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EXHIBIT 10.13
WHEREVER CONFIDENTIAL INFORMATION IS
OMITTED HEREIN (SUCH OMISSIONS ARE DENOTED BY AN ASTERISK), SUCH
CONFIDENTIAL INFORMATION HAS BEEN SUBMITTED SEPARATELY TO THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT.
MASTER LEASE
THIS DOCUMENT SECURES FUTURE
ADVANCES
Dated as of April 23,
2002
between
CITRIX SYSTEMS,
INC.,
as the Lessee,
and
SELCO SERVICE
CORPORATION
as the Lessor.
Lease Financing of Various
Properties
This Lease is subject to a
lien in favor of the Lenders created pursuant to the Loan
Agreement. This Lease has been executed in several counterparts. To
the extent, if any, that this Lease constitutes chattel paper (as
such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction), no lien on this Lease may be created
through the transfer or possession of any counterpart other than
the original counterpart containing the receipt therefor executed
by the Administrative Agent, on or following the signature page
hereof.
This counterpart is [not] the
original counterpart.
STATE OF FLORIDA DOCUMENTARY STAMP TAX
IN THE AMOUNT REQUIRED BY LAW HAS BEEN PAID ON THE MORTGAGE DEED
SECURITY AGREEMENT, FIXTURE FILING AND LEASE SUPPLEMENT NO. 1 BY
CITRIX SYSTEMS, INC. TO SELCO SERVICE CORPORATION DATED APRIL 23,
2002, RECORDED IN THE PUBLIC RECORDS OF BROWARD COUNTY,
FLORIDA.
MASTER LEASE
THIS DOCUMENT SECURES FUTURE
ADVANCES
THIS MASTER LEASE (this
“Lease”), dated as of April 23, 2002, between
CITRIX SYSTEMS, INC., a Delaware corporation, as Lessee (together
with its permitted successors and assigns, the
“Lessee”), and SELCO SERVICE CORPORATION, an Ohio
corporation, as Lessor (in such capacity, the
“Lessor”).
W I T N E S S E T
H:
WHEREAS, pursuant to the
Participation Agreement dated as of the date hereof (as amended,
modified, restated or supplemented from time to time, the
“Participation Agreement”), among the Lessee, Citrix
Capital Corp., as Guarantor, the Lessor, the Lenders described
therein, Key Corporate Capital Inc., as Administrative Agent, and
the other parties named therein, the Lessor has agreed to acquire
title to certain Properties and the Lenders and the Lessor have
agreed to finance such acquisition;
WHEREAS, the Lessor desires
to lease to the Lessee, and the Lessee desires to lease from the
Lessor, such Properties; and
WHEREAS, such Properties will
be subject to the terms of this Lease.
NOW, THEREFORE, in
consideration of the foregoing, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions;
Interpretation.
Capitalized terms used but
not otherwise defined in this Lease have the respective meanings
specified in Appendix A to the Participation Agreement, and the
rules of interpretation set forth in such Appendix A shall apply to
this Lease.
ARTICLE II
LEASE
SECTION 2.1. Acceptance and
Lease of the Properties. Subject to the conditions set forth in the
Participation Agreement, including without limitation the
satisfaction or waiver of the conditions set forth in Article VI
thereof, the Lessor hereby covenants and agrees to acquire each
Property. Subject to the terms and conditions contained in this
Lease, the Lessor agrees that it shall, commencing on the first day
of the Basic Term with respect to a Property, demise and lease to
the Lessee hereunder and under the Lease Supplements for the Basic
Term the Lessor’s interest in such Property, and the Lessee
hereby agrees, expressly for the direct benefit of the Lessor, to
lease from the Lessor for the Basic Term, the Lessor’s
interest in such Property.
SECTION 2.2. Acceptance
Procedure. The Lessee hereby agrees that the Lessor’s
acquisition of each title to each Property shall, without further
act, constitute the acceptance by the Lessee of each Property for
all purposes of this Lease and the other Operative Documents on the
terms set forth herein and therein, and that each Property, shall
be deemed to be included in the leasehold estate of this Lease and
shall be subject to the terms and conditions of this Lease as of
the first day of the Basic Term therefore. Each Property shall be
made subject to this Lease pursuant to a Lease Supplement in
substantially the form of Exhibit I hereto with such changes as are
appropriate under Applicable Law for the jurisdiction in which such
Property is located.
SECTION 2.3. Basic Term. The
Basic Term (the “Basic Term”) of this Lease with
respect to each Property shall begin on the Closing Date therefore
and shall end on the Expiration Date.
SECTION 2.4. Title. Each
Property is leased to the Lessee without any representation or
warranty, express or implied, by the Lessor and subject to the
rights of parties in possession, the existing state of title
(including, without limitation, all Liens other than Lessor Liens
or any Liens arising in respect of the Security Documents) and all
Applicable Law. The Lessee shall in no event have any recourse
against the Lessor for any defect in or exception to title to any
Property other than resulting from Lessor Liens or any Liens
arising in respect of the Security Documents.
ARTICLE III
PAYMENT OF RENT
SECTION 3.1. Rent.
(a) (a) During the Basic Term for each Property, the
Lessee shall pay Basic Rent for such Property to the Administrative
Agent, for the benefit of the Lessor, on each Basic Rent Payment
Date, on the date required under Section 20.1(k) in connection
with the Lessee’s exercise of the Remarketing Option and on
any date on which this Lease shall terminate with respect to such
Property. The Lessor shall provide the Lessee with a telephonic
(facsimile) or electronic invoice with respect to the amount of
Basic Rent due on any applicable Basic Rent Payment Date; provided,
however,
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that: (i) the Lessor shall have no
liability to the Lessee if it fails to provide any invoice,
(ii) the failure to provide any invoice shall not affect the
rights of the Lessor hereunder in any manner whatsoever and
(iii) the failure to provide any invoice shall not extend the
due date of any payment of Basic Rent.
(b) The Lessee’s
inability or failure to take possession of all or any portion of
the Property upon the Closing Date shall not delay or otherwise
affect the Lessee’s obligation to pay Rent for such Property
in accordance with the terms of this Lease.
SECTION 3.2. Payment of Rent.
Rent shall be paid absolutely net to the Administrative Agent
entitled thereto, so that this Lease shall yield to such Person the
full amount thereof, without setoff, deduction or
reduction.
SECTION 3.3. Supplemental
Rent. The Lessee shall pay to the Lessor or any other Person
entitled thereto any and all Supplemental Rent promptly as the same
shall become due and payable, and if the Lessee fails to pay any
Supplemental Rent, the Lessor and such other Persons shall have all
rights, powers and remedies provided for herein or by law or equity
or otherwise. Subject to the exception set forth in
Section 3.1(a) above, the Lessee shall pay to the Lessor, as
Supplemental Rent, among other things, on demand, to the extent
permitted by Applicable Law, interest at the applicable Overdue
Rate on any installment of Basic Rent not paid when due for the
period for which the same shall be overdue and on any payment of
Supplemental Rent not paid when due or demanded by the Lessor for
the period from the due date or the date of any such demand, as the
case may be, until the same shall be paid. The expiration or other
termination of the Lessee’s obligations to pay Basic Rent
hereunder shall not limit or modify the obligations of the Lessee
with respect to Supplemental Rent. Unless expressly provided
otherwise in this Lease, in the event of any failure on the part of
the Lessee to pay and discharge any Supplemental Rent as and when
due, the Lessee shall also promptly pay and discharge any fine,
penalty, interest or cost which may be assessed or added under any
agreement to which Lessee is a party or which is authorized in
writing by the Lessee with a third party for nonpayment or late
payment of such Supplemental Rent, all of which shall also
constitute Supplemental Rent.
SECTION 3.4. Method of
Payment. Each payment of Rent payable by the Lessee under this
Lease or any other Operative Document shall be made by the Lessee
to the Payment Account maintained by the Administrative Agent as
assignee of the Lessor under the Assignment of Lease and Rent (or,
if all Loans and all other amounts owing to the Lenders under the
Operative Documents have been paid in full and all Commitments of
the Lenders have been permanently terminated, to the Lessor) prior
to 1:00 p.m., New York City time, to the account specified by the
Administrative Agent in immediately available funds on the date
when such payment shall be due. Payments received after 1:00 p.m.,
New York City time, on the date due shall for the purpose of
Section 16.1 hereof be deemed received on such day; provided,
however, that for the purposes of the second sentence of
Section 3.3 hereof, such payments shall be deemed received on
the next succeeding Business Day and, unless the Lenders and the
Lessor, as applicable, are able to invest or employ such funds on
the date received, subject to interest at the Overdue Rate as
provided in such Section 3.3.
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ARTICLE IV
QUIET ENJOYMENT; RIGHT TO
INSPECT
SECTION 4.1. Quiet Enjoyment.
Subject to Sections 2.4 and 4.2, and subject to the rights of the
Lessor contained in Article XV and the other terms of the Operative
Documents to which the Lessee is a party, the Lessee shall
peaceably and quietly have, hold and enjoy each Property for its
Basic Term, free of any claim or other action by the Lessor or
anyone claiming by, through or under the Lessor (other than the
Lessee) with respect to any matters arising from and after the
Closing Date for such Property. Such right of quiet enjoyment is
independent of, and shall not affect the Lessor’s rights
otherwise to initiate legal action to enforce the obligations of
the Lessee under this Lease. If any Lessor Lien interferes with
Lessee’s use or operation of the Properties, Lessor shall
promptly remove or modify the applicable Lessor Lien as necessary
to remove such interferences, and any failure by Lessor to do so
shall render Lessor liable to Lessee for any monetary damage
proximately caused thereby.
SECTION 4.2. Right to
Inspect. During the Basic Term, the Lessee shall upon reasonable
notice from the Lessor, permit the Lessor and its authorized
representatives, agents and permitees (each an “Inspecting
Party”) to inspect each Property during normal business hours
at such Inspecting Party’s expense, provided that such
inspections shall not unreasonably interfere with the
Lessee’s business operations at the Property and shall be
subject to Lessee’s reasonable security and health and safety
requirements and policies. So long as no Event of Default has
occurred and is continuing, the Inspecting Party shall give Lessee
in five (5) Business Days advance written notice before
entering upon any Property for an inspection thereof. Each
Inspecting Party shall hold in confidence any trade secrets of the
Lessee obtained in the course of any inspection and, at the request
of the Lessee, shall execute commercially reasonable
confidentiality agreements with respect thereto.
ARTICLE V
NET LEASE, ETC.
SECTION 5.1. Net Lease. This
Lease shall constitute a net lease. Any present or future law to
the contrary notwithstanding, this Lease shall not terminate, nor
shall the Lessee be entitled to any abatement, suspension,
deferment, reduction, setoff, counterclaim, or defense with respect
to the Rent, nor shall the obligations of the Lessee hereunder be
affected (except as expressly herein permitted and by performance
of the obligations in connection therewith) by reason of:
(i) any defect in the condition, merchantability, design,
construction, quality or fitness for use of any Property or any
part thereof, or the failure of any Property to comply with all
Applicable Law, including any inability to occupy or use the
Property or any part thereof by reason of such non-compliance;
(ii) any damage to, removal, abandonment, salvage, loss,
contamination of or Release from, scrapping or destruction of or
any requisition or taking of any Property or any part thereof,
(iii) any restriction, prevention or curtailment of or
interference with the construction on or any use of any Property or
any part thereof including eviction; (iv) any defect in title
to or rights to any Property or any Lien on such title or rights or
on any Property (other than Permitted Liens); (v) any change,
waiver, extension, indulgence or other action or omission or breach
in respect of any
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obligation or liability of or by the
Administrative Agent or any Participant; (vi) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceedings relating to any Obligor, any
Participant or any other Person, or any action taken with respect
to this Lease by any trustee or receiver of any Obligor, any
Participant or any other Person, or by any court, in any such
proceeding; (vii) any claim that the Lessee has or might have
against any Person, including without limitation any Participant or
any vendor, manufacturer, contractor of or for any Property;
(viii) any failure on the part of the Lessor or any other
Lessor to perform or comply with any of the terms of this Lease
(other than performance by the Lessor of its obligations set forth
in Section 2.1 hereof), of any other Operative Document or of
any other agreement; (ix) any invalidity or unenforceability
or illegality or disaffirmance of this Lease against or by the
Lessee or any provision hereof or any of the other Operative
Documents or any provision of any thereof, (x) the
impossibility or illegality of performance by the Lessee, the
Lessor or both; (xi) any action by any court, administrative
agency or other Governmental Authority; or (xii) any other
cause or circumstances whether similar or dissimilar to the
foregoing and whether or not the Lessee shall have notice or
knowledge of any of the foregoing; and any provisions of Applicable
Law which are contrary to the foregoing are hereby waived to the
fullest extent permitted by law. The Lessee’s agreement in
the preceding sentence shall not affect any claim, or right (other
than the right to offset Basic Rent) the Lessee may have against
the Lessor or any Participant pursuant to the Operative Documents
or otherwise. The parties intend that the obligations of the Lessee
hereunder shall be covenants and agreements that are separate and
independent from any obligations of the Lessor hereunder or under
any other Operative Documents and the obligations of the Lessee
shall continue unaffected unless such obligations shall have been
modified or terminated in accordance with an express provision of
this Lease.
SECTION 5.2. No Termination
or Abatement. The Lessee shall remain obligated under this Lease in
accordance with its terms and shall not take any action to
terminate, rescind or avoid this Lease (except as provided herein),
notwithstanding any action for bankruptcy, insolvency,
reorganization, liquidation, dissolution, or other proceeding
affecting the Lessor or any Participant, or any action with respect
to this Lease which may be taken by any trustee, receiver or
liquidation of the Lessor or any Participant or by any court with
respect to the Lessor or any Participant. The Lessee hereby waives
all right to terminate or surrender this Lease (except as provided
herein) or except as a consequence of a reduction in the Lease
Balance as a result of Casualty or Condemnation proceeds pursuant
to the terms of Section 14.1(a) of this Lease, or as a result
of a purchase of any or all of the Properties pursuant to
Section 18.1 of this Lease, to avail itself of any abatement,
suspension, deferment, reduction, setoff, counterclaim or defense
with respect to the Lease Balance. The Lessee shall remain
obligated under this Lease in accordance with its terms and the
Lessee hereby waives to the fullest extent permitted by law any and
all rights now or hereafter conferred by statute or otherwise to
modify or to avoid strict compliance with its obligations under
this Lease and the Operative Documents. Notwithstanding any such
statute or otherwise, the Lessee shall be bound by all of the terms
and conditions contained in this Lease.
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ARTICLE VI
ASSIGNMENT AND SUBLEASING BY
LESSEE
SECTION 6.1. General. THE
LESSEE SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
ADMINISTRATIVE AGENT AND EACH PARTICIPANT, TRANSFER, ASSIGN OR
ENCUMBER THIS LEASE OR ANY OF ITS RIGHTS OR OBLIGATIONS HEREUNDER
OR SUBLEASE ANY PROPERTY OR ANY PART THEREOF EXCEPT AS PERMITTED BY
SECTION 6.2 OR 6.3, AND ANY SUCH TRANSFER, ASSIGNMENT, ENCUMBRANCE
OR SUBLEASE THAT IS NOT SO PERMITTED SHALL BE NULL AND VOID. ALL OF
THE LEASES OF THE PROPERTY LISTED ON SCHEDULE IV TO THE
PARTICIPATION AGREEMENT, ARE SUBORDINATE TO THIS LEASE AS SUBLEASES
OF THE LESSEE’S INTEREST IN THE PROPERTY, AND LESSOR HEREBY
CONSENTS TO SUCH SUBLEASES AS PERMITTED SUBLEASES OF THE
PROPERTY.
SECTION 6.2. Subletting.
After the Closing Date for any Property, the Lessee may sublease
such Property or any portion thereof to any Person; provided,
however, that: (a) no such sublease or other relinquishment of
possession of any Property shall in any way discharge or diminish
any of the obligations of the Lessee to the Lessor and the other
Participants under this Lease and the other Operative Documents and
the Lessee shall remain directly and primarily liable under this
Lease and the other Operative Documents to which it is a party;
(b) each sublease of any Property shall expressly be made
subject to and subordinated to this Lease and to the rights of the
Lessor hereunder; (c) such sublease shall expressly provide
for the immediate surrender of the applicable Property to the
Lessor after notice from the Lessor to such sublessee of the
occurrence of a Lease Event of Default and a request for such
surrender; and (d) such sublease shall expressly provide for
automatic termination at or prior to the earlier of (i) the
Expiration Date and (ii) the termination of this Lease
pursuant to a Lease Event of Default unless the Lessee shall have
exercised its Purchase Option and purchased the Property pursuant
to Section 18.1. On the Closing Date for certain Properties, such
Properties may be subject to existing subleases the terms of which
may extend beyond the Expiration Date. The Lessee shall, prior to
the Closing Date for any such Property, fully disclose the
existence of such subleases to each Participant, provide true and
correct copies of such subleases to the Lessor and Administrative
Agent and represent that such subleases are on reasonable
commercial terms. The Lessee shall collaterally assign all such
subleases to the Lessor and shall use reasonable commercial efforts
to obtain from each such sublessee agreements to subordinate such
sublease to this Lease.
SECTION 6.3. Permitted
Transfers. Notwithstanding the foregoing provisions of
Section 6.1, Lessee may, without the necessity of obtaining
the consent of Lessor, assign this Lease or sublease the Property
(or a part thereof) to any person, firm or corporation (hereinafter
a “Permitted Transferee”): (i) that is owned by or
controlled by the Lessee, or (ii) that is owned either
directly or indirectly by or is controlled by the principal
shareholder or shareholders of Lessee (or if Lessee becomes a
limited liability company or partnership by its members or
partners), or (iii) that arises in connection with a spin off
of the division or business of Lessee located at the Property to
the shareholders of Lessee or its parent, or (iv) that has
acquired all or
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substantially all of the assets or
business of Lessee at the Property, or its shares, or membership or
partnership interests, whether by purchase or merger; provided in
each case that the following conditions are met: (a) a Lease
Event of Default shall not have occurred and be continuing at the
time of the assignment or transfer; (b) Guarantor shall
expressly agree in writing to guarantee the obligations of the
Permitted Transferee under the Operative Documents on the same
terms and conditions as contained in the Guaranty, such agreement
shall be in form and substance satisfactory to the Lessor;
(c) if the transfer is by assignment, the Permitted Transferee
shall furnish to Lessor prior to the effective date of the
assignment a written instrument reasonably satisfactory to Lessor
in which assignee agrees to assume and be bound by all the
conditions, obligations and agreements of Lessee contained in this
Lease and the other Operative Documents, together with opinions of
counsel in form and substance reasonably satisfactory to the Lessor
and Administrative Agent; and (d) the use or uses of any
Person to whom this Lease is transferred to shall be such that they
do not impair the value or utility of the Properties. The Lessee
shall notify the Lessor promptly, and in any event not less than
thirty (30) days prior to the date of any such proposed
permitted transfer, and shall provide the Lessor and the Lenders
with the terms of such permitted transfer.
ARTICLE VII
LESSEE
ACKNOWLEDGMENTS
SECTION 7.1. Condition of the
Property. THE LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING
EACH PROPERTY “AS IS” WITHOUT REPRESENTATION, WARRANTY
OR COVENANT (EXPRESS OR IMPLIED) BY THE ADMINISTRATIVE AGENT OR ANY
ARTICIPANT AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE
OF TITLE (EXCLUDING LESSOR LIENS AND LIENS ARISING UNDER THE
SECURITY DOCUMENT), (B) THE RIGHTS OF ANY PARTIES IN
POSSESSION THEREOF, (C) ANY STATE OF FACTS WHICH AN ACCURATE
SURVEY OR PHYSICAL INSPECTION MIGHT SHOW, AND (D) VIOLATIONS
OF APPLICABLE LAW WHICH MAY EXIST ON THE DATE HEREOF OR ON THE
ACQUISITION DATE. NEITHER THE ADMINISTRATIVE AGENT NOR ANY
PARTICIPANT HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) OR SHALL
BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE (OTHER
THAN FOR LESSOR LIENS ATTRIBUTABLE TO THE ADMINISTRATIVE AGENT OR
SUCH PARTICIPANT, AS THE CASE MAY BE AND LIENS ARISING UNDER THE
SECURITY DOCUMENTS, VALUE, HABITABILITY, USE, CONDITION, DESIGN,
OPERATION, OR FITNESS FOR USE OF THE PROPERTY (OR ANY PART
THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT (EXCEPT
SECTION 4.1 HEREOF) WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO
EACH PROPERTY (OR ANY PART THEREOF) AND NEITHER THE LESSOR NOR ANY
OTHER PARTICIPANT SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREIN (OTHER THAN FOR LESSOR LIENS ATTRIBUTABLE TO THE
LESSOR OR SUCH OTHER PARTICIPANT AND LIENS ARISING UNDER THE
SECURITY DOCUMENTS)
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OR THE FAILURE OF THE PROPERTY, OR ANY
PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAW.
SECTION 7.2. Risk of Loss.
Subject to the terms of Section 14.1 of this Lease, during the
Basic Term with respect to any Property the risk of loss of or
decrease in the enjoyment and beneficial use of such Property as a
result of the damage or destruction thereof by fire, the elements,
casualties, thefts, riots, wars or otherwise is assumed by the
Lessee, and except for loss or damages arising from the gross
negligence or willful misconduct of, or breach of this Lease by the
Lessor, the Administrative Agent, any Participant or their
respective agents, employees or contractors, neither the Lessor,
the Administrative Agent nor any Participant shall in any event be
answerable or accountable to Lessee therefor.
SECTION 7.3. No Obligation of
Lessor to Repair, etc. The Lessor shall under no circumstances be
required to build any improvements on any Property, make any
repairs, replacements, alterations or renewals of any nature or
description to any Property, make any expenditure whatsoever in
connection with this Lease (other than for Advances made in
accordance with and pursuant to the terms of the Participation
Agreement) or maintain any Property in any way. The Lessee waives
any right to (i) require the Lessor to maintain, repair, or
rebuild all or any part of any Property or (ii) make repairs
at the expense of the Lessor pursuant to any Applicable Law,
Insurance Requirement, contract, agreement, or covenant, condition
or restriction in effect at any time during the Basic
Term.
SECTION 7.4. No Liability of
Participants, etc. Nothing contained in this Lease shall be
construed as constituting the consent or request of the Lessor or
any other Participant, expressed or implied, to or for the
performance by any contractor, mechanic, laborer, materialman,
supplier or vendor of any labor or services or for the furnishing
of any materials for any construction, alteration, addition, repair
or demolition of or to any Property or any part thereof. NOTICE IS
HEREBY GIVEN THAT NEITHER THE LESSOR, THE ADMINISTRATIVE AGENT NOR
ANY PARTICIPANT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE OR TO ANYONE
HOLDING ANY INTEREST IN ANY PROPERTY OR ANY PART THEREOF THROUGH OR
UNDER THE LESSEE AND THAT NO MECHANIC’S OR OTHER LIENS FOR
ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE
INTEREST OF THE LESSOR OR ANY LENDER IN AND TO ANY
PROPERTY.
ARTICLE VIII
POSSESSION AND USE OF EACH
PROPERTY, ETC.
SECTION 8.1. Utility Charges.
The Lessee shall pay or cause to be paid all charges for
electricity, power, gas, oil, water, telephone, sanitary sewer
service and all other rents and utilities used in or on each
Property during the Basic Term. The Lessee shall be entitled to
receive any credit or refund with respect to any utility charge
paid by the Lessee and the amount of any credit or refund received
by the Lessor on account of any utility charges paid by the Lessee,
net of the costs and expenses reasonably incurred by the Lessor in
obtaining such credit or refund, shall be promptly paid over to the
Lessee.
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SECTION 8.2. Possession, Use
and Operation of each Property. Each Property shall be used,
operated and maintained in a manner consistent with this Lease and
the standards applied by the Lessee for other facilities similar to
the Property owned or leased by Affiliates of the Lessee and
consistent with the use assumptions set forth in the Appraisal for
such Property. The Lessee shall pay, or cause to be paid, all
charges and costs required in connection with the use of each
Property as contemplated by this Lease. The Lessee shall not commit
or permit any waste or abandonment of any Property or any part
thereof.
SECTION 8.3. Compliance with
Applicable Laws and Insurance Requirements; Necessary Permits, etc.
Subject to the terms of Article XII relating to permitted contests,
the Lessee, at its sole cost and expense, shall:
(a) comply in all material
respects with: (i) all Applicable Law (including all
Environmental Laws) and (ii) all applicable Insurance
Requirements relating to the Property, including the use,
construction, operation, maintenance, repair and restoration
thereof and the remarketing thereof pursuant to Article XX, whether
or not compliance therewith shall require structural or
extraordinary changes in such Property or interfere with the use
and enjoyment of such Property, and
(b) procure, maintain and
comply in all material respects with all Necessary Permits, and
notify the Lessor within ten (10) days of a senior officer of
the Lessee having knowledge of any actual or pending termination or
revocation of any Necessary Permit.
Notwithstanding the preceding sentence,
the Lessee shall be deemed to be in compliance with all
Environmental Laws for purposes of this Lease, notwithstanding any
Environmental Violations, if the severity of such Environmental
Violations is less than the Federal, State or Local standards
requiring remediation or removal or, if such standards are
exceeded, remediation or removal is proceeding in accordance with
all applicable Hazardous Materials Laws and will be completed no
later than the Expiration Date.
SECTION 8.4. Lessee’s
Right to Enforce Warranties.
(a) So long as no Lease Event
of Default has occurred that is continuing (unless the enforcement
of any such warranty or claim is necessary to cure, in whole or in
part, any such Lease Event of Default), the Lessor agrees to
authorize the Lessee (directly or through agents) at the
Lessee’s expense to assert during the Basic Term, all of the
Lessor’s rights (if any) under any applicable warranty and
any other claim that the Lessor, or the Lessee may have against any
dealer, vendor, manufacturer, contractor or subcontractor or the
previous Property owner with respect to any Property.
(b) So long as no Lease Event
of Default has occurred that is continuing (unless the enforcement
of any such warranty or claim is necessary to cure, in whole or in
part, any such Lease Event of Default), the Lessor agrees, at the
Lessee’s expense, to cooperate with the Lessee and take all
other action necessary as specifically requested by the Lessee to
enable the Lessee to enforce all of Lessee’s rights (if any)
under this Section 8.4, such rights of enforcement to be
exclusive to the Lessee. During the Basic Term (except during the
continuance of a Lease Event of Default), the Lessor will not
amend, modify or
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waive, or take any action under, any
applicable warranty and any other claim that the Lessee may have
under this Section 8.4 without the Lessee’s prior
written consent. The Lessee agrees at its expense to diligently
assert all of its rights under such warranties and any other claims
that the Lessee may have against such vendor, manufacture,
contractor or subcontractor or the previous Property owner with
respect to any Property or any portion thereof.
ARTICLE IX
MAINTENANCE AND REPAIR;
REPLACEMENT OF PARTS
SECTION 9.1. Maintenance and
Repair. (a) Subject to the provisions of Article XIV, the
Lessee, at its sole cost and expense, shall maintain each Property
in good condition (ordinary wear and tear excepted) and make all
necessary repairs thereto, of every kind and nature whatsoever,
whether interior or exterior, ordinary or extraordinary, structural
or nonstructural or foreseen or unforeseen, in each case as
required by all Applicable Law and Insurance Requirements and in no
event less than prudent industry standards for property similar to
such Property and the standards applied by the Lessee in the
operation and maintenance of facilities similar to such Property
owned or leased by Affiliates of the Lessee.
(b) Additional maintenance
and return requirements with respect to a Property may be set forth
in the Lease Supplement relating thereto.
ARTICLE X
MODIFICATIONS,
ETC.
SECTION 10.1. Modifications,
Substitutions and Replacements. During the Basic Term, the Lessee,
at its sole cost and expense, may at any time and from time to time
make alterations, renovations, improvements and additions to any
Property or any part thereof (collectively,
“Modifications”); provided, however, that:
(a) except for any
Modification required to be made pursuant to any Applicable Law or
Insurance Requirements (a “Required Modification”), no
Modification shall cause the Fair Market Sales Value of such
Property, determined as a whole after the completion of such
Modifications, to be below the then current Lease Balance for such
Property;
(b) such Modifications shall
be (and shall be done in a manner) consistent in all respects with
the Plans and Specifications for applicable Property;
(c) such Modifications shall
comply with Articles VIII and IX.; and
(d) promptly after the
completion of any Modification which cost in excess of $2,500,000
to complete, the Lessee shall give written notice thereof, together
with a description of the Modification, to the Lessor and the
Administrative Agent.
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All Modifications shall
remain part of the applicable Property and title thereto shall
immediately vest in the Lessor; provided, however, that
Modifications that (x) are not Required Modifications,
(y) were not financed by the Participants and (z) can be
removed without causing (A) material damage to the Property,
or (B) cause a diminution in the Fair Market Sales Value of
such Property determined as a whole after the completion of such
Modifications, below the then current Lease Balance for such
Property shall be the property of the Lessee, any sublessee, or
other third party and may be removed by the Lessee, any sublessee,
or third party during the Basic Term and up to thirty
(30) days after the expiration or earlier termination of this
Lease and shall not be subject to this Lease. The Lessee may place
upon each Property any trade fixtures, machinery, equipment,
inventory or other property belonging to the Lessee, such
sublessees or third parties and may remove the same subject to the
limitation of Section 11.2; provided, further, however, that
the Lessee shall keep and maintain at the Property and shall not
remove from the Property any equipment or parts financed or
otherwise paid for by the Participants pursuant to the
Participation Agreement.
ARTICLE XI
DISCHARGE OF
LIENS;
CONDITION UPON
RETURN
SECTION 11.1. Lessee’s
Obligation to Discharge Liens. The Lessee agrees that except as
otherwise provided herein and subject to the terms of Article XII
relating to permitted contests, the Lessee shall not directly or
indirectly create or allow to remain, and shall promptly discharge
at its sole cost and expense, any Lien (other than any Permitted
Lien), defect, attachment, levy, title retention agreement or claim
upon any Property or any Lien, attachment, levy or claim with
respect to the Rent or with respect to any amounts held by any
Participant pursuant to the Operative Documents, other than
Permitted Liens and Liens on trade fixtures (unless attached to or
incorporated in the Property as a fixture), machinery, equipment,
inventory, accounts (as defined in the UCC) general intangibles and
other personal property belonging to Lessee, any sublessees or
third parties to the extent such property is not financed or
otherwise paid for by the Participants pursuant to the
Participation Agreement.
SECTION 11.2. Condition upon
Return to Lessor. The Lessee shall, upon the expiration or earlier
termination of this Lease (other than as a result of the
Lessee’s purchase of the Property from the Lessor as provided
herein), vacate and surrender each Property to the Lessor in its
then-current, “AS IS” condition, without any express or
implied warranty subject to the Lessee’s obligations under
Sections 8.3, Article IX, 10.1, 11.1, 14.1, 14.2 and Article XX.
Title to all improvements, furnishings, furniture, fixtures and any
personal property of the Lessee which were not funded by the Lessor
and the Lenders pursuant to the Participation Agreement, located on
or about any Property whether or not affixed to the realty, shall,
subject to the following sentence, be and remain the property of
the Lessee throughout the Basic Term, and at any time during the
Basic Term and within thirty (30) days following the
expiration or earlier termination of this Lease, may be removed by
the Lessee or, at the Lessee’s election surrendered with the
Property, in which event title to such surrendered property shall,
if the Lessor so elects, be deemed transferred to the Lessor.
Notwithstanding the foregoing, Lessee shall not remove any fixture
constituting part of any Property which is required by Applicable
Law or which cannot be removed without causing (y)
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damage to the Property which is not
promptly repaired by the Lessee or (z) any diminution to the
Fair Market Sales Value or remaining useful life of the applicable
Property.
ARTICLE XII
PERMITTED
CONTESTS;
GRANTS AND RELEASES OF
EASEMENTS;
WARRANTY OF TITLE
SECTION 12.1. Permitted
Contests in Respect of Applicable Law Other Than Impositions.
Except to the extent otherwise provided in Section 13.5(b) of
the Participation Agreement regarding Taxes and other Impositions,
if, to the extent and for so long as (a) a test, challenge,
appeal or proceeding for review of any Applicable Law relating to
any Property shall be prosecuted diligently and in good faith in
appropriate proceedings by the Lessee or (b) compliance with
such Applicable Law shall have been excused or exempted by a valid
nonconforming use, variance permit, waiver, extension or
forbearance, the Lessee shall not be required to comply with such
Applicable Law but only if and so long as any such test, challenge,
appeal, proceeding, waiver, extension, forbearance or noncompliance
shall not, in the reasonable opinion of the Lessor and the
Administrative Agent, involve (A) any risk of criminal
liability being imposed on the Lessor, any Participant or the
Administrative Agent or (B) any risk of (1) foreclosure,
forfeiture or loss of such Property, or a diminution of the Fair
Market Sales Value of such Property, or (2) the nonpayment of
Rent or (C) any risk of (1) the sale of, or the creation
of any Lien (other than a Permitted Lien) on, any part of such
Property, (2) civil liability being imposed on the Lessor, any
Participant, the Administrative Agent or such Property, or
(3) enjoinment of, or interference with, the use, possession
or disposition of such Property in manner which would cause a
diminution in the Fair Market Sales Value of such Property. The
Lessor, at the Lessee’s sole cost and expense, shall execute
and deliver to the Lessee such authorizations and other documents
as may reasonably be required in connection with any such permitted
contest.
The Lessor will not be
required to join in any proceedings pursuant to this
Section 12.1 unless a provision of any Applicable Law requires
that such proceedings be brought by or in the name of the Lessor;
and in that event the Lessor will join in the proceedings or permit
them or any part thereof to be brought in its name if and so long
as (i) the Lessee has not elected the Remarketing Option and
(ii) the Lessee pays all related expenses and indemnities of
the Administrative Agent and the Participants with respect to such
proceedings.
SECTION 12.2. Grants and
Releases of Easements; Lessor’s Waivers. Provided that no
Lease Event of Default shall have occurred and be continuing, from
time to time upon request of the Lessee and subject to the
Lessee’s prompt reimbursement of the Lessor’s costs and
expenses, the Lessor (as holder of record title in the applicable
Property) shall execute such documents reasonably satisfactory in
form (which have been prepared at Lessee’s expense) to effect
any of the actions set forth in clauses (a), (b), (c), (d),
(e) and (f) of the following sentence, if in the
Lessee’s reasonable and good faith opinion such action by the
Lessor is necessary or appropriate to effect such intended actions.
Provided that no Lease Event of Default shall have
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occurred and be continuing and subject
to the provisions of Articles VII, IX and X and Section 8.3,
the Lessor hereby consents in each instance to the following
actions by the Lessee as the Lessor’s agent, and the Lessor
hereby appoints the Lessee as the Lessor’s attorney-in-fact,
with full authority in the place and stead of the Lessor to take
such action or actions from time to time during the Basic Term, but
at the Lessee’s sole cost and expense: (a) the granting
of easements, licenses, rights-of-way and other rights and
privileges in the nature of easements reasonably necessary or
desirable for the use, repair, or maintenance of any Property as
herein provided or that do not adversely affect the Fair Market
Sales Value of such Property; (b) the release of existing
easements or other rights in the nature of easements which are for
the benefit of any Property; (c) the dedication or transfer of
unimproved portions of any Property for road, highway or other
public or common purposes; (d) the execution of amendments to
any existing covenants and restrictions; (e) the filing and
processing of any and all permit applications, authorizations,
entitlements, agreements with any government or regulatory agency
or amendments thereof, or other documents reasonably required or
beneficial for construction or Modification of the Improvements, or
amendments to Permitted Liens or governmental permits or approvals
affecting any Property; and (f) the execution, processing and
filing of tract or parcel maps (and certificates of compliance for
any lot line adjustments) subdividing the Land into lots or parcels
or reconfiguring existing lots or parcels; provided, however, that
in each case (i) such grant, release, dedication, transfer or
amendment does not adversely affect the Fair Market Sales Value of
the applicable Property, (ii) such grant, release, dedication,
transfer or amendment that in the Lessee’s judgment is
reasonably necessary or beneficial in connection with the use,
maintenance, alteration or improvement of the applicable Property,
(iii) such grant, release, dedication, transfer or amendment
will not cause applicable Property or any portion thereof to fail
to comply with the provisions of this Lease or any other Operative
Documents and all Applicable Law (including, without limitation,
all applicable zoning, planning, building and subdivision
ordinances, all applicable restrictive covenants and all applicable
architectural approval requirements); (iv) any and all
governmental consents or approvals required prior to such grant,
release, dedication, transfer, annexation or amendment have been
obtained, and any and all filings required prior to such action
have been made; (v) the Lessee shall remain obligated under
this Lease and under any instrument executed by the Lessee
consenting to the assignment of the Lessor’s interests in
this Lease as security for indebtedness, in each such case in
accordance with their terms, substantially as though such grant,
release, dedication, transfer or amendment had not been effected
and (vi) the Lessee shall pay and perform any obligations of
the Lessor under such grant, release, dedication, transfer or
amendment. The Lessor acknowledges the Lessee’s right to
finance and to secure under the Uniform Commercial Code, inventory,
furnishings, furniture, equipment, machinery, leasehold
improvements and other personal property located at each Property,
and the Lessor agrees to execute Lessor waiver forms and release of
Lessor Liens in favor of any purchase money seller, lessor or
lender which has financed or may finance in the future such items.
Without limiting the effectiveness of the foregoing, provided that
no Lease Event of Default shall have occurred and be continuing,
the Lessor shall, upon the request of the Lessee, and at the
Lessee’s sole cost and expense, execute and deliver any
instruments necessary or appropriate to confirm any such grant,
release, dedication, transfer, annexation or amendment to any
Person permitted under this Section 12.2 including landlord
waivers with respect to any of the foregoing.
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ARTICLE XIII
INSURANCE
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(three pages of confidential information
omitted pursuant to the request for
confidential treatment)
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ARTICLE XIV
CASUALTY AND CONDEMNATION;
ENVIRONMENTAL MATTERS
SECTION 14.1. Casualty and
Condemnation.
(a) Subject to the provisions
of this Article XIV, if all or a portion of any Property is damaged
or destroyed in whole or in part by a Casualty or if the use,
access, occupancy, easement rights or title to any Property or any
part thereof, is the subject of a Condemnation, or title to any
Property is found to be defective then
(i) in the case of a Casualty
affecting any Property that is not an Event of Loss, any insurance
proceeds payable with respect to such Casualty shall be paid
directly to the Lessee (or if received by the Lessor, shall be paid
over to the Lessee) for the sole purpose of reconstruction,
refurbishment and repair of the
17
Property; provided, however,
that in the event that either (x) such reconstruction,
refurbishment or repair cannot be completed prior to the end of the
Basic Term or (y) the Lessee shall elect not to use such
proceeds for the reconstruction, refurbishment or repair of the
applicable Property, then all such insurance proceeds payable with
respect to such Casualty shall be paid to the Lessor to be applied
towards the payment of the Lease Balance in accordance with
Section 7.6 of the Participation Agreement,
(ii) in the case of a
Condemnation of any part of any Property that is not an Event of
Loss, any ward or compensation relating thereto shall be paid
directly to the Lessee (or if received by the Lessor, shall be paid
over to the Lessee) for the sole purpose of restoration of the
Property; provided, however, that if such restoration cannot be
completed prior to the end of the Basic Term, then such award or
compensation shall be paid to the Lessor to be applied in the
Lessor’s and the Participants’ reasonable discretion to
the partial restoration of the applicable Property or towards the
payment of the Lease Balance in accordance with Section 7.6 of
the Participation Agreement,
(iii) in the case of any
Casualty or Condemnation affecting any Property that is an Event of
Loss, such proceeds, award or compensation shall be paid to the
Lessor to be applied in the Lessor’s and the Lenders’
reasonable discretion to the restoration of the applicable Property
or toward the payment of the Lease Balance on the Termination Date
in accordance with Article XV, and
(iv) in the case where a
defect in title results in compensation from a title insurance
policy and no Lease Event of Default shall have occurred and be
continuing then such insurance proceeds shall be paid to the Lessee
and shall be used to cure such defect in title;
provide
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