Obligations
payable to Landlord shall be paid in lawful money of the United
States to the party to whom Basic Rent is paid.
5. Net Lease.
(a) It is the intention of the parties hereto that the
obligations of Tenant hereunder shall be separate and independent
covenants and agreements, and that Basic Rent, Additional Rent,
Non-Rent Monetary Obligations and all other sums payable by
Tenant hereunder shall continue to be payable in all events, and
that the obligations of Tenant hereunder shall continue
unaffected, unless the requirement to pay or perform the same
shall have been terminated pursuant to an express provision of
this Lease. This is a net Lease and Basic Rent, Additional Rent,
Non-Rent Monetary Obligations and all other sums payable
hereunder by Tenant shall be paid without notice or demand, and
without setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense, except as
otherwise specifically set forth herein. This Lease shall not
terminate and Tenant shall not have any right to terminate this
Lease during the Term (except as otherwise expressly provided
herein). Tenant agrees that, except as otherwise expressly
provided herein, it shall not take any action to terminate,
rescind or avoid this Lease notwithstanding (i) the bankruptcy,
insolvency, reorganization, composition, readjustment,
liquidation, dissolution, winding-up or other proceeding
affecting Landlord, (ii) the exercise of any remedy, including
foreclosure, under the Mortgage, (iii) any action with respect to
this Lease (including the disaffirmance hereof) which may be
taken by Landlord under the Federal Bankruptcy Code or by any
trustee, receiver or liquidator of Landlord or by any court under
the Federal Bankruptcy Code or otherwise, (iv) the Taking of the
Leased Premises or any portion thereof (except as specifically
provided in Section 12(b) below), (v) the prohibition or
restriction of Tenant's use of the Leased Premises under any
Legal Requirement or otherwise, (vi) the destruction of the
Leased Premises or any portion thereof, (vii) the eviction of
Tenant from possession of the Leased Premises, by paramount title
or otherwise, or (viii) default by Landlord hereunder or under
any other agreement between Landlord and Tenant. Tenant waives
all rights which are not expressly stated herein but which may
now or hereafter otherwise be conferred by law to quit, terminate
or surrender this Lease or any of the Leased Premises; to any
setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense of or to
Basic Rent, Additional Rent, Non-Rent Monetary Obligations or any
other sums payable under this Lease, and for any statutory lien
or offset right against Landlord or its property, each except as
otherwise expressly provided herein.
(b) Tenant shall pay directly to the proper
authorities charged with the collection thereof all charges for
water, sewer, gas, oil, electricity, telephone and other
utilities or services used or consumed on the Leased Premises
during the Term, whether designated as a charge, tax, assessment,
fee or otherwise, including, without limitation, water and sewer
use charges and taxes, if any, all such charges to be paid as the
same from time to time become due. It is understood and agreed
that Tenant shall make its own arrangements for the installation
or provision of all such utilities and that Landlord shall be
under no obligation to furnish any utilities to the Leased
Premises and shall not be liable for any interruption or failure
in the supply of any such utilities to the Leased Premises.
6. Title and Condition.
(a) The Leased Premises are demised and let subject to
the Permitted Encumbrances and all Legal Requirements and
Insurance Requirements, including any existing violation of any
thereof, without representation or warranty by Landlord; it being
understood and agreed, however, that the recital of the Permitted
Encumbrances herein shall not be construed as a revival of any
thereof which for any reason may have expired.
(b) Without limiting the effect of Landlord's covenant
set forth in Section 8(c), the Landlord makes no, and expressly
hereby denies any, representations or warranties regarding the
condition or suitability of, or title to, the Leased Premises.
Tenant agrees that it takes the Leased Premises "as is," without
any such representation or warranty.
(c) Landlord hereby conditionally assigns, without
recourse or warranty whatsoever, to Tenant, all warranties,
guaranties and indemnities, express or implied, and similar
rights which Landlord may have against any manufacturer, seller,
engineer, contractor or builder in respect of any of the Leased
Premises, including, but not limited to, any rights and remedies
existing under contract or pursuant to the Uniform Commercial
Code (collectively, the "guaranties"). Such assignment shall
remain in effect so long as no Event of Default exists hereunder
or until the expiration or sooner termination of this Lease.
Landlord shall also retain the right to enforce any guaranties so
assigned in the name of Tenant upon the occurrence of an Event of
Default. Landlord hereby agrees to execute and deliver at
Tenant's sole cost and expense such further documents, including
powers of attorney, as Tenant may reasonably request (and which
in the good faith judgment of Landlord, do not adversely affect a
substantial interest of Landlord), in order that Tenant may have
the full benefit of the assignment effected or intended to be
effected by this Section 6. Upon the occurrence, and during the
continuancy of an Event of Default or the expiration or
termination of this Lease, the guaranties shall automatically
revert to Landlord. The foregoing provision of reversion shall
be self-operative and no further instrument of reassignment shall
be required. Upon the curing of such Event of Default, the
assignment and guaranties shall be automatically reassigned and
reinstated and revert to Tenant. The foregoing provision of
reassignment, reinstatement and reversion shall be self-operative
and no further instrument of reassignment shall be required. In
confirmation of such reassignment each of Tenant and Landlord
shall execute and deliver promptly any certificate or other
instrument which Landlord or Tenant may request at Tenant's sole
cost and expense. Any monies collected by Tenant under any of
the guaranties after the occurrence of and during the
continuation of an Event of Default shall be held in trust by
Tenant and promptly paid over to Landlord.
7. Taxes; Insurance and Legal Requirements.
(a) Tenant shall, subject to the provisions of Section
18 hereof relating to contests, before interest or penalties are
due thereon, pay and discharge all Taxes. Landlord shall, within
three (3) Business Days, deliver to Tenant any bill, invoice,
notice or correspondence Landlord receives with respect to any
Tax. Nothing herein shall obligate Tenant to pay, and the term
"Taxes" shall exclude, federal, state or local (i) franchise,
capital stock or similar taxes, if any, of Landlord, (ii) income,
excess profits or other taxes, if any, of Landlord, determined on
the basis of or measured by its net income or gross income (in
lieu of net income), as applicable (except "Taxes" shall include
any gross income tax, sales tax, occupancy tax or excise tax
levied by any governmental body or authority with regard to Basic
Rent, Additional Rent or Non-Monetary Obligations, provided such
assessment or levy is not in lieu of net income tax payable by
Landlord), or (iii) any estate, inheritance, succession, gift,
capital levy or similar taxes, unless there is a change in the
method of taxation in effect at the commencement of this Lease
which results in taxes referred to in clauses (i) and (ii) above
being levied in lieu of or a substitute for any other tax or
assessment upon or with respect to any of the Leased Premises
which, if such other tax or assessment were in effect at the
commencement of the term of this Lease, would be payable by
Tenant. In the event that any assessment against any of the
Leased Premises may be paid in installments, Tenant shall have
the option to pay such assessment in installments; and in such
event, Tenant shall be liable only for those installments (and
all resulting interest thereon) which become due and payable in
respect of the Term. Tenant shall prepare and file all tax
reports required by governmental authorities which relate to the
Taxes. Tenant shall deliver to Landlord and/or Lender, within
thirty (30) days of Landlord's or Lender's, as the case may be,
request therefor: (i) copies of all settlements and notices
pertaining to the Taxes which may be issued by any governmental
authority; and (ii) evidence of payment for payments of all
Taxes made during each calendar year of the Term.
(b) Tenant shall promptly comply with and conform to
all of the Legal Requirements and Insurance Requirements, subject
to the provisions of Section 18 hereof
8. Use.
(a) Tenant may use the Leased Premises for any lawful
purpose. In no event shall the Leased Premises be used for any
purpose which shall violate any of the provisions of any recorded
covenants, restrictions or agreements applicable to the Leased
Premises either specifically or through broader application to
any center or industrial park of which the Leased Premises may be
a part. Tenant agrees that with respect to any such recorded
covenants, restrictions or agreements, Tenant shall observe,
perform and comply with and carry out the provisions thereof
required therein to be observed and performed by Landlord.
(b) Subject to Tenant's rights of contest under
Section 18 hereof, Tenant shall not permit any unlawful
occupation, business or trade to be conducted on any of the
Leased Premises or any use to be made thereof contrary to
applicable Legal Requirements or Insurance Requirements. Subject
to Tenant's rights of contest under Section 18 hereof, Tenant
shall not use, occupy or permit any of the Leased Premises to be
used or occupied, nor do or permit anything to be done in or on
any of the Leased Premises, in a manner which would (i) violate
any certificate of occupancy or equivalent certificate affecting
any of the Leased Premises, (ii) make void or voidable any
insurance which Tenant is required hereunder to maintain then in
force with respect to any of the Leased Premises, (iii) affect in
any manner the ability of Tenant to obtain any insurance which
Tenant is required to furnish hereunder, (iv) cause any injury or
damage to any of the Improvements unless pursuant to Alterations
permitted under Section 11 hereof, or (v) constitute a public or
private nuisance or waste.
(c) Subject to all of the provisions of this Lease, so
long as no Event of Default exists hereunder, Landlord covenants
that neither it nor any party claiming by, through or under it,
shall do any act to disturb the peaceful and quiet occupation and
enjoyment of the Leased Premises by Tenant. Landlord may enter
upon and examine any of the Leased Premises at reasonable times
after reasonable notice and during business hours and exercise
any rights and privileges granted to Landlord under the
provisions of this Lease. During an Event of Default or in an
emergency, Landlord's access to the Leased Premises shall not be
restricted as provided in the immediately preceding sentence.
9. Maintenance and Repair.
(a) Except for any Alterations that Tenant is
permitted to make hereunder, Tenant shall at all times, including
any Requisition period, put, keep and maintain the Leased
Premises, including, without limitation, the roof, landscaping,
walls (interior and exterior), footings, foundations and
structural components of the Leased Premises, and the Adjoining
Property, in good order and repair, and shall promptly make all
repairs and replacements (substantially equivalent in quality and
workmanship to the original work) of every kind and nature,
whether foreseen or unforeseen, which may be required to be made
upon or in connection with any of the Leased Premises in order to
keep and maintain the Leased Premises in good order and repair,
reasonable wear and tear excepted (whether or not the need for
such repairs occurs as a result of Tenant's use, any prior use,
the elements or the age of the Leased Premises). Tenant shall do
or cause others to do all shoring of the Leased Premises or
Adjoining Property or of foundations and walls of the
Improvements and every other act necessary or appropriate for
preservation and safety thereof, by reason of or in connection
with any excavation or other building operation upon any of the
Leased Premises or Adjoining Property, whether or not Landlord
shall, by reason of any Legal Requirements or Insurance
Requirements, be required to take such action or be liable for
failure to do so. Landlord shall not be required to make any
repair, whether foreseen or unforeseen, or to maintain any of the
Leased Premises or Adjoining Property in any way, and Tenant
hereby expressly waives the right to make repairs at the expense
of the Landlord, which right may otherwise be provided for in any
law now or hereafter in effect. Tenant shall, in all events,
make all repairs for which it is responsible hereunder promptly,
and all repairs shall be in a good, proper and workmanlike
manner.
(b) If Tenant shall be in default under any of the
provisions of this Section 9, Landlord or Lender may, after ten
(10) days notice to Tenant and failure of Tenant to commence to
cure during said period or to diligently prosecute such cure to
completion once begun, but immediately upon notice in the event
of an emergency (that is, imminent danger of injury to persons or
property), do whatever is necessary to cure such default as may
be reasonable under the circumstances for the account of and at
the expense of Tenant. In the event of an emergency, before
Landlord or Lender may, in addition to all remedies under this
Lease, avail itself of its rights under this Section 9(b),
Landlord or Lender, as the case may be, shall send written notice
to Tenant of the situation by facsimile. All actual and
reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) so incurred by Landlord
or Lender, together with interest thereon at the Default Rate
from the date of payment of the expense, shall constitute
Additional Rent payable by Tenant under this Lease and shall be
paid by Tenant to Landlord or Lender (as applicable) on demand.
Landlord and Tenant agree that, in the event of an emergency,
expenditures which might otherwise be unreasonable (such as
overtime) may nevertheless be reasonable under the circumstances.
(c) Tenant shall from time to time replace with other
similar operational equipment or parts any of the mechanical
systems or other equipment included in the Improvements which
shall have become worn out, obsolete or unusable for the purpose
for which it is intended, been taken by a Condemnation as
provided in Section 12, or been lost, stolen, damaged or
destroyed as provided in Section 14. Tenant shall repair at its
sole cost and expense all damage to the Leased Premises caused by
the removal of equipment or any other personal property of Tenant
at any time, including upon expiration or earlier termination of
this Lease.
10. Liens.
Tenant shall not, directly or indirectly, create or
permit to be created or to remain, and shall promptly discharge,
any lien on any of the Leased Premises, on the Basic Rent,
Additional Rent, Non-Rent Monetary Obligations or on any other
sums payable by Tenant under this Lease, other than the Mortgage
(and any assignment of leases, rents or profits collateral
thereto), the Permitted Encumbrances and any mortgage, lien,
encumbrance or other charge created by or resulting from any act
or omission by Landlord or those claiming by, through or under
Landlord. As permitted under Florida Section 713.10, Florida
Statutes, the interests of Landlord in the Leased Premises or the
improvements thereon, shall not be subject to liens for any
improvements made by or on behalf of the Tenant and it is
specifically provided that neither Tenant nor any one claiming
by, through or under Tenant, including, without limitation,
contractors, subcontractors, materialmen, mechanics and/or
laborers, shall have any right to file or place any mechanics' or
materialmen's liens of any kind whatsoever upon Landlord's
interest in the Leased Premises or the improvements thereon; and
any such liens are hereby specifically prohibited. All parties
with whom Tenant may deal are put on notice that Tenant has no
power to subject Landlord's interest to any mechanics' or
materialmen's lien of any kind or character for improvements made
by Tenant, and all such persons so dealing with Tenant must look
solely to the credit of Tenant, and not to Landlord's said
interest or assets. Tenant shall provide written notice to each
contractor, subcontractor, materialman, mechanic and/or laborer
performing work in the Leased Premises of the foregoing.
11. Alterations.
(a) Tenant shall not make any Alterations which would
result, after giving consideration to the completed alteration,
in a material diminution in the value of the Leased Premises
without Landlord's written consent. So long as there are no
Events of Default under this Lease, Tenant may make any other
Alterations without the prior written consent of the Landlord
provided such Alterations comply with all of the provisions of
the following sentence. All Alterations to Improvements shall be
performed in a good and workmanlike manner, and shall be
expeditiously completed in compliance with all Legal
Requirements, (i) all work done in connection with any such
Alteration shall comply with all Insurance Requirements, (ii)
Tenant shall promptly pay all costs and expenses of any such
Alteration, and shall discharge all liens filed against any of
the Leased Premises arising out of the same, (iii) Tenant shall
procure and pay for all permits and licenses required in
connection with any such Alteration, (iv) any Alteration the
estimated cost of which exceeds One Million ($1,000,000) Dollars
shall be made under the supervision of a licensed architect or
engineer in accordance with detailed plans and specifications
which shall be submitted to Landlord and Lender at least twenty
(20) days prior to the commencement of the Alterations, and (v)
any Alteration the estimated cost of which exceed Five Hundred
Fifty Thousand ($550,000.00) Dollars shall be secured by a
payment and performance bond issued by a company having a rating
of BBB or higher from Standard & Poor's. Upon completion of any
Alteration costing in excess of ($1,000,000), Tenant will provide
as-built plans and specifications or record drawings to Landlord
and Lender.
(b) Title to all Alterations that (a) are readily
removable without causing damage by more than a de minimis extent
to the Leased Premises, (b) will not reduce the value, useful
life or utility of the Leased Premises if removed, and (c) are
not required for the lawful use or occupancy of the Leased
Premises ("Severable Alterations") will vest in the Tenant. The
Landlord shall have the right, but not the obligation, to
purchase from the Tenant any or all such Severable Alterations
for their fair market value at the end of the Term.
(c) Title to all Alterations that are not Severable
Alterations, exclusive of Trade Fixtures ("Non-Severable
Alterations"), will immediately vest in the Landlord and become
subject to the Lease whether or not the cost thereof shall have
been paid or financed by or through the Landlord.
12. Condemnation.
(a) Immediately upon obtaining knowledge of the
institution of any proceeding for Condemnation, Tenant shall
notify Landlord and Lender thereof and Landlord and Lender shall
be entitled to participate in any Condemnation proceeding at
Tenant's expense. Landlord immediately upon obtaining knowledge
of the institution of any proceeding for Condemnation, shall
notify Tenant thereof and Tenant shall have the right to
participate in such proceedings at its own expense. Subject to
the provisions of this Section 12 and Section 15, Tenant hereby
irrevocably assigns to Lender or to Landlord, in that order, any
award or payment in respect of any Condemnation, except that
Tenant does not assign to Lender or to Landlord any award or
payment on account of Tenant's Trade Fixtures or other tangible
personal property, its leasehold interests (unless the lack of
such assignment of Tenant's leasehold interest would reduce the
award to Landlord had the leasehold interests been assigned to
Landlord), moving expenses, relocation and similar claims, if
available, to the extent Tenant shall have a right to make a
separate claim therefor against the condemnor; it being agreed,
however, that Tenant shall in no event be entitled to any payment
that reduces the award to which Landlord is or would be entitled
for the condemnation of the Leased Premises.
(b) If (i) the entire Leased Premises or (ii) at least
fifteen percent (15%) of the Leased Premises, the loss of which
even after restoration would, in Tenant's reasonable business
judgment, be substantially and materially adverse to the business
operations of Tenant, shall be the subject of a Taking by a duly
constituted authority or agency having jurisdiction, then Tenant
shall have the right, exercisable within thirty (30) days after
the Taking has occurred, to serve notice upon Landlord and Lender
("Tenant's Termination Notice") to terminate this Lease on any
Basic Rent Payment Date specified in such notice, which date (the
"Termination Date") shall be no sooner than the first Basic Rent
Payment Date occurring at least thirty (30) days after the date
of Tenant's Termination Notice and not later than the third Basic
Rent Payment Date occurring after the date of Tenant's
Termination Notice. In the event that during the initial term
Tenant shall serve such notice upon Landlord and Lender of its
intention to terminate this Lease on the Termination Date, Tenant
shall, as part of such notice, offer (which offer may be rejected
by Landlord and Lender as set forth below) to purchase the Leased
Premises and the award, or if no part of the Leased Premises
shall remain, the entire award for the applicable price computed
as of the Closing Date in accordance with the schedule annexed
hereto and marked Exhibit "C" (the "Purchase Price") plus all
other amounts which may be due and owing to Lender or Landlord by
reason of any default by Tenant in complying with its obligations
under this Lease (the "Additions to Purchase Price"). In the
event that the Tenant's Termination Notice is not accompanied by
the offer to purchase, such Tenant's Termination Notice shall be
deemed null and void. Landlord shall give notice accepting or
rejecting such offer to Tenant within thirty (30) days after the
giving of Tenant's Termination Notice. If Landlord shall not
elect to accept Tenant's said offer to purchase, this Lease shall
be terminated as above provided and the entire award made in the
Condemnation proceeding shall be paid to Lender, or if there is
no Lender, to Landlord; provided, however, Landlord's notice to
reject Tenant's said offer to purchase shall be void and of no
effect unless accompanied by the written notice of Lender to the
effect that Lender also elects not to accept Tenant's said offer
to purchase. Should said notices of Landlord and/or Lender
accepting or rejecting Tenant's said offer to purchase not be
served within said period of thirty (30) days, then and in that
event, the said offer shall be deemed accepted. In the event
that Landlord and Lender shall accept or be deemed to have
accepted Tenant's offer to purchase, title shall close and the
Purchase Price and Additions to Purchase Price shall be paid as
hereinafter provided and in such event Tenant shall be entitled
to and shall receive any and all awards then or thereafter made
in the Condemnation proceeding and Landlord shall assign or in
case of any award previously made, deliver to Tenant on the
Closing Date such award as may be made.
In the event Landlord and Lender shall accept Tenant's
offer to purchase, or be deemed to have accepted Tenant's offer,
any purchase pursuant to this Section 12(b) shall be in
accordance with the Purchase Procedure.
In the event that during any renewal term Tenant shall serve
Tenant's Termination Notice upon Landlord and Lender, this Lease
and the Term hereof shall terminate on the Termination Date. In
such event the entire award made in Condemnation proceeding shall
be retained by Lender or Landlord, in that order.
(c) In the event of any Condemnation of part of the
Leased Premises which does not result in a termination of this
Lease, the Net Award of such Condemnation shall be paid and
disbursed in accordance with the requirements of Section 15 and,
promptly after such Condemnation, Tenant shall commence and
diligently continue to perform the Restoration.
Upon the payment to Landlord or Lender of the Net Award
of a Taking which falls within the provisions of this
subparagraph (c), Landlord and Lender shall, to the extent
received, make that portion of the Net Award equal to the cost of
Restoration (the "Restoration Award") available to Tenant for
Restoration, in accordance with the provisions of Section 15, and
the balance remaining (the "net surplus award") shall be the
property of Lender or Landlord in that order. Following the
making of the condemnation award and on completion of the repairs
or alterations made by Tenant as herein provided, the monthly
installment of Basic Rent for each month during the remaining
term hereof, commencing with the lease payment for the month
after the month in which such construction is completed, shall be
reduced by an amount equal to one-twelfth (1/12th) of 8.80% of
the net surplus award paid to Lender or Landlord, in that order.
In the event of a Requisition of any of the Leased
Premises, Landlord shall apply the Net Award of such Requisition,
to the extent available, to the installments of Basic Rent,
Additional Rent, Non-Rent Monetary Obligations or other sums
payable by Tenant hereunder thereafter payable and Tenant shall
pay the balance remaining thereafter. Upon the expiration of the
Term, any portion of such Net Award that shall not previously
have been credited to Tenant on account of the Basic Rent,
Additional Rent, and Non-Rent Monetary Obligations shall be
retained by Landlord or Lender.
(d) Except with respect to an award or payment to
which Tenant is entitled pursuant to the foregoing provisions of
this Section 12, no agreement with any condemnor in settlement of
or under threat of any Condemnation shall be made by either
Landlord or Tenant without the written consent of the other, and
of Lender, if the Leased Premises are then subject to a Mortgage,
which consent shall not be unreasonably withheld or delayed
provided such award or payment is applied in accordance with this
Lease.
13. Insurance.
(a) Tenant shall maintain at its sole cost and expense
the following insurance on the Leased Premises:
(i) Insurance against loss or damage to the
Improvements under an All Risk Policy, which shall include flood
insurance to the extent applicable and which may contain such
self retention levels, exclusions and deductibles as are from
time to time customary or standard in the industry, in amounts to
prevent Landlord or Tenant from becoming a co-insurer under the
applicable policies (except in the case of earthquake insurance
coverage), and in any event in amounts not less than the actual
replacement cost of the Improvements (excluding footings and
foundations and parts of the Improvements which are not
insurable).
(ii) Contractual and commercial general liability
insurance against claims for bodily injury, death or property
damage occurring on, in or about any of the Leased Premises or
the Adjoining Property, which insurance shall be written on a so-
called occurrence basis," and shall provide minimum protection
with a combined single limit in an amount not less than Five
Million ($5,000,000) Dollars (or in such increased limits from
time to time to reflect declines from the date hereof in the
purchasing power of the dollar as Landlord may reasonably
request).
(iii) Worker's compensation insurance covering
all persons employed by Tenant on the Leased Premises in
connection with any work done on or about any of the Leased
Premises.
(b) The insurance required by Section 13(a) shall be
written by companies having a rating of BBB or higher from
Standard & Poor's. All companies providing insurance required by
Section 13(a) shall be authorized to do an insurance business in
the State or otherwise agreed to by Landlord and Lender. The
insurance policies shall be for a term of not less than one year,
and shall (except for worker's compensation insurance) name
Landlord, Tenant and any Lender as additional insured parties, as
their respective interests may appear. If said insurance or any
part thereof shall expire, be withdrawn, become void by breach of
any condition thereof by Tenant or should the insurer's claims-
paying ability decrease below investment grade as required above,
Tenant shall immediately obtain new or additional insurance
reasonably satisfactory to Landlord and Lender.
(c) Each insurance policy referred to above shall, to
the extent applicable, contain standard non-contributory
mortgagee clauses in favor of any Lender. As evidence of the
insurance specified in Section 13(a)(i), required to be
maintained by Tenant, Tenant shall deliver to Landlord an ACORD
27 Evidence of Property Insurance or other certificate providing
at least the same assurances (or, if limited by Legal
Requirements, then a certificate providing as many of the same
assurances as allowed by applicable law). As evidence of the
insurance specified in Section 13(a)(ii) and (iii), required to
be maintained by Tenant, Tenant shall deliver to Landlord an
ACORD 25 Certificate of Insurance or other certificate providing
at least the same assurances. Each policy required to be carried
by Tenant shall also provide that any loss otherwise payable
thereunder shall be payable notwithstanding (i) any act or
omission of Landlord, or Tenant which might, absent such
provision, result in a forfeiture of all or a part of such
insurance payment, (ii) any foreclosure or other action or
proceeding taken by any Lender pursuant to any provision of the
Mortgage upon the happening of an event of default therein, or
(iii) any change in title or ownership of any of the Leased
Premises.
(d) Tenant shall pay at least ten (10) Business Days
prior to cancellation all premiums for the insurance required by
this Section 13, shall renew or replace each policy and shall
deliver to Landlord and Lender, the appropriate assurances for
such renewals or replacements in accordance with the provisions
of this Section 13 at least ten (10) Business Days prior to
cancellation of the then-effective coverage. In the event of
Tenant's failure to maintain any of the insurance required by
this Section 13, Landlord or Lender shall be entitled to procure
such insurance. Any sums expended by Landlord or Lender in
procuring such insurance shall be Additional Rent and shall be
repaid by Tenant, together with interest thereon at the Default
Rate, from the time of payment by Landlord or Lender until fully
paid by Tenant immediately upon written demand therefor by
Landlord or Lender, as the case may be.
(e) Anything in this Section 13 to the contrary
notwithstanding, any insurance which Tenant is required to obtain
pursuant to Section 13(a) may be carried under a "blanket" policy
or policies covering other properties or liabilities of Tenant,
provided that such "blanket" policy or policies otherwise comply
with the provisions of this Section 13. In the event any such
insurance is carried under a blanket policy, Tenant shall deliver
to Landlord and Lender upon request a certified copy of those
provisions of the blanket policy that pertain to the Leased
Premises to evidence the issuance and effectiveness of the
policy, the amount and character of the coverage with respect to
the Leased Premises and the presence in the policy of provisions
of the character required in the above sections of this Section
13.
14. Damage, Destruction.
(a) In the event of any casualty loss exceeding
$500,000 as reasonably estimated by Tenant, Tenant shall give
Landlord and Lender immediate notice thereof. Tenant shall
adjust, collect by check made payable to the Trustee, except as
otherwise provided in Section 14(b), and compromise any and all
such claims, with the consent of Lender and Landlord, not to be
unreasonably withheld or delayed and Landlord and Lender shall
have the right to join with Tenant therein. All proceeds
pertaining to, or allocable to the Leased Premises (subject to
Section 14(b)) shall be paid to a Trustee which shall be a
federally insured bank or other financial institution, selected
by Landlord and Tenant and reasonably satisfactory to Lender (the
"Trustee"). If the Leased Premises shall be covered by a
Mortgage, Lender, if it so desires, shall be the Trustee. Each
insurer is hereby authorized and directed upon the occurrence and
during the continuance of an Event of Default to make payment
under said policies directly to such Trustee instead of to
Landlord and Tenant jointly.
(b) All insurance proceeds received for business
interruption loss and proceeds received in connection with
continuation of business after an event of casualty loss (i.e.,
such as compensation for salaries of employees who might be
displaced by such casualty and/or the resulting Restoration)
shall be payable directly to Tenant and not to the Trustee.
(c) In the event of any casualty (whether or not
insured against) resulting in damage to the Leased Premises or
any part thereof, the Term shall nevertheless continue and there
shall be no abatement or reduction of Basic Rent, Additional
Rent, Non-Rent Monetary Obligations or any other sums payable by
Tenant hereunder. The Net Proceeds of such insurance payment
shall be retained by the above-mentioned Trustee and, promptly
after such casualty, Tenant shall commence and diligently
continue to perform the Restoration to the Leased Premises. Upon
payment to the Trustee of such Net Proceeds, the Trustee shall,
to the extent available, make the Net Proceeds available to
Tenant for restoration, in accordance with the provisions of
Section 15. Tenant shall, whether or not the Net Proceeds are
sufficient for the purpose, promptly repair or replace the
Improvements as nearly as possible to their value and condition
and character immediately prior to such event and otherwise in
accordance with all Insurance Requirements and Legal Requirements
and the provisions of this Lease (including Tenant's making any
desired Alterations allowed hereunder) and the Net Proceeds of
such loss shall thereupon be payable to Tenant, subject to the
provisions of Section 15 hereof.
(d) In the event that any damage or destruction shall
occur at such time as Tenant shall not have maintained insurance
in accordance with Section 13(a)(i), Tenant shall pay to the
Trustee the amount of the proceeds that would have been payable
had such insurance program been in effect (the "Tenant Insurance
Payment").
15. Restoration.
The Net Proceeds and Tenant Insurance Payment (the
aggregate estimated amount of which and any interest thereon
being herein defined as the "Restoration Fund") paid to the
Trustee shall be disbursed by the Trustee in accordance with the
following conditions:
(a) At the time of any disbursement, no Event of
Default shall exist and no mechanics' or materialmen's liens
shall have been filed and remain undischarged and unbonded.
(b) If the cost of Restoration exceeds $500,000, prior
to commencement of the Restoration, the architects, contracts,
contractors and plans and specifications for the Restoration
shall have been approved by Landlord and Lender, which approval
shall not be unreasonably withheld or delayed.
(c) Each request for disbursement shall be accompanied
by a certificate of Tenant, signed by the President, Treasurer or
any Vice President of Tenant, describing the completed work for
which payment is requested, stating the cost incurred in
connection therewith and stating that Tenant has not previously
received payment for such work and the certificate to be
delivered by Tenant upon completion of the work shall, in
addition, state that the work has been completed and complies
with the applicable requirements of this Lease and all Legal
Requirements and Insurance Requirements.
(d) Disbursements shall be made from time to time in
an amount not exceeding the cost of the work completed since the
last disbursement upon receipt by Landlord and Lender of (1)
satisfactory evidence, including architects' certificates, of the
stage of completion, of the estimated cost of completion and of
performance of the work to date in a good and workmanlike manner
in accordance with the contracts and plans and specifications
approved by Landlord and Lender, (2) waivers of liens, (3) a
satisfactory bring down of title insurance, and (4) other
evidence of cost and payment so that Landlord can verify that the
amounts disbursed from time to time are represented by work that
is completed in place and free and clear of mechanics' liens and
mechanics' lien enforcement actions.
(e) The Trustee, at Landlord's or Lender's election,
shall retain ten (10%) percent from each disbursement of the
Restoration Fund (such 10% retainage requirement shall be reduced
for all amounts required to be retained by owner pursuant to the
construction contracts for such Restoration) until the
Restoration is fully completed and the Leased Premises are
available for their intended use, in the reasonable judgment of
the Lender, including the issuance of any necessary certificate
of occupancy.
(f) The Restoration Fund shall be kept in a separate
interest-bearing account federally insured to the extent
applicable by the Trustee or by Lender.
Prior to commencement of Restoration and at any time
during Restoration, if the estimated cost of Restoration, as
reasonably determined by Landlord or Lender, exceeds the amount
of the Restoration Fund, the amount of such excess shall be paid
by Tenant to the Trustee to be added to the Restoration Fund
prior to any further disbursement or Tenant shall fund at its own
expense the costs of such Restoration until the remaining
Restoration Fund is, or will be, sufficient for the completion of
the Restoration. In no event shall Tenant be required to pay
into the Restoration Fund an amount greater than the difference
between the estimated cost of Restoration and the total estimated
proceeds from insurance. Except for the payment to Landlord or
Lender of the net surplus award, referred to in Section 12(c),
any sum in the Restoration Fund which remains in the Restoration
Fund upon the completion of Restoration (including interest
earned) shall be paid to Tenant. For purposes of determining the
source of funds with respect to the disposition of funds
remaining after the completion of Restoration, the Net Proceeds
or the Restoration Award shall be deemed to be disbursed prior to
any amount added by Tenant.
If Tenant does not diligently pursue the completion of
the Restoration to the satisfaction of Landlord, Landlord shall
have the right to give written notice to Tenant, which notice
shall specify the exact reason(s) Landlord maintains that Tenant
is not pursuing the completion of the Restoration (the
"Restoration Notice"). Upon receipt of the Restoration Notice,
Tenant shall have thirty (30) days to either: (i) cure the
deficiencies specified in the Restoration Notice, or if such
deficiency cannot be cured within such period of thirty (30)
days, such period shall be extended for such longer time as
reasonably necessary provided that Tenant has commenced to cure
such deficiency within said period of thirty (30) days and is
actively, diligently and in good faith proceeding with continuity
to remedy such failure; or (ii) demonstrate to Landlord in
writing, with sufficient supporting documentation attached, that
to the extent that Tenant is not hampered by a legal impediment
not caused by Tenant (which shall include, without limitation,
delays or stoppages caused by delays in the permitting process).
Tenant is actively, diligently, and in good faith proceeding with
continuity to complete the Restoration. If Tenant fails to do
either of the preceding within such thirty (30) day period,
Trustee shall pay the balance of the Restoration Fund to Lender
to satisfy, in whole or in part, the Loan. In such event, any
sum which remains in the Restoration Fund upon the satisfaction
of the Loan shall be paid to Landlord.
16. Subordination to Financing
(a) Subject to the following provisions of this
Section 16(a), Tenant agrees that this Lease shall, upon
Landlord's and Lender's (if any) written request, be subject and
subordinate to the lien of any Mortgage, and Tenant agrees, upon
demand, without cost, to execute instruments as may be required
to further effectuate or confirm such subordination, in form and
substance reasonably satisfactory to Landlord, provided that
Lender shall provide Tenant with a written non-disturbance
agreement in form and substance reasonably satisfactory to Tenant
confirming that: (i) so long as no Event of Default shall be
outstanding, Tenant's tenancy shall not be disturbed, (ii) nor
shall this Lease, or any and all modifications or amendments
thereto as then in effect, be affected by any default under such
Mortgage (other than a default that relates to a default under
this Lease), (iii) in the event of a foreclosure or other
enforcement of any such Mortgage, or sale in lieu thereof, the
purchaser at such foreclosure sale or pursuant to a deed in lieu
thereof shall be bound to Tenant for the Term of this Lease and
any extensions thereof, the rights of Tenant hereunder shall
expressly survive, and this Lease shall in all respects continue
in full force and effect so long as no Event of Default by Tenant
has occurred and is continuing, and (iv) so long as no Event of
Default by Tenant has occurred and is continuing, Tenant shall
not be named as a party defendant in any such foreclosure suit,
except as may be required by Legal Requirements. Any Mortgage to
which this Lease is now or hereafter subordinate shall provide,
in effect, that during the time this Lease is in force all
insurance proceeds and condemnation awards shall be paid as
provided in this Lease or used for restoration as provided in
this Lease.
(b) Notwithstanding the provisions of subdivision (a)
of this Section 16, the holder of the Mortgage to which this
Lease is subject and subordinate, as provided in said subdivision
(a), shall have the right, at its sole option, at any time, to
subordinate and subject the Mortgage, in whole or in part, to
this Lease by recording a unilateral declaration to such effect.
(c) At any time prior to the expiration of the Term,
Tenant agrees, at the election and upon demand of any owner of
the Leased Premises, or of Lender who has granted non-disturbance
to Tenant pursuant to Section 16(a) above, to attorn, from time
to time, to any such owner or Lender, upon the then executory
terms and conditions of this Lease, for the remainder of the term
originally demised in this Lease and for any renewal term. The
provisions of this subdivision (c) shall inure to the benefit of
any such owner or Lender, shall apply notwithstanding that, as a
matter of law, this Lease may terminate upon the foreclosure of
the Mortgage, shall be self-operative upon any such demand, and
no further instrument shall be required to give effect to said
provisions.
(d) Each of Tenant and Landlord agrees that, if
requested by the other, each shall, without charge, enter into
(i) a Subordination, Non-Disturbance and Attornment Agreement
reasonably requested by Lender, provided such agreement contains
provisions relating to non-disturbance in accordance with the
provisions of subparagraph (a), and (ii) an agreement with Lender
whereby Tenant shall agree for the benefit of Lender that Tenant
will not, without in each case the prior written consent of
Lender, which shall not be unreasonably withheld, conditioned or
delayed, (a) amend, modify, cancel or surrender the term of this
Lease except as expressly permitted by the provisions of this
Lease, or enter into any agreement with Landlord so to do, or (b)
pay any installment of Basic Rent more than one (1) month in
advance of the due date thereof or otherwise than in the manner
provided for in this Lease.
(e) At any time after Landlord has advised Tenant of
the existence of a "Lender" hereunder, and before such Lender has
confirmed to Tenant that the lien of its Mortgage has been
released, Tenant shall not (and shall not be obligated, even upon
the request of Landlord, to) execute any agreement or document
purporting to subordinate this Lease to the lien of any mortgage
or deed of trust other than the Mortgage held by Lender.
17. Assignment; Subleasing.
(a) Tenant (or Tenant's wholly-owned subsidiary or an
entity controlled by or in common control with Tenant) is
currently in occupancy and is operating its business at the
Leased Premises. Tenant may assign its interest in this Lease or
sublease any portion(s) of the Leased Premises without the prior
written consent of Landlord. In the event of an assignment or
sublease to an entity not affiliated with the Tenant involving
greater than thirty-three percent (33%) of the Leased Premises,
Tenant shall give Notice to Landlord of such assignment or
sublease by providing an executed copy of each such assignment or
sublease, as the case may be. No sublease under, or assignment
of this Lease shall relieve Tenant of its obligations hereunder,
which shall continue as the obligations of a principal and not as
the obligations of a surety or a guarantor. The joint and
several liability of Tenant named herein and any immediate and
remote successor in interest of Tenant (by assignment or
otherwise), and the due performance of the obligations of this
Lease on Tenant's part to be performed or observed, shall not in
any way be discharged, released or impaired by any (i) agreement
which modifies any of the rights or obligations of the parties
under this Lease, (ii) stipulation which extends the time within
which an obligation under this Lease is to be performed, (iii)
waiver of the performance of an obligation required under this
Lease, or (iv) failure to enforce any of the obligations set
forth in this Lease, unless in each case, the same has been
consented to by Landlord and Lender.
(b) Each sublease of the Leased Premises or any part
thereof shall be subject and subordinate to the provisions of
this Lease. Tenant agrees that in the case of an assignment,
Tenant shall, not less than ten (10) days prior to the execution
and delivery of any such assignment as described in this Section
17(b), give notice of such assignment to Landlord and Lender.
Tenant further agrees that in the case of such assignment, Tenant
shall, within fifteen (15) days after the execution and delivery
of any such assignment, deliver to Landlord and Lender (i) a
duplicate original of such assignment in recordable form and (ii)
an agreement executed and acknowledged by the assignee in
recordable form wherein the assignee shall agree to assume and
agree to observe and perform all of the applicable terms and
provisions of this Lease on the part of the Tenant to be observed
and performed from and after the date of such assignment, and, in
the case of a sublease, Tenant shall, within fifteen (15) days
after the execution and delivery of such sublease, deliver to
Landlord and Lender a duplicate original of such sublease.
(c) Upon the occurrence of an Event of Default under
this Lease, Landlord shall have the right to collect and enjoy
all rents and other sums of money payable under any sublease of
any of the Leased Premises, and Tenant hereby irrevocably and
unconditionally assigns such rents and money to Landlord, which
assignment may be exercised upon and after (but not before) the
occurrence of an Event of Default, taking into account any
applicable cure periods.
(d) Any sublease shall provide that upon notice from
Landlord and/or Lender of an Event of Default, all rent due under
such sublease shall be paid as so directed. In the event
Landlord and/or Lender give such notice under such sublease and
Tenant is not then in default under this Lease, then Tenant shall
have the right to withhold rent payments due under this Lease in
amounts totaling the amount of rent actually paid under such
sublease as such was directed. In no event shall Landlord or
Lender have the right to direct the payment of sublease rents to
any party other than Tenant except in an aggregate amount equal
to or less than the aggregate amounts due hereunder.
18. Permitted Contests.
(a) Notwithstanding any provision of this Lease to the
contrary, after prior written notice to Landlord and Lender,
Tenant shall not be required to (i) pay any Tax, (ii) comply with
any Legal Requirement, or (iii) discharge or remove any lien, so
long as Tenant shall contest, in good faith and at its expense,
the existence, the amount or the validity thereof, the amount of
the damages caused thereby, or the extent of its or Landlord's
liability therefor, by appropriate proceedings which shall
operate during the pendency thereof to prevent (v) the collection
of, or other realization upon, the Tax or lien so contested, (w)
the sale, forfeiture, attachment or loss of any of the Leased
Premises, any Basic Rent, Additional Rent, or Non-Rent Monetary
Obligations to satisfy the same or to pay any damages caused by
the violation of the same, (x) any interference with the use or
occupancy of any of the Leased Premises, (y) any interference
with the payment of any Basic Rent, Additional Rent, or Non-Rent
Monetary Obligations, and (z) the cancellation of any fire or
other insurance policy. In no event shall Tenant pursue any
contest with respect to any Tax, Legal Requirement, or lien
referred to above in such manner that exposes Landlord, Tenant or
Lender, to any criminal or civil liability, penalty or sanction.
Tenant shall provide Lender or Landlord in that order, as
security for such contest, an amount of cash or bond equal to
125% of the amount being contested, or other security
satisfactory in the reasonable opinion of Lender or Landlord in
that order, in assuring the payment, compliance, discharge,
removal or other action, including all costs, attorneys' fees,
interest and penalties, in the event that the contest is
unsuccessful. No such security shall be required if the amount
involved in the contest shall not exceed one tenth (1/10th) of
one percent (1%) of the tangible net worth of Tenant, computed in
accordance with generally accepted accounting principles
consistently applied, as determined by its most recent publicly
filed financial statements (10Q and 10K) if Tenant is a publicly
held company. While any such proceedings are pending and the
required security is held by Lender or Landlord, in that order,
Lender or Landlord, as the case may be, shall not have the right
to pay, remove or cause to be discharged the Tax, Legal
Requirement or lien thereby being contested unless Landlord or
Lender reasonably believes that any one or more of the conditions
in subdivisions (v) through (z) shall not be prevented during the
pendency of the contest. Tenant further agrees that each such
contest shall be promptly and diligently prosecuted to a final
conclusion, except that Tenant shall, so long as all of the
conditions of the first sentence of this Section 18 are at all
times complied with, have the right to attempt to settle or
compromise such contest through negotiations. Tenant shall pay
any and all judgments, decrees and costs (including all
attorneys' fees and expenses) in connection with any such contest
and shall, promptly after the final determination of such
contest, fully pay and discharge the amounts which shall be
levied, assessed, charged or imposed or be determined to be
payable therein or in connection therewith, together with all
penalties, fines, interest, costs and expenses thereof or in
connection therewith, and perform all acts the performance of
which shall be ordered or decreed as a result thereof. Upon such
payment, any cash deposit shall be refunded and any outstanding
bond shall be terminated.
(b) Upon receipt of any supplemental bill, notice, or
similar communication in connection with a property tax
reassessment relating to the Leased Premises (in each such
instance, a "Reassessment Claim"), Landlord shall within three
(3) Business Days provide Notice of such Reassessment Claim to
Tenant. Tenant shall have the right to directly discuss with,
negotiate with, or otherwise communicate with any governmental
authority or agency in connection with such a Reassessment Claim.
If a power of attorney is required by any governmental authority
or agency to allow Tenant to contest such Reassessment Claim,
Landlord shall provide Tenant with a properly executed power of
attorney.
Tenant shall have the right to contest the amount or
validity of any such Reassessment Claim by appropriate legal or
administrative proceedings, conducted in good faith and with due
diligence, provided that (a) Tenant complies with the provisions
of Section 18(a) with respect thereto, (b) the foregoing shall in
no way be construed as relieving, modifying or extending Tenant's
obligation to pay any Reassessment Claim as finally determined,
and (c) no part of the Leased Premises shall be in any immediate
danger of sale, forfeiture, attachment or loss. Landlord agrees
to join in any such proceedings if required legally to prosecute
such contest, provided that Landlord shall not thereby be
subjected to any liability therefor (including, without
limitation, for the payment of any costs or expenses in
connection therewith) unless Tenant agrees by agreement in form
and substance reasonably satisfactory to Landlord, to assume and
indemnify Landlord with respect to the same.
19. Default.
The occurrence of any one or more of the following
events shall constitute an Event of Default under this Lease:
(a) Tenant's failure to make any payment of Basic Rent
when due which continues unremedied for a period of three (3)
days, provided, however, Tenant shall not be entitled to an
opportunity to cure such default if Tenant has failed to make
Basic Rent payments on two (2) or more occasions within the
previous twelve (12) month period.
(b) Tenant's failure to make payment of Additional
Rent, Non-Rent Monetary Obligations or other sum herein required
to be paid by Tenant and such default shall continue for a period
of ten (10) days after notice by Landlord or Lender to Tenant.
(c) Tenant's failure to duly perform and observe, or
Tenant's violation or breach of, any other provision hereof if
such failure shall continue for a period of thirty (30) days
after notice thereof from Landlord or Lender, or if such failure
cannot be cured within such period of thirty (30) days, such
period shall be extended for such longer time as reasonably
necessary provided that Tenant has commenced to cure such default
within said period of thirty (30) days and is actively,
diligently and in good faith proceeding with continuity to remedy
such failure. Tenant agrees that after receiving any such notice
of default referred to above in this subparagraph (c), Tenant
shall, upon request of Landlord or Lender, advise the requesting
party of Tenant's progress in curing such default.
(d) Tenant shall (i) voluntarily be adjudicated a
bankrupt or insolvent, or (ii) consent to the appointment of a
receiver or trustee for itself or for any of the Leased Premises,
(iii) file a petition seeking relief under the bankruptcy or
other similar laws of the United States, any state or any
jurisdiction, or (iv) make a general assignment for the benefit
of creditors.
(e) A court shall enter an order, judgment or decree
appointing a receiver or trustee for it or for any of the Leased
Premises or approving a petition filed against Tenant which seeks
relief under the bankruptcy or other similar laws of the United
States, any state or any jurisdiction, and such order, judgment
or decree shall remain in force, undischarged or unstayed sixty
days after it is entered.
(f) Tenant shall in any insolvency proceedings be
liquidated or dissolved or shall begin proceedings towards its
liquidation or dissolution.
(g) The estate or interest of Tenant in any of the
Leased Premises shall be levied upon or attached in any
proceeding and such estate or interest is about to be sold or
transferred or such process shall not be vacated or discharged
within sixty (60) days after such levy or attachment.
20. Landlord's Remedies.
After the occurrence of an Event of Default by Tenant,
Landlord shall have the right to exercise the following remedies:
(a) Landlord may, at its option, continue this Lease
in full force and effect, without terminating Tenant's right to
possession of the Leased Premises, in which event Landlord shall
have the right to collect Basic Rent, Additional Rent, and Non-
Rent Monetary Obligations when due. In the alternative.
Landlord shall have the right to peaceably re-enter the Leased
Premises on the terms set forth in subparagraph (b) below, but
without such re-entry being deemed a termination of the Lease or
an acceptance by Landlord of a surrender thereof. Landlord shall
also have the right, at its option, from time to time, without
terminating this Lease, to relet the Leased Premises, or any part
thereof, with or without legal process, as the agent, and for the
account, of Tenant upon such terms and conditions as Landlord may
deem advisable (which terms may be materially different from the
terms of this Lease), in which event the rents received on such
reletting shall be applied (i) first to the reasonable and actual
expenses of such reletting and collection, including without
limitation necessary renovation and alterations of the Leased
Premises, reasonable and actual attorneys' fees and any
reasonable and actual real estate commissions paid, and (ii)
thereafter toward payment of all sums due or to become due
Landlord hereunder. If a sufficient amount to pay such expenses
and sums shall not be realized or secured, then Tenant shall pay
Landlord any such deficiency monthly, and Landlord may bring an
action therefor as such monthly deficiency shall arise. Landlord
shall not, in any event, be required to pay Tenant any sums
received by Landlord on a reletting of the Leased Premises in
excess of the rent provided in this Lease, but such excess shall
reduce any accrued present or future obligations of Tenant
hereunder. Landlord's re-entry and reletting of the Leased
Premises without termination of this Lease shall not preclude
Landlord from subsequently terminating this Lease as set forth
below.
(b) Landlord may terminate this Lease by written
notice to Tenant specifying a date therefor, which shall be no
sooner than thirty (30) days following notice to Tenant, and this
Lease shall then terminate on the date so specified as if such
date had been originally fixed as the expiration date of the
Term. In the event of such termination, Landlord shall be
entitled to recover from Tenant the worth at the time of the
award of all of the following:
(i) Any obligation which has accrued prior to the
date of termination, plus,
(ii) The amount of unpaid Basic Rent and all other
charges which would have accrued after termination until the time
of award, plus,
(iii) The amount of unpaid rent for the
balance of the Term (excluding any option periods or portions
thereof not previously exercised).
As used in this Section 20(b) the term, "worth at the time of the
award", shall be computed by allowing simple interest at the
Default Rate for past due obligations, and employing a discount
rate equal to 8.5% on anticipated future obligations, on the
amount of the obligations payable on the date of such
calculation. In the event this Lease shall be terminated as
provided above, by summary proceedings or otherwise, Landlord,
its agents, servants or representatives may immediately or at any
time thereafter peaceably re-enter and resume possession of the
Leased Premises and remove all persons and property therefrom, by
summary dispossession proceedings.
(c) Intentionally Deleted.
(d) Landlord may recover from Tenant, and Tenant shall
pay to Landlord upon demand, as Additional Rent, such reasonable
and actual expenses as Landlord may incur in recovering
possession of the Leased Premises, placing the same in good order
and condition and repairing the same for reletting, and all other
reasonable and actual expenses, commissions and charges incurred
by Landlord in exercising any remedy provided herein or as a
result of any Event of Default by Tenant hereunder (including
without limitation attorneys' fees).
Except as provided in Section 9(b) or 13(e), at any time upon
prior notice to Tenant, Landlord and Lender shall have the right,
but shall not be required, to pay such sums or do any act which
requires the expenditure of monies which may be necessary or
appropriate by reason of the failure or neglect of Tenant to
comply with any of its obligations under this Lease (Landlord and
Lender shall not, however, exercise any such rights unless the
failure or neglect shall have ripened into an Event of Default),
and in the event of the exercise of such right by Landlord or
Lender, Tenant agrees to pay to Landlord or Lender forthwith upon
demand, as Additional Rent, all such sums including reasonable
attorneys fees, together with interest thereon at the Default
Rate.
(e) The various rights and remedies reserved to
Landlord herein are cumulative, the rights and remedies described
in Section 20(a)-(d) shall survive termination of this Lease and
Landlord may pursue any and all such rights and remedies and any
other available to Landlord under applicable law or equity,
whether at the same time or otherwise (to the extent not
inconsistent with specific provisions of this Lease); provided,
however, that no remedy of termination shall be available to
Landlord except as expressly set forth in Section 20(b) after the
occurrence of an Event of Default. Notwithstanding anything
herein to the contrary, Landlord expressly waives its right to
forcibly dispossess Tenant from the Leased Premises, whether
peaceably or otherwise, without judicial process, such that
Landlord shall not be entitled to any "commercial lockout" or any
other provisions of applicable law which permit landlords to
dispossess tenants from commercial properties without the benefit
of judicial review.
21. Notices.
All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications
required or permitted to be given pursuant to the provisions of
this Lease (collectively "Notice" or "Notices") shall be in
writing and shall be deemed to have been given for all purposes
(i) three (3) days after having been sent by United States mail,
by registered or certified mail, return receipt requested,
postage prepaid, addressed to the other party at its address as
stated below, (ii) one (1) day after having been sent by Federal
Express or other nationally recognized air courier service, to
the Addresses stated below or (iii) one (1) day after having been
transmitted via facsimile, provided that a conforming signed
original is mailed to the party to receive the notice on the date
it is transmitted:
(a) If to Landlord, at the address set forth on the
first page of this Lease. Notice to be delivered to Landlord via
facsimile shall be transmitted to (214) 696-9845.
(b) If to Tenant, at the address set forth on the
first page of this Lease, Attention: Office of General Counsel.
Notices to be given to Tenant via facsimile shall be transmitted
to the attention of: William B. May at (714) 773-7936.
If any Lender shall have advised Tenant by Notice in
the manner aforesaid that it is the holder of a Mortgage and
stating in said Notice its address for the receipt of Notices,
then simultaneously with the giving of any Notice by Tenant to
Landlord, Tenant shall serve one or more copies of such Notice
upon Lender in the manner aforesaid and no Notice shall be
effective unless and until Lender shall be sent a copy thereof.
For the purposes of this paragraph, any party may substitute its
address by giving fifteen days' notice to the other party in the
manner provided above.
22. Memorandum of Lease; Estoppel Certificates.
(a) Each party shall, upon the request of the other
party, execute, deliver and record, file or register from time to
time all such instruments as may be required by any present or
future law in order to evidence the respective interests of
Landlord and Tenant in any of the Leased Premises, and shall
cause a memorandum of this Lease, and any supplement hereto or to
such other instrument, if any, as may be appropriate, to be
recorded, filed or registered and re-recorded, refiled or re-
registered in such manner and in such places as may be required
by any present or future law in order to give public notice and
protect the validity of this Lease. In the event of any
discrepancy between the provisions of said recorded memorandum of
this Lease or any other recorded instrument referring to this
Lease and the provisions of this Lease, the provisions of this
Lease shall prevail.
(b) Landlord, Lender and Tenant shall, at any time and
from time to time, upon not less than twenty (20) days' prior
written request by the other (or, in the case of an estoppel
certificate requested of either, upon not less than twenty (20)
days' prior written request of Lender), execute, acknowledge and
deliver to the other a statement in writing, executed by Landlord
or Tenant by, a President, Vice President or authorized general
partner, principal officer or agent thereof certifying (i) that
this Lease is unmodified and in full effect (or, if there have
been modifications, that this Lease is in full effect as
modified, setting forth such modifications), (ii) the dates to
which Basic Rent payable hereunder has been paid, (iii) that to
the knowledge of the party executing such certificate, no default
by either Landlord or Tenant exists hereunder or specifying each
such default of which such party may have knowledge; (iv) the
remaining Term hereof; (v) with respect to a certificate signed
by Tenant, that to the knowledge of the party executing such
certificate, there are no proceedings pending or threatened
against Tenant before or by any court or administrative agency
which if adversely decided would materially and adversely affect
the financial condition and operations of Tenant or if any such
proceedings are pending or threatened to said party's knowledge,
specifying and describing the same; (vi) with respect to a
certificate signed by Tenant, that no rent has been paid under
the Lease for more than one (1) month in advance; and (vii) with
respect to a certificate signed by Tenant, that to Tenant's
knowledge Tenant is in full compliance with all Federal, State
and local laws, ordinances, rules and regulations affecting its
use of the Leased Premises, including but not limited to the
handling, storage and disposal of hazardous and/or toxic
materials used or generated as a result of its business conducted
on or about the Leased Premises. It is intended that any such
statements may be relied upon by Lender, the recipient of such
statements or their assignees or by any prospective mortgagee,
purchaser, assignee or subtenant of the Leased Premises.
23. Surrender and Holding Over.
Upon the expiration or earlier termination of this
Lease, Tenant shall peaceably leave and surrender the Leased
Premises (except as to any portion thereof with respect to which
this Lease has previously terminated) to Landlord in the same
condition in which the Leased Premises were originally received
from Landlord at the commencement of this Lease, except as to any
repair or Alteration as permitted or required by any provision of
this Lease, and except for ordinary wear and tear and damage by
fire, casualty or condemnation but only to the extent Tenant is
not required to repair the same hereunder. Tenant may remove at
Tenant's sole cost and expense from the Leased Premises on or
prior to such expiration or earlier termination Tenant's Trade
Fixtures and personal property which are owned by Tenant or third
parties other than Landlord, and Tenant at its expense shall, on
or prior to such expiration or earlier termination, repair any
damage caused by such removal. Tenant's Trade Fixtures and
personal property not so removed at the end of the Term or within
fifteen (15) days after the earlier termination of the Term for
any reason whatsoever shall become the property of Landlord, and
Landlord may thereafter cause such property to be removed from
the Leased Premises. Landlord shall not in any manner or to any
extent be obligated to reimburse Tenant for any property which
becomes the property of Landlord as a result of such expiration
or earlier termination. Upon such expiration or earlier
termination, no party shall have any further rights or
obligations hereunder except as specifically provided herein.
Any holding over by Tenant of the Leased Premises after
the expiration or earlier termination of the term of this Lease
or any extensions thereof, with the consent of Landlord, shall
operate and be construed as tenancy from month to month only, at
one hundred fifty percent (150%) of the Basic Rent reserved
herein and upon the same terms and conditions as contained in
this Lease. Notwithstanding the foregoing, any holding over
without Landlord's consent shall entitle Landlord, in addition to
collecting Basic Rent at a rate of one hundred fifty percent
(150%) thereof, to exercise all rights and remedies provided by
law or in equity, including the remedies of Section 20.
24. No Merger of Title.
There shall be no merger of this Lease nor of the
leasehold estate created by this Lease with the fee estate in or
ownership of any of the Leased Premises by reason of the fact
that the same person, corporation, firm or other entity may
acquire or hold or own, directly or indirectly, (i) this Lease or
the leasehold estate created by this Lease or any interest in
this Lease or in such leasehold estate and (ii) the fee estate or
ownership of any of the Leased Premises or any interest in such
fee estate or ownership. No such merger shall occur unless and
until all persons, corporations, firms and other entities having
any interest in (x) this Lease or the leasehold estate created by
this Lease and (y) the fee estate in or ownership of the Leased
Premises including, without limitation, Lender's interest
therein, or any part thereof sought to be merged shall join in a
written instrument effecting such merger and shall duly record
the same.
25. Landlord and Lender Exculpation.
Anything contained herein to the contrary
notwithstanding, any claim based on or in respect of any
liability of Landlord under this Lease shall be enforced only
against the Landlord's interest in Leased Premises and shall not
be enforced against the Landlord individually or personally.
Tenant agrees that any assignment by Landlord to Lender of
Landlord's interest in this Lease, or the rent, payable
hereunder, whether absolute or conditional in nature or
otherwise, whether such assignment is made to the Lender solely
as additional collateral related to a mortgage or otherwise, and
the acceptance thereof by Lender shall never be treated as an
assumption by Lender of any obligations of Landlord hereunder
unless Lender shall, by notice sent to Tenant, specifically
elect, and that Lender shall be treated as having assumed
Landlord's obligations hereunder only upon purchase of the Leased
Premises pursuant to foreclosure of the Mortgage or by deed in
lieu thereof, or other conveyance and then only subject to the
limitations set forth in the first sentence hereof.
26. Hazardous Substances.
(a) Tenant represents and warrants that it will not
on, about, or under the Leased Premises, use, permit, make, treat
or dispose of any "hazardous substances" as that term is defined
in the Comprehensive Environmental Response, Compensation and
Liability Act, and the rules and regulations promulgated pursuant
thereto, as from time to time amended, 42 U.S.C. Section 9601 et
seq. (the "Act") or any Hazardous Materials (as hereinafter
defined), but the foregoing shall not prevent the use, to the
extent necessary and customary in the normal conduct of Tenant's
business, of any such substances in accordance with all Legal
Requirements and Tenant represents and warrants that it will at
all times comply with the Act and any other federal, state or
local laws, rules or regulations governing hazardous substances
or Hazardous Materials. Hazardous Materials as used herein shall
include, without limitation, all chemicals, petroleum, crude oil
or any fraction thereof, hydrocarbons, polychlorinated biphenyls
(PCBs), asbestos, asbestos-containing materials and/or products,
urea formaldehyde, or any substances which are classified as
"hazardous" or "toxic" under the Act; hazardous waste as defined
under the Solid Waste Disposal Act, as amended 42 U.S.C. Section
6901; air pollutants regulated under the Clean Air Act, as
amended, 42 U.S.C. Section 7401, et seq.; pollutants as defined
under the Clean Water Act, as amended, 33 U.S.C. Section 1251, et
seq., any pesticide as defined by Federal Insecticide, Fungicide,
and Rodenticide Act, as amended, 7 U.S.C. Section136, et seq.,
any hazardous chemical substance or mixture or imminently
hazardous substance or mixture regulated by the Toxic Substances
Control Act, as amended, 15 U.S.C. Section 2601, et seq., any
substance listed in the United States Department of
Transportation Table at 45 CFR 172.101; any chemicals included in
regulations promulgated under the above listed statutes or any
modifications thereof or successor statutes thereto; any
explosives, radioactive material, and any chemical regulated by
state statutes similar to the federal statutes listed above and
regulations promulgated under such state statutes. Landlord
shall, upon the request of Tenant, promptly execute all permits
or such other instruments as may be required by Legal
Requirements, the Act, the federal statutes listed above or
similar state statutes to be executed by the owner of the
property, provided such documents are in form and substance
reasonably satisfactory to Landlord.
(b) To the extent required by the Act and/or any other
Legal Requirements, Tenant shall remove any hazardous substances
(as defined in the Act) and Hazardous Materials (as defined
above) whether now or hereafter existing on, about or under the
Leased Premises and whether or not arising out of or in any
manner connected with Tenant's occupancy of the Leased Premises
during the Initial Term or any extension or renewal Term thereof.
Tenant shall and hereby does agree to defend, indemnify and hold
Lender and Landlord, their officers, directors, shareholders,
partners and employees harmless from and against any and all
causes of actions, suits, demands or judgments of any nature
whatsoever, losses, damages, penalties, expenses, fees, claims,
costs (including response and remedial costs), and liabilities,
including, but not limited to, attorneys fees and costs of
litigation, arising out of or in any manner connected with (i)
the violation of and liability under any environmental Legal
Requirements with respect to the Leased Premises; and (ii) the
"release" or "threatened release" of or failure to remove, as
required by this Section 26, "hazardous substances" (as defined
in the Act) and Hazardous Materials (as defined above) on, about
or under the Leased Premises or any portion or portions thereof,
now or hereafter existing during the Initial Term and any
extension or renewal Term whether or not arising out of or in any
manner connected with Tenants' occupancy of the Leased Premises
during the Initial Term or any extension or renewal Term. The
obligations of Tenant under this Section 26(b) shall survive any
termination of this Lease.
(c) The Tenant represents, warrants and covenants that
it will not install any underground storage tank without
specific, prior written approval from the Landlord, which may be
withheld in its sole discretion. The Tenant will not store
combustible or flammable materials on the Leased Premises in
violation of the Act and any Legal Requirements governing
Hazardous Materials.
27. Right of First Refusal to Purchase.
(a) If, at any time and from time to time during the
term of the Lease (excluding the first eighteen (18) months of
this Lease), Landlord decides to sell, exchange or otherwise
transfer the Leased Premises to a Qualified Purchaser, either by
direct transfer or indirectly as a result of a change or transfer
of 25% or more of the ownership interests in and to Landlord to a
Qualified Purchaser, or otherwise by operation of law, Landlord
shall give written notice to Tenant of the terms of such
transfer. Landlord's notice shall set forth the economic terms
on which Landlord has received a bona fide offer to sell the
Leased Premises or such ownership interest to a third party (or
from which Landlord's owners intend to transfer their interests
to a third party, if applicable) and offer to Tenant a cash or
cash equivalent price and terms for which Tenant may purchase the
Leased Premises or such ownership interest, and which cash
equivalent price and terms will not include the purchase by
Tenant of other property of Landlord or require repayment of the
debt of Landlord, but may provide for the assumption of debt
secured by the property. In the event of an offer or proposed
transfer on other than an all cash basis (other than requiring
the assumption of property specific debt), Landlord shall
reasonably and in good faith determine the cash equivalent price.
Tenant shall have thirty (30) days after receipt of the notice in
which to elect to acquire the Leased Premises or such ownership
interest on the terms contained in the notice. Such election to
purchase shall be by written notice to Landlord. If Tenant fails
to accept such offer in accordance with this paragraph within the
applicable time period, Tenant shall be conclusively presumed to
have rejected such offer, in which event Landlord shall be free,
at any time thereafter, to sell the Leased Premises or such
ownership interest to a Qualified Purchaser at a purchase price
and upon terms and conditions not more favorable to the Qualified
Purchaser than those contained in Landlord's notice to Tenant,
except as specifically provided below. Upon Landlord's request,
Tenant shall affirm in writing within five (5) Business Days,
after expiration of the applicable time period, that such offer
has been rejected. This right of first refusal shall not apply
to: (i) any offer or sale incidental to the exercise of any
remedy by Lender or any mortgagee or beneficiary under any
mortgage, deed of trust or similar security instrument creating a
lien on the interest of Landlord in the Leased Premises, (ii) any
transfer by or among the owners of Landlord to any other owner of
Landlord, or a transfer by any beneficial owner to such owner's
immediate family or lineal descendants or a trust for the benefit
of any one or more of the foregoing, or to a corporation or other
entity in which any one or more of the foregoing has a
controlling interest, or to an entity controlled by, under common
control with or controlling Landlord or to an organization
qualified under section 501(c)(3) of the Internal Revenue Code or
to a wholly-owned subsidiary of such an organization, (iii) a
transaction or transfer resulting from the sale, reorganization
or consolidation of all or substantially all of the assets of any
of the constituent owners of Landlord, or (iv) any transfer
resulting from the death or incompetence of any individual. If
Landlord desires to sell or offer for sale the Leased Premises or
such ownership interest for a lower purchase price or on terms
more favorable to the Qualified Purchaser than offered to and not
accepted by Tenant, Landlord shall not convey the Leased Premises
or such ownership interest without first again offering to Tenant
the right to purchase the Leased Premises or such ownership
interest as provided above; provided, however, that such sale or
offer shall only be deemed to be more favorable if the proposed
sale price and terms shall be less than ninety-five percent (95%)
of the sale price (or cash equivalent price) offered to Tenant.
In the event Landlord is required to re-offer the Leased Premises
or such ownership interest to Tenant pursuant to the preceding
sentence, Tenant shall have ten (10) Business Days after receipt
of such re-offer in which to elect to acquire the Leased Premises
or such ownership interest on the terms contained in such notice
after which time Landlord shall be free to sell the Leased
Premises or such ownership interest on such terms. The
provisions of this paragraph shall apply to each subsequent price
reduction, if any, meeting the criteria set forth herein. Any
purchase pursuant to this Section 27 shall be in accordance with
the Purchase Procedure. Any conveyance by Landlord of the Leased
Premises or such ownership interest to any person other than to
Tenant shall be made subject to this Lease, including the
continuing right of first refusal granted to Tenant under this
Section 27, and this Lease shall continue in full force and
effect. Upon any conveyance by Landlord of the Leased Premises
or such ownership interest, Landlord shall provide Tenant with
copies of any change of ownership statements prior to the filing
of such statements with any governmental authority or agency.
Notwithstanding the provisions of Section 21, if Landlord
provides such copies by facsimile, same shall be deemed to have
been given on the date transmitted.
28. Purchase Procedure.
(a) In the event of the purchase by the Tenant of the
Leased Premises pursuant to any provision of this Lease, the
terms and conditions of this Section 28 shall apply. At a time
and place and the date fixed for such purchase in this Lease, or
at such other place, time or date as the Landlord and the Tenant
shall mutually agree:
(i) the Tenant shall pay the purchase price to
the Landlord by wire transfer of immediately available federal
funds, in lawful money of the United States, to an account or
accounts designated by the Landlord, together with all Basic
Rent, Additional Rent, and Non-Rent Monetary Obligations accrued
and unpaid as of such date, subject in the case of a purchase of
the Leased Premises pursuant to Section 12, to the reduction of
the purchase price of the Leased Premises by the Landlord's
application to the payment of such purchase price of the amount
of any Award paid to and retained by the Landlord or Lender with
respect to the Leased Premises; and
(ii) the Landlord shall execute and deliver to the
Tenant a grant deed (or other form appropriate for the applicable
jurisdiction) in recordable form, and such other instrument or
instruments as may be appropriate, to transfer the Leased
Premises to the Tenant free and clear of all material liens
(other than Permitted Encumbrances, liens created or suffered
through or by or with the consent of Tenant, and any installment
of Taxes due and payable after the Commencement Date and this
Lease), together with such evidence of the Landlord's authority
to sell the Leased Premises to the Tenant, and of the
authorization of the sale of the Leased Premises, and the
execution and delivery of the deed by the Landlord, and of such
other matters as the Tenant may reasonably request, all of which
shall be reasonably satisfactory to the Tenant in form and
substance, and a certification of non-foreign status as required
by the Foreign Investment in Real Property Tax Act and the
regulations promulgated thereunder and any similar certificates
required by the State. In the case of a purchase of the Leased
Premises by the Tenant pursuant to Section 12, the Landlord shall
also pay to the Tenant the Award received by the Landlord and not
previously applied to Restoration or paid to the Tenant by the
Landlord with respect to the Leased Premises (unless the Tenant
shall have received a credit against the purchase price in
respect thereof or, if payment of the Award has not been made as
of the closing of the purchase of the Leased Premises, assigned
to the Tenant the right to receive the Landlord's portion of the
Award relating to the Leased Premises when such Award is paid).
(b) In the case of a purchase pursuant to this Lease
under Section 12(b), the Tenant shall pay all charges incident to
such transfer, including all recording fees, reasonable
attorneys' fees, costs and expenses, title insurance premiums, if
any, survey costs and transfer taxes or other similar taxes (the
"Transaction Costs"). However, in the case of a purchase
pursuant to the exercise of Tenant's right of first refusal under
Section 27 of this Lease, the Tenant shall pay only those
Transaction Costs to be paid by a purchaser under the terms set
forth in Landlord's notice of the terms of such proposed transfer
in accordance with Section 27.
(c) In the event of the termination of this Lease with
respect to the Leased Premises as herein provided, the
obligations and liabilities of the Landlord and the Tenant, as
the case may be, whether actual or contingent, under this Lease
that arose at or prior to such termination and that are expressly
stated herein to survive the termination of this Lease shall
survive termination.
(d) The Tenant shall execute and deliver to the
Landlord an environmental indemnity agreement, in form, scope and
substance reasonably acceptable to the Landlord, pursuant to
which the Tenant shall agree to be liable for and pay, and shall
indemnify, hold harmless and defend Landlord from and against,
any Claim arising under environmental Legal Requirements from and
after the effective date of the purchase pursuant to this Section
28.
29. Entry by Landlord and Lender.
Landlord, Lender and their authorized representatives
and experts shall have the right upon reasonable notice (which
shall be not less than 48 hours except in the case of emergency)
to enter the Leased Premises at all reasonable business hours,
(and at all other times in the event of an emergency), for (i)
the purpose of inspecting the same, (ii) the purpose of doing any
work under Section 9, (and, in each case, may take all such
action thereon as may be necessary or appropriate for any such
purpose (but nothing contained in this Lease or otherwise shall
create or imply any duty upon the part of Landlord or Lender to
make any such inspection or do any such work)), and (iii) the
purpose of showing the Leased Premises to prospective Qualified
Purchasers and mortgagees and, at any time within twelve (12)
months prior to the expiration of the term of this Lease for the
purpose of showing the same to prospective tenants. No such
entry shall constitute an eviction of Tenant but any such entry
shall be done by Landlord in such reasonable manner as to
minimize any disruption of Tenant's business operation. Landlord
shall obtain the agreement of the Lender or any other person who
enters the Leased Premises to comply with the provisions of
Section 42. Tenant shall reasonably cooperate with Landlord,
Lender and/or their authorized representatives and experts in
connection with any such inspection.
30. Statements.
Guarantor named herein shall each submit to Lender and
Landlord (i) within 45 days of the end of each of the first three
fiscal quarters of each fiscal year of Guarantor named herein,
quarterly balance sheets, income and cash flow statements for
Guarantor named herein, certified by a senior financial officer
of Guarantor; (ii) within 90 days of the end of each fiscal year,
annual balance sheets, income and cash flow statements for
Guarantor named herein, certified by an independent public
accountant. Quarterly 10Qs as filed with the Securities and
Exchange Commission shall satisfy the requirements contained in
(i) herein. Copies of the 10 Ks filed with the Securities and
Exchange Commission will satisfy the requirement contained in
(ii) herein. The obligations of Guarantor named herein shall
continue whether or not this Lease shall have been assigned by
Landlord or Tenant.
31. No Usury.
The intention of the parties being to conform strictly
to the usury laws now in force in the State, whenever any
provision herein provides for payment by Tenant to Landlord of
interest at a rate in excess of the legal rate permitted to be
charged, such rate herein provided to be paid shall be deemed
reduced to such legal rate.
32. Broker.
Landlord and Tenant represent and warrant to each other
that, except for Citicorp Real Estate, Inc. (which amounts, if
any, shall be the responsibility of Tenant pursuant to a separate
agreement), neither party negotiated with any broker in
connection with this Lease and that this Lease was negotiated
directly by Landlord and Tenant. Each party hereby agrees to
indemnify the other against all claims, damages, costs and
expenses incurred by the indemnified party as a result of the
breach of the foregoing representation or warranty by the
indemnifying party.
33. Waiver of Landlord's Lien.
Landlord hereby waives any right to distrain Trade Fixtures
or any property of Tenant and any Landlord's lien or similar lien
upon Trade Fixtures and any other property of Tenant regardless
of whether such lien is created or otherwise. Landlord agrees,
at the request of Tenant, to execute a waiver of any Landlord's
or similar lien for the benefit of any present or future holder
of a security interest in or lessor of any of Trade Fixtures or
any other personal property of Tenant. Landlord acknowledges and
agrees in the future to acknowledge (in a written form reasonably
satisfactory to Tenant) to such persons and entities at such
times and for such purposes as Tenant may reasonably request that
Trade Fixtures are Tenant's property and not part of Improvements
(regardless of whether or to what extent such Trade Fixtures are
affixed to the Improvements) or otherwise subject to the terms of
this Lease.
34. No Waiver.
No delay or failure by either party to enforce its
rights hereunder shall be construed as a waiver, modification or
relinquishment thereof.
35. Separability.
If any term or provision of this Lease or the
application thereof to any provision of this Lease or the
application thereof to any person or circumstances shall to any
extent be invalid and unenforceable, the remainder of this Lease,
or the application of such term or provision to person or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and shall be enforced to
the extent permitted by law.
36. Indemnification.
(a) Tenant agrees to defend, pay, protect, indemnify,
save and hold harmless (the "General Indemnity") Landlord and
Lender, and their respective officers, directors, shareholders,
partners, beneficiaries and employees (each an "Indemnified
Party") from and against any and all liabilities, losses,
damages, penalties, costs, expenses (including reasonable
attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature whatsoever, howsoever caused,
arising from this Lease or the use, non-use, occupancy,
condition, design, construction, maintenance, repair or
rebuilding of any of or otherwise relating to, the Leased
Premises or Adjoining Property, and any injury to or death of any
person or persons or any loss of or damage to any property, real
or personal, in any manner arising therefrom connected therewith
or occurring thereon (collectively, "Losses").
(b) The General Indemnity shall not apply to Losses
that are attributable to or for: (i) acts or events occurring
after expiration of the Term and redelivery of the Leased
Premises to the Landlord, (ii) taxes (whether or not indemnified
by the Tenant under other agreements) based on the income,
receipts or profits of Landlord, unless included within the
definition of "Taxes" as defined in this Lease, (iii) the
negligence or willful misconduct or breach of any representation
or warranty by the Landlord or the Lender, or their respective
employees, agents, or contractors in this Lease, (iv) any
obligation or liability of the Indemnified Parties in this Lease,
or (v) any losses resulting from the imposition of any lien which
the Landlord is required to lift and discharge and which Tenant
is not obligated to lift and discharge under this Lease.
(c) From and after the Loan Repayment Date, Landlord
shall indemnify and hold harmless Tenant from and against any and
all obligations, claims, losses, damages, liabilities and
expenses (including, without limitation, reasonable attorneys'
and accountants' fees and disbursements) arising out of the gross
negligence or willful misconduct of Landlord or its employees,
agents or contractors or breach by Landlord of any material
representation, warranty or covenant in this Lease.
37. Permitted Encumbrances.
Tenant agrees that Tenant is obligated to and shall
perform all obligations of the owner of the Leased Premises and
pay all expenses which the owner of the Leased Premises may be
required to pay in accordance with the Permitted Encumbrances.
Tenant further covenants and agrees to indemnify, defend and hold
harmless Landlord and Lender against any claim, loss or damage
suffered by Landlord or Lender by reason of Tenant's failure to
perform any obligations or pay any expenses as required under any
of the Permitted Encumbrances or comply with the terms and
conditions of any of the Permitted Encumbrances as hereinabove
provided during the term of this Lease.
38. Headings.
The paragraph headings in this Lease are used only for
convenience in finding the subject matters and are not part of
this Lease or to be used in determining the intent of the parties
or otherwise interpreting this Lease.
39. Modifications.
(a) This Lease may be modified, amended, discharged or
waived only by an agreement in writing signed by the party
against whom enforcement of any such modification, amendment,
discharge or waiver is sought. Each of Tenant and Landlord
agrees that it will not modify or amend this Lease without the
written consent of Lender within any period during which there is
a Lender hereunder. In the event of any inconsistent instruction
from Landlord and Lender, Tenant shall comply with the
instruction of Lender.
(b) The parties hereto agree that it is intended that
the Lease and the Lease Modification Agreement together (i)
represent a single, indivisible agreement between the parties and
(ii) are interdependent and interrelated.
40. Successors, Assigns.
The covenants of this Lease shall run with the Land and
bind Tenant, the heirs, distributees, personal representatives,
successors and permitted assigns of Tenant and all present and
subsequent encumbrances and subtenants of any of the Leased
Premises, and shall inure to the benefit of and bind Landlord,
its successors and assigns. In the event there is more than one
Tenant, the obligation of each shall be joint and several. The
term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners of the
Leased Premises or holder of the Mortgage in possession at the
time in question of the Leased Premises and in the event of any
transfer or transfers of the title of the Leased Premises, the
Landlord herein named (and in case of any subsequent transfers or
conveyances, the then grantor) shall be automatically freed and
relieved from and after the date of such transfer and conveyance
of all personal liability as respects the performance of any
covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed.
41. Merger.
The Tenant shall have the right to consolidate or merge
with another corporation, or sell substantially all of its assets
to a person or entity without the prior consent of the Landlord;
provided however in the event of a transfer or assignment of this
lease in connection therewith Tenant or its successor in interest
shall satisfy the requirements of Section 17(b
42. Confidentiality.
Landlord agrees that any information it obtains about
Tenant's business operations, finances, existing and proposed
products, facilities (but not the Leased Premises owned by
Landlord), and manufacturing processes is Tenant's confidential
and proprietary information. Landlord agrees that it will
maintain Tenant's confidential and proprietary information in
confidence, will not disclose or disseminate the information to
any third party, without Tenant's express prior written consent,
and will use the information only for purposes of enforcing
Landlord's rights and fulfilling Landlord's obligations in
connection with this Lease. Landlord agrees to inform all of its
employees, officers, and directors to whom the information is
given of the confidential nature of such information.
Notwithstanding the foregoing, nothing contained herein shall
prevent Landlord from disclosing information or materials if
Landlord can demonstrate that: (i) it is required to do so by
Legal Requirements; (ii) the information being so disclosed is in
the public domain at the time of its disclosure; (iii) the
information being so disclosed was obtained by Landlord on a non-
confidential basis from a source other than Tenant; or (iv) the
information being so disclosed was known to Landlord on a non-
confidential basis prior to its disclosure to Landlord by Tenant.
43. Specific Requirements of Special Purpose Entity.
From and after the Loan Repayment Date:
(a) Landlord represents, warrants and covenants as follows:
(i) The purpose for which the Landlord is organized shall
be limited solely to (a) owning, holding, selling,
leasing, transferring, exchanging, operating and
managing the Leased Premises, (b) entering into the
loan with the Lender, (c) refinancing the Leased
Premises in connection with a permitted repayment of
the loan and (d) transacting any and all lawful
business for which a borrower may be organized under
its constitutive law that is incident, necessary and
appropriate to accomplish the foregoing.
(ii) Landlord does not own and will not own any asset or
property other than (a) the Leased Premises, and
(b) incidental personal property necessary for and
used or to be used in connection with the ownership or
operation of the Leased Premises.
(iii) Landlord will not engage in any business other than
the business for which it is organized under clause
(i) above.
(iv) Landlord will not enter into any contract or agreement
with any Affiliate of the Landlord, any Beneficiary of
Landlord, any owner of the Landlord, any guarantor or
any Affiliate of any Beneficiary, owner or Guarantor,
except upon terms and conditions that are
intrinsically fair, commercially reasonable and
substantially similar to those that would be available
on an arms-length basis with third parties not
Affiliated with the Landlord.
(v) Landlord has not incurred and will not incur any
indebtedness other than (a) the loan with Lender,
(b) trade and operational debt incurred in the
ordinary course of business with trade creditors and
in amounts as are normal and reasonable under the
circumstances, provided such debt is not evidenced by
a note and is paid when due, and (c) indebtedness
incurred in the financing of equipment and other
personal property used on the Leased Premises. No
indebtedness other than the loan with Lender may be
secured (subordinate or pari passu) by the Leased
Premises.
(vi) Landlord has not made and will not make any loans or
advances to any entity or Person (including any
Affiliate or Beneficiary, any guarantor or any
Affiliate of any Beneficiary or guarantor), shall not
buy or hold evidence of indebtedness issued by any
other Person or entity (other than cash and investment
grade securities) and shall not acquire obligations or
securities of its Affiliates or owners, including
partners, members, Beneficiaries or shareholders, as
appropriate.
(vii) Landlord is and will remain solvent and Landlord will
pay its debts and liabilities (including, as
applicable, shared personnel and overhead expenses)
from its assets as the same shall become due unless
such insolvency or failure to pay debts and
liabilities is caused by Tenant's default under this
Lease.
(viii) Landlord has done or caused to be done and will
do all things necessary to observe organizational
formalities and preserve its existence, and Landlord
will not, nor will Landlord permit any Beneficiary,
Affiliate of Landlord or any guarantor to amend,
modify or otherwise change the partnership
certificate, partnership agreement, articles of
incorporation and bylaws, operating agreement, trust
or other organizational documents of Landlord or any
SPC Party (as defined below) which is in violation of
the provisions of this Section 43 without the prior
written consent of Tenant.
(ix) Landlord will maintain all of its books, records,
financial statements and bank accounts separate from
those of its Affiliates and any other Person or
entity. Landlord's assets will not be listed as
assets on the financial statement of any other entity.
Landlord, if required by law to file a separate tax
return, will file its own tax returns and will not
file a consolidated federal income tax return with any
other corporation. Landlord shall maintain its books,
records, resolutions and agreements as official
records.
(x) Landlord will be, and at all times will hold itself
out to be the public as, a legal entity separate and
distinct from any other entity (including any
Affiliate, Beneficiary or guarantor of Landlord),
shall correct any known misunderstanding regarding its
status as a separate entity, shall conduct business in
its own name, shall not identify itself or any of its
Affiliates as a division or part of the other and
shall maintain and utilize separate stationery,
invoices and checks.
(xi) Landlord will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of
its size and character and in light of its
contemplated business operations.
(xii) Neither Landlord nor any Beneficiary or Affiliate will
seek the dissolution, winding up, liquidation,
consolidation or merger in whole or in part, or,
except in accordance with Section 27, the sale of
material assets of the Landlord.
(xiii) Landlord will not commingle the funds and other
assets of Landlord with those of any Affiliate or
Beneficiary, any guarantor, or any Affiliate of any
Beneficiary or guarantor, or any other Person, and
will not participate in any cash management system
with any such party.
(xiv) Landlord will not commingle its assets with those of
any other Person or entity and will hold all of its
assets in its own name.
(xv) Landlord will not guarantee or become obligated for
the debts of any other entity or Person and does not
and will not hold itself out as being responsible for
the debts or obligations of any other Person.
(xvi) If Landlord is a limited partnership or a limited
liability company, each general partner or managing
member (each, an "SPC Party") shall be a corporation
whose sole asset is its interest in Landlord and each
such SPC Party will at all times comply, and will
cause Landlord to comply, with each of the
representations, warranties, and covenants contained
in this Section 43 as if such representation, warranty
or covenant was made directly by such SPC Party.
(xvii) Landlord shall at all times cause there to be at
least one duly appointed member of the board of
directors (an "Independent Director") of each SPC
Party in Landlord who is not at the time of initial
appointment and has not been at any time during the
preceding five (5) years: (a) a stockholder,
director, officer, employee, partner, attorney or
counsel of the corporation, the Landlord or any
Affiliate of either of them; (b) a customer, supplier
or other Person who derives more than 10% of its
purchases or revenues from its activities with the
corporation, the Landlord or any Affiliate of either
of them; (c) a Person or other entity Controlling or
under common Control with any such stockholder,
partner, customer, supplier or other Person; or (d) a
member of the immediate family of any such
stockholder, director, officer, employee, partner,
customer, supplier or other Person. (As used herein,
the term "Control" means the possession, directly or
indirectly, of the power to direct or cause the
direction of management, policies or activities of a
Person or entity, whether through ownership of voting
securities, by contract or otherwise). If Landlord is
a trust, there shall at all times be one independent
trustee who at all times meets the criteria for an
Independent Director.
(xviii) Landlord shall not cause or permit the board of
directors of each SPC Party in Landlord to take any
action which, under the terms of any certificate of
incorporation, by-laws or any voting trust agreement
with respect to any common stock, require the vote of
any SPC Party in Landlord unless at the time of such
action there shall be at least one member who is an
Independent Director. If Landlord is a trust,
Landlord shall not cause or permit the Landlord to
take any action which under the terms of the trust
agreement requires the vote of the independent trustee
unless at the time of such action there shall be at
least one independent trustee who meets the criteria
for an Independent Director.
(xix) Landlord shall conduct its business so that the
assumptions made with respect to Landlord in that
certain opinion letter dated June 25, 1998 (the
"Insolvency Opinion") delivered by Hiersche, Martens,
Hayward, Drakely & Urbach, P.C. in connection with the
loan with Lender shall be true and correct in all
respects. In the event of the sale or transfer of the
Leased Premises or the transfer of any part of the
beneficial interest in Landlord in accordance with the
provisions of the Section 8 of the Mortgage, Landlord
shall conduct its business so that the assumptions
with respect to the Landlord in the non-consolidation
opinion delivered pursuant to Section 8(f)(iv) of the
Mortgage shall be true and correct in all respects.
(xx) Landlord shall allocate fairly and reasonably any
overhead expenses that are shared with an Affiliate,
including paying for office space and services
performed by any employee of an Affiliate.
(xxi) The stationery, invoices, and checks utilized by
Landlord or utilized to collect its funds or pay its
expenses shall bear its own name and shall not bear
the name of any other entity unless such entity is
clearly designated as being Landlord's agent.
(xxii) Landlord shall not pledge its assets for the benefit
of any other Person or entity, other than with respect
to the loan with Lender.
(xxiii) Landlord shall not identify itself as a division of
any other Person or entity.
(xxiv) Landlord shall pay the salaries of its own employees,
if any, from its own funds.
(xxv) Landlord shall maintain a sufficient number of
employees in light of its contemplated business
operations.
(b) From and after the Loan Repayment Date, the
representations, warranties, and covenants of this Section 43
shall apply to and be binding on any of Landlord's successors in
interest.
(c) From and after the Loan Repayment Date: Landlord
acknowledges that monetary damages may not be an adequate remedy
for Tenant if Landlord should be determined to be in default
under this Section 43. Accordingly, Landlord agrees that upon
any default by Landlord under this Section 43, Tenant shall have
the option to institute an action for specific performance under
this Section.
44. Counterparts.
This Lease may be executed in several counterparts, which
together shall be deemed one and the same instrument.
45. Time of the Essence.
Time is of the essence in this Lease and each and every
provision hereof in which any date or time is specified.
46. Governing Law.
This Lease shall be governed by and construed according
to the laws of the State.
IN WITNESS WHEREOF, Landlord and Tenant have caused
this instrument to be executed under seal as of the day and year
first above written.
LANDLORD:
CARDBECK MIAMI TRUST
M. SCOTT KIPP
By: M. Scott Kipp
Its: Administrative Trustee
TENANT:
COULTER CORPORATION
By: WILLIAM H. MAY
Its: Vice President and Secretary
<PAGE>
EXHIBITS
A - Property Description
B - Renewal Rent
C - Purchase Price Upon Involuntary Termination
<PAGE>
EXHIBIT B
RENEWAL RENT
Renewal Period Annual Rent
1st and 2nd Renewal Terms $5,016,000
3rd through 6th Renewal Terms The greater of Basic Rent for the
prior annual period and 95% of Fair
Rental Value at commencement of
Renewal Term
For purposes of this Lease, "Fair Rental Value" shall
be determined by mutual agreement of the Landlord and Tenant. If
the Landlord and Tenant are unable to agree on such value within
fifteen (15) months prior to the expiration of the then current
Term, then "Fair Rental Value" shall mean, as to the Leased
Premises, the value, determined consistently with standard
appraisal methodology, that would be obtained at an arms-length
transaction for cash between informed and willing parties,
neither of whom is under any compulsion to lease or rent, for the
leasing of the Leased Premises (but which value shall not include
any value attributable to (i) any Severable Alterations made
during the Term of this Lease by the Tenant, or (ii) any of
Tenant's Trade Fixtures).
Such appraisal shall be completed by an appraiser
mutually selected by Landlord and Tenant. If Landlord and Tenant
are unable to agree on the selection of a mutually acceptable
appraiser, then Landlord shall submit a list of names, from which
Tenant shall, within fifteen (15) days after Landlord's
submission, select one appraiser to complete the appraisal.
EXHIBIT 2.8
Execution Copy
LEASE
among
BECKMAN COULTER, INC.
as Tenant
NPDC-EY PALO ALTO TRUST
as Landlord
and
NPDC-RI PALO ALTO TRUST
as Remainder Landlord
Dated June 25, 1998
PROPERTY
1050 Page Mill Road
Palo Alto, California
TABLE OF CONTENTS
<PAGE>
Page
1. Certain Definitions...............................................1
2. Demise of Premises; Use of Personal Property......................7
3. Term..............................................................7
4. Rent..............................................................8
5. Net Lease.........................................................9
6. Title and Condition..............................................11
7. Taxes; Insurance and Legal Requirements..........................12
8. Use..............................................................13
9. Maintenance and Repair...........................................14
10. Liens............................................................16
11. Alterations......................................................16
12. Condemnation.....................................................17
13. Insurance........................................................20
14. Damage, Destruction..............................................22
15. Restoration......................................................24
16. Subordination to Financing.......................................26
17. Assignment; Subleasing...........................................28
18. Permitted Contests...............................................29
19. Default..........................................................32
20. Landlord's Remedies..............................................33
21. Notices..........................................................35
22. Memorandum of Lease; Estoppel Certificates.......................36
23. Surrender and Holding Over.......................................37
24. No Merger of Title...............................................38
25. Landlord and Lender Exculpation..................................39
26. Hazardous Substances.............................................39
27. Right of First Refusal to Purchase...............................41
28. Purchase Procedure...............................................44
29. Entry by Landlord and Lender.....................................45
30. Statements.......................................................46
31. No Usury.........................................................46
32. Broker...........................................................47
33. Waiver of Landlord's Lien........................................47
34. No Waiver........................................................47
35. Separability.....................................................48
36. Indemnification..................................................48
37. Permitted Encumbrances...........................................49
38. Headings.........................................................49
39. Modifications....................................................49
40. Successors, Assigns..............................................50
41. Merger...........................................................50
42. Confidentiality..................................................51
43. Specific Requirements of Special Purpose Entity..................51
44. Joinder of Remainder Landlord....................................56
45. Compliance with Ground Lease.....................................57
46. Counterparts.....................................................57
47. Time of the Essence..............................................57
48. Governing Law....................................................58
<PAGE>
THIS LEASE AGREEMENT is made as of this 25th day of June,
1998, by and between NPDC - EY PALO ALTO TRUST, a Delaware
business trust, having an office at c/o Cardinal Capital
Partners, Inc., 8411 Preston Road, 8th Floor, Dallas, Texas 75225-
5520 ("Landlord"), NPDC - RI PALO ALTO TRUST, a Delaware business
trust ("Remainder Landlord"), having an office at c/o Cardinal
Capital Partners, Inc., 8411 Preston Road, 8th Floor, Dallas,
Texas 75225-5520 , and BECKMAN COULTER, INC., a Delaware
corporation, having its principal office at 4300 N. Harbor
Boulevard, P.O. Box 3100, Fullerton, California 92834-3100,
("Tenant").
Pursuant to that certain Lease dated as of December 28, 1955
(the "Ground Lease"), between The Board of Trustees of the Leland
Stanford Junior University, a body having corporate powers under
the laws of the State of California ("Stanford") and Tenant,
which Ground Lease was subsequently assigned to Landlord for an
estate for years pursuant to that certain Assignment of Ground
Lease Interest dated as of June 25, 1998, and which the
remainder interest in the Ground Lease was assigned to the
Remainder Landlord pursuant to that certain Assignment of Ground
Lease Interest, Landlord leases from Stanford that certain
improved real property more particularly described below as the
"Leased Premises," and Remainder Landlord possesses a remainder
interest in the Leased Premises.
In consideration of the rents and provisions herein
stipulated to be paid and performed, Landlord and Tenant hereby
covenant and agree as follows:
1. Certain Definitions.
(a) "Additional Rent" shall mean all sums required to
be paid by Tenant to Landlord hereunder other than Basic Rent and
Non-Rent Monetary Obligations, which sums shall constitute rental
hereunder.
(b) "Affiliate" shall mean, as to any Person, any
other Person that, directly or indirectly, is in Control of, is
Controlled by or is under common Control with such Person or is a
director or officer of such Person or of an Affiliate of such
Person.
(c) "Adjoining Property" shall mean all sidewalks,
curbs, and vault spaces adjoining any of the Leased Premises.
(c) "Alteration" or "Alterations" shall mean any or
all changes, additions, improvements, reconstructions or
replacements of any of the Improvements or any personal property
of Landlord, both interior or exterior, and ordinary and
extraordinary; provided that any personal property of the
Landlord which is listed on Exhibit D ("Tenant's Severable
Personal Property") which is hereinafter replaced by Tenant shall
become Trade Fixtures owned by the Tenant.
(e) "Basic Rent" shall mean Basic Rent as defined in
Section 4.
(f) "Basic Rent Payment Dates" shall mean the Basic
Rent Payment Dates as defined in Section 4.
(g) "Beneficiary" shall mean the holder of the
beneficial interest in Landlord or any permitted successors or
assigns.
(h) "Business Day" shall mean any day other than a
Saturday, Sunday or any other day on which the banking
institutions in the State of New York are authorized by law or
executive action to close.
(i) "Commencement Date" shall mean the Commencement
Date as defined in Section 3.
(j) "Condemnation" shall mean a Taking and/or a
Requisition.
(k) "Control" (including "Controlled by") shall mean
with respect to any Person either (i) ownership, directly or
through other entities, of more than 50% of all beneficial equity
interest in such Person, and (ii) the power to direct the
management, operation and business of such Person.
(l) "Default Rate" shall mean an annual rate of
interest equal to the Prime Rate plus five (5) percentage points,
but in no event greater than the maximum interest rate permitted
by Legal Requirements.
(m) "Event of Default" shall mean an Event of Default
as defined in Section 19.
(n) "Insurance Requirement" or "Insurance
Requirements" shall mean, as the case may be, any one or more of
the terms of each insurance policy required to be carried by
Tenant under this Lease and the requirements of the issuer of
such policy, and whenever Tenant shall be engaged in making any
Alteration or Alterations, repairs or construction work of any
kind (collectively, "Work"), the term "Insurance Requirement" or
"Insurance Requirements" shall be deemed to include a requirement
that Tenant obtain or cause its contractor to obtain completed
value builder's risk insurance when the estimated cost of the
Work in any one instance exceeds the sum of One Hundred Thousand
($100,000.00) Dollars and that Tenant or its contractor shall
obtain worker's compensation insurance or other adequate
insurance coverage covering all persons employed in connection
with the Work, whether by Tenant, its contractors or
subcontractors and with respect to whom death or bodily injury
claims could be asserted against Landlord.
(o) "Intangible Property" shall mean all books,
records and files relating to the maintenance, management or
operation of the Leased Premises belonging to the Landlord or
Tenant; all permits, certificates of occupancy, operating
permits, sign permits, development rights and approvals,
certificates, licenses, warranties and guarantees, rights to
deposits, and all other intangible property, miscellaneous
rights, benefits and privileges of any kind or character
belonging to Landlord with respect to the Leased Premises.
(p) "Law" shall mean any constitution, statute or rule
of law.
(q) "Lease Modification Agreement" shall mean the
Lease Modification Agreement dated of even date herewith, with
respect to the Leased Premises by and between the Landlord and
the Tenant.
(r) "Legal Requirement" or "Legal Requirements" shall
mean, as the case may be, any one or more of all present and
future laws, codes, ordinances, orders, judgments, decrees,
injunctions, rules, regulations and requirements, even if
unforeseen or extraordinary, of every duly constituted
governmental authority or agency (but excluding those which by
their terms are not applicable to and do not impose any
obligation on Tenant, Landlord or the Leased Premises) and all
covenants, restrictions and conditions now or hereafter of record
which may be applicable to Tenant, to Landlord or to any of the
Leased Premises, or to the use, manner of use, occupancy,
possession, operation, maintenance, alteration, repair or
reconstruction of any of the Leased Premises, even if compliance
therewith (i) necessitates structural changes or improvements
(including changes required to comply with the "Americans with
Disabilities Act") or results in interference with the use or
enjoyment of any of the Leased Premises or (ii) requires Tenant
to carry insurance other than as required by the provisions of
this Lease.
(s) "Lender" shall mean the entity identified to
Tenant as such in writing, which makes a Loan to Landlord,
secured in whole or in part by a Mortgage and evidenced by a Note
or which is the holder of a Mortgage and Note as a result of an
assignment thereof, and when a Mortgage secures multiple Notes
held by one or more noteholders, the trustee acting on behalf of
such holders, provided such trustee has been identified as such
in writing to Tenant.
(t) "Loan" shall mean a loan made by a Lender to
Landlord secured in whole or in part by a Mortgage and evidenced
by a Note or Notes.
(u) "Loan Repayment Date" shall mean the date of
payment in full of all Loans outstanding to all Lenders and the
release or reconveyance of all Mortgages of all Lenders.
(v) "Mortgage" shall mean a first priority mortgage or
similar security instrument hereafter executed covering the
Leased Premises from Landlord to Lender.
(w) "Net Award" shall mean the entire award payable to
Landlord by reason of a Condemnation, less any actual and
reasonable expenses incurred by Landlord in collecting such
award.
(x) "Net Proceeds" shall mean the entire proceeds of
any property casualty insurance required under Section 12(a),
less any actual and reasonable expenses incurred by Landlord or
Tenant in collecting such proceeds.
(y) "Non-Rent Monetary Obligations" shall mean any
liquidated damages, penalties, fines, or late fees which Tenant
assumes or agrees to pay or discharge pursuant to this Lease.
(z) "Note" or "Notes" shall mean a promissory note or
notes hereafter executed from Landlord to Lender, which Note or
Notes will be secured in whole or in part by a Mortgage and an
assignment of leases and rents.
(aa) "Permitted Encumbrances" shall mean those
covenants, restrictions, reservations, liens, conditions,
encroachments, easements and other matters of title that affect
the Leased Premises as of Landlord's acquisition thereof, but
excepting any such matters arising from the acts of Landlord
(such as liens arising as a result of judgments against
Landlord).
(bb) "Person" shall mean any individual, corporation,
partnership, joint venture, estate, trust, unincorporated
association, any federal, state, county or municipal government
or any bureau, department or agency thereof and any fiduciary
acting in such capacity on behalf of any of the foregoing.
(cc) "Prime Rate" shall mean the rate of interest
announced publicly by Citibank, N.A. or its successor, from time
to time, as Citibank N.A.'s or such successor's base rate, or if
there be no such base rate, then the rate of interest charged by
Citibank, N.A. or such successor to its most creditworthy
customers on commercial loans having a ninety (90) day duration.
(dd) "Purchase Procedure" shall mean the procedure set
forth in Section 28 to be used if any circumstance described
herein wherein Tenant exercises its right of first refusal to
purchase the Leased Premises.
(ee) "Qualified Purchaser" shall mean any person or
entity which is a "United States Person" within the meaning of
Section 7701(a)(30) of the Internal Revenue Code of 1986 as
amended (the "Code"), and as to which withholding of tax under
section 1441 of the Code and the Regulations thereunder is not
required who does not: (i) manufacture or sell products which
are the same as or substantially the same as products
manufactured or sold by Tenant, or (ii) conduct substantially the
same type of manufacturing operations as Tenant.
(ff) "Requisition" shall mean any temporary
condemnation or confiscation of the use or occupancy of any of
the Leased Premises by any governmental authority, civil or
military, whether pursuant to an agreement with such governmental
authority in settlement of or under threat of any such
requisition or confiscation, or otherwise.
(gg) "Restoration" shall mean the restoration of the
Leased Premises after any Taking or damage by casualty as nearly
as possible to their value, condition and character existing
immediately prior to such Taking or damage and shall include the
demolition, planning, and permitting periods required to complete
such restoration.
(hh) "State" shall mean the state in which the Leased
Premises are situated.
(ii) "Taking" shall mean any taking of any of the
Leased Premises in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or by reason
of any agreement with any condemnor in settlement of or under
threat of any such condemnation or other eminent domain
proceedings.
(jj) "Taxes" shall mean taxes of every kind and nature
(including real, ad valorem and personal property, income,
franchise, withholding, profits and gross receipts taxes), all
charges and/or taxes for any easement or agreement maintained for
the benefit of any of the Leased Premises, all general and
special assessments, levies, permits, inspection and license
fees, all utility charges, all ground rents, and all other public
charges and/or taxes whether of a like or different nature, even
if unforeseen or extraordinary, imposed upon or assessed, prior
to or during the Term, against Landlord, Tenant or any of the
Leased Premises as a result of or arising in respect of the
occupancy, leasing, use, maintenance, operation, management,
repair or possession thereof, or any activity conducted on the
Leased Premises, or the Basic Rent, Additional Rent, or Non-Rent
Monetary Obligations, including without limitation, any gross
income tax, sales tax, occupancy tax or excise tax levied by any
governmental body on or with respect to such Basic Rent,
Additional Rent, or Non-Rent Monetary Obligations, but
specifically excluding those items enumerated in Section 7.
(kk) "Term" shall mean the initial term of this Lease,
as extended pursuant to any renewal that has become effective.
(ll) "Trade Fixtures" shall mean all movable walls and
partitions, base and wall cabinets, computer power system (UPS
units), paging system, telephone system, trash compactors,
laboratory casework, security system, telephone/data system,
projection screens, emergency generators, demountable metal
partitions, warehouse racking systems, trade equipment and trade
machinery (including, without limitation, machinery racking,
conveyor equipment, lifts, and appliances), counters, cases,
furniture, inventory, shelving and similar fixtures (even if
affixed to the Improvements (as hereinafter defined)), and
articles of tangible personal property of every kind and nature
whatsoever, which are owned or leased by Tenant (other than
personal property of Landlord which Tenant is permitted to use
pursuant to this Lease) and used in the operation of the business
conducted on the Leased Premises and all modifications,
replacements, alterations and additions to such property.
2. Demise of Premises; Use of Personal Property.
(a) Landlord hereby demises and lets to Tenant and
Tenant hereby takes and leases from Landlord for the Term and
upon the provisions hereinafter specified Landlord's leasehold
interests in the following described property (collectively, the
"Leased Premises"): (i) the premises described in Exhibit "A"
attached hereto and made a part hereof together with the
easements, rights and appurtenances thereunto belonging or
appertaining (collectively, the "Land"); (ii) the buildings,
structures, fixtures and other improvements constructed and to be
constructed on the Land (collectively, the "Improvements"),
together with all additions and accessions thereto, substitutions
therefor and replacements thereof permitted by this Lease
excepting therefrom Tenant's Trade Fixtures and all property that
does not constitute real property under the laws of the State.
(b) Landlord hereby authorizes, without any
compensation except as provided in this Lease, Tenant to use any
and all personal property and Intangible Property of Landlord
located on the Leased Premises and Landlord shall not remove, or
authorize the removal of, any such personal property and
Intangible Property from the Leased Premises. All of Tenant's
obligations with respect to Leased Premises shall also apply to
all such personal property and Intangible Property. Tenant shall
have the right to inspect, examine and photocopy (at Tenant's
expense) any and all such personal property and Intangible
Property.
3. Term.
(a) Tenant shall have and hold the Leased Premises for
an initial term commencing on the date hereof (the "Commencement
Date") and ending on June 30, 2018 (the "Expiration Date").
(b) Provided the Lease shall not have been terminated
pursuant to the provisions hereof, this Lease and the term
thereof may be extended for up to six (6) renewal terms of five
(5) years each upon Tenant giving notice, in accordance with the
provisions of Section 21, to Landlord of such renewal at least
twelve (12) months prior to the expiration of the then current
Term, time being deemed to be of the essence with respect to
Tenant's exercise of such renewal option. Any such extension or
renewal of the Term shall be subject to all of the provisions of
this Lease, and all such provisions shall continue in full force
and effect In the event that Tenant fails to timely renew the
Term as hereinabove provided, then Landlord shall have the right
in addition to any rights granted in Section 29, during the
remainder of the Term then in effect to (i) advertise the
availability of the Leased Premises for sale or for reletting,
and (ii) show the Leased Premises to prospective Qualified
Purchasers, lenders or tenants at such reasonable times during
normal business hours as Landlord may select. If Tenant fails to
timely renew the Term as hereinabove provided, then all options
with regard to subsequent extensions or renewals of the Term
shall expire and be null and void.
4. Rent.
(a) Tenant shall pay to Landlord or Lender on behalf
of Landlord, if directed by Landlord, as annual rent for the
Leased Premises during the Term ("Basic Rent"), the sum of Eight
Million Eleven Thousand One Hundred Ninety-seven ($8,011,197)
dollars during the initial term and the sums set forth on Exhibit
"B" for the renewal terms, which rent shall be paid in equal
monthly installments in advance commencing on the first Business
Day of the second month next following the Commencement Date and
continuing on the first Business Day of each month thereafter
during the Term (the said days being called the "Basic Rent
Payment Dates"), and shall pay the same at shall pay the same at
NPDC-EY Palo Alto Trust, c/o Cardinal Capital Partners, Inc.,
8411 Preston Road, 8th Floor, Dallas, Texas 75225-5520, or at
such other place or to such other person on behalf of Landlord as
Landlord from time to time may designate to Tenant in writing, in
funds which at the time of such payment shall be legal tender for
the payment of public or private debts in the United States and
if required by Lender by wire transfer in immediately available
federal funds to such account in such bank as Lender shall
designate from time to time. Basic Rent for the period from the
Commencement Date to the first day of the second month next
following the Commencement Date shall be paid on the date
provided as the first payment date under the Qualified Exchange
Agreement (as defined in the Lease Modification Agreement) with
respect to this Lease and shall be calculated on a prorata basis.
(b) If any installment of Basic Rent is not paid on
the date due, Tenant shall pay Landlord interest on such overdue
payment at the Default Rate, accruing from the due date of such
payment until the same is paid.
(c) Tenant shall pay as and discharge before the
imposition of any fine, lien, interest or penalty that may be
added thereto for late payment thereof, as Non-Rent Monetary
Obligations, all other amounts and obligations which Tenant
assumes or agrees to pay or discharge pursuant to this Lease,
together with every fine, penalty, interest and cost which may be
added by the party to whom such payment is due for nonpayment or
late payment thereof. In the event of any failure by Tenant to
pay or discharge any of the foregoing, Landlord and Lender shall
have all rights, powers and remedies provided herein, by law or
otherwise, in the event of nonpayment of Basic Rent. Landlord and
Lender shall have the right to make such payment, in which case
Tenant shall immediately reimburse such payment (including
interest at the Default Rate) to Landlord or Lender, as the case
may be. Any Additional Rent or Non-Rent Monetary Obligations
payable to Landlord shall be paid in lawful money of the United
States to the party to whom Basic Rent is paid.
5. Net Lease.
(a) It is the intention of the parties hereto
that the obligations of Tenant hereunder shall be separate and
independent covenants and agreements, and that Basic Rent,
Additional Rent, Non-Rent Monetary Obligations and all other sums
payable by Tenant hereunder shall continue to be payable in all
events, and that the obligations of Tenant hereunder shall
continue unaffected, unless the requirement to pay or perform the
same shall have been terminated pursuant to an express provision
of this Lease. This is a net Lease and Basic Rent, Additional
Rent, Non-Rent Monetary Obligations and all other sums payable
hereunder by Tenant shall be paid without notice or demand, and
without setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense, except as
otherwise specifically set forth herein. This Lease shall not
terminate and Tenant shall not have any right to terminate this
Lease during the Term (except as otherwise expressly provided
herein). Tenant agrees that, except as otherwise expressly
provided herein, it shall not take any action to terminate,
rescind or avoid this Lease notwithstanding (i) the bankruptcy,
insolvency, reorganization, composition, readjustment,
liquidation, dissolution, winding-up or other proceeding
affecting Landlord, (ii) the exercise of any remedy, including
foreclosure, under the Mortgage, (iii) any action with respect to
this Lease (including the disaffirmance hereof) which may be
taken by Landlord under the Federal Bankruptcy Code or by any
trustee, receiver or liquidator of Landlord or by any court under
the Federal Bankruptcy Code or otherwise, (iv) the Taking of the
Leased Premises or any portion thereof (except as specifically
provided in Section 12(b) below), (v) the prohibition or
restriction of Tenant's use of the Leased Premises under any
Legal Requirement or otherwise, (vi) the destruction of the
Leased Premises or any portion thereof, (vii) the eviction of
Tenant from possession of the Leased Premises, by paramount title
or otherwise, or (viii) default by Landlord hereunder or under
any other agreement between Landlord and Tenant. Tenant waives
all rights which are not expressly stated herein but which may
now or hereafter otherwise be conferred by law to quit, terminate
or surrender this Lease or any of the Leased Premises; to any
setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense of or to
Basic Rent, Additional Rent, Non-Rent Monetary Obligations or any
other sums payable under this Lease, and for any statutory lien
or offset right against Landlord or its property, each except as
otherwise expressly provided herein.
(b) Tenant shall pay directly to the proper
authorities charged with the collection thereof all charges for
water, sewer, gas, oil, electricity, telephone and other
utilities or services used or consumed on the Leased Premises
during the Term, whether designated as a charge, tax, assessment,
fee or otherwise, including, without limitation, water and sewer
use charges and taxes, if any, all such charges to be paid as the
same from time to time become due. It is understood and agreed
that Tenant shall make its own arrangements for the installation
or provision of all such utilities and that Landlord shall be
under no obligation to furnish any utilities to the Leased
Premises and shall not be liable for any interruption or failure
in the supply of any such utilities to the Leased Premises.
6. Title and Condition.
(a) The Leased Premises are demised and let subject to
the Permitted Encumbrances and all Legal Requirements and
Insurance Requirements, including any existing violation of any
thereof, without representation or warranty by Landlord; it being
understood and agreed, however, that the recital of the Permitted
Encumbrances herein shall not be construed as a revival of any
thereof which for any reason may have expired.
(b) Without limiting the effect of Landlord's covenant
set forth in Section 8(c), the Landlord makes no, and expressly
hereby denies any, representations or warranties regarding the
condition or suitability of, or title to, the Leased Premises.
Tenant agrees that it takes the Leased Premises "as is," without
any such representation or warranty.
(c) Landlord hereby conditionally assigns, without
recourse or warranty whatsoever, to Tenant, all warranties,
guaranties and indemnities, express or implied, and similar
rights which Landlord may have against any manufacturer, seller,
engineer, contractor or builder in respect of any of the Leased
Premises, including, but not limited to, any rights and remedies
existing under contract or pursuant to the Uniform Commercial
Code (collectively, the "guaranties"). Such assignment shall
remain in effect so long as no Event of Default exists hereunder
or until the expiration or sooner termination of this Lease.
Landlord shall also retain the right to enforce any guaranties so
assigned in the name of Tenant upon the occurrence of an Event of
Default. Landlord hereby agrees to execute and deliver at
Tenant's sole cost and expense such further documents, including
powers of attorney, as Tenant may reasonably request (and which
in the good faith judgment of Landlord, do not adversely affect a
substantial interest of Landlord), in order that Tenant may have
the full benefit of the assignment effected or intended to be
effected by this Section 6. Upon the occurrence, and during the
continuancy of an Event of Default or the expiration or
termination of this Lease, the guaranties shall automatically
revert to Landlord. The foregoing provision of reversion shall
be self-operative and no further instrument of reassignment shall
be required. Upon the curing of such Event of Default, the
assignment and guaranties shall be automatically reassigned and
reinstated and revert to Tenant. The foregoing provision of
reassignment, reinstatement and reversion shall be self-operative
and no further instrument of reassignment shall be required. In
confirmation of such reassignment each of Tenant and Landlord
shall execute and deliver promptly any certificate or other
instrument which Landlord or Tenant may request at Tenant's sole
cost and expense. Any monies collected by Tenant under any of
the guaranties after the occurrence of and during the
continuation of an Event of Default shall be held in trust by
Tenant and promptly paid over to Landlord.
7. Taxes; Insurance and Legal Requirements
(a) Tenant shall, subject to the provisions of Section
18 hereof relating to contests, before interest or penalties are
due thereon, pay and discharge all Taxes. Landlord shall, within
three (3) Business Days, deliver to Tenant any bill, invoice,
notice or correspondence Landlord receives with respect to any
Tax. Nothing herein shall obligate Tenant to pay, and the term
"Taxes" shall exclude, federal, state or local (i) franchise,
capital stock or similar taxes, if any, of Landlord, (ii) income,
excess profits or other taxes, if any, of Landlord, determined on
the basis of or measured by its net income or gross income (in
lieu of net income), as applicable (except "Taxes"" shall include
any gross income tax, sales tax, occupancy tax or excise tax
levied by any governmental body or authority with regard to Basic
Rent, Additional Rent or Non-Monetary Obligations, provided such
assessment or levy is not in lieu of net income tax payable by
Landlord), or (iii) any estate, inheritance, succession, gift,
capital levy or similar taxes, unless there is a change in the
method of taxation in effect at the commencement of this Lease
which results in taxes referred to in clauses (i) and (ii) above
being levied in lieu of or a substitute for any other tax or
assessment upon or with respect to any of the Leased Premises
which, if such other tax or assessment were in effect at the
commencement of the term of this Lease, would be payable by
Tenant. In the event that any assessment against any of the
Leased Premises may be paid in installments, Tenant shall have
the option to pay such assessment in installments; and in such
event, Tenant shall be liable only for those installments (and
all resulting interest thereon) which become due and payable in
respect of the Term. Tenant shall prepare and file all tax
reports required by governmental authorities which relate to the
Taxes. Tenant shall deliver to Landlord and/or Lender, within
thirty (30) days of Landlord's or Lender's, as the case may be,
request therefor: (i) copies of all settlements and notices
pertaining to the Taxes which may be issued by any governmental
authority; and (ii) evidence of payment for payments of all
Taxes made during each calendar year of the Term.
(b) Tenant shall promptly comply with and conform to
all of the Legal Requirements and Insurance Requirements, subject
to the provisions of Section 18 hereof
8. Use.
(a) Tenant may use the Leased Premises for any lawful
purpose permitted under the Ground Lease. In no event shall the
Leased Premises be used for any purpose which shall violate any
of the provisions of any recorded covenants, restrictions or
agreements applicable to the Leased Premises either specifically
or through broader application to any center or industrial park
of which the Leased Premises may be a part. Tenant agrees that
with respect to any such recorded covenants, restrictions or
agreements, Tenant shall observe, perform and comply with and
carry out the provisions thereof required therein to be observed
and performed by Landlord.
(b) Subject to Tenant's rights of contest under
Section 18 hereof, Tenant shall not permit any unlawful
occupation, business or trade to be conducted on any of the
Leased Premises or any use to be made thereof contrary to
applicable Legal Requirements or Insurance Requirements. Subject
to Tenant's rights of contest under Section 18 hereof, Tenant
shall not use, occupy or permit any of the Leased Premises to be
used or occupied, nor do or permit anything to be done in or on
any of the Leased Premises, in a manner which would (i) violate
any certificate of occupancy or equivalent certificate affecting
any of the Leased Premises, (ii) make void or voidable any
insurance which Tenant is required hereunder to maintain then in
force with respect to any of the Leased Premises, (iii) affect in
any manner the ability of Tenant to obtain any insurance which
Tenant is required to furnish hereunder, (iv) cause any injury or
damage to any of the Improvements unless pursuant to Alterations
permitted under Section 11 hereof, or (v) constitute a public or
private nuisance or waste.
(c) Subject to all of the provisions of this Lease, so
long as no Event of Default exists hereunder, Landlord covenants
that neither it nor any party claiming by, through or under it,
shall do any act to disturb the peaceful and quiet occupation and
enjoyment of the Leased Premises by Tenant. Landlord may enter
upon and examine any of the Leased Premises at reasonable times
after reasonable notice and during business hours and exercise
any rights and privileges granted to Landlord under the
provisions of this Lease. During an Event of Default or in an
emergency, Landlord's access to the Leased Premises shall not be
restricted as provided in the immediately preceding sentence.
9. Maintenance and Repair.
(a) Except for any Alterations that Tenant is
permitted to make hereunder, Tenant shall at all times, including
any Requisition period, put, keep and maintain the Leased
Premises, including, without limitation, the roof, landscaping,
walls (interior and exterior), footings, foundations and
structural components of the Leased Premises, and the Adjoining
Property, in good order and repair, and shall promptly make all
repairs and replacements (substantially equivalent in quality and
workmanship to the original work) of every kind and nature,
whether foreseen or unforeseen, which may be required to be made
upon or in connection with any of the Leased Premises in order to
keep and maintain the Leased Premises in good order and repair,
reasonable wear and tear excepted (whether or not the need for
such repairs occurs as a result of Tenant's use, any prior use,
the elements or the age of the Leased Premises). Tenant shall do
or cause others to do all shoring of the Leased Premises or
Adjoining Property or of foundations and walls of the
Improvements and every other act necessary or appropriate for
preservation and safety thereof, by reason of or in connection
with any excavation or other building operation upon any of the
Leased Premises or Adjoining Property, whether or not Landlord
shall, by reason of any Legal Requirements or Insurance
Requirements, be required to take such action or be liable for
failure to do so. Landlord shall not be required to make any
repair, whether foreseen or unforeseen, or to maintain any of the
Leased Premises or Adjoining Property in any way, and Tenant
hereby expressly waives the right to make repairs at the expense
of the Landlord, which right may otherwise be provided for in any
law now or hereafter in effect. Tenant shall, in all events,
make all repairs for which it is responsible hereunder promptly,
and all repairs shall be in a good, proper and workmanlike
manner.
(b) If Tenant shall be in default under any of the
provisions of this Section 9, Landlord or Lender may, after ten
(10) days notice to Tenant and failure of Tenant to commence to
cure during said period or to diligently prosecute such cure to
completion once begun, but immediately upon notice in the event
of an emergency (that is, imminent danger of injury to persons or
property), do whatever is necessary to cure such default as may
be reasonable under the circumstances for the account of and at
the expense of Tenant. In the event of an emergency, before
Landlord or Lender may, in addition to all remedies under this
Lease, avail itself of its rights under this Section 9(b),
Landlord or Lender, as the case may be, shall send written notice
to Tenant of the situation by facsimile. All actual and
reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) so incurred by Landlord
or Lender, together with interest thereon at the Default Rate
from the date of payment of the expense, shall constitute
Additional Rent payable by Tenant under this Lease and shall be
paid by Tenant to Landlord or Lender (as applicable) on demand.
Landlord and Tenant agree that, in the event of an emergency,
expenditures which might otherwise be unreasonable (such as
overtime) may nevertheless be reasonable under the circumstances.
(c) Tenant shall from time to time replace with other
similar operational equipment or parts any of the mechanical
systems or other equipment included in the Improvements which
shall have become worn out, obsolete or unusable for the purpose
for which it is intended, been taken by a Condemnation as
provided in Section 12, or been lost, stolen, damaged or
destroyed as provided in Section 14. Tenant shall repair at its
sole cost and expense all damage to the Leased Premises caused by
the removal of equipment or any other personal property of Tenant
at any time, including upon expiration or earlier termination of
this Lease.
10. Liens.
Tenant shall not, directly or indirectly, create or
permit to be created or to remain, and shall promptly discharge,
any lien on any of the Leased Premises, on the Basic Rent,
Additional Rent, Non-Rent Monetary Obligations or on any other
sums payable by Tenant under this Lease, other than the Mortgage
(and any assignment of leases, rents or profits collateral
thereto), the Permitted Encumbrances and any mortgage, lien,
encumbrance or other charge created by or resulting from any act
or omission by Landlord or those claiming by, through or under
Landlord.
11. Alterations.
(a) Tenant shall not make any Alterations which would
result, after giving consideration to the completed alteration,
in a material diminution in the value of the Leased Premises
without Landlord's written consent. So long as there are no
Events of Default under this Lease, Tenant may make any other
Alterations without the prior written consent of the Landlord
provided such Alterations comply with all of the provisions of
the following sentence. All Alterations to Improvements shall be
performed in a good and workmanlike manner, and shall be
expeditiously completed in compliance with all Legal
Requirements, (i) all work done in connection with any such
Alteration shall comply with all Insurance Requirements, (ii)
Tenant shall promptly pay all costs and expenses of any such
Alteration, and shall discharge all liens filed against any of
the Leased Premises arising out of the same, (iii) Tenant shall
procure and pay for all permits and licenses required in
connection with any such Alteration, (iv) any Alteration the
estimated cost of which exceeds One Million ($1,000,000) Dollars
shall be made under the supervision of a licensed architect or
engineer in accordance with detailed plans and specifications
which shall be submitted to Landlord and Lender at least twenty
(20) days prior to the commencement of the Alterations, and (v)
any Alteration the estimated cost of which exceed Five Hundred
Fifty Thousand ($550,000.00) Dollars shall be secured by a
payment and performance bond issued by a company having a rating
of BBB or higher from Standard & Poor's. Upon completion of any
Alteration costing in excess of ($1,000,000), Tenant will provide
as-built plans and specifications or record drawings to Landlord
and Lender.
(b) Title to all Alterations that (a) are readily
removable without causing damage by more than a de minimis extent
to the Leased Premises, (b) will not reduce the value, useful
life or utility of the Leased Premises if removed, and (c) are
not required for the lawful use or occupancy of the Leased
Premises ("Severable Alterations") will vest in the Tenant. The
Landlord shall have the right, but not the obligation, to
purchase from the Tenant any or all such Severable Alterations
for their fair market value at the end of the Term.
(c) Title to all Alterations that are not Severable
Alterations, exclusive of Trade Fixtures ("Non-Severable
Alterations"), will immediately vest in the Landlord and become
subject to the Lease whether or not the cost thereof shall have
been paid or financed by or through the Landlord.
12. Condemnation.
(a) Immediately upon obtaining knowledge of the
institution of any proceeding for Condemnation, Tenant shall
notify Landlord and Lender thereof and Landlord and Lender shall
be entitled to participate in any Condemnation proceeding at
Tenant's expense. Landlord immediately upon obtaining knowledge
of the institution of any proceeding for Condemnation, shall
notify Tenant thereof and Tenant shall have the right to
participate in such proceedings at its own expense. Subject to
the provisions of this Section 12 and Section 15, Tenant hereby
irrevocably assigns to Lender or to Landlord, in that order, any
award or payment in respect of any Condemnation, except that
Tenant does not assign to Lender or to Landlord any award or
payment on account of Tenant's Trade Fixtures or other tangible
personal property, its leasehold interests (unless the lack of
such assignment of Tenant's leasehold interest would reduce the
award to Landlord had the leasehold interests been assigned to
Landlord), moving expenses, relocation and similar claims, if
available, to the extent Tenant shall have a right to make a
separate claim therefor against the condemnor; it being agreed,
however, that Tenant shall in no event be entitled to any payment
that reduces the award to which Landlord is or would be entitled
for the condemnation of the Leased Premises.
(b) If (i) the entire Leased Premises or (ii) at least
fifteen percent (15%) of the Leased Premises, the loss of which
even after restoration would, in Tenant's reasonable business
judgment, be substantially and materially adverse to the business
operations of Tenant, shall be the subject of a Taking by a duly
constituted authority or agency having jurisdiction, then Tenant
shall have the right, exercisable within thirty (30) days after
the Taking has occurred, to serve notice upon Landlord and Lender
("Tenant's Termination Notice") to terminate this Lease on any
Basic Rent Payment Date specified in such notice, which date (the
"Termination Date") shall be no sooner than the first Basic Rent
Payment Date occurring at least thirty (30) days after the date
of Tenant's Termination Notice and not later than the third Basic
Rent Payment Date occurring after the date of Tenant's
Termination Notice. In the event that during the initial term
Tenant shall serve such notice upon Landlord and Lender of its
intention to terminate this Lease on the Termination Date, Tenant
shall, as part of such notice, offer (which offer may be rejected
by Landlord and Lender as set forth below) to purchase the Leased
Premises and the award, or if no part of the Leased Premises
shall remain, the entire award for the applicable price computed
as of the Closing Date in accordance with the schedule annexed
hereto and marked Exhibit "C" (the "Purchase Price") plus all
other amounts which may be due and owing to Lender or Landlord by
reason of any default by Tenant in complying with its obligations
under this Lease (the "Additions to Purchase Price"). In the
event that the Tenant's Termination Notice is not accompanied by
the offer to purchase, such Tenant's Termination Notice shall be
deemed null and void. Landlord shall give notice accepting or
rejecting such offer to Tenant within thirty (30) days after the
giving of Tenant's Termination Notice. If Landlord shall not
elect to accept Tenant's said offer to purchase, this Lease shall
be terminated as above provided and the entire award made in the
Condemnation proceeding shall be paid to Lender, or if there is
no Lender, to Landlord; provided, however, Landlord's notice to
reject Tenant's said offer to purchase shall be void and of no
effect unless accompanied by the written notice of Lender to the
effect that Lender also elects not to accept Tenant's said offer
to purchase. Should said notices of Landlord and/or Lender
accepting or rejecting Tenant's said offer to purchase not be
served within said period of thirty (30) days, then and in that
event, the said offer shall be deemed accepted. In the event
that Landlord and Lender shall accept or be deemed to have
accepted Tenant's offer to purchase, title shall close and the
Purchase Price and Additions to Purchase Price shall be paid as
hereinafter provided and in such event Tenant shall be entitled
to and shall receive any and all awards then or thereafter made
in the Condemnation proceeding and Landlord shall assign or in
case of any award previously made, deliver to Tenant on the
Closing Date such award as may be made.
In the event Landlord and Lender shall accept Tenant's
offer to purchase, or be deemed to have accepted Tenant's offer,
any purchase pursuant to this Section 12(b) shall be in
accordance with the Purchase Procedure.
In the event that during any renewal term Tenant shall
serve Tenant's Termination Notice upon Landlord and Lender, this
Lease and the Term hereof shall terminate on the Termination
Date. In such event the entire award made in Condemnation
proceeding shall be retained by Lender or Landlord, in that
order.
(c) In the event of any Condemnation of part of the
Leased Premises which does not result in a termination of this
Lease, the Net Award of such Condemnation shall be paid and
disbursed in accordance with the requirements of Section 15 and,
promptly after such Condemnation, Tenant shall commence and
diligently continue to perform the Restoration.
Upon the payment to Landlord or Lender of the Net Award
of a Taking which falls within the provisions of this
subparagraph (c), Landlord and Lender shall, to the extent
received, make that portion of the Net Award equal to the cost of
Restoration (the "Restoration Award") available to Tenant for
Restoration, in accordance with the provisions of Section 15, and
the balance remaining (the "net surplus award") shall be the
property of Lender or Landlord in that order. Following the
making of the condemnation award and on completion of the repairs
or alterations made by Tenant as herein provided, the monthly
installment of Basic Rent for each month during the remaining
term hereof, commencing with the lease payment for the month
after the month in which such construction is completed, shall be
reduced by an amount equal to one-twelfth (1/12th) of 8.85% of
the net surplus award paid to Lender or Landlord, in that order.
In the event of a Requisition of any of the Leased
Premises, Landlord shall apply the Net Award of such Requisition,
to the extent available, to the installments of Basic Rent,
Additional Rent, Non-Rent Monetary Obligations or other sums
payable by Tenant hereunder thereafter payable and Tenant shall
pay the balance remaining thereafter. Upon the expiration of the
Term, any portion of such Net Award that shall not previously
have been credited to Tenant on account of the Basic Rent,
Additional Rent, and Non-Rent Monetary Obligations shall be
retained by Landlord or Lender.
(d) Except with respect to an award or payment to
which Tenant is entitled pursuant to the foregoing provisions of
this Section 12, no agreement with any condemnor in settlement of
or under threat of any Condemnation shall be made by either
Landlord or Tenant without the written consent of the other, and
of Lender, if the Leased Premises are then subject to a Mortgage,
which consent shall not be unreasonably withheld or delayed
provided such award or payment is applied in accordance with this
Lease.
13. Insurance.
(a) Tenant shall maintain at its sole cost and expense
the following insurance on the Leased Premises:
(i) Insurance against loss or damage to the
Improvements under an All Risk Policy, which shall include flood
insurance and earthquake insurance each to the extent applicable
and which may contain such self retention levels, exclusions and
deductibles as are from time to time customary or standard in the
industry, in amounts to prevent Landlord or Tenant from becoming
a co-insurer under the applicable policies (except in the case of
earthquake insurance coverage), and in any event in amounts not
less than the actual replacement cost of the Improvements
(excluding footings and foundations and parts of the Improvements
which are not insurable).
(ii) Contractual and commercial general liability
insurance against claims for bodily injury, death or property
damage occurring on, in or about any of the Leased Premises or
the Adjoining Property, which insurance shall be written on a so-
called occurrence basis," and shall provide minimum protection
with a combined single limit in an amount not less than Five
Million ($5,000,000) Dollars (or in such increased limits from
time to time to reflect declines from the date hereof in the
purchasing power of the dollar as Landlord may reasonably
request).
(iii) Worker's compensation insurance covering
all persons employed by Tenant on the Leased Premises in
connection with any work done on or about any of the Leased
Premises.
(b) The insurance required by Section 13(a) shall be
written by companies having a rating of BBB or higher from
Standard & Poor's. All companies providing insurance required by
Section 13(a) shall be authorized to do an insurance business in
the State or otherwise agreed to by Landlord and Lender. The
insurance policies shall be for a term of not less than one year,
and shall (except for worker's compensation insurance) name
Landlord, Remainder Landlord, Tenant and any Lender as additional
insured parties, as their respective interests may appear. If
said insurance or any part thereof shall expire, be withdrawn,
become void by breach of any condition thereof by Tenant or
should the insurer's claims-paying ability decrease below
investment grade as required above, Tenant shall immediately
obtain new or additional insurance reasonably satisfactory to
Landlord and Lender.
(c) Each insurance policy referred to above shall, to
the extent applicable, contain standard non-contributory
mortgagee clauses in favor of any Lender. As evidence of the
insurance specified in Section 13(a)(i), required to be
maintained by Tenant, Tenant shall deliver to Landlord an ACORD
27 Evidence of Property Insurance or other certificate providing
at least the same assurances (or, if limited by Legal
Requirements, then a certificate providing as many of the same
assurances as allowed by applicable law). As evidence of the
insurance specified in Section 13(a)(ii) and (iii), required to
be maintained by Tenant, Tenant shall deliver to Landlord an
ACORD 25 Certificate of Insurance or other certificate providing
at least the same assurances. Each policy required to be carried
by Tenant shall also provide that any loss otherwise payable
thereunder shall be payable notwithstanding (i) any act or
omission of Landlord, or Tenant which might, absent such
provision, result in a forfeiture of all or a part of such
insurance payment, (ii) any foreclosure or other action or
proceeding taken by any Lender pursuant to any provision of the
Mortgage upon the happening of an event of default therein, or
(iii) any change in title or ownership of any of the Leased
Premises.
(d) Tenant shall pay at least ten (10) Business Days
prior to cancellation all premiums for the insurance required by
this Section 13, shall renew or replace each policy and shall
deliver to Landlord and Lender, the appropriate assurances for
such renewals or replacements in accordance with the provisions
of this Section 13 at least ten (10) Business Days prior to
cancellation of the then-effective coverage. In the event of
Tenant's failure to maintain any of the insurance required by
this Section 13, Landlord or Lender shall be entitled to procure
such insurance. Any sums expended by Landlord or Lender in
procuring such insurance shall be Additional Rent and shall be
repaid by Tenant, together with interest thereon at the Default
Rate, from the time of payment by Landlord or Lender until fully
paid by Tenant immediately upon written demand therefor by
Landlord or Lender, as the case may be.
(e) Anything in this Section 13 to the contrary
notwithstanding, any insurance which Tenant is required to obtain
pursuant to Section 13(a) may be carried under a "blanket" policy
or policies covering other properties or liabilities of Tenant,
provided that such "blanket" policy or policies otherwise comply
with the provisions of this Section 13. In the event any such
insurance is carried under a blanket policy, Tenant shall deliver
to Landlord and Lender upon request a certified copy of those
provisions of the blanket policy that pertain to the Leased
Premises to evidence the issuance and effectiveness of the
policy, the amount and character of the coverage with respect to
the Leased Premises and the presence in the policy of provisions
of the character required in the above sections of this Section
13.
14. Damage, Destruction.
(a) In the event of any casualty loss exceeding
$500,000 as reasonably estimated by Tenant, Tenant shall give
Landlord and Lender immediate notice thereof. Tenant shall
adjust, collect by check made payable to the Trustee, except as
otherwise provided in Section 14(b), and compromise any and all
such claims, with the consent of Lender and Landlord, not to be
unreasonably withheld or delayed and Landlord and Lender shall
have the right to join with Tenant therein. All proceeds
pertaining to, or allocable to the Leased Premises (subject to
Section 14(b)) shall be paid to a Trustee which shall be a
federally insured bank or other financial institution, selected
by Landlord and Tenant and reasonably satisfactory to Lender (the
"Trustee"). If the Leased Premises shall be covered by a
Mortgage, Lender, if it so desires, shall be the Trustee. Each
insurer is hereby authorized and directed upon the occurrence and
during the continuance of an Event of Default to make payment
under said policies directly to such Trustee instead of to
Landlord and Tenant jointly.
(b) All insurance proceeds received for business
interruption loss and proceeds received in connection with
continuation of business after an event of casualty loss (i.e.,
such as compensation for salaries of employees who might be
displaced by such casualty and/or the resulting Restoration)
shall be payable directly to Tenant and not to the Trustee.
(c) In the event of any casualty (whether or not
insured against) resulting in damage to the Leased Premises or
any part thereof, the Term shall nevertheless continue and there
shall be no abatement or reduction of Basic Rent, Additional
Rent, Non-Rent Monetary Obligations or any other sums payable by
Tenant hereunder. The Net Proceeds of such insurance payment
shall be retained by the above-mentioned Trustee and, promptly
after such casualty, Tenant shall commence and diligently
continue to perform the Restoration to the Leased Premises. Upon
payment to the Trustee of such Net Proceeds, the Trustee shall,
to the extent available, make the Net Proceeds available to
Tenant for restoration, in accordance with the provisions of
Section 15. Tenant shall, whether or not the Net Proceeds are
sufficient for the purpose, promptly repair or replace the
Improvements as nearly as possible to their value and condition
and character immediately prior to such event and otherwise in
accordance with all Insurance Requirements and Legal Requirements
and the provisions of this Lease (including Tenant's making any
desired Alterations allowed hereunder) and the Net Proceeds of
such loss shall thereupon be payable to Tenant, subject to the
provisions of Section 15 hereof.
(d) In the event that any damage or destruction shall
occur at such time as Tenant shall not have maintained insurance
in accordance with Section 13(a)(i), Tenant shall pay to the
Trustee the amount of the proceeds that would have been payable
had such insurance program been in effect (the "Tenant Insurance
Payment").
15. Restoration.
The Net Proceeds and Tenant Insurance Payment (the
aggregate estimated amount of which and any interest thereon
being herein defined as the "Restoration Fund") paid to the
Trustee shall be disbursed by the Trustee in accordance with the
following conditions:
(a) At the time of any disbursement, no Event of
Default shall exist and no mechanics' or materialmen's liens
shall have been filed and remain undischarged and unbonded.
(b) If the cost of Restoration exceeds $500,000, prior
to commencement of the Restoration, the architects, contracts,
contractors and plans and specifications for the Restoration
shall have been approved by Landlord and Lender, which approval
shall not be unreasonably withheld or delayed.
(c) Each request for disbursement shall be accompanied
by a certificate of Tenant, signed by the President, Treasurer or
any Vice President of Tenant, describing the completed work for
which payment is requested, stating the cost incurred in
connection therewith and stating that Tenant has not previously
received payment for such work and the certificate to be
delivered by Tenant upon completion of the work shall, in
addition, state that the work has been completed and complies
with the applicable requirements of this Lease and all Legal
Requirements and Insurance Requirements.
(d) Disbursements shall be made from time to time in
an amount not exceeding the cost of the work completed since the
last disbursement upon receipt by Landlord and Lender of (1)
satisfactory evidence, including architects' certificates, of the
stage of completion, of the estimated cost of completion and of
performance of the work to date in a good and workmanlike manner
in accordance with the contracts and plans and specifications
approved by Landlord and Lender, (2) waivers of liens, (3) a
satisfactory bring down of title insurance, and (4) other
evidence of cost and payment so that Landlord can verify that the
amounts disbursed from time to time are represented by work that
is completed in place and free and clear of mechanics' liens and
mechanics' lien enforcement actions.
(e) The Trustee, at Landlord's or Lender's election,
shall retain ten (10%) percent from each disbursement of the
Restoration Fund (such 10% retainage requirement shall be reduced
for all amounts required to be retained by owner pursuant to the
construction contracts for such Restoration) until the
Restoration is fully completed and the Leased Premises are
available for their intended use, in the reasonable judgment of
the Lender, including the issuance of any necessary certificate
of occupancy.
(f) The Restoration Fund shall be kept in a separate
interest-bearing account federally insured to the extent
applicable by the Trustee or by Lender.
Prior to commencement of Restoration and at any time
during Restoration, if the estimated cost of Restoration, as
reasonably determined by Landlord or Lender, exceeds the amount
of the Restoration Fund, the amount of such excess shall be paid
by Tenant to the Trustee to be added to the Restoration Fund
prior to any further disbursement or Tenant shall fund at its own
expense the costs of such Restoration until the remaining
Restoration Fund is, or will be, sufficient for the completion of
the Restoration. In no event shall Tenant be required to pay
into the Restoration Fund an amount greater than the difference
between the estimated cost of Restoration and the total estimated
proceeds from insurance. Except for the payment to Landlord or
Lender of the net surplus award, referred to in Section 12(c),
any sum in the Restoration Fund which remains in the Restoration
Fund upon the completion of Restoration (including interest
earned) shall be paid to Tenant. For purposes of determining the
source of funds with respect to the disposition of funds
remaining after the completion of Restoration, the Net Proceeds
or the Restoration Award shall be deemed to be disbursed prior to
any amount added by Tenant.
If Tenant does not diligently pursue the completion of
the Restoration to the satisfaction of Landlord, Landlord shall
have the right to give written notice to Tenant, which notice
shall specify the exact reason(s) Landlord maintains that Tenant
is not pursuing the completion of the Restoration (the
"Restoration Notice"). Upon receipt of the Restoration Notice,
Tenant shall have thirty (30) days to either: (i) cure the
deficiencies specified in the Restoration Notice, or if such
deficiency cannot be cured within such period of thirty (30)
days, such period shall be extended for such longer time as
reasonably necessary provided that Tenant has commenced to cure
such deficiency within said period of thirty (30) days and is
actively, diligently and in good faith proceeding with continuity
to remedy such failure; or (ii) demonstrate to Landlord in
writing, with sufficient supporting documentation attached, that
to the extent that Tenant is not hampered by a legal impediment
not caused by Tenant (which shall include, without limitation,
delays or stoppages caused by delays in the permitting process).
Tenant is actively, diligently, and in good faith proceeding with
continuity to complete the Restoration. If Tenant fails to do
either of the preceding within such thirty (30) day period,
Trustee shall pay the balance of the Restoration Fund to Lender
to satisfy, in whole or in part, the Loan. In such event, any
sum which remains in the Restoration Fund upon the satisfaction
of the Loan shall be paid to Landlord.
16. Subordination to Financing.
(a) Subject to the following provisions of this
Section 16(a), Tenant agrees that this Lease shall, upon
Landlord's and Lender's (if any) written request, be subject and
subordinate to the lien of any Mortgage, and Tenant agrees, upon
demand, without cost, to execute instruments as may be required
to further effectuate or confirm such subordination, in form and
substance reasonably satisfactory to Landlord, provided that
Lender shall provide Tenant with a written non-disturbance
agreement in form and substance reasonably satisfactory to Tenant
confirming that: (i) so long as no Event of Default shall be
outstanding, Tenant's tenancy shall not be disturbed, (ii) nor
shall this Lease, or any and all modifications or amendments
thereto as then in effect, be affected by any default under such
Mortgage (other than a default that relates to a default under
this Lease), (iii) in the event of a foreclosure or other
enforcement of any such Mortgage, or sale in lieu thereof, the
purchaser at such foreclosure sale or pursuant to a deed in lieu
thereof shall be bound to Tenant for the Term of this Lease and
any extensions thereof, the rights of Tenant hereunder shall
expressly survive, and this Lease shall in all respects continue
in full force and effect so long as no Event of Default by Tenant
has occurred and is continuing, and (iv) so long as no Event of
Default by Tenant has occurred and is continuing, Tenant shall
not be named as a party defendant in any such foreclosure suit,
except as may be required by Legal Requirements. Any Mortgage to
which this Lease is now or hereafter subordinate shall provide,
in effect, that during the time this Lease is in force all
insurance proceeds and condemnation awards shall be paid as
provided in this Lease or used for restoration as provided in
this Lease.
(b) Notwithstanding the provisions of subdivision (a)
of this Section 16, the holder of the Mortgage to which this
Lease is subject and subordinate, as provided in said subdivision
(a), shall have the right, at its sole option, at any time, to
subordinate and subject the Mortgage, in whole or in part, to
this Lease by recording a unilateral declaration to such effect.
(c) At any time prior to the expiration of the Term,
Tenant agrees, at the election and upon demand of any owner of
the Leased Premises, or of Lender who has granted non-disturbance
to Tenant pursuant to Section 16(a) above, to attorn, from time
to time, to any such owner or Lender, upon the then executory
terms and conditions of this Lease, for the remainder of the term
originally demised in this Lease and for any renewal term. The
provisions of this subdivision (c) shall inure to the benefit of
any such owner or Lender, shall apply notwithstanding that, as a
matter of law, this Lease may terminate upon the foreclosure of
the Mortgage, shall be self-operative upon any such demand, and
no further instrument shall be required to give effect to said
provisions.
(d) Each of Tenant and Landlord agrees that, if
requested by the other, each shall, without charge, enter into
(i) a Subordination, Non-Disturbance and Attornment Agreement
reasonably requested by Lender, provided such agreement contains
provisions relating to non-disturbance in accordance with the
provisions of subparagraph (a), and (ii) an agreement with Lender
whereby Tenant shall agree for the benefit of Lender that Tenant
will not, without in each case the prior written consent of
Lender, which shall not be unreasonably withheld, conditioned or
delayed, (a) amend, modify, cancel or surrender the term of this
Lease except as expressly permitted by the provisions of this
Lease, or enter into any agreement with Landlord so to do, or (b)
pay any installment of Basic Rent more than one (1) month in
advance of the due date thereof or otherwise than in the manner
provided for in this Lease.
(e) At any time after Landlord has advised Tenant of
the existence of a "Lender" hereunder, and before such Lender has
confirmed to Tenant that the lien of its Mortgage has been
released, Tenant shall not (and shall not be obligated, even upon
the request of Landlord, to) execute any agreement or document
purporting to subordinate this Lease to the lien of any mortgage
or deed of trust other than the Mortgage held by Lender.
17. Assignment; Subleasing.
(a) Tenant (or Tenant's wholly-owned subsidiary or an
entity controlled by or in common control with Tenant) is
currently in occupancy and is operating its business at the
Leased Premises. Tenant may assign its interest in this Lease or
sublease any portion(s) of the Leased Premises without the prior
written consent of Landlord; provided, however, that Tenant must
obtain Stanford's consent pursuant to the Ground Lease. In the
event of an assignment or sublease to an entity not affiliated
with the Tenant involving greater than thirty-three percent (33%)
of the Leased Premises, Tenant shall give Notice to Landlord of
such assignment or sublease by providing an executed copy of each
such assignment or sublease, as the case may be. No sublease
under, or assignment of this Lease shall relieve Tenant of its
obligations hereunder, which shall continue as the obligations of
a principal and not as the obligations of a surety or a
guarantor. The joint and several liability of Tenant named
herein and any immediate and remote successor in interest of
Tenant (by assignment or otherwise), and the due performance of
the obligations of this Lease on Tenant's part to be performed or
observed, shall not in any way be discharged, released or
impaired by any (i) agreement which modifies any of the rights or
obligations of the parties under this Lease, (ii) stipulation
which extends the time within which an obligation under this
Lease is to be performed, (iii) waiver of the performance of an
obligation required under this Lease, or (iv) failure to enforce
any of the obligations set forth in this Lease, unless in each
case, the same has been consented to by Landlord and Lender.
(b) Each sublease of the Leased Premises or any part
thereof shall be subject and subordinate to the provisions of
this Lease. Tenant agrees that in the case of an assignment,
Tenant shall, not less than ten (10) days prior to the execution
and delivery of any such assignment as described in this Section
17(b), give notice of such assignment to Landlord and Lender.
Tenant further agrees that in the case of such assignment, Tenant
shall, within fifteen (15) days after the execution and delivery
of any such assignment, deliver to Landlord and Lender (i) a
duplicate original of such assignment in recordable form and (ii)
an agreement executed and acknowledged by the assignee in
recordable form wherein the assignee shall agree to assume and
agree to observe and perform all of the applicable terms and
provisions of this Lease on the part of the Tenant to be observed
and performed from and after the date of such assignment, and, in
the case of a sublease, Tenant shall, within fifteen (15) days
after the execution and delivery of such sublease, deliver to
Landlord and Lender a duplicate original of such sublease.
(c) Upon the occurrence of an Event of Default under
this Lease, Landlord shall have the right to collect and enjoy
all rents and other sums of money payable under any sublease of
any of the Leased Premises, and Tenant hereby irrevocably and
unconditionally assigns such rents and money to Landlord, which
assignment may be exercised upon and after (but not before) the
occurrence of an Event of Default, taking into account any
applicable cure periods.
(d) Any sublease shall provide that upon notice from
Landlord and/or Lender of an Event of Default, all rent due under
such sublease shall be paid as so directed. In the event
Landlord and/or Lender give such notice under such sublease and
Tenant is not then in default under this Lease, then Tenant shall
have the right to withhold rent payments due under this Lease in
amounts totaling the amount of rent actually paid under such
sublease as such was directed. In no event shall Landlord or
Lender have the right to direct the payment of sublease rents to
any party other than Tenant except in an aggregate amount equal
to or less than the aggregate amounts due hereunder.
18. Permitted Contests.
(a) Notwithstanding any provision of this Lease to the
contrary, after prior written notice to Landlord and Lender,
Tenant shall not be required to (i) pay any Tax, (ii) comply with
any Legal Requirement, or (iii) discharge or remove any lien, so
long as Tenant shall contest, in good faith and at its expense,
the existence, the amount or the validity thereof, the amount of
the damages caused thereby, or the extent of its or Landlord's
liability therefor, by appropriate proceedings which shall
operate during the pendency thereof to prevent (v) the collection
of, or other realization upon, the Tax or lien so contested, (w)
the sale, forfeiture, attachment or loss of any of the Leased
Premises, any Basic Rent, Additional Rent, or Non-Rent Monetary
Obligations to satisfy the same or to pay any damages caused by
the violation of the same, (x) any interference with the use or
occupancy of any of the Leased Premises, (y) any interference
with the payment of any Basic Rent, Additional Rent, or Non-Rent
Monetary Obligations, and (z) the cancellation of any fire or
other insurance policy. In no event shall Tenant pursue any
contest with respect to any Tax, Legal Requirement, or lien
referred to above in such manner that exposes Landlord, Tenant or
Lender, to any criminal or civil liability, penalty or sanction.
Tenant shall provide Lender or Landlord in that order, as
security for such contest, an amount of cash or bond equal to
125% of the amount being contested, or other security
satisfactory in the reasonable opinion of Lender or Landlord in
that order, in assuring the payment, compliance, discharge,
removal or other action, including all costs, attorneys' fees,
interest and penalties, in the event that the contest is
unsuccessful. No such security shall be required if the amount
involved in the contest shall not exceed one tenth (1/10th) of
one percent (1%) of the tangible net worth of Tenant, computed in
accordance with generally accepted accounting principles
consistently applied, as determined by its most recent publicly
filed financial statements (10Q and 10K) if Tenant is a publicly
held company. While any such proceedings are pending and the
required security is held by Lender or Landlord, in that order,
Lender or Landlord, as the case may be, shall not have the right
to pay, remove or cause to be discharged the Tax, Legal
Requirement or lien thereby being contested unless Landlord or
Lender reasonably believes that any one or more of the conditions
in subdivisions (v) through (z) shall not be prevented during the
pendency of the contest. Tenant further agrees that each such
contest shall be promptly and diligently prosecuted to a final
conclusion, except that Tenant shall, so long as all of the
conditions of the first sentence of this Section 18 are at all
times complied with, have the right to attempt to settle or
compromise such contest through negotiations. Tenant shall pay
any and all judgments, decrees and costs (including all
attorneys' fees and expenses) in connection with any such contest
and shall, promptly after the final determination of such
contest, fully pay and discharge the amounts which shall be
levied, assessed, charged or imposed or be determined to be
payable therein or in connection therewith, together with all
penalties, fines, interest, costs and expenses thereof or in
connection therewith, and perform all acts the performance of
which shall be ordered or decreed as a result thereof. Upon such
payment, any cash deposit shall be refunded and any outstanding
bond shall be terminated.
(b) Upon receipt of any supplemental bill, notice, or
similar communication in connection with a property tax
reassessment relating to the Leased Premises (in each such
instance, a "Reassessment Claim"), Landlord shall within three
(3) Business Days provide Notice of such Reassessment Claim to
Tenant. Tenant shall have the right to directly discuss with,
negotiate with, or otherwise communicate with any governmental
authority or agency in connection with such a Reassessment Claim.
If a power of attorney is required by any governmental authority
or agency to allow Tenant to contest such Reassessment Claim,
Landlord shall provide Tenant with a properly executed power of
attorney.
Tenant shall have the right to contest the amount or
validity of any such Reassessment Claim by appropriate legal or
administrative proceedings, conducted in good faith and with due
diligence, provided that (a) Tenant complies with the provisions
of Section 18(a) with respect thereto, (b) the foregoing shall in
no way be construed as relieving, modifying or extending Tenant's
obligation to pay any Reassessment Claim as finally determined,
and (c) no part of the Leased Premises shall be in any immediate
danger of sale, forfeiture, attachment or loss. Landlord agrees
to join in any such proceedings if required legally to prosecute
such contest, provided that Landlord shall not thereby be
subjected to any liability therefor (including, without
limitation, for the payment of any costs or expenses in
connection therewith) unless Tenant agrees by agreement in form
and substance reasonably satisfactory to Landlord, to assume and
indemnify Landlord with respect to the same.
19. Default.
The occurrence of any one or more of the following
events shall constitute an Event of Default under this Lease:
(a) Tenant's failure to make any payment of Basic Rent
when due which continues unremedied for a period of three (3)
days, provided, however, Tenant shall not be entitled to an
opportunity to cure such default if Tenant has failed to make
Basic Rent payments on two (2) or more occasions within the
previous twelve (12) month period.
(b) Tenant's failure to make payment of Additional
Rent, Non-Rent Monetary Obligations or other sum herein required
to be paid by Tenant and such default shall continue for a period
of ten (10) days after notice by Landlord or Lender to Tenant.
(c) Tenant's failure to duly perform and observe, or
Tenant's violation or breach of, any other provision hereof if
such failure shall continue for a period of thirty (30) days
after notice thereof from Landlord or Lender, or if such failure
cannot be cured within such period of thirty (30) days, such
period shall be extended for such longer time as reasonably
necessary provided that Tenant has commenced to cure such default
within said period of thirty (30) days and is actively,
diligently and in good faith proceeding with continuity to remedy
such failure. Tenant agrees that after receiving any such notice
of default referred to above in this subparagraph (c), Tenant
shall, upon request of Landlord or Lender, advise the requesting
party of Tenant's progress in curing such default.
(d) Tenant shall (i) voluntarily be adjudicated a
bankrupt or insolvent, or (ii) consent to the appointment of a
receiver or trustee for itself or for any of the Leased Premises,
(iii) file a petition seeking relief under the bankruptcy or
other similar laws of the United States, any state or any
jurisdiction, or (iv) make a general assignment for the benefit
of creditors.
(e) A court shall enter an order, judgment or decree
appointing a receiver or trustee for it or for any of the Leased
Premises or approving a petition filed against Tenant which seeks
relief under the bankruptcy or other similar laws of the United
States, any state or any jurisdiction, and such order, judgment
or decree shall remain in force, undischarged or unstayed sixty
days after it is entered.
(f) Tenant shall in any insolvency proceedings be
liquidated or dissolved or shall begin proceedings towards its
liquidation or dissolution.
(g) The estate or interest of Tenant in any of the
Leased Premises shall be levied upon or attached in any
proceeding and such estate or interest is about to be sold or
transferred or such process shall not be vacated or discharged
within sixty (60) days after such levy or attachment.
20. Landlord's Remedies.
After the occurrence of an Event of Default by Tenant, Landlord
shall have the right to exercise the following remedies:
(a) Landlord may, at its option, continue this Lease
in full force and effect, without terminating Tenant's right to
possession of the Leased Premises, in which event Landlord shall
have the right to collect Basic Rent, Additional Rent, and Non-
Rent Monetary Obligations when due. In the alternative.
Landlord shall have the right to peaceably re-enter the Leased
Premises on the terms set forth in subparagraph (b) below, but
without such re-entry being deemed a termination of the Lease or
an acceptance by Landlord of a surrender thereof. Landlord shall
also have the right, at its option, from time to time, without
terminating this Lease, to relet the Leased Premises, or any part
thereof, with or without legal process, as the agent, and for the
account, of Tenant upon such terms and conditions as Landlord may
deem advisable (which terms may be materially different from the
terms of this Lease), in which event the rents received on such
reletting shall be applied (i) first to the reasonable and actual
expenses of such reletting and collection, including without
limitation necessary renovation and alterations of the Leased
Premises, reasonable and actual attorneys' fees and any
reasonable and actual real estate commissions paid, and (ii)
thereafter toward payment of all sums due or to become due
Landlord hereunder. If a sufficient amount to pay such expenses
and sums shall not be realized or secured, then Tenant shall pay
Landlord any such deficiency monthly, and Landlord may bring an
action therefor as such monthly deficiency shall arise. Landlord
shall not, in any event, be required to pay Tenant any sums
received by Landlord on a reletting of the Leased Premises in
excess of the rent provided in this Lease, but such excess shall
reduce any accrued present or future obligations of Tenant
hereunder. Landlord's re-entry and reletting of the Leased
Premises without termination of this Lease shall not preclude
Landlord from subsequently terminating this Lease as set forth
below.
(b) Landlord may terminate this Lease by written
notice to Tenant specifying a date therefor, which shall be no
sooner than thirty (30) days following notice to Tenant, and this
Lease shall then terminate on the date so specified as if such
date had been originally fixed as the expiration date of the
Term. In the event of such termination, Landlord shall be
entitled to recover from Tenant the worth at the time of the
award of all of the following:
(i) Any obligation which has accrued prior to the
date of termination, plus,
(ii) The amount of unpaid Basic Rent and all other
charges which would have accrued after termination until the time
of award, plus,
(iii) The amount of unpaid rent for the
balance of the Term (excluding any option periods or portions
thereof not previously exercised).
As used in this Section 20(b) the term, "worth at the
time of the award", shall be computed by allowing simple interest
at the Default Rate for past due obligations, and employing a
discount rate equal to 8.5% on anticipated future obligations, on
the amount of the obligations payable on the date of such
calculation. In the event this Lease shall be terminated as
provided above, by summary proceedings or otherwise, Landlord,
its agents, servants or representatives may immediately or at any
time thereafter peaceably re-enter and resume possession of the
Leased Premises and remove all persons and property therefrom, by
summary dispossession proceedings.
(c) Intentionally Deleted.
(d) Landlord may recover from Tenant, and Tenant shall
pay to Landlord upon demand, as Additional Rent, such reasonable
and actual expenses as Landlord may incur in recovering
possession of the Leased Premises, placing the same in good order
and condition and repairing the same for reletting, and all other
reasonable and actual expenses, commissions and charges incurred
by Landlord in exercising any remedy provided herein or as a
result of any Event of Default by Tenant hereunder (including
without limitation attorneys' fees).
Except as provided in Section 9(b) or 13(e), at any
time upon prior notice to Tenant, Landlord and Lender shall have
the right, but shall not be required, to pay such sums or do any
act which requires the expenditure of monies which may be
necessary or appropriate by reason of the failure or neglect of
Tenant to comply with any of its obligations under this Lease
(Landlord and Lender shall not, however, exercise any such rights
unless the failure or neglect shall have ripened into an Event of
Default), and in the event of the exercise of such right by
Landlord or Lender, Tenant agrees to pay to Landlord or Lender
forthwith upon demand, as Additional Rent, all such sums
including reasonable attorneys fees, together with interest
thereon at the Default Rate.
(e) The various rights and remedies reserved to
Landlord herein are cumulative, the rights and remedies described
in Section 20(a)-(d) shall survive termination of this Lease and
Landlord may pursue any and all such rights and remedies and any
other available to Landlord under applicable law or equity,
whether at the same time or otherwise (to the extent not
inconsistent with specific provisions of this Lease); provided,
however, that no remedy of termination shall be available to
Landlord except as expressly set forth in Section 20(b) after the
occurrence of an Event of Default. Notwithstanding anything
herein to the contrary, Landlord expressly waives its right to
forcibly dispossess Tenant from the Leased Premises, whether
peaceably or otherwise, without judicial process, such that
Landlord shall not be entitled to any "commercial lockout" or any
other provisions of applicable law which permit landlords to
dispossess tenants from commercial properties without the benefit
of judicial review.
21. Notices.
All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications
required or permitted to be given pursuant to the provisions of
this Lease (collectively "Notice" or "Notices") shall be in
writing and shall be deemed to have been given for all purposes
(i) three (3) days after having been sent by United States mail,
by registered or certified mail, return receipt requested,
postage prepaid, addressed to the other party at its address as
stated below, (ii) one (1) day after having been sent by Federal
Express or other nationally recognized air courier service, to
the Addresses stated below or (iii) one (1) day after having been
transmitted via facsimile, provided that a conforming signed
original is mailed to the party to receive the notice on the date
it is transmitted:
(a) If to Landlord, at the address set forth on the
first page of this Lease. Notice to be delivered to Landlord via
facsimile shall be transmitted to (214) 696-9845.
(b) If to Tenant, at the address set forth on the
first page of this Lease, Attention: Office of General Counsel.
Notices to be given to Tenant via facsimile shall be transmitted
to the attention of: William B. May at (714) 773-7936.
If any Lender shall have advised Tenant by Notice in the manner
aforesaid that it is the holder of a Mortgage and stating in said
Notice its address for the receipt of Notices, then
simultaneously with the giving of any Notice by Tenant to
Landlord, Tenant shall serve one or more copies of such Notice
upon Lender in the manner aforesaid and no Notice shall be
effective unless and until Lender shall be sent a copy thereof.
For the purposes of this paragraph, any party may substitute its
address by giving fifteen days' notice to the other party in the
manner provided above.
(c) If to Remainder Landlord, at the address set forth
on the first page of this Lease. Notice to be delivered to
Landlord via facsimile shall be transmitted to (214) 696-9845.
22. Memorandum of Lease; Estoppel Certificates.
(a) Each party shall, upon the request of the other
party, execute, deliver and record, file or register from time to
time all such instruments as may be required by any present or
future law in order to evidence the respective interests of
Landlord and Tenant in any of the Leased Premises, and shall
cause a memorandum of this Lease, and any supplement hereto or to
such other instrument, if any, as may be appropriate, to be
recorded, filed or registered and re-recorded, refiled or re-
registered in such manner and in such places as may be required
by any present or future law in order to give public notice and
protect the validity of this Lease. In the event of any
discrepancy between the provisions of said recorded memorandum of
this Lease or any other recorded instrument referring to this
Lease and the provisions of this Lease, the provisions of this
Lease shall prevail.
(b) Landlord, Lender and Tenant shall, at any time and
from time to time, upon not less than twenty (20) days' prior
written request by the other (or, in the case of an estoppel
certificate requested of either, upon not less than twenty (20)
days' prior written request of Lender), execute, acknowledge and
deliver to the other a statement in writing, executed by Landlord
or Tenant by, a President, Vice President or authorized general
partner, principal officer or agent thereof certifying (i) that
this Lease is unmodified and in full effect (or, if there have
been modifications, that this Lease is in full effect as
modified, setting forth such modifications), (ii) the dates to
which Basic Rent payable hereunder has been paid, (iii) that to
the knowledge of the party executing such certificate, no default
by either Landlord or Tenant exists hereunder or specifying each
such default of which such party may have knowledge; (iv) the
remaining Term hereof; (v) with respect to a certificate signed
by Tenant, that to the knowledge of the party executing such
certificate, there are no proceedings pending or threatened
against Tenant before or by any court or administrative agency
which if adversely decided would materially and adversely affect
the financial condition and operations of Tenant or if any such
proceedings are pending or threatened to said party's knowledge,
specifying and describing the same; (vi) with respect to a
certificate signed by Tenant, that no rent has been paid under
the Lease for more than one (1) month in advance; and (vii) with
respect to a certificate signed by Tenant, that to Tenant's
knowledge Tenant is in full compliance with all Federal, State
and local laws, ordinances, rules and regulations affecting its
use of the Leased Premises, including but not limited to the
handling, storage and disposal of hazardous and/or toxic
materials used or generated as a result of its business conducted
on or about the Leased Premises. It is intended that any such
statements may be relied upon by Lender, the recipient of such
statements or their assignees or by any prospective mortgagee,
purchaser, assignee or subtenant of the Leased Premises.
23. Surrender and Holding Over.
Upon the expiration or earlier termination of this
Lease, Tenant shall peaceably leave and surrender the Leased
Premises (except as to any portion thereof with respect to which
this Lease has previously terminated) to Landlord in the same
condition in which the Leased Premises were originally received
from Landlord at the commencement of this Lease, except as to any
repair or Alteration as permitted or required by any provision of
this Lease, and except for ordinary wear and tear and damage by
fire, casualty or condemnation but only to the extent Tenant is
not required to repair the same hereunder. Tenant may remove at
Tenant's sole cost and expense from the Leased Premises on or
prior to such expiration or earlier termination Tenant's Trade
Fixtures and personal property which are owned by Tenant or third
parties other than Landlord, and Tenant at its expense shall, on
or prior to such expiration or earlier termination, repair any
damage caused by such removal. Tenant's Trade Fixtures and
personal property not so removed at the end of the Term or within
fifteen (15) days after the earlier termination of the Term for
any reason whatsoever shall become the property of Landlord, and
Landlord may thereafter cause such property to be removed from
the Leased Premises. Landlord shall not in any manner or to any
extent be obligated to reimburse Tenant for any property which
becomes the property of Landlord as a result of such expiration
or earlier termination. Upon such expiration or earlier
termination, no party shall have any further rights or
obligations hereunder except as specifically provided herein.
Any holding over by Tenant of the Leased Premises after
the expiration or earlier termination of the term of this Lease
or any extensions thereof, with the consent of Landlord, shall
operate and be construed as tenancy from month to month only, at
one hundred fifty percent (150%) of the Basic Rent reserved
herein and upon the same terms and conditions as contained in
this Lease. Notwithstanding the foregoing, any holding over
without Landlord's consent shall entitle Landlord, in addition to
collecting Basic Rent at a rate of one hundred fifty percent
(150%) thereof, to exercise all rights and remedies provided by
law or in equity, including the remedies of Section 20.
24. No Merger of Title.
There shall be no merger of this Lease nor of the
leasehold estate created by this Lease with the Landlord's
leasehold estate under the Ground Lease by reason of the fact
that the same person, corporation, firm or other entity may
acquire or hold or own, directly or indirectly, (i) this Lease or
the leasehold estate created by this Lease or any interest in
this Lease or in such leasehold estate and (ii) the Landlord's
leasehold estate in any of the Leased Premises or any interest in
such leasehold estate. No such merger shall occur unless and
until all persons, corporations, firms and other entities having
any interest in (x) this Lease or the leasehold estate created by
this Lease and (y) the Landlord's leasehold estate under the
Ground Lease in the Leased Premises including, without
limitation, Lender's interest therein, or any part thereof sought
to be merged shall join in a written instrument effecting such
merger and shall duly record the same.
25. Landlord and Lender Exculpation.
Anything contained herein to the contrary
notwithstanding, any claim based on or in respect of any
liability of Landlord under this Lease shall be enforced only
against the Landlord's interest in Leased Premises and shall not
be enforced against the Landlord individually or personally.
Tenant agrees that any assignment by Landlord to Lender of
Landlord's interest in this Lease, or the rent, payable
hereunder, whether absolute or conditional in nature or
otherwise, whether such assignment is made to the Lender solely
as additional collateral related to a mortgage or otherwise, and
the acceptance thereof by Lender shall never be treated as an
assumption by Lender of any obligations of Landlord hereunder
unless Lender shall, by notice sent to Tenant, specifically
elect, and that Lender shall be treated as having assumed
Landlord's obligations hereunder only upon purchase of the Leased
Premises pursuant to foreclosure of the Mortgage or by deed in
lieu thereof, or other conveyance and then only subject to the
limitations set forth in the first sentence hereof.
26. Hazardous Substances.
(a) Tenant represents and warrants that it will not
on, about, or under the Leased Premises, use, permit, make, treat
or dispose of any "hazardous substances" as that term is defined
in the Comprehensive Environmental Response, Compensation and
Liability Act, and the rules and regulations promulgated pursuant
thereto, as from time to time amended, 42 U.S.C. Section 9601 et
seq. (the "Act") or any Hazardous Materials (as hereinafter
defined), but the foregoing shall not prevent the use, to the
extent necessary and customary in the normal conduct of Tenant's
business, of any such substances in accordance with all Legal
Requirements and Tenant represents and warrants that it will at
all times comply with the Act and any other federal, state or
local laws, rules or regulations governing hazardous substances
or Hazardous Materials. Hazardous Materials as used herein shall
include, without limitation, all chemicals, petroleum, crude oil
or any fraction thereof, hydrocarbons, polychlorinated biphenyls
(PCBs), asbestos, asbestos-containing materials and/or products,
urea formaldehyde, or any substances which are classified as
"hazardous" or "toxic" under the Act; hazardous waste as defined
under the Solid Waste Disposal Act, as amended 42 U.S.C. Section
6901; air pollutants regulated under the Clean Air Act, as
amended, 42 U.S.C. Section 7401, et seq.; pollutants as defined
under the Clean Water Act, as amended, 33 U.S.C. Section 1251, et
seq., any pesticide as defined by Federal Insecticide, Fungicide,
and Rodenticide Act, as amended, 7 U.S.C. Section 136, et seq.,
any hazardous chemical substance or mixture or imminently
hazardous substance or mixture regulated by the Toxic Substances
Control Act, as amended, 15 U.S.C. Section 2601, et seq., any
substance listed in the United States Department of
Transportation Table at 45 CFR 172.101; any chemicals included in
regulations promulgated under the above listed statutes or any
modifications thereof or successor statutes thereto; any
explosives, radioactive material, and any chemical regulated by
state statutes similar to the federal statutes listed above and
regulations promulgated under such state statutes. Landlord
shall, upon the request of Tenant, promptly execute all permits
or such other instruments as may be required by Legal
Requirements, the Act, the federal statutes listed above or
similar state statutes to be executed by the owner of the
property, provided such documents are in form and substance
reasonably satisfactory to Landlord.
(b) To the extent required by the Act and/or any other
Legal Requirements, Tenant shall remove any hazardous substances
(as defined in the Act) and Hazardous Materials (as defined
above) whether now or hereafter existing on, about or under the
Leased Premises and whether or not arising out of or in any
manner connected with Tenant's occupancy of the Leased Premises
during the Initial Term or any extension or renewal Term thereof.
Tenant shall and hereby does agree to defend, indemnify and hold
Lender and Landlord, their officers, directors, shareholders,
partners and employees harmless from and against any and all
causes of actions, suits, demands or judgments of any nature
whatsoever, losses, damages, penalties, expenses, fees, claims,
costs (including response and remedial costs), and liabilities,
including, but not limited to, attorneys fees and costs of
litigation, arising out of or in any manner connected with (i)
the violation of and liability under any environmental Legal
Requirements with respect to the Leased Premises; and (ii) the
"release" or "threatened release" of or failure to remove, as
required by this Section 26, "hazardous substances" (as defined
in the Act) and Hazardous Materials (as defined above) on, about
or under the Leased Premises or any portion or portions thereof,
now or hereafter existing during the Initial Term and any
extension or renewal Term whether or not arising out of or in any
manner connected with Tenants' occupancy of the Leased Premises
during the Initial Term or any extension or renewal Term. The
obligations of Tenant under this Section 26(b) shall survive any
termination of this Lease.
(c) The Tenant represents, warrants and covenants that
it will not install any underground storage tank without
specific, prior written approval from the Landlord, which may be
withheld in its sole discretion. The Tenant will not store
combustible or flammable materials on the Leased Premises in
violation of the Act and any Legal Requirements governing
Hazardous Materials.
27. Right of First Refusal to Purchase.
(a) If, at any time and from time to time during the
term of the Lease (excluding the first eighteen (18) months of
this Lease), Landlord decides to sell, exchange or otherwise
transfer the Leased Premises to a Qualified Purchaser, either by
direct transfer or indirectly as a result of a change or transfer
of 25% or more of the ownership interests in and to Landlord to a
Qualified Purchaser, or otherwise by operation of law, Landlord
shall give written notice to Tenant of the terms of such
transfer. Landlord's notice shall set forth the economic terms
on which Landlord has received a bona fide offer to sell the
Leased Premises or such ownership interest to a third party (or
from which Landlord's owners intend to transfer their interests
to a third party, if applicable) and offer to Tenant a cash or
cash equivalent price and terms for which Tenant may purchase the
Leased Premises or such ownership interest, and which cash
equivalent price and terms will not include the purchase by
Tenant of other property of Landlord or require repayment of the
debt of Landlord, but may provide for the assumption of debt
secured by the property. In the event of an offer or proposed
transfer on other than an all cash basis (other than requiring
the assumption of property specific debt), Landlord shall
reasonably and in good faith determine the cash equivalent price.
Tenant shall have thirty (30) days after receipt of the notice in
which to elect to acquire the Leased Premises or such ownership
interest on the terms contained in the notice. Such election to
purchase shall be by written notice to Landlord. If Tenant fails
to accept such offer in accordance with this paragraph within the
applicable time period, Tenant shall be conclusively presumed to
have rejected such offer, in which event Landlord shall be free,
at any time thereafter, to sell the Leased Premises or such
ownership interest to a Qualified Purchaser at a purchase price
and upon terms and conditions not more favorable to the Qualified
Purchaser than those contained in Landlord's notice to Tenant,
except as specifically provided below. Upon Landlord's request,
Tenant shall affirm in writing within five (5) Business Days,
after expiration of the applicable time period, that such offer
has been rejected. This right of first refusal shall not apply
to: (i) any offer or sale incidental to the exercise of any
remedy by Lender or any mortgagee or beneficiary under any
mortgage, deed of trust or similar security instrument creating a
lien on the interest of Landlord in the Leased Premises, (ii) any
transfer by or among the owners of Landlord to any other owner of
Landlord, or a transfer by any beneficial owner to such owner's
immediate family or lineal descendants or a trust for the benefit
of any one or more of the foregoing, or to a corporation or other
entity in which any one or more of the foregoing has a
controlling interest, or to an entity controlled by, under common
control with or controlling Landlord or to an organization
qualified under section 501(c)(3) of the Internal Revenue Code or
to a wholly-owned subsidiary of such an organization, (iii) a
transaction or transfer resulting from the sale, reorganization
or consolidation of all or substantially all of the assets of any
of the constituent owners of Landlord, or (iv) any transfer
resulting from the death or incompetence of any individual. If
Landlord desires to sell or offer for sale the Leased Premises or
such ownership interest for a lower purchase price or on terms
more favorable to the Qualified Purchaser than offered to and not
accepted by Tenant, Landlord shall not convey the Leased Premises
or such ownership interest without first again offering to Tenant
the right to purchase the Leased Premises or such ownership
interest as provided above; provided, however, that such sale or
offer shall only be deemed to be more favorable if the proposed
sale price and terms shall be less than ninety-five percent (95%)
of the sale price (or cash equivalent price) offered to Tenant.
In the event Landlord is required to re-offer the Leased Premises
or such ownership interest to Tenant pursuant to the preceding
sentence, Tenant shall have ten (10) Business Days after receipt
of such re-offer in which to elect to acquire the Leased Premises
or such ownership interest on the terms contained in such notice
after which time Landlord shall be free to sell the Leased
Premises or such ownership interest on such terms. The
provisions of this paragraph shall apply to each subsequent price
reduction, if any, meeting the criteria set forth herein. Any
purchase pursuant to this Section 27 shall be in accordance with
the Purchase Procedure. Any conveyance by Landlord of the Leased
Premises or such ownership interest to any person other than to
Tenant shall be made subject to this Lease, including the
continuing right of first refusal granted to Tenant under this
Section 27, and this Lease shall continue in full force and
effect. Upon any conveyance by Landlord of the Leased Premises
or such ownership interest, Landlord shall provide Tenant with
copies of any change of ownership statements prior to the filing
of such statements with any governmental authority or agency.
Notwithstanding the provisions of Section 21, if Landlord
provides such copies by facsimile, same shall be deemed to have
been given on the date transmitted.
28. Purchase Procedure.
(a) In the event of the purchase by the Tenant of the
Leased Premises pursuant to any provision of this Lease, the
terms and conditions of this Section 28 shall apply. At a time
and place and the date fixed for such purchase in this Lease, or
at such other place, time or date as the Landlord and the Tenant
shall mutually agree:
(i) the Tenant shall pay the purchase price to
the Landlord by wire transfer of immediately available federal
funds, in lawful money of the United States, to an account or
accounts designated by the Landlord, together with all Basic
Rent, Additional Rent, and Non-Rent Monetary Obligations accrued
and unpaid as of such date, subject in the case of a purchase of
the Leased Premises pursuant to Section 12, to the reduction of
the purchase price of the Leased Premises by the Landlord's
application to the payment of such purchase price of the amount
of any Award paid to and retained by the Landlord or Lender with
respect to the Leased Premises; and
(ii) the Landlord shall execute and deliver to the
Tenant a grant deed (or other form appropriate for the applicable
jurisdiction) in recordable form, and such other instrument or
instruments as may be appropriate, to transfer the Leased
Premises to the Tenant free and clear of all material liens
(other than Permitted Encumbrances, liens created or suffered
through or by or with the consent of Tenant, and any installment
of Taxes due and payable after the Commencement Date and this
Lease), together with such evidence of the Landlord's authority
to sell the Leased Premises to the Tenant, and of the
authorization of the sale of the Leased Premises, and the
execution and delivery of the deed by the Landlord, and of such
other matters as the Tenant may reasonably request, all of which
shall be reasonably satisfactory to the Tenant in form and
substance, and a certification of non-foreign status as required
by the Foreign Investment in Real Property Tax Act and the
regulations promulgated thereunder and any similar certificates
required by the State. In the case of a purchase of the Leased
Premises by the Tenant pursuant to Section 12, the Landlord shall
also pay to the Tenant the Award received by the Landlord and not
previously applied to Restoration or paid to the Tenant by the
Landlord with respect to the Leased Premises (unless the Tenant
shall have received a credit against the purchase price in
respect thereof or, if payment of the Award has not been made as
of the closing of the purchase of the Leased Premises, assigned
to the Tenant the right to receive the Landlord's portion of the
Award relating to the Leased Premises when such Award is paid).
(b) In the case of a purchase pursuant to this Lease
under Section 12(b), the Tenant shall pay all charges incident to
such transfer, including all recording fees, reasonable
attorneys' fees, costs and expenses, title insurance premiums, if
any, survey costs and transfer taxes or other similar taxes (the
"Transaction Costs"). However, in the case of a purchase
pursuant to the exercise of Tenant's right of first refusal under
Section 27 of this Lease, the Tenant shall pay only those
Transaction Costs to be paid by a purchaser under the terms set
forth in Landlord's notice of the terms of such proposed transfer
in accordance with Section 27.
(c) In the event of the termination of this Lease with
respect to the Leased Premises as herein provided, the
obligations and liabilities of the Landlord and the Tenant, as
the case may be, whether actual or contingent, under this Lease
that arose at or prior to such termination and that are expressly
stated herein to survive the termination of this Lease shall
survive termination.
(d) The Tenant shall execute and deliver to the
Landlord an environmental indemnity agreement, in form, scope and
substance reasonably acceptable to the Landlord, pursuant to
which the Tenant shall agree to be liable for and pay, and shall
indemnify, hold harmless and defend Landlord from and against,
any Claim arising under environmental Legal Requirements from and
after the effective date of the purchase pursuant to this Section
28.
29. Entry by Landlord and Lender.
Landlord, Lender and their authorized representatives
and experts shall have the right upon reasonable notice (which
shall be not less than 48 hours except in the case of emergency)
to enter the Leased Premises at all reasonable business hours,
(and at all other times in the event of an emergency), for (i)
the purpose of inspecting the same, (ii) the purpose of doing any
work under Section 9, (and, in each case, may take all such
action thereon as may be necessary or appropriate for any such
purpose (but nothing contained in this Lease or otherwise shall
create or imply any duty upon the part of Landlord or Lender to
make any such inspection or do any such work)), and (iii) the
purpose of showing the Leased Premises to prospective Qualified
Purchasers and mortgagees and, at any time within twelve (12)
months prior to the expiration of the term of this Lease for the
purpose of showing the same to prospective tenants. No such
entry shall constitute an eviction of Tenant but any such entry
shall be done by Landlord in such reasonable manner as to
minimize any disruption of Tenant's business operation. Landlord
shall obtain the agreement of the Lender or any other person who
enters the Leased Premises to comply with the provisions of
Section 42. Tenant shall reasonably cooperate with Landlord,
Lender and/or their authorized representatives and experts in
connection with any such inspection.
30. Statements.
Tenant named herein shall each submit to Lender and
Landlord (i) within 45 days of the end of each of the first three
fiscal quarters of each fiscal year of Tenant named herein,
quarterly balance sheets, income and cash flow statements for
Tenant named herein, certified by a senior financial officer of
Tenant; (ii) within 90 days of the end of each fiscal year,
annual balance sheets, income and cash flow statements for Tenant
named herein, certified by an independent public accountant.
Quarterly 10Qs as filed with the Securities and Exchange
Commission shall satisfy the requirements contained in (i)
herein. Copies of the 10 Ks filed with the Securities and
Exchange Commission will satisfy the requirement contained in
(ii) herein. The obligations of Tenant named herein shall
continue whether or not this Lease shall have been assigned by
Landlord or Tenant.
31. No Usury.
The intention of the parties being to conform strictly to the
usury laws now in force in the State, whenever any provision
herein provides for payment by Tenant to Landlord of interest at
a rate in excess of the legal rate permitted to be charged, such
rate herein provided to be paid shall be deemed reduced to such
legal rate.
32. Broker.
Landlord and Tenant represent and warrant to each other
that, except for Citicorp Real Estate, Inc. (which amounts, if
any, shall be the responsibility of Tenant pursuant to a separate
agreement), neither party negotiated with any broker in
connection with this Lease and that this Lease was negotiated
directly by Landlord and Tenant. Each party hereby agrees to
indemnify the other against all claims, damages, costs and
expenses incurred by the indemnified party as a result of the
breach of the foregoing representation or warranty by the
indemnifying party.
33. Waiver of Landlord's Lien.
Landlord hereby waives any right to distrain Trade
Fixtures or any property of Tenant and any Landlord's lien or
similar lien upon Trade Fixtures and any other property of Tenant
regardless of whether such lien is created or otherwise.
Landlord agrees, at the request of Tenant, to execute a waiver of
any Landlord's or similar lien for the benefit of any present or
future holder of a security interest in or lessor of any of Trade
Fixtures or any other personal property of Tenant. Landlord
acknowledges and agrees in the future to acknowledge (in a
written form reasonably satisfactory to Tenant) to such persons
and entities at such times and for such purposes as Tenant may
reasonably request that Trade Fixtures are Tenant's property and
not part of Improvements (regardless of whether or to what extent
such Trade Fixtures are affixed to the Improvements) or otherwise
subject to the terms of this Lease.
34. No Waiver.
No delay or failure by either party to enforce its
rights hereunder shall be construed as a waiver, modification or
relinquishment thereof.
35. Separability.
If any term or provision of this Lease or the
application thereof to any provision of this Lease or the
application thereof to any person or circumstances shall to any
extent be invalid and unenforceable, the remainder of this Lease,
or the application of such term or provision to person or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and shall be enforced to
the extent permitted by law.
36. Indemnification.
(a) Tenant agrees to defend, pay, protect, indemnify,
save and hold harmless (the "General Indemnity") Landlord and
Lender, and their respective officers, directors, shareholders,
partners, beneficiaries and employees (each an "Indemnified
Party") from and against any and all liabilities, losses,
damages, penalties, costs, expenses (including reasonable
attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature whatsoever, howsoever caused,
arising from this Lease or the use, non-use, occupancy,
condition, design, construction, maintenance, repair or
rebuilding of any of or otherwise relating to, the Leased
Premises or Adjoining Property, and any injury to or death of any
person or persons or any loss of or damage to any property, real
or personal, in any manner arising therefrom connected therewith
or occurring thereon (collectively, "Losses").
(b) The General Indemnity shall not apply to Losses
that are attributable to or for: (i) acts or events occurring
after expiration of the Term and redelivery of the Leased
Premises to the Landlord, (ii) taxes (whether or not indemnified
by the Tenant under other agreements) based on the income,
receipts or profits of Landlord, unless included within the
definition of "Taxes" as defined in this Lease, (iii) the
negligence or willful misconduct or breach of any representation
or warranty by the Landlord or the Lender, or their respective
employees, agents, or contractors in this Lease, (iv) any
obligation or liability of the Indemnified Parties in this Lease,
or (v) any losses resulting from the imposition of any lien which
the Landlord is required to lift and discharge and which Tenant
is not obligated to lift and discharge under this Lease.
(c) From and after the Loan Repayment Date, Landlord
shall indemnify and hold harmless Tenant from and against any and
all obligations, claims, losses, damages, liabilities and
expenses (including, without limitation, reasonable attorneys'
and accountants' fees and disbursements) arising out of the gross
negligence or willful misconduct of Landlord or its employees,
agents or contractors or breach by Landlord of any material
representation, warranty or covenant in this Lease.
37. Permitted Encumbrances.
Tenant agrees that Tenant is obligated to and shall
perform all obligations of the owner of the Leased Premises and
pay all expenses which the owner of the Leased Premises may be
required to pay in accordance with the Permitted Encumbrances.
Tenant further covenants and agrees to indemnify, defend and hold
harmless Landlord and Lender against any claim, loss or damage
suffered by Landlord or Lender by reason of Tenant's failure to
perform any obligations or pay any expenses as required under any
of the Permitted Encumbrances or comply with the terms and
conditions of any of the Permitted Encumbrances as hereinabove
provided during the term of this Lease.
38. Headings.
The paragraph headings in this Lease are used only for
convenience in finding the subject matters and are not part of
this Lease or to be used in determining the intent of the parties
or otherwise interpreting this Lease.
39. Modifications.
(a) This Lease may be modified, amended, discharged or
waived only by an agreement in writing signed by the party
against whom enforcement of any such modification, amendment,
discharge or waiver is sought. Each of Tenant and Landlord
agrees that it will not modify this Lease without the written
consent of Stanford. Each of Tenant and Landlord agrees that it
will not modify or amend this Lease without the written consent
of Lender within any period during which there is a Lender
hereunder. In the event of any inconsistent instruction from
Landlord and Lender, Tenant shall comply with the instruction of
Lender.
(b) The parties hereto agree that it is intended that
the Lease and the Lease Modification Agreement together (i)
represent a single, indivisible agreement between the parties and
(ii) are interdependent and interrelated.
40. Successors, Assigns.
The covenants of this Lease shall run with the Land and
bind Tenant, the heirs, distributees, personal representatives,
successors and permitted assigns of Tenant and all present and
subsequent encumbrances and subtenants of any of the Leased
Premises, and shall inure to the benefit of and bind Landlord,
its successors and assigns. In the event there is more than one
Tenant, the obligation of each shall be joint and several. The
term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners of the
Leased Premises or holder of the Mortgage in possession at the
time in question of the Leased Premises and in the event of any
transfer or transfers of the title of the Leased Premises, the
Landlord herein named (and in case of any subsequent transfers or
conveyances, the then grantor) shall be automatically freed and
relieved from and after the date of such transfer and conveyance
of all personal liability as respects the performance of any
covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed.
41. Merger.
The Tenant shall have the right to consolidate or merge
with another corporation, or sell substantially all of its assets
to a person or entity without the prior consent of the Landlord;
provided however in the event of a transfer or assignment of this
lease in connection therewith Tenant or its successor in interest
shall satisfy the requirements of Section 17(b).
42. Confidentiality.
Landlord agrees that any information it obtains about
Tenant's business operations, finances, existing and proposed
products, facilities (but not the Leased Premises owned by
Landlord), and manufacturing processes is Tenant's confidential
and proprietary information. Landlord agrees that it will
maintain Tenant's confidential and proprietary information in
confidence, will not disclose or disseminate the information to
any third party, without Tenant's express prior written consent,
and will use the information only for purposes of enforcing
Landlord's rights and fulfilling Landlord's obligations in
connection with this Lease. Landlord agrees to inform all of its
employees, officers, and directors to whom the information is
given of the confidential nature of such information.
Notwithstanding the foregoing, nothing contained herein shall
prevent Landlord from disclosing information or materials if
Landlord can demonstrate that: (i) it is required to do so by
Legal Requirements; (ii) the information being so disclosed is in
the public domain at the time of its disclosure; (iii) the
information being so disclosed was obtained by Landlord on a non-
confidential basis from a source other than Tenant; or (iv) the
information being so disclosed was known to Landlord on a non-
confidential basis prior to its disclosure to Landlord by Tenant.
43. Specific Requirements of Special Purpose Entity.
From and after the Loan Repayment Date:
(a) Landlord represents, warrants and covenants as follows:
(i) The purpose for which the Landlord is rganized shall
be limited solely to (a) owning, holding, selling,
leasing, transferring, exchanging, operating and
managing the Leased Premises, (b) entering into the
loan with the Lender, (c) refinancing the Leased
Premises in connection with a permitted repayment of
the loan and (d) transacting any and all lawful
business for which a borrower may be organized under
its constitutive law that is incident, necessary and
appropriate to accomplish the foregoing.
(ii) Landlord does not own and will not own any asset or
property other than (a) the Leased Premises, and (b)
incidental personal property necessary for and used or
to be used in connection with the ownership or
operation of the Leased Premises.
(iii) Landlord will not engage in any business other than
the business for which it is organized under clause
(i) above.
(iv) Landlord will not enter into any contract or agreement
with any Affiliate of the Landlord, any Beneficiary of
Landlord, any owner of the Landlord, any guarantor or
any Affiliate of any Beneficiary, owner or guarantor,
except upon terms and conditions that are
intrinsically fair, commercially reasonable and
substantially similar to those that would be available
on an arms-length basis with third parties not
Affiliated with the Landlord.
(v) Landlord has not incurred and will not incur any
indebtedness other than (a) the loan with Lender, (b)
trade and operational debt incurred in the ordinary
course of business with trade creditors and in amounts
as are normal and reasonable under the circumstances,
provided such debt is not evidenced by a note and is
paid when due, and (c) indebtedness incurred in the
financing of equipment and other personal property
used on the Leased Premises. No indebtedness other
than the loan with Lender may be secured (subordinate
or pari passu) by the Leased Premises.
(vi) Landlord has not made and will not make any loans or
advances to any entity or Person (including any
Affiliate or Beneficiary, any guarantor or any
Affiliate of any Beneficiary or guarantor), shall not
buy or hold evidence of indebtedness issued by any
other Person or entity (other than cash and investment
grade securities) and shall not acquire obligations or
securities of its Affiliates or owners, including partners,
members, Beneficiaries or shareholders, as appropriate.
(vii) Landlord is and will remain solvent and and lord will
pay its debts and liabilities (including, as
applicable, shared personnel and overhead expenses)
from its assets as the same shall become due unless
such insolvency or failure to pay debts and
liabilities is caused by Tenant's default under this
Lease.
(viii)Landlord has done or caused to be done and will
do all things necessary to observe organizational
formalities and preserve its existence, and Landlord
will not, nor will Landlord permit any Beneficiary,
Affiliate of Landlord or any guarantor to amend,
modify or otherwise change the partnership
certificate, partnership agreement, articles of
incorporation and bylaws, operating agreement, trust
or other organizational documents of Landlord or any
SPC Party (as defined below) which is in violation of
the provisions of this Section 43 without the prior
written consent of Tenant.
(ix) Landlord will maintain all of its books, records,
financial statements and bank accounts separate from
those of its Affiliates and any other Person or
entity. Landlord's assets will not be listed as
assets on the financial statement of any other entity.
Landlord, if required by law to file a separate tax
return, will file its own tax returns and will not
file a consolidated federal income tax return with any
other corporation. Landlord shall maintain its books,
records, resolutions and agreements as official
records.
(x) Landlord will be, and at all times will hold itself
out to be the public as, a legal entity separate and
distinct from any other entity (including any
Affiliate, Beneficiary or guarantor of Landlord),
shall correct any known misunderstanding regarding its
status as a separate entity, shall conduct business in
its own name, shall not identify itself or any of its
Affiliates as a division or part of the other and
shall maintain and utilize separate stationery,
invoices and checks.
(xi) Landlord will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of
its size and character and in light of its
contemplated business operations.
(xii) Neither Landlord nor any Beneficiary or Affiliate will
seek the dissolution, winding up, liquidation,
consolidation or merger in whole or in part, or,
except in accordance with Section 27, the sale of
material assets of the Landlord.
(xiii)Landlord will not commingle the funds and other assets
of Landlord with those of any Affiliate or
Beneficiary, any guarantor, or any Affiliate of any
Beneficiary or guarantor, or any other Person, and
will not participate in any cash management system
with any such party.
(xiv) Landlord will not commingle its assets with those of
any other Person or entity and will hold all of its
assets in its own name.
(xv) Landlord will not guarantee or become obligated for
the debts of any other entity or Person and does not
and will not hold itself out as being responsible for
the debts or obligations of any other Person.
(xvi) If Landlord is a limited partnership or a limited
liability company, each general partner or managing
member (each, an "SPC Party") shall be a corporation
whose sole asset is its interest in Landlord and each
such SPC Party will at all times comply, and will
cause Landlord to comply, with each of the
representations, warranties, and covenants contained
in this Section 43 as if such representation, warranty
or covenant was made directly by such SPC Party.
(xvii)Landlord shall at all times cause there to be at least
one duly appointed member of the board of directors
(an "Independent Director") of each SPC Party in
Landlord who is not at the time of initial appointment
and has not been at any time during the preceding five
(5) years: (a) a stockholder, director, officer,
employee, partner, attorney or counsel of the
corporation, the Landlord or any Affiliate of either
of them; (b) a customer, supplier or other Person who
derives more than 10% of its purchases or revenues
from its activities with the corporation, the Landlord
or any Affiliate of either of them; (c) a Person or
other entity Controlling or under common Control with
any such stockholder, partner, customer, supplier or
other Person; or (d) a member of the immediate family
of any such stockholder, director, officer, employee,
partner, customer, supplier or other Person. (As used
herein, the term "Control" means the possession,
directly or indirectly, of the power to direct or
cause the direction of management, policies or
activities of a Person or entity, whether through
ownership of voting securities, by contract or
otherwise). If Landlord is a trust, there shall at
all times be one independent trustee who at all times
meets the criteria for an Independent Director.
(xviii)Landlord shall not cause or permit the board of
directors of each SPC Party in Landlord to take any
action which, under the terms of any certificate of
incorporation, by-laws or any voting trust agreement
with respect to any common stock, require the vote of
any SPC Party in Landlord unless at the time of such
action there shall be at least one member who is an
Independent Director. If Landlord is a trust,
Landlord shall not cause or permit the Landlord to
take any action which under the terms of the trust
agreement requires the vote of the independent trustee
unless at the time of such action there shall be at
least one independent trustee who meets the criteria
for an Independent Director.
(xix) Landlord shall conduct its business so that the
assumptions made with respect to Landlord in that
certain opinion letter dated June 25, 1998 (the
"Insolvency Opinion") delivered by Hiersche, Martens,
Hayward, Drakely & Urbach, P.C. in connection with the
loan with Lender shall be true and correct in all
respects. In the event of the sale or transfer of the
Leased Premises or the transfer of any part of the
beneficial interest in Landlord in accordance with the
provisions of the Section 8 of the Mortgage, Landlord
shall conduct its business so that the assumptions
with respect to the Landlord in the non-consolidation
opinion delivered pursuant to Section 8(f)(iv) of the
Mortgage shall be true and correct in all respects.
(xx) Landlord shall allocate fairly and reasonably any
overhead expenses that are shared with an Affiliate,
including paying for office space and services
performed by any employee of an Affiliate.
(xxi) The stationery, invoices, and checks utilized by
Landlord or utilized to collect its funds or pay its
expenses shall bear its own name and shall not bear
the name of any other entity unless such entity is
clearly designated as being Landlord's agent.
(xxii)Landlord shall not pledge its assets for the benefit
of any other Person or entity, other than with respect
to the loan with Lender.
(xxiii)Landlord shall not identify itself as a division of
any other Person or entity.
(xxiv)Landlord shall pay the salaries of its own employees,
if any, from its own funds.
(xxv) Landlord shall maintain a sufficient number of
employees in light of its contemplated business
operations.
(b) From and after the Loan Repayment Date, the
representations, warranties, and covenants of this Section 43
shall apply to and be binding on any of Landlord's successors in
interest.
(c) From and after the Loan Repayment Date: Landlord
acknowledges that monetary damages may not be an adequate remedy
for Tenant if Landlord should be determined to be in default
under this Section 43. Accordingly, Landlord agrees that upon
any default by Landlord under this Section 43, Tenant shall have
the option to institute an action for specific performance under
this Section.
44. Joinder of Remainder Landlord.
(a) Except as provided in subsection (b) of this
Section 44, Remainder Landlord joins in the execution of this
Lease solely for the purposes of (i) consenting to the terms and
conditions of this Lease and the execution thereof by Landlord
and (ii) if the Landlord's interest in the Leased Premises
expires prior to the end of the term of this Lease, Remainder
Landlord shall become the Landlord for all purposes hereunder and
Remainder Landlord specifically agrees that (x) it will be bound,
from and after that time only, by all terms, covenants and
conditions of this Lease and (y) it will be jointly and severally
liable with Landlord for all actions, inactions, defaults, and
breaches of Landlord under the Lease prior to such time.
(b) Notwithstanding anything to the contrary contained
in subsection (a) of this Section 44, Remainder Landlord
specifically agrees that (i) Remainder Landlord will not transfer
all or any portion of any interest it has in the Leased Premises
to any Person other than a Qualified Purchaser, and (ii)
Remainder Landlord will be bound by the provisions of Section 27
and Section 43 of this Lease.
(c) Landlord, Remainder Landlord and Tenant hereby
agree that until the expiration of the Landlord's interest in the
Leased Premises, (i) any reference in Section 43 of this Lease
shall mean (x) with respect to Landlord, Landlord's interest in
the Leased Premises and (y) with respect to Remainder Landlord,
Remainder Landlord's interest in the Leased Premises; and (ii)
for all purposes under this Lease, Tenant may treat Landlord as
the sole Landlord under this Lease, and need not obtain from
Remainder Landlord any consent, waivers, approval or other action
and Remainder Landlord will be bound by any and all such
consents, waivers, approvals or other actions taken by Landlord
prior to the expiration of the Landlord's interest in the Leased
Premises; provided that Tenant agrees that any notice required to
be provided to Landlord under this Lease shall also be sent to
Remainder Landlord.
(d) Remainder Landlord hereby agrees with Tenant, for
the benefit of Tenant and its successors and assigns that if
Tenant or any of its successors or assigns acquires the Leased
Premises, then (i) any right of first refusal granted by
Remainder Landlord shall automatically terminate without any
further action by Remainder Landlord; and (ii) Remainder Landlord
shall obtain the written consent (in recordable form) of the
beneficiary of any such right of first refusal to the automatic
termination of such right of first refusal pursuant to this
subsection (d).
45. Compliance with Ground Lease.
Tenant's occupancy of the Leased Premises is subject to
the requirements of the Ground Lease. Tenant shall comply with
the requirements of the Ground Lease at all times and shall not
conduct any activities which would constitute breach of the
Ground Lease. If there is a conflict between the requirements of
the Ground Lease and of this Lease such that compliance with this
Lease would result in a breach of the Ground Lease or compliance
with the Ground Lease would result in a breach of this Lease, the
Ground Lease shall be controlling; otherwise the Tenant shall
comply with the provisions of both this Lease and the Ground
Lease. Landlord represents and warrants to Tenant that (i)
Landlord will not exercise any right it may have to terminate the
Ground Lease unless it also has the right to terminate this
Lease; and (ii) Landlord will not modify or amend the Ground
Lease during the Lease Term unless such modification or amendment
is consented to in writing by Tenant.
46. Counterparts.
This Lease may be executed in several counterparts,
which together shall be deemed one and the same instrument.
47. Time of the Essence.
Time is of the essence in this Lease and each and every
provision hereof in which any date or time is specified.
48. Governing Law.
This Lease shall be governed by and construed according to
the laws of the State.
IN WITNESS WHEREOF, Landlord and Tenant have caused
this instrument to be executed under seal as of the day and year
first above written.
LANDLORD:
NPDC-EY PALO ALTO TRUST
M. SCOTT KIPP
By: M. Scott Kipp
Its: Administrative Trustee
TENANT:
BECKMAN COULTER
By: WILLIAM H. MAY
Its: Vice President, General Counsel
and Secretary
REMAINDER LANDLORD:
NPDC-RI PALO ALTO TRUST
M. SCOTT KIPP
By: M. Scott Kipp
Its: Administrative Trustee
<PAGE>
EXHIBITS
A - Property Description
B - Renewal Rent
C - Purchase Price Upon Involuntary Termination
D - Tenant's Severable Personal Property
E - Ground Lease
<PAGE>
EXHIBIT B
RENEWAL RENT
Renewal Period Annual Rent
1st and 2nd Renewal Terms $8,011,197
3rd through 6th Renewal Terms The greater of Basic Rent for the
prior annual period and 95% of Fair
Rental Value at commencement of
Renewal Term
For purposes of this Lease, "Fair Rental Value" shall
be determined by mutual agreement of the Landlord and Tenant. If
the Landlord and Tenant are unable to agree on such value within
fifteen (15) months prior to the expiration of the then current
Term, then "Fair Rental Value" shall mean, as to the Leased
Premises, the value, determined consistently with standard
appraisal methodology, that would be obtained at an arms-length
transaction for cash between informed and willing parties,
neither of whom is under any compulsion to lease or rent, for the
leasing of the Leased Premises (but which value shall not include
any value attributable to (i) any Severable Alterations made
during the Term of this Lease by the Tenant, (ii) any of the
Landlord's Severable Personal Property, or (iii) any of Tenant's
Trade Fixtures).
Such appraisal shall be completed by an appraiser
mutually selected by Landlord and Tenant. If Landlord and Tenant
are unable to agree on the selection of a mutually acceptable
appraiser, then Landlord shall submit a list of names, from which
Tenant shall, within fifteen (15) days after Landlord's
submission, select one appraiser to complete the appraisal.
EXHIBIT 2.9
Execution Copy
LEASE MODIFICATION AGREEMENT
between
BECKMAN COULTER, INC.
as Tenant,
NPDC - EY BREA TRUST
as Landlord
and
NPDC - RI BREA TRUST
as Remainder Landlord
Dated June 25, 1998
PROPERTY
200 and 250 S. Kraemer Blvd., Brea, CA
<PAGE>
THIS LEASE MODIFICATION AGREEMENT is made as of this 25th
day of June 1998 by and among NPDC-EY BREA TRUST, a Delaware
business trust, having an office at c/o Cardinal Capital
Partners, Inc., 8411 Preston Road, 8th Floor, Dallas, Texas
75225-5520 ("Landlord"), NPDC-RI BREA TRUST, a Delaware business
trust, having an office at c/o Cardinal Capital Partners, Inc.,
8411 Preston Road, 8th Floor, Dallas, Texas 75225--5520
("Remainder Landlord"), and BECKMAN COULTER, INC., a Delaware
corporation, having its principal office at 4300 N. Harbor
Boulevard, P.O. Box 3100, Fullerton, California 92834--3100
("Tenant").
WHEREAS, concurrently with the entering into of this
Agreement, Remainder Landlord, Landlord and Tenant have entered
into a lease, dated as of the date hereof, with respect to the
real property described on the cover page of this Lease
Modification Agreement (as such Lease has been amended and
modified pursuant to this Lease Modification Agreement, the
"Lease"); and
WHEREAS, the rentals due under the Lease, as originally
executed, are payable in Dollars; and
WHEREAS, Remainder Landlord, Landlord and Tenant have agreed
to amend the Lease to provide that payment of rents thereunder
shall be in Yen, so long as there is in place a currency swap or
swaps which provide for the exchange of the Yen rents which
Landlord is entitled to receive for an amount in Dollars equal to
the Dollar amounts of rent originally designated in the Lease,
and provided further that Landlord has the assurance that at such
time as such currency swap or swaps are no longer in place, the
rent due under the Lease will again be payable in Dollars, as
contemplated by the Lease as originally executed without regard
to its amendment in this Lease Modification Agreement;
IN CONSIDERATION of the mutual agreements herein contained
and other good and valuable consideration, Remainder Landlord,
Landlord and Tenant hereby covenant and agree as follows:
1. Certain Definitions
(a) "Basic Dollar Rent" means the Dollar amount of the
monthly installment of Basic Rent to be paid under Paragraph 4(a)
of the Lease as in effect without regard to this Lease
Modification Agreement.
(b) "Basic Yen Rent" means the amount of Yen specified in a
Qualifying Exchange Agreement.
(c) "Conversion Notice" means a notice from Tenant to
Landlord, as described in Paragraph 3 (a) below, requesting
conversion of the Basic Rent payments due under the Lease to
Dollars, instead of the Yen which are due pursuant to this Lease
Modification Agreement.
(d) "Dollar" or "Dollars" means the currency of the United
States of America.
(e) "Lease" means that certain Lease among Remainder
Landlord, Landlord and Tenant, as defined in the first Recital of
this Lease Modification Agreement.
(f) "Qualifying Exchange Agreement" means a currency swap
agreement (i) pursuant to which a Qualifying Financial
Institution undertakes to pay Landlord on or before the first
Business Day (as defined in the Lease) of each month an amount in
Dollars equal to the Basic Dollar Rent and Landlord agrees to pay
such Qualifying Financial Institution on the same date a sum
certain in Yen, as set forth in such Qualifying Exchange
Agreement; and (ii) which shall have the other terms and
conditions set forth in Paragraph 2(b) hereof. "Qualifying
Exchange Agreement" shall also mean two or more currency swap
agreements which in the aggregate satisfy the requirements of a
Qualifying Exchange Agreement hereunder, and shall mean such
agreement, as modified, amended and supplemented from time to
time.
(g) "Qualifying Financial Institution" means one or more
banks or other financial institutions, each of which, at the time
of the execution or transfer of the Qualifying Exchange
Agreement, shall have assets of at least 10 billion Dollars and a
long term senior unsecured debt rating, from Standard & Poor's
and any one of Moody's, Duff & Phelps or Fitch Investors
Services, of at least A+ (single A plus) or equivalent
equivalent, provided that if any such financial institution is
not headquartered in the United States and any applicable rating
agency requires such a legal opinion, such financial institution
shall provide a standard legal opinion with respect to
enforceability of any order or judgment of any court or other
governmental or administrative agency obtained in the United
States against such financial institution in the jurisdiction
where such financial institution is headquartered.
(h) "Voluntary Termination" means a voluntary early
termination of a Qualifying Exchange Agreement by Landlord
pursuant to Tenant's giving of a Conversion Notice under Section
3 hereof
(i) "Voluntary Termination Payment" means the amount, if
any, which Landlord will be obligated to pay pursuant to the
Qualifying Exchange Agreement in the event Landlord effects a
Voluntary Termination of such Qualifying Exchange Agreement.
(j) "Voluntary Termination Receipt" means the amount, if
any, which Tenant will be entitled to receive pursuant to the
Qualifying Exchange Agreement in the event Landlord effects a
Voluntary Termination of such Qualifying Exchange Agreement,
including the amount, if any, by which the payment made by Tenant
under Paragraph 3(a) hereof exceeds the Voluntary Termination
Payment then due.
(k) "Yen" means the currency of Japan.
Except as otherwise stated above, the capitalized terms
contained in this Lease Modification Agreement shall have the
same meaning as in the Lease.
2. Modification of Lease
(a) The Lease is deemed modified so that the currency of
the Lease shall be in Yen and shall remain in Yen, in that in
lieu of Basic Dollar Rent, Tenant shall be obligated to pay Basic
Yen Rent to Landlord and Landlord shall be obligated to accept
Basic Yen Rent from Tenant, in each case so long as each of the
conditions set forth in this Paragraph 2(a) are in full force and
effect. The conditions to such Lease modification and payment in
Yen are as follows: (i) as of the date on which Basic Dollar
Rent is due, a Qualifying Exchange Agreement shall be in full
force and effect (including a Qualifying Exchange Agreement which
replaces or extends a Qualifying Exchange Agreement which is
scheduled to terminate or has terminated); (ii) no notice of
termination shall have been given pursuant to and in accordance
with such Qualifying Exchange Agreement by any party thereto; and
(iii) the conditions precedent to the payment by the Qualifying
Financial Institution of its Dollar payments thereunder have been
satisfied or waived.
(b) Landlord shall enter into a Qualifying Exchange
Agreement (including any replacement or extended Qualifying
Exchange Agreement), provided that: (i) other than in the event
of Voluntary Termination as described in Section 3 hereof,
Landlord shall have no obligation to the Qualifying Financial
Institution for the payment of termination or breakage costs or
other related costs, if applicable, by reason of nonpayment of
Yen under such Qualifying Exchange Agreement so long as Landlord
has arranged for, and given an irrevocable letter of direction
to, Tenant to pay the Yen constituting the Basic Yen Rent to the
Qualifying Financial Institution and the nonpayment of such Yen
is not otherwise attributable to the action or inaction of
Landlord; (ii) any positive payments from the Qualifying
Financial Institution on account of termination of the Qualifying
Exchange Agreement will be paid to Tenant, (iii) Landlord will
not be obligated to pay the costs associated with arranging such
Qualifying Exchange Agreement on Landlord's behalf, but all such
costs will be paid by Tenant; (iv) such Qualifying Exchange
Agreement shall permit a Voluntary Termination upon notice from
Landlord and payment or prepayment by Landlord of any costs of
termination, as set forth in Section 3 below; and (v) under the
Qualifying Exchange Agreement, Landlord shall be required only to
make such representations and assume such obligations (other than
payment of termination or breakage costs, which shall be governed
by subsections (i) and (iv) above) which are customarily made or
assumed by a counterparty to an ISDA multicurrency cross-border
currency swap agreement. Any replacement or extended Qualifying
Exchange Agreement shall be on substantially the same terms and
conditions as to Landlord as those of the initial Qualifying
Exchange Agreement.
(c) Immediately as of the date that any of the conditions
to payment of Basic Yen Rent set forth in Paragraph 2(a) are no
longer satisfied, the modification of the Lease set forth in this
Paragraph 2(a) shall be automatically rescinded, Tenant's
obligation for payment of Basic Rent under the Lease shall
convert to an obligation to pay Basic Dollar Rent and not Basic
Yen Rent, and Paragraphs 2(a) and 2(b) of this Lease Modification
Agreement shall be of no further force and effect.
3. Voluntary Termination
(a) Tenant shall have the right, subject to the conditions
set forth in this Paragraph 3(a), to cause Basic Rent payments
under the Lease to become payable as Basic Dollar Rent instead of
Basic Yen Rent. To exercise this right, Tenant shall send a
written notice (the "Conversion Notice") to Landlord, specifying
the rent payment date as of which such conversion is to take
effect. If such conversion would result in a Voluntary
Termination Payment, such conversion shall not become effective
unless Tenant shall first have paid pursuant to Landlord's
direction letter an amount which is equal to the sum of (i) the
Voluntary Termination Payment and (ii) the other amounts, if any,
required to be paid to the Qualifying Financial Institution under
the Qualifying Exchange Agreement as a result of such Voluntary
Termination. The amount of such Voluntary Termination Payment
shall constitute Additional Rent under the Lease.
(b) Landlord and Tenant agree that upon Landlord's receipt
of the Conversion Notice and Tenant's payment of the amounts, if
any, required under the preceding Paragraph 3(a), Landlord shall
give the Qualifying Financial Institution notice of a Voluntary
Termination of the Qualifying Exchange Agreement in the form
attached hereto as Exhibit A. In the event that there is more
than one Qualifying Exchange Agreement with respect to the Lease,
such notice of Voluntary Termination shall be given by Landlord
with respect to each such Qualifying Exchange Agreement.
(c) In the event that Landlord's Voluntary Termination of a
Qualifying Exchange Agreement results in a Voluntary Termination
Receipt, the amount of such Voluntary Termination Receipt shall
be payable directly to Tenant by the Qualifying Financial
Institution.
(d) Upon the effective date of any Voluntary Termination,
the Tenant's obligation to pay Basic Rent shall convert to an
obligation to pay Basic Dollar Rent, as set forth in Paragraph
2(c) of this Lease Modification Agreement, and Paragraphs 2(a)
and 2(b) of this Lease Modification Agreement shall be of no
further force and effect.
4. Restrictions on Landlord's Actions
(a) Landlord shall take no action to effect a Voluntary
Termination of the Qualifying Exchange Agreement unless it
receives a Conversion Notice as provided under Paragraph 3(a).
(b) Landlord shall not seek to effect an early termination
of the Qualifying Exchange Agreement other than as set forth in
Paragraph 3(a) hereof or except as such Qualifying Exchange
Agreement expressly authorizes it to do so. Landlord shall also
take no action which will give the Qualifying Financial
Institution a right to effect any other early termination of the
Qualifying Exchange Agreement. Nothing herein shall require
Landlord to make Yen payments to the Qualifying Financial
Institution under the Qualifying Exchange Agreement if the Basic
Yen Rents corresponding to such Yen payments have not been paid
to Landlord or if such Yen payments have been paid at Landlord's
direction to the Qualifying Financial Institution. Without
limiting the generality of the foregoing, Landlord shall take no
action which would result in an Event of Default or Termination
Event under a Qualifying Exchange Agreement including without
limitation by reason of a Merger without Assumption or a Tax
Event Upon Merger (as therein defined).
(c) Landlord shall not assign its rights to the Lease
(other than as security) unless, as part of such assignment, the
assignee becomes a party to any Qualifying Exchange Agreement
then outstanding and assumes, in whole and not in part,
Landlord's obligations thereunder. In addition, Landlord shall
not assign its rights under any Qualifying Exchange Agreement
(other than as security) unless, as part of such assignment, the
assignee becomes a party to the Lease and assumes, in whole and
not in part, Landlord's obligations thereunder.
5. Governing Law; Other
(a) This Lease Modification Agreement shall be governed by
and construed according to the laws of the state in which the
Leased Premises are situated.
(b) The parties hereto agree that it is intended that the
Lease and the Lease Modification Agreement together (i) represent
a single indivisible agreement between the parties and (ii) are
interdependent and interrelated.
IN WITNESS WHEREOF, Remainder Landlord, Landlord and Tenant
have caused this instrument to be executed under seal as of the
day and year first above written.
LANDLORD:
NPDC-EY BREA TRUST
By:
M. SCOTT KIPP
Its:
Administrative Trustee
REMAINDER LANDLORD
NPDC-RI BREA TRUST
By:
M. SCOTT KIPP
Its:
Administrative Trustee
TENANT:
BECKMAN COULTER, INC.
By:
JAMES T. GLOVER
Its:
Vice President and Controller
EXHIBIT 2.10
Execution Copy
LEASE MODIFICATION AGREEMENT
between
BECKMAN COULTER, INC.
as Tenant
and
CARDBECK CHASKA TRUST
as Landlord
Dated June 25, 1998
PROPERTY
317 and 1000 Lake Hazeltine Drive, Chaska, MN
<PAGE>
THIS LEASE MODIFICATION AGREEMENT is made as of this 25 day
of June 1998 by and between CARDBECK CHASKA TRUST, a Delaware
business trust, having an office at c/o Cardinal Capital
Partners, Inc., 8411 Preston Road, 8th Floor, Dallas, Texas 75225-
5520 ("Landlord"), and BECKMAN COULTER, INC., a Delaware
corporation, having its principal office at 4300 N. Harbor
Boulevard, P.O. Box 3100, Fullerton, California 92834-3100,
("Tenant").
WHEREAS, concurrently with the entering into of this
Agreement, Landlord and Tenant have entered into a lease, dated
as of the date hereof, with respect to the real property
described on the cover page of this Lease Modification Agreement
(as such Lease has been amended and modified pursuant to this
Lease Modification Agreement, the "Lease"); and
WHEREAS, the rentals due under the Lease, as originally
executed, are payable in Dollars; and
WHEREAS, Landlord and Tenant have agreed to amend the Lease
to provide that payment of rents thereunder shall be in Yen, so
long as there is in place a currency swap or swaps which provide
for the exchange of the Yen rents which Landlord is entitled to
receive for an amount in Dollars equal to the Dollar amounts of
rent originally designated in the Lease, and provided further
that Landlord has the assurance that at such time as such
currency swap or swaps are no longer in place, the rent due under
the Lease will again be payable in Dollars, as contemplated by
the Lease as originally executed without regard to its amendment
in this Lease Modification Agreement;
IN CONSIDERATION of the mutual agreements herein contained
and other good and valuable consideration, Landlord and Tenant
hereby covenant and agree as follows:
1. Certain Definitions
(a) "Basic Dollar Rent" means the Dollar amount of the
monthly installment of Basic Rent to be paid under Paragraph 4(a)
of the Lease as in effect without regard to this Lease
Modification Agreement.
(b) "Basic Yen Rent" means the amount of Yen specified in a
Qualifying Exchange Agreement.
(c) "Conversion Notice" means a notice from Tenant to
Landlord, as described in Paragraph 3(a) below, requesting
conversion of the Basic Rent payments due under the Lease to
Dollars, instead of the Yen which are due pursuant to this Lease
Modification Agreement.
(d) "Dollar" or "Dollars" means the currency of the United
States of America.
(e) "Lease" means that certain Lease between Landlord and
Tenant, as defined in the first Recital of this Lease
Modification Agreement.
(f) "Qualifying Exchange Agreement" means a currency swap
agreement (i) pursuant to which a Qualifying Financial
Institution undertakes to pay Landlord on or before the first
Business Day (as defined in the Lease) of each month an amount in
Dollars equal to the Basic Dollar Rent and Landlord agrees to pay
such Qualifying Financial Institution on the same date a sum
certain in Yen, as set forth in such Qualifying Exchange
Agreement; and (ii) which shall have the other terms and
conditions set forth in Paragraph 2(b) hereof. "Qualifying
Exchange Agreement" shall also mean two or more currency swap
agreements which in the aggregate satisfy the requirements of a
Qualifying Exchange Agreement hereunder, and shall mean such
agreement, as modified, amended and supplemented from time to
time.
(g) "Qualifying Financial Institution" means one or more
banks or other financial institutions, each of which, at the time
of the execution or transfer of the Qualifying Exchange
Agreement, shall have assets of at least 10 billion Dollars and a
long term senior unsecured debt rating, from Standard & Poor's
and any one of Moody's, Duff & Phelps or Fitch Investors
Services, of at least A+ (single A plus) or equivalent, provided
that if any such financial institution is not headquartered in
the United States and any applicable rating agency requires such
a legal opinion, such financial institution shall provide a
standard legal opinion with respect to enforceability of any
order or judgment of any court or other governmental or
administrative agency obtained in the United States against such
financial institution in the jurisdiction where such financial
institution is headquartered.
(h) "Voluntary Termination" means a voluntary early
termination of a Qualifying Exchange Agreement by Landlord
pursuant to Tenant's giving of a Conversion Notice under
Section 3 hereof.
(i) "Voluntary Termination Payment" means the amount, if
any, which Landlord will be obligated to pay pursuant to the
Qualifying Exchange Agreement in the event Landlord effects a
Voluntary Termination of such Qualifying Exchange Agreement.
(j) "Voluntary Termination Receipt" means the amount, if
any, which Tenant will be entitled to receive pursuant to the
Qualifying Exchange Agreement in the event Landlord effects a
Voluntary Termination of such Qualifying Exchange Agreement,
including the amount, if any, by which the payment made by Tenant
under Paragraph 3(a) hereof exceeds the Voluntary Termination
Payment then due.
(k) "Yen" means the currency of Japan.
Except as otherwise stated above, the capitalized terms
contained in this Lease Modification Agreement shall have the
same meaning as in the Lease.
2. Modification of Lease
(a) The Lease is deemed modified so that the currency of
the Lease shall be in Yen and shall remain in Yen, in that in
lieu of Basic Dollar Rent, Tenant shall be obligated to pay Basic
Yen Rent to Landlord and Landlord shall be obligated to accept
Basic Yen Rent from Tenant, in each case so long as each of the
conditions set forth in this Paragraph 2(a) are in full force and
effect. The conditions to such Lease modification and payment in
Yen are as follows: (i) as of the date on which Basic Dollar
Rent is due, a Qualifying Exchange Agreement shall be in full
force and effect (including a Qualifying Exchange Agreement which
replaces or extends a Qualifying Exchange Agreement which is
scheduled to terminate or has terminated); (ii) no notice of
termination shall have been given pursuant to and in accordance
with such Qualifying Exchange Agreement by any party thereto; and
(iii) the conditions precedent to the payment by the Qualifying
Financial Institution of its Dollar payments thereunder have been
satisfied or waived.
(b) Landlord shall enter into a Qualifying Exchange
Agreement (including any replacement or extended Qualifying
Exchange Agreement), provided that: (i) other than in the event
of Voluntary Termination as described in Section 3 hereof,
Landlord shall have no obligation to the Qualifying Financial
Institution for the payment of termination or breakage costs or
other related costs, if applicable, by reason of nonpayment of
Yen under such Qualifying Exchange Agreement so long as Landlord
has arranged for, and given an irrevocable letter of direction
to, Tenant to pay the Yen constituting the Basic Yen Rent to the
Qualifying Financial Institution and the nonpayment of such Yen
is not otherwise attributable to the action or inaction of
Landlord; (ii) any positive payments from the Qualifying
Financial Institution on account of termination of the Qualifying
Exchange Agreement will be paid to Tenant; (iii) Landlord will
not be obligated to pay the costs associated with arranging such
Qualifying Exchange Agreement on Landlord's behalf, but all such
costs will be paid by Tenant; (iv) such Qualifying Exchange
Agreement shall permit a Voluntary Termination upon notice from
Landlord and payment or prepayment by Landlord of any costs of
termination, as set forth in Section 3 below; and (v) under the
Qualifying Exchange Agreement, Landlord shall be required only to
make such representations and assume such obligations (other than
payment of termination or breakage costs, which shall be governed
by subsections (i) and (iv) above) which are customarily made or
assumed by a counterparty to an ISDA multicurrency cross-border
currency swap agreement. Any replacement or extended Qualifying
Exchange Agreement shall be on substantially the same terms and
conditions as to Landlord as those of the initial Qualifying
Exchange Agreement.
(c) Immediately as of the date that any of the conditions
to payment of Basic Yen Rent set forth in Paragraph 2(a) are no
longer satisfied, the modification of the Lease set forth in this
Paragraph 2(a) shall be automatically rescinded, Tenant's
obligation for payment of Basic Rent under the Lease shall
convert to an obligation to pay Basic Dollar Rent and not Basic
Yen Rent, and Paragraphs 2(a) and 2(b) of this Lease Modification
Agreement shall be of no further force and effect.
3. Voluntary Termination
(a) Tenant shall have the right, subject to the conditions
set forth in this Paragraph 3(a), to cause Basic Rent payments
under the Lease to become payable as Basic Dollar Rent instead of
Basic Yen Rent. To exercise this right, Tenant shall send a
written notice (the "Conversion Notice") to Landlord, specifying
the rent payment date as of which such conversion is to take
effect. If such conversion would result in a Voluntary
Termination Payment, such conversion shall not become effective
unless Tenant shall first have paid pursuant to Landlord's
direction letter an amount which is equal to the sum of (i) the
Voluntary Termination Payment and (ii) the other amounts, if any,
required to be paid to the Qualifying Financial Institution under
the Qualifying Exchange Agreement as a result of such Voluntary
Termination. The amount of such Voluntary Termination Payment
shall constitute Additional Rent under the Lease.
(b) Landlord and Tenant agree that upon Landlord's receipt
of the Conversion Notice and Tenant's payment of the amounts, if
any, required under the preceding Paragraph 3(a), Landlord shall
give the Qualifying Financial Institution notice of a Voluntary
Termination of the Qualifying Exchange Agreement in the form
attached hereto as Exhibit A. In the event that there is more
than one Qualifying Exchange Agreement with respect to the Lease,
such notice of Voluntary Termination shall be given by Landlord
with respect to each such Qualifying Exchange Agreement.
(c) In the event that Landlord's Voluntary Termination of a
Qualifying Exchange Agreement results in a Voluntary Termination
Receipt, the amount of such Voluntary Termination Receipt shall
be payable directly to Tenant by the Qualifying Financial
Institution.
(d) Upon the effective date of any Voluntary Termination,
the Tenant's obligation to pay Basic Rent shall convert to an
obligation to pay Basic Dollar Rent, as set forth in Paragraph
2(c) of this Lease Modification Agreement, and Paragraphs 2(a)
and 2(b) of this Lease Modification Agreement shall be of no
further force and effect.
4. Restrictions on Landlord's Actions
(a) Landlord shall take no action to effect a Voluntary
Termination of the Qualifying Exchange Agreement unless it
receives a Conversion Notice as provided under Paragraph 3(a).
(b) Landlord shall not seek to effect an early termination
of the Qualifying Exchange Agreement other than as set forth in
paragraph 3(a) hereof or except as such Qualifying Exchange
Agreement expressly authorizes it to do so. Landlord shall also
take no action which will give the Qualifying Financial
Institution a right to effect any other early termination of the
Qualifying Exchange Agreement. Nothing herein shall require
Landlord to make Yen payments to the Qualifying Financial
Institution under the Qualifying Exchange Agreement if the Basic
Yen Rents corresponding to such Yen payments have not been paid
to Landlord or if such Yen payments have been paid at Landlord's
direction to the Qualifying Financial Institution. Without
limiting the generality of the foregoing, Landlord shall take no
action which would result in an Event of Default or Termination
Event under a Qualifying Exchange Agreement including without
limitation by reason of a Merger without Assumption or a Tax
Event Upon Merger (as therein defined).
(c) Landlord shall not assign its rights to the Lease
(other than as security) unless, as part of such assignment, the
assignee becomes a party to any Qualifying Exchange Agreement
then outstanding and assumes, in whole and not in part,
Landlord's obligations thereunder. In addition, Landlord shall
not assign its rights under any Qualifying Exchange Agreement
(other than as security) unless, as part of such assignment, the
assignee becomes a party to the Lease and assumes, in whole and
not in part, Landlord's obligations thereunder.
5. Governing Law; Other
(a) This Lease Modification Agreement shall be governed by
and construed according to the laws of the state in which the
Leased Premises are situated.
(b) The parties hereto agree that it is intended that the
Lease and the Lease Modification Agreement together (i) represent
a single indivisible agreement between the parties and (ii) are
interdependent and interrelated.
IN WITNESS WHEREOF, Landlord and Tenant have caused this
instrument to be executed under seal as of the day and year first
above written.
LANDLORD:
CARDBECK CHASKA TRUST
By: M. SCOTT KIPP
Its: Administrative Trustee
TENANT
BECKMAN COULTER, INC.
By: JAMES T. GLOVER
Its: Vice President and Controller
EXHIBIT 2.11
Execution Copy
LEASE MODIFICATION AGREEMENT
between
COULTER CORPORATION
as Tenant
and
CARDBECK MIAMI TRUST
as Landlord
Dated June 25, 1998
PROPERTY
11800 SW 147th Avenue, Miami, FL
<PAGE>
THIS LEASE MODIFICATION AGREEMENT is made as of this 25th
day of June 1998 by and between CARDBECK MIAMI TRUST, a Delaware
business trust, having an office at c/o Cardinal Capital
Partners, Inc., 8411 Preston Road, 8th Floor, Dallas, Texas 75225-
- -5520 ("Landlord"), and COULTER CORPORATION, a Delaware
corporation, having its principal office c/o Beckman Coulter,
Inc. at 4300 K Harbor Boulevard, P.O. Box 3100, Fullerton,
California 92834--3100, ("Tenant"),
WHEREAS, concurrently with the entering into of this
Agreement, Landlord and Tenant have entered into a lease, dated
as of the date hereof, with respect to the real property
described on the cover page of this Lease Modification Agreement
(as such Lease has been amended and modified pursuant to this
Lease Modification Agreement, the "Lease"); and
WHEREAS, the rentals due under the Lease, as originally
executed, are payable in Dollars; and
WHEREAS, Landlord and Tenant have agreed to amend the Lease
to provide that payment of rents thereunder shall be in Yen, so
long as there is in place a currency swap or swaps which provide
for the exchange of the Yen rents which Landlord is entitled to
receive for an amount in Dollars equal to the Dollar amounts of
rent originally designated in the Lease, and provided further
that Landlord has the assurance that at such time as such
currency swap or swaps are no longer in place, the rent due under
the Lease will again be payable in Dollars, as contemplated by
the Lease as originally executed without regard to its amendment
in this Lease Modification Agreement,
IN CONSIDERATION of the mutual agreements herein contained
and other good and valuable consideration, Landlord and Tenant
hereby covenant and agree as follows:
1. Certain Definitions
(a) "Basic Dollar Rent" means the Dollar amount of the
monthly installment of Basic Rent to be paid under Paragraph 4(a)
of the Lease as in effect without regard to this Lease
Modification Agreement.
(b) "Basic Yen Rent" means the amount of Yen specified in
a Qualifying Exchange Agreement.
(c) "Conversion Notice" means a notice from Tenant to
Landlord, as described in Paragraph 3(a) below, requesting
conversion of the Basic Rent payments due under the Lease to
Dollars, instead of the Yen which are due pursuant to this Lease
Modification Agreement.
(d) "Dollar" or "Dollars" means the currency of the United
States of America.
(e) "Lease" means that certain Lease between Landlord and
Tenant, as defined in the first Recital of this Lease
Modification Agreement.
(f) "Qualifying Exchange Agreement" means a currency swap
agreement (i) pursuant to which a Qualifying Financial
Institution undertakes to pay Landlord on or before the first
Business Day (as defined in the Lease) of each month an amount in
Dollars equal to the Basic Dollar Rent and Landlord agrees to pay
such Qualifying Financial Institution on the same date a sum
certain in Yen, as set forth in such Qualifying Exchange
Agreement; and (ii) which shall have the other terms and
conditions set forth in Paragraph 2(b) hereof "Qualifying
Exchange Agreement" shall also mean two or more currency swap
agreements which in the aggregate satisfy the requirements of a
Qualifying Exchange Agreement hereunder, and shall mean such
agreement, as modified, amended and supplemented from time to
time.
(g) "Qualifying Financial Institution" means one or more
banks or other financial institutions, each of which, at the time
of the execution or transfer of the Qualifying Exchange
Agreement, shall have assets of at least 10 billion Dollars and a
long term senior unsecured debt rating, from Standard & Poor's
and any one of Moody's, Duff & Phelps or Fitch Investors
Services, of at least A+ (single A plus) or equivalent, provided
that if any such financial institution is not headquartered in
the United States aid any applicable rating agency requires such
a legal opinion, such financial institution shall provide a
standard legal opinion with respect to enforceability of any
order or judgment of any court or other governmental or
administrative agency obtained in the United States against such
financial institution in the jurisdiction where such financial
institution is headquartered.
(h) "Voluntary Termination" means a voluntary early
termination of a Qualifying Exchange Agreement by Landlord
pursuant to Tenant's giving of a Conversion Notice under Section
3 hereof.
(i) "Voluntary Termination Payment" means the amount, if
any, which Landlord will be obligated to pay pursuant to the
Qualifying Exchange Agreement in the event Landlord effects a
Voluntary Termination of such Qualifying Exchange Agreement.
(j) "Voluntary Termination Receipt" means the amount, if
any, which Tenant will be entitled to receive pursuant to the
Qualifying Exchange Agreement in the event Landlord effects a
Voluntary Termination of such Qualifying Exchange Agreement,
including the amount, if any, by which the payment made by Tenant
under Paragraph 3 (a) hereof exceeds the Voluntary Termination
Payment then due.
(k) "Yen" means the currency of Japan.
Except as otherwise stated above, the capitalized terms
contained in this Lease Modification Agreement shall have the
same meaning as in the Lease.
2. Modification of Lease
(a) The Lease is deemed modified so that the currency of
the Lease shall be in Yen and shall remain in Yen, in that in
lieu of Basic Dollar Rent, Tenant shall be obligated to pay Basic
Yen Rent to Landlord and Landlord shall be obligated to accept
Basic Yen Rent from Tenant, in each case so long as each of the
conditions set forth in this Paragraph 2(a) are in full force and
effect. The conditions to such Lease modification and payment in
Yen are as follows: (1) as of the date on which Basic Dollar Rent
is due, a Qualifying Exchange Agreement shall be in full force
and effect (including a Qualifying Exchange Agreement which
replaces or extends a Qualifying Exchange Agreement which is
scheduled to terminate or has terminated); (ii) no notice of
termination shall have been given pursuant to and in accordance
with such Qualifying Exchange Agreement by any party thereto, and
(iii) the conditions precedent to the payment by the Qualifying
Financial Institution of its Dollar payments thereunder have been
satisfied or waived.
(b) Landlord shall enter into a Qualifying Exchange
Agreement (including any replacement or extended Qualifying
Exchange Agreement), provided that: (i) other than in the event
of Voluntary Termination as described in Section 3 hereof,
Landlord shall have no obligation to the Qualifying Financial
Institution for the payment of termination or breakage costs or
other related costs, if applicable, by reason of nonpayment of
Yen under such Qualifying Exchange Agreement so long as Landlord
has arranged for, and given an irrevocable letter of direction
to, Tenant to pay the Yen constituting the Basic Yen Rent to the
Qualifying Financial Institution and the nonpayment of such Yen
is not otherwise attributable to the action or inaction of
Landlord; (ii) any positive payments from the Qualifying
Financial Institution on account of termination of the Qualifying
Exchange Agreement will be paid to Tenant; (iii) Landlord will
not be obligated to pay the costs associated with arranging such
Qualifying Exchange Agreement on Landlord's behalf, but all such
costs will be paid by Tenant; (iv) such Qualifying Exchange
Agreement shall permit a Voluntary Termination upon notice from
Landlord and payment or prepayment by Landlord of any costs of
termination, as set forth in Section 3 below; and (v) under the
Qualifying Exchange Agreement, Landlord shall be required only to
make such representations and assume such obligations (other than
payment of termination or breakage costs, which shall be governed
by subsections (i) and (iv) above) which are customarily made or
assumed by a counterparty to an ISDA multicurrency cross-border
currency swap agreement. Any replacement or extended Qualifying
Exchange Agreement shall be on substantially the same terms and
conditions as to Landlord as those of the initial Qualifying
Exchange Agreement.
(c) Immediately as of the date that any of the conditions
to payment of Basic Yen Rent set forth in Paragraph 2(a) are no
longer satisfied, the modification of the Lease set forth in this
Paragraph 2(a) shall be automatically rescinded, Tenant's
obligation for payment of Basic Rent under the Lease shall
convert to an obligation to pay Basic Dollar Rent and not Basic
Yen Rent, and Paragraphs 2(a) and 2(b) of this Lease Modification
Agreement shall be of no further force and effect.
3. Voluntary Termination
(a) Tenant shall have the right, subject to the conditions
set forth in this Paragraph 3(a), to cause Basic Rent payments
under the Lease to become payable as Basic Dollar Rent instead of
Basic Yen Rent. To exercise this right, Tenant shall send a
written notice (the "Conversion Notice") to Landlord, specifying
the rent payment date as of which such conversion is to take
effect. If such conversion would result in a Voluntary
Termination Payment, such conversion shall not become effective
unless Tenant shall first have paid pursuant to Landlord's
direction letter an amount which is equal to the sum of (i) the
Voluntary Termination Payment and (ii) the other amounts, if any,
required to be paid to the Qualifying Financial Institution under
the Qualifying Exchange Agreement as a result of such Voluntary
Termination. The amount of such Voluntary Termination Payment
shall constitute Additional Rent under the Lease.
(b) Landlord and Tenant agree that upon Landlord's receipt
of the Conversion Notice and Tenant's payment of the amounts, if
any, required under the preceding Paragraph 3(a), Landlord shall
give the Qualifying Financial Institution notice of a Voluntary
Termination of the Qualifying Exchange Agreement in the form
attached hereto as Exhibit A. In the event that there is more
than one Qualifying Exchange Agreement with respect to the Lease,
such notice of Voluntary Termination shall be given by Landlord
with respect to each such Qualifying Exchange Agreement.
(c) In the event that Landlord's Voluntary Termination of a
Qualifying Exchange Agreement results in a Voluntary Termination
Receipt, the amount of such Voluntary Termination Receipt shall
be payable directly to Tenant by the Qualifying Financial
Institution.
(d) Upon the effective date of any Voluntary Termination,
the Tenant's obligation to pay Basic Rent shall convert to an
obligation to pay Basic Dollar Rent, as set forth in Paragraph
2(c) of this Lease Modification Agreement, and Paragraphs 2(a)
and 2(b) of this Lease Modification Agreement shall be of no
further force and effect.
4. Restrictions on Landlord's Actions
(a) Landlord shall take no action to effect a Voluntary
Termination of the Qualifying Exchange Agreement unless it
receives a Conversion Notice as provided under Paragraph 3(a).
(b) Landlord shall not seek to effect an early termination
of the Qualifying Exchange Agreement other than as set forth in
paragraph 3(a) hereof or except as such Qualifying Exchange
Agreement expressly authorizes it to do so. Landlord shall also
take no action which will give the Qualifying Financial
Institution a right to effect any other early termination of the
Qualifying Exchange Agreement. Nothing herein shall require
Landlord to make Yen payments to the Qualifying Financial
Institution under the Qualifying Exchange Agreement if the Basic
Yen Rents corresponding to such Yen payments have not been paid
to Landlord or if such Yen payments have been paid at Landlord's
direction to the Qualifying Financial Institution. Without
limiting the generality of the foregoing, Landlord shall take no
action which would result in an Event of Default or Termination
Event under a Qualifying Exchange Agreement including without
limitation by reason of a Merger without Assumption or a Tax
Event Upon Merger (as therein defined).
(c) Landlord shall not assign its rights to the Lease
(other than as security) unless, as part of such assignment, the
assignee becomes a party to any Qualifying Exchange Agreement
then outstanding and assumes, in whole and not in part,
Landlord's obligations thereunder. In addition, Landlord shall
not assign its rights under any Qualifying Exchange Agreement
(other than as security) unless, as part of such assignment, the
assignee becomes a party to the Lease and assumes, in whole and
not in part, Landlord's obligations thereunder.
5. Governing Law; Other
(a) This Lease Modification Agreement shall be governed by
and construed according to the laws of the state in which the
Leased Premises are situated.
(b) The parties hereto agree that it is intended that the
Lease and the Lease Modification Agreement together (i) represent
a single indivisible agreement between the parties and (ii) are
interdependent and interrelated.
IN WITNESS WHEREOF, Landlord and Tenant have caused this
instrument to be under seal as of the day and year first above
written.
LANDLORD:
CARDBECK MIAMI TRUST
By:
M. SCOTT KIPP
Its:Administsrative Trustee
TENANT:
BECKMAN COULTER, INC.
By:
JAMES T. GLOVER
Its: Vice President and Controller
EXHIBIT 2.12.
Execution Copy
LEASE MODIFICATION AGREEMENT
between
BECKMAN COULTER, INC.
as Tenant,
NPDC-EY PALO ALTO TRUST
as Landlord
and
NPDC-RI PALO ALTO TRUST
as Remainder Landlord
Dated June 25, 1998
PROPERTY
1050 Page Mill Road, Palo Alto, CA
<PAGE>
THIS LEASE MODIFICATION AGREEMENT is made as of this 25th
day of June 1998 by and among NPDC-EY PALO ALTO TRUST, a Delaware
business trust, having an office at c/o Cardinal Capital
Partners, Inc., 8411 Preston Road, 8th Floor, Dallas, Texas
75225-5520 ("Landlord"), NPDC-RI PALO ALTO TRUST, a Delaware
business trust, having an office at c/o Cardinal Capital
Partners, Inc., 8411 Preston Road, 8th Floor, Dallas, Texas
75225-5520 ("Remainder Landlord"), and BECKMAN COULTER, INC., a
Delaware corporation, having its principal office at 4300 N.
Harbor Boulevard, P.O. Box 3100, Fullerton, California
92834-3100, ("Tenant").
WHEREAS, concurrently with the entering into of this
Agreement, Remainder Landlord, Landlord and Tenant have entered
into a lease, dated as of the date hereof, with respect to the
real property described on the cover page of this Lease
Modification Agreement (as such Lease has been amended and
modified pursuant to this Lease Modification Agreement, the
"Lease"); and
WHEREAS, the rentals due under the Lease, as originally
executed, are payable in Dollars; and
WHEREAS, Landlord, Remainder Landlord and Tenant have agreed
to amend the Lease to provide that payment of rents thereunder
shall be in Yen, so long as there is in place a currency swap or
swaps which provide for the exchange of the Yen rents which
Landlord is entitled to receive for an amount in Dollars equal to
the Dollar amounts of rent originally designated in the Lease,
and provided further that Landlord has the assurance that at such
time as such currency swap or swaps are no longer in place, the
rent due under the Lease will again be payable in Dollars, as
contemplated by the Lease as originally executed without regard
to its amendment in this Lease Modification Agreement;
IN CONSIDERATION of the mutual agreements herein contained
and other good and valuable consideration, Remainder Landlord,
Landlord and Tenant hereby covenant and agree as follows:
1. Certain Definitions
(a) "Basic Dollar Rent" means the Dollar amount of the
monthly installment of Basic Rent to be paid under Paragraph 4(a)
of the Lease as in effect without regard to this Lease
Modification Agreement.
(b) "Basic Yen Rent" means the amount of Yen specified in a
Qualifying Exchange Agreement.
(c) "Conversion Notice" means a notice from Tenant to
Landlord, as described in Paragraph 3(a) below, requesting
conversion of the Basic Rent payments due under the Lease to
Dollars, instead of the Yen which are due pursuant to this Lease
Modification Agreement.
(d) "Dollar" or "Dollars" means the currency of the United
States of America.
(e) "Lease" means that certain Lease among Remainder
Landlord, Landlord and Tenant, as defined in the first Recital of
this Lease Modification Agreement.
(f) "Qualifying Exchange Agreement" means a currency swap
agreement (i) pursuant to which a Qualifying Financial
Institution undertakes to pay Landlord on or before the first
Business Day (as defined in the Lease) of each month an amount in
Dollars equal to the Basic Dollar Rent and Landlord agrees to pay
such Qualifying Financial Institution on the same date a sum
certain in Yen, as set forth in such Qualifying Exchange
Agreement; and (ii) which shall have the other terms and
conditions set forth in Paragraph 2(b) hereof. "Qualifying
Exchange Agreement" shall also mean two or more currency swap
agreements which in the aggregate satisfy the requirements of a
Qualifying Exchange Agreement hereunder, and shall mean such
agreement, as modified, amended and supplemented from time to
time.
(g) "Qualifying Financial Institution" means one or more
banks or other financial institutions, each of which, at the time
of the execution or transfer of the Qualifying Exchange
Agreement, shall have assets of at least 10 billion Dollars and a
long term senior unsecured debt rating, from Standard & Poor's
and any one of Moody's, Duff & Phelps or Fitch Investors
Services, of at least A+ (single A plus) or equivalent, provided
that if any such financial institution is not headquartered in
the United States and any applicable rating agency requires such
a legal opinion, such financial institution shall provide a
standard legal opinion with respect to enforceability of any
order or judgment of any court or other governmental or
administrative agency obtained in the United States against such
financial institution in the jurisdiction where such financial
institution is headquartered.
(h) "Voluntary Termination" means a voluntary early
termination of a Qualifying Exchange Agreement by Landlord
pursuant to Tenant's giving of a Conversion Notice under Section
3 hereof.
(i) "Voluntary Termination Payment" means the amount, if
any, which Landlord will be obligated to pay pursuant to the
Qualifying Exchange Agreement in the event Landlord effects a
Voluntary Termination of such Qualifying Exchange Agreement.
(j) "Voluntary Termination Receipt" means the amount, if
any, which Tenant will be entitled to receive pursuant to the
Qualifying Exchange Agreement in the event Landlord effects a
Voluntary Termination of such Qualifying Exchange Agreement,
including the amount, if any, by which the payment made by Tenant
under Paragraph 3(a) hereof exceeds the Voluntary Termination
Payment then due.
(k) "Yen" means the currency of Japan.
Except as otherwise stated above, the capitalized terms
contained in this Lease Modification Agreement shall have the
same meaning as in the Lease.
2. Modification of Lease
(a) The Lease is deemed modified so that the currency of
the Lease shall be in Yen and shall remain in Yen, in that in
lieu of Basic Dollar Rent, Tenant shall be obligated to pay Basic
Yen Rent to Landlord and Landlord shall be obligated to accept
Basic Yen Rent from Tenant, in each case so long as each of the
conditions set forth in this Paragraph 2(a) are in full force and
effect. The conditions to such Lease modification and payment in
Yen are as follows: (i) as of the date on which Basic Dollar
Rent is due, a Qualifying Exchange Agreement shall be in full
force and effect (including a Qualifying Exchange Agreement which
replaces or extends a Qualifying Exchange Agreement which is
scheduled to terminate or has terminated); (ii) no notice of
termination shall have been given pursuant to and in accordance
with such Qualifying Exchange Agreement by any party thereto; and
(iii) the conditions precedent to the payment by the Qualifying
Financial Institution of its Dollar payments thereunder have been
satisfied or waived.
(b) Landlord shall enter into a Qualifying Exchange
Agreement (including any replacement or extended Qualifying
Exchange Agreement), provided that: (i) other than in the event
of Voluntary Termination as described in Section 3 hereof,
Landlord shall have no obligation to the Qualifying Financial
Institution for the payment of termination or breakage costs or
other related costs, if applicable, by reason of nonpayment of
Yen under such Qualifying Exchange Agreement so long as Landlord
has arranged for, and given an irrevocable letter of direction
to, Tenant to pay the Yen constituting the Basic Yen Rent to the
Qualifying Financial Institution and the nonpayment of such Yen
is not otherwise attributable to the action or inaction of
Landlord; (ii) any positive payments from the Qualifying
Financial Institution on account of termination of the Qualifying
Exchange Agreement will be paid to Tenant; (iii) Landlord will
not be obligated to pay the costs associated with arranging such
Qualifying Exchange Agreement on Landlord's behalf, but all such
costs will be paid by Tenant; (iv) such Qualifying Exchange
Agreement shall permit a Voluntary Termination upon notice from
Landlord and payment or prepayment by Landlord of any costs of
termination, as set forth in Section 3 below; and (v) under the
Qualifying Exchange Agreement, Landlord shall be required only to
make such representations and assume such obligations (other than
payment of termination or breakage costs, which shall be governed
by subsections (i) and (iv) above) which are customarily made or
assumed by a counterparty to an ISDA multicurrency cross-border
currency swap agreement. Any replacement or extended Qualifying
Exchange Agreement shall be on substantially the same terms and
conditions as to Landlord as those of the initial Qualifying
Exchange Agreement.
(c) Immediately as of the date that any of the conditions
to payment of Basic Yen Rent set forth in Paragraph 2(a) are no
longer satisfied, the modification of the Lease set forth in this
Paragraph 2(a) shall be automatically rescinded, Tenant's
obligation for payment of Basic Rent under the Lease shall
convert to an obligation to pay Basic Dollar Rent and not Basic
Yen Rent, and Paragraphs 2(a) and 2(b) of this Lease Modification
Agreement shall be of no further force and effect.
3. Voluntary Termination
(a) Tenant shall have the right, subject to the conditions
set forth in this Paragraph 3(a), to cause Basic Rent payments
under the Lease to become payable as Basic Dollar Rent instead of
Basic Yen Rent. To exercise this right, Tenant shall send a
written notice (the "Conversion Notice") to Landlord, specifying
the rent payment date as of which such conversion is to take
effect. If such conversion would result in a Voluntary
Termination Payment, such conversion shall not become effective
unless Tenant shall first have paid pursuant to Landlord's
direction letter an amount which is equal to the sum of (i) the
Voluntary Termination Payment and (ii) the other amounts, if any,
required to be paid to the Qualifying Financial Institution under
the Qualifying Exchange Agreement as a result of such Voluntary
Termination. The amount of such Voluntary Termination Payment
shall constitute Additional Rent under the Lease.
(b) Landlord and Tenant agree that upon Landlord's receipt
of the Conversion Notice and Tenant's payment of the amounts, if
any, required under the preceding Paragraph 3(a), Landlord shall
give the Qualifying Financial Institution notice of a Voluntary
Termination of the Qualifying Exchange Agreement in the form
attached hereto as Exhibit A. In the event that there is more
than one Qualifying Exchange Agreement with respect to the Lease,
such notice of Voluntary Termination shall be given by Landlord
with respect to each such Qualifying Exchange Agreement.
(c) In the event that Landlord's Voluntary Termination of a
Qualifying Exchange Agreement results in a Voluntary Termination
Receipt, the amount of such Voluntary Termination Receipt shall
be payable directly to Tenant by the Qualifying Financial
Institution.
(d) Upon the effective date of any Voluntary Termination,
the Tenant's obligation to pay Basic Rent shall convert to an
obligation to pay Basic Dollar Rent, as set forth in Para
graph 2(c) of this Lease Modification Agreement, and Paragraphs
2(a) and 2(b) of this Lease Modification Agreement shall be of no
further force and effect.
4. Restrictions on Landlord's Actions
(a) Landlord shall take no action to effect a Voluntary
Termination of the Qualifying Exchange Agreement unless it
receives a Conversion Notice as provided under Paragraph 3(a).
(b) Landlord shall not seek to effect an early termination
of the Qualifying Exchange Agreement other than as set forth in
paragraph 3(a) hereof or except as such Qualifying Exchange
Agreement expressly authorizes it to do so. Landlord shall also
take no action which will give the Qualifying Financial
Institution a right to effect any other early termination of the
Qualifying Exchange Agreement. Nothing herein shall require
Landlord to make Yen payments to the Qualifying Financial
Institution under the Qualifying Exchange Agreement if the Basic
Yen Rents corresponding to such Yen payments have not been paid
to Landlord or if such Yen payments have been paid at Landlord's
direction to the Qualifying Financial Institution. Without
limiting the generality of the foregoing, Landlord shall take no
action which would result in an Event of Default or Termination
Event under a Qualifying Exchange Agreement including without
limitation by reason of a Merger without Assumption or a Tax
Event Upon Merger (as therein defined).
(c) Landlord shall not assign its rights to the Lease
(other than as security) unless, as part of such assignment, the
assignee becomes a party to any Qualifying Exchange Agreement
then outstanding and assumes, in whole and not in part,
Landlord's obligations thereunder. In addition, Landlord shall
not assign its rights under any Qualifying Exchange Agreement
(other than as security) unless, as part of such assignment, the
assignee becomes a party to the Lease and assumes, in whole and
not in part, Landlord's obligations thereunder.
5. Governing Law; Other
(a) This Lease Modification Agreement shall be governed by
and construed according to the laws of the state in which the
Leased Premises are situated.
(b) The parties hereto agree that it is intended that the
Lease and the Lease Modification Agreement together (i) represent
a single indivisible agreement between the parties and (ii) are
interdependent and interrelated.
IN WITNESS WHEREOF, Remainder Landlord, Landlord and Tenant
have caused this instrument to be executed under seal as of the
day and year first above written.
LANDLORD:
NPDC-EL PALO ALTO TRUST
By: M. SCOTT KIPP
Its: Administrative Trustee
REMAINDER LANDLORD:
NPDC-EL PALO ALTO TRUST
By: M. SCOTT KIPP
Its: Administrative Trustee
TENANT:
BECKMAN COULTER, INC.
By: JAMES T. GLOVER
Its: Vice President and Controller
EXHIBIT 2.13
GUARANTY OF LEASE
WHEREAS, CARDBECK MIAMI TRUST, as Landlord
("Landlord"), and COULTER CORPORATION, as Tenant ("Tenant"), are
about to enter into a certain lease ("Lease") of even date
herewith of certain improved premises ("Property") located in
Miami, Florida, as more fully described in the Lease, and
WHEREAS, Tenant is a wholly-owned subsidiary
corporation of BECKMAN COULTER, INC. a Delaware corporation
("Guarantor"), and
WHEREAS, Guarantor acknowledges that Landlord would not
enter into the Lease unless this Guaranty accompanied execution
and delivery of the Lease.
NOW, THEREFORE, in consideration of One ($1.00) Dollar
and other valuable consideration and to induce Landlord to enter
into the Lease, Guarantor, having an office at 4300 N. Harbor
Boulevard, P. O. Box 3100, Fullerton, California 92834-3100, does
hereby on behalf of itself and its successors and assigns
covenant and agree as follows:
(a) If Tenant, its successors or assigns, shall
default at any time during the term of the Lease (including any
renewal terms) in the payment of Basic Rent (as defined in the
Lease), additional rent, or other charges payable by Tenant under
the Lease, or in the observance or performance of any of the
terms, covenants or conditions of the Lease on Tenant's part to
be observed or performed, beyond the applicable grace period
provided in the Lease for the curing of such default, then
Guarantor will, on demand, observe and perform said terms,
covenants and conditions and pay to Landlord all Basic Rent,
additional rent and other charges payable under the Lease,
together with all arrearages of the foregoing amounts, all
interest, fees, penalties, late fees, damages and expenses which
Landlord is entitled to recover pursuant to the terms of the
Lease in consequence of a default under the Lease, all reasonable
costs and expenses that may be incurred by Landlord in enforcing
Tenant's covenants and agreements under the Lease and all
reasonable costs that may be incurred by Landlord in enforcing
the covenants and agreements of Guarantor hereunder, without
requiring notice from Landlord or any other person or entity.
(b) Guarantor may, at Landlord's option, be joined in
any action or proceeding commenced by Landlord against Tenant in
connection with and based upon the Lease or any term, covenant or
condition thereof, and that recovery may be had against Guarantor
in such action or proceeding or any independent action or
proceeding against Guarantor without Landlord first asserting,
prosecuting, or exhausting any remedy or claim against Tenant,
its successors or assigns;
(c) This Guaranty shall remain and continue in full
force and effect as to any renewal, extension, modification or
amendment of the Lease and as to any assignee of Tenant's
interest in the Lease, and notwithstanding the fact that any
assignee of Tenant's interest in the Lease shall be released
thereunder, however, this Guaranty shall automatically terminate
if Tenant assigns its interest in the Lease to Guarantor, or if
Tenant merges with Guarantor;
(d) (i) This Guaranty constitutes an absolute,
unconditional, present and continuing guaranty of payment and not
of collection and (ii) the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no wise be
terminated, affected or impaired by reason of (A) any action
which Landlord and/or Lender (as defined in the Lease) may take
or fail to take against Tenant, (B) any waiver of, or failure to
enforce, any of the rights or remedies reserved to Landlord in
the Lease, or otherwise, (C) the bankruptcy or insolvency of
Tenant under the Lease and whether or not the term thereof shall
terminate by reason of said bankruptcy or insolvency, (D) any set-
off, counterclaim, reduction or diminution of an obligation, or
any defense of any kind or nature (other than payment of the
liabilities and obligations guaranteed hereunder) which Guarantor
or Tenant has or may have with respect to a claim hereunder or
under the Lease, (E) any of the events or conditions described in
Section 5(a) of the Lease or (F) any other occurrence or
circumstance which might otherwise constitute a legal or
equitable discharge of a surety or guarantor. No invalidity,
irregularity, contractual or other unenforceability of all or any
part of the liabilities and obligations guaranteed hereunder or
of any security therefor, shall affect, impair or be a defense to
this Guaranty.
(e) In the event of termination of the Lease by reason
of the occurrence of an Event of Default as defined in Sections
19(d), 19(e) or 19(f) of the Lease or in the event of the
disaffirmance or rejection of the Lease in any bankruptcy or
insolvency proceeding, and without limiting any of Landlord's
rights under this Guaranty, Guarantor shall, upon written request
of Landlord, made within thirty (30) days next following notice
to Landlord of any such termination, disaffirmance or rejection
or, at any time thereafter, (i) pay to Landlord all Basic Rent,
additional rent and other charges due and owing from Tenant to
Landlord under the Lease to and including the date of such
termination, disaffirmance or rejection, and (ii) enter, as
"Tenant", into a new lease with Landlord, of the Property demised
in the Lease for a term commencing on the effective date of such
termination, disaffirmance or rejection, and ending on the date
fixed in the Lease for its natural expiration (unless such new
lease shall be sooner terminated as therein provided) at the same
Basic Rent and upon the same executory terms, covenants and
conditions as are contained in the Lease except that (a)
Guarantor's right as "Tenant" under the new lease shall be
subject to the possessory rights of Tenant under the Lease and
the possessory rights of any person, firm or corporation claiming
by, through or under Tenant or by virtue of any statute or of an
order of any court, and (b) such new lease to Guarantor shall
require that all defaults existing under the Lease be cured by
Guarantor with due diligence, (iii) execute and deliver to Lender
a subordination, non-disturbance and attornment agreement (the
"New Subordination Agreement") substantially identical to the
subordination, non-disturbance and attornment agreement of even
date herewith executed by Tenant and (iv) deliver to Landlord and
Lender an opinion of counsel reasonably satisfactory to Landlord
and Lender stating that the new lease and the New Subordination
Agreement are duly executed, authorized and delivered. In the
event Guarantor shall default in its obligation to enter into
said new lease and such default shall continue for a period of
ten (10) days next following Landlord's request therefor, then,
in addition to all other remedies by reason of such default,
either at law or in equity, Landlord shall have the same rights
and remedies against Guarantor as if Guarantor had entered into
said new lease and said new lease had thereafter been terminated,
as at the commencement date thereof, by reason of Guarantor's
default thereunder;
(f) If Guarantor consolidates or merges with, or sells
or otherwise disposes of all or substantially all of its assets
to any other individual, corporation, company, partnership,
association, trust or any other entity or organization (herein
referred to as a "Person"), in each case whether directly or
indirectly, and if Guarantor is not the survivor of such
transaction, the survivor shall (i) be a Person subject to the
laws of a State of the United States and (ii) expressly assume in
writing Guarantor's obligations under this Guaranty;
(g) Except as otherwise expressly provided in this
Guaranty, Guarantor waives notice of acceptance of this Guaranty
and of any liability to which it may apply, and notice or proof
of reliance by Landlord or Lender upon this Guaranty, and further
waives diligence, presentment, demand of payment, protest, notice
of dishonor or nonpayment of any of the liabilities and
obligations guaranteed hereby, suit or taking other action or
making any demand against, and any other notice to, any Person
liable thereon (including Guarantor);
(h) If claim is ever made upon Landlord or Lender for
repayment or recovery of any amount or amounts received by
Landlord or Lender in payment or on account of the liabilities
and obligations guaranteed hereunder and Landlord or Lender
repays to or for the benefit of Guarantor or Tenant or any of
their respective creditors all or part of such amount by reason
of (i) any judgment, decree or order or any court or
administrative body having jurisdiction over Landlord or Lender,
or (ii) any settlement or compromise of any such claim effected
by Landlord or Lender with any such claimant (including Tenant),
then and in such event Guarantor shall be and remain liable under
this Guaranty for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by
Landlord or Lender;
(i) Nothing contained in this Guaranty shall be
construed to give Guarantor any direct or indirect claim, right
or remedy against Tenant by reason of this Guaranty and/or any
performance by Guarantor, including, without limitation, any
claim, remedy or right of subrogation, reimbursement or
participation in any claim, right or remedy of Landlord or
Lender against Tenant, and all such claims, rights or remedies
are hereby waived. Guarantor will protect, indemnify and hold
harmless Landlord and Lender from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs,
fees, charges and expenses (including, without limitation,
reasonable attorneys' fees and expenses) imposed upon or incurred
by or asserted against it or them by reason or arising out of any
payment of Basic Rent or additional rent under the Lease being
deemed or asserted to be voidable under the United States
Bankruptcy Code or any other bankruptcy or insolvency law,
whether by reason of being a preference or otherwise;
(j) Guarantor submits itself to the jurisdiction of
the State of Florida in any action or proceeding arising out of
or under the Lease or this Guaranty, and agrees that the laws of
the State of Florida shall apply in any such action or
proceeding; and
(k) Guarantor agrees that all notices, consents and
other communications under this Guaranty (collectively, "Notice"
or "Notices") shall be in writing and shall be deemed to have
been given hereunder for all purposes (i) three (3) days after
having been sent by United States mail, by registered or
certified mail, return receipt requested, postage prepaid,
addressed to the other party at its address as stated below, (ii)
one (1) day after having been sent by Federal Express or other
nationally recognized air courier service, to the addresses
stated below or (iii) one (1) day after having been transmitted
via facsimile, provided that a conforming signed original is
mailed to the party to receive the notice on the date it is
transmitted:
To Landlord:
Cardbeck Miami Trust
c/o Cardinal Capital Partners, Inc.
8411 Preston Road, Suite 850
Dallas, Texas 75225
Facsimile: 214-696-9845
With a copy to Lender:
Nomura Asset Capital
5005 LBJ Freeway, Suite 1050
Dallas, Texas 75244
Facsimile: 972-855-4200
To Guarantor:
Office of General Counsel
Beckman Coulter, Inc.
4300 N. Harbor Boulevard
Fullerton, California 92834-3186
Facsimile: 714-773-7936
If any Lender shall have advised Guarantor by Notice in
the manner aforesaid that it is the holder of a Mortgage and
stating in said Notice its address for the receipt of Notices,
then simultaneously with the giving of any Notice by Tenant to
Landlord, Tenant shall serve one or more copies of such Notice
upon Lender in the manner aforesaid and no Notice shall be
effective unless and until Lender shall be sent a copy thereof.
For the purposes of this paragraph, any party may substitute its
address by giving fifteen (15) days notice to the other party in
the manner provided above.
(l) This Guaranty shall be interpreted and enforceable
in accordance with the laws of the State of Florida and shall be
binding on Guarantor, its successors and assigns, and shall enure
to the benefit of Landlord and Lender, their and each of their
respective successors and assigns and all future owners of the
Property. If any portion of this Guaranty is determined to be
invalid or unenforceable, the remainder of this Guaranty shall
nevertheless continue in full force and effect. Any provision of
this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction;
(m) Whenever an Event of Default under the Lease is
outstanding, or whenever Guarantor receives written notice from
Lender that an Event of Default under the Mortgage is outstanding
(Guarantor having the right to rely on such notice with no
obligation to verify the contents thereof), then, in addition to
any other rights of Lender hereunder (i) Lender or its agent
shall have the right, in the name and on behalf of Landlord, to
take all actions, and make all decisions, which Landlord is
entitled to take or make under this Guaranty, (ii) any actions
taken by Lender or its agent in the name and on behalf of
Landlord (including, without limitation, actions taken or
decisions made pursuant to Sections (a) and (e) hereof) shall be
deemed in all respects to constitute actions taken and decisions
made by Landlord and (iii) any such actions taken and decisions
made by Landlord itself shall be deemed void and of no force and
effect unless Guarantor receives written consent to such actions
from such holders or their agent;
(n) Neither this Guaranty nor any term hereof may be
changed, waived, discharged, amended, modified, extended or
terminated orally, but only by an instrument in writing signed by
the party against which the enforcement of the change, waiver,
discharge or termination is sought, together with the written
consent of the Lender, which consent may be withheld at Lender's
discretion. Any such attempted change, waiver, discharge,
amendment, modification, extension or termination without such
consent of the Lender shall be void and of no force and effect.
Guarantor hereby warrants and represents that Guarantor
is the owner and holder of all the issued and outstanding shares
of Tenant and that the execution and delivery of this Guaranty
are not in contravention of its Certificate of Incorporation or
by-laws and have been authorized by its Board of Directors and
are in furtherance of its corporate purposes, and that said Board
of Directors has full authority under the said by-laws to
authorize the execution of this Guaranty and to validly bind
Guarantor.
WITNESS the execution of this instrument as a sealed
instrument as of the 25th day of June, 1998.
BECKMAN COULTER, INC.,
a Delaware corporation
By: JAMES T. GLOVER
Its: Vice President and Controller
EXHIBIT 99.1
Contact: Michael J. Whelan (714) 773-
7620
Director, Investor Relations
Beckman Coulter Announces Debt Reduction Milestone
Fullerton, California, July 9, 1998 - Beckman Coulter, Inc.
(NYSE: BEC), announced today that it has received approximately
$240 million from a sale and leaseback of four U.S. properties.
The company will continue to occupy the facilities under
provisions of long term leasing arrangements. Principal use of
the proceeds, received late in the second quarter, was to reduce
debt incurred in financing Beckman's 1997 acquisition of Coulter
Corporation. As a result, when the new company's second quarter
financial statements are released, total debt will be about $1.12
billion, down from $1.33 billion at March 31, 1998.
The company expects to continue generating strong operating
cash flows from the recurring sale of reagents, supplies and
service that supports instrument systems installed in customer
laboratories. These after market sales represent nearly 70
percent of revenues. In the second half of 1998, most cash from
operations will be used to fund ongoing integration activities.
In 1999, the principal use of cash will be to further reduce
acquisition debt, improving financial flexibility.
- more -
Beckman Coulter Announces
Debt Reduction Milestone Page Two
Louis T. Rosso, chairman and chief executive officer said,
"The sale and leaseback of these facilities has allowed us to
redirect company assets toward their most productive use. A
strengthening financial profile ultimately improves our ability
to compete and realize the value in the Beckman Coulter
combination."
Beckman Coulter, Inc. is a leading provider of instrument
systems and complementary products that simplify and automate
processes in life science and clinical laboratories. The
company's products are used throughout the world in all phases of
the battle against disease, from pioneering medical research and
drug discovery to diagnostic testing that aids in patient
treatment. Pro forma annual sales for the company totaled $1.8
billion in 1997, with half of this amount generated outside the
United States.
This press release contains forward-looking statements
concerning the company's expected reduction in debt and expected
future performance. These forward-looking statements are based
largely on the company's current expectations and are subject to
a number of risks and uncertainties, many of which are beyond the
company's control. Actual results could differ from those
anticipated by these forward-looking statements as a result of a
number of factors, including, among other things, a reduction in
sales or increase in costs affecting the amount of cash available
to repay debt.
