$61,500,000
LEASE AGREEMENT
BETWEEN
BNP LEASING CORPORATION,
AS LANDLORD
AND
INFORMIX CORPORATION,
AS TENANT
EFFECTIVE AS OF JANUARY 6, 1997
(Freedom Circle Property)
PURSUANT TO AND AS MORE PARTICULARLY PROVIDED IN SUBPARAGRAPH 18.(l) OF
THIS LEASE, THIS LEASE AND THE PURCHASE AGREEMENT REFERENCED HEREIN
ARE TO CONSTITUTE, FOR INCOME TAX PURPOSES ONLY, A FINANCING
ARRANGEMENT OR CONDITIONAL SALE. AS PROVIDED IN SUBPARAGRAPH 18.(l) OF
THIS LEASE, LANDLORD AND TENANT EXPECT THAT TENANT (AND NOT LANDLORD)
SHALL BE TREATED AS THE TRUE OWNER OF THE PROPERTY FOR INCOME TAX
PURPOSES, THEREBY ENTITLING TENANT (AND NOT LANDLORD) TO TAKE
DEPRECIATION DEDUCTIONS AND OTHER TAX BENEFITS AVAILABLE TO THE OWNER.
TABLE OF CONTENTS
Page
1. Definitions 2
(a) Accounts 2
(b) Active Negligence 2
(c) Additional Rent 2
(d) Administrative Fee 2
(e) Affiliate 2
(f) Applicable Laws 2
(g) Applicable Purchaser 2
(h) Attorneys' Fees 3
(i) Banking Rules Change 3
(j) Base Rent 3
(k) Base Rent Date 3
(l) Base Rent Period 3
(m) Breakage Costs 3
(n) Business Day 3
(o) Capital Adequacy Charges 3
(p) Closing Costs 4
(q) Change of Control Event 4
(r) Code 4
(s) Collateral 4
(t) Collateral Percentage 4
(u) Debt 4
(v) Default 5
(w) Default Rate 5
(x) Designated Sale Date 5
(y) Effective Rate 5
(z) Environmental Cutoff Date 5
(aa) Environmental Indemnity 5
(bb) Environmental Laws 5
(cc) Environmental Losses 5
(dd) Environmental Report 6
(ee) ERISA 6
(ff) ERISA Affiliate 6
(gg) ERISA Termination Event 6
(hh) Escrowed Proceeds 6
(ii) Eurocurrency Liabilities 7
(jj) Eurodollar Rate Reserve Percentage 7
(kk) Event of Default 7
(ll) Excluded Taxes 7
(mm) Fair Market Value 7
(nn) Fed Funds Rate 7
(oo) Funding Advances 7
(pp) GAAP 8
(qq) Hazardous Substance 8
(rr) Hazardous Substance Activity 8
(ss) Impositions 8
(tt) Improvements 8
(uu) Indemnified Party 8
(vv) Initial Funding Advance 9
(ww) Landlord's Parent 9
(xx) LIBOR 9
(yy) Lien 9
(zz) Losses 9
(aaa) Misconduct 10
(bbb) Participant 10
(ccc) Participation Agreement 10
(ddd) Permitted Encumbrances 10
(eee) Permitted Hazardous Substance Use 10
(fff) Permitted Hazardous Substances 11
(ggg) Permitted Transfer 11
(hhh) Person 11
(iii) Plan 11
(jjj) Pledge Agreement 11
(kkk) Prime Rate 12
(lll) Prohibited Encumbrances 12
(mmm) Purchase Agreement 12
(nnn) Purchase Price 12
(ooo) Qualified Payments 12
(ppp) Remaining Proceeds 13
(qqq) Rent 13
(rrr) Responsible Financial Officer 13
(sss) Stipulated Loss Value 13
(ttt) Subsidiary 13
(uuu) Tenant's Knowledge 13
(vvv) Term 13
(www) Unfunded Benefit Liabilities 13
(xxx) Upfront Fee 14
(yyy) Other Terms and References 14
2. Term 14
3. Rental 15
(a) Base Rent 15
(b) Upfront Fee 15
(c) Administrative Fees 16
(d) Additional Rent 16
(e) Interest and Order of Application 16
(f) Net Lease 16
(g) Withholding Taxes 16
(h) No Demand or Setoff 17
4. Insurance and Condemnation Proceeds 17
5. No Lease Termination 19
(a) Status of Lease 19
(b) Waiver By Tenant 19
6. Purchase Documents and Environmental Indemnity 20
7. Use and Condition of Leased Property 20
(a) Use 20
(b) Condition 20
(c) Consideration of and Scope of Waiver 21
8. Other Representations, Warranties and Covenants of Tenant 21
(a) Financial Matters 21
(b) Existing Contract and Pedro's Ground Lease 21
(c) No Default or Violation 21
(d) Compliance with Covenants and Laws 22
(e) Environmental Representations 22
(f) No Suits 22
(g) Condition of Property 22
(h) Organization 23
(i) Enforceability 23
(j) Not a Foreign Person 23
(k) Omissions 23
(l) Existence 23
(m) Tenant Taxes 23
(n) Operation of Property 23
(o) Debts for Construction 24
(p) Impositions 25
(q) Repair, Maintenance, Alterations and Additions 25
(r) Insurance and Casualty 25
(s) Condemnation 25
(t) Protection and Defense of Title 26
(u) No Liens To Secure Payment or Performance on the Leased Property 27
(v) Books and Records 27
(w) Financial Statements; Required Notices; Certificates as to Default28
(x) Further Assurances 29
(y) Fees and Expenses; General Indemnification; Increased Costs; and
Capital Adequacy Charges 29
(aa) Permitted Encumbrances 31
(bb) Environmental 31
(z) Liability Insurance 31
(cc) Affirmative Financial Covenants 33
(dd) Negative Covenants 34
(i) Liens 34
(ii) Transactions with Affiliates 36
(iii) Mergers; Sales of Assets 36
(v) Change of Business 36
(ee) ERISA 37
9. Representations, Warranties and Covenants of Landlord 37
(a) Removal of Prohibited Encumbrances 37
(b) Actions Required of the Title Holder 37
(i) General Requirements. 37
(ii) Examples of Actions Tenant May Require. 38
(iii) Partial Release Provisions. 38
(c) No Default or Violation 40
(d) No Suits 40
(e) Organization 40
(f) Enforceability 40
(g) Existence 40
(h) Not a Foreign Person 40
(i) Estoppel Certificates. 40
(j) Compliance With the Pedro's Ground Lease and the Documents Executed
by Landlord at the Closing Under the Existing Contract 41
10. Assignment and Subletting 41
(a) Consent Required 41
(b) Standard for Landlord's Consent to Assignments and Certain Other
Matters 41
(c) Consent Not a Waiver 41
(d) Landlord's Assignment 41
11. Environmental Indemnification 42
(a) Indemnity 42
(b) Assumption of Defense 42
(c) Notice of Environmental Losses 42
(d) Rights Cumulative 43
(e) Survival of the Indemnity 43
12. Landlord's Right of Access 43
13. Events of Default 44
(a) Definition of Event of Default 44
(b) Remedies 45
(c) Enforceability 47
(d) Remedies Cumulative 47
(e) Waiver by Tenant 47
(f) No Implied Waiver 47
14. Default by Landlord 47
15. Quiet Enjoyment 48
16. Surrender Upon Termination 48
17. Holding Over by Tenant 48
18. Miscellaneous 49
(a) Notices 49
(b) Severability 50
(c) No Merger 50
(d) NO IMPLIED REPRESENTATIONS BY LANDLORD 50
(e) Entire Agreement 50
(f) Binding Effect 50
(g) Time is of the Essence 51
(h) Termination of Prior Rights 51
(i) Governing Law 51
(j) Waiver of a Jury Trial 51
(k) Not a Partnership, Etc 51
(l) Income Tax Reporting 51
Exhibits and Schedules
Exhibit A Legal Description
Exhibit B Encumbrance List
Exhibit C List of Environmental Reports
Exhibit D Covenant Compliance Certificate
LEASE AGREEMENT
This LEASE AGREEMENT (this "Lease"), made to be effective as of January
6, 1997 (all references herein to the "date hereof" or words of like
effect shall mean such effective date), by and between BNP LEASING
CORPORATION, a Delaware corporation ("Landlord"), and INFORMIX
CORPORATION, a Delaware corporation ("Tenant");
W I T N E S E T H T H A T:
WHEREAS, pursuant to a Purchase and Sale Agreement and Escrow
Instructions dated as of December ___, 1996 (the "Existing Contract")
between Tenant and Peery Private Investment Company - WP, L.P., a
California limited partnership, Peery Public Investment Company - WP,
L.P., a California limited partnership, and John Arrillaga, Trustee, or
Successor Trustee under Trust Agreement dated July 20, 1977 (The
Arrillaga Family Trust ) as amended (collectively, "Seller"), concerning
the land described in Exhibit A attached hereto (the "Land") and the
improvements on such Land, if any, Landlord is acquiring the Land and
any improvements thereon from Seller contemporaneously with the
execution of this Lease;
WHEREAS, in anticipation of Landlord's acquisition of the Land, any
improvements on the Land and other rights and interests hereinafter
described, Landlord and Tenant have reached agreement as to the terms
and conditions upon which Landlord is willing to lease the same to
Tenant, and by this Lease Landlord and Tenant desire to evidence such
agreement;
NOW, THEREFORE, in consideration of the rent to be paid and the
covenants and agreements to be performed by Tenant, as hereinafter set
forth, Landlord does hereby LEASE, DEMISE and LET unto Tenant for the
term hereinafter set forth the Land, together with:
(i) Landlord's interest in any and all buildings and improvements
now or hereafter erected on the Land, including, but not limited to, the
fixtures, attachments, appliances, equipment, machinery and other
articles attached to any such buildings and improvements (the
"Improvements");
(ii) all easements and rights-of-way now owned or hereafter acquired
by Landlord for use in connection with the Land or Improvements or as a
means of access thereto;
(iii) all right, title and interest of Landlord, now owned or hereafter
acquired, in and to (A) any land lying within the right-of-way of any
street, open or proposed, adjoining the Land, (B) any and all sidewalks
and alleys adjacent to the Land and (C) any strips and gores between the
Land and abutting land (except strips and gores, if any, between the
Land and abutting land owned by Landlord, with respect to which this
Lease shall cover only the portion thereof to the center line between
the Land and the abutting land owned by Landlord).
The Land and all of the property described in items 0.(a)(i) through
0.(a)(iii) above are hereinafter referred to collectively as the "Real
Property".
In addition to conveying the leasehold in the Real Property as described
above, Landlord hereby assigns to Tenant for the term of this Lease the
right to use and enjoy (and, to the extent the following consist of
contract rights, to enforce) any assignable interests or rights in, to
or under the following that have been transferred to Landlord by Seller
under the Existing Contract: (a) any goods, equipment, furnishings,
furniture, chattels and personal property of whatever nature that are
located on the Real Property and all renewals or replacements of or
substitutions for any of the foregoing; and (b) any general intangibles,
permits, licenses, franchises, certificates, and other rights and
privileges. All of the property, rights and privileges described above
in this paragraph are hereinafter collectively called the "Personal
Property".
In addition to conveying the leasehold in the Real Property and the
rights to use and enjoy any Personal Property as described above,
Landlord hereby assigns to Tenant for the term of this Lease all rights
of the lessor under the Ground Lease described in Exhibit B attached
hereto, pursuant to which the current lessee thereunder is operating a
Pedro's Restaurant (the "Pedro's Ground Lease"), including the right to
receive and collect directly from such lessee all rent required by the
Pedro's Ground Lease.
The Real Property, the Personal Property and the rights of the lessor
under the Pedro's Ground Lease are hereinafter sometimes collectively
called the "Leased Property."
Provided, however, the leasehold estate conveyed hereby and Tenant's
rights hereunder are expressly made subject and subordinate to the
Permitted Encumbrances (as defined below) and to any other claims not
constituting Prohibited Encumbrances (as defined below).
The Leased Property is leased by Landlord to Tenant and is accepted and
is to be used and possessed by Tenant upon and subject to the following
terms, provisions, covenants, agreements and conditions:
1. Definitions. As used herein, the terms "Landlord," "Tenant,"
"Existing Contract," "Seller," "Land," "Improvements," "Real Property,"
"Personal Property," "Pedro's Ground Lease" and "Leased Property" shall
have the meanings indicated above and the terms listed immediately below
shall have the following meanings:
(a) Accounts. "Accounts" shall have the meaning assigned to it in
the Pledge Agreement.
(b) Active Negligence. "Active Negligence" of any Person (including
Landlord) means, and is limited to, the negligent conduct of activities
on the Leased Property by such Person or by others acting and authorized
to act on such Person's behalf in a manner that proximately causes
actual bodily injury or property damage to occur. "Active Negligence"
shall not include (1) any negligent failure of Landlord to act when the
duty to act would not have been imposed but for Landlord's status as
owner of the Leased Property or as a party to the transactions described
in this Lease, (2) any negligent failure of any other Indemnified Party
to act when the duty to act would not have been imposed but for such
party's contractual or other relationship to Landlord or participation
or facilitation in any manner, directly or indirectly, of the
transactions described in this Lease, or (3) the exercise in a lawful
manner by Landlord (or any party lawfully claiming through or under
Landlord) of any remedy provided herein or in the Purchase Documents.
(c) Additional Rent. "Additional Rent" shall have the meaning
assigned to it in subparagraph 3.(d) below.
(d) Administrative Fee. "Administrative Fee" shall have the meaning
assigned to it in subparagraph 3.(c).
(e) Affiliate. "Affiliate" of any Person means any other Person
controlling, controlled by or under common control with such Person.
For purposes of this definition, the term "control" when used with
respect to any Person means the power to direct the management of
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
(f) Applicable Laws. "Applicable Laws" shall have the meaning
assigned to it in subparagraph 8.(d) below.
(g) Applicable Purchaser. "Applicable Purchaser" means any third
party designated by Tenant to purchase the Landlord's interest in the
Leased Property and in any Escrowed Proceeds as provided in the Purchase
Agreement.
(h) Attorneys' Fees. "Attorneys' Fees" means the reasonable fees
and expenses of counsel to the parties incurring the same, which may
include fairly allocated costs of in-house counsel, printing,
photostating, duplicating and other expenses, air freight charges, and
reasonable fees billed for law clerks, paralegals, librarians and others
not admitted to the bar but performing services under the supervision of
an attorney. Such terms shall also include, without limitation, all
such reasonable fees and expenses incurred with respect to appeals,
arbitrations and bankruptcy proceedings, and whether or not any manner
or proceeding is brought with respect to the matter for which such fees
and expenses were incurred.
(i) Banking Rules Change. "Banking Rules Change" means either: (1)
the introduction of or any change after the date hereof (other than any
change by way of imposition or increase of reserve requirements included
in the Eurodollar Rate Reserve Percentage) in any law or regulation, in
the generally accepted interpretation by the institutional lending
community of any law or regulation or in the interpretation of any law
or regulation asserted by any regulator, court or other governmental
authority or (2) the compliance with any new guideline or new request
after the date hereof from any central bank or other governmental
authority (whether or not having the force of law).
(j) Base Rent. "Base Rent" means the rent payable by Tenant
pursuant to subparagraph 3.(a) below.
(k) Base Rent Date. "Base Rent Date" means the first Business Day
of every calendar month, beginning with February 3, 1997; provided, the
last Base Rent Date shall be December 31, 1998.
(l) Base Rent Period. "Base Rent Period" means a period for which
Base Rent must be paid under the Lease. The first Base Rent Period
shall begin on and include the date of this Lease and shall end on but
not include the February 3, 1997, the first Base Rent Date. Each
successive Base Rent Period shall (1) begin on and include the Base Rent
Date upon which the preceding Base Rent Period ends, and (2) end on but
not include the next Base Rent Date.
(m) Breakage Costs. "Breakage Costs" means any and all costs,
losses or expenses incurred or sustained by Landlord's Parent or any
other Participant, for which Landlord's Parent or the other Participant
shall expect reimbursement from Landlord, because of the resulting
liquidation or redeployment of deposits or other funds used to make or
maintain Funding Advances upon any application of a Qualified Payment,
any sale of the Leased Property pursuant to the Purchase Agreement or
any termination of this Lease by Tenant pursuant to Paragraph 2, if such
application, sale or termination is effective as of any day other than a
Base Rent Date. Breakage Costs will include losses attributable to any
decline in LIBOR as of the effective date of application, sale or
termination as compared to LIBOR used to determine the Effective Rate
then in effect. (However, if in connection with the application, sale
or termination, Landlord's Parent or the applicable Participant actually
receives a profit because of a corresponding liquidation or redeployment
of deposits held by it as Collateral, then such profit will be offset
against costs or expenses that would otherwise be charged as Breakage
Costs under this Lease.) Each determination by Landlord's Parent of
Breakage Costs shall, in the absence of clear and demonstrable error, be
conclusive and binding upon Landlord and Tenant.
(n) Business Day. "Business Day" means any day that is (1) not a
Saturday, Sunday or day on which commercial banks are generally closed
or required to be closed in New York City, New York or San Francisco,
California, and (2) a day on which dealings in deposits of dollars are
transacted in the London interbank market; provided that if such
dealings are suspended indefinitely for any reason, "Business Day" shall
mean any day described in clause (1).
(o) Capital Adequacy Charges. "Capital Adequacy Charges" means any
additional amounts Landlord's Parent or any other Participant requires
Landlord to pay as compensation for an increase in required capital as
provided in subparagraph 8.(y)(iv).(p) Closing Costs. "Closing
Costs" means the excess of $61,500,000 over the sums actually paid by
Landlord for or in connection with Landlord's acquisition of the Leased
Property (including the payment of amounts secured by any lien to which
the Real Property may be subject when it is conveyed to Landlord) at the
closing under the Existing Contract, which excess will be advanced by or
on behalf of Landlord to pay Attorneys' Fees and other costs incurred in
connection with the preparation and negotiation of this Lease, the
Purchase Documents, the Environmental Indemnity, the Participation
Agreement and related documents. To the extent that Landlord does not
itself use such excess to pay expenses incurred by Landlord in
connection with the preparation and negotiation of such documents, the
remainder thereof will be advanced to Tenant, with the expectation that
Tenant shall use any such amount advanced for one or more of the
following purposes: (1) the payment or reimbursement of expenses
incurred by Tenant in connection with the preparation and negotiation of
this Lease, the Purchase Documents, the Environmental Indemnity and
related documents; (2) the payment or reimbursement of planning, design,
engineering and other expenses incurred by Tenant in connection with
activities required for the future development of the Leased Property by
Tenant, including (to the extent in accordance with the requirements and
limitations imposed by this Lease) subdivision, demolition and grading
activities, as appropriate; (3) the maintenance of the Leased Property;
(4) the payment of the Upfront Fee and the first Administrative Fee; (5)
the payment of Rents next due; the payment of Impositions; or (6) the
payment to BNP on any Base Rent Date of a Qualified Payments.
(q) Change of Control Event. "Change of Control Event"
means the occurrence of any merger or consolidation or sale of assets
involving Tenant or its Subsidiaries that is prohibited by subparagraph
8.(dd)(iii).
(r) Code. "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(s) Collateral. "Collateral" shall have the meaning assigned to it
in the Pledge Agreement.
(t) Collateral Percentage. "Collateral Percentage" for each Base
Rent Period means one hundred percent (100%), which is the minimum
Collateral Percentage established by (and as defined in) the Pledge
Agreement; provided, however, for purposes of this Lease, the Collateral
Percentage for any Base Rent Period shall not exceed a fraction; the
numerator of which fraction shall equal the value (determined as
provided in the Pledge Agreement) of all Collateral (a) that is, on the
first day of such Base Rent Period, held by the Deposit Takers under
(and as defined in) the Pledge Agreement subject to a first priority,
perfected security interest and pledge in favor of Landlord and the
Participants under the Pledge Agreement, and (b) that is free from
claims or security interests held or asserted by any third party; and
the denominator of which fraction shall equal the Stipulated Loss Value
on the first day of such Base Rent Period.
(u) Debt. "Debt" of any Person means (i) indebtedness of such
Person for borrowed money, (ii) obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) obligations
of such Person to pay the deferred purchase price of property or
services, (iv) obligations of such Person as lessee under leases which
shall have been or should be, in accordance with GAAP, recorded as
capital leases, (v) obligations of such Person, contingent or otherwise,
under any lease of real property or related documents (including a
separate purchase agreement) which provide that such Person must
purchase or cause another to purchase any interest in the leased
property or to otherwise guarantee a minimum residual value of the
leased property to the lessor; (vi) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (v) above, (vii) liabilities of
another Person secured by a Lien on, or payable out of the proceeds of
production from, property of such Person even though such obligation
shall not be assumed by such Person (but in the case of such liabilities
not assumed by such Person, the liabilities shall constitute Debt of
such Person only to the extent of the value of such Person's property
encumbered by the Lien securing such liabilities) and (viii) Unfunded
Benefit Liabilities.
(v) Default. "Default" means any event which, with the passage of
time or the giving of notice or both, would (if not cured within any
applicable cure period) constitute an Event of Default.
(w) Default Rate. "Default Rate" means a floating per annum rate
equal to three percent (3%) above the Prime Rate. However, in no event
will the Default Rate exceed the maximum interest rate permitted by law.
(x) Designated Sale Date. "Designated Sale Date" shall have the
meaning assigned to it in the Purchase Agreement.
(y) Effective Rate. "Effective Rate" means for each Base Rent
Period the per annum rate determined by adding (1) forty-seven and one-
half basis points (.475 of 1%), plus (2) the quotient derived by
dividing (A) LIBOR for such period, by (B) 100% minus the Eurodollar
Rate Reserve Percentage for such period. If LIBOR or the Eurodollar
Rate Reserve Percentage changes from Base Rent Period to Base Rent
Period, then the Effective Rate shall be automatically increased or
decreased, as the case may be, upon the commencement of such period. If
for any reason Landlord's Parent determines that it is impossible or
unreasonably difficult to determine the Effective Rate with respect to a
given Base Rent Period in accordance with the preceding sentences, then
the "Effective Rate" for that Base Rent Period shall equal any published
index or per annum interest rate determined reasonably and in good faith
by Landlord's Parent to be a comparable rate at the beginning of the
first day of that period. A comparable interest rate might be, for
example, the then existing yield on short term United States Treasury
obligations (as compiled by and published in the then most recently
published United States Federal Reserve Statistical Release H.15(519) or
its successor publication), plus or minus a fixed adjustment based on
Landlord's Parent's comparison of past eurodollar market rates to past
yields on such Treasury obligations. Any determination by Landlord's
Parent of the Effective Rate hereunder shall, in the absence of clear
and demonstrable error, be conclusive and binding.
(z) Environmental Cutoff Date. "Environmental Cutoff Date" means the
later of the dates upon which (i) this Lease terminates, (ii) Tenant
surrenders possession of the Leased Property or (iii) Tenant ceases to
have any leasehold or other interest in the Leased Property under this
Lease or otherwise.
(aa) Environmental Indemnity. "Environmental Indemnity" means the
separate Environmental Indemnity Agreement dated as of the date hereof
executed by Tenant in favor of Landlord covering the Land and certain
other property described therein, as such agreement may be extended,
supplemented, amended, restated or otherwise modified from time to time
in accordance with its terms.
(bb) Environmental Laws. "Environmental Laws" means any and all
existing and future Applicable Laws pertaining to safety, health or the
environment, or to Hazardous Substances or Hazardous Substance
Activities, including without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (as amended,
hereinafter called "CERCLA"), and the Resource Conservation and Recovery
Act of 1976, as amended by the Used Oil Recycling Act of 1980, the Solid
Waste Disposal Act Amendments of 1980, and the Hazardous and Solid Waste
Amendments of 1984 (as amended, hereinafter called "RCRA").
(cc) Environmental Losses. "Environmental Losses" means Losses
suffered or incurred by any Indemnified Party relating to or arising out
of, based on or as a result of: (i) any Hazardous Substance Activity
that occurs or is alleged to have occurred on or prior to the
Environmental Cutoff Date; (ii) any violation of Environmental Laws on
or prior to the Environmental Cutoff Date relating to the Leased
Property or to the ownership, use, occupancy or operation thereof; (iii)
any investigation, inquiry, order, hearing, action, or other proceeding
by or before any governmental or quasi-governmental agency or authority
in connection with any Hazardous Substance Activity that occurs or is
alleged to have occurred in whole or in part on or prior to the
Environmental Cutoff Date; or (iv) any claim, demand, cause of action or
investigation, or any action or other proceeding, whether meritorious or
not, brought or asserted against any Indemnified Party which relates to,
arises from, is based on, or results from any of the matters described
in clauses (i), (ii), or (iii) of this subparagraph 1.(cc), or any
allegation of any such matters. For purposes of determining whether
Losses constitute "Environmental Losses," as the term is used in this
Lease, any actual or alleged Hazardous Substance Activity or violation
of Environmental Laws relating to the Leased Property will be presumed
to have occurred prior to the Environmental Cutoff Date unless Tenant
establishes by clear and convincing evidence to the contrary that the
relevant Hazardous Substance Activity or violation of Environmental Laws
did not occur or commence prior to the Environmental Cutoff Date. Even
if Losses are incurred by or asserted against a particular Indemnified
Party after the Environmental Cutoff Date, to the extent that such
Losses would not have been incurred or asserted but for any matter
described in clauses (i), (ii) or (iii) of this subparagraph 1.(cc), or
an allegation of any such matter, such Losses will constitute
Environmental Losses.
(dd) Environmental Report. "Environmental Report" means,
collectively, the reports listed on Exhibit C attached hereto.
(ee) ERISA. "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, together with all rules and
regulations promulgated with respect thereto.
(ff) ERISA Affiliate. "ERISA Affiliate" means any Person who for
purposes of Title IV of ERISA is a member of Tenant's controlled group,
or under common control with Tenant, within the meaning of Section 414
of the Code, and the regulations promulgated and rulings issued
thereunder.
(gg) ERISA Termination Event. "ERISA Termination Event" means (i)
the occurrence with respect to any Plan of a) a reportable event
described in Sections 4043(b)(5) or (6) of ERISA or b) any other
reportable event described in Section 4043(b) of ERISA other than a
reportable event not subject to the provision for 30-day notice to the
Pension Benefit Guaranty Corporation pursuant to a waiver by such
corporation under Section 4043(a) of ERISA, or (ii) the withdrawal of
Tenant or any Affiliate of Tenant from a Plan during a plan year in
which it was a "substantial employer" as defined in Section 4001(a)(2)
of ERISA, or (iii) the filing of a notice of intent to terminate any
Plan or the treatment of any Plan amendment as a termination under
Section 4041 of ERISA, or (iv) the institution of proceedings to
terminate any Plan by the Pension Benefit Guaranty Corporation under
Section 4042 of ERISA, or (v) any other event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Plan.
(hh) Escrowed Proceeds. "Escrowed Proceeds" means any proceeds that
are received by Landlord from time to time during the Term (and any
interest earned thereon), which Landlord is holding for the purposes
specified in the next sentence, from any party (1) under any casualty
insurance policy as a result of damage to the Leased Property, (2) as
compensation for any sale of a Parcel pursuant to subparagraph
9.(b)(iii) or for any restriction placed upon the use or development of
the Leased Property or for the condemnation of the Leased Property or
any portion thereof, (3) because of any judgment, decree or award for
injury or damage to the Leased Property or (4) under any title insurance
policy or otherwise as a result of any title defect or claimed title
defect with respect to the Leased Property; provided, however, in
determining "Escrowed Proceeds" there shall be deducted all expenses and
costs of every type, kind and nature (including Attorneys' Fees)
incurred by Landlord to collect such proceeds; and provided, further,
"Escrowed Proceeds" shall not include any payment to Landlord by a
Participant or an Affiliate of Landlord that is made to compensate
Landlord for the Participant's or Affiliate's share of any Losses
Landlord may incur as a result of any of the events described in the
preceding clauses (1) through (4). "Escrowed Proceeds" shall include
only such proceeds as are held by Landlord (A) pursuant to Paragraph 4
for the payment to Tenant for the restoration or repair of the Leased
Property or (B) for application as a Qualified Payment or as
reimbursement of Breakage Costs incurred in connection with a Qualified
Payment. "Escrowed Proceeds" shall not include any proceeds that have
been applied as a Qualified Payment or to pay Breakage Costs incurred in
connection with a Qualified Payment. Until Escrowed Proceeds are paid
to Tenant pursuant to Paragraph 4 below or applied as a Qualified
Payment or as reimbursement for Breakage Costs incurred in connection
with a Qualified Payment, Landlord shall keep the same deposited in an
interest bearing account, and all interest earned on such account shall
be added to and made a part of Escrowed Proceeds.
(ii) Eurocurrency Liabilities. "Eurocurrency
Liabilities" has the meaning assigned to that term in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from
time to time.
(jj) Eurodollar Rate Reserve Percentage. "Eurodollar
Rate Reserve Percentage" means, for purposes of determining the
Effective Rate for any Base Rent Period, the reserve percentage
applicable two Business Days before the first day of such period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the reserve
requirement (including, but not limited to, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with deposits exceeding One Billion
Dollars with respect to liabilities or deposits consisting of or
including Eurocurrency Liabilities (or with respect to any other
category or liabilities by reference to which LIBOR is determined)
having a term comparable to such period.
(kk) Event of Default. "Event of Default" shall have the
meaning assigned to it in subparagraph 13.(a) below.
(ll) Excluded Taxes. "Excluded Taxes" means (1) all Federal, state
and local income taxes upon the Base Rent, the Upfront Fee, the
Administrative Fees and any interest paid to Landlord pursuant to
subparagraph 3.(e), and any additional compensation claimed by Landlord
pursuant to subparagraph 8.(y)(iv); (2) all federal, state and local
income taxes upon any amounts paid as reimbursement for or to satisfy
Losses incurred by Landlord under this Lease or otherwise to the extent
such taxes are offset by a corresponding reduction of Landlord's income
taxes because of Landlord's deduction of the reimbursed Losses from
Landlord's taxable income or because of any tax credits attributable
thereto; (3) any taxes imposed by any governmental authority outside the
United States; and (4) any transfer or change of ownership taxes
assessed because of Landlord's transfer or conveyance to any third party
of any rights or interests in this Lease, the Purchase Documents or the
Leased Property, but excluding any such taxes assessed because of any
Permitted Transfer.
For purposes of this definition, income taxes shall include without
limitation any income taxes (whether or not so designated) imposed under
the Code or California Bank and Corporation Tax Law as well as Texas
corporate franchise taxes.
(mm) Fair Market Value. "Fair Market Value" shall have the meaning
assigned to it in the Purchase Agreement.
(nn) Fed Funds Rate. "Fed Funds Rate" means, for any period, a
fluctuating interest rate (expressed as a per annum rate and rounded
upwards, if necessary, to the next 1/16 of 1%) equal for each day during
such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rates are not so published for any
day which is a Business Day, the average of the quotations for such day
on such transactions received by the Landlord's Parent from three
Federal funds brokers of recognized standing selected by Landlord's
Parent. All determinations of the Fed Funds Rate by Landlord's Parent
shall, in the absence of clear and demonstrable error, be binding and
conclusive upon Landlord and Tenant.
(oo) Funding Advances. "Funding Advances" means the Initial Funding
Advance and any subsequent advances made by Landlord's Parent or any
other Participant to or on behalf of Landlord in replacement of or
renewal and extension of all or part of the Initial Funding Advance.
For example, if after the date hereof a new Participant advances funds
to or on behalf of Landlord to Landlord's Parent in repayment of all or
part of the Initial Funding Advance, such advance of funds by the new
Participant shall constitute a Funding Advance hereunder.
(pp) GAAP. "GAAP" means generally accepted accounting principles in
the United States of America as in effect from time to time, applied on
a basis consistent with those used in the preparation of the financial
statements referred to in subparagraph 8.(w) (except for changes
concurred in by Tenant's independent auditors).
(qq) Hazardous Substance. "Hazardous Substance" means (i) any
chemical, compound, material, mixture or substance that is now or
hereafter defined or listed in, regulated under, or otherwise classified
pursuant to, any Environmental Laws as a "hazardous substance,"
"hazardous material," "hazardous waste," "extremely hazardous waste or
substance," "infectious waste," "toxic substance," "toxic pollutant," or
any other formulation intended to define, list or classify substances by
reason of deleterious properties addressed by Environmental Laws,
including, without limitation, ignitability, corrosiveness, reactivity,
carcinogenicity, toxicity or reproductive toxicity; (ii) petroleum, any
fraction of petroleum, natural gas, natural gas liquids, liquified
natural gas, synthetic gas usable for fuel (or mixtures of natural gas
and such synthetic gas), and ash produced by a resource recovery
facility utilizing a municipal solid waste stream, and drilling fluids,
produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal
resources; (iii) asbestos and any asbestos containing material; (iv)
"waste" as defined in section 13050(d) of the California Water Code; and
(v) any other material that, because of its quantity, concentration or
physical or chemical characteristics, poses a significant present or
potential hazard to human health or safety or to the environment if
released into the workplace or the environment.
(rr) Hazardous Substance Activity. "Hazardous Substance Activity"
means any actual, proposed or threatened use, storage, holding, release
(including, without limitation, any spilling, leaking, leaching,
pumping, pouring, emitting, emptying, dumping, disposing into the
environment, and the continuing migration into or through soil, surface
water, groundwater or any body of water), discharge, deposit, placement,
generation, processing, construction, treatment, abatement, removal,
disposal, disposition, handling or transportation of any Hazardous
Substance from, under, in, into or on the Leased Property, including,
without limitation, the movement or migration of any Hazardous Substance
from surrounding property, surface water, groundwater or any body of
water under, in, into or onto the Leased Property and any resulting
residual Hazardous Substance contamination in, on or under the Leased
Property. "Hazardous Substance Activity" also means any existence of
Hazardous Substances on the Leased Property that would cause the Leased
Property or the owner or operator thereof to be in violation of, or that
would subject the Leased Property to any remedial obligations under, any
Environmental Laws, including without limitation CERCLA and RCRA,
assuming disclosure to the applicable governmental authorities of all
relevant facts, conditions and circumstances pertaining to the Leased
Property.
(ss) Impositions. "Impositions" shall have the meaning assigned to
it in subparagraph 8.(p) below.
(tt) Improvements. "Improvements," as defined in the recitals at
the beginning of this Lease, shall include not only existing
improvements to the Land as of the date hereof, if any, but also any new
improvements or changes to existing improvements made by Tenant and any
replacements, substitutions or restorations thereof.
(uu) Indemnified Party. "Indemnified Party" means each of (1)
Landlord and any of Landlord's permitted successors and assigns as to
all or any portion of the Leased Property or any interest therein (but
excluding Tenant or any Applicable Purchaser under the Purchase
Agreement or any Person that claims its interest in the Leased Property
through or under Tenant or the Applicable Purchaser), (2) the
Participants, and (3) any Affiliate, officer, agent, director, employee
or servant of any of the parties described in clause (1) or (2)
preceding.
(vv) Initial Funding Advance. "Initial Funding Advance" means the
advance of $61,500,000 made by Landlord's Parent to or on behalf of
Landlord on or prior to the date of this Lease to cover the cost of
Landlord's acquisition of the Leased Property and Closing Costs.
(ww) Landlord's Parent. "Landlord's Parent" means Landlord's
Affiliate, Banque Nationale de Paris, a bank organized and existing
under the laws of France and any successors of such bank and such
Affiliates.
(xx) LIBOR. "LIBOR" means, for purposes of determining the
Effective Rate for each Base Rent Period, the rate determined by
Landlord's Parent to be the average rate of interest per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) of the rates at which
deposits of dollars are offered or available to Landlord's Parent in the
London interbank market at approximately 11:00 a.m. (London time) on the
second Business Day preceding the first day of such period. Landlord
shall instruct Landlord's Parent to consider deposits, for purposes of
making the determination described in the preceding sentence, that are
offered: (i) for delivery on the first day of such Base Rent Period,
(ii) in an amount equal or comparable to the total (projected on the
applicable date of determination by Landlord's Parent) Stipulated Loss
Value on the first day of such Base Rent Period, and (iii) for a period
of time equal or comparable to the Base Rent Period. If Landlord's
Parent so chooses, it may determine LIBOR for any period by reference to
the rate reported by the British Banker's Association on Page 3750 of
the Telerate Service at approximately 11:00 a.m. (London time) on the
second Business Day preceding the first day of such period. If for any
reason Landlord's Parent determines that it is impossible or
unreasonably difficult to determine LIBOR with respect to a given Base
Rent Period in accordance with the preceding sentences, or if Landlord's
Parent shall determine that it is unlawful (or any central bank or
governmental authority shall assert that it is unlawful) for Landlord,
Landlord's Parent or any other Participant to provide or maintain any
Funding Advances hereunder during any Base Rent Period for which Base
Rent is computed by reference to LIBOR, then "LIBOR" for that Base Rent
Period shall equal the rate which is fifty basis points (50/100 of 1%)
above the Fed Funds Rate for that period. All determinations of LIBOR
by Landlord's Parent shall, in the absence of clear and demonstrable
error, be binding and conclusive upon Landlord and Tenant.
(yy) Lien. "Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention
agreement, any agreement to sell receivables with recourse, any lease in
the nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction).
Customary bankers' rights of set-off arising by operation of law or by
contract (however styled, if the contract grants rights no greater than
those arising by operation of law) in connection with working capital
facilities, lines of credit, term loans and letter of credit facilities
and other contractual arrangements entered into with banks in the
ordinary course of business are not "Liens" for the purposes of this
Lease.
(zz) Losses. "Losses" means any and all losses, liabilities,
damages (whether actual, consequential, punitive or otherwise
denominated), demands, claims, actions, judgments, causes of action,
assessments, fines, penalties, costs, and out-of-pocket expenses
(including, without limitation, Attorneys' Fees and the fees of outside
accountants and environmental consultants), of any and every kind or
character, foreseeable and unforeseeable, liquidated and contingent,
proximate and remote, known and unknown. FOR PURPOSES OF DETERMINING THE
LIABILITY OF TENANT UNDER THE INDEMNITIES AND AGREEMENTS TO PAY OR
PROVIDE REIMBURSEMENT FOR LOSSES (INCLUDING, BUT NOT LIMITED TO
"ENVIRONMENTAL LOSSES") SET FORTH HEREIN OR IN THE OTHER DOCUMENTS
REFERENCED HEREIN, THE TERM "LOSSES" SHALL INCLUDE LOSSES, LIABILITIES,
DAMAGES, DEMANDS, CLAIMS, ACTIONS, JUDGMENTS, CAUSES OF ACTION,
ASSESSMENTS, FINES, PENALTIES, COSTS, AND OUT-OF-POCKET EXPENSES
INCURRED BY OR ASSERTED AGAINST ANY PARTICULAR INDEMNIFIED PARTY EVEN
WHEN CAUSED BY THE NEGLIGENCE OR STRICT LIABILITY OF THAT PARTICULAR OR
ANY OTHER INDEMNIFIED PARTY; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL
LOSSES, LIABILITIES, DAMAGES, DEMANDS, CLAIMS, ACTIONS, JUDGMENTS,
CAUSES OF ACTION, ASSESSMENTS, FINES, PENALTIES, COSTS, AND OUT-OF-
POCKET EXPENSES INCURRED BY OR ASSERTED AGAINST A PARTICULAR INDEMNIFIED
PARTY AND PROXIMATELY CAUSED BY (AND ATTRIBUTED BY ANY APPLICABLE
PRINCIPLES OF COMPARATIVE FAULT TO) MISCONDUCT OF THAT INDEMNIFIED PARTY
CONSTITUTE "LOSSES" OF SUCH INDEMNIFIED PARTY FOR PURPOSES OF THIS LEASE
AND THE OTHER DOCUMENTS REFERENCED HEREIN; AND PROVIDED, FURTHER, THAT
(EXCEPT AS USED IN THE DEFINITION OF "EXCLUDED TAXES" HEREIN) "LOSSES"
SHALL NOT IN ANY EVENT INCLUDE EXCLUDED TAXES.
(aaa) Misconduct. "Misconduct" of a Person means, and is limited
to: (1) if the Person is subject to the terms of this Lease or the
Purchase Documents, a breach by such Person of the express provisions of
this Lease or the Purchase Documents that continues beyond any period
for cure provided herein or therein, and (2) any Active Negligence or
wilful misconduct of such Person or its Affiliates or of the officers,
employees or employers of such Person or its Affiliates. Misconduct of
one Indemnified Party shall not be attributed to a second Indemnified
Party if the second Indemnified Party is not an Affiliate, officer,
employee or employer of the first. Negligence which does not constitute
Active Negligence shall not constitute Misconduct.
(bbb) Participant. "Participant" means any Person, including
Landlord's Parent, that agrees with Landlord or another Participant to
participate in all or some of the risks and rewards to Landlord of this
Lease and the Purchase Documents. As of the effective date hereof, the
only Participant is Landlord's Parent, but Landlord may agree to share
in risks and rewards of this Lease and the Purchase Documents with other
Participants in the future. However, no Person other than Landlord's
Parent shall qualify as a Participant for purposes of this Lease, the
Purchase Documents or any other agreement to which Informix is a party
unless, with Informix's prior written approval (such approval not to be
unreasonably withheld) or when an Event of Default had occurred and was
continuing, such Person became a party to the Pledge Agreement and to
the Participation Agreement by executing supplements to those agreements
as contemplated therein.
(ccc) Participation Agreement. "Participation Agreement" means the
Participation Agreement dated the date hereof between Landlord and
Landlord's Parent, pursuant to which Landlord's Parent has agreed to
participate in certain risks and rewards to Landlord of this Lease and
the Purchase Documents, as such Participation Agreement may be extended,
supplemented, amended, restated or otherwise modified from time to time
in accordance with its terms.
(ddd) Permitted Encumbrances. "Permitted Encumbrances" means (i)
the encumbrances and other matters affecting the Leased Property that
are set forth in Exhibit B attached hereto and made a part hereof, and
(ii) any provisions of the Existing Contract that survived closing
thereunder, and (iii) any easement agreement or other document affecting
title to the Leased Property executed by Landlord pursuant to the
Existing Contract or pursuant to a document executed in accordance with
the Existing Contract or otherwise executed by Landlord at the written
request of or with the written consent of Tenant.
(eee) Permitted Hazardous Substance Use. "Permitted Hazardous
Substance Use" means the use, storage and offsite disposal of Permitted
Hazardous Substances in strict accordance with applicable Environmental
Laws and with due care given the nature of the Hazardous Substances
involved; provided, the scope and nature of such use, storage and
disposal shall not include the use of underground storage tanks for any
purpose other than the storage of water for fire control, nor shall such
scope and nature:
(1) exceed that reasonably required for the construction of any
Improvements permitted by this Lease or for the operation of the Leased
Property for the purposes expressly permitted under subparagraph 7.(a);
or
(2) include any disposal, discharge or other release of Hazardous
Substances in any manner that poses a significant risk of allowing such
substances to reach the San Francisco Bay, surface water or groundwater,
except (i) through a lawful and properly authorized discharge (A) to a
publicly owned treatment works or (B) with rainwater or storm water
runoff in accordance with Applicable Laws and any permits obtained by
Tenant that govern such runoff; or (ii) any such disposal, discharge or
other release of Hazardous Substances for which no permits are required
and which are not otherwise regulated under applicable Environmental
Laws.
Further, notwithstanding anything to the contrary herein contained,
Permitted Hazardous Substance Use shall not include any use of the
Leased Property in a manner which requires a RCRA treatment, storage or
disposal facility permit, including but not limited to a landfill,
incinerator or other waste disposal facility.
(fff) Permitted Hazardous Substances. "Permitted Hazardous
Substances" means Hazardous Substances used and reasonably required for
Tenant's operation of the Leased Property for the purposes expressly
permitted by subparagraph 7.(a) in strict compliance with all
Environmental Laws and with due care given the nature of the Hazardous
Substances involved. Without limiting the generality of the foregoing,
Permitted Hazardous Substances shall include, without limitation, usual
and customary office and janitorial products.
(ggg) Permitted Transfer. "Permitted Transfer" means any one or
more of the following:
(1) the creation or conveyance of rights and interests under the
Participation Agreement in favor of Landlord's Parent or other
Participants in accordance with subparagraph 1.(bbb);
(2) any assignment or conveyance by Landlord of any lien or security
interest against the Leased Property (in contrast to a conveyance of
Landlord's fee estate in the Leased Property) or of any interest in
Rent, payments required by the Purchase Agreement or payments to be
generated from the Leased Property after the Term, to any present or
future Participant or to any Affiliate of Landlord;
(3) any agreement to exercise or refrain from exercising rights or
remedies hereunder or under the Purchase Documents or the Environmental
Indemnity made by Landlord with any present or future Participant or
Affiliate of Landlord;
(4) any assignment or conveyance by Landlord requested by Tenant or
required by any Permitted Encumbrance, by the Purchase Documents or by
Applicable Laws;
(5) any assignment or conveyance by Landlord when an Event of Default
shall have occurred and be continuing; or (6) any assignment or
conveyance by Landlord after the Designated Sale Date.
(hhh) Person. "Person" means an individual, a corporation, a
partnership, an unincorporated organization, an association, a joint
stock company, a joint venture, a trust, an estate, a government or
agency or political subdivision thereof or other entity, whether acting
in an individual, fiduciary or other capacity.
(iii) Plan. "Plan" means at any time an employee pension benefit
plan which is covered under Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Code and is either (i)
maintained by Tenant or any Subsidiary for employees of Tenant or any
Subsidiary or (ii) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one employer
makes contributions and to which Tenant or any Subsidiary is then making
or accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
(jjj) Pledge Agreement. "Pledge Agreement" means the Pledge
Agreement dated as of the date hereof between Landlord and Tenant,
pursuant to which Tenant may pledge certificates of deposit and other
collateral as security for Tenant's obligations under the Purchase
Agreement (and for the corresponding obligations of Landlord to the
Participants under the Participation Agreement), as such Pledge
Agreement may be extended, supplemented, amended, restated or otherwise
modified from time to time in accordance with its terms.
(kkk) Prime Rate. "Prime Rate" means the prime interest rate or
equivalent charged by Landlord's Parent in the United States as
announced or published by Landlord's Parent from time to time, which
need not be the lowest interest rate charged by Landlord's Parent. If
for any reason Landlord's Parent does not announce or publish a prime
rate or equivalent, the prime rate or equivalent announced or published
by either Bank of America National Trust & Savings Association or Credit
Commercial de France as selected by Landlord shall be used as the Prime
Rate. The prime rate or equivalent announced or published by such bank
need not be the lowest rate charged by it. The Prime Rate may change
from time to time after the date hereof without notice to Tenant as of
the effective time of each change in rates described in this definition.
(lll) Prohibited Encumbrances. "Prohibited Encumbrances" means, and
is limited to, Liens encumbering the Leased Property that are asserted
(1) other than as contemplated by this Lease or the Purchase Documents
by Landlord itself, (2) by third parties lawfully claiming through or
under Landlord (which for purposes of this Lease shall include any
judgment lien established against the Leased Property because of a
judgment rendered against Landlord and shall also include any lien
established against the Leased Property to secure past due Excluded
Taxes), or (3) by third parties claiming under a deed or other
instrument duly executed by Landlord; provided, however, Prohibited
Encumbrances shall not include (A) any Permitted Encumbrances
(regardless of whether claimed through or under Landlord), (B) this
Lease, the Purchase Documents or any other document executed by Landlord
contemporaneously with the execution of this Lease, (C) Liens which are
neither lawfully claimed through or under Landlord (as described above)
nor claimed under a deed or other instrument duly executed by Landlord,
(D) Liens claimed by, through or under Tenant, (E) Liens arising because
of Landlord's compliance or good faith attempt to comply with Applicable
Law, the Existing Agreement, subparagraph 9.(b) below or any request
made by Tenant, (F) Liens securing the payment of property taxes or
other amounts assessed against the Leased Property by any governmental
authority, other than to secure the payment of Excluded Taxes which
Landlord owes but has failed to pay or damages caused by (and attributed
by any applicable principles of comparative fault to) Landlord's own
Misconduct, or (G) Liens arising because of any breach by Tenant of this
Lease or the Purchase Documents.
(mmm) Purchase Agreement. "Purchase Agreement" means the Purchase
Agreement dated as of the date hereof between Landlord and Tenant
pursuant to which Tenant has agreed to purchase or to arrange for the
purchase by a third party of the Leased Property, as such Purchase
Agreement may be extended, supplemented, amended, restated or otherwise
modified from time to time in accordance with its terms.
(bo) Purchase Documents. "Purchase Documents" means collectively the
Purchase Agreement and the Pledge Agreement.
(nnn) Purchase Price. "Purchase Price" shall have the meaning
assigned to it in the Purchase Agreement.
(ooo) Qualified Payments. "Qualified Payments" means any payment
designated as such and made by Tenant to Landlord as provided in the
definition of Closing Costs set forth above and all payments received by
Landlord from time to time during the Term from any party (1) under any
casualty insurance policy as a result of damage to the Leased Property,
(2) as compensation for any sale of a Parcel pursuant to subparagraph
9.(b)(iii) or for any restriction placed upon the use or development of
the Leased Property or for the condemnation of the Leased Property or
any portion thereof, (3) because of any judgment, decree or award for
injury or damage to the Leased Property or (4) under any title insurance
policy or otherwise as a result of any title defect or claimed title
defect with respect to the Leased Property; provided, however, that (x)
in determining Qualified Payments, there shall be deducted all expenses
and costs of every kind, type and nature (including taxes, Breakage
Costs and Attorneys' Fees) incurred by Landlord with respect to the
collection of such payments, (y) Qualified Payments shall not include
any payment to Landlord by a Participant or an Affiliate of Landlord
that is made to compensate Landlord for the Participant's or Affiliate's
share of any Losses Landlord may incur as a result of any of the events
described in the preceding clauses (1) through (4) and (z) Qualified
Payments shall not include any payments received by Landlord that
Landlord has paid to Tenant for the restoration or repair of the Leased
Property or that Landlord is holding as Escrowed Proceeds. For purposes
of computing the total Qualified Payments (and other amounts dependent
upon Qualified Payments, such as Stipulated Loss Value) paid to or
received by Landlord as of any date, payments described in the preceding
clauses (1) through (4) will be considered as Escrowed Proceeds, not
Qualified Payments, until they are actually applied as Qualified
Payments by Landlord, which Landlord will do as provided in subparagraph
4.(c).
(ppp) Remaining Proceeds. "Remaining Proceeds" shall have the
meaning assigned to it in subparagraph 4.(a)(ii).
(qqq) Rent. "Rent" means the Base Rent and all Additional Rent.
(rrr) Responsible Financial Officer. "Responsible Financial
Officer" means the chief financial officer, the controller, the
treasurer or the assistant treasurer of Tenant.
(sss) Stipulated Loss Value. "Stipulated Loss Value" means the
amount computed from time to time in accordance with the formula
specified in this definition. Such amount shall equal the Initial
Funding Advance (i.e., $61,500,000), LESS the amount (if any) of
Qualified Payments paid to Landlord on or prior to such date. Thus, for
example, if a determination of Stipulated Loss Value is required under
subparagraph 3.(a) on the first day of the applicable Base Rent Period,
but a portion of the Leased Property has been condemned with the result
that $500,000 of net condemnation proceeds have been paid to Landlord
and retained by Landlord as Qualified Payments, then the Stipulated Loss
Value as of the date of the required determination shall be $61,000,000.
Under no circumstances will any payment of Base Rent or the Upfront Fee
or any Administrative Fee reduce Stipulated Loss Value.
(ttt) Subsidiary. "Subsidiary" means any corporation of which
Tenant or its other Subsidiaries own, directly or indirectly, such
number of outstanding shares as have more than 50% of the ordinary
voting power for the election of directors.
(uuu) Tenant's Knowledge. "Tenant's knowledge," "to the knowledge
of Tenant" and words of like effect means the actual knowledge (with due
investigation) of any of the following employees of Tenant: Howard H.
Graham, Senior Vice President, Finance and Chief Financial Officer (with
respect to matters arising on or prior to December 31, 1996); Alan S.
Henricks, Senior Vice President, Finance and Chief Financial Officer (as
to matters arising after December 31, 1996); Margaret R. Brauns, Vice
President and Treasurer; David H. Stanley, Vice President, Legal
Corporate Services, General Counsel and Secretary; Karen Blasing,
Corporate Controller and Chief Accounting Officer; and Clive Merredew,
Director, Worldwide Real Estate and Facilities. However, to the extent
Tenant's knowledge after the date hereof may become relevant hereunder
or under any certificate or other notice provided by Tenant to Landlord
in connection with this Lease, "Tenant's knowledge" and words of like
effect shall include the then actual knowledge of other employees of
Tenant (if any) that have assumed responsibilities of the current
employees listed in the preceding sentence or that have replaced such
current employees. But none of the employees of Tenant whose knowledge
is now or may hereafter be relevant shall be personally liable for the
representations of Tenant made herein.
(vvv) Term. "Term" shall have the meaning assigned to it in
Paragraph 2 below.
(www) Unfunded Benefit Liabilities. "Unfunded Benefit Liabilities"
means, with respect to any Plan, the amount (if any) by which the
present value of all benefit liabilities (within the meaning of Section
4001(a)(16) of ERISA) under the Plan exceeds the fair market value of
all Plan assets allocable to such benefit liabilities, as determined on
the most recent valuation date of the Plan and in accordance with the
provisions of ERISA for calculating the potential liability of Tenant or
any ERISA Affiliate of Tenant under Title IV of ERISA.
(xxx) Upfront Fee. "Upfront Fee" shall have the meaning assigned to
it in subparagraph 3.(b).
(yyy) Other Terms and References. Words of any gender used in this
Lease shall be held and construed to include any other gender, and words
in the singular number shall be held to include the plural and vice
versa, unless the context otherwise requires. References herein to
Paragraphs, subparagraphs or other subdivisions shall refer to the
corresponding Paragraphs, subparagraphs or subdivisions of this Lease,
unless specific reference is made to another document or instrument.
References herein to any Schedule or Exhibit shall refer to the
corresponding Schedule or Exhibit attached hereto, which shall be made a
part hereof by such reference. All capitalized terms used in this Lease
which refer to other documents shall be deemed to refer to such other
documents as they may be renewed, extended, supplemented, amended or
otherwise modified from time to time, provided such documents are not
renewed, extended or modified in breach of any provision contained
herein or therein or, in the case of any other document to which
Landlord is a party or of which Landlord is an intended beneficiary,
without the consent of Landlord. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP. The words
"this Lease", "herein", "hereof", "hereby", "hereunder" and words of
similar import refer to this Lease as a whole and not to any particular
subdivision unless expressly so limited. The phrases "this Paragraph"
and "this subparagraph" and similar phrases refer only to the Paragraphs
or subparagraphs hereof in which the phrase occurs. The word "or" is
not exclusive. Other capitalized terms are defined in the provisions
that follow.
2. Term. The term of this Lease (herein called the "Term") shall
commence on and include the effective date hereof, and end at 8:00 A.M.
on December 31, 1998, unless extended or sooner terminated as herein
provided. Notwithstanding any other provision of this Lease which may
expressly restrict the early termination hereof, and provided that
Tenant is still in possession of the Leased Property and has not
breached its obligation to make or have made any payment required by
Paragraph 2 of the Purchase Agreement on any prior Designated Sale Date,
Tenant may notify Landlord of Tenant's election to terminate this Lease
before December 31, 1998, by giving Landlord an irrevocable notice of
such election and of the effective date of the termination, which notice
must be given (if at all) at least thirty (30) days prior to the
effective date of the termination. If Tenant elects to so terminate
this Lease, then on the date on which this Lease is to be terminated,
not only must Tenant pay all unpaid Rent, Tenant must also pay any
Breakage Costs resulting from the termination and must satisfy its
obligations under the Purchase Agreement. The payment of all accrued
unpaid Rent and any Breakage Costs and the satisfaction of Tenant's
obligations under the Purchase Agreement shall be conditions precedent
to the effectiveness of any early termination of this Lease by Tenant.
The Term may be extended at the option of Tenant for two successive
periods of five (5) years each; provided, however, that prior to any
such extension the following conditions must have been satisfied: (A) at
least one hundred eighty (180) days prior to the commencement of any
such extension, Landlord and Tenant must have agreed in writing upon,
and received the written consent and approval of Landlord's Parent and
all other Participants to (1) a corresponding extension of the date
specified in clause (iii) of the definition of Designated Sale Date in
the Purchase Agreement, and (2) an adjustment to the Rent that Tenant
will be required to pay for the extension, it being expected that the
Rent for the extension may be different than the Rent required for the
original Term, and it being understood that the Rent for any extension
must in all events be satisfactory to both Landlord and Tenant, each in
its sole and absolute discretion; (B) there must be no Event of Default
continuing hereunder at the time of Tenant's exercise of its option to
extend; and (C) immediately prior to any such extension, this Lease must
remain in effect. With respect to the condition that Landlord and
Tenant must have agreed upon the Rent required for any extension of the
Term, neither Tenant nor Landlord is willing to submit itself to a risk
of liability or loss of rights hereunder for being judged unreasonable.
Accordingly, both Tenant and Landlord hereby disclaim any obligation
express or implied to be reasonable in negotiating the Rent for any such
extension. Subject to the changes to the Rent payable during any
extension of the Term as provided in this Paragraph, if Tenant exercises
its option to extend the Term as provided in this Paragraph, this Lease
shall continue in full force and effect, and the leasehold estate hereby
granted to Tenant shall continue without interruption and without any
loss of priority over other interests in or claims against the Leased
Property that may be created or arise after the date hereof and before
the extension.
3. Rental.
(a) Base Rent. Tenant shall pay Landlord rent (herein called "Base
Rent") in arrears, in currency that at the time of payment is legal
tender for public and private debts in the United States of America, in
installments on each Base Rent Date through the end of the Term. Each
payment of Base Rent must be received by Landlord no later than 12:00
noon (San Francisco time) on the date it becomes due; if received after
12:00 noon it will be considered for purposes of this Lease as received
on the next following Business Day. Each installment of Base Rent shall
represent rent allocable to the Base Rent Period ending on the date on
which the installment is due. Landlord shall notify Tenant in writing
of the Base Rent due for each Base Rent Period at least fifteen (15)
days prior to the Base Rent Date on which such period ends. Any failure
by Landlord to so notify Tenant shall not constitute a waiver of
Landlord's right to payment, but absent such notice Tenant shall not be
in default for any underpayment resulting therefrom if Tenant, in good
faith, reasonably estimates the payment required, makes a timely payment
of the amount so estimated and corrects any underpayment within three
(3) Business Days after being notified by Landlord of the underpayment.
If Tenant or any other Applicable Purchaser purchases Landlord's
interest in the Leased Property pursuant to the Purchase Agreement, any
Base Rent for the Base Rent Period ending on the date of purchase (or if
the date of Purchase is not a Base Rent Date, then pro rated Base Rent
for the Base Rent Period which included the date of purchase) and all
outstanding Additional Rent shall be due on the Designated Sale Date in
addition to the purchase price and other sums due Landlord under the
Purchase Agreement.
The Base Rent for each Base Rent Period shall equal the sum of:
(1) (A) Stipulated Loss Value on the first day of such Base Rent Period,
times (B) the Collateral Percentage for such Base Rent Period, times (C)
twenty two and one-half basis points (0.225 of 1%), times (D) the number
of days in such Base Rent Period, divided by (E) three hundred sixty
(360); PLUS
(2) (A) Stipulated Loss Value on the first day of such Base Rent Period,
times (B) one minus the Collateral Percentage for such Base Rent Period,
times (C) the Effective Rate for such Base Rent Period, times (D) the
number of days in such Base Rent Period, divided by (E) three hundred
sixty (360).
Assume, only for the purpose of illustration: that a hypothetical Base
Rent Period contains exactly ninety (90) days; that prior to the first
day of such Base Rent Period a total of $31,500,000 of Qualified
Payments have been received by Landlord, leaving a Stipulated Loss Value
of $30,000,000 (the Initial Funding Advance of $61,500,000 less the
Qualified Payments of $31,500,000); that the Collateral Percentage for
such Base Rent Period is forty percent (40%); and that the Effective
Rate for the applicable Base Rent Period is 6%. Under such assumptions,
the Base Rent for the hypothetical Base Rent Period will equal:
$30,000,000 x 60% x 6% x 90/360, or $270,000, PLUS
$30,000,000 x 40% x .225% x 90/360, or $6,750 = $276,750
(b) Upfront Fee. Upon execution and delivery of this Lease by
Landlord, Tenant shall pay Landlord an upfront fee (the "Upfront Fee")
as provided in the letter dated November 15, 1996 from Landlord to
Tenant, as amended by a letter sent to Landlord on behalf of Tenant
dated December 2, 1996 (less the deposit already paid by Tenant pursuant
to that letter which will be applied against the Upfront Fee). The
Upfront Fee
shall represent Additional Rent for the first Base Rent Period.
(c) Administrative Fees. Upon execution and delivery of this Lease
by Landlord, and again on each anniversary of the date hereof prior to
the Designated Sale Date, Tenant shall pay Landlord an administrative
fee (an "Administrative Fee") as provided in the letter dated November
15, 1996 from Landlord to Tenant, as amended by a letter sent to
Landlord on behalf of Tenant dated December 2, 1996. Each payment of an
Administrative Fee shall represent Additional Rent for the Base Rent
Period during which it first becomes due.
(d) Additional Rent. All amounts which Tenant is required to pay to
or on behalf of Landlord pursuant to this Lease, together with every
charge, premium, interest and cost set forth herein which may be added
for nonpayment or late payment thereof, shall constitute rent (all such
amounts, other than Base Rent, are herein called "Additional Rent").
(e) Interest and Order of Application. All Rent shall bear
interest, if not paid when first due, at the Default Rate in effect from
time to time from the date due until paid; provided, that nothing herein
contained will be construed as permitting the charging or collection of
interest at a rate exceeding the maximum rate permitted under Applicable
Laws. Landlord shall be entitled to apply any amounts paid by or on
behalf of Tenant hereunder against any Rent then past due in the order
the same became due or in such other order as Landlord may elect.
(f) Net Lease. It is the intention of Landlord and Tenant that the
Base Rent and all other payments herein specified shall be absolutely
net to Landlord. Tenant shall pay all costs, expenses and obligations
of every kind relating to the Leased Property or this Lease which may
arise or become due during the Term, including, without limitation: (i)
Impositions, including any taxes payable by virtue of Landlord's receipt
of amounts paid to or on behalf of Landlord in accordance with this
subparagraph 3.(f), but not including any Excluded Taxes; (ii) any
Capital Adequacy Charges; (iii) any amount for which Landlord is or
becomes liable with respect to the Permitted Encumbrances; and (iv) any
costs incurred by Landlord (including Attorneys' Fees) because of
Landlord's acquisition or ownership of the Leased Property or because of
this Lease or the transactions contemplated herein.
However, the preceding sentence shall not be construed to make Tenant
liable for (1) damages suffered by Landlord because of (and attributed
by any applicable principles of comparative fault to) its own
Misconduct, (2) Excluded Taxes, (3) withholding taxes permitted by
subsection 3.(g), (4) general overhead or internal administrative
expenses of Landlord, Landlord's Parent or any Participant, except to
the extent allowed by subparagraph 8.(y)(iii) because of changes
described in that subparagraph after the date of this Lease, or (5)
Environmental Losses for which Tenant is not responsible or required to
indemnify Landlord pursuant to Paragraph 11 or the other express
provisions of this Lease.
(g) Withholding Taxes. Subject to the provisions of this
subparagraph 3.(g), but notwithstanding anything else to the contrary in
this Lease, to the extent required by law Tenant may deduct United
States and California withholding taxes imposed as a way of collecting
or in lieu of Excluded Taxes on payments of the Upfront Fee,
Administrative Fees, Base Rent, any interest payable pursuant to
subparagraph 3.(e) or any additional compensation claimed by Landlord
pursuant to subparagraph 8.(y)(iv) (collectively, "Income Payments")
from Income Payments, without obligation to gross up, indemnify or
otherwise increase payments in consequence thereof. Such withholding
will be permitted if, but only if:
(i) in the case of withholding for Excluded Taxes imposed by the
United States, the Person entitled to receive Income Payments (whether
the original Landlord named herein or an assignee of the original
Landlord's rights hereunder, a "Payee") is not exempt from withholding
by reason of having been organized under the laws of the United States
or any State thereof, and such Person shall not have provided Tenant
with three (3) counterparts of each of the forms prescribed by the
Internal Revenue Service (Form 1001 or 4224, or successor forms, as the
case may be) claiming for Payee an exemption from federal withholding on
all Income Payments;
(ii) in the case of withholding for Excluded Taxes imposed by the
State of California, the Payee is not exempt from withholding by reason
of having been qualified to do business in California, and such Person
shall not have provided Tenant with three (3) counterparts of the forms
(if any) prescribed by the California taxing authorities claiming for
Payee an exemption from California withholding on all Income Payments;
(iii) at least thirty (30) days prior to any withholding from or
reduction of Income Payments, Tenant shall have notified the Payee that
Tenant believes the withholding is required and permitted by this
subparagraph; and
(iv) the withholding taxes on the Income Payments would have been
assessed even if the applicable taxing authorities had characterized the
transactions evidenced by this Lease and the Purchase Agreement as a
mere financing arrangement.
Any Payee exempt from withholding for Excluded Taxes imposed by the
United States by reason of having been organized under the laws of the
United States or any State thereof shall provide to Tenant statements
conforming to the requirements of Treasury Regulation 1.1441-5(b) or any
successor thereto (which statements may be made on a Form W-9). If
Tenant shall ever be required to pay Excluded Taxes that Landlord has
failed to pay when due because of Tenant's failure to withhold from
payments made under this Lease, Landlord shall reimburse Tenant for such
Excluded Taxes. Nothing in this subparagraph 3.(g) shall excuse Tenant
from its obligation under subparagraph 8.(y)(iii) to compensate Landlord
for increased costs attributable to any change in law relating to
withholding taxes after the date hereof.
(h) No Demand or Setoff. The Base Rent and all Additional Rent
shall be paid without notice or demand and without abatement,
counterclaim, deduction, setoff or defense, except as expressly provided
herein.
4. Insurance and Condemnation Proceeds.
(a) Subject to Landlord's rights under this Paragraph 4, and so long
as no Event of Default shall have occurred and be continuing, Tenant
shall be entitled to use all casualty insurance and condemnation
proceeds payable with respect to the Leased Property during the Term for
the restoration and repair of the Leased Property or any remaining
portion thereof. Except as provided in the last sentence of
subparagraph 8.(s), all insurance and condemnation proceeds received
with respect to the Leased Property (including proceeds payable under
any insurance policy covering the Leased Property which is maintained by
Tenant) shall be paid to Landlord and then applied as follows:
(i) First, such proceeds shall be used to reimburse Landlord for any
costs and expenses, including Attorneys' Fees, incurred in connection
with the collection of such proceeds.
(ii) Second, the remainder of such proceeds (the "Remaining
Proceeds"), shall be held by Landlord as Escrowed Proceeds and applied
to reimburse Tenant for the actual cost of the repair, restoration or
replacement of the Leased Property. However, any Remaining Proceeds not
needed for such purpose shall be applied by Landlord as Qualified
Payments, as provided in subparagraph 4.(c), after Tenant notifies
Landlord that they are not needed for repairs, restoration or
replacement.
(b) Any Remaining Proceeds held by Landlord as Escrowed Proceeds
shall be deposited by Landlord in an interest bearing account as
provided in the definition of Escrowed Proceeds and shall be paid to
Tenant as the applicable repair, restoration or replacement progresses
and upon compliance by Tenant with such terms, conditions and
requirements as may be reasonably imposed by Landlord, but in no event
shall Landlord be required to pay any Escrowed Proceeds to Tenant in
excess of the actual cost to Tenant of the applicable repair,
restoration or replacement, as evidenced by invoices or other
documentation reasonably satisfactory to Landlord, it being understood
that Landlord may retain any such excess as a Qualified Payment. In any
event, Tenant will not be entitled to any abatement or reduction of the
Base Rent or any other amount due hereunder except to the extent that
such excess Remaining Proceeds result in Qualified Payments which reduce
Stipulated Loss Value (and thus payments computed on the basis of
Stipulated Loss Value) as provided in the definitions set out above.
Further, notwithstanding the inadequacy of the Remaining Proceeds held
by Landlord as Escrowed Proceeds, if any, or anything herein to the
contrary, Tenant must, after any taking of less than all or
substantially all of the Leased Property by condemnation and after any
damage to the Leased Property by fire or other casualty, either:
(1) promptly restore or improve the Leased Property or the
remainder thereof to a value no less than sixty percent (60%) of
Stipulated Loss Value (computed after the application of any Remaining
Proceeds as a Qualified Payment) and to a reasonably safe and sightly
condition; or
(2) promptly restore the Leased Property to a reasonably safe and
sightly condition and pay to Landlord for application as a Qualified
Payment the amount (if any), as determined by Landlord, needed to reduce
Stipulated Loss Value (computed after the application of such amount and
any available Remaining Proceeds as Qualified Payments) to no more than
one hundred sixty-six percent (166%) of the then-current market value of
the Leased Property or remainder thereof.
Any taking of so much of the Leased Property as, in Landlord's
reasonable judgment, makes it impracticable to restore or improve the
remainder thereof as required by part (1) of the preceding sentence
shall be considered a taking of substantially all the Leased Property
for purposes of this Paragraph 4.
(c) Notwithstanding the foregoing, if an Event of Default shall have
occurred and be continuing, Landlord shall be entitled to receive and
collect all insurance or condemnation proceeds payable with respect to
the Leased Property, and:
(i) Landlord shall apply the Remaining Proceeds received by Landlord
as a Qualified Payment (or as reimbursement for Breakage Costs incurred
in connection with such Qualified Payment) within ten (10) Business Days
after Landlord receives a written notice from Tenant unconditionally
directing Landlord to so apply the same; and
(ii) in the absence of such a notice from Tenant to Landlord,
Landlord shall be entitled to either, at the discretion of Landlord, (A)
hold all Remaining Proceeds as Escrowed Proceeds until paid to Tenant as
reimbursement for the actual and reasonable cost of repairing, restoring
or replacing the Leased Property when Tenant has completed such repair,
restoration or replacement, or (B) apply such proceeds as Qualified
Payments when and to the extent deemed appropriate by Landlord.
When no Event of Default shall have occurred and be continuing, Landlord
shall apply any Remaining Proceeds paid to it or other amounts which are
to be applied as a Qualified Payment (or as reimbursement for Breakage
Costs incurred in connection with a Qualified Payment) within three (3)
Business Days after Landlord receives a written notice from Tenant
unconditionally directing Landlord to so apply the same. In any event,
Landlord may deduct Breakage Costs incurred in connection with a
Qualified Payment from the Remaining Proceeds or other amounts available
to Landlord for application as the Qualified Payment, and Tenant will
reimburse Landlord upon request for any such Breakage Costs that
Landlord incurs but does not so deduct. If Remaining Proceeds held by
Landlord exceed Stipulated Loss Value and any Rent payable by Tenant,
Tenant may get the excess by terminating this Lease in accordance with
Paragraph 2 and purchasing any remaining interest of Landlord in the
Leased Property and the Escrowed Proceeds, pursuant to the Purchase
Agreement.
(d) In the event of any taking of all or substantially all of the
Leased Property, Landlord shall be entitled to apply all Remaining
Proceeds as a Qualified Payment, notwithstanding the foregoing. In
addition, if Stipulated Loss Value immediately prior to any taking of
all or substantially all of the Leased Property by condemnation exceeds
the sum of the Remaining Proceeds resulting from such condemnation, then
Landlord shall be entitled to recover the excess from Tenant upon demand
as an additional Qualified Payment, whereupon this Lease shall
terminate.
(e) Nothing herein contained shall be construed to prevent Tenant
from obtaining a separate award from any condemning authority for a
taking of Tenant's personal property, for moving expenses, for severance
damages to other real property owned by Tenant adjacent to the Land or
for business interruption, provided, such award is not combined with and
does not reduce the award for any taking of the Leased Property,
including Tenant's interest therein.
(f) Without limiting Landlord's obligations under the other
provisions of this Paragraph 4 or Tenant's obligations to make repairs
under other provisions of this Lease, Landlord and Tenant each waive any
right of recovery against the other, and the other's agents, officers or
employees, for any damage to the Leased Property or to the personal
property situated from time to time in or on the Leased Property
resulting from fire or other casualty covered by a valid and collectible
insurance policy; provided, however, that the waiver set forth in this
subparagraph 4.(f) shall be effective insofar, but only insofar, as
compensation for such damage or loss is actually recovered by the
waiving party (net of costs of collection) under the policy
notwithstanding the waivers set out in this paragraph. Tenant shall
cause the insurance policies required of Tenant by this Lease to be
properly endorsed, if necessary, to prevent any loss of coverage because
of the waivers set forth in this paragraph. If such endorsements are
not available, the waivers set forth in this paragraph shall be
ineffective to the extent that such waivers would cause required
insurance with respect to the Leased Property to be impaired.
5. No Lease Termination.
(a) Status of Lease. Except as expressly provided herein, this
Lease shall not terminate, nor shall Tenant have any right to terminate
this Lease, nor shall Tenant be entitled to any abatement of the Rent,
nor shall the obligations of Tenant under this Lease be excused, for any
reason whatsoever, including without limitation any of the following:
(i) any damage to or the destruction of all or any part of the Leased
Property from whatever cause, (ii) the taking of the Leased Property or
any portion thereof by eminent domain or otherwise for any reason, (iii)
the prohibition, limitation or restriction of Tenant's use of all or any
portion of the Leased Property or any interference with such use by
governmental action or otherwise, (iv) any eviction of Tenant or of
anyone claiming through or under Tenant by paramount title or otherwise
(provided, if Tenant is wrongfully evicted by Landlord or by any third
party exercising its rights under a Prohibited Encumbrance, then Tenant
will have the remedies described in Paragraph 14 below), (v) any default
on the part of Landlord under this Lease or under any other agreement to
which Landlord and Tenant are parties, (vi) the inadequacy in any way
whatsoever of the design or construction of any improvements included in
the Leased Property, it being understood that Landlord has not made and
will not make any representation express or implied as to the adequacy
thereof, or (vii) any other cause whether similar or dissimilar to the
foregoing, any existing or future law to the contrary notwithstanding.
It is the intention of the parties hereto that the obligations of Tenant
hereunder shall be separate and independent of the covenants and
agreements of Landlord, that the Base Rent 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 or
limited pursuant to an express provision of this Lease. However,
nothing in this Paragraph shall be construed as a waiver by Tenant of
any right Tenant may have at law or in equity to (i) recover monetary
damages for any default under this Lease by Landlord that Landlord fails
to cure within the period provided in Paragraph 14, (ii) injunctive
relief in case of the violation, or attempted or threatened violation,
by Landlord of any of the express covenants, agreements, conditions or
provisions of this Lease, or (iii) a decree compelling performance of
any of the express covenants, agreements, conditions or provisions of
this Lease.
(b) Waiver By Tenant. Without limiting the foregoing, Tenant waives
to the extent permitted by Applicable Laws, except as otherwise
expressly provided herein, all rights to which Tenant may now or
hereafter be entitled by law (including any such rights arising because
of any implied "warranty of suitability" or other warranty under
Applicable Laws) (i) to quit, terminate or surrender this Lease or the
Leased Property or any part thereof or (ii) to any abatement,
suspension, deferment or reduction of the Base Rent or any other sums
payable under this Lease.
6. Purchase Documents and Environmental Indemnity. Tenant
acknowledges and agrees that nothing contained in this Lease shall
limit, modify or otherwise affect any of Tenant's obligations under the
Purchase Documents or Environmental Indemnity, which obligations are
intended to be separate, independent and in addition to, and not in lieu
of, the obligations established by this Lease. In the event of any
inconsistency between the terms and provisions of the Purchase Documents
or Environmental Indemnity and the terms and provisions of this Lease,
the terms and provisions of the Purchase Documents or Environmental
Indemnity (as the case may be) shall control.
7. Use and Condition of Leased Property.
(a) Use. Subject to the Permitted Encumbrances and the terms
hereof, Tenant may use and occupy the Leased Property so long as no
Event of Default occurs hereunder, but only for the continued operation
of the Pedro's Restaurant or another restaurant or as reasonably
necessary to develop the Land for use for the following purposes and
other lawful purposes incidental thereto:
(i) administrative and office space; and
(ii) research and development of software and other computer-related
products;
(iii) distribution and warehouse storage of software and other computer-
related products; and
(iv) assembly of computer-related products using components manufactured
elsewhere, but not including the manufacture of computer chips on-site;
(v) cafeteria, library, fitness center and other support function uses
that Tenant may provide to its employees; and
(vi) other lawful purposes approved in advance and in writing by
Landlord, which approval will not be unreasonably withheld (but Tenant
acknowledges that Landlord's withholding of such approval shall be
reasonable if Landlord determines in good faith that (1) giving the
approval may materially increase Landlord's risk of liability for any
existing or future environmental problem, or (2) giving the approval is
likely to substantially increase Landlord's administrative burden of
complying with or monitoring Tenant's compliance with the requirements
of this Lease).
Although the term "computer-related products" in this subparagraph may
include products designed to detect, monitor, neutralize, handle or
process Hazardous Substances, the use of the Leased Property by Tenant
shall not include bringing Hazardous Substances onto the Leased Property
for the purpose of researching, testing or demonstrating any such
products.
(b) Condition. Tenant accepts the Leased Property (and will accept
the same upon any purchase of the Landlord's interest therein) in its
present state, AS IS, and without any representation or warranty,
express or implied, as to the condition of such property or as to the
use which may be made thereof. Tenant also accepts the Leased Property
without any representation or warranty, express or implied, by Landlord
regarding the title thereto or the rights of any parties in possession
of any part thereof, except as set forth in subparagraph 9.(a).
Landlord shall not be responsible for any latent or other defect or
change of condition in the Land, or Improvements, fixtures and personal
property (if any) forming a part of the Leased Property, and the Rent
hereunder shall in no case be withheld or diminished because of any
latent or other defect in such property, any change in the condition
thereof or the existence with respect thereto of any violations of
Applicable Laws. Nor shall Landlord be required to furnish to Tenant
any facilities or service of any kind, such as, but not limited to,
water, steam, heat, gas, hot water, electricity, light or power.
(c) Consideration of and Scope of Waiver. The provisions of
subparagraph 7.(b) above have been negotiated by the Landlord and Tenant
after due consideration for the Rent payable hereunder and are intended
to be a complete exclusion and negation of any representations or
warranties of the Landlord, express or implied, with respect to the
Leased Property that may arise pursuant to any law now or hereafter in
effect, or otherwise. However, such exclusion of representations and
warranties by Landlord is not intended to impair any representations or
warranties made by other parties, including Seller, the benefit of which
is to pass to Tenant during the Term because of the definition of
Personal Property and Leased Property above.
8. Other Representations, Warranties and Covenants of Tenant.
Tenant represents, warrants and covenants as follows:
(a) Financial Matters. Tenant is solvent and has no outstanding
liens, suits, garnishments or court actions which could render Tenant
insolvent. There has not been filed by or, to Tenant's knowledge,
against Tenant a petition in bankruptcy or a petition or answer seeking
an assignment for the benefit of creditors, the appointment of a
receiver, trustee, custodian or liquidator with respect to Tenant or any
significant portion of Tenant's property, reorganization, arrangement,
rearrangement, composition, extension, liquidation or dissolution or
similar relief under the federal Bankruptcy Code or any state law. The
financial statements and all financial data heretofore delivered to
Landlord relating to Tenant have been prepared in accordance with GAAP
in all material respects. No material adverse change has occurred in
the financial position of Tenant as reflected in Tenant's financial
statements covering the fiscal period ended September 29, 1996.
(b) Existing Contract and Pedro's Ground Lease. Except to the
extent required of Landlord under subparagraph 9.(b), Tenant shall
satisfy all surviving obligations of the "Buyer" (as the term "Buyer" is
used in the Existing Contract) under the Existing Contract and under all
other documents, the execution of which is required by or in connection
with the Existing Contract. To the extent required during the Term,
Tenant shall also satisfy all obligations of the lessor under the
Pedro's Ground Lease. Tenant agrees to indemnify, defend and hold
Landlord harmless from and against any and all Losses imposed on or
asserted against or incurred by Landlord at any time and from time to
time by reason of, in connection with or arising out of any obligations
imposed by the Existing Contract or the Pedro's Ground Lease. Because
Tenant hereby assumes and agrees to satisfy all surviving obligations of
the Buyer under the Existing Contract and all obligations of the lessor
under the Pedro's Ground Lease, no failure by Landlord to take any
action required by the Existing Contract (save and except any actions
required of Landlord under subparagraph 9.(b)) or by the Pedro's Ground
Lease shall, for the purposes of this indemnity, be deemed to be caused
by the Misconduct of Landlord. The foregoing indemnity is in addition
to the other indemnities set out herein and shall not terminate upon the
closing of any sale of Landlord's interest in the Leased Property
pursuant to the provisions of the Purchase Agreement or the termination
of this Lease.
Notwithstanding anything herein to the contrary, so long as no Event of
Default has occurred and is continuing, Tenant may terminate the Pedro's
Ground Lease at any time (and at Tenant's sole expense) during the Term
by agreement with the lessee thereunder or by the lawful exercise of any
right of termination therein provided to the lessor.
(c) No Default or Violation. The execution, delivery and
performance by Tenant of this Lease, the Purchase Documents and the
Environmental Indemnity do not and will not constitute a breach or
default under any other material agreement or contract to which Tenant
is a party or by which Tenant is bound or which affects the Leased
Property or Tenant's use, occupancy or operation of the Leased Property
or any part thereof and do not, to the knowledge of Tenant, violate or
contravene any law, order, decree, rule or regulation to which Tenant is
subject, and such execution, delivery and performance by Tenant will not
result in the creation or imposition of (or the obligation to create or
impose) any lien, charge or encumbrance not contemplated by this Lease
or the Purchase Documents on, or security interest in, Tenant's property
pursuant to the provisions of any of the foregoing.
(d) Compliance with Covenants and Laws. The intended use of the
Leased Property by Tenant complies, or will comply after Tenant obtains
readily available permits, in all material respects with all applicable
restrictive covenants, zoning ordinances and building codes, flood
disaster laws, applicable health, safety and environmental laws and
regulations, the Americans with Disabilities Act and other laws
pertaining to disabled persons, and all other applicable laws, statutes,
ordinances, rules, permits, regulations, orders, determinations and
court decisions (all of the foregoing are herein sometimes collectively
called "Applicable Laws"). Tenant has obtained or will promptly obtain
all utility, building, health and operating permits as may be required
for Tenant's use of the Leased Property by any governmental authority or
municipality having jurisdiction over the Leased Property.
(e) Environmental Representations. To Tenant's knowledge and except
as otherwise disclosed in the Environmental Report, as of the date
hereof: (i) neither Tenant nor any prior owner or operator of the Leased
Property or any surrounding property has reported or been required to
report any release of any Hazardous Substances on or from the Leased
Property or the surrounding property pursuant to any Environmental Law;
(ii) neither Tenant nor any prior owner or operator of the Leased
Property has received from any federal, state or local governmental
authority any warning, citation, notice of violation regarding a
suspected or known release or discharge of Hazardous Substances on or
from the Leased Property or regarding a suspected or known violation of
Environmental Laws concerning the Leased Property which has not been
completely rectified; and (iii) none of the following are located on the
Leased Property: asbestos; urea formaldehyde foam insulation;
transformers or other equipment which contain dielectric fluid
containing levels of polychlorinated biphenyls in excess of fifty (50)
parts per million; any other Hazardous Substances other than Permitted
Hazardous Substances; or any underground storage tank or tanks
prohibited by this Lease. Further, Tenant represents that to Tenant's
knowledge the Environmental Report is not misleading or inaccurate in
any material respect.
(f) No Suits. There are no judicial or administrative actions,
suits, proceedings or investigations pending or, to Tenant's knowledge,
threatened that will affect Tenant's intended use of the Leased Property
or the validity, enforceability or priority of this Lease, or Tenant's
use, occupancy and operation of the Leased Property or any part thereof,
and Tenant is not in default with respect to any order, writ,
injunction, decree or demand of any court or other governmental or
regulatory authority that could materially and adversely affect the
business or assets of Tenant and its Subsidiaries taken as a whole or
Tenant's use, occupancy or operation of the Leased Property. No
condemnation or other like proceedings are pending or, to Tenant's
knowledge, threatened against the Leased Property.
(g) Condition of Property. The Land as described in Exhibit A is
shown on the plat included as part of the A.L.T.A. Survey prepared by
Brian Kangos Foulk, dated 12-4-96, which was delivered to Landlord at
the request of Tenant. All material improvements on the Land as of the
date hereof are as shown on that survey, and except as shown on that
survey there are no easements or encroachments visible or apparent from
an inspection of the Real Property. Adequate provision has been made
(or can be made at a cost that is reasonable in connection with future
development of the Land) for the Leased Property to be served by
electric, gas, storm and sanitary sewers, sanitary water supply,
telephone and other utilities required for the use thereof. All
streets, alleys and easements necessary to serve the Leased Property
have been completed and are serviceable (or can be completed at a cost
that is reasonable in connection with future development of the Land).
No extraordinary circumstances (including any use of the Land as a
habitat for endangered species) exists that would materially and
adversely affect the future development of the Land. Tenant is not
aware of any latent or patent material defects or deficiencies in the
Real Property that, either individually or in the aggregate, could
materially and adversely affect Tenant's use or occupancy or could
reasonably be anticipated to endanger life or limb.
(h) Organization. Tenant is duly incorporated and legally existing
under the laws of Delaware and is duly qualified to do business in the
State of California. Tenant has all requisite power and has procured or
will procure on a timely basis all governmental certificates of
authority, licenses, permits, qualifications and other documentation
required to lease and operate the Leased Property. Tenant has the
corporate power and adequate authority, rights and franchises to own
Tenant's property and to carry on Tenant's business as now conducted and
is duly qualified and in good standing in each state in which the
character of Tenant's business makes such qualification necessary
(including, without limitation, the State of California) or, if it is
not so qualified in a state other than California, such failure does not
have a material adverse effect on the properties, assets, operations or
businesses of Tenant and its Subsidiaries, taken as a whole.
(i) Enforceability. The execution, delivery and performance of this
Lease, the Purchase Documents and the Environmental Indemnity are duly
authorized and do not require the consent or approval of any
governmental body or other regulatory authority that has not heretofore
been obtained and are not in contravention of or conflict with any
Applicable Laws or any term or provision of Tenant's articles of
incorporation or bylaws. This Lease, the Purchase Documents and
Environmental Indemnity are valid, binding and legally enforceable
obligations of Tenant in accordance with their terms, except as such
enforcement is affected by bankruptcy, insolvency and similar laws
affecting the rights of creditors, generally, and equitable principles
of general application.
(j) Not a Foreign Person. Tenant is not a "foreign person" within
the meaning Sections 1445 and 7701 of the Code (i.e., Tenant is not a
non-resident alien, foreign corporation, foreign partnership, foreign
trust or foreign estate as those terms are defined in the Code and
regulations promulgated thereunder).
(k) Omissions. To Tenant's knowledge, none of Tenant's
representations or warranties contained in this Lease or any document,
certificate or written statement furnished to Landlord by or on behalf
of Tenant contains any untrue statement of a material fact or omits a
material fact necessary in order to make the statements contained herein
or therein (when taken in their entireties) not misleading.
(l) Existence. Tenant shall continuously maintain its existence and
its qualification to do business in the State of California.
(m) Tenant Taxes. Tenant shall comply with all applicable tax laws
and pay before the same become delinquent all taxes imposed upon it or
upon its property where the failure to so comply or so pay would have a
material adverse effect on the financial condition or operations of
Tenant; except that Tenant may in good faith by appropriate proceedings
contest the validity, applicability or amount of any such taxes and
pending such contest Tenant shall not be deemed in default under this
subparagraph if (1) Tenant diligently prosecutes such contest to
completion in an appropriate manner, and (2) Tenant promptly causes to
be paid any tax adjudged by a court of competent jurisdiction to be due,
with all costs, penalties, and interest thereon, promptly after such
judgment becomes final; provided, however, in any event such contest
shall be concluded and the tax, penalties, interest and costs shall be
paid prior to the date any writ or order is issued under which any of
Tenant's property that is material to the business of Tenant and its
Subsidiaries taken as a whole may be seized or sold because of the
nonpayment thereof.
(n) Operation of Property. Tenant shall operate the Leased Property
in a good and workmanlike manner and in compliance with all Applicable
Laws and will pay all fees or charges of any kind in connection
therewith, other than Excluded Taxes. Tenant shall not use or occupy,
or allow the use or occupancy of, the Leased Property in any manner
which violates any Applicable Law or which constitutes a public or
private nuisance or which makes void, voidable or cancelable any
insurance then in force with respect thereto. To the extent (but only
to the extent) that any of the following would, individually or in the
aggregate, materially and adversely affect the value of the Leased
Property or Tenant's use, occupancy or operations on the Leased
Property, Tenant shall be prohibited by this Lease from: (i) initiating
or permitting any zoning reclassification of the Leased Property; (ii)
seeking any variance under existing zoning ordinances applicable to the
Leased Property; (iii) using or permitting the use of the Leased
Property in a manner that would result in such use becoming a
nonconforming use under applicable zoning ordinances or similar laws,
rules or regulations; (iv) executing or filing any subdivision plat
affecting the Leased Property; (v) consenting to the annexation of the
Leased Property to any municipality; or (v) taking other comparable
action in anticipation of the future development of the Land. If a
change in the zoning or other Applicable Laws affecting the permitted
use or development of the Leased Property shall occur that Landlord
determines will materially reduce the then-current market value of the
Leased Property, and if after such reduction the Stipulated Loss Value
shall substantially exceed the then-current market value of the Leased
Property in the reasonable judgment of Landlord, then Tenant shall pay
Landlord an amount equal to such excess for application as a Qualified
Payment. Tenant shall make any payment required by the preceding
sentence within one hundred eighty (180) days after it is requested by
Landlord, and in any event shall make any such payment before the end of
the Term. Tenant shall not impose any restrictive covenants or
encumbrances upon the Leased Property without the prior written consent
of the Landlord; provided, that such consent shall not be unreasonably
withheld for any encumbrance or restriction that is required by any
municipality or other governmental entity in connection with any
rezoning, replatting or development by Tenant otherwise permitted by
this Lease or for any encumbrance or restriction that is made expressly
subject to this Lease, as modified from time to time, and subordinate to
Landlord's interest in the Leased Property by an agreement in form
satisfactory to Landlord. Tenant shall not cause or permit any drilling
or exploration for, or extraction, removal or production of, minerals
from the surface or subsurface of the Leased Property. Tenant shall not
do any act whereby the market value of the Leased Property may be
materially lessened. Tenant shall allow Landlord or its authorized
representative to enter the Leased Property at any reasonable time to
inspect the Leased Property and, after reasonable notice, to inspect
Tenant's books and records pertaining thereto, and Tenant shall assist
Landlord or Landlord's representative in whatever way reasonably
necessary to make such inspections. If Tenant receives a written notice
or claim from any federal, state or other governmental entity that the
Leased Property is not in compliance in any material respect with any
Applicable Law, or that any action may be taken against the owner of the
Leased Property because the Leased Property does not comply with
Applicable Law, Tenant shall promptly furnish a copy of such notice or
claim to Landlord. Notwithstanding the foregoing, Tenant may in good
faith, by appropriate proceedings, contest the validity and
applicability of any Applicable Law with respect to the Leased Property,
and pending such contest Tenant shall not be deemed in default hereunder
because of a violation of such Applicable Law, if Tenant diligently
prosecutes such contest to completion in a manner reasonably
satisfactory to Landlord, and if Tenant promptly causes the Leased
Property to comply with any such Applicable Law upon a final
determination by a court of competent jurisdiction that the same is
valid and applicable to the Leased Property; provided, that in any event
such contest shall be concluded and the violation of such Applicable Law
must be corrected and any claims asserted against Landlord or the Leased
Property because of such violation must be paid by Tenant, all prior to
the date that (i) any criminal charges are threatened or instituted
against Landlord or any of its directors, officers or employees because
of such violation or (ii) any action may be taken by any governmental
authority against Landlord or any property owned by Landlord (including
the Leased Property) because of such violation.
(o) Debts for Construction. Tenant shall cause all debts and
liabilities incurred in the construction, maintenance, operation and
development of the Leased Property, including without limitation all
debts and liabilities for labor, material and equipment and all debts
and charges for utilities servicing the Leased Property, to be promptly
paid; provided, nothing in this subparagraph will be construed to make
Tenant liable for Prohibited Encumbrances or Excluded Taxes.
Notwithstanding the foregoing, Tenant may in good faith by appropriate
proceedings contest the validity, applicability or amount of any
asserted mechanic's or materialmen's lien and pending such contest
Tenant shall not be deemed in default under this subparagraph (or
subparagraphs 8.(t) or 8.(u)) because of the contested lien if (1)
within sixty (60) days after being asked to do so by Landlord, Tenant
bonds over to Landlord's satisfaction any contested liens alleged to
secure an amount in excess of $500,000 (individually or in the
aggregate) (2) Tenant diligently prosecutes such contest to completion
in a manner reasonably satisfactory to Landlord, and (3) Tenant promptly
causes to be paid any amount adjudged by a court of competent
jurisdiction to be due, with all costs and interest thereon, promptly
after such judgment becomes final; provided, however, that in any event
each such contest shall be concluded and the lien, interest and costs
shall be paid prior to the date (i) any criminal action may be
instituted against Landlord or its directors, officers or employees
because of the nonpayment thereof or (ii) any writ or order is issued
under which any property owned by Landlord (including the Leased
Property) may be seized or sold or any other action is threatened or
instituted against Landlord or any property owned by Landlord because of
the nonpayment thereof.
(p) Impositions. Tenant shall reimburse Landlord for (or, if
requested by Landlord, will pay or cause to be paid prior to
delinquency) all sales, excise, ad valorem, gross receipts, business,
transfer, stamp, occupancy, rental and other taxes, levies, fees,
charges, surcharges, assessments or penalties which arise out of or are
attributable to this Lease or which are imposed upon Landlord or the
Leased Property because of the ownership, leasing, occupancy, sale or
operation of the Leased Property, or any part thereof, or relating to or
required to be paid by the terms of any of the Permitted Encumbrances,
excluding only Prohibited Encumbrances and Excluded Taxes (collectively,
all such taxes, levies, fees, charges, surcharges, assessments or
penalties, other than Prohibited Encumbrances and Excluded Taxes, are
herein called the "Impositions"). If Landlord requires Tenant to pay
any Impositions directly to the applicable taxing authority or other
party entitled to collect the same, Tenant shall furnish Landlord with
receipts showing payment of such Impositions and other amounts prior to
delinquency.
Notwithstanding the foregoing, Tenant may in good faith by appropriate
proceedings contest the validity, applicability or amount of any
asserted Imposition, and pending such contest Tenant shall not be deemed
in default of this subparagraph (or subparagraphs 8.(t) or 8.(u))
because of the contested Imposition if (1) within sixty (60) days after
being asked to do so by Landlord, Tenant bonds over to the satisfaction
of Landlord any lien asserted against the Leased Property and alleged to
secure an amount in excess of $500,000 because of the contested
Imposition, (2) Tenant diligently prosecutes such contest to completion
in a manner reasonably satisfactory to Landlord, and (3) Tenant promptly
causes to be paid any amount adjudged by a court of competent
jurisdiction to be due, with all costs, penalties and interest thereon,
promptly after such judgment becomes final; provided, however, that in
any event each such contest shall be concluded and the Impositions,
penalties, interest and costs shall be paid prior to the date (i) any
criminal action may be instituted against Landlord or its directors,
officers or employees because of the nonpayment thereof or (ii) any writ
or order is issued under which any property owned by Landlord (including
the Leased Property) may be seized or sold or any other action is
threatened or instituted against Landlord or any property owned by
Landlord because of the nonpayment thereof.
(q) Repair, Maintenance, Alterations and Additions. Tenant shall
keep the Leased Property in good order, repair, operating condition and
appearance (ordinary wear and tear excepted), causing all necessary
repairs, renewals, replacements, additions and improvements to be
promptly made, and will not allow any of the Leased Property to be
materially misused, abused or wasted or to deteriorate. Further, Tenant
shall not, without the prior written consent of Landlord, construct or
make any alteration to any Improvements which significantly reduce the
fair market value of the Leased Property. However, nothing in this
subparagraph 8.(q) shall be construed to prohibit lawful construction or
other development activities by Tenant otherwise permitted by this
Lease. Further, nothing in this subparagraph 8.(q) or other provisions
of this Lease shall be construed to prohibit the demolition by Tenant of
the improvements presently used for the operation of Pedro's Restaurant
after the termination of the Pedro's Ground Lease.
(r) Insurance and Casualty. Throughout the Term, Tenant will keep
any valuable Improvements insured against damage by fire and other
casualty (earthquake excepted) in a commercially reasonable manner.
(s) Condemnation. Immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation of the Leased
Property or any portion thereof, or any other similar governmental or
quasi-governmental proceedings arising out of injury or damage to the
Leased Property or any portion thereof, each party shall notify the
other (provided, however, Landlord shall have no liability for its
failure to provide such notice) of the pendency of such proceedings.
Tenant shall, at its expense, diligently prosecute any such proceedings
and shall consult with Landlord, its attorneys and experts and cooperate
with them as reasonably requested in the carrying on or defense of any
such proceedings. All proceeds of condemnation awards or proceeds of
sale in lieu of condemnation with respect to the Leased Property and all
judgments, decrees and awards for injury or damage to the Leased
Property shall be paid to Landlord as Escrowed Proceeds for application
as provided in Paragraph 4 above. Landlord is hereby authorized, in the
name of Tenant, at any time when an Event of Default shall have occurred
and be continuing, or with Tenant's prior written consent (which consent
will not be unreasonably withheld), to execute and deliver valid
acquittances for, and to appeal from, any such judgment, decree or award
concerning condemnation of any of the Leased Property. Landlord shall
not be in any event or circumstances liable or responsible for failure
to collect, or to exercise diligence in the collection of, any such
proceeds, judgments, decrees or awards.
Notwithstanding the foregoing provisions of this subparagraph 8.(s),
following any condemnation or sale in lieu of condemnation involving the
Leased Property, Tenant shall be entitled to receive directly and hold
such condemnation or sale proceeds, so long as the Pledge Agreement
continues in force and no Event of Default shall have occurred and be
continuing and so long as Tenant applies such proceeds to the
restoration, replacement and repair of the remainder of the Leased
Property to the extent required by subparagraph 4.(b).
(t) Protection and Defense of Title. If any encumbrance or title
defect whatsoever affecting Landlord's fee interest in the Leased
Property is claimed or discovered (excluding Permitted Encumbrances and
Prohibited Encumbrances and this Lease) or if any legal proceedings are
instituted with respect to title to the Leased Property, Tenant shall
give prompt written notice thereof to Landlord and at Tenant's own cost
and expense will promptly cause the removal of any such encumbrance and
cure any such defect and will take all necessary and proper steps for
the defense of any such legal proceedings, including but not limited to
the employment of counsel, the prosecution or defense of litigation and
the release or discharge of all adverse claims. If Tenant fails to
promptly remove any such encumbrance or title defect (other than a Lien
Tenant is contesting as expressly permitted by and in accordance with
subparagraph 8.(o) or subparagraph 8.(p)), Landlord (whether or not
named as a party to legal proceedings with respect thereto) shall be
entitled to take such additional steps as in its judgment may be
necessary or proper to remove such encumbrance or cure such defect or
for the defense of any such attack or legal proceedings or the
protection of Landlord's fee interest in the Leased Property, including
but not limited to the employment of counsel, the prosecution or defense
of litigation, the compromise or discharge of any adverse claims made
with respect to the Leased Property, the removal of prior liens or
security interests, and all expenses (including Attorneys' Fees) so
incurred of every kind and character shall be a demand obligation owing
by Tenant.
For purposes of this subparagraph 8.(t), Tenant shall be deemed to be
acting promptly to remove any encumbrance or to cure any title defect,
other than a Lien which Tenant has itself granted or authorized, so long
as Tenant (or a title insurance company obligated to do so) is in good
faith by appropriate proceedings contesting the validity and
applicability of the encumbrance or defect, and pending such contest
Tenant shall not be deemed in default under this subparagraph because of
the encumbrance or defect; provided, with respect to a contest of any
encumbrance or title defect which is the subject of subparagraphs 8.(o)
or 8.(p), Tenant (or the applicable title insurance company) must
satisfy the conditions and requirements for a permitted contest set
forth in those subparagraphs, and with respect to a contest of any other
encumbrance or title defect, Tenant (or the applicable title insurance
company) must:
(1) diligently prosecute the contest to completion in a manner
reasonably satisfactory to Landlord;
(2) immediately remove the encumbrance or cure the defect, as and to the
extent reasonably required to preserve Landlord's indefeasible fee
estate in the Leased Property and to prevent any significant adverse
impact the encumbrance or defect may have on the value of the Leased
Property, upon a final determination by a court of competent
jurisdiction that the encumbrance or defect is valid and applicable to
the Leased Property; and
(3) in any event conclude the contest and remove the encumbrance or cure
the defect and pay any claims asserted against Landlord or the Leased
Property because of such encumbrance or defect, all prior to (i) any
Designated Sale Date on which neither Tenant nor any Applicable
Purchaser purchases the Leased Property pursuant to the Purchase
Agreement for a price to Landlord (when taken together with any
additional payments made by Tenant pursuant to Paragraph 2(a)(ii) of the
Purchase Agreement, in the case of a purchase by an Applicable
Purchaser) of not less than the Purchase Price, (ii) the date any
criminal charges are threatened or instituted against Landlord or any of
its directors, officers or employees because of such encumbrance or
defect or (iii) the date any action may be taken against Landlord or any
property owned by Landlord (including the Leased Property) by any
governmental authority or any other Person who has or claims rights
superior to Landlord because of the encumbrance or defect.
(u) No Liens To Secure Payment or Performance on the Leased
Property. Tenant shall not, without the prior written consent of
Landlord, create, place or permit to be created or placed, or through
any act or failure to act, acquiesce in the placing of, or allow to
remain, any Lien which secures any payment or performance obligation
(except Prohibited Encumbrances, the lien for property taxes on the
Leased Property which are not delinquent and any Lien Tenant is
contesting as expressly permitted by and in accordance with subparagraph
8.(o) or subparagraph 8.(p)), against or covering the Leased Property or
any part thereof regardless of whether the same are expressly or
otherwise subordinate to this Lease or Landlord's interest in the Leased
Property, and should any prohibited Lien exist or become attached
hereafter in any manner to any part of the Leased Property without the
prior written consent of Landlord, Tenant shall cause the same to be
promptly discharged and released to the satisfaction of Landlord.
(v) Books and Records. Tenant shall keep books and records that are
accurate and complete in all material respects for the Leased Property
and will permit all such books and records (including without limitation
all contracts, statements, invoices, bills and claims for labor,
materials and services supplied for the operation of any Improvements)
to be inspected and copied by Landlord and its duly accredited
representatives during reasonable business hours and after five business
days advance notice.
To the extent, if any, that any such books and records contain
proprietary information of Tenant that Tenant identifies as such at the
time of inspection, Landlord shall use reasonable efforts to keep such
proprietary information confidential. For purposes of this Lease
"proprietary information" includes Tenant's intellectual property and
trade secrets of value to Tenant about, among other things, Tenant's
products, marketing and corporate strategies, but in no event will
"proprietary information" include any disclosure of substances and
materials (and their chemical composition) which are or previously have
been present in, on or under the Leased Property at the time of any
inspections by Landlord, nor will "proprietary information" include any
additional disclosures reasonably required to permit Landlord to
determine whether the presence of such substances and materials has
constituted a violation of Environmental Laws. In addition, under no
circumstances shall Tenant have any obligation to disclose to Landlord
or any other party any proprietary information of Tenant (including,
without limitation, any pending applications for patents or trademarks,
any research and design and any trade secrets) except if and to the
limited extent reasonably necessary to comply with the express
provisions of this Lease. Notwithstanding the foregoing, Landlord shall
not be prohibited from disclosures of proprietary information: (i)
specifically and previously authorized in writing by Tenant; (ii) to any
assignee of Landlord claiming through a Permitted Transfer as to any
interest in the Leased Property; (iii) to legal counsel, accountants,
auditors, environmental consultants and other professional advisors to
Landlord so long as Landlord shall inform such persons in writing (if
practicable) of the confidential nature of such information and shall
direct them to treat such information confidentially; (iv) to regulatory
officials having jurisdiction over Landlord or any Participant; (v) as
required by legal process; and (vi) of information which has previously
become publicly available through the actions or inactions of a person
other than Landlord not, to Landlord's knowledge, in breach of an
obligation of confidentiality to Tenant.
This subparagraph shall not be construed as requiring Tenant to
regularly maintain separate books and records relating exclusively to
the Leased Property; provided, however, that upon request, Tenant shall
construct or abstract from its regularly maintained books and records
information required by this subparagraph relating to the Leased
Property.
(w) Financial Statements; Required Notices; Certificates as to
Default. Tenant shall deliver to Landlord and to each Participant of
which Tenant has been notified:
(i) as soon as available and in any event within one hundred (100) days
after the end of each fiscal year of Tenant, a consolidated balance
sheet of Tenant and its consolidated Subsidiaries as of the end of such
fiscal year and a consolidated income statement and statement of cash
flows of Tenant and its consolidated Subsidiaries for such fiscal year,
all in reasonable detail and all prepared in accordance with GAAP and
accompanied by a report and opinion of independent auditors of national
standing selected by Tenant, which report and opinion shall be prepared
in accordance with generally accepted auditing standards and shall not
be subject to any qualifications or exceptions as to the scope of the
audit nor to any qualification or exception which Landlord determines,
in Landlord's reasonable discretion, is unacceptable; provided that
notwithstanding the foregoing, for so long as Tenant is a company
subject to the periodic reporting requirements of Section 12 of the
Securities Exchange Act of 1934, as amended, Tenant shall be deemed to
have satisfied its obligations under this clause (i) so long as Tenant
delivers to Landlord the same annual report and report and opinion of
independent auditors that Tenant delivers to its stockholders;
(ii) as soon as available and in any event within fifty (50) days after
the end of each of the first three quarters of each fiscal year of
Tenant, the consolidated balance sheet of Tenant and its consolidated
Subsidiaries as of the end of such quarter and the consolidated income
statement and the consolidated statement of cash flows of Tenant and its
consolidated Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, all in
reasonable detail and all prepared in accordance with GAAP and certified
by a Responsible Financial Officer of Tenant (subject to year-end
adjustments); provided, that notwithstanding the foregoing, for so long
as Tenant is a company subject to the periodic reporting requirements of
Section 12 of the Securities Exchange Act of 1934, as amended, Tenant
shall be deemed to have satisfied its obligations under this clause (ii)
so long as Tenant delivers to Landlord the same Form SEC 10-Q filed with
the Securities and Exchange Commission;
(iii) together with the financial statements furnished in accordance
with subparagraph 8.(w)(ii) and 8.(w)(i), a certificate of a Responsible
Financial Officer of Tenant in substantially the form attached hereto as
Exhibit E: (i) certifying that to the knowledge of Tenant no Default or
Event of Default under this Lease has occurred and is continuing or, if
a Default or Event of Default has occurred and is continuing, a brief
statement as to the nature thereof and the action which is proposed to
be taken with respect thereto, (ii) certifying that the representations
of Tenant set forth in Paragraph 8 of this Lease are true and correct in
all material respects as of the date thereof as though made on and as of
the date thereof or, if not then true and correct, a brief statement as
to why such representations are no longer true and correct, and (iii)
with computations demonstrating compliance with the financial covenants
contained in subparagraph 8.(cc);
(iv) promptly after the sending or filing thereof, copies of all proxy
statements, financial statements, reports and registration statements
(other than registration statements on Form S-8 or any form substituted
therefor) which Tenant files with the Securities and Exchange Commission
or any governmental authority which may be substituted therefor, or with
any national securities exchange;
(v) as soon as possible and in any event within five (5) Business Days
after a Responsible Financial Officer of Tenant becomes aware of the
occurrence of each Default or Event of Default with respect to the
Affirmative Financial Covenants described in subparagraph 8.(cc) or the
Negative Covenants described in subparagraph 8.(dd), a statement of a
Responsible Financial Officer of Tenant setting forth details of such
Default or Event of Default and the action which Tenant has taken and
proposes to take with respect thereto;
(vi) upon request by Landlord, a statement in writing certifying that
this Lease is unmodified and in full effect (or, if there have been
modifications, that this Lease is in full effect as modified, and
setting forth such modifications) and the dates to which the Base Rent
has been paid and either stating that to the knowledge of Tenant no
Default or Event of Default under this Lease has occurred and is
continuing or, if a Default or Event of Default under this Lease has
occurred and is continuing, a brief statement as to the nature thereof;
it being intended that any such statement by Tenant may be relied upon
by any prospective purchaser or mortgagee of the Leased Property and by
any Participant; and
(vii) such other information respecting the condition or operations,
financial or otherwise, of Tenant, of any of its Subsidiaries or of the
Leased Property as Landlord or any Participant through Landlord may from
time to time reasonably request.
Landlord is hereby authorized to deliver a copy of any information or
certificate delivered to it pursuant to this subparagraph 8.(w) to any
Participant and to any regulatory body having jurisdiction over Landlord
that requires or requests it.
(x) Further Assurances. Tenant shall, on request of Landlord, (i)
promptly correct any error which may be discovered in the contents of
this Lease or in any other instrument executed in connection herewith or
in the execution or acknowledgment thereof; (ii) execute, acknowledge,
deliver and record or file such further instruments and do such further
acts as may be necessary, desirable or proper to carry out more
effectively the purposes of this Lease and to subject to this Lease any
property intended by the terms hereof to be covered hereby including
specifically, but without limitation, any renewals, additions,
substitutions, replacements or appurtenances to the Leased Property;
(iii) execute, acknowledge, deliver, procure and record or file any
document or instrument deemed advisable by Landlord to protect its
rights in and to the Leased Property against the rights or interests of
third persons; and (iv) provide such certificates, documents, reports,
information, affidavits and other instruments and do such further acts
as may be necessary, desirable or proper in the reasonable determination
of Landlord to enable Landlord, Landlord's Parent and other Participants
to comply with the requirements or requests of any agency or authority
having jurisdiction over them.
(y) Fees and Expenses; General Indemnification; Increased Costs; and
Capital Adequacy Charges.
(i) Except for any costs paid by Landlord with the proceeds of the
Initial Funding Advance as part of the Closing Costs, Tenant shall pay
(and shall indemnify and hold harmless Landlord, Landlord's Parent and
any Person claiming through Landlord by reason of a Permitted Transfer
from and against) all Losses incurred by Landlord or Landlord's Parent
or any Person claiming through Landlord through a Permitted Transfer in
connection with or because of (A) the ownership of any interest in or
operation of the Leased Property, (B) the negotiation or administration
of this Lease, the Purchase Documents, Environmental Indemnity or the
Participation Agreement (excluding the negotiation or administration of
the Participation Agreement between Landlord and Landlord's Parent), or
(C) Informix's request for assistance in identifying any new Participant
pursuant to Section 4.3 of the Pledge Agreement, whether such Losses are
incurred at the time of execution of this Lease or at any time during
the Term. Costs and expenses included in such Losses may include,
without limitation, all appraisal fees, filing and recording fees,
inspection fees, survey fees, taxes (other than Excluded Taxes),
brokerage fees and commissions, abstract fees, title policy fees,
Uniform Commercial Code search fees, escrow fees, Attorneys' Fees and
environmental consulting fees incurred by Landlord with respect to the
Leased Property; but will not include an allocation of general overhead
or internal administrative expenses of Landlord, Landlord's Parent or
any other Participant, except to the extent allowed by subparagraph
8.(y)(iii) because of a Banking Rules Change after the date of this
Lease, and will not include costs incurred in connection with the
negotiation and execution of agreements between Landlord and
Participants. If Landlord pays or reimburses Landlord's Parent for any
such Losses, Tenant shall reimburse Landlord for the same
notwithstanding that Landlord may have already received any payment from
any other Participant on account of such Losses, it being understood
that the other Participant may expect repayment from Landlord when
Landlord does collect the required reimbursement from Tenant.
(ii) Tenant shall also pay (and indemnify and hold harmless Landlord,
Landlord's Parent and any Person claiming through Landlord by reason of
a Permitted Transfer from and against) all Losses, including Attorneys'
Fees, incurred or expended by Landlord or Landlord's Parent or any
Person claiming through Landlord through a Permitted Transfer or in
connection with (A) the breach by Tenant of any covenant of Tenant
herein or in any other instrument executed in connection herewith or (B)
Landlord's exercise of any of Landlord's rights and remedies hereunder
or under Applicable Law or Landlord's protection of the Leased Property
and Landlord's interest therein as permitted hereunder or under
Applicable Law. (However, the indemnity in the preceding sentence shall
not be construed to make Tenant liable to both Landlord and any
Participant or other party claiming through Landlord for the same costs,
expenses or damages or for any allocation of general overhead or
internal administrative expenses of Landlord, Landlord's Parent or any
other Participant except to the extent allowed by subparagraph
8.(y)(iii) because of a Banking Rules Change after the date of this
Lease.) Tenant shall further indemnify and hold harmless Landlord and
all other Indemnified Parties against, and reimburse them for, all
Losses which may be imposed upon, asserted against or incurred or paid
by them by reason of, on account of or in connection with any bodily or
personal injury or death or damage to the property of third parties
occurring in or upon or in the vicinity of the Leased Property through
any cause whatsoever.
(iii) If, after the date hereof, there shall be any increase in the cost
to Landlord's Parent or any other Participant agreeing to make or
maintain Funding Advances to Landlord in connection with the Leased
Property because of any Banking Rules Change, then Tenant shall from
time to time, upon demand by Landlord pay to Landlord for the account of
Landlord's Parent or such other Participant, as the case may be,
additional amounts sufficient to compensate Landlord's Parent or the
Participant for such increased cost. A certificate as to the amount of
such increased cost, submitted to Landlord and Tenant by Landlord's
Parent or the Participant, shall be conclusive and binding for purposes
of determining Tenant's obligations hereunder, absent clear and
demonstrable error. An increase in costs resulting from any imposition
or increase of reserve requirements applicable to Collateral held in
Accounts maintained from time to time by Landlord's Parent or other
Participants pursuant to the Pledge Agreement would be an increase
covered by this subparagraph.
(iv) Any Participant (including Landlord's Parent) may demand additional
payments (herein called "Capital Adequacy Charges") if the Participant
determines that any Banking Rules Change affects the amount of capital
to be maintained by it and that the amount of such capital is increased
by or based upon the existence of Funding Advances made by it to permit
Landlord to maintain Landlord's investment in the Leased Property. To
the extent that any Participant demands Capital Adequacy Charges as
compensation for the additional capital requirements reasonably
allocable to such advances, Tenant shall pay to Landlord for the account
of the Participant the amount so demanded. Without limiting the
foregoing, Landlord and Tenant hereby acknowledge and agree that the
provisions for calculating Base Rent set forth herein reflect the
assumption that the Pledge Agreement will cause a twenty percent (20%)
risk weight to be assigned to a percentage (equal to the Collateral
Percentage) of the collective investment of Landlord and the
Participants in the Leased Property pursuant to 12 Code of Federal
Regulations, part 225, as from time to time supplemented or amended, or
pursuant to any other similar or successor statute or regulation
applicable to Landlord and the Participants. If and so long as such
risk weight is increased because of a Banking Rules Change, Capital
Adequacy Charges may be collected to yield the same rate of return to
Landlord, Landlord's Parent and any other Participants (net of their
costs of maintaining required capital) that they would have enjoyed from
this Lease absent such increase.
(v) Any amount to be paid to Landlord, Landlord's Parent or any other
Indemnified Party under this subparagraph 8.(y) shall be a demand
obligation owing by Tenant. Tenant's indemnities and obligations under
this subparagraph 8.(y) shall survive the termination or expiration of
this Lease with respect to any circumstance or event existing or
occurring prior to such termination or expiration.
(z) Liability Insurance. Tenant shall maintain one or more policies
of commercial general liability insurance against claims for bodily
injury or death and property damage occurring or resulting from any
occurrence in or upon the Leased Property, in standard form and with an
insurance company or companies rated by the A.M. Best Company of
Oldwick, New Jersey as having a policyholder's rating of A or better and
a reported financial information rating of X or better, such insurance
to afford immediate protection, to the aggregate limit of not less than
$10,000,000 combined single limit for bodily injury and property damage
in respect of any one accident or occurrence, with not more than
$500,000 self-insured retention. Such commercial general liability
insurance shall include blanket contractual liability coverage which
insures contractual liability under the indemnifications set forth in
this Lease for Losses attributable to bodily injury, personal injury or
property damage (other than the indemnifications set forth in Paragraph
11 concerning environmental matters), but such coverage or the amount
thereof shall in no way limit such indemnifications. The policy
evidencing such insurance shall name as additional insureds Landlord and
all Participants of which Tenant has been notified (including Landlord's
Parent). Tenant shall maintain with respect to each policy or agreement
evidencing such commercial general liability insurance such endorsements
as may be reasonably required by Landlord and shall at all times deliver
and maintain with Landlord written confirmation (in form satisfactory to
Landlord) with respect to such insurance from the applicable insurer or
its authorized agent, which confirmation must provide that insurance
coverage will not be canceled or reduced without at least fifteen (15)
days notice to Landlord. Not less than ten (10) days prior to the
expiration date of each policy of insurance required of Tenant pursuant
to this subparagraph, Tenant shall deliver to Landlord a certificate
evidencing a paid renewal policy or policies.
(aa) Permitted Encumbrances. Except to the extent expressly
required of Landlord by subparagraph 9.(b), Tenant shall comply with and
will cause to be performed all of the covenants, agreements and
obligations imposed upon the owner of the Leased Property in the
Permitted Encumbrances in accordance with their respective terms and
provisions. Tenant shall not, without the prior written consent of
Landlord, modify or permit any modification of any Permitted Encumbrance
in any manner that could impose significant monetary obligations upon
Landlord or any subsequent owner of the Leased Property, could
significantly and adversely affect the value of the Leased Property,
could impose any lien to secure payment or performance obligations
against any part of the Leased Property or would otherwise be material
and adverse to Landlord.
(bb) Environmental.
(i) Environmental Covenants. Tenant covenants:
a) not to cause or permit the Leased Property to be in violation of,
or do anything or permit anything to be done which will subject the
Leased Property to any remedial obligations under, any Environmental
Laws, including without limitation CERCLA and RCRA, assuming disclosure
to the applicable governmental authorities of all relevant facts,
conditions and circumstances pertaining to the Leased Property;
b) not to conduct or authorize others to conduct Hazardous Substance
Activities on the Leased Property, except Permitted Hazardous Substance
Use;
c) to the extent required by Environmental Laws, to remove Hazardous
Substances from the Leased Property (or if removal is prohibited by law,
to take whatever action is required by law) promptly upon discovery; and
d) not to discharge or authorize the discharge of anything
(including Permitted Hazardous Substances) from the Leased Property into
groundwater or surface water that would require any permit under
applicable Environmental Laws, other than storm water runoff.
If Tenant's failure to cure any breach of the covenants listed above in
this subparagraph 8.(bb)(i) continues beyond the Environmental Cure
Period (as defined below), Landlord may, in addition to any other
remedies available to it, after notifying Tenant of the remediation
efforts Landlord believes are needed, cause the Leased Property to be
freed from all Hazardous Substances (or if removal is prohibited by law,
to take whatever action is required by law), and the cost of the removal
shall be a demand obligation owing by Tenant to Landlord. Further,
subject to the provisions of subparagraph 11.(c) below, Tenant agrees to
indemnify Landlord against all Losses incurred by or asserted or proven
against Landlord in connection therewith. As used in this subparagraph,
"Environmental Cure Period" means the period ending on the earlier of:
(1) one hundred and eighty days (180) after Tenant is notified of the
breach which must be cured within such period, or such longer period as
is reasonably required for any cure that Tenant pursues with diligence
pursuant to and in accordance with an Approved Plan (as defined below),
(2) the date any writ or order is issued for the levy or sale of any
property owned by Landlord (including the Leased Property) or any
criminal action is threatened or instituted against Landlord or any of
its directors, officers or employees because of the breach which must be
cured within such period, (3) the end of the Term. As used in this
subparagraph, an "Approved Plan" means a plan of remediation of a
violation of Environmental Laws for which Tenant has obtained, within
one hundred and eighty days (180) after Tenant is notified of the
applicable breach of the covenants listed above in this subparagraph
8.(bb)(i), the written approval of the governmental authority with
primary jurisdiction over the violation and with respect to which no
other governmental authority asserting jurisdiction has claimed such
plan is inadequate.
(ii) Environmental Inspections and Reviews. Landlord reserves the
right to retain an independent professional consultant to review any
report prepared by Tenant or to conduct Landlord's own investigation to
confirm whether Hazardous Substances Activities or the discharge of
anything into groundwater or surface water has occurred in violation of
the preceding subparagraph 8.(bb)(i), but Landlord's right to
reimbursement for the fees of such consultant shall be limited to the
following circumstances: (1) an Event of Default shall have occurred;
(2) Landlord shall have retained the consultant to establish the
condition of the Leased Property just prior to any conveyance thereof
pursuant to the Purchase Agreement or just prior to the expiration of
this Lease; (3) Landlord shall have retained the consultant to satisfy
any regulatory requirements applicable to Landlord or its Affiliates; or
(4) Landlord shall have retained the consultant because Landlord has
been notified of a violation of Environmental Laws concerning the Leased
Property or Landlord otherwise reasonably believes that Tenant has not
complied with the preceding subparagraph 8.(bb)(i). Tenant grants to
Landlord and to Landlord's agents, employees, consultants and
contractors the right during reasonable business hours and after
reasonable notice to enter upon the Leased Property to inspect the
Leased Property and to perform such tests as are reasonably necessary or
appropriate to conduct a review or investigation of Hazardous Substances
on, or any discharge into groundwater or surface water from, the Leased
Property. Without limiting the generality of the foregoing, Tenant
agrees that Landlord will have the same right, power and authority to
enter and inspect the Leased Property as is granted to a secured lender
under Section 2929.5 of the California Civil Code. Tenant shall
promptly reimburse Landlord for the cost of any such inspections and
tests, but only when the inspections and tests are (1) ordered by
Landlord after an Event of Default; (2) ordered by Landlord to establish
the condition of the Leased Property just prior to any conveyance
thereof pursuant to the Purchase Agreement or just prior to the
expiration of this Lease; (3) ordered by Landlord to satisfy any
regulatory requirements applicable to Landlord or its Affiliates; or (4)
ordered because Landlord has been notified of a violation of
Environmental Laws concerning the Leased Property or Landlord otherwise
reasonably believes that Tenant has not complied with the preceding
subparagraph 8.(bb)(i).
(iii) Notice of Environmental Problems. Tenant shall immediately
advise Landlord of (i) any discovery of any event or circumstance which
would render any of the representations contained in subparagraph 8.(e)
inaccurate in any material respect if made at the time of such
discovery, (ii) any remedial action taken by Tenant in response to any
(A) discovery of any Hazardous Substances other than Permitted Hazardous
Substances on, under or about the Leased Property or (B) any claim for
damages resulting from Hazardous Substance Activities, (iii) Tenant's
discovery of any occurrence or condition on any real property adjoining
or in the vicinity of the Leased Property which could cause the Leased
Property or any part thereof to be subject to any ownership, occupancy,
transferability or use restrictions under Environmental Laws, or (iv)
any investigation or inquiry affecting the Leased Property by any
governmental authority in connection with any Environmental Laws. In
such event, Tenant shall deliver to Landlord within thirty (30) days
after Landlord's request, a preliminary written environmental plan
setting forth a general description of the action that Tenant proposes
to take with respect thereto, if any, to bring the Leased Property into
compliance with Environmental Laws or to correct any breach by Tenant of
the covenants listed above in subparagraph 8.(bb)(i), including, without
limitation, any proposed corrective work, the estimated cost and time of
completion, the name of the contractor and a copy of the construction
contract, if any, and such additional data, instruments, documents,
agreements or other materials or information as Landlord may reasonably
request.
(cc) Affirmative Financial Covenants.
(i) Quick Ratio. Tenant shall maintain a ratio of (A) Quick Assets of
Tenant and its Subsidiaries (determined on a consolidated basis) to (B)
the sum of Current Liabilities of Tenant and its Subsidiaries
(determined on a consolidated basis), of not less than 1.00 to 1.00. As
used in this subparagraph 8.(cc), "Quick Assets" means the sum (without
duplication of any item) of the Collateral held and pledged under the
Pledge Agreement, plus unencumbered cash, plus unencumbered short term
cash investments, plus other unencumbered marketable securities which
are classified as short term investments according to GAAP, plus the
fair market value of unencumbered Long-Term Investments, plus
unencumbered current net accounts receivable. As used herein "Long-Term
Investments" means those investments listed below (to the extent that
they are not classified as short term investments in accordance with
GAAP):
(1) Securities issued or fully guaranteed or fully insured by the
United States government, or by any agency thereof and backed by the
full faith and credit of the United States, provided that such
investments shall have maturities of not longer than two years;
(2) Certificates of deposit, time deposits, eurodollar time
deposits, repurchase agreements, or banker's acceptances with maturities
of not longer than two years which are issued by a bank that is rated
not less than A- by Standard & Poor's Corporation or less than A by
Moody's Investors Service, Inc. and that is either one of the 50 largest
(in assets) banks in the United States or by one of the 100 largest (in
assets) banks in the world; and
(3) Notes and municipal bonds with maturities of not longer than two
years and rated not less than A- by Standard & Poor's Corporation or
less than A by Moody's Investors Service, Inc. (For purposes hereof, the
maturity of any such municipal bond shall be considered to be the
earliest date upon which the holder of the bond can require the obligor
on the bond to pay or redeem the bond at par value, whether pursuant to
a put option in favor of the holder or because of the expiration of the
stated term of the bond.)
As used in this subparagraph 8.(cc), "Current Liabilities" means, with
respect to any Person, all liabilities of such Person treated as current
liabilities in accordance with GAAP and any obligations of such Person
that, although not classified as a liability of such Person according to
GAAP, are of the kind described in clause (v) of subparagraph 1.(u)
(which sets forth the definition of "Debt") and that must be paid within
one year of the date of determination. Current Liabilities will
including without limitation (a) all obligations payable on demand or
within one year after the date in which the determination is made and
(b) installment and sinking fund payments required to be made within one
year after the date on which determination is made, but excluding all
such liabilities or obligations which are renewable or extendable at the
option of such Person to a date more than one year from the date of
determination.
(ii) Minimum Tangible Net Worth. Tenant shall not permit its
Consolidated Tangible Net Worth, on a consolidated basis, at the end of
any fiscal quarter to be less than the sum of: (A) eighty percent (80%)
of Consolidated Tangible Net Worth as of September 29, 1996; plus (B)
fifty percent (50%) of Tenant's net income (but without deducting any
net losses for any period) earned in each fiscal quarter, starting with
the quarter ended December 31, 1996, and ending with the quarter which,
at such time, is the most recently ended fiscal quarter; and plus (C)
any increase in the Consolidated Tangible Net Worth of Tenant that
results from a sale or issuance of the stock of Tenant or its
Subsidiaries after September 29, 1996. As used in this subparagraph
8.(cc):
"Consolidated Tangible Net Worth" means, at any date of determination
thereof, the excess determined in accordance with GAAP of consolidated
total assets on such date over consolidated total liabilities on such
date; provided, however, that Intangible Assets on such date shall be
excluded from any determination of consolidated total assets on such
date.
"Intangible Assets" means, as of the date of any determination thereof,
the total amount of all assets of Tenant and its consolidated
Subsidiaries that are properly classified as "intangible assets" in
accordance with GAAP and, in any event, shall include, without
limitation, goodwill, patents, trade names, trademarks, copyrights,
franchises, experimental expense, organization expense, unamortized debt
discount and expense, and deferred charges other than prepaid insurance
and prepaid taxes and current deferred taxes which are classified on the
balance sheet of Tenant and its consolidated Subsidiaries as a current
asset in accordance with GAAP and in which classification Tenant's
independent auditors concur; provided, however, for purposes of this
Lease Intangible Assets shall not include capitalized software costs.
(dd) Negative Covenants. Without the prior written consent of
Landlord in each case, neither Tenant nor any of its Subsidiaries shall:
(i) Liens. Create, incur, assume or suffer to exist any Lien, upon or
with respect to any of its properties, now owned or hereafter acquired;
provided, however, that the following shall be permitted except to the
extent that they would encumber any interest in the Leased Property in
violation of other provisions of this Lease or would encumber Collateral
covered by the Pledge Agreement:
a) Liens for taxes or assessments or other government charges or levies
if not yet due and payable or if they are being contested in good faith
by appropriate proceedings and for which appropriate reserves are
maintained;
b) Liens that secure obligations incurred in the ordinary course of
business, that are not past due for more than thirty (30) days (or that
are being contested in good faith by appropriate proceedings and for
which appropriate reserves have been established) and that:
(1) are imposed by law, such as mechanic's, materialmen's, landlord's,
warehousemen's and carrier's Liens, and other similar Liens; or
(2) encumber only equipment or other tangible personal property and any
proceeds thereof (including Liens created by equipment leases) and are
imposed to secure the payment of the purchase price or other direct
costs of acquiring the equipment or other tangible personal property
they encumber;
c) Liens under workmen's compensation, unemployment insurance, social
security or similar legislation (other than ERISA);
d) Liens, deposits or pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money),
leases, public or statutory obligations, surety, stay, appeal,
indemnity, performance or other similar bonds, or other similar
obligations arising in the ordinary course of business;
e) judgment and other similar Liens arising in connection with court
proceedings; provided that the execution or other enforcement of such
Liens is effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate proceedings;
f) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not materially interfere with
the occupation, use and enjoyment by Tenant or any such Subsidiary of
the property or assets encumbered thereby in the normal course of its
business or materially impair the value of the property subject thereto;
g) Liens securing obligations of such a Subsidiary to Tenant or to
another such Subsidiary;
h) Liens incurred after the date of this Lease given to secure the
payment of the purchase price or other direct costs incurred in
connection with the acquisition, construction, improvement or
rehabilitation of assets, including Liens existing on such assets at the
time of acquisition thereof or at the time of acquisition by Tenant or a
Subsidiary of any business entity (including a Subsidiary) then owning
such assets, whether or not such existing Liens were given to secure the
payment of the purchase price of the assets to which they attach,
provided that (i) except in the case of Liens existing on assets at the
time of acquisition of a Subsidiary then owning such assets, the Lien
shall be created within six (6) months of the later of the acquisition
of, or the completion of the construction or improvement in respect of,
such assets and shall attach solely to such assets, and (ii) except in
the case of Liens existing on assets at the time of acquisition of a
Subsidiary then owning such assets, at the time such Liens are imposed,
the aggregate amount remaining unpaid on all Debt secured by Liens on
such assets whether or not assumed by Tenant or a Subsidiary shall not
exceed an amount equal to seventy-five percent (75%) of the lesser of
the total purchase price or fair market value, at the time such Debt is
incurred, of such assets;
i) existing mortgages and deeds of trust as of the date of this Lease;
j) Liens imposed to secure Debt incurred to finance the acquisition of
property which has been leased or sold by Tenant or one of its
Subsidiaries to another Person (other than Tenant or a Subsidiary of
Tenant) pursuant to a lease or sales agreement providing for payments
sufficient to pay such Debt in full, provided such Debt is not a general
obligation of Tenant or its Subsidiaries, but rather is payable only
from the rentals or other sums payable under the lease or sales
agreement or from the property sold or leased thereunder;
k) Liens not otherwise permitted by this subsection 8.(dd)(i) (and not
encumbering the Leased Property or any Collateral) which secure the
payment of Debt, provided that (1) at no time does the sum of the
aggregate amount of all outstanding Debt secured by such Liens exceed
twenty percent (20%) of Consolidated Tangible Net Worth, and (2) such
Liens do not constitute Liens against Tenant's interest in any material
Subsidiary or blanket Liens against all or substantially all of the
inventory, receivables, general intangibles or equipment of Tenant or of
any material Subsidiary of Tenant (for purposes of this clause, a
"material Subsidiary" means any subsidiary whose assets represent a
substantial part of the total assets of Tenant and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP); and
l) Liens incurred in connection with any renewals, extensions or
refunding of any Debt secured by Liens described in the other clauses of
this subsection 8.(dd)(i), provided that there is no increase in the
aggregate principal amount of Debt secured thereby from that which was
outstanding as of the date of such renewal, extension or refunding and
no additional property is encumbered.
(ii) Transactions with Affiliates. Enter into any transactions that
individually or in the aggregate are material to Tenant (including,
without limitation, the purchase, sale or exchange of property or the
rendering of any service) with any Affiliates, except upon fair and
reasonable terms no less favorable to Tenant than would be obtained in a
comparable arm's length transaction with a Person not an Affiliate.
(iii) Mergers; Sales of Assets.
a) Except to the extent permitted by the last sentence of this
subparagraph 8.(dd), liquidate or dissolve, or merge, consolidate with
or into, or convey, transfer, lease, or otherwise dispose of (whether in
one transaction or in a series of transactions) all or substantially all
of its assets (whether now owned or hereafter acquired), to any Person,
or enter into any joint venture, partnership or other combination which
involves the investment, sale, lease, loan, or other disposition of the
business or all of the assets of Tenant and its Subsidiaries or so much
thereof as, in the reasonable opinion of Landlord, constitutes a
substantial portion of such business or assets.
b) Except to the extent permitted by the last sentence of this
subparagraph 8.(dd), acquire the assets or business of any Person, other
than in the ordinary course of Tenant's business as presently conducted.
(iv) Sale of Receivables. Sell for less than the full face value of, or
otherwise sell for consideration other than cash, any of its notes or
accounts receivable. However, this subparagraph (iv) shall not
prohibit: a) any license or sale of products or services in the ordinary
course of business where payment for such transactions is made by credit
card, provided that the fees and discounts incurred by the Tenant or the
Subsidiary in connection therewith shall not exceed the normal and
customary fees and discounts incurred for general credit card
transactions through major credit card issuers; b) the delivery and
endorsement to banks in the ordinary course of business by Tenant or any
of its Subsidiaries of promissory notes received in payment of trade
receivables, where delivery and endorsement are made prior to the date
of maturity of such promissory notes, and the retention by such banks of
normal and customary fees and discounts therefor, provided such practice
is usual and customary in the country where such activity occurs; or c)
other sales of receivables in the ordinary course of Tenant's business
and in a manner consistent with past and current practices as of the
date this Lease.
(v) Change of Business. Permit any significant change in the nature of
the business of Tenant and its Subsidiaries, taken as whole, from that
presently conducted.
Notwithstanding any contrary provisions of subparagraph 8.(dd)(iii),
Tenant or any of its Subsidiaries may engage in any of the following
transactions, provided that immediately prior to and immediately after
giving effect thereto, no Default or Event of Default exists or would
exist:
(1) liquidate or dissolve Subsidiaries to the extent that such
liquidations and dissolutions would not, in the aggregate, result in a
material adverse effect on the properties, assets, operations or
businesses of Tenant and its Subsidiaries, taken as a whole; or
(2) merge with another entity if the corporation surviving the merger is
Tenant or a Subsidiary of Tenant; or
(3) acquire the assets or business of another Person.
(ee) ERISA.
(i) Each Plan is in compliance in all material respects with, and has
been administered in all material respects in compliance with, the
applicable provisions of ERISA, the Code and any other applicable
Federal or state law, and as of the date hereof no event or condition is
occurring or exists which would require a notice from Tenant under
clause 8.(ee)(ii).
(ii) Tenant shall provide a notice to Landlord as soon as possible
after, and in any event within ten (10) days after Tenant becomes aware
that, any of the following has occurred, with respect to which the
potential aggregate liability to Tenant relating thereto is $2,000,000
or more, and such notice shall include a statement signed by a senior
financial officer of Tenant setting forth details of the following and
the response, if any, which Tenant or its ERISA Affiliate proposes to
take with respect thereto (and a copy of any report or notice required
to be filed with or given to Pension Benefit Guaranty Corporation by
Tenant or an ERISA Affiliate with respect to any of the following or the
events or conditions leading up it): (A) the assertion, to secure any
Unfunded Benefit Liabilities, of any Lien against the assets of Tenant,
against the assets of any Plan of Tenant or any ERISA Affiliate of
Tenant or against any interest of Landlord or Tenant in the Leased
Property or the Collateral covered by the Pledge Agreement, or (B) the
taking of any action by the Pension Benefit Guaranty Corporation or any
other governmental authority action against Tenant to terminate any Plan
of Tenant or any ERISA Affiliate of Tenant or to cause the appointment
of a trustee or receiver to administer any such Plan.
9. Representations, Warranties and Covenants of Landlord. Landlord
represents, warrants and covenants as follows:
(a) Removal of Prohibited Encumbrances. If a Prohibited Encumbrance
is claimed against the Leased Property, including without limitation any
judgment lien resulting from a judgment rendered against Landlord,
Landlord will at its own cost and expense remove the Prohibited
Encumbrance. However, Landlord shall not be responsible for any Lien
that is expressly excluded from the definition of Prohibited
Encumbrances above.
(b) Actions Required of the Title Holder.
(i) General Requirements. So long as no Event of Default shall have
occurred and be continuing, Landlord shall take any and all action
required of Landlord by the Permitted Encumbrances or otherwise required
of Landlord by Applicable Laws or reasonably requested by Tenant;
provided, that (i) actions Tenant may require of Landlord under this
subparagraph shall be limited to actions that can only be taken by
Landlord as the owner of the Leased Property, as opposed to any action
that can be taken by Tenant or any third party (and the payment of any
monetary obligation shall not be an action required of Landlord under
this subparagraph unless Landlord shall first have received funds from
Tenant, in excess of any other amounts due from Tenant hereunder,
sufficient to pay such monetary obligations), (ii) Tenant requests the
action to be taken by Landlord (which request must be specific and in
writing, if required by Landlord at the time the request is made) and
(iii) the action to be taken will not constitute a violation of any
Applicable Laws or compromise or constitute a waiver of Landlord's
rights hereunder or under the Purchase Documents or Environmental
Indemnity or otherwise be reasonably objectionable to Landlord.
(ii) Examples of Actions Tenant May Require. The actions Landlord shall
perform if reasonably requested by Tenant will include, without
limitation, but subject to the conditions set forth in the proviso of
the preceding subsection 9.(b)(i), executing or consenting to, or
exercising or assisting Tenant to exercise rights under any (I) grant of
easements, licenses, rights of way, and other rights in the nature of
easements encumbering the Real Property, (II) release or termination of
easements, licenses, rights of way or other rights in the nature of
easements which are for the benefit of the Real Property or any portion
thereof, (III) dedication or transfer of portions of the Real Property
not improved with a building, for road, highway or other public
purposes, (IV) agreements for the use and maintenance of common areas,
for reciprocal rights of parking, ingress and egress and amendments to
any covenants and restrictions affecting the Real Property or any
portion thereof, (V) documents required to create or administer a
governmental special benefit district or assessment district for public
improvements and collection of special assessments, (VI) modifications
of Permitted Encumbrances, (VII) development agreements, permit
applications or other documents required to accommodate the future
construction of office improvements on the Land with a density not to
exceed approximately 990,000 square feet of building area (or such
greater building area as Landlord may approve, which approval shall not
be unreasonably withheld) and of structured parking to serve such office
improvements, which agreements may provide a master plan for the
development of all the Land, or may cover only a portion of the Land,
and may provide for phased build-out, (VIII) agreements or other
documents required for the demolition of the Pedro's Restaurant on the
Land, (IX) confirmations of Tenant's rights under any particular
provisions of this Lease which Tenant may wish to provide to a third
party or (X) parcel maps subdividing the Real Property into lots or
parcels. However, the determination of whether any such action is
reasonably requested or reasonably objectionable to Landlord may depend
in whole or in part upon the extent to which the requested action shall
result in a lien to secure payment or performance obligations against
Landlord's interest in the Leased Property, shall cause a decrease in
the value of the Leased Property to less than forty-five percent (45%)
of Stipulated Loss Value after any Qualified Payments that may result
from such action are taken into account, or shall impose upon Landlord
any present or future obligations greater than the obligations Landlord
is willing to accept in reliance on the indemnifications provided by
Tenant hereunder.
(iii) Partial Release Provisions. So long as no Event of Default shall
have occurred and be continuing, Tenant shall have the option from time
to time during the Term to purchase one or more undeveloped portions of
the Real Property, consisting of one or more tracts or lots of the Land
which can be sold under Applicable Laws separate and apart from the rest
of the Land (each, a "Parcel"), for an amount equal to the Release Price
(as defined below) with respect thereto. Tenant may exercise such
option by delivering to Landlord not less than ninety (90) days prior
written notice, which written notice shall describe the Parcel or
Parcels to be purchased, the date such Parcels are to be conveyed by
Landlord and an estimate by Tenant of the Release Price to be paid by
Tenant. In each case Landlord's obligation to convey such Parcels to
Tenant shall be subject to Tenant's satisfaction of each of the
following conditions:
a) Landlord and Tenant shall have agreed upon, entered into and
recorded such reciprocal easements relating to the Land and the Parcel
to be so sold as they shall deem necessary or reasonably required to
preserve usefulness of the Parcels and the remaining Land after the
conveyance;
b) Tenant shall have paid to Landlord the Release Price for such
Parcels; and
c) Tenant shall have reimbursed Landlord for, and Landlord shall
have received, any new appraisal that Landlord believes it should obtain
in connection with the sale to satisfy regulatory requirements
applicable to Landlord, Landlord's Parent or other Participants.
d) In addition to the Release Price, Tenant shall have paid all
costs and expenses necessary to consummate the sale, including all legal
fees of Landlord.
Upon Tenant's satisfaction of each of the foregoing conditions, Landlord
shall convey such Parcel or Parcels to Tenant pursuant to a quitclaim
transfer of all of Landlord's right, title and interest therein on as
"as is, where is, with all faults" basis free and clear of Prohibited
Encumbrances, but otherwise without recourse, representation or warranty
of any kind.
As used in this subparagraph 9.(b), the "Release Price" with respect to
any Parcel or Parcels means the higher of (1) $61,500,000 times a
fraction, the numerator of which is the square footage of such Parcel or
Parcels, and the denominator of which is the total square footage of all
Land described in Exhibit A, and (2) the sales price that Landlord must
receive for the Parcel or Parcels if, following the Landlord's sale of
thereof and application of the net sales proceeds paid to Landlord as a
Qualified Payment, the remaining Leased Property is to have a Remaining
Value (as defined below) of no less than forty-five percent (45%) of
Stipulated Loss Value.
As used in this subparagraph 9.(b), "Remaining Value" means the market
value of the Leased Property that Landlord will retain, taking into
account any loss of visibility, accessibility or development potential
that may result from Landlord's compliance with this subparagraph.
Remaining Value will be determined by Chris Carneghi, MAI Certified
General Real Estate Appraiser, State of California No. AG001685, if he
is then willing and available to make such a determination promptly for
Landlord and Tenant; otherwise, Remaining Value will be determined in
accordance with the following procedure, unless Landlord and Tenant upon
a different procedure or method of determination in a particular case:
(A) Landlord and Tenant shall each, within seven (7) days after
written notice from either to the other, select an appraiser. If either
Landlord or Tenant fails to select an appraiser within the required
period, then the appraiser who has been timely selected shall
conclusively determine the Remaining Value in accordance with this
clause subparagraph within thirty (30) days after his or her selection.
(B) Upon the selection of the two appraisers as provided above, such
appraisers shall proceed to determine the Remaining Value of the Leased
Property that Landlord will retain after any sale required by this
subparagraph. Such appraisals shall be submitted in writing no later
than thirty (30) days after selection of the second appraiser. If the
Remaining Value as determined by such appraisers is identical, such sum
they determine shall be the Remaining Value. In the event the lower
appraisal is not lower than five percent (5%) below the higher
appraisal, then Remaining Value shall be the sum of the two appraisal
figures divided by two (2). If either appraiser fails to timely submit
his or her appraisal, the timely submitted appraisal shall be
determinative of Remaining Value.
(C) In the event the lower appraisal is lower than five percent (5%)
below the higher appraisal figure, then the two appraisers previously
selected shall select a third appraiser. The name of such appraiser
shall be submitted at the same time the written appraisals are due.
Such third appraiser shall then review the previously submitted
appraisals and select the one that, in his professional opinion, more
closely reflects the market value of the Leased Property that Landlord
will retain, such selection to be submitted in writing no later than
seven (7) days after selection of the third appraiser. Such selection
shall be determinative of Remaining Value.
(D) In making any such determination of Remaining Value, the
appraisers shall assume that neither this Lease nor the Purchase
Agreement add any value to the Leased Property. Each appraiser selected
hereunder shall be an independent MAI-designated appraiser with not less
than ten (10) years' experience in commercial real estate appraisal in
Santa Clara County, California and surrounding areas.
Any Losses (including appraisal fees) incurred by Landlord because of
any action taken pursuant to this subparagraph 9.(b) shall be covered by
the indemnification set forth in subparagraph 8.(y). Further, for
purposes of such indemnification, any action taken by Landlord will be
deemed to have been made at the request of Tenant if made pursuant to
any request of Tenant's counsel or of any officer of Tenant (or with
their knowledge, and without their objection) in connection with the
closing under the Existing Contract or the closing of any sale of a
Parcel by Landlord pursuant to the foregoing provisions.
(c) No Default or Violation. The execution, delivery and
performance of this Lease do not contravene, result in a breach of or
constitute a default under any material contract or agreement to which
Landlord is a party or by which Landlord is bound and do not, to the
knowledge of Landlord, violate or contravene any law, order, decree,
rule or regulation to which Landlord is subject.
(d) No Suits. To Landlord's knowledge there are no judicial or
administrative actions, suits or proceedings involving the validity,
enforceability or priority of this Lease, and to Landlord's knowledge no
such suits or proceedings are threatened.
(e) Organization. Landlord is duly incorporated and legally
existing under the laws of Delaware and is duly qualified to do business
in the State of California. Landlord has or will obtain, at Tenant's
expense pursuant to the other provisions of this Lease, all requisite
power and all material governmental certificates of authority, licenses,
permits, qualifications and other documentation necessary to own and
lease the Leased Property and to perform its obligations under this
Lease.
(f) Enforceability. The execution, delivery and performance of this
Lease and the Purchase Documents by Landlord are duly authorized, are
not in contravention of or conflict with any term or provision of
Landlord's articles of incorporation or bylaws and do not, to Landlord's
knowledge, require the consent or approval of any governmental body or
other regulatory authority that has not heretofore been obtained or
conflict with any Applicable Laws. This Lease and the Purchase
Documents are valid, binding and legally enforceable obligations of
Landlord except as such enforcement is affected by bankruptcy,
insolvency and similar laws affecting the rights of creditors,
generally, and equitable principles of general application; provided,
Landlord makes no representation or warranty that conditions imposed by
any state or local Applicable Laws to the purchase, ownership, lease or
operation of the Leased Property have been satisfied.
(g) Existence. Landlord will continuously maintain its existence
and right to do business in the State of California to the extent
necessary for the performance of Landlord's obligations hereunder.
(h) Not a Foreign Person. Landlord is not a "foreign person" within
the meaning of the Sections 1445 and 7701 of the Code (i.e., Landlord is
not a non-resident alien, foreign corporation, foreign partnership,
foreign trust or foreign estate as those terms are defined in the Code
and regulations promulgated thereunder).
(i) Estoppel Certificates. From time to time, if requested by Tenant,
Landlord shall provide to Tenant a statement in writing certifying that
this Lease is unmodified and in full effect (or, if there have been
modifications, that this Lease is in full effect as modified, and
setting forth such modifications) and the dates to which the Base Rent
has been paid and either stating that to the knowledge of Landlord no
Default or Event of Default under this Lease has occurred and is
continuing or, if a Default or Event of Default under this Lease has
occurred and is continuing, a brief statement as to the nature thereof;
it being intended that any such statement by Landlord may be relied upon
by any permitted sublessee or assign of Tenant or by any with whom
Tenant may desire to merge as provided in subparagraph 8.(dd)(v).
(j) Compliance With the Pedro's Ground Lease and the Documents Executed
by Landlord at the Closing Under the Existing Contract. Landlord shall
not itself knowingly violate any material provision of the Pedro's
Ground Lease or of any document executed by Landlord in favor of the
Seller at the closing under the Existing Contract.
10. Assignment and Subletting.
(a) Consent Required. During the term of this Lease, without the
prior written consent of Landlord first had and received, Tenant shall
not assign, transfer, mortgage, pledge or hypothecate this Lease or any
interest of Tenant hereunder and shall not sublet all or any part of the
Leased Property, by operation of law or otherwise; provided, that, so
long as no Event of Default has occurred and is continuing, Tenant shall
be entitled without the consent of Landlord to sublet all or any portion
of the space in any then completed Improvements if:
(i) any sublease by Tenant is made expressly subject and subordinate
to the terms hereof;
(ii) no sublease has a term longer than the remainder of the then
effective term of this Lease;
(iii) the use permitted by such sublease is expressly limited to
general office use or restaurant use or other uses approved in advance
by Landlord as uses that will not present extraordinary risks of
uninsured environmental or other liability; and
(iv) no more than forty-five percent of the space in any completed
Improvements shall be subleased without Landlord's prior consent to any
Person (or group of Persons) that is neither (A) an Affiliate of Tenant
nor (B) the operator of a business in the subleased space that is
related to the operation of Tenant's own business (such as another
venturer in a joint venture with Tenant).
(b) Standard for Landlord's Consent to Assignments and Certain Other
Matters. Consents and approvals of Landlord which are required by this
Paragraph 10 will not be unreasonably withheld, but Tenant acknowledges
that Landlord's withholding of such consent or approval shall be
reasonable if Landlord determines in good faith that (1) giving the
approval may materially increase Landlord's risk of liability for any
existing or future environmental problem, (2) giving the approval is
likely to substantially increase Landlord's administrative burden of
complying with or monitoring Tenant's compliance with the requirements
of this Lease, or (3) any transaction for which Tenant has requested the
consent or approval would negate Tenant's representations in this Lease
regarding ERISA or cause this Lease or the other documents referenced
herein to constitute a violation of any provision of ERISA.
(c) Consent Not a Waiver. No consent by Landlord to a sale,
assignment, transfer, mortgage, pledge or hypothecation of this Lease or
Tenant's interest hereunder, and no assignment or subletting of the
Leased Property or any part thereof in accordance with this Lease or
otherwise with Landlord's consent, shall release Tenant from liability
hereunder; and any such consent shall apply only to the specific
transaction thereby authorized and shall not relieve Tenant from any
requirement of obtaining the prior written consent of Landlord to any
further sale, assignment, transfer, mortgage, pledge or hypothecation of
this Lease or any interest of Tenant hereunder.
(d) Landlord's Assignment. Landlord shall have the right to
transfer, assign and convey, in whole or in part, the Leased Property
and any and all of its rights under this Lease by any conveyance that
constitutes a Permitted Transfer. (However, any Permitted Transfer
shall be subject to all of the provisions of each and every agreement
concerning the Leased Property then existing between Landlord and
Tenant, including without limitation this Lease and the Purchase
Documents.) If Landlord sells or otherwise transfers the Leased
Property and assigns its rights under this Lease and the Purchase
Documents pursuant to a Permitted Transfer, then to the extent
Landlord's successor in interest confirms its liability for the
obligations imposed upon Landlord by this Lease and the Purchase
Documents on and subject to the express terms and conditions set out
herein and therein, the original Landlord shall thereby be released from
any obligations thereafter arising under this Lease and the Purchase
Documents, and Tenant will look solely to each successor in interest of
Landlord for performance of such obligations.
11. Environmental Indemnification.
(a) Indemnity. Tenant hereby agrees to assume liability for and to
pay, indemnify, defend, and hold harmless each and every Indemnified
Party from and against any and all Environmental Losses, subject only to
the provisions of subparagraph 11.(c) below.
(b) Assumption of Defense.
(i) If an Indemnified Party notifies Tenant of any claim,
demand, action, administrative or legal proceeding, investigation or
allegation as to which the indemnity provided for in this Paragraph 11
applies, Tenant shall assume on behalf of the Indemnified Party and
conduct with due diligence and in good faith the investigation and
defense thereof and the response thereto with counsel selected by Tenant
but reasonably satisfactory to the Indemnified Party; provided, that the
Indemnified Party shall have the right to be represented by advisory
counsel of its own selection and at its own expense; and provided
further, that if any such claim, demand, action, proceeding,
investigation or allegation involves both Tenant and the Indemnified
Party and the Indemnified Party shall have been advised in writing by
counsel that there may be legal defenses available to it which are
inconsistent with those available to Tenant, then the Indemnified Party
shall have the right to select separate counsel to participate in the
investigation and defense of and response to such claim, demand, action,
proceeding, investigation or allegation on its own behalf, and Tenant
shall pay or reimburse the Indemnified Party for all Attorney's Fees
incurred by the Indemnified Party because of the selection of such
separate counsel.
(ii) If any claim, demand, action, proceeding, investigation or
allegation arises as to which the indemnity provided for in this
Paragraph 11 applies, and Tenant fails to assume promptly (and in any
event within fifteen (15) days after being notified of the claim,
demand, action, proceeding, investigation or allegation) the defense of
the Indemnified Party, then the Indemnified Party may contest (or
settle, with the prior written consent of Tenant, which consent will not
be unreasonably withheld) the claim, demand, action, proceeding,
investigation or allegation at Tenant's expense using counsel selected
by the Indemnified Party; provided, that if any such failure by Tenant
continues for thirty (30) days or more after Tenant is notified thereof,
no such contest need be made by the Indemnified Party and settlement or
full payment of any claim may be made by the Indemnified Party without
Tenant's consent and without releasing Tenant from any obligations to
the Indemnified Party under this Paragraph 11 so long as, in the written
opinion of reputable counsel to the Indemnified Party, the settlement or
payment in full is clearly advisable.
(c) Notice of Environmental Losses. If an Indemnified Party
receives a written notice of Environmental Losses that such Indemnified
Party believes are covered by this Paragraph 11, then such Indemnified
Party will be expected to promptly furnish a copy of such notice to
Tenant. The failure to so provide a copy of the notice to Tenant shall
not excuse Tenant from its obligations under this Paragraph 11;
provided, that if Tenant is unaware of the matters described in the
notice and such failure renders unavailable defenses that Tenant might
otherwise assert, or precludes actions that Tenant might otherwise take,
to minimize its obligations hereunder, then Tenant shall be excused from
its obligation to indemnify such Indemnified Party (and any Affiliate of
such Indemnified Party) against Environmental Losses, if any, which
would not have been incurred but for such failure. For example, if
Landlord fails to provide Tenant with a copy of a notice of an
obligation covered by the indemnity set out in subparagraph 11.(a) and
Tenant is not otherwise already aware of such obligation, and if as a
result of such failure Landlord becomes liable for penalties and
interest covered by the indemnity in excess of the penalties and
interest that would have accrued if Tenant had been promptly provided
with a copy of the notice, then Tenant will be excused from any
obligation to Landlord (or any Affiliate of Landlord) to pay the excess.
(d) Rights Cumulative. The rights of each Indemnified Party under
this Paragraph 11 shall be in addition to any other rights and remedies
of such Indemnified Party against Tenant under the other provisions of
this Lease or under any other document or instrument now or hereafter
executed by Tenant, or at law or in equity (including, without
limitation, any right of reimbursement or contribution pursuant to
CERCLA).
(e) Survival of the Indemnity. Tenant's obligations under this
Paragraph 11 shall survive the termination or expiration of this Lease.
All obligations of Tenant under this Paragraph 11 shall be payable upon
demand, and any amount due upon demand to any Indemnified Party by
Tenant which is not paid shall bear interest from the date of such
demand at a floating interest rate equal to the Default Rate, but in no
event in excess of the maximum rate permitted by law.
12. Landlord's Right of Access.
(a) Landlord and Landlord's representatives may enter the Leased
Property, after five (5) Business Days advance written notice to Tenant
(except in the event of an emergency, when no advance notice will be
required), for the purpose of making inspections or performing any work
Landlord is authorized to undertake by the next subparagraph. So long
as Tenant remains in possession of the Leased Property, Landlord or
Landlord's representative will, before making any such inspection or
performing any such work on the Leased Property, if then requested to do
so by Tenant to maintain Tenant's security: (i) sign in at Tenant's
security or information desk if Tenant has such a desk on the premises,
(ii) wear a visitor's badge or other reasonable identification provided
by Tenant when Landlord or Landlord's representative first arrives at
the Leased Property, (iii) permit an employee of Tenant to observe such
inspection or work, and (iv) comply with other similar reasonable
nondiscriminatory security requirements of Tenant that do not,
individually or in the aggregate, interfere with or delay inspections or
work of Landlord authorized by this Lease.
(b) If Tenant fails to perform any act or to take any action which
hereunder Tenant is required to perform or take, or to pay any money
which hereunder Tenant is required to pay, and if such failure or action
constitutes an Event of Default or causes Landlord or any director,
officer, employee or Affiliate of Landlord to be threatened with
criminal prosecution or renders Landlord's interest in the Leased
Property or any part thereof at risk of forfeiture by forced sale or
otherwise, then in addition to any other remedies specified herein or
otherwise available, Landlord may, in Tenant's name or in Landlord's own
name, perform or cause to be performed such act or take such action or
pay such money. Any expenses so incurred by Landlord, and any money so
paid by Landlord, shall be a demand obligation owing by Tenant to
Landlord. Further, Landlord, upon making such payment, shall be
subrogated to all of the rights of the person, corporation or body
politic receiving such payment. But nothing herein shall imply any duty
upon the part of Landlord to do any work which under any provision of
this Lease Tenant may be required to perform, and the performance
thereof by Landlord shall not constitute a waiver of Tenant's default.
Landlord may during the progress of any such work permitted by Landlord
hereunder on or in the Leased Property keep and store upon the Leased
Property all necessary materials, tools, and equipment. Landlord shall
not in any event be liable for inconvenience, annoyance, disturbance,
loss of business, or other damage to Tenant or the subtenants of Tenant
by reason of making such repairs or the performance of any such work on
or in the Leased Property, or on account of bringing materials, supplies
and equipment into or through the Leased Property during the course of
such work (except for liability in connection with death or injury or
damage to the property of third parties caused by [and attributed by any
applicable principles of comparative fault to] the Misconduct of
Landlord in connection therewith), and the obligations of Tenant under
this Lease shall not thereby be affected in any manner.
13. Events of Default.
(a) Definition of Event of Default. Each of the following events
shall be deemed to be an "Event of Default" by Tenant under this Lease:
(i) Tenant shall fail to pay when due any installment of Rent due
hereunder and such failure shall continue for three (3) Business Days
after Tenant is notified in writing of the delinquency thereof.
(ii) Tenant shall fail to cause any representation or warranty of Tenant
contained herein that is false or misleading in any material respect
when made to be made true and not misleading (other than as described in
the other clauses of this subparagraph 13.(a)), or Tenant shall fail to
comply with any term, provision or covenant of this Lease (other than as
described in the other clauses of this subparagraph 13.(a)), and in
either case shall not cure such failure prior to the earlier of (A)
thirty (30) days after written notice thereof is sent to Tenant or (B)
the date any writ or order is issued for the levy or sale of any
property owned by Landlord (including the Leased Property) or any
criminal action is threatened or instituted against Landlord or any of
its directors, officers or employees because of such failure; provided,
however, that so long as no such writ or order is issued and no such
criminal action is threatened or instituted, if such failure is
susceptible of cure but cannot with reasonable diligence be cured within
such thirty day period, and if Tenant shall promptly have commenced to
cure the same and shall thereafter prosecute the curing thereof with
reasonable diligence, the period within which such failure may be cured
shall be extended for such further period (not to exceed an additional
ninety (90) days) as shall be necessary for the curing thereof with
reasonable diligence.
(iii) Tenant shall fail to comply with any term, provision or condition
of the Purchase Documents and, if the Purchase Documents expressly
provide a time within which Tenant may cure such failure, Tenant shall
not cure the failure within such time.
(iv) Tenant shall abandon the Leased Property.
(v) Tenant shall fail to make any payment or payments of principal,
premium or interest, on any Debt of Tenant described in the next
sentence when due (taking into consideration the time Tenant may have to
cure such failure, if any, under the documents governing such Debt). As
used in this clause 13.(a)(v), "Debt" shall mean only a Debt of Tenant
now existing or arising in the future, (A) payable to Landlord or any
Participant or any Affiliate of Landlord or any Participant, the
outstanding balance of which has become due by reason of acceleration or
maturity, or (B) payable to any Person, with respect to which $5,000,000
or more is actually due and payable because of acceleration or
otherwise.
(vi) Tenant or any of its Subsidiaries shall generally not pay its debts
as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against Tenant
or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period
of thirty (30) consecutive days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its
property) shall occur; or Tenant or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in
this clause (vi).
(vii) Any order, judgment or decree is entered in any proceedings
against Tenant or any Subsidiary decreeing the dissolution of Tenant or
such Subsidiary and such order, judgment or decree remains unstayed and
in effect for more than sixty (60) days.
(viii) Any order, judgment or decree is entered in any proceedings
against Tenant or any Subsidiary decreeing a split-up of Tenant or such
Subsidiary which requires the divestiture of assets representing a
substantial part, or the divestiture of the stock of a Subsidiary whose
assets represent a substantial part, of the consolidated assets of
Tenant and its Subsidiaries (determined in accordance with GAAP) or
which requires the divestiture of assets, or stock of a Subsidiary,
which shall have contributed a substantial part of the consolidated net
income of Tenant and its Subsidiaries (determined in accordance with
GAAP) for any of the three fiscal years then most recently ended, and
such order, judgment or decree remains unstayed and in effect for more
than sixty (60) days.
(ix) A final judgment or order for the payment of money in an amount
(not covered by insurance) which exceeds $3,000,000 shall be rendered
against Tenant or any of its Subsidiaries and within sixty (60) days
after the entry thereof, such judgment or order is not discharged or
execution thereof stayed pending appeal, or within thirty (30) days
after the expiration of any such stay, such judgment is not discharged.
(x) Any ERISA Termination Event that Landlord determines might
constitute grounds for the termination of any Plan or for the
appointment by the appropriate United States district court of a trustee
to administer any Plan shall have occurred and be continuing thirty (30)
days after written notice to such effect shall have been given to Tenant
by Landlord, or any Plan shall be terminated, or a trustee shall be
appointed by an appropriate United States district court to administer
any Plan, or the Pension Benefit Guaranty Corporation shall institute
proceedings to terminate any Plan or to appoint a trustee to administer
any Plan.
(xi) A Change of Control Event not approved in advance by Landlord
shall occur.
Notwithstanding the foregoing, any Default that could become an Event of
Default under clause 13.(a)(ii) may be cured within the earlier of the
periods described in parts (A) and (B) of clause 13.(a)(ii) by Tenant's
delivery to Landlord of a written notice irrevocably exercising Tenant's
option under the Purchase Agreement to purchase Landlord's interest in
the Leased Property and designating as the Designated Sale Date any
Business Day which is at least fifteen (15) days after the date of such
notice and not later than thirty (30) days after the date of such
notice; provided, however, Tenant must, as a condition to the
effectiveness of its cure, on the date so designated as the Designated
Sale Date tender to Landlord the full purchase price required by the
Purchase Agreement and all Rent and all other amounts then due or
accrued and unpaid hereunder (including reimbursement for Breakage Costs
and other Losses incurred by Landlord in connection with the applicable
Default hereunder, regardless of whether Landlord shall have been
reimbursed for such costs in whole or in part by Participants) and
Tenant must also furnish written confirmation that all indemnities set
forth herein (including specifically, but without limitation, the
general indemnity set forth in subparagraph 8.(y) and the environmental
indemnity set forth in Paragraph 11 shall survive the payment of such
amounts by Tenant to Landlord and the conveyance of Landlord's interest
in the Leased Property to Tenant.
(b) Remedies. Upon the occurrence of an Event of Default which is
not cured within any applicable period expressly permitted by
subparagraph 13.(a), at Landlord's option and without limiting Landlord
in the exercise of any other right or remedy Landlord may have on
account of such default, and without any further demand or notice except
as expressly described in this subparagraph 13.(b):
(i) By notice to Tenant, Landlord may terminate Tenant's right to
possession of the Leased Property. A notice given in connection with
unlawful detainer proceedings specifying a time within which to cure a
default shall terminate Tenant's right to possession if Tenant fails to
cure the default within the time specified in the notice.
(ii) Upon termination of Tenant's right to possession and without
further demand or notice, Landlord may re-enter the Leased Property in
any manner not prohibited by Applicable Law and take possession of all
improvements, additions, alterations, equipment and fixtures thereon and
remove any persons in possession thereof. Any property in the Leased
Property may be removed and stored in a warehouse or elsewhere at the
expense and risk of and for the account of Tenant.
(iii) Upon termination of Tenant's right to possession, this Lease
shall terminate and Landlord may recover from Tenant:
a) The worth at the time of award of the unpaid Rent which had been
earned at the time of termination;
b) The worth at the time of award of the amount by which the unpaid
Rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided;
c) The worth at the time of award of the amount by which the unpaid
Rent for the balance of the scheduled Term after the time of award
exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided; and
d) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, including, but not limited to, the
costs and expenses (including Attorneys' Fees, advertising costs and
brokers' commissions) of recovering possession of the Leased Property,
removing persons or property therefrom, placing the Leased Property in
good order, condition, and repair, preparing and altering the Leased
Property for reletting, all other costs and expenses of reletting, and
any loss incurred by Landlord as a result of Tenant's failure to perform
Tenant's obligations under the Purchase Documents.
The "worth at the time of award" of the amounts referred to in
subparagraph 13.(b)(iii)a) and subparagraph 13.(b)(iii)b) shall be
computed by allowing interest at ten percent (10%) per annum or such
other rate as may be the maximum interest rate then permitted to be
charged under California law at the time of computation. The "worth at
the time of award" of the amount referred to in subparagraph
13.(b)(iii)c) shall be computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time
of award plus one percent (1%).
e) Such other amounts in addition to or in lieu of the foregoing as
may be permitted from time to time by applicable California law.
(iv) The Landlord shall have the remedy described in California
Civil Code Section 1951.4 (lessor may continue lease in force even after
lessee's breach and abandonment and recover rent as it becomes due, if
lessee has right to sublet or assign, subject only to reasonable
limitations). Accordingly, even though Tenant has breached this Lease
and abandoned the Leased Property, this Lease shall continue in effect
for so long as Landlord does not terminate Tenant's right to possession,
and Landlord may enforce all of Landlord's rights and remedies under
this Lease, including the right to recover the Rent as it becomes due
under this Lease. Tenant's right to possession shall not be deemed to
have been terminated by Landlord except pursuant to subparagraph
13.(b)(i) hereof. The following shall not constitute a termination of
Tenant's right to possession:
a) Acts of maintenance or preservation or efforts to relet the
Leased Property;
b) The appointment of a receiver upon the initiative of Landlord to
protect Landlord's interest under this Lease; or
c) Reasonable withholding of consent to an assignment or subletting,
or terminating a subletting or assignment by Tenant.
(c) Enforceability. This Paragraph 13 shall be enforceable to the
maximum extent not prohibited by Applicable Law, and the
unenforceability of any provision in this Paragraph shall not render any
other provision unenforceable.
(d) Remedies Cumulative. No right or remedy herein conferred upon
or reserved to Landlord is intended to be exclusive of any other right
or remedy, and each and every right and remedy shall be cumulative and
in addition to any other right or remedy given hereunder or now or
hereafter existing under Applicable Law or in equity. In addition to
other remedies provided in this Lease, Landlord shall be entitled, to
the extent permitted by Applicable Law, to injunctive relief in case of
the violation, or attempted or threatened violation, of any of the
covenants, agreements, conditions or provisions of this Lease to be
performed by Tenant, or to a decree compelling performance of any of the
other covenants, agreements, conditions or provisions of this Lease to
be performed by Tenant, or to any other remedy allowed to Landlord under
Applicable Law or in equity. Nothing contained in this Lease shall
limit or prejudice the right of Landlord to prove for and obtain in
proceedings for bankruptcy or insolvency of Tenant by reason of the
termination of this Lease, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the
amount be greater, equal to, or less than the amount of the loss or
damages referred to above. Without limiting the generality of the
foregoing, nothing contained herein shall modify, limit or impair any of
the rights and remedies of Landlord under the Purchase Documents or
Environmental Indemnity.
(e) Waiver by Tenant. To the extent permitted by law, Tenant hereby
waives and surrenders for itself and all claiming by, through and under
it, including creditors of all kinds, (i) any right and privilege which
it or any of them may have under any present or future constitution,
statute or rule of law to have a continuance of this Lease for the term
hereby demised after termination of Tenant's right of occupancy by order
or judgment of any court or by any legal process or writ, or under the
terms of this Lease, or after the termination of this Lease as herein
provided, and (ii) the benefits of any present or future constitution,
or statute or rule of law which exempts property from liability for debt
or for distress for rent, and (iii) the provisions of law relating to
notice and/or delay in levy of execution in case of eviction of a lessee
for nonpayment of rent.
(f) No Implied Waiver. The failure of Landlord to insist at any
time upon the strict performance of any covenant or agreement or to
exercise any option, right, power or remedy contained in this Lease
shall not be construed as a waiver or a relinquishment thereof for the
future. The waiver of or redress for any violation by Tenant of any
term, covenant, agreement or condition contained in this Lease shall not
prevent a similar subsequent act from constituting a violation. Any
express waiver shall affect only the term or condition specified in such
waiver and only for the time and in the manner specifically stated
therein. A receipt by Landlord of any Base Rent or other payment
hereunder with knowledge of the breach of any covenant or agreement
contained in this Lease shall not be deemed a waiver of such breach, and
no waiver by Landlord of any provision of this Lease shall be deemed to
have been made unless expressed in writing and signed by Landlord.
14. Default by Landlord. If Landlord should default in the
performance of any of its obligations under this Lease, Landlord shall
have the time reasonably required, but in no event less than thirty (30)
days, to cure such default after receipt of written notice from Tenant
specifying such default and specifying what action Tenant believes is
necessary to cure the default. If Tenant prevails in any litigation
brought against Landlord because of Landlord's failure to cure a default
within the time required by the preceding sentence, then Tenant shall be
entitled to an award against Landlord for the damages proximately caused
to Tenant by such default.
15. Quiet Enjoyment. Provided no Event of Default has occurred and
is continuing, Landlord shall not during the Term disturb Tenant's
peaceable and quiet enjoyment of the Leased Property; however, such
enjoyment shall be subject to the terms, provisions, covenants,
agreements and conditions of this Lease and to the Permitted
Encumbrances and any other claims or encumbrances not constituting
Prohibited Encumbrances. Any breach by Landlord of the foregoing
covenant of quiet enjoyment shall, subject to the other provisions of
this Lease, render Landlord liable to Tenant for any monetary damages
proximately caused thereby, but as more specifically provided in
Paragraph 5 above, no such breach shall entitle Tenant to terminate this
Lease or excuse Tenant from its obligation to pay Base Rent and other
amounts hereunder.
16. Surrender Upon Termination. Unless Tenant or an Applicable
Purchaser purchases Landlord's entire interest in the Leased Property
pursuant to the terms of the Purchase Agreement, Tenant shall, upon the
termination of Tenant's right to occupancy, surrender to Landlord the
Leased Property, including any buildings, alterations, improvements,
replacements or additions constructed by Tenant, with any fixtures and
furnishings included in the Leased Property, but not including movable
furniture and other personal property not covered by this Lease, free of
all Hazardous Substances (including Permitted Hazardous Substances) and
tenancies and, to the extent required by Landlord, with all Improvements
in the same condition as of the date hereof, excepting only (i) ordinary
wear and tear (provided that the Leased Property shall have been
maintained as required by the other provisions hereof) and (ii)
alterations and additions which are expressly permitted by the terms of
this Lease and which have been completed by Tenant in a good and
workmanlike manner in accordance with all Applicable Laws. Any movable
furniture or movable personal property belonging to Tenant or any party
claiming under Tenant, if not removed at the time of such termination
and if Landlord shall so elect, shall be deemed abandoned and become the
property of Landlord without any payment or offset therefor. If
Landlord shall not so elect, Landlord may remove such property from the
Leased Property and store it at Tenant's risk and expense. Tenant shall
bear the expense of repairing any damage to the Leased Property caused
by such removal by Landlord or Tenant.
17. Holding Over by Tenant. Should Tenant not purchase Landlord's
right, title and interest in the Leased Property as provided in the
Purchase Agreement, but nonetheless continue to hold the Leased Property
after the termination of this Lease without Landlord's written consent,
whether such termination occurs by lapse of time or otherwise, such
holding over shall constitute and be construed as a tenancy from day to
day only, at a daily Base Rent equal to: (i) the unpaid Purchase Price
on the day in question, times (ii) the Holdover Rate (as defined below)
for such day, divided by (iii) 360; subject, however, to all of the
terms, provisions, covenants and agreements on the part of Tenant
hereunder. No payments of money by Tenant to Landlord after the
termination of this Lease shall reinstate, continue or extend the Term
of this Lease and no extension of this Lease after the termination
thereof shall be valid unless and until the same shall be reduced to
writing and signed by both Landlord and Tenant; provided, however,
following any breach by Landlord of its obligations to tender a deed and
other documents on the Designated Sale Date as provided in the Purchase
Agreement, Tenant may at its option continue its possession and use of
the Leased Property pursuant to this Lease, as if the Term had been
extended, for a period not to exceed 180 days after the Designated Sale
Date or such longer time as may be proscribed by Applicable Law.
As used herein, the "Holdover Rate" means:
(1) for any day prior to the date on which Landlord tenders a deed and
other documents as required by the Purchase Agreement (or is excused
from its obligation to tender by Tenant's breach or anticipatory
repudiation of the Purchase Agreement), a rate equal to the Fed Funds
Rate on that day plus one hundred basis points (1%);
(2) for any day on which or within ninety (90) days after Landlord
tenders a deed and other documents as required by the Purchase Agreement
(or is excused from its obligation to tender by Tenant's breach or
anticipatory repudiation of the Purchase Agreement), the per annum Prime
Rate in effect for such day; and
(3) for any day after the ninety (90) days described in the preceding
clause, a rate which is three percent (3%) above the per annum Prime
Rate.
18. Miscellaneous.
(a) Notices. Each provision of this Lease, or of any Applicable
Laws with reference to the sending, mailing or delivery of any notice or
with reference to the making of any payment by Tenant to Landlord, shall
be deemed to be complied with when and if the following steps are taken:
(i) All Rent required to be paid by Tenant to Landlord hereunder shall
be paid to Landlord in immediately available funds by wire transfer to:
Federal Reserve Bank of San Francisco
Account: Banque Nationale de Paris
ABA #: 121027234
Reference: Informix (Freedom Circle Street Property)
or at such other place and in such other manner as Landlord may
designate in a notice to Tenant (provided Landlord will not unreasonably
designate a method of payment other than wire transfer). Time is of the
essence as to all payments and other obligations of Tenant under this
Lease.
(ii) All notices, demands and other communications to be made hereunder
to the parties hereto shall be in writing (at the addresses set forth
below, or in the case of communications to Participants, at the
addresses for notice established by the Participation Agreement) and
shall be given by any of the following means: (A) personal service, with
proof of delivery or attempted delivery retained; (B) electronic
communication, whether by telex, telegram or telecopying (if confirmed
in writing sent by United States first class mail, return receipt
requested); or (C) registered or certified first class mail, return
receipt requested. Such addresses may be changed by notice to the other
parties given in the same manner as provided above. Any notice or other
communication sent pursuant to clause (A) or (C) hereof shall be deemed
received (whether or not actually received) upon first attempted
delivery at the proper notice address on any Business Day between 9:00
A.M. and 5:00 P.M., and any notice or other communication sent pursuant
to clause (B) hereof shall be deemed received upon dispatch by
electronic means.
Address of Landlord:
BNP Leasing Corporation
717 North Harwood Street
Suite 2630
Dallas, Texas 75201
Attention: Lloyd Cox
Telecopy: (214) 969-0060
With a copy to:
Banque Nationale de Paris, San Francisco
180 Montgomery Street
San Francisco, California 94104
Attention: Jennifer Cho or Rafael Lumanlan
Telecopy: (415) 296-8954
And with a copy to:
Clint Shouse
Thompson & Knight, P.C.
1700 Pacific Avenue
Suite 3300
Dallas, Texas 75201
Telecopy: (214) 969-1550
Address of Tenant:
INFORMIX CORPORATION
4100 Bohannon Drive
Menlo Park , California 94025
Attn: Treasurer
Telecopy: (415) 926-6564
With a copy to:
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill
Palo Alto, California 94304-1050
Attention: Real Estate Department/BOB
Telecopy: (415) 493-6811
(b) Severability. If any term or provision of this Lease or the
application thereof shall to any extent be held by a court of competent
jurisdiction to be invalid and unenforceable, the remainder of this
Lease, or the application of such term or provision other than to the
extent to which it is invalid or unenforceable, shall not be affected
thereby.
(c) No Merger. There shall be no merger of this Lease or of the
leasehold estate hereby created with the fee estate in the Leased
Property or any part thereof by reason of the fact that the same person
may acquire or hold, directly or indirectly, this Lease or the leasehold
estate hereby created or any interest in this Lease or in such leasehold
estate as well as the fee estate in the Leased Property or any interest
in such fee estate, unless all Persons with an interest in the Leased
Property that would be adversely affected by any such merger
specifically agree in writing that such a merger shall occur.
(d) NO IMPLIED REPRESENTATIONS BY LANDLORD. LANDLORD AND LANDLORD'S
AGENTS HAVE MADE NO REPRESENTATIONS OR PROMISES WITH RESPECT TO THE
LEASED PROPERTY EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND NO RIGHTS,
EASEMENTS OR LICENSES ARE ACQUIRED BY TENANT BY IMPLICATION OR OTHERWISE
EXCEPT AS EXPRESSLY SET FORTH IN THE PROVISIONS OF THIS LEASE AND THE
PURCHASE DOCUMENTS.
(e) Entire Agreement. This Lease and the instruments referred to
herein supersede any prior negotiations and agreements between the
parties concerning the Leased Property and no amendment or modification
of this Lease shall be binding or valid unless expressed in a writing
executed by both parties hereto.
(f) Binding Effect. All of the covenants, agreements, terms and
conditions to be observed and performed by the parties hereto shall be
applicable to and binding upon their respective successors and, to the
extent assignment is permitted hereunder, their respective assigns.
(g) Time is of the Essence. Time is of the essence as to all
obligations of Tenant and all notices required of Tenant under this
Lease, but this paragraph shall not limit Tenant's opportunity to
prevent an Event of Default by curing any breach within the cure period
(if any) applicable under subparagraph 13.(a).
(h) Termination of Prior Rights. Without limiting the rights and
obligations of Tenant under this Lease, Tenant acknowledges that any and
all rights or interest of Tenant in and to the Land, the improvements to
the Land and to any other property included in the Leased Property
(except under this Lease and the Purchase Agreement) are hereby
superseded. Tenant quitclaims unto Landlord any rights or interests
Tenant has in or to the Land, the improvements to the Land and to any
other property included in the Leased Property other than the rights and
interests created by this Lease and the Purchase Agreement.
(i) Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of California, without regard to
conflict of laws principals.
(j) Waiver of a Jury Trial. LANDLORD AND TENANT EACH HEREBY WAIVES
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS LEASE OR ANY OTHER DOCUMENT OR
DEALINGS BETWEEN THEM RELATING TO THIS LEASE OR THE LEASED PROPERTY.
The scope of this waiver is intended to be all-encompassing of any and
all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including, without limitation,
contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims. Tenant and Landlord each acknowledge
that this waiver is a material inducement to enter into a business
relationship, that each has already relied on the waiver in entering
into this Lease and the other documents referred to herein, and that
each will continue to rely on the waiver in their related future
dealings. Tenant and Landlord each further warrants and represents that
it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS LEASE OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THIS LEASE OR THE LEASED PROPERTY. In the event of
litigation, this Lease may be filed as a written consent to a trial by
the court.
(k) Not a Partnership, Etc. NOTHING IN THIS LEASE IS INTENDED TO
BE OR TO CREATE ANY PARTNERSHIP, JOINT VENTURE, OR OTHER JOINT
ENTERPRISE BETWEEN LANDLORD AND TENANT. NEITHER THE EXECUTION OF THIS
LEASE NOR THE ADMINISTRATION OF THIS LEASE OR OTHER DOCUMENTS REFERENCED
HEREIN BY LANDLORD, NOR ANY OTHER RIGHT, DUTY OR OBLIGATION OF LANDLORD
UNDER OR PURSUANT TO THIS LEASE OR SUCH DOCUMENTS IS INTENDED TO BE OR
TO CREATE ANY FIDUCIARY OBLIGATIONS OF LANDLORD TO TENANT.
(l) Income Tax Reporting. Landlord and Tenant intend this Lease and
the Purchase Agreement to have a form for income taxes which is
different than the form of this Lease and the Purchase Agreement for
other purposes, and thus the parties acknowledge and agree as follows:
a) For purposes of determining their respective federal, state and
local income tax obligations, Landlord and Tenant believe and intend
that this Lease and the Purchase Agreement constitute a financing
arrangement or conditional sale. Both Landlord and Tenant agree to
report this Lease and the Purchase Agreement as a financing arrangement
or conditional sale on their respective income tax returns (the
"Required Reporting"), unless such Required Reporting is challenged in
writing by the Internal Revenue Service or another governmental
authority with jurisdiction (a "Tax Challenge"). Consistent with the
foregoing, Landlord and Tenant expect that Tenant (and not Landlord)
shall be treated as the true owner of the Property for income tax
purposes, thereby entitling Tenant (and not Landlord) to take
depreciation deductions and other tax benefits available to the owner.
Tenant shall also report all interest earned on Escrowed Proceeds or the
collateral covered by the Pledge Agreement as Tenant's income for
federal, state and local income tax purposes. REFERENCES IN THIS LEASE
OR IN THE PURCHASE AGREEMENT TO A "LEASE" OF THE "LEASED PROPERTY" ARE
NOT INTENDED FOR INCOME TAX PURPOSES TO REFLECT THE INTENT OF LANDLORD
OR TENANT AS TO THE FORM OF THE TRANSACTIONS COVERED BY, OR THE PROPER
CHARACTERIZATION OF, THIS LEASE AND THE PURCHASE AGREEMENT.
b) For all other purposes, including the determination of the
appropriate financial accounting for this Lease and the determination of
their respective rights and remedies under state law, Landlord and
Tenant believe and intend that (i) this Lease constitutes a true Lease,
not a mere financing arrangement, enforceable in accordance with its
express terms (and neither this subparagraph 18.(l) nor the provisions
referencing this subparagraph on the title page of this Lease nor the
corresponding provisions in the Purchase Agreement are intended to
affect the enforcement of any other provisions of this Lease or the
Purchase Agreement) and (ii) the Purchase Agreement shall constitute a
separate and independent contract, enforceable in accordance with the
express terms and conditions set forth therein. In this regard, Tenant
acknowledges that Tenant asked Landlord to participate in the
transactions evidenced by this Lease and the Purchase Agreement as a
landlord and owner of the Leased Property, not as a lender. Although
other transactions might have been used to accomplish similar results,
Tenant expects to receive certain material accounting and other
advantages through the use of a lease transaction. Accordingly, and
notwithstanding the Required Reporting for income tax purposes, Tenant
cannot equitably deny that this Lease and the Purchase Agreement should
be construed and enforced in accordance with their respective terms,
rather than as a mortgage or other security device, in any action
brought by Landlord to enforce this Lease or the Purchase Agreement.
In the event of a Tax Challenge, Landlord and Tenant shall each provide
to the other copies of all notices from the Internal Revenue Service or
any other governmental authority presenting the Tax Challenge. Further,
before changing from the Required Reporting because of a Tax Challenge,
Landlord and Tenant shall each consider in good faith any reasonable
suggestions received from the other party to this Lease about an
appropriate response to the Tax Challenge; provided, however, that the
suggestions are set forth in a written notice delivered no later than
thirty (30) Business Days after the suggesting party is first notified
of the Tax Challenge; and, provided further, that when presented with a
Tax Challenge, Landlord and Tenant shall each have the right to change
from the Required Reporting rather than participate in any litigation or
other legal proceeding against the Internal Revenue Service or another
governmental authority. In any event, Tenant must indemnify and hold
harmless Landlord from and against all liabilities, costs, additional
taxes and other expenses that may arise or become due because of any
challenge to the Required Reporting or because of any resulting
recharacterization of this Lease or the Purchase Agreement required by
the Internal Revenue Service or another governmental authority,
including any additional taxes that may become due upon any sale under
the Purchase Agreement, to the extent (if any) that such liabilities,
costs, additional taxes and other expenses are not offset by tax savings
resulting from additional depreciation deductions or other tax benefits
to Landlord of the recharacterization.
[The signature pages follow.]
IN WITNESS WHEREOF, this Lease Agreement is hereby executed in multiple
originals as of the effective date above set forth.
"Landlord"
BNP LEASING CORPORATION, a Delaware corporation
By: /s/ Lloyd G. Cox
Lloyd G. Cox, Vice President
[Continuation of signature pages to Lease Agreement dated to be
effective January 6, 1997]
"Tenant"
INFORMIX CORPORATION, a Delaware corporation
By: /s/ Margaret Brauns
Margaret Brauns, Vice President and Treasurer
Exhibit A
Legal Description
REAL PROPERTY in the City of Santa Clara, County of Santa Clara, State
of California, described as follows:
PARCEL ONE:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map
being a resubdivision of lands of Marriott Corporation, Successor by
Merger to Fespar Enterprises, Inc., and Marriott Hotels, Inc., and
Stephen & Mary Dorcich as shown on Record of Survey recorded on January
12, 1977 in Book 386 of Maps, at Page 54, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on December 29, 1977 in Book
410 of Maps, at Pages 29 and 30.
PARCEL TWO:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map
being all of Parcel 3, as shown on that certain `Parcel Map', recorded
in Book 410 of Maps, at Pages 29 and 30, Santa Clara County Records",
which Map was filed for Record in the Office of the Recorder of the
County of Santa Clara, State of California, on May 18, 1979 in Book 442
of Maps, at Page 8.
PARCEL THREE:
All of Parcel 6, as shown upon that certain Map entitled, "Parcel Map
being a Resubdivision of lands of Marriott Corporation, Successor by
Merger to Fespar Enterprises, Inc., and Marriott Hotels, Inc., and
Stephen & Mary Dorcich as shown on Record of Survey recorded on January
12, 1977 in Book 386 of Maps, at Page 54, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on December 29, 1977 in Book
410 of Maps, at Pages 29 and 30.
PARCEL FOUR:
All of Parcel 1, as shown upon that certain Map entitled, "Parcel Map
being all of Parcel 3, as shown on that certain `Parcel Map', recorded
in Book 410 of Maps, at Pages 29 and 30, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on May 18, 1979 in Book 442
of Maps, at Page 8.
Exhibit B
Permitted Encumbrances
This conveyance is subject to the following matters, but only to the
extent the same are still valid and in full force and effect:
1. General and Special Taxes and Assessments, if any, for the fiscal
year 1996-97
Assessment No.: 104-40-018
Code No.: 07-117
First Installment: $7,231.56 Paid
Includes Assessment of $3,253.81 (50P)
Second Installment: $7,231.56 Payable, but not yet due
Includes Assessment of $3,253.81 (50P)
Assessed Valuation Of Personal
Property: NONE
Homeowners Exemption: $None
Said matter affects: Parcel One
2. General and Special Taxes and Assessments, if any, for the fiscal
year 1996-97
Assessment No.: 104-40-021
Code No.: 07-117
First Installment: $11,391.08 Paid
Includes Assessment of $5,125.04 (50P)
Second Installment: $11,391.08 Payable, but not yet due
Includes Assessment of $5,125.04 (50P)
Assessed Valuation Of Personal
Property: NONE
Homeowners Exemption: $None
Said matter affects: Parcel Two
3. General and Special Taxes and Assessments, if any, for the fiscal
year 1996-97
Assessment No.: 104-40-023
Code No.: 07-117
First Installment: $14,673.16 Paid
Includes Assessment of $6,601.96 (50P)
Second Installment: $14,673.16 Payable, but not yet due
Includes Assessment of $6,601.96 (50P)
Assessed Valuation Of Personal
Property: NONE
Homeowners Exemption: $None
Said matter affects: Parcel Three
4. General and Special Taxes and Assessments, if any, for the fiscal
year 1996-97
Assessment No.: 104-40-020
Code No.: 07-117
First Installment: $17,531.64 Paid
Second Installment: $17,531.64 Payable, but not yet due
Assessed Valuation Of Personal
Property: NONE
Homeowners Exemption: $None
Said matter affects: Parcel Four
5. Diagram Assessment collected with County Taxes under Act of 1915
as follows:
Designation: Assessment No.: 437
Assessment Code: 50P
Assessment District: Bayshore North
Improvement District #163
Remaining Balance of Principal: $16,914.37
Remaining Balance of Interest: $2,401.14
The above amount of Principal and Interest to be collected with taxes
for the tax year.
Said matter affects: Parcel One
6. Diagram Assessment collected with County Taxes under Act of 1915
as follows:
Designation: Assessment No.: 508
Assessment Code: 50P
Assessment District: Bayshore North
Improvement District #163
Remaining Balance of Principal: $26,653.65
Remaining Balance of Interest: $3,783.70
The above amount of Principal and Interest to be collected with taxes
for the tax year.
Said matter affects: Parcel Two
7. Diagram Assessment collected with County Taxes under Act of 1915
as follows:
Designation: Assessment No.: 441
Assessment Code: 50P
Assessment District: Bayshore North
Improvement District #163
Remaining Balance of Principal: $34,340.61
Remaining Balance of Interest: $4,874.95
The above amount of Principal and Interest to be collected with taxes
for the tax year.
Said matter affects: Parcel Three
8. Diagram Assessment collected with County Taxes under Act of 1915
as follows:
Designation: Assessment No.: 507
Assessment Code: 50P
Assessment District: Bayshore North
Improvement District #163
Remaining Balance of Principal: $10,526.42
Remaining Balance of Interest: $1,494.32
The above amount of Principal and Interest to be collected with taxes
for the tax year.
Said matter affects: Parcel Four
9. The lien of Supplemental taxes, if any, assessed as a result of
transfer of interest and/or new construction, said supplemented taxes
being assessed pursuant to Chapter 3.5 commencing with Section 75 of
California Revenue and Taxation code, for which no Notice of Assessment
has been issued, as of the date hereof.
10. The fact that the ownership of said land does not include any
right of ingress or egress to or from the highway contiguous thereto,
said right having been relinquished by deed
From: Marriott Hotels, Inc., a Delaware Corporation
To: The City of Santa Clara, California, A Municipal Corporation
Recorded: May 28, 1974 in Book 0915 at Page 395 of Official Records of
Santa Clara County, California
Said matter affects: Parcels Two, Three and Four
11. An easement affecting the portion of said land and for the
purposes stated herein, and incidental purposes,
In Favor Of: City of Santa Clara, California, A Municipal Corporation
Recorded: June 11, 1975 in Book B457 at Page 125 Official Records
of Santa Clara County, California
(A) For: Wire Clearance Easement and Right-of-Way
Affects: The Easterly 5 feet of Parcels One and Two
(B) For: Right-of-Way and Maintenance Easement
Affects: A 5 foot strip of land immediately adjacent to the
easement described in (A) above.
(C) For: Installing, constructing, maintaining, repairing
and replacing underground anchors
Affects: As follows:
A strip of land 2 feet in width and 15 feet in length, the centerline of
said strip being a line bearing South 86 deg 06' 57" West from the
Northerly terminus of that course North 0 deg 02' 09" West 469.34 feet
in the boundary description of the thereinabove described Parcel 1, the
Easterly terminus being the Westerly line of thereinabove described
Parcel 3.
A strip of land 2 feet in width and 15 feet in length, the centerline of
said strip being a line bearing South 86 deg 21' 20" West from the
Northerly terminus of that course North 7 deg 43' 57" West 400.11 feet
in the boundary description of the thereinabove described Parcel 1, the
Easterly terminus being said Westerly line of thereinabove described
Parcel 3.
A strip of land 2 feet in width and 15 feet in length, the centerline of
said strip being a line bearing North 87 deg 41' 54" West from the
Northerly terminus of that course North 0 deg 26' 38" East 303.60 feet
in the boundary description of the thereinabove described Parcel 1, the
Easterly terminus being said Westerly line of thereinabove described
Parcel 3.
Said matter affects: Parcels One and Two
12. An easement affecting the portion of said land and for the
purposes stated herein, and incidental purposes,
In Favor Of: City of Santa Clara, California, A Municipal Corporation
For: Storm Drainage Easements
Recorded: July 14, 1977 in Book C992 at Page 1 Official Records of
Santa Clara County, California
Affects: As follows:
Beginning at a point on the Westerly line of the lands of the City of
Santa Clara, A Municipal Corporation, as said lands are described as
Parcel 1 in the Grant Deed, recorded on June 11, 1975 in Book B457
Official Records of Santa Clara County, at Page 125; said Point of
Beginning being distant on said Westerly line North 0 deg 02' 09" West
33.39 feet from the Northeast corner of Parcel 2 as described in last
said Grant Deed; thence from said Point of Beginning leaving last said
line South 79 deg 45' 07" West 168.22 feet to a point on the general
Northeasterly line of lands of the City of Santa Clara, A Municipal
Corporation, as described in the Grant Deed recorded on May 28, 1974 in
Book 0915 Official Records of Santa Clara, at Page 395; thence
Northwesterly along last said line North 70 deg 14' 53" West 865.00 feet
to a point thereon; thence leaving last said line North 19 deg 45' 07"
East 35.00 feet; thence Southeasterly along a line parallel with and
perpendicularly distant 35.00 feet Northeasterly from said general
Northeasterly line of lands of the City of Santa Clara South 70 deg 14'
53" East 855.62 feet to a point thereon; thence leaving said parallel
line North 79 deg 45' 07" East 165.14 feet to a point of the above
mentioned Westerly line of lands of the City of Santa Clara described in
Parcel 1; thence Southerly along last said line South 0 deg 02' 09" East
35.56 feet to the Point of Beginning.
Said matter affects: Parcels One, Two and Four
13. An easement affecting the portion of said land and for the
purposes stated herein, and incidental purposes,
In Favor Of: City of Santa Clara, California, A Municipal Corporation
For: Landscaping Purposes
Recorded: July 14, 1977 in Book C992 at Page 12 Official Records of
Santa Clara County, California
Affects: The Easterly 10 feet of Parcel Three; the Northerly and
Westerly 10 feet of Parcel One; the Westerly 10 feet of
Parcel Two; and the Northerly 10 feet of Parcel Four
14. An easement affecting the portion of said land and for the
purposes stated herein, and incidental purposes,
In Favor Of: City of Santa Clara, California, A Municipal Corporation
For: Underground Electrical Easements
Recorded: July 14, 1977 in Book C992 at Page 22 Official Records of
Santa Clara County, California
Affects: The Northerly and Westerly 10 feet of Parcel One; the
Northerly 10 feet of Parcel Four; the Westerly 10 feet of
Parcel Two; and the Easterly 10 feet of Parcel Three
15. An unrecorded Agreement, affecting said land, for the purposes,
stated herein, upon the terms, covenants and conditions referred to therein,
between the parties named herein
For: Real Estate Purchase Agreement
Dated: October 27, 1977
Executed By: Marriott Corporation, a Delaware corporation and Intel
Corporation, a California corporation
Said Agreement, among other things, has conditions for special
Architectural Standards as to all parcels and conditions for the Sign
Parcel and Easements described in said agreement affecting Parcel Four.
16. An easement affecting the portion of said land for the purposes
stated herein, and incidental purposes, shown or dedicated by the Map
recorded in Book 410 of Maps of Santa Clara County, California, at Pages
29 and 30:
For: Proposed Sign Easement
Affects: The Southeasterly portion of Parcel Four
The above easement was reserved for the benefit of Marriot Corporation,
a corporation by Deed recorded December 30, 1977, in Book D380, Page 36,
of Official Records of Santa Clara County, California.
17. An easement affecting the portion of said land and for the
purposes stated herein, and incidental purposes,
In Favor Of: City of Santa Clara, California, A Municipal Corporation
For: Street and Utility Purposes
Recorded: April 11, 1979 in Book E409 at Page 570 Official Records
of Santa Clara County, California
Affects: As follows:
All that certain Parcel of land lying within Parcel 6 of the Parcel Map
filed for Record December 29, 1977 in Book 410 of Maps, Pages 29 & 30,
in the Records of Santa Clara County, California, being more
particularly described as follows:
Beginning at the Northwest corner of said Parcel 6:
Thence North 89 deg. 44' 31" East, along the Northerly line of said
Parcel 6, a distance of 640.02 feet, to the Northeast corner of said
Parcel 6;
Thence, South 0 deg. 02' 19" West, along the Easterly line of said
Parcel 6, a distance of 35.86 feet to a non-tangent curve concave to the
Southwest having a radius of 35.00 feet and a beginning tangent bearing
North 30 deg. 57' 51" West;
Thence, Northwesterly along said curve, 19.01 feet, through a central
angle of 31 deg. 07' 02" to a non-tangent line parallel with and 23.00
feet Southerly of, measured at right angles to, said Northerly line of
said Parcel 6;
Thence, South 89 deg. 44' 31" West, along said parallel line a distance
of 620.80 feet, to the Westerly line of said Parcel 6;
Thence, North 17 deg. 37' 57" West along said Westerly line of Parcel 6,
a distance of 17.46 feet;
Thence, continuing along said Westerly line of Lot 6, North 0 deg. 02'
46" West, 6.34 feet, to the point of beginning.
Said matter affects: Parcel Three
18. An easement affecting the portion of said land for the purposes
stated herein, and incidental purposes, shown or dedicated by the Map
recorded in Book 442 of Maps of Santa Clara County, California, at Page
8
For: Underground Electrical Easement
Affects: The Westerly portion of Said Land
Said matter affects: Parcel Four
19. An easement affecting the portion of said land and for the
purposes stated herein, and incidental purposes,
In Favor Of: Marriott Corporation, a Delaware Corporation
For: Ingress and Egress to an existing sign
Recorded: May 18, 1979 in Book E506 at Page 74 Official Records
of Santa Clara County, California
Affects: As follows:
Commencing on the Southerly line of Freedom Circle at the Northerly
common corner of Parcels 3 and 4 as said circle and Parcels are shown
on that Parcel Map filed in Book 410 of Maps at Pages 29 and 30, Santa
Clara County Records; thence Northeasterly along the Southerly line of
Freedom Circle on a curve to the left with a radius of 336 feet through
a central angle of 0 deg 54' 9" an arc distance of 5.29 feet to the True
Point of Beginning of this description; thence from said True Point of
Beginning continuing along said curve to the left with a radius of 336
feet through a central angle of 3 deg 38' 21" an arc distance of 21.34
feet; thence South 15 deg 11' 58" West 134.19 feet; thence South 14 deg
48' 02" East 40.00 feet; thence South 15 deg 11' 58" West 233.34 feet;
thence South 70 deg 14' 53" East 207.87 feet to the Westerly line of a
50 foot by 40 foot sign easement as shown on the above mentioned parcel
map; thence along the Westerly line of said 50 foot by 40 foot sign
easement, South 19 deg 45' 07" West 20.00 feet to the Northerly line of
a 35 foot wide storm drainage easement as shown on the above mentioned
parcel map; thence along the Northerly line of said 35 foot wide storm
drainage easement North 70 deg 14' 53" West 226.21 feet; thence North 15
deg 11' 58" East 246.30 feet; thence North 14 deg 48' 02" West 40.00
feet; thence North 15 deg 11' 58" East 131.73 feet to the Point of
Beginning.
Said matter affects: Parcel Four
20. A Lease, affecting the premises herein stated, executed by and
between the parties named herein, for the term and upon the terms,
covenants and conditions therein provided,
Dated: July 17, 1978, amended on May 1, 1979 and on May
15, 1979
Lessor: John Arrillaga, Trustee, or his successor trustee,
under Trust Agreement dated July 20, 1977 (John
Arrillaga Separate Property Trust) as amended, and
Richard T. Peery, Trustee, or his successor trustee,
under Trust Agreement dated July 20, 1977 (Richard T.
Peery Separate Property Trust)
Lessee: Pedro's Food Systems, Incorporated, a California
Corporation and Peter S. Ramirez, Individually and
Peter O. Ramirez, Individually, Jointly and Severally
Term: Twenty-five (25) Years commencing on June 1, 1979
Disclosed by: Short Form of Lease
Recorded: May 18, 1979 in Book E506 At Page 82 Of Official
Records of Santa Clara County, California
Affects: Parcel Four
An Assignment of the Lessee's interest in said lease was
Executed By: Peter S. Ramirez, as individual (Ramirez), and Pedro's
Food Systems, Inc., a California Corporation
To: Brookside Development, Inc., a California Corporation
("BD"); and Michael R. Martinez, an individual
("Martinez"), Pedro's Management Systems, Inc., a
California Corporation
Recorded: August 11, 1987 in Book K256 at Page 1114 of Official
Records of Santa Clara County, California
An un-recorded assignment of the lessee's interest in said lease was
Executed By: Brookside Development, Inc., a California Corporation
and Michael R. Martinez and Pedro's Management Systems
Inc.
To: Pedro Management Systems, Inc.
Dated: November 17, 1987
An un-recorded assignment of the lessee's interest in said lease was
Executed By: Pedro Management Systems, Inc.
To: Golden State Restaurants, Inc.
Dated: February 18, 1992
Memorandum of Amendment and Assignment of Ground Lease
Dated: February 18, 1992
Executed By: John Arrillaga, Trustee or his Successor Trustee, under
Trust Agreement dated July 20, 1977 ("John Arrillaga
Separate Property Trust"), as amended and Richard T.
Peery, Trustee or his Successor Trustee, under Trust
Agreement dated July 20, 1977 ("Richard T. Peery
Separate Property Trust") and Golden State Restaurants,
Inc.
Recorded: February 20, 1992 in Book M054 at Page 0873 of Official
Records of Santa Clara County, California
No representation is made as to the present ownership of said leasehold
or matters affecting the rights or interests of the lessor or lessee
arising out of or occasioned by said lease.
21. Release Agreement and Covenant Not to Sue executed and
acknowledged by Informix Corporation, a Delaware corporation
("Informix"), Peery Private Investment Company - WP, L.P., a California
limited partnership, as to an undivided 1/4 interest, Peery Public
Investment Company - WP, L.P., a California limited partnership, as to
an undivided 1/4 interest, and John Arrillaga, Trustee, or Successor
Trustee under Trust Agreement dated July 20, 1977 (The Arrillaga Family
Trust) as amended, as to an undivided 2/4 interest (collectively, "P/A")
and BNP Leasing Corporation, a Delaware corporation ("BNP") to be filed
for record in the Official Records of Santa Clara County, California.
22. Agreement Containing Covenants Running with the Land executed
and acknowledged by Informix, P/A and BNP to be filed for record in the
Official Records of Santa Clara County, California.
Exhibit C
List of Environmental Reports
1. Phase I report titled "Final Preliminary Site Assessment" for
Parcel #104-40-018, Santa Clara, California, dated December 17, 1996,
prepared by Harza Consulting Engineers and Scientists.
2. Phase I report titled "Final Preliminary Site Assessment" for
Parcel #104-40-021, Santa Clara, California, dated November 17, 1996,
prepared by Harza Consulting Engineers and Scientists.
3. Phase I report titled "Final Preliminary Site Assessment" for
Parcel #104-40-023, Santa Clara, California, dated November 17, 1996,
prepared by Harza Consulting Engineers and Scientists.
4. Phase I report titled "Final Preliminary Site Assessment" for
3935 Freedom Circle Santa Clara, California, dated November 17, 1996,
prepared by Harza Consulting Engineers and Scientists.
Exhibit D
Financial Covenant Compliance Certificate
BNP Leasing Corporation
c/o Banque Nationale de Paris, San Francisco
180 Montgomery Street
San Francisco, California 94104
Attention: Jennifer Cho or Rafael Lumanlan
Re: Informix/BNP Lease Agreement (Freedom Circle Property)
Gentlemen:
I, the undersigned, the [chief financial officer, controller, treasurer
or the assistant treasurer] of INFORMIX CORPORATION, do hereby certify,
represent and warrant that:
1. This Certificate is furnished pursuant to subparagraph 8.(w)(iii)
of that certain Lease Agreement dated as of January 6, 1997 (the "Lease
Agreement," the terms defined therein being used herein as therein
defined) between INFORMIX CORPORATION (the "Tenant"), and you.
2. Annex 1 attached hereto sets forth financial data and
computations evidencing the Tenant's compliance with certain covenants
of the Lease Agreement, all of which data and computations are complete,
true and correct.
3. To the knowledge of Tenant no Default or Event of Default under
the Lease Agreement has occurred and is continuing.
4. The representations of Tenant set forth in the Lease Agreement
are true and correct in all material respects as of the date hereof as
though made on and as of the date hereof.
Executed this _____ day of ______________, 199__.
INFORMIX CORPORATION
Name:_________________________
Title:________________________
[cc all Participants]
Annex 1 To Compliance Certificate
For the _________________ Ended ________________, 199__
I. PARAGRAPH 8.(cc)(i): Quick Ratio
A. Unencumbered Cash and Cash Equivalents
and other "Quick Assets" as defined in
Paragraph 8.(cc)(i) of the Lease: $_____________
B. "Current Liabilities" as defined in
Paragraph 8.(cc)(i) of the Lease: $_____________
C. Ratio of A to B: _____ to 1.00
F. Minimum ratio computed as provided in
Paragraph 8.(cc)(i) of the Lease: 1.00 to 1.00
II. PARAGRAPH 8.(cc)(ii): Minimum Tangible Net Worth
A. Reported stockholders equity: $_____________
B. "Intangible Assets" as
defined in Paragraph 8.(cc)(ii)
of the Lease: $_____________
D. Consolidated Tangible Net Worth
(A - B): $_____________
E. Minimum computed as
provided in Paragraph 8.(cc)(ii)
of the Lease: $_____________