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Prepared by and upon recording return to: W. Kirk Grimm, Esq., McGuireWoods
LLP, 77 West Wacker Drive, Chicago, Illinois 60601 (312) 849-3697
MASTER LEASE
dated as of August 30, 2000
between
LEASE PLAN NORTH AMERICA, INC.,
as the Lessor
and
TRIQUINT SEMICONDUCTOR TEXAS, LP,
as the Lessee
RICHARDSON, TEXAS FACILITY
THIS LEASE IS SUPERIOR TO A DEED OF TRUST IN FAVOR OF ABN AMRO BANK N.V., AS
AGENT (THE "AGENT") UNDER THE PARTICIPATION AGREEMENT DATED AS OF AUGUST 30,
2000, AMONG THE LESSEE, THE CONSTRUCTION AGENT, THE LESSEE'S GENERAL PARTNER,
THE GUARANTOR, THE LESSOR, THE PARTICIPANTS AND THE AGENT FOR THE BENEFIT OF
THE PARTICIPANTS. THIS LEASE HAS BEEN EXECUTED IN COUNTERPARTS. TO THE
EXTENT, IF ANY, THAT THIS LEASE CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS
DEFINED IN THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE
JURISDICTION), NO LIEN ON THIS LEASE MAY BE CREATED THROUGH THE TRANSFER OF
POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART CONTAINING
THE RECEIPT THEREFOR EXECUTED BY THE AGENT ON THE SIGNATURE PAGE HEREOF.
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TABLE OF CONTENTS
PAGE
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ARTICLE I........................................................................................................1
1.1 Definitions; Interpretation........................................................................1
ARTICLE II.......................................................................................................2
2.1 Acceptance and Lease of Property...................................................................2
2.2 Acceptance Procedure...............................................................................2
2.3 Lease Term.........................................................................................3
2.4 Title..............................................................................................3
ARTICLE III......................................................................................................3
3.1 Rent...............................................................................................3
3.2 Payment of Basic Rent..............................................................................3
3.3 Supplemental Rent..................................................................................4
3.4 Method of Payment..................................................................................4
ARTICLE IV.......................................................................................................4
4.1 Utility Charges....................................................................................4
ARTICLE V........................................................................................................5
5.1 Quiet Enjoyment....................................................................................5
ARTICLE VI.......................................................................................................5
6.1 Net Lease..........................................................................................5
6.2 No Termination or Abatement........................................................................6
ARTICLE VII......................................................................................................6
7.1 Nature of Transaction; Intent of the Parties.......................................................6
7.2 UCC Information....................................................................................9
ARTICLE VIII....................................................................................................10
8.1 Condition of the Property.........................................................................10
8.2 Possession and Use of the Property................................................................11
ARTICLE IX......................................................................................................11
9.1 Compliance with Requirements of Law and Insurance Requirements....................................11
ARTICLE X.......................................................................................................11
10.1 Maintenance and Repair; Return....................................................................11
ARTICLE XI......................................................................................................12
11.1 Modifications, Substitutions and Replacements.....................................................12
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ARTICLE XII.....................................................................................................13
12.1 Warranty of Title.................................................................................13
12.2 Grants and Releases of Easements and Other Agreements.............................................14
ARTICLE XIII....................................................................................................15
13.1 Permitted Contests Other Than in Respect of Indemnities...........................................15
ARTICLE XIV.....................................................................................................16
14.1 General Liability and Workers' Compensation Insurance.............................................16
14.2 Hazard and Other Insurance........................................................................16
14.3 Coverage..........................................................................................17
ARTICLE XV......................................................................................................18
15.1 Casualty and Condemnation.........................................................................18
15.2 Environmental Matters.............................................................................20
15.3 Notice of Environmental Matters...................................................................20
ARTICLE XVI.....................................................................................................21
16.1 Termination by the Lessee upon Certain Events.....................................................21
16.2 Procedures........................................................................................21
16.3 Purchase of Property..............................................................................21
ARTICLE XVII....................................................................................................22
17.1 Lease Events of Default...........................................................................22
17.2 Lease Remedies....................................................................................25
17.3 Waiver of Certain Rights..........................................................................29
17.4 Power and Sale of Foreclosure.....................................................................29
17.5 Remedies Cumulative...............................................................................30
17.6 The Lessee's Right to Cure........................................................................30
ARTICLE XVIII...................................................................................................31
18.1 The Lessor's Right to Cure the Lessee's Lease Defaults............................................31
ARTICLE XIX.....................................................................................................31
19.1 Provisions Relating to the Lessee's Termination of this Lease or Exercise of Purchase Option or
Obligation and Conveyance Upon Remarketing and Conveyance Upon Certain Other Events...............31
ARTICLE XX......................................................................................................32
20.1 Purchase Option...................................................................................32
20.2 Expiration Date Purchase Obligation...............................................................33
20.3 Acceleration of Purchase Obligation...............................................................33
ARTICLE XXI.....................................................................................................33
21.1 Renewal...........................................................................................33
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ARTICLE XXII....................................................................................................34
22.1 Option to Remarket................................................................................34
22.2 Certain Obligations Continue......................................................................37
22.3 Support Obligations...............................................................................37
ARTICLE XXIII...................................................................................................38
23.1 Holding Over......................................................................................38
ARTICLE XXIV....................................................................................................38
24.1 Risk of Loss......................................................................................38
ARTICLE XXV.....................................................................................................39
25.1 Subletting and Assignment.........................................................................39
ARTICLE XXVI....................................................................................................40
26.1 Estoppel Certificates.............................................................................40
ARTICLE XXVII...................................................................................................40
27.1 Right to Inspect..................................................................................40
27.2 No Waiver.........................................................................................41
ARTICLE XXVIII..................................................................................................41
28.1 Acceptance of Surrender...........................................................................41
ARTICLE XXIX....................................................................................................41
29.1 No Merger of Title................................................................................41
ARTICLE XXX.....................................................................................................41
30.1 Notices...........................................................................................41
ARTICLE XXXI....................................................................................................42
31.1 Miscellaneous.....................................................................................42
31.2 Amendments and Modifications......................................................................43
31.3 Successors and Assigns............................................................................43
31.4 Headings and Table of Contents....................................................................43
31.5 Counterparts......................................................................................43
31.6 GOVERNING LAW.....................................................................................43
31.7 Limitations on Recourse...........................................................................43
31.8 Original Lease....................................................................................44
31.9 Landlord's Waiver.................................................................................44
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APPENDICES
APPENDIX I Definitions and Interpretation
EXHIBITS
EXHIBIT A Form of Lease Supplement
EXHIBIT B Form of Restated Lease Supplement
EXHIBIT C Equipment Schedule
EXHIBIT D Legal Description of Land
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MASTER LEASE
THIS MASTER LEASE (as amended, supplemented or otherwise modified
from time to time, this "LEASE"), dated as of August 30, 2000, is by and
between LEASE PLAN NORTH AMERICA, INC., an Illinois corporation, having its
principal office at 135 S. LaSalle Street Chicago, Illinois 60603, as the
lessor (together with its permitted successors and assigns, the "LESSOR") and
TRIQUINT SEMICONDUCTOR TEXAS, LP, a Texas limited partnership, having its
principal office at 13512 North Central Expressway, Dallas, Texas 75243, as
the lessee (the "LESSEE").
W I T N E S S E T H:
A. WHEREAS, the Lessor will purchase the Existing Facility on the
Land Interest Acquisition Date, and the Existing Facility will be leased to the
Lessee subject to the terms of this Lease;
B. WHEREAS, with respect to the Existing Facility, the Lessee, as
Construction Agent, will construct certain Tenant Improvements and, if the
Expansion Improvements Closing Date occurs, certain Expansion Improvements which
as constructed will be the property of the Lessor, will become part of the
Property and will be leased to the Lessee subject to the terms of this Lease;
C. WHEREAS, on commencement of the applicable Term, the Lessor
desires to lease to the Lessee and the Lessee desires to lease from the Lessor,
the Property pursuant to this Lease; and
D. WHEREAS, this Lease contains certain provisions that are
operative with respect to the Expansion Improvements prior to the commencement
of the Term for such Expansion Improvements, as more fully set forth herein,
provided that the operative effect of such terms shall not be construed as
granting to the Lessee, and the Lessee shall not have, any property rights in
respect of the Expansion Improvements prior to the commencement of the Term with
respect to the Expansion Improvements.
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
1.1 DEFINITIONS; INTERPRETATION. Capitalized terms used but not
otherwise defined in this Lease have the respective meanings specified in
APPENDIX 1 to this Lease; and the rules of interpretation set forth in
APPENDIX 1 to this Lease shall apply to this Lease.
ARTICLE II.
2.1. ACCEPTANCE AND LEASE OF PROPERTY. Effective as of the Closing
Date, the Lessor, subject to the satisfaction or waiver of the conditions set
forth in Sections 6.1 and 6.3 of the Participation Agreement, hereby agrees
to accept delivery of the Existing Facility to be delivered on the Land
Interest Acquisition Date pursuant to the terms of the Participation
Agreement, and to lease to the Lessee hereunder for the applicable Term (as
defined in SECTION 2.3), the Lessor's interest in such Existing Facility and
any Tenant Improvements and, subject to satisfaction or waiver of the
conditions set forth in Section 6.2 and 6.3 of the Participation Agreement,
effective as of the Expansion Improvements Closing Date, any Expansion
Improvements which thereafter may be constructed thereon and any Equipment,
if any, which may be purchased for use in connection therewith pursuant to
the Construction Agency Agreements, this Lease or the Participation
Agreement, and the Lessee hereby agrees, expressly for the direct benefit of
the Lessor, to lease commencing on the applicable Lease Commencement Date
from the Lessor for the related Term, the Lessor's interest in such Existing
Facility to be delivered on such Land Interest Acquisition Date and any
Tenant Improvements and Expansion Improvements which thereafter may be funded
pursuant to the Participation Agreement and constructed thereon and such
Equipment, pursuant to the Construction Agency Agreements, this Lease or the
Participation Agreement.
2.2. ACCEPTANCE PROCEDURE. The Lessor hereby authorizes one or more
employees of the Lessee, to be designated by the Lessee, as the authorized
representative or representatives of the Lessor to accept delivery on behalf
of the Lessor of the Property identified on the Acquisition Request or an
Equipment Schedule.
(a) The Lessee hereby agrees that such acceptance of delivery
by such authorized representative or representatives and the execution and
delivery by the Lessee on the Land Interest Acquisition Date of a Lease
Supplement in the form of EXHIBIT A hereto (appropriately completed) shall,
without further act, constitute the irrevocable acceptance by the Lessee of
the Existing Facility and any Tenant Improvements to be constructed thereon
which are the subject thereof for all purposes of this Lease and the other
Operative Documents on the terms set forth therein and herein.
(b) On the Expansion Improvements Closing Date, the parties
will enter into an Amended and Restated Lease Supplement in the form of
Exhibit B hereto (appropriately completed), which shall, without further act,
constitute the irrevocable acceptance by the Lessee of the Expansion
Improvements to be constructed thereon which are the subject thereof for all
purposes of this Lease and the other Operative Documents on the terms set
forth therein and herein. Lessee hereby agrees that the Expansion
Improvements (i) shall be deemed to be included in the leasehold estate of
this Lease as of the Expansion Improvements Closing Date, and (ii) shall be
subject to the terms and conditions of this Lease on the Expansion
Improvements Closing Date to the extent set forth in Section 2.7(f) of the
Expansion Improvements Construction Agency Agreement.
(c) The Lessee hereby agrees that such acceptance of delivery
by such authorized representative or representatives and the execution and
delivery by the Lessee of an Equipment Schedule in the form of EXHIBIT C
hereto (appropriately completed) on or prior to the
2
applicable Funding Date with respect to the acquisition of Equipment shall,
without further act, constitute the irrevocable acceptance of the Equipment
which is the subject thereof for all purposes of this Lease and the other
Operative Documents on the terms set forth therein and herein, and that the
Equipment shall be deemed to be included in the leasehold estate of this
Lease as of the applicable Funding Date and shall be subject to the terms and
conditions of this Lease as of such Funding Date.
2.3. LEASE TERM. The term of this Lease (the "TERM") shall begin
(1) with respect to the Existing Facility and the Tenant Improvements, on the
Lease Commencement Date applicable thereto; and (2) with respect to the
Expansion Improvements, on the Lease Commencement Date applicable thereto
and, in each case, shall end on the fifth anniversary of the Closing Date,
unless the Term is renewed or earlier terminated in accordance with the
provisions of this Lease. Prior to the Lease Commencement Date for the
Expansion Improvements only, the Expansion Improvements and the Property
shall be subject to the provisions of this Lease as they are acquired,
constructed or equipped, as the case may be, but as to the Expansion
Improvements, only to the extent set forth in Section 2.7(f) of the Expansion
Improvements Construction Agency Agreement; provided that the Lessee shall
have no property rights in respect of the Expansion Improvements prior to
such Lease Commencement Date.
2.4. TITLE. The Property is leased to the Lessee without any
representation or warranty of title, condition of the Improvements or
permitted uses, express or implied, by the Lessor and subject to the rights
of parties in possession, the existing state of title (including, without
limitation, the Permitted Exceptions) and all applicable Requirements of Law.
The Lessee shall in no event have any recourse against the Lessor for any
defect in or exception to title to the Property, other than for any such
defect or exception constituting a Lessor Lien.
ARTICLE III.
3.1. RENT.
(a) During the Term, the Lessee shall pay Basic Rent on each
Payment Date, on the date required under SECTION 22.1(i) in connection with
the Lessee's exercise of the Remarketing Option and, subject to the terms and
provisions of this Lease governing termination hereof, on any date on which
this Lease shall terminate.
(b) Neither the Lessee's inability or failure to take
possession of all or any portion of the Property when delivered by the
Lessor, nor the Lessor's inability or failure to deliver all or any portion
of the Property to the Lessee on or before the applicable Lease Commencement
Date, whether or not attributable to any act or omission of the Lessee or any
act or omission of the Lessor, or for any other reason whatsoever, shall
delay or otherwise affect the Lessee's obligation to pay Rent for the
Property from and after commencement of the Term.
3.2. PAYMENT OF BASIC RENT. Basic Rent shall be paid absolutely net
to the Lessor, so that this Lease shall yield to the Lessor the full amount
thereof, without setoff, deduction or reduction, whether or not the Lessee's
quiet possession of the Property is disturbed.
3
3.3. SUPPLEMENTAL RENT. The Lessee shall pay to the Lessor or the
Person entitled thereto any and all Supplemental Rent promptly as the same
shall become due and payable, and if the Lessee fails to pay any Supplemental
Rent and such failure constitutes a Lease Event of Default, the Lessor shall
have all rights, powers and remedies provided for in SECTIONS 17.2, 17.3,
17.4 and 17.5 or by law or equity or otherwise in the case of nonpayment of
Basic Rent. The Lessee shall pay to the Lessor, as Supplemental Rent, among
other things, on demand, to the extent permitted by Applicable Law, interest
at the applicable Overdue Rate on any installment of Basic Rent not paid when
due for the period for which the same shall be overdue and on any payment of
Supplemental Rent not paid when due or demanded by the Lessor for the period
from the due date or the date of any such demand, as the case may be, until
the same shall be paid. The expiration or other termination of the Lessee's
obligations to pay Basic Rent hereunder shall not limit or modify the
obligations of the Lessee with respect to Supplemental Rent. Unless expressly
provided otherwise in this Lease, in the event of any failure on the part of
the Lessee to pay and discharge any Supplemental Rent as and when due, the
Lessee shall also promptly pay and discharge any fine, penalty, interest or
cost which may be assessed or added under any agreement with a third party
for nonpayment or late payment of such Supplemental Rent, all of which shall
also constitute Supplemental Rent.
3.4. METHOD OF PAYMENT. Each payment of Rent shall be made by the
Lessee to the Lessor by 12:00 noon, Chicago time at the place of payment
designated by Agent in funds consisting of lawful currency of the United
States of America which shall be immediately available on the scheduled date
when such payment shall be due, unless such scheduled date shall not be a
Business Day, in which case such payment shall be made on the next succeeding
Business Day or as otherwise required by the definition of the term "Interest
Period" set forth in Appendix 1 hereto. Payments initiated after 12:00 noon,
Chicago time shall be deemed received on the next succeeding Business Day for
purposes of the second sentence of Section 3.3 hereof, but shall be deemed
received on the same day for purposes of Section 17.1 hereof.
ARTICLE IV.
4.1. UTILITY CHARGES. Subject to the Lessee's rights under the
terms of Article XIII relating to permitted contests, the Lessee shall pay or
cause to be paid all charges for electricity, power, gas, oil, water,
telephone, sanitary sewer service and all other rents and utilities used in
or on the Property during the Term. The Lessee shall be entitled to seek and
receive any credit or refund with respect to any utility charge paid by the
Lessee and the amount of any credit or refund received by the Lessor on
account of any utility charges paid by the Lessee, net of the costs and
expenses reasonably incurred by the Lessor in obtaining such credit or
refund, shall be promptly paid over to the Lessee. All charges for utilities
imposed with respect to the Property for a billing period during which this
Lease expires or terminates shall be adjusted and prorated on a daily basis
between the Lessor and the Lessee, and each party shall pay or reimburse the
other for each party's pro rata share thereof, except that if the Lessee
retains possession of the Property after termination or expiration of this
Lease, no such adjustment and proration shall be made.
4
ARTICLE V.
5.1. QUIET ENJOYMENT. Subject to the rights of the Lessor contained
in SECTION 17.2 and the other terms of this Lease and so long as no Lease
Event of Default shall have occurred and be continuing, the Lessee shall
peaceably and quietly have, hold and enjoy the Property for the Term, free of
any claim or other action by the Lessor or anyone rightfully claiming by,
through or under the Lessor (other than the Lessee or the Construction Agent)
with respect to any matters arising from and after (i) the Land Interest
Acquisition Date, in the case of the Existing Facility and the Tenant
Improvements, and (ii) the Expansion Improvements Closing Date, in the case
of the Expansion Improvements.
ARTICLE VI.
6.1. NET LEASE. This Lease shall constitute a net lease. It is the
further express intent of the Lessor and the Lessee that the obligations of
the Lessor and the Lessee hereunder shall be separate and independent
covenants and agreements and that the Basic Rent and Supplemental Rent, and
all other charges and sums payable by the Lessee hereunder, shall commence at
the times provided herein and shall continue to be payable in all events
unless the obligations to pay the same shall be terminated pursuant to an
express provision in this Lease. Any present or future law to the contrary
notwithstanding, this Lease shall not terminate, nor shall the Lessee be
entitled to any abatement, suspension, deferment, reduction, setoff,
counterclaim, or defense (other than the defense of payment) with respect to
the Rent, nor shall the obligations of the Lessee hereunder be affected
(except as expressly herein permitted and by performance of the obligations
in connection therewith) by reason of: (i) any defect in the condition,
merchantability, design, construction, quality or fitness for use of the
Property or any part thereof, or the failure of the Property to comply with
all Requirements of Law and Insurance Requirements, including any inability
to occupy or use the Property by reason of such non-compliance; (ii) any
damage to, removal, abandonment, salvage, loss, contamination of or Release
from, scrapping or destruction of, or any requisition or taking of the
Property or any part thereof; (iii) any restriction, prevention or
curtailment of or interference with any use of the Property or any part
thereof; (iv) any defect in title to or rights to the Property or any Lien on
such title or rights or on the Property (other than Lessor Liens); (v) any
change, waiver, extension, indulgence or other action or omission or breach
in respect of any obligation or liability of or by the Lessor, the Agent or
any Participant (other than the breach by the Lessor of its covenant of quiet
enjoyment set forth in SECTION 5.1); (vi) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other
like proceedings relating to the Lessee, the Guarantor, the Construction
Agent, the Lessor, the Agent, any Participant or any other Person, or any
action taken with respect to this Lease by any trustee or receiver of the
Lessee, the Guarantor, the Construction Agent, the Lessor, the Agent, any
Participant or any other Person, or by any court, in any such proceeding;
(vii) any claim that the Lessee has or might have against any Person,
including without limitation the Lessor, the Guarantor, the Construction
Agent, any vendor, manufacturer, contractor of or for the Property, the Agent
or any Participant (other than for the breach by the Lessor of its covenant
of quiet enjoyment set forth in SECTION 5.1); (viii) any failure on the part
of the Lessor to perform or comply with any of the terms of this Lease, any
other Operative Document or any other agreement (other than the breach by the
Lessor of its covenant of quiet enjoyment set forth in
5
SECTION 5.1); (ix) any invalidity or unenforceability or illegality or
disaffirmance of this Lease, against or by the Lessee or any provision hereof
or any of the other Operative Documents or any provision of any thereof; (x)
the impossibility or illegality of performance by the Lessee, the Lessor or
both; (xi) any action by any court, administrative agency or other
Governmental Authority; (xii) any restriction, prevention or curtailment of
or interference with the construction on or any use of the Property or any
part thereof; or (xiii) any other cause or circumstances whether similar or
dissimilar to the foregoing and whether or not the Lessee shall have notice
or knowledge of any of the foregoing (other than the breach by the Lessor of
its covenant of quiet enjoyment set forth in SECTION 5.1). The parties intend
that the obligations of the Lessee hereunder shall be covenants and
agreements that are separate and independent from any obligations of the
Lessor hereunder or under any other Operative Document and the obligations of
the Lessee shall continue unaffected unless such obligations shall have been
modified or terminated in accordance with an express provision of this Lease.
6.2. NO TERMINATION OR ABATEMENT. The Lessee and the Lessor shall
remain obligated under this Lease in accordance with its terms and shall not
take any action to terminate (except as provided herein), rescind or avoid
this Lease, notwithstanding any action for bankruptcy, insolvency,
reorganization, liquidation, dissolution, or other proceeding affecting the
Lessor, the Agent, any Participant or the Lessee or any action with respect
to this Lease or any Operative Document which may be taken by any trustee,
receiver or liquidator of the Lessor, the Agent, any Participant or the
Lessee or by any court with respect to the Lessor, the Agent or any
Participant. The Lessee hereby waives, to the extent permitted by Applicable
Law, all right (i) to terminate or surrender this Lease (except as provided
herein) or (ii) to avail itself of any abatement, suspension, deferment,
reduction, setoff, counterclaim or defense (other than the defense of
payment) with respect to any Rent. The Lessee and the Lessor shall remain
obligated under this Lease in accordance with its terms and each hereby
waives, to the extent permitted by Applicable Law, any and all rights now or
hereafter conferred by statute or otherwise to modify or to avoid strict
compliance with its obligations under this Lease. Notwithstanding any such
statute or otherwise, the Lessee and the Lessor shall be bound by all of the
terms and conditions contained in this Lease.
ARTICLE VII.
7.1. NATURE OF TRANSACTION; INTENT OF THE PARTIES.
(a) It is the intent of the parties hereto that: (i) this
Lease constitutes an "operating lease" pursuant to Statement of Financial
Accounting Standards No. 13, as amended and interpreted, for purposes of the
Lessee's financial reporting, and (ii) for purposes of federal, state, and
local income or franchise taxes (and for any other tax imposed on or measured
by income) and documentary, intangibles and transfer taxes, the transaction
contemplated hereby is a financing arrangement and preserves ownership in the
Property in the Lessee. The parties shall take no action inconsistent with
such intention. Nevertheless, the Lessee acknowledges and agrees that neither
the Agent, the Lessor nor any Participant has made any representations or
warranties to the Lessee concerning the tax, accounting or legal
characteristics of the Operative Documents and that the Lessee has obtained
and relied upon such tax, accounting and legal advice concerning the
Operative Documents as it deems appropriate.
6
(b) Anything to the contrary in the Operative Documents
notwithstanding, the Lessor and the Lessee intend and agree that with respect
to the nature of the transactions evidenced by this Lease in the context of
the exercise of remedies under the Operative Documents, including, without
limitation, in the case of any insolvency or receivership proceedings or a
petition under the United States bankruptcy laws or any other applicable
insolvency laws or statute of the United States of America or any State or
Commonwealth thereof or any foreign country affecting the Lessee, the Lessor,
or any Participant or any enforcement or collection actions arising out of or
relating to bankruptcy or insolvency laws, (i) the transactions evidenced by
this Lease shall be deemed to be loans made by the Lessor and the
Participants to the Lessee secured by the Property, (ii) the obligations of
the Lessee under this Lease to pay Basic Rent, Supplemental Rent, Asset
Termination Value, the Existing Facility and Tenant Improvements Residual
Value Guarantee Amount or the Expansion Improvements Residual Value Guarantee
Amount in connection with a purchase of the Property pursuant to this Lease
shall be treated as payments of interest on (with respect to Basic Rent), and
principal of (with respect to all other such payments), loans from the Lessor
and the Participants to the Lessee, and (iii) this Lease grants a security
interest and mortgage or deed of trust lien, as the case may be, in the
Property to the Lessor and the Lease has been assigned by the Lessor to the
Agent for the benefit of the Participants to secure the Lessee's performance
under and payment of all amounts under this Lease and the other Operative
Documents.
(c) Specifically, without limiting the generality of
SUBSECTIONS (a) and (b) of this SECTION 7.1 and SECTION 7.2, the parties
hereto intend and agree that, for purposes of filing federal, state and local
returns, reports and other statements relating to income or franchise taxes,
or any other taxes imposed upon or measured by income, (i) the Lessee shall
be entitled to take any deduction, credit, allowance or other reporting
position consistent with its status as owner of the Property; and (ii)
neither the Lessor nor any Participant shall take an initial position on its
federal, state and local returns, reports and other statements relating to
income or franchise taxes that is inconsistent with the Lessee's status as
owner of the Property.
(d) If the transactions evidenced by this Agreement and the
other Operative Documents can no longer be treated as an operating lease
pursuant to GAAP for accounting purposes, all provisions in the Operative
Documents limiting the Lessee's obligation to pay the Asset Termination Value
(including the Remarketing Option) on the Expiration Date or otherwise shall
no longer apply. If any such change in accounting treatment shall occur, the
Lessee, the Lessor, the Agent and the Participants shall negotiate in good
faith to enter into such amendments to the Operative Documents as may be
reasonably necessary or desirable to reflect the foregoing.
(e) In the event that, after the date hereof, the UCC as
enacted and in effect in any applicable jurisdiction shall be revised or
amended or amendments thereto shall become effective, the Lessee, the Lessor,
the Agent and the Participants shall negotiate in good faith to enter into
such amendments to the Operative Documents as may be reasonably necessary or
desirable to effect the intended purposes of this Lease and the other
Operative Documents in light of the effect of such revisions or amendments.
(f) Specifically, without limiting the generality of
subsection (b) of SECTION 7.1, in order to secure the Lessee's obligation to
pay Basic Rent, Supplemental Rent,
7
Asset Termination Value, the Residual Value Guarantee Amount, the Purchase
Option Price and all other obligations owing by the Lessee under the
Operative Documents (the "OBLIGATIONS"), the Lessee hereby grants, remises,
releases, aliens, conveys, transfers, mortgages, assigns and warrants to
Charles R. Swartz, as trustee (as "Trustee") for the benefit of Lessor WITH
POWER OF SALE and right of entry and possession, all of the Lessee's right,
title and interest in and to the following (collectively, the "COLLATERAL"):
(i) all right, title and interest of the
Lessee in and to the Property or any part thereof and the
reversions, remainders, rents, issues and profits thereof;
(ii) all right, title and interest of the
Lessee in and to all Fixtures and Improvements and all
substitutes and replacements of, and all additions and
improvements to, the Improvements and the Fixtures,
subsequently acquired by the Lessee or constructed, assembled
or placed by Lessee on the Land Interest, immediately upon
such acquisition, release, construction, assembling or
placement, including, without limitation, any and all building
materials whether stored at the Property or offsite, and, in
each such case, without any further mortgage, deed of trust,
conveyance, assignment or other act by the Lessee;
(iii) all right, title and interest of the
Lessee in, to and under all books and records relating to or
used in connection with the operation of the Property or the
Fixtures or any part thereof and the Equipment (other than any
records related to the business conducted from the Property);
(iv) all right, title and interest of the
Lessee in and to all insurance policies (including title
insurance policies) required to be maintained by the Lessee
pursuant to the Operative Documents, including the right to
collect and receive such proceeds; and all awards and other
compensation, including the interest payable thereon and the
right to collect and receive the same, made to the owner of
the Property for the taking by eminent domain, condemnation or
otherwise, of all or any part of the Property or any easement
or other right therein, all to the extent the same are
assignable by the Lessee;
(v) all right, title and interest of the
Lessee in and to (i) all governmental consents, licenses,
building permits, certificates of occupancy and other
governmental approvals relating to construction, completion,
occupancy, use or operation of the Property or any part
thereof, PROVIDED that any such consent, license, permit,
certificate or approval that by its terms or by operation of
law would become void, voidable, terminable or revocable or
would result in a breach or default thereunder or under any
applicable law if subjected to the lien granted pursuant to
this CLAUSE (v) is expressly excepted and excluded from this
CLAUSE (v) to the extent necessary to avoid such result, and
(ii) all plans and specifications relating to the Property, in
each case to the extent assignable;
8
(vi) all Rent and all other rents, payments,
purchase prices, receipts, revenues, issues and profits
payable under this Lease or pursuant to any other lease with
respect to the Property;
(vii) all proceeds, both cash and noncash,
of the foregoing and any items acquired in substitution of, or
replacement for, any of the foregoing; and
(viii) all right, title and interest of the
Lessee in and to all of the Operative Documents, including,
without limitation, the Lease Supplement, the Restated Lease
Supplement, and the Equipment Schedules, regardless of whether
the interest of the Lessee therein is that of lessee,
sublessee, sublessor or borrower.
7.2. UCC INFORMATION.
(a) Specifically, without limiting the generality of
subsection (b) of SECTION 7.1, the Lessor and the Lessee further intend and
agree that, for the purpose of securing the Lessee's obligations for the
repayment of the above-described loans from the Lessor and the Participants
to the Lessee, (i) this Lease shall also be deemed to be a security agreement
and financing statement within the meaning of Article 9 of the Uniform
Commercial Code (and specifically, a construction mortgage, as said term is
defined in Section 9-313(1)(c) of the Uniform Commercial Code), a fixture
filing and a real property deed of trust of the Property; (ii) the conveyance
provided for in Article II shall be deemed to be a grant by the Lessee to the
Lessor, assigned by the Lessor to the Agent for the benefit of the
Participants, of a mortgage or deed of trust, as applicable, lien and
security interest in all of the Lessee's right, title and interest in and to
the Property and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, investments, securities or other property, whether
in the form of cash, investments, securities or other property (it being
understood that the Lessee hereby mortgages and warrants and grants a
security interest in the Property to Lessor to secure such loans); (iii) the
possession by the Lessor or any of its agents of any notes and such other
items of the Collateral as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" for purposes of perfecting the security interest pursuant to Section
9-305 of the Uniform Commercial Code; and (iv) notifications to Persons
holding such property, and acknowledgments, receipts or confirmations from
financial intermediaries, bankers or agents (as applicable) of the Lessee
shall be deemed to have been given for the purpose of perfecting such
security interest under Applicable Law. The Lessor and the Lessee shall, to
the extent consistent with this Lease, take such actions and execute,
deliver, file and record such other documents, financing statements,
mortgages and deeds of trust as may be necessary to ensure that, if this
Lease were deemed to create a Lien and/or security interest in the Property
in accordance with this Section, such Lien and/or security interest would be
deemed to be a perfected Lien and/or security interest of first priority
(except as to Permitted Exceptions) under Applicable Law and will be
maintained as such throughout the Term.
(b) For the purposes of the security agreement and financing
statement provided herein the following information applies:
9
(i) Name and Address of Debtor: TriQuint Semiconductor Texas, LP
13512 North Central Expressway
Dallas, Texas 75243
(ii) Name and Address of Secured Lease Plan North America, Inc.
Party: 135 South LaSalle Street, Suite 740
Chicago, Illinois 60603
(iii) Description of the types (or Those items
described as Improvements, items) by
property covered by Fixtures and Equipment
and other personal this Financing Statement
property in paragraph 7.1(f) hereof
(iv) Description of real estate to See EXHIBIT D hereto
which collateral is attached
or upon which it is located:
ARTICLE VIII.
8.1. CONDITION OF THE PROPERTY. THE LESSEE ACKNOWLEDGES AND AGREES
THAT ALTHOUGH THE LESSOR WILL HOLD FEE TITLE TO THE PROPERTY, THE LESSEE IS
SOLELY RESPONSIBLE FOR THE IMPROVEMENTS AND ANY ALTERATIONS OR MODIFICATIONS.
THE LESSEE FURTHER ACKNOWLEDGES AND AGREES THAT IT IS LEASING THE PROPERTY
"AS IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY
THE LESSOR, THE AGENT OR ANY PARTICIPANT AND IN EACH CASE SUBJECT TO (A) THE
EXISTING STATE OF TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF,
(C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT
SHOW, AND (D) VIOLATIONS OF REQUIREMENTS OF LAW WHICH MAY EXIST ON THE DATE
HEREOF. NEITHER THE LESSOR, THE AGENT NOR ANY PARTICIPANT HAS MADE OR SHALL
BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE
(EXCEPT FOR THE LESSOR'S COVENANT OF QUIET ENJOYMENT SET FORTH IN SECTION
5.1), VALUE, HABITABILITY, USE, CONDITION, DESIGN, OPERATION, OR FITNESS FOR
USE OF THE PROPERTY (OR ANY PART THEREOF, INCLUDING ANY IMPROVEMENTS EXISTING
THEREON), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PART THEREOF,
INCLUDING ANY IMPROVEMENTS EXISTING THEREON) AND NEITHER THE LESSOR, THE
AGENT NOR ANY PARTICIPANT SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREIN OR THE FAILURE OF THE PROPERTY, OR ANY PART THEREOF, TO COMPLY
WITH ANY REQUIREMENT OF LAW.
10
8.2. POSSESSION AND USE OF THE PROPERTY. The Property shall be used
in a manner consistent with properties of a similar nature in the businesses
in which the Lessee is engaged or as permitted in any sublease or assignment
allowed by SECTION 25.1 hereof and in compliance in all material respects
with any covenants, conditions and restrictions of record and any ordinance
or law affecting the use and occupancy of the Property; and PROVIDED that
such other uses do not increase the liability, directly or indirectly, of the
Lessor or adversely affect the value, utility or remaining useful life of the
Property. The Lessee shall pay, or cause to be paid, all charges and costs
required in connection with the use of the Property as contemplated by this
Lease and the Construction Agency Agreements. The Lessee shall not commit or
knowingly permit any waste of the Property or any part thereof.
ARTICLE IX.
9.1. COMPLIANCE WITH REQUIREMENTS OF LAW AND INSURANCE
REQUIREMENTS. Subject to the terms of ARTICLE XIII relating to permitted
contests, the Lessee, at its sole cost and expense, shall (a) comply with (i)
all Requirements of Law in all material respects and (ii) all Insurance
Requirements, in each case relating to the Property, including the
construction, use, operation, maintenance, repair and restoration thereof and
the remarketing thereof pursuant to ARTICLE XXII, whether or not compliance
therewith shall require structural or extraordinary changes in the
Improvements or interfere with the use and enjoyment of the Property, and (b)
procure, maintain and comply with all licenses, permits, orders, approvals,
consents and other authorizations required for the construction, use,
maintenance and operation of the Property and for the use, operation,
maintenance, repair and restoration of the Improvements.
ARTICLE X.
10.1. MAINTENANCE AND REPAIR; RETURN.
(a) The Lessee, at its sole cost and expense, shall maintain
the Property in good working order, mechanical condition and repair, subject
to reasonable wear and tear, and make all necessary repairs thereto, of every
kind and nature whatsoever, whether interior or exterior, ordinary or
extraordinary, structural or nonstructural or foreseen or unforeseen, in each
case in compliance with all applicable Requirements of Law and in compliance
with all Insurance Requirements and on a basis consistent with the operation
and maintenance of commercial properties comparable in type and location to
the Property and in compliance with prudent industry practice.
(b) The Lessor shall under no circumstances be required to
build any improvements on the Property, make any repairs, replacements,
alterations or renewals of any nature or description to the Property, make
any expenditure whatsoever in connection with this Lease or maintain the
Property in any way. The Lessor shall not be required to maintain, repair or
rebuild all or any part of the Property, and the Lessee waives any right to
(i) require the Lessor to maintain, repair, or rebuild all or any part of the
Property, or (ii) make repairs at the expense of the Lessor pursuant to any
Requirement of Law, Insurance Requirement, contract, agreement, or covenant,
condition or restriction in effect at any time during the Term.
11
(c) The Lessee shall, upon the expiration or earlier
termination of this Lease (unless the Property is conveyed to the Lessee as
provided herein), vacate and surrender the Property to the Lessor in its
then-current, "AS IS" condition, subject to the Lessee's obligations under
SECTIONS 9.1, 10.1(a), 11.1, 12.1, 15.1(e), 15.2, 17.2(h), 22.1 and 23.1.
(d) The Lessee warrants that it shall cause the Tenant
Improvements and the Expansion Improvements to be constructed on the Property
to be designed and constructed in a workmanlike manner and in material
compliance with all applicable Requirements of Law and in accordance with all
Insurance Requirements, prior to the applicable Outside Completion Date
(subject, in the case of the Expansion Improvements, to Force Majeure Delays)
so that, prior to such date, such Improvements will be fit in all material
respects for their intended purpose.
ARTICLE XI.
11.1. MODIFICATIONS, SUBSTITUTIONS AND REPLACEMENTS.
(a) After Completion of the Tenant Improvements or the
Expansion Improvements, as the case may be, the Lessee, at its sole cost and
expense, may at any time and from time to time make alterations, renovations,
improvements and additions to that portion of the Property as to which
construction has been Completed or any part thereof and substitutions and
replacements therefor (collectively, "MODIFICATIONS"); PROVIDED that: (i) no
Modification shall materially impair the value, utility or remaining useful
life of the Property or any part thereof from that which existed immediately
prior to such Modification; (ii) the Modification shall be done expeditiously
and in a good and workmanlike manner; (iii) the Lessee shall comply with all
Requirements of Law and all Insurance Requirements applicable to the
Modification, including the obtaining of all permits and certificates of
occupancy, and the structural integrity of the Property shall not be
adversely affected; (iv) subject to the terms of ARTICLE XIII relating to
permitted contests, the Lessee shall pay all costs and expenses and shall
discharge (or cause to be insured or bonded over) within sixty (60) days
after the same shall be filed (or otherwise become effective) any Liens
arising with respect to the Modification; and (v) such Modifications shall
comply with SECTIONS 8.2 and 10.1. All Modifications (other than those that
both are not Modifications required to be made pursuant to a Requirement of
Law or an Insurance Requirement ("REQUIRED MODIFICATION") and are readily
removable without impairing the value, utility or remaining useful life of
the Property) shall remain part of the realty and shall be subject to this
Lease, and title thereto shall immediately vest in the Lessor. So long as no
Lease Event of Default has occurred and is continuing, the Lessee may place
upon the Property any trade fixtures, machinery, equipment or other property
belonging to the Lessee or third parties and may remove the same at any time
during the Term, subject, however, to the terms of SECTION 10.1(a); PROVIDED
that such trade fixtures, machinery, equipment or other property do not
materially impair the value, utility or remaining useful life of the
Property; PROVIDED, FURTHER, that the Lessee shall keep and maintain at the
Property and shall not remove from the Property any Equipment financed or
otherwise paid for (directly or indirectly) by the Lessor or any Participant
pursuant to the Participation Agreement.
12
(b) The Lessee shall deliver to the Lessor and the Agent
and each Participant a brief written narrative description of the work to be
done in connection with any Modification to the Property the cost of which is
anticipated to exceed $1,000,000 in the aggregate.
ARTICLE XII.
12.1. WARRANTY OF TITLE.
(a) The Lessee agrees that except as otherwise provided
herein and subject to the terms of ARTICLE XIII relating to permitted
contests, the Lessee shall not directly or indirectly create or allow to
remain, and shall promptly discharge at its sole cost and expense, any Lien,
defect, attachment, levy, title retention agreement or claim upon the
Property (or the Lessor's interest therein) or any Modifications or any Lien,
attachment, levy or claim with respect to the Rent, the Cash Collateral or
the Securities Collateral or with respect to any amounts held by the Agent or
any other Person pursuant to the Participation Agreement or the other
Operative Documents, other than, with respect to the Property only, Permitted
Exceptions and Lessor Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of the Lessor, expressed or implied, to
or for the performance by any contractor, mechanic, laborer, materialman,
supplier or vendor of any labor or services or for the furnishing of any
materials for any construction, alteration, addition, repair or demolition of
or to the Property or any part thereof. NOTICE IS HEREBY GIVEN THAT NEITHER
THE LESSOR, ANY PARTICIPANT NOR THE AGENT IS OR SHALL BE LIABLE FOR ANY
LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE, THE
CONSTRUCTION AGENT OR TO ANYONE HOLDING THE PROPERTY OR ANY PART THEREOF
THROUGH OR UNDER THE LESSEE.
(c) The Lessee shall pay all sums due to the contractors,
sub-contractors, materialmen, laborers, engineers, architects or other
persons, firms or corporations rendering services or furnishing material for
the construction of any Improvements or Modifications. The Lessee shall not
suffer or permit any mechanic's lien to be filed against the Property or any
part thereof by reason of any work, labor, services or materials supplied to
the Lessee, the Construction Agent or anyone holding the Property or any part
thereof through or under the Lessee. If any mechanic's lien or claim or
notice thereof shall at any time be filed against the Property, the Lessee
shall cause the same to be discharged of record within seventy-five (75) days
after the date of the Lessee's knowledge of the filing of same, but in any
event no later than the Expiration Date. In the event that the Lessee
believes that it has a valid defense to any such claim of lien which it
desires to assert, the Lessee may make such defense upon delivery to the
Lessor of an undertaking sufficient to indemnify the Lessor on an After Tax
Basis against any losses, costs, expenses or damages in connection therewith
with such collateral as the Lessor may reasonably approve. If the Lessee
shall fail to discharge and cause the release of such mechanic's lien within
such period, or to provide satisfactory indemnification to the Lessor, then,
in addition to any other right or remedy of the Lessor, the Lessor may, but
shall not be obligated to, discharge the same either by paying the amount
claimed to be due or by procuring the
13
discharge of such lien by deposit in court, or by giving security in such
other manner as is, or may be, prescribed by law, in each case at the
Lessee's expense.
12.2. GRANTS AND RELEASES OF EASEMENTS AND OTHER AGREEMENTS.
Provided that no Lease Event of Default shall have occurred and be continuing
and subject to the provisions of ARTICLES VIII, IX, X and XI, the Lessor
hereby consents in each instance to the following actions by the Lessee, in
the name and stead of the Lessor, but at the Lessee's sole cost and expense:
(a) the granting of easements, licenses, rights-of-way and other rights and
privileges in the nature of easements reasonably necessary or desirable for
the completion of construction of the Tenant Improvements and the Expansion
Improvements and for the use, repair, operation or maintenance of the
Property as herein provided; (b) the release of easements, licenses,
rights-of-way and other rights and privileges in the nature of easements
which are for the benefit of the Property; (c) the execution of petitions to
have the Property annexed to any municipal corporation or utility district;
(d) the execution of amendments to any covenants, restrictions, easements,
licenses, rights-of-way, and other rights and privileges in the nature of
easements affecting the Property; (e) the entering into of utility contracts
and related agreements affecting the Property; and (f) the seeking of,
application for, entering into of (including by way of assuming those already
in existence) and amendment of tax abatement, phase-in, or similar agreements
affecting the Property; PROVIDED, HOWEVER, in each case the Lessee shall have
delivered to the Lessor a Responsible Officer's Certificate stating that (i)
such grant, release, contract or agreement does not materially impair the
value, utility and remaining useful life of the Property, (ii) such grant,
release, contract or agreement is reasonably necessary or desirable in
connection with the completion of construction of the Tenant Improvements and
the Expansion Improvements or for the use, operation, maintenance, alteration
or improvement of the Property, (iii) the Lessee shall remain obligated under
this Lease and under any instrument executed by the Lessee consenting to the
assignment of the Lessor's interest in this Lease as security for
indebtedness, in each such case in accordance with their terms, as though
such grant, release, contract, agreement or transfer had not been effected,
and (iv) the Lessee shall pay and perform any obligations of the Lessor under
such grant, release, contract or agreement, and (v) such easements,
rights-of-way, grants, releases, contracts, agreements and other rights shall
be subordinate and subject to the Lien of the Mortgage. Without limiting the
effectiveness of the foregoing, provided that no Lease Event of Default shall
have occurred and be continuing, the Lessor shall, upon the request of the
Lessee, and at the Lessee's sole cost and expense, execute and deliver, any
instruments necessary or appropriate to confirm any such grant, agreement or
release to any Person permitted under this SECTION 12.2. Notwithstanding the
foregoing, Lessor, in its capacity as owner of the Property and at the
request of the Lessee, expressly agrees to join in the execution of an
instrument (the "ASSIGNMENT AND ASSUMPTION OF TAX ABATEMENT AGREEMENTS")
whereby Lessor, as owner of the Property, takes assignment of, and assumes
the obligations of the Property owner under, the Tax Abatement Agreements.
Lessee acknowledges that Lessor will be executing the Assignment and
Assumption of Tax Abatement Agreements solely to satisfy the requirements of
Applicable Law, and that Lessee, if requested, shall join in the execution of
the Assignment and Assumption of Tax Abatement Agreements and shall be solely
responsible for ensuring compliance with all of the terms and provisions
thereof binding upon the Property owner. Lessor further agrees to execute and
deliver such instruments as may be reasonably necessary to authorize all
taxing authorities having jurisdiction over the Property to deliver property
tax statements and bills covering the Property directly to Lessee. In
addition, the Lessor covenants and agrees that, to the extent required by
Applicable Law and at the request
14
of the Lessee upon reasonable notice, it agrees to be named on and will join
in the execution of any environmental permits, licenses, consents, or similar
documents, instruments or agreements relating to environmental matters with
respect to the Property and the conduct of the Lessee's business thereon to
the extent related to environmental matters, and any applications, updates,
renewals or other documents or instruments relating thereto or required
thereunder (collectively, the "OTHER DOCUMENTS"); provided, however, (i) in
no event shall the naming of the Lessor on any such Other Document or the
Lessor's execution of any such Other Document operate or be construed to
limit in any fashion the Lessee's indemnification obligations and other
covenants and agreements under any of the Operative Documents with respect to
environmental matters, (ii) the Lessor shall not be obligated to be named on
or join in the execution of any Other Documents if such naming or execution
would subject the Lessor to any liability for which the Lessee is not
required to indemnify the Lessor and (iii) the Lessee agrees that it will be
solely responsible for compliance with any terms and conditions of the Other
Documents.
ARTICLE XIII.
13.1. PERMITTED CONTESTS OTHER THAN IN RESPECT OF INDEMNITIES.
Except to the extent otherwise provided for in Section 13 of the
Participation Agreement, the Lessee, on its own or on the Lessor's behalf but
at the Lessee's sole cost and expense, may contest, by appropriate
administrative or judicial proceedings conducted in good faith and with due
diligence, the amount, validity or application, in whole or in part, of any
Requirement of Law, or utility charges payable pursuant to SECTION 4.1 or any
Lien, attachment, levy, encumbrance or encroachment, and the Lessor agrees
not to pay, settle or otherwise compromise any such item, PROVIDED that (a)
the commencement and continuation of such proceedings shall suspend the
collection thereof from, and suspend the enforcement thereof against, the
Property, the Cash Collateral, the Securities Collateral, the Lessor, the
Agent and the Participants or the Lessee shall have bonded or otherwise
secured such amount in a manner satisfactory to the Lessor and the Agent; (b)
there shall be no material risk of the imposition of a Lien as a result of
such contest (other than, as to the Property, Permitted Exceptions) on the
Property, the Cash Collateral or the Securities Collateral, and no part of
the Property, the Cash Collateral, the Securities Collateral, nor any Rent
would be in any danger of being sold, forfeited, lost or deferred as a result
of such contest; (c) at no time during the permitted contest shall there be a
risk of the imposition of criminal liability or material civil liability on
the Lessor, the Agent or any Participant for failure to comply therewith
(unless, in the case of civil liability, the Lessee shall have bonded or
otherwise secured such amount in a manner satisfactory to the Lessor and the
Agent); and (d) in the event that, at any time, there shall be a material
risk of extending the application of such item beyond the end of the Term,
then the Lessee shall deliver to the Lessor a Responsible Officer's
Certificate certifying as to the matters set forth in CLAUSES (a), (b) and
(C) of this SECTION 13.1. The Lessor, at the Lessee's sole cost and expense,
shall cooperate in good faith with the Lessee with respect to any permitted
contests conducted by the Lessee pursuant to this SECTION 13.1 and shall, at
the Lessee's sole cost and expense, execute and deliver to the Lessee such
authorizations and other documents as may reasonably be required in
connection with any such contest and, if reasonably requested by the Lessee,
shall join as a party therein at the Lessee's sole cost and expense.
15
ARTICLE XIV.
14.1. GENERAL LIABILITY AND WORKERS' COMPENSATION INSURANCE. The
Lessee shall procure and carry commercial general liability insurance,
including contractual liability, for claims for injuries or death sustained
by persons or damage to property while on the Property and such other general
liability coverages as are ordinarily procured by Persons who own or operate
similar properties and consistent with prudent business practice, which
policies shall include contractual liability endorsements covering the
Lessee's indemnification obligations in Section 13.1 of the Participation
Agreement. Such insurance shall be on terms and in amounts (which shall be
reasonably acceptable to the Lessor and in the event of liability insurance
shall be maintained at a level set forth on SCHEDULE 14.2) that are no less
favorable than insurance maintained by the Guarantor and its Subsidiaries
with respect to similar properties that it owns and that are in accordance
with prudent business practice and may be provided under blanket policies
maintained by or on behalf of the Guarantor and its Subsidiaries. The policy
shall be endorsed to name the Lessor, the Agent and each Participant as
additional insureds. The policy shall also specifically provide that the
policy shall be considered primary insurance which shall apply to any loss or
claim before any contribution by any insurance which the Lessor, the Agent or
the Participants may have in force. The Lessee shall, in the construction of
the Improvements and the operation of the Property (including in connection
with any Modifications thereof) comply with the applicable workers'
compensation laws and protect the Lessor, the Agent and the Participants
against any liability under such laws.
14.2. HAZARD AND OTHER INSURANCE. The Lessee shall keep, or cause
to be kept, the Property insured against loss or damage by fire, flood and
other risks in an amount not less than the greater of the amount set forth on
SCHEDULE 14.2 and the then current replacement costs of the buildings and
improvements on the Property and on terms that are no less favorable than
insurance covering other similar properties owned or leased by the Lessee or
any of its Affiliates and that are in accordance with prudent business
practice. The Lessee may provide such coverage under blanket policies
maintained by or on behalf of the Lessee; PROVIDED, that if the Lessee does
not elect to terminate the Lease pursuant to ARTICLE XVI hereof following the
occurrence of an event covered by any such blanket policy, the proceeds shall
be applied to the repair, rebuilding and restoration of any damage to the
Property. Prior to the Completion Date for the Expansion Improvements, no
insurance coverage applicable to the Expansion Improvements required under
this SECTION 14.2 shall be subject to any deductible. During the construction
of the Expansion Improvements the Lessee shall also maintain builders' risk
insurance. Each policy of insurance maintained by the Lessee pursuant to this
SECTION 14.2 shall provide that all insurance proceeds with respect to the
Property in respect of any loss or occurrence with respect to the Property
shall be paid to and adjusted solely by the Agent (at the expense of the
Lessee) during the Construction Period with respect to the Expansion
Improvements only and at any other time, by (and such proceeds shall be paid
to) the Lessee, except from and after the date on which the insurer receives
written notice from the Lessor or the Agent that a Lease Event of Default
exists (and unless and until such insurer receives written notice from the
Lessor or the Agent that all Lease Events of Default have been cured), all
losses shall be adjusted solely by, and all insurance proceeds shall be paid
solely to, the Agent (or the Lessor if the Participation Interests have been
fully paid) for application pursuant to ARTICLE XV. The costs and expenses of
all insurance required under this SECTION 14.2 (i) applicable to the
Expansion Improvements (A) shall be paid by the Lessor (and funded as an
Advance funded by
16
the Participants and capitalized as provided in Section 3.7(e)(i) of the
Participation Agreement), if arising prior to the related Completion Date,
and (B) from and after the related Completion Date, shall be at the sole cost
and expense of the Lessee and (ii) applicable to the remainder of the
Property, shall be at the sole cost and expense of the Lessee.
14.3. COVERAGE.
(a) The Lessee shall furnish the Lessor and the Agent with
(i) certificates of insurance on the Land Interest Acquisition Date showing
the insurance then required under SECTIONS 14.1 and 14.2 to be in effect and
naming the Lessor, the Agent and each Participant as additional insureds and,
with respect to the insurance required under SECTION 14.2, naming the Agent,
for the benefit of the Participants, as loss payees, and showing the
mortgagee endorsement required by SECTION 14.3(C) and (ii) upon the request
of the Lessor or the Agent, certified copies of such policies. Subject to the
last sentence of SECTION 14.2, all such insurance shall be at the cost and
expense of the Lessee. Such policies and certificates in respect thereof
shall include a provision for thirty (30) days' advance written notice by the
insurer to the Lessor and the Agent in the event of cancellation of or any
significant reduction in the coverage provided by such insurance.
(b) The Lessee agrees that the insurance policy or policies
required by SECTIONS 14.1 and 14.2 shall include (i) an appropriate clause
pursuant to which such policy shall provide that it will not be invalidated
should the Lessee waive, in writing, prior to a loss, any or all rights of
recovery against any party for losses covered by such policy, and that the
insurance in favor of the Lessor, the Agent and the Participants, and their
respective rights under and interests in said policies shall not be
invalidated or reduced by any act or omission or negligence of the Lessee or
any other Person having any interest in the Property, and (ii) a so-called
"Waiver of Subrogation Clause". The Lessee hereby waives any and all such
rights against the Lessor, the Agent and the Participants to the extent of
payments made under such policies.
(c) All such insurance shall be written by reputable
insurance companies that are financially sound and solvent and otherwise
reasonably appropriate considering the amount and type of insurance being
provided by such companies. Any insurance company selected by the Lessee
which is rated in Best's Key Rating Guide or any successor thereto (or if
there be none, an organization having a similar national reputation) shall
have a general policyholder rating of "A" and a financial rating of at least
8 in Best's Key Rating Guide or be otherwise acceptable to the Lessor and the
Agent. All insurance policies required by SECTION 14.2 shall include a
standard form mortgagee endorsement in favor of the Agent.
(d) The Lessor shall not carry separate insurance
concurrent in kind or form or contributing in the event of loss with any
insurance required under this ARTICLE XIV except that the Lessor may carry
separate liability insurance (at its sole cost) so long as (i) the Lessee's
insurance is designated as primary and in no event excess or contributory to
any insurance the Lessor may have in force which would apply to a loss
covered under the Lessee's policy and (ii) each such insurance policy will
not cause the Lessee's insurance required under this ARTICLE XIV to be
subject to a coinsurance exception of any kind.
17
(e) The Lessee shall pay as they become due all premiums
for the insurance required by SECTION 14.1 and, when required under SECTION
14.2, for the insurance required under SECTION 14.2, and shall renew or
replace each policy prior to the expiration date thereof. During the
Construction Period relating to the Expansion Improvements, at the time each
of the Lessee's insurance policies is renewed (but in no event less
frequently than once each year), upon the request of the Lessor or the Agent,
the Lessee shall deliver to the Lessor and the Agent certified copies of the
insurance policies required by this ARTICLE XIV to be maintained by the
Lessee with respect to the Property. At the time each of the Lessee's
insurance policies is renewed (but in no event less frequently than once each
year), the Lessee shall deliver to the Lessor and the Agent certificates of
insurance with respect to the insurance policies required by this ARTICLE XIV
to be maintained by the Lessee with respect to the Property.
(f) The Lessee hereby waives, releases and discharges the
Lessor, the Agent and each Participant and their agents and employees from
all claims whatsoever arising out of loss, claim, expense or damage to or
destruction covered or coverable by insurance required under this ARTICLE XIV
notwithstanding that such loss, claim, expense or damage may have been caused
by the Lessor, the Agent or any Participant or any of their agents or
employees, and the Lessee agrees to look to the insurance coverage only in
the event of such loss.
ARTICLE XV.
15.1. CASUALTY AND CONDEMNATION.
(a) Subject to the provisions of ARTICLE XIV, this ARTICLE
XV and (in the event the Lessee delivers, or is obligated to deliver, a
Termination Notice) ARTICLE XVI, and prior to the occurrence and continuation
of a Lease Event of Default, the Lessee shall be entitled to receive (and the
Lessor shall pay over to the Lessee, if received by the Lessor, and hereby
irrevocably assigns to the Lessee all of the Lessor's right, title and
interest in) any award, compensation or insurance proceeds to which the
Lessee or the Lessor may become entitled by reason of their respective
interests in the Property (i) if all or a portion of the Property is damaged
or destroyed in whole or in part by a Casualty or (ii) if the use, access,
occupancy, easement rights or title to the Property or any part thereof, is
the subject of a Condemnation; PROVIDED, HOWEVER, subject to ARTICLE XIV, if
a Lease Event of Default shall have occurred and be continuing or if any such
proceeds are received by the Lessee during any Construction Period, such
award, compensation or insurance proceeds shall be paid directly to the Agent
or, if received by the Lessee, shall be held in trust for the Agent, and
shall be paid over by the Lessee to the Agent (or, if the Participation
Interests have been fully paid, to the Lessor) and held in accordance with
the terms of this PARAGRAPH (a). If, contrary to such provision, any such
award, compensation or insurance proceeds are paid to the Lessor or the
Lessee rather than to the Agent, the Lessor and the Lessee, as the case may
be, hereby agree to transfer any such payment to the Agent. All amounts held
by the Lessor or the Agent under the preceding sentences on account of any
award, compensation or insurance proceeds either paid directly to the Lessor
or the Agent or turned over to the Lessor or the Agent (whether arising prior
to or after any Completion Date) shall either be (i) paid to the Lessee for
the repair of damage caused by such Casualty or Condemnation in accordance
with PARAGRAPH (e) of this SECTION 15.1, or (ii) applied to the purchase
price of the Property on a Termination Date resulting from a Casualty or
Condemnation in accordance with PARAGRAPH (d)
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of this SECTION 15.1 or PARAGRAPH (a) of SECTION 16.2, with any Excess
Proceeds being payable to the Lessee.
(b) In any proceeding or action under the control of the
Lessor or the Agent pursuant to the terms of SECTION 14.2, the Lessee may
participate and shall pay all expenses of such proceeding and its
participation. At the Lessee's reasonable request, and at the Lessee's sole
cost and expense, the Lessor and the Agent shall participate in any such
proceeding, action, negotiation, prosecution or adjustment under the control
of the Lessee. The Lessor and the Lessee agree that this Lease shall control
the rights of the Lessor and the Lessee in and to any such award,
compensation or insurance payment.
(c) If the Lessor or the Lessee shall receive notice of a
Casualty or of an actual, pending or threatened Condemnation of the Property
or any interest therein, the Lessor or the Lessee, as the case may be, shall
give notice thereof to the other and to the Agent promptly after the receipt
of such notice.
(d) In the event of a Casualty or receipt of notice by the
Lessee or the Lessor of a Condemnation, the Lessee may deliver to the Lessor
and the Agent a Termination Notice with respect to the Property pursuant to
SECTION 16.1. If the Lessee does not deliver a Termination Notice within
forty-five (45) days after such occurrence, then this Lease shall (subject to
the terms and conditions thereof) remain in full force and effect, and the
Lessee shall, at the Lessee's sole cost and expense, promptly and diligently
restore the Property pursuant to PARAGRAPH (e) of this SECTION 15.1 and
otherwise in accordance with this Lease. If the Lessee delivers a Termination
Notice within forty-five (45) days after such occurrence, a Significant Event
shall irrevocably be deemed to have occurred with respect to the Property,
and, in such event, this Lease shall terminate and the Lessee shall purchase
the Property on the next Payment Date (but in no event to exceed forty-five
(45) days after such occurrence) (a "TERMINATION DATE") pursuant to ARTICLE
XVI hereof.
(e) If pursuant to this SECTION 15.1 this Lease shall
continue in full force and effect following a Casualty or Condemnation, the
Lessee shall, at its sole cost and expense (and, without limitation, if any
award, compensation or insurance payment is not sufficient to restore the
Property in accordance with this paragraph, the Lessee shall pay the
shortfall), promptly and diligently repair any damage to the Property caused
by such Casualty or Condemnation or substitute new or like new Equipment for
the affected Equipment in conformity with the requirements of SECTIONS 10.1
and 11.1 using the as-built Plans and Specifications for the Property (as
modified to give effect to any subsequent Modifications, any Condemnation
affecting the Property and in compliance with all applicable Requirements of
Law and all Insurance Requirements) so as to restore the Property as nearly
as practicably possible to at least the same condition, operation, function
and value as existed immediately prior to such Casualty or Condemnation. In
the event of such restoration, title to the Property shall remain with the
Lessor; PROVIDED, that (i) title to any such substituted equipment shall vest
in the Lessor and such equipment shall constitute Equipment thereafter for
all purposes of this Lease, and (ii) the Lessor shall assign all of its
right, title and interest to the Lessee in any such replaced equipment
without representation or warranty of any kind other than that such equipment
is free of Lessor Liens and Liens created pursuant to the Operative
Documents. Upon completion of such restoration, and only with respect to
restorations, the costs of which exceed, in the aggregate, $250,000, the
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Lessee shall furnish the Lessor an architect's certificate of substantial
completion and a Responsible Officer's Certificate confirming that such
restoration has been completed pursuant to this Lease; PROVIDED, HOWEVER, no
architect's certificate of substantial completion shall be required with
respect to the repair or replacement of Equipment.
(f) In no event shall a Casualty or Condemnation with
respect to which this Lease remains in full force and effect under this
SECTION 15.1 affect the Lessee's obligations to pay Rent pursuant to SECTION
3.1 or to perform its obligations and pay any amounts due on the Expiration
Date or pursuant to ARTICLES XIX and XX.
(g) Any Excess Proceeds received by the Lessor or the Agent
in respect of a Casualty or Condemnation shall be turned over to the Lessee.
15.2. ENVIRONMENTAL MATTERS. Promptly upon the Lessee's actual
knowledge of the presence of Hazardous Substances in any portion of the
Property in concentrations and conditions that constitute or could reasonably
be expected to constitute an Environmental Violation, the Lessee shall notify
the Lessor in writing of such condition. In the event of such Environmental
Violation, the Lessee shall, not later than forty-five (45) days after the
Lessee has actual knowledge of such Environmental Violation, either, if such
Environmental Violation is a Significant Event, deliver to the Lessor and the
Agent a Responsible Officer's Certificate and a Termination Notice with
respect to the Property pursuant to SECTION 16.1, or, if such Environmental
Violation is not a Significant Event, at the Lessee's sole cost and expense,
promptly and diligently commence any Response Actions necessary to
investigate, remove, clean up or remediate the Environmental Violation in
accordance with the terms of SECTION 9.1. If the Lessee does not deliver a
Termination Notice with respect to the Property pursuant to SECTION 16.1, the
Lessee shall, upon completion of Response Actions by the Lessee, cause to be
prepared by an environmental consultant reasonably acceptable to the Lessor a
report describing the Environmental Violation and the Response Actions taken
by the Lessee (or its agents or contractors) for such Environmental
Violation, and a statement by the consultant that the Environmental Violation
has been remedied in compliance in all material respects with applicable
Environmental Law. Each such Environmental Violation shall be remedied prior
to the Expiration Date, unless the Lessee has elected to, and on or prior to
the Expiration Date does, purchase the Property pursuant to the provisions of
SECTIONS 16.2, 16.3, 20.1, 20.2 or 20.3. Nothing in this ARTICLE XV shall
reduce or limit the Lessee's obligations under Sections 13.1, 13.2 or 13.3 of
the Participation Agreement.
15.3. NOTICE OF ENVIRONMENTAL MATTERS. Promptly, but in any event
within thirty (30) Business Days from the date the Lessee has actual
knowledge thereof, the Lessee shall provide to the Lessor written notice of
any material pending or threatened claim, action or proceeding involving any
Environmental Law or any Release on or in connection with the Property. All
such notices shall describe in reasonable detail the nature of the claim,
action or proceeding and the Lessee's proposed response thereto. In addition,
the Lessee shall provide to the Lessor, within thirty (30) Business Days of
receipt, copies of all material written communications with any Governmental
Authority relating to any Environmental Law in connection with the Property.
The Lessee shall also promptly provide such detailed reports of any such
Material environmental claims as are available to Lessee and may reasonably
be requested by the Lessor and the Agent.
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ARTICLE XVI.
16.1. TERMINATION BY THE LESSEE UPON CERTAIN EVENTS. If either:
(i) the Lessee or the Lessor shall have received notice of a Condemnation,
and the Lessee shall have delivered to the Lessor a Responsible Officer's
Certificate that such Condemnation is a Significant Condemnation; or (ii) a
Casualty occurs, and the Lessee shall have delivered to the Lessor a
Responsible Officer's Certificate that such Casualty is a Significant
Casualty; or (iii) an Environmental Violation occurs or is discovered and the
Lessee shall have delivered to the Lessor a Responsible Officer's Certificate
stating that, in the reasonable, good-faith judgment of the Lessee, the cost
to remediate the same will cause the same to be a Significant Event, or (iv)
if the Lessee shall not have delivered a Termination Notice with respect to
such Environmental Violation described in clause (iii) but the requirements
of SECTION 16.3 are met with respect to such Environmental Violation; then,
(A) the Lessee shall, simultaneously with the delivery of the Responsible
Officer's Certificate pursuant to the preceding CLAUSE (i), (ii) or (iii)
deliver a written notice in the form described in SECTION 16.2(a) (a
"TERMINATION NOTICE"), or (B) if CLAUSE (iv) is applicable, the Lessor may
deliver a Termination Notice pursuant to SECTION 16.3.
16.2. PROCEDURES.
(a) A Termination Notice shall contain: (i) notice of
termination of this Lease with respect to the Property or the affected
portion thereof on a date that is no later than forty-five (45) days after
the occurrence of the applicable event described in CLAUSE (i), (ii) or (iii)
of SECTION 16.1 (the "TERMINATION DATE"), such termination to be effective
upon the Lessee's payment of the Asset Termination Value (or portion thereof
representing the Property Cost of the affected portion of the Property); and
(ii) a binding and irrevocable agreement of the Lessee to pay the Asset
Termination Value and purchase the Property on the Termination Date.
(b) On the Termination Date, the Lessee shall pay to the
Lessor the Asset Termination Value (or such portion thereof, as applicable),
plus all other amounts owing in respect of Rent for the Property (including
Supplemental Rent) theretofore accruing, and the Lessor shall convey the
Lessor's interest in the Property or such portion thereof to the Lessee (or
the Lessee's designee) all in accordance with SECTION 19.1 and, to the extent
applicable, SECTION 19.2, as well as any Net Proceeds with respect to the
Casualty or Condemnation giving rise to the termination of this Lease with
respect to the Property theretofore received by the Lessor.
16.3. PURCHASE OF PROPERTY. Upon receipt of any notice pursuant
to SECTION 15.2 or 15.3, the Lessor or the Required Participants, at the
Lessee's expense, shall have the right to select an independent environmental
consultant acceptable to the Lessee, which acceptance shall not be
unreasonably withheld or delayed, to determine the estimated cost of
conducting any clean-up or remediation required as a result of the
Environmental Violation disclosed in such notice. If such independent
environmental consultant determines that the cost of any such clean-up or
remediation would exceed thirty percent (30%) of the original Property Cost,
the Lessor shall, at the direction of the Required Participants, by written
notice require the Lessee to purchase, or arrange for an Affiliate of Lessee
or other third party to purchase, the Property on the Termination Date by
delivering a Termination Notice following the requirements of SECTION 16.2
hereof.
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ARTICLE XVII.
17.1. LEASE EVENTS OF DEFAULT. The occurrence of any one or more
of the following events (whether such event shall be voluntary or involuntary
or come about or be effected by operation of law or pursuant to or in
compliance with any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body) shall constitute a
"LEASE EVENT OF DEFAULT":
(a) the Lessee shall fail to make payment of (i) any Basic
Rent (other than a payment of Basic Rent due on the Expiration Date or
Termination Date) within five (5) Business Days after the same has become due
and payable or (ii) Basic Rent, Purchase Option Price, Asset Termination
Value, or Residual Value Guarantee Amount or other amounts due on the
Expiration Date or the Termination Date, including, without limitation,
amounts due pursuant to SECTIONS 16.2, 16.3, 17.2(h), 20.2, 20.3 or 22.1,
after the same has become due and payable;
(b) the Lessee shall fail to make payment of any
Supplemental Rent (other than Supplemental Rent referred to in CLAUSE (a) of
this Section) due and payable within five (5) Business Days after the same
has become due and payable by Lessee (subject to the provisions of SECTION
13.1), and to the extent that any Supplemental Rent represents reimbursements
to, or Lessee would not know of its obligation to pay absent notice from, the
Lessor, the Agent or any Participants, then such five (5) Business Day period
shall not commence until the Lessee has received such notice;
(c) the Lessee shall fail to maintain insurance as required
by ARTICLE XIV of this Lease;
(d) the Guarantor, the Construction Agent, the Lessee or
the Lessee's General Partner shall fail in any material respect to observe or
perform any term, covenant or condition of such Person under this Lease, the
Participation Agreement or any other Operative Document to which it is a
party (other than those described in SECTION 17.1(a), (b), (c) or (o) hereof
and other than as may constitute a Guarantee Event of Default or a
Construction Agency Agreement Event of Default), or any representation or
warranty of any such Person set forth in this Lease or in any other Operative
Document or in any document entered into in connection herewith or therewith
or in any document, certificate or financial or other statement delivered in
connection herewith or therewith shall be false or inaccurate in any Material
way, and, if such failure to perform or misrepresentation or breach of
warranty is other than with respect to a covenant, agreement, representation
or warranty contained in (i) as to the Guarantor, Section 10.1(b) and Section
10.2 of the Participation Agreement or as otherwise constitutes a Guarantee
Event of Default, (ii) as to the Lessee and the Lessee's General Partner,
Section 10.5 of the Participation Agreement, as applied to Section 10.1(b) of
the Participation Agreement, and (iii) as to the Construction Agent, Section
10.5 of the Participation Agreement, as applied to Section 10.1(b) of the
Participation Agreement, or such other failure to perform or
misrepresentation or breach as otherwise constitutes a Construction Agency
Agreement Event of Default, with respect to which there shall be no cure
period; such failure or misrepresentation or breach of warranty shall remain
uncured for a period of thirty (30) days after the earlier of (x) the date
upon which an executive officer of the Lessee, the Guarantor, the Lessee's
General Partner or the Construction Agent has actual knowledge thereof and
(y) the date upon which the Agent or the Lessor gives notice to the
22
Lessee, the Guarantor or the Construction Agent thereof, PROVIDED, HOWEVER,
no Lease Event of Default shall be deemed to have occurred if such failure,
misrepresentation or breach is of such a nature that it (A) can be cured and
(B) is not reasonably susceptible of cure within such thirty (30) day period,
but within such thirty (30) day period the Lessee commences to cure the same
and thereafter diligently prosecutes such cure to completion within a
reasonable period of time in light of the attendant circumstances; PROVIDED
FURTHER, HOWEVER, that any such cure must be completed within one hundred
twenty (120) days after the date the Lessee, the Guarantor, the Lessee's
General Partner or the Construction Agent has such knowledge or the Agent or
the Lessor gives such notice;
(e) [Intentionally deleted.]
(f) (i) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Lessee, the Guarantor,
the Lessee's General Partner or the Construction Agent in an involuntary case
under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect; or any other similar
relief shall be granted under any applicable federal or state law; or (ii) an
involuntary case shall be commenced against the Lessee, the Guarantor, the
Lessee's General Partner or the Construction Agent under the Bankruptcy Code
or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in
the premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the Lessee,
the Guarantor, the Lessee's General Partner or the Construction Agent or over
all or a substantial part of its property, shall have been entered; or there
shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of the Lessee, the Guarantor, the Lessee's General
Partner or the Construction Agent for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall have
been issued against any substantial part of the property of the Lessee, the
Guarantor, the Lessee's General Partner or the Construction Agent and any
such event described in this CLAUSE (II) shall continue for sixty (60) days
unless dismissed, bonded or discharged;
(g) (i) the Lessee, the Guarantor, the Lessee's General
Partner or the Construction Agent shall (i) have an order for relief entered
with respect to it or commence a voluntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in
an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or the Lessee, the Guarantor, the Lessee's
General Partner or the Construction Agent shall make any assignment for the
benefit of creditors; (ii) be unable, or shall fail generally, or shall admit
in writing its inability, to pay its debts as such debts become due; (iii) be
dissolved or liquidated in full or in part; (iv) become insolvent (as such
term may be defined or interpreted under any applicable statute); or (v) the
Board of Directors of the Guarantor, the Lessee's General Partner or the
Construction Agent (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to
herein or in SECTION 17.1(f);
(h) (i) one or more judgments, orders, decrees or
arbitration awards requiring Lessee, the Guarantor or the Construction Agent
to pay an aggregate amount of $5,000,000 or
23
more (exclusive of amounts covered by insurance issued by an insurer a
solvent and unaffiliated insurance company and otherwise satisfying the
requirements set forth in SECTION 14.3(c)) shall be rendered against Lessee,
the Guarantor or the Construction Agent in connection with any single or
related series of transactions incidents or circumstances and the same shall
not be satisfied, vacated or stayed for a period of thirty (30) consecutive
days after the issue of levy; (ii) any judgment, writ, assessment, warrant of
attachment, tax lien or execution or similar process shall be issued or
levied against a substantial part of the property of Lessee, the Guarantor or
the Construction Agent and the same shall not be released, stayed, vacated or
otherwise dismissed within the applicable appeals period after issue or levy;
or (iii) any other judgments, orders, decrees, arbitration awards, writs,
assessments, warrants of attachment, tax liens or executions or similar
process which, alone or in the aggregate, are reasonable likely to have a
Material Adverse Effect are rendered, issued or levied;
(i) any Operative Document or any material term thereof
shall cease to be, or be asserted by the Lessee not to be, a legal, valid and
binding obligation of the Lessee enforceable in accordance with its terms;
(j) any ERISA Event which constitutes grounds for the
termination of any Employee Benefit Plan by the PBGC or for the appointment
of a trustee by the PBGC to administer any Employee Benefit Plan shall occur,
or any Employee Benefit Plan shall be terminated within the meaning of Title
IV of ERISA or a trustee shall be appointed by the PBGC to administer any
Employee Benefit Plan;
(k) a Change of Control shall occur;
(l) a Construction Agency Agreement Event of Default shall
have occurred and be continuing;
(m) the Lessee shall have abandoned or constructively
abandoned all or any material portion of the Property for a period of 30
consecutive days which results in the Property not being properly maintained
in accordance with the terms of this Lease;
(n) the Lessee shall have elected to or be required to
purchase the Property pursuant to SECTIONS 16.2 or 16.3 hereof and such
purchase shall not have been consummated on the Termination Date pursuant to
either such Section (other than as a direct result of the breach by the
Lessor, the Agent, the Tranche B Participants or the Tranche C Participants
of any of their express obligations contained in the Operative Documents,
unless such breach is a result of any act or omission of the Lessee, the
Construction Agent, the Lessee's General Partner, the Guarantor or the
Tranche T Participant);
(o) in the event the Lessee is not purchasing the Property
upon the Expiration Date or earlier termination of this Lease, failure to
comply with the return conditions set forth in SECTIONS 19.1(b) and 22.3
hereof;
(p) any event(s) or condition(s) which have a Material
Adverse Effect shall occur and be continuing or exist; or
(q) A Guarantee Event of Default shall have occurred and be
continuing.
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17.2. LEASE REMEDIES. Upon the occurrence of any Lease Event of
Default and at any time thereafter, the Lessor may, so long as such Lease
Event of Default is continuing, do one or more of the following as the Lessor
in its sole discretion shall determine, without limiting any other right or
remedy the Lessor may have on account of such Lease Event of Default
(including, without limitation, the obligation of the Lessee to purchase the
Property as set forth in SECTION 20.3):
(a) The Lessor may, by notice to the Lessee, terminate the
Commitments and rescind or terminate this Lease as to all of the Property as
of the date specified in such notice; however, (i) no reletting, reentry or
taking of possession of the Property (or any portion thereof) by the Lessor
will be construed as an election on the Lessor's part to terminate this Lease
unless a written notice of such intention is given to the Lessee, (ii)
notwithstanding any reletting, reentry or taking of possession, the Lessor
may at any time thereafter elect to terminate this Lease for a continuing
Lease Event of Default, and (iii) no act or thing done by the Lessor or any
of its agents, representatives or employees and no agreement accepting a
surrender of the Property shall be valid unless the same be made in writing
and executed by the Lessor;
(b) The Lessor may (i) demand that the Lessee, and the
Lessee shall upon the written demand of the Lessor, return the Property
promptly to the Lessor in the manner and condition required by, and otherwise
in accordance with all of the provisions of, ARTICLES VIII, IX and X hereof
as if the Property were being returned at the end of the Term, and the Lessor
shall not be liable for the reimbursement of the Lessee for any costs and
expenses incurred by the Lessee in connection therewith and (ii) without
prejudice to any other remedy which the Lessor may have for possession of the
Property, and to the extent and in the manner permitted by Applicable Law,
enter upon the Property and take immediate possession of (to the exclusion of
the Lessee) the Property or any part thereof and expel or remove the Lessee
and any other Person who may be occupying the Property, by summary
proceedings or otherwise, all without liability to the Lessee for or by
reason of such entry or taking of possession, whether for the restoration of
damage to property caused by such taking or otherwise and, in addition to the
Lessor's other damages, the Lessee shall be responsible for all reasonable
costs and expenses incurred by the Lessor and/or the Agent or the
Participants in connection with any reletting, including, without limitation,
brokers' fees and all costs of any alterations or repairs made by the Lessor;
(c) The Lessor may (i) sell all or any part of the Property
at public or private sale, as the Lessor may determine, pursuant to such
notices and procedures as may be required by Applicable Law, free and clear
of any rights of the Lessee and without any duty to account to the Lessee
with respect to such action or inaction or any proceeds with respect thereto
(except to the extent required by CLAUSE (ii) below if the Lessor shall elect
to exercise its rights thereunder) in which event the Lessee's obligation to
pay Basic Rent hereunder for periods commencing after the date of such sale
shall be terminated or proportionately reduced, as the case may be; and (ii)
if the Lessor shall so elect, demand that the Lessee pay to the Lessor, and
the Lessee shall pay to the Lessor, on the date of such sale, as liquidated
damages for loss of a bargain and not as a penalty (the parties agreeing that
the Lessor's actual damages would be difficult to predict, but the
aforementioned liquidated damages represent a reasonable approximation of
such amount) (in lieu of Basic Rent due for periods commencing on or after
the Payment Date coinciding with such date of sale (or, if the sale date is
not a Payment Date, the Payment Date next preceding the date of such sale)),
an amount equal to (subject to SECTION 17.2(h)) (A) the excess, if any, of (1)
25
the Asset Termination Value calculated as of such Payment Date (including all
Rent due and unpaid to and including such Payment Date) less the aggregate
amount of the Cash Collateral and Securities Collateral, if any, retained by
the Lessor, the Agent or the Participants, over (2) the net proceeds of such
sale, if any (that is, after deducting all costs and expenses incurred by the
Lessor, the Agent and the Participants incident to such conveyance,
including, without limitation, repossession costs, brokerage commissions,
prorations, transfer taxes, fees and expenses for counsel, title insurance
fees, survey costs, recording fees, and any repair or alteration costs); plus
(B) interest at the Overdue Rate on the foregoing amount from such Payment
Date until the date of payment; PROVIDED, that the Lessor shall deliver all
proceeds from the sale of the Property and other amounts received hereunder
to the Agent for application as provided in Sections 3.14 and 3.17 of the
Participation Agreement.
(d) The Lessor, may, at its option, not terminate the Lease
with respect to the Property, and continue to collect all Basic Rent,
Supplemental Rent, and all other amounts due the Lessor (together with all
costs of collection) and enforce the Lessee's obligations under this Lease as
and when the same become due, or are to be performed, and at the option of
the Lessor, upon any abandonment of the Property by the Lessee or re-entry of
same by the Lessor, the Lessor, may, in its sole and absolute discretion,
elect not to terminate this Lease and may make such reasonable alternations
and necessary repairs in order to relet the Property, and relet the Property
or any part thereof for such term or terms (which may be for a term extending
beyond the Term of this Lease) and at such rental or rentals and upon such
other terms and conditions as the Lessor in its reasonable discretion may
deem advisable; and upon each such reletting all rentals actually received by
the Lessor from such reletting shall be applied to the Lessee's obligations
hereunder and the other Operative Documents in such order, proportion and
priority as the Lessor may elect in the Lessor's sole and absolute
discretion; and if such rentals received from such reletting during any
period be less than the Rent with respect to the Property to be paid during
that period by the Lessee hereunder, the Lessee shall pay any deficiency, as
calculated by the Lessor, to the Lessor on the next Payment Date;
(e) Unless the Property has been sold in its entirety, the
Lessor may, subject to SECTION 17.2(i), whether or not the Lessor shall have
exercised or shall thereafter at any time exercise any of its rights under
PARAGRAPH (b), (c) or (d) of this SECTION 17.2 with respect to the Property
or portions thereof, demand, by written notice to the Lessee specifying a
date (a "TERMINATION DATE") not earlier than 10 days after the date of such
notice, that the Lessee purchase, on such Termination Date, the Property (or
the remaining portion thereof) in accordance with the provisions of ARTICLE
XIX and SECTION 20.3;
(f) The Lessor may exercise any other right or remedy that
may be available to it under the Operative Documents or otherwise under
Applicable Law, or proceed by appropriate court action (legal or equitable)
to enforce the terms hereof or to recover damages for the breach hereof.
Separate suits may be brought to collect any such damages for any period(s),
and such suits shall not in any manner prejudice the Lessor's right to
collect any such damages for any subsequent period(s), or the Lessor may
defer any such suit until after the expiration of the Term, in which event
such suit shall be deemed not to have accrued until the expiration of the
Term;
26
(g) The Lessor may retain and apply against the Lessor's
damages all sums which the Lessor would, absent such Lease Event of Default,
be required to pay to, or turn over to, the Lessee pursuant to the terms of
this Lease;
(h) Notwithstanding anything contained in this Lease to the
contrary, in the event that the Lease Event of Default resulting in the
exercise of remedies by the Lessor hereunder is solely a Lease Event of
Default described in SECTION 17.1(l) arising under the Expansion Improvements
Construction Agency Agreement and occurring during the Construction Period
with respect to the Expansion Improvements, the Lessee shall, at the request
of the Lessor, (i)(A) return the Property to the Lessor or a Person
designated by the Lessor on a date specified by the Lessor (which date shall
constitute the Expiration Date) and/or (B) remarket the Property for the
Lessor as the Lessor's agent subject to the Lessor's direction and, in each
case, comply with SECTION 19.1(b) and (2) pay to the Lessor the sum of (1)
the maximum Expansion Improvements Residual Value Guarantee Amount PLUS (2)
the Existing Facility Lease Balance PLUS (3) the Tenant Improvements Lease
Balance on the date that is ten (10) Business Days after the date the Lessor
furnishes the Lessee with notice that it will require the Lessee to return or
remarket the Property, PROVIDED that the Lessor may recover from the Lessee,
and the Lessee shall be obligated to pay to the Lessor the entire Asset
Termination Value as of such date (notwithstanding the limitation contained
in CLAUSE (ii) above) if a Lease Event of Default under SECTION 17.1(f) or
(G) shall have occurred or if the Lease Event of Default described in SECTION
17.1(l) arose solely under the Tenant Improvements Construction Agency
Agreement or arose out of a Fully Indemnifiable Event or constituted an
Environmental Obligation. If the Lessee has not purchased the Property but
has paid the amounts required under CLAUSE (ii), (1), (2) and (3) of this
SECTION 17.2(h), proceeds from a sale of the Property pursuant to this
SECTION 17.2(h) or, if not sold as provided in this SECTION 17.2(h), from a
sale of the Property occurring thereafter, shall be distributed as provided
in Section 3.14 of the Participation Agreement.
(i) Notwithstanding anything contained in this Lease to the
contrary, in the event that the Lease Event of Default resulting in the
exercise of remedies by the Lessor hereunder is solely a Lease Event of
Default described in SECTION 17.1 (p) the Lessee shall have the option or, if
the Lessor terminates this Lease, the Lessee shall be required to elect to
(i) remarket the Property for 180 days after the occurrence of such Event of
Default in accordance with ARTICLE XXII hereof (which period shall constitute
the Marketing Period), with the purchase of the Property to be consummated no
later than the date that is 180 days following the occurrence of such Lease
Event of Default (which date shall constitute the Expiration Date if such
option is exercised or required to be exercised), or (ii) exercise its
Purchase Option under SECTION 20.1 hereof, with the purchase of the Property
by the Lessee to be consummated, and the other payments required thereunder
to be made to the Lessor, on the next Payment Date following the occurrence
of such Lease Event of Default (which date shall constitute the Expiration
Date if such option is exercised). The Lessee shall notify the Lessor within
twenty (20) days after the occurrence of such Lease Event of Default which
option it is exercising. If the Lessee elects to remarket the Property the
Lessee shall pay to the Lessor no later than the Expiration Date (i) the
maximum Existing Facility and Tenant Improvements Residual Value Guarantee
Amount and Expansion Improvements Residual Value Guarantee Amount no later
than the Expiration Date, (ii) all breakage costs incurred by the
Participants for the duration of all then current Interest Periods under the
Participation Agreement with respect to the amount so paid following notices
thereof by the Agent, (iii) Basic Rent when due for the duration of the 180
27
day Marketing Period and (iv) the other payments required under SECTION 22.1
when required thereunder and no later than the Expiration Date.
(j) In addition to the other rights and remedies set forth
herein, the Lessor shall have the right to continue this Lease in effect and
to enforce, by suit or otherwise, all covenants and conditions hereof to be
performed or complied with by the Lessee and exercise all of the Lessor's
rights and remedies under this Lease, including, without limitation, the
right to recover Basic Rent and Supplemental Rent from the Lessee as it
becomes due under this Lease, even though the Lessee shall have breached this
Lease and abandoned the Property. Acts of maintenance or preservation, or
efforts by the Lessor or on the Lessor's behalf to relet the Property, or the
appointment of a receiver upon the initiative of the Lessor to protect the
Lessor's interest under this Lease shall not constitute a termination of the
Lessee's right to possession of the Property; PROVIDED, HOWEVER, that the
foregoing enumeration shall not be construed as in any way limiting the
actions the Lessor may take without terminating the Lessee's right to
possession. In furtherance of the rights hereby granted to the Lessor, and to
the extent permitted by law, the Lessee hereby appoints the Lessor its agent
and attorney-in-fact, which appointment shall be deemed to be coupled with an
interest and is irrevocable, with power of substitution, to enter the
Property upon a Lease Event of Default hereunder and remove therefrom all
persons and property (with the right to store such property on the Property
or elsewhere in an environment suitable for storage of the same, taking into
account industry standards and practice with respect to such property, at the
cost and risk and for the account of the Lessee) and to alter the Property in
such manner as the Lessor may deem necessary or advisable so as to put the
Property in good order and to make the same rentable and from time to time
and sublet the Property or any part thereof for such term or terms whether or
not extending beyond the then current term of this Lease (but such sublease
may provide for a new and successive lease to commence immediately upon the
termination of this Lease), at such rentals and upon such other terms as the
Lessor in its sole discretion may deem advisable, and with the right to make
alterations and repairs to the Property; and the Lessee agrees to pay to the
Lessor on demand all reasonable expenses incurred by the Lessor in such
subletting, and in altering, repairing and putting the Property in good order
and condition, and in reletting the same, including fees of attorneys and
architects, and all other reasonable expenses or commissions. The Lessor
shall be the Lessee's agent and representative on the Property in respect of
all matters arising under or in connection with any such sublease made for
the Lessee by the Lessor. Under each such sublease, the Lessee shall retain
the right to enter upon and use the Property, subject to the terms and
conditions of such sublease and the rights of the sublessee thereunder. The
Lessee further agrees to pay to the Lessor, following the date of such
subletting, to and including the date provided in this Lease for the
expiration of the Term, the sums of money which would have been payable by
the Lessee as Basic Rent and Supplemental Rent, deducting only the net amount
of rent, if any, which the Lessor shall actually receive (after deducting
from the gross receipts the expenses, costs and payments of the Lessor which
in accordance with the terms of this Lease would have been borne by the
Lessee) in the meantime from and by any such subletting of the Property, and
the Lessee hereby agrees to remain liable for all sums otherwise payable by
the Lessee under this Lease, including, but not limited to, the expenses of
the Lessor aforesaid, as well as for any deficiency aforesaid. The Lessor
shall have the right from time to time to begin and maintain successive
actions or other legal proceedings against the Lessee for the recovery of
such deficiency, expenses or damages or for a sum equal to any installments
of Basic Rent or Supplemental Rent and other sums payable hereunder, and to
recover the same upon the liability
28
of the Lessee herein provided, which liability it is expressly covenanted
shall survive the commencement or determination of any action to secure
possession of the Property. Nothing herein contained shall be deemed to
require the Lessor to wait to begin such action or other legal proceedings
until the date when this Lease would have expired by limitation had there
been no such Lease Event of Default. Notwithstanding any such subletting
without termination, pursuant to the terms hereof, the Lessor shall retain
the right to and may at any time thereafter elect to terminate this Lease or
the Lessee's right to possession of the Property for any previous breach
which remains uncured or for any subsequent breach by giving the Lessee
written notice thereof as herein provided, and in such event the Lessee shall
forfeit any rights or interest under any such sublease and thereafter the
obligations of any such sublessee shall run directly to the Lessor for its
own account. Upon application by the Lessor, a receiver may be appointed to
take possession of the Property, exercise all rights granted to the Lessor as
agent and attorney-in-fact for the Lessee set forth in this Section 17.2(h)
and apply any rentals collected from the Property as hereinabove provided. No
taking of possession of the Property or other act by the Lessor as the agent
and attorney-in-fact for the Lessee pursuant to the foregoing provisions, nor
any subletting by the Lessor for the Lessee pursuant to the foregoing
provisions, nor any such appointment of a receiver shall constitute or be
construed as an election by the Lessor to terminate this Lease or the
Lessee's right to possession of the Property unless a written notice of such
intention be given to the Lessee.
17.3. WAIVER OF CERTAIN RIGHTS. If this Lease shall be terminated
pursuant to SECTION 17.2, the Lessee waives, to the fullest extent permitted
by law, (a) any notice of re-entry or the institution of legal proceedings to
obtain re-entry or possession; (b) any right of redemption, re-entry or
repossession; (c) the benefit of any laws now or hereafter in force exempting
property from liability for rent or for debt or limiting the Lessor with
respect to the election of remedies; and (d) any other rights which might
otherwise limit or modify any of the Lessor's rights or remedies under this
ARTICLE XVII.
17.4. POWER AND SALE OF FORECLOSURE. In the event that a court of
competent jurisdiction rules that this Lease constitutes a mortgage, deed of
trust or other secured financing as is the intent of the parties pursuant to
SECTION 7.1, and subject to the availability of such remedy under applicable
law, then the Lessor and the Lessee agree that the Lessee hereby grants,
bargains, sells, transfers, assigns and conveys unto Trustee, as trustee, and
its successors (the Lessor hereby reserving the right to from time to time,
with or without cause and at Lessor's sole discretion, by instrument in
writing, substitute a successor or successor to Trustee, which instrument,
executed by the Lessor duly acknowledged and recorded in the office of the
recorder of the county or counties where the Property is situated, shall be
conclusive proof of proper substitution of such successor, who shall, without
conveyance from Trustee or any successor trustee, succeed to all its title,
estate, rights, powers and duties), in trust the Property, to have and to
hold the Property, together with all and singular rights, hereditaments, and
appurtenances in any way appertaining or belonging thereto, unto such trustee
and such trustee's successor or substitute in such trust, and such trustee's
and its or his successors and assigns, in trust, and that, upon the
occurrence of any Lease Event of Default such trustee, at the direction of
the Lessor, may proceed with foreclosure, and in such event such trustee, at
the direction of the Lessor, is hereby authorized and empowered, and it shall
be such trustee's special duty, upon such request of the Lessor, acting upon
29
a request from the Participants, to sell the Property, or any part thereof,
to the highest bidder or bidders for cash or credit, as directed by the
Lessor, acting upon a request from the Participants, at the location at the
county courthouse specified by the commissioner's court of the county in the
State of Texas wherein the land then subject to the lien hereof is situated
or, if no such location is specified by the commissioner's court, then at the
location specified in such trustee's notice of such sale to the Lessee;
provided, that if the Land Interest is situated in more than one county, then
such sale of the Property, or part thereof, may be made in any county in the
State of Texas wherein any part of the land then subject to the lien hereof
is situated. Any such sale shall be made at public outcry, between the hours
of ten o'clock (10:00) A.M. and four o'clock (4:00) P.M. on the first (1st)
Tuesday in any month. Written or printed notice of such sale shall be posted
at the courthouse door in the county, or if more than one, then in each of
the counties, wherein the land then subject to the lien hereof is situated.
Such notice shall designate the county where the Property, or part thereof,
will be sold and the earliest time at which the sale will occur, and such
notice shall be posted at least twenty-one (21) days prior to the date of
sale. Such notice shall also be filed with the county clerk in the county, or
if more than one, then in each of the counties wherein the land is located.
Lessor shall, at least twenty-one (21) days preceding the date of sale, serve
written notice of the proposed sale by certified mail on each debtor
obligated to pay the Asset Termination Value and other obligations secured
hereby according to the records of the Agent. After such sale, the Lessor
shall make to the purchaser or purchasers thereunder good and sufficient
assignments, deeds, bills of sale, and other instruments, in the name of the
Lessor, conveying the Property, or part thereof, so sold to the purchaser or
purchasers with general warranty of title by the Lessor. The sale of a part
of the Property shall not exhaust the power of sale, but sales may be made
from time to time until the Asset Termination Value and other obligations
secured hereby are paid and performed in full. It shall not be necessary to
have present or to exhibit at any such sale any of the personal property.
Upon the occurrence and during the continuance of a Lease Event of Default,
the Lessor, in lieu of or in addition to exercising any power of sale
hereinabove given, may proceed by a suit or suits in equity or at law,
whether for a foreclosure hereunder, or for the sale of the Property, or
against the Lessee on a recourse basis for the Asset Termination Value
(subject to SECTION 17.2(h) and (i) hereof), or the specific performance of
any covenant or agreement herein contained or in aid of the execution of any
power herein granted, or for the appointment of a receiver pending any
foreclosure hereunder or the sale of the Property, or for the enforcement of
any other appropriate legal or equitable remedy. The foregoing provisions of
this SECTION 17.4 shall be deemed amended to the extent necessary from time
to time to permit the Lessor (or the Trustee, as applicable) to effect a
non-judicial foreclosure upon the Property in compliance with the applicable
provisions of the Texas Property Code, as amended.
17.5. REMEDIES CUMULATIVE. The remedies herein provided shall be
cumulative and in addition to (and not in limitation of) any other remedies
available at law, equity or otherwise, including, without limitation, any
mortgage foreclosure remedies.
17.6. THE LESSEE'S RIGHT TO CURE. Notwithstanding any provision
contained in the Lease or any other Operative Document, if a Lease Event of
Default has occurred and is continuing, the Lessee shall have the right to
cure such Lease Event of Default by (a) exercising its Purchase Option at any
time prior to the entering into by the Lessor of a binding contract to sell
the Property and (b) purchasing the Property in accordance with SECTION 20.1
at any time prior to such time as a foreclosure upon or sale of the Property
has been completed.
30
ARTICLE XVIII.
18.1 THE LESSOR'S RIGHT TO CURE THE LESSEE'S LEASE DEFAULTS. The
Lessor, without waiving or releasing any obligation or Lease Event of Default,
may (but shall be under no obligation to) remedy any Lease Default or Lease
Event of Default for the account and at the sole cost and expense of the Lessee,
including the failure by the Lessee to maintain the insurance required by
ARTICLE XIV (subject to the limitations set forth in SECTION 24.1), and may, to
the fullest extent permitted by law, and notwithstanding any right of quiet
enjoyment in favor of the Lessee, enter upon the Property for such purpose and
take all such action thereon as may be reasonably necessary or appropriate
therefor. No such entry shall be deemed an eviction of the Lessee. All
reasonable out-of-pocket costs and expenses so incurred (including reasonable
fees and expenses of counsel), together with interest thereon at the Overdue
Rate from the date on which such sums or expenses are paid by the Lessor, shall
be paid by the Lessee to the Lessor on demand (subject to the limitations set
forth in SECTION 24.1), as Supplemental Rent.
ARTICLE XIX.
19.1 PROVISIONS RELATING TO THE LESSEE'S TERMINATION OF THIS LEASE
OR EXERCISE OF PURCHASE OPTION OR OBLIGATION AND CONVEYANCE UPON REMARKETING AND
CONVEYANCE UPON CERTAIN OTHER EVENTS.
(a) In connection with any termination of this Lease pursuant
to the terms of Section 16.2 or 16.3 (if the Lessee is obligated to purchase the
Property), or in connection with the Lessee's exercise of its Purchase Option or
Expiration Date Purchase Obligation, upon the date on which this Lease is to
terminate or upon the Expiration Date, and upon tender by the Lessee of the
amounts set forth in Sections 16.2(b), 20.1, 20.2 or 20.3, as applicable, the
Lessor shall execute, acknowledge and deliver to the Lessee (or to the Lessee's
designee) at the Lessee's cost and expense a Special Warranty Deed conveying to
the Lessee (or its designee) fee simple title to the Land Interest and the
Improvements, and an assignment or transfer without recourse of the Lessor's
right, title and interest in the remainder of the Property (which shall include
a release, quitclaim and assignment of all of the Lessor's right, title and
interest in and to any net proceeds with respect to the Property or such portion
thereof not previously received by the Lessor), in each case subject to (i) the
Permitted Exceptions (other than Lessor Liens and, so long as all amounts
required to be paid upon such termination or exercise have been paid and
discharged in full, free of all Liens created by the Operative Documents) and,
(ii) any and all Liens or agreements subject to which the Lessor itself took
title to the Property subject to and those which were granted or assumed by the
Lessor with the consent or approval of, or at the direction of, the Lessee) and
(iii) any encumbrance caused by the fault, neglect or intention of the Lessee,
in recordable form and otherwise in conformity with local custom and free and
clear of any Lessor Liens. The Improvements and the Equipment shall be conveyed
to the Lessee "AS IS" and in their then present condition of title and physical
condition free of any Lessor Liens and, so long as all amounts required to be
paid upon such termination or exercise have been paid and discharged in full,
free of all Liens created by the Operative Documents. Lessor agrees that
following the purchase of the Property by the Lessee pursuant to this SECTION
19.1, the Lessor will execute and deliver, at the Lessee's expense, all
assignment and transfer documents
31
reasonably requested by the Lessee to effect the sale by the Lessor and the
purchase by the Lessee of the Property.
(b) If the Lessee properly exercises the Remarketing Option or
is required to remarket the Property or return the Property to the Lessor
pursuant to SECTION 17.2(h) or SECTION 17.2(i), then the Lessee shall, on the
Expiration Date, and at its own cost, transfer possession of the Property (or
remaining portion thereof) to the Lessor or the independent purchaser thereof,
as the case may be, by surrendering the same into the possession of the Lessor
or such purchaser, as the case may be, free and clear of all Liens other than
Permitted Exceptions described in clauses (iv) and (vi) of the definition of
such term, Liens for taxes not yet due, easements, rights-of-way, agreements and
other rights permitted by SECTION 12.2 and Lessor Liens, in good condition (as
modified by Modifications permitted by this Lease), ordinary wear and tear
excepted, in compliance with Applicable Law, and in "broom-swept clean"
condition. The Lessee shall cooperate reasonably with the Lessor and the
independent purchaser of the Property (or remaining portion thereof) in order to
facilitate the purchase by such purchaser of the Property (or remaining portion
thereof) which cooperation shall include the following, all of which the Lessee
shall do on or before the Expiration Date: providing all books and records
regarding the maintenance and ownership of the Property (or remaining portion
thereof) and all know-how, data and technical information relating thereto,
providing a current copy of the "as built" Plans and Specifications for the
Property, granting or assigning (to the extent assignable) all existing licenses
necessary for the operation and maintenance of the Property and cooperating
reasonably in seeking and obtaining all necessary Governmental Action and
complying with the provisions of SECTION 22.3 hereof. The obligations of the
Lessee under this paragraph shall survive the expiration or termination of this
Lease.
ARTICLE XX.
20.1 PURCHASE OPTION. Without limitation of the Lessee's purchase
obligation pursuant to SECTIONS 20.2 or 20.3, unless the Lessee shall have given
notice of its intention to exercise the Remarketing Option and the Lessor shall
have entered into a binding contract to sell the Property, at all times during
the Term, including any extensions or renewals permitted hereunder, the Lessee
shall have the option (exercisable by giving the Lessor irrevocable written
notice (each, a "PURCHASE NOTICE") of the Lessee's election to exercise such
option) to purchase, or to designate a third party to purchase, all of the
Property (the "PURCHASE OPTION"), on the date specified in such Purchase Notice,
which date shall be a Payment Date. The purchase price in respect of the
Property (the "PURCHASE OPTION PRICE") shall be equal to the Asset Termination
Value plus in each case all other amounts owing in respect of Rent (including
Supplemental Rent) theretofore accruing (offsetting against such amount the
aggregate amount of the Cash Collateral and the Securities Collateral, if any).
The Lessee shall deliver the Purchase Notice to the Lessor not less than thirty
(30) days prior to the purchase date. If the Lessee exercises its Purchase
Option, pursuant to this SECTION 20.1 (the "PURCHASE OPTION"), the Lessor shall
transfer to the Lessee all of the Lessor's right, title and interest in and to
all of the Property, as of the date specified in the Purchase Notice upon
receipt of the Purchase Option Price and (without duplication) all Rent and all
other amounts then due and payable under this Lease and any other Operative
Document, in accordance with SECTION 19.1(a).
32
20.2 EXPIRATION DATE PURCHASE OBLIGATION. Unless (a) the Lessee
shall have properly exercised the Purchase Option pursuant to SECTION 20.1 and
purchased the Property pursuant thereto, (b) the Lessee shall have properly
exercised the Remarketing Option and shall have fulfilled all of the conditions
of CLAUSES (a) through (j) and (m) of SECTION 22.1 hereof, or (c) the Lessee
shall have properly exercised the Renewal Option pursuant to SECTION 21.1 and
the terms and conditions of a Renewal Term shall have been agreed upon pursuant
to such Section, then, subject to the terms, conditions and provisions set forth
in this SECTION 20.2, and in accordance with the terms of SECTION 19.1(a), the
Lessee shall purchase from the Lessor, and the Lessor shall assign and convey to
the Lessee without recourse, on the Expiration Date of the Term (as such Term
may be renewed pursuant to SECTION 21.1) all of the Lessor's right, title and
interest in the Property for an amount equal to the Asset Termination Value (the
"EXPIRATION DATE PURCHASE OBLIGATION"), offsetting against such amount the
aggregate amount of the Cash Collateral and the Securities Collateral, if any.
The Lessee may designate, in a notice given to the Lessor not less than ten (10)
Business Days prior to the closing of such purchase (time being of the essence),
the transferee or transferees to whom the conveyance shall be made (if other
than to the Lessee), in which case such conveyance shall (subject to the terms
and conditions set forth herein) be made to such designee; PROVIDED, HOWEVER,
that such designation of a transferee or transferees shall not cause the Lessee
to be released, fully or partially, from any of its obligations under this
Lease, including, without limitation, the obligation to pay the Lessor an amount
equal to the Asset Termination Value that was not fully and finally paid by such
designee on such Expiration Date.
20.3 ACCELERATION OF PURCHASE OBLIGATION.
(a) The Lessee shall be obligated to purchase for an amount
equal to the Asset Termination Value the Lessor's interest in the Property
(notwithstanding any prior election to exercise its Purchase Option pursuant
to SECTION 20.1) (i) automatically and without notice upon the occurrence and
during the continuance of any Lease Event of Default specified in CLAUSE (f)
or (g) of SECTION 17.1, and (ii) as provided for at SECTION 17.2(e)
immediately upon written demand of the Lessor upon the occurrence of any
other Lease Event of Default (except as provided in SECTION 17.2(h) or
17.2(i)).
(b) The Lessee shall be obligated to purchase for an amount
equal to the Asset Termination Value (plus all other amounts (without
duplication) owing in respect of Rent (including Supplemental Rent)
theretofore accruing) (offsetting against such amount the aggregate amount of
the Cash Collateral and Securities Collateral, if any) immediately upon
written demand of the Lessor the Lessor's interest in the Property at any
time during the Term when the Lessor ceases to have title as contemplated by
SECTION 12.1.
ARTICLE XXI.
21.1 RENEWAL.
(a) Subject to the conditions set forth herein, the Lessee
shall have the option (the "Renewal Option") by written request (the "Renewal
Request") to the Lessor and the Agent (which request the Agent shall promptly
forward to each Participant) and each Participant given not later than 180
days prior to the Expiration Date then in effect, to renew the Term for two
33
additional two-year periods commencing on the date following the Expiration Date
then in effect. No later than the date (the "Renewal Response Date") which is
thirty (30) days after such request has been delivered to each of the Lessor and
the Agent, the Lessor will notify the Lessee in writing (with a copy to Agent)
whether or not it consents to such Renewal Request (which consent may be granted
or denied in its sole discretion and may be conditioned on receipt of such
financial information or other documentation as may reasonably be specified by
the Lessor including without limitation a satisfactory appraisal of the
Property), provided that if the Lessor shall fail to notify the Lessee on or
prior to the Renewal Response Date, it shall be deemed to have denied such
Renewal Request. If the Lessor shall have consented to the Renewal Request, the
Renewal Term contemplated by such request shall become effective as of the
Expiration Date then in effect after the Lessor has consented to such Renewal
Request (each an "Extension Effective Date"); provided that such renewal shall
be subject to and conditioned upon the following:
(A) on both the Extension Effective Date and the date
of the Renewal Request, (i) no Lease Default or Lease Event of
Default shall have occurred and be continuing, and (ii) the
Lessor and the Agent shall have received a Responsible
Officer's Certificate of the Lessee as to the matters set
forth in CLAUSE (i) above,
(B) the Lessee shall not have exercised the
Remarketing Option, and
(C) the Participants shall have agreed to extend the
Maturity Date contemporaneously therewith pursuant to Section
3.6 of the Participation Agreement such that the Renewal Term
will expire on the same date as the extended Maturity Date.
(b) No more than two Renewal Terms shall be permitted
hereunder.
ARTICLE XXII.
22.1 OPTION TO REMARKET. Subject to the fulfillment of each of the
conditions set forth in this SECTION 22.1, the Lessee shall have the option (the
"REMARKETING OPTION") to market for the Lessor and complete the sale of all, but
not less than all, of the Lessor's interest in the Property on the Expiration
Date for the Lessor.
The Lessee's effective exercise and consummation of the Remarketing
Option shall be subject to the due and timely fulfillment of each of the
following provisions as of the dates set forth below.
(a) Not later than one hundred eighty (180) days prior to the
Expiration Date, the Lessee shall give to the Lessor written notice of the
Lessee's exercise of the Remarketing Option, which exercise shall be
irrevocable (except by delivery of a Purchase Notice and consummation of the
exercise of the Purchase Option prior to the earlier of (i) the Expiration
Date or (ii) the date on which the Lessor enters into a binding contract to
sell the Property pursuant to the exercise of the Remarketing Option).
34
(b) The Lessee shall deliver to the Lessor an Environmental
Audit of the Property together with its notice of exercise of the Remarketing
Option. Such Environmental Audit shall be prepared by an environmental
consultant selected by the Lessor in the Lessor's reasonable discretion and
shall contain conclusions reasonably satisfactory to the Lessor as to the
environmental status of the Property. If such Environmental Audit indicates
any material exceptions reasonably requiring remedy or further investigation,
the Lessee shall have also delivered a Phase Two environmental assessment by
such environmental consultant prior to the Expiration Date showing the
completion of the remedying of such exceptions in compliance with
Environmental Laws.
(c) On the date of the Lessee's notice to the Lessor of the
Lessee's exercise of the Remarketing Option, no Lease Event of Default or
Lease Default shall exist, and thereafter, no uncured Lease Event of Default
or Lease Default shall exist.
(d) The Lessee shall have completed in all material respects
all Modifications, restoration and rebuilding of the Property pursuant to
SECTIONS 11.1 and 15.1(e) (as the case may be) and shall have fulfilled in
all material respects all of the conditions and requirements in connection
therewith pursuant to said Sections, in each case by the date on which the
Lessor receives the Lessee's notice of the Lessee's exercise of the
Remarketing Option (time being of the essence), regardless of whether the
same shall be within the Lessee's control. The Lessee shall have also paid
the cost of all Modifications commenced prior to the Expiration Date. The
Lessee shall not have been excused pursuant to SECTION 13.1 from complying
with any Applicable Law that involved the extension of the ultimate
imposition of such Applicable Law beyond the last day of the Term. Any
Permitted Exceptions on the Property that were contested by the Lessee shall
have been removed.
(e) During the Marketing Period, the Lessee shall, as
nonexclusive agent for the Lessor, use commercially reasonable efforts to
sell the Lessor's interest in the Property on or prior to the Expiration Date
(without diminishing the Lessee's obligation to consummate the sale on the
Expiration Date) and will attempt to obtain the highest purchase price
therefor and for not less than the Fair Market Sales Value. The Lessee will
be responsible for hiring and compensating brokers and making the Property
available for inspection by prospective purchasers. The Lessee shall promptly
upon request permit inspection of the Property and any maintenance records
relating to the Property by the Lessor, any Participant and any potential
purchasers, and shall otherwise do all things necessary to sell and deliver
possession of the Property to any purchaser. All such marketing of the
Property shall be at the Lessee's sole expense. The Lessee shall allow the
Lessor and any potential qualified purchaser reasonable access to the
Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor and the
Agent, and the Lessor will have the right to review the same and the right to
submit any one or more bids. All bids shall be on an all-cash basis unless
the Lessor, the Agent and the Participants shall otherwise agree in their
sole discretion. Should the Lessee procure bids from one or more bona fide
prospective purchasers, the Lessee shall deliver to the Lessor and the Agent
not less than ninety (90) days prior to the Expiration Date a binding written
unconditional (except as set forth below), irrevocable offer by such
purchaser or purchasers offering the highest bid to purchase the Property. No
such purchaser shall be the Lessee, or any Subsidiary or Affiliate of the
Lessee.
35
The written offer must specify the Expiration Date as the closing date unless
the Lessor, the Agent and the Participants shall otherwise agree in their
sole discretion.
(g) In connection with any such sale of the Property, the
Lessee will provide to the purchaser (if the purchaser so requires) all
customary "seller's" indemnities, representations and warranties regarding
title, absence of Liens (except Permitted Exceptions described in clauses (iv)
and (vi) of the definition of such term, Liens for taxes not yet due, easements,
rights-of-way, agreements and other rights permitted pursuant to SECTION 12.2
and Lessor Liens) and the condition of the Property, as well as such other terms
and conditions as may be negotiated between the Lessee and the purchaser. The
Lessee or the purchaser, as applicable, shall have obtained, at its cost and
expense, all required governmental and regulatory consents and approvals and
shall have made all filings as required by Applicable Law in order to carry out
and complete the transfer of the Property. As to the Lessor, any such sale shall
be made on an "as is, with all faults" basis without representation or warranty
by the Lessor other than the absence of Lessor Liens and Liens created by the
Operative Documents. Any agreement as to such sale shall be made subject to the
Lessor's rights hereunder.
(h) Unless and to the extent paid for by the purchaser, the
Lessee shall pay directly all prorations, credits, costs and expenses of the
sale of the Property acceptable to the Lessor and the Participants, whether
incurred by the Lessor, the Participants or the Lessee, including without
limitation, the cost of all title insurance, surveys, environmental reports,
appraisals, transfer taxes, the Lessor's, the Participants' and the Agent's
reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow
fees, recording fees, and all applicable documentary and other transfer taxes,
but excluding all costs associated with the existence or removal of Lessor
Liens, which costs Lessor agrees to bear, Lessor hereby covenanting to cause the
removal of all Lessor Liens at its expense.
(i) The Lessee shall pay to the Agent on the Expiration Date
(or to such other Person as the Lessor shall notify the Lessee in writing, or in
the case of Supplemental Rent, to the Person entitled thereto) an amount equal
to the Existing Facility and Tenant Improvements Residual Value Guarantee Amount
(which shall be paid in accordance with Section 3.22 of the Participation
Agreement) and, if applicable, the Expansion Improvements Residual Value
Guarantee Amount, PLUS (without duplication) all Rent and all other amounts
hereunder which have accrued or will accrue prior to or as of the Expiration
Date, in the type of funds specified in SECTION 3.4 hereof.
(j) If, within ninety (90) days prior to the Expiration Date,
it is determined (based upon the highest bid by a purchaser to purchase the
Property pursuant to PARAGRAPH (f) of this SECTION 22.1) that there would, after
giving effect to the proposed sale of the Property, be a Shortfall Amount, the
Lessee (i) shall cause to be delivered to the Lessor and the Agent the End of
Term Report required by Section 13.2 of the Participation Agreement and (ii)
shall on the Expiration Date pay to the Agent (or to such other person as the
Lessor shall notify the Lessee in writing), the amounts (not to exceed the
Shortfall Amount) required to be paid pursuant to Section 13.2 of the
Participation Agreement.
(k) The purchase of the Property shall be consummated on the
Expiration Date following the payment by the Lessee pursuant to PARAGRAPHS (i)
and (j) above and
36
contemporaneously with the Lessee's surrender of the Property pursuant to
SECTION 19.1(b) and the Net Sales Proceeds of the sale of the Property shall
be paid directly to the Agent; PROVIDED, HOWEVER, that if the sum of the Net
Sale Proceeds from such sale of the Property plus the Residual Value
Guarantee Amount paid by Lessee pursuant to PARAGRAPH (i) above exceeds the
Asset Termination Value as of such date, then the excess shall be paid to the
Lessee on the Expiration Date.
(l) The Lessee shall not be entitled to exercise or consummate
the Remarketing Option if a circumstance that would permit the Lessor to require
the Lessee to repurchase the Property under SECTION 16.3 exists and is
continuing.
(m) No subleases affecting the Property shall be in effect on
the Expiration Date.
If one or more of the foregoing provisions shall not be fulfilled as of
the relevant date set forth above, then the Lessor shall declare by written
notice to the Lessee the Remarketing Option to be null and void (whether or not
it has been theretofore exercised by the Lessee) as to the Property, in which
event all of the Lessee's rights under this SECTION 22.1 shall immediately
terminate and the Lessee shall be obligated to vacate the Property on the
Expiration Date and comply with the obligations set forth in SECTION 22.3.
Except as expressly set forth herein, the Lessee shall have no right, power or
authority to bind the Lessor in connection with any proposed sale of the
Property.
If the Lessee has paid the Existing Facility and Tenant Improvements
Residual Value Guarantee Amount and the Expansion Improvements Residual
Guarantee Amount as required herein and in Section 3.22 of the Participation
Agreement, proceeds from a sale of the Property pursuant to the Remarketing
Option or, if not sold as provided in this SECTION 22.1 from a sale of the
Property occurring thereafter shall be distributed as provided in Section 3.14
of the Participation Agreement.
22.2 CERTAIN OBLIGATIONS CONTINUE. During the Marketing Period, the
obligation of the Lessee to pay Rent (including the installment of Basic Rent
due on the fifth anniversary of the Closing Date or at the end of any Renewal
Term, as the case may be) shall continue undiminished until payment in full to
the Lessor, for deposit into an account with the Agent (or as otherwise required
pursuant to Section 3.22 of the Participation Agreement), of the Net Sales
Proceeds, the Existing Facility and Tenant Improvements Residual Value Guarantee
Amount and the Expansion Improvements Residual Guarantee Amount, and (without
duplication) all other amounts due to the Lessor with respect to the Property
under the Operative Documents. The Lessor shall have the right, but shall be
under no duty, to solicit bids, to inquire into the efforts of the Lessee to
obtain bids or otherwise to take action in connection with any such sale, other
than as expressly provided in this ARTICLE XXII.
22.3 SUPPORT OBLIGATIONS. In the event that (a) the Lessee does not
elect to purchase the Property on the Expiration Date, (b) this Lease is
terminated without a purchase of the Property by the Lessee as expressly
permitted herein, or (c) pursuant to the Lessor's exercise of remedies under
ARTICLE XVII, this Lease is terminated, the Lessee shall, upon the request of
the Lessor, exercise all commercially reasonable efforts to provide the Lessor
or other purchaser of
37
the Property, effective on the Expiration Date or earlier termination of this
Lease, with (i) all permits, certificates of occupancy, governmental licenses
and authorizations held by the Lessee or any of its Affiliates with respect
to the Property (to the extent such items are transferable), (ii) such
easements, licenses, rights-of-way and other rights and privileges in the
nature of an easement held by the Lessee or any of its Affiliates with
respect to the Property and (iii) any service agreements, contracts or
subcontracts to which the Lessee or any of its Affiliates is a party or a
beneficiary at such time relating to the use and operation of the Property,
in each case to the extent assignable. All assignments, licenses, easements,
agreements and other deliveries required by clauses (i), (ii) and (iii) of
this SECTION 22.3 shall be in form reasonably satisfactory to the Lessor and
shall, to the extent permissible pursuant to the underlying assigned interest
or Applicable Law, be fully assignable (including both primary assignments
and assignments given in the nature of security) without payment of any fee,
cost or other charge.
ARTICLE XXIII.
23.1 HOLDING OVER. If the Lessee shall for any reason remain in
possession of the Property after the expiration or earlier termination of this
Lease (unless the Property is conveyed to the Lessee), such possession shall be
as a tenancy at sufferance during which time the Lessee shall continue to pay
Prepaid Rent, to the extent such possession occurs prior to the Completion Date,
or Supplemental Rent, to the extent such possession occurs from and after the
Completion Date, that would be payable by the Lessee hereunder were the Lease
then in full force and effect and the Lessee shall continue to pay Basic Rent at
an annual rate equal to 110% of the average annual rate of Basic Rent payable
hereunder during the Term. Such Basic Rent shall be payable from time to time
upon demand by the Lessor. During any period of tenancy at sufferance, the
Lessee shall, subject to the second preceding sentence, be obligated to perform
and observe all of the terms, covenants and conditions of this Lease, but shall
have no rights hereunder other than the right, to the extent given by law to
tenants at sufferance, to continue its occupancy and use of the Property.
Nothing contained in this ARTICLE XXIII shall constitute the consent, express or
implied, of the Lessor to the holding over of the Lessee after the expiration or
earlier termination of this Lease (unless the Property is conveyed to the
Lessee), and nothing contained herein shall be read or construed to relieve the
Lessee of its obligations to purchase or remarket the Property on the Expiration
Date pursuant to ARTICLE XX or ARTICLE XXII or as preventing the Lessor from
maintaining a suit for possession of the Property or exercising any other remedy
available to the Lessor at law or in equity or hereunder.
ARTICLE XXIV.
24.1 RISK OF LOSS. The Lessee assumes all risks of loss arising
from any Casualty or Condemnation which arises or occurs prior to the Expiration
Date or while the Lessee is in possession of the Property and all liability for
all personal injuries and deaths and damages to property suffered by any Person
or property on or in connection with the Property which arises or occurs prior
to the Expiration Date or while the Lessee is in possession of the Property,
except in each case to the extent any such loss or liability is primarily caused
by the gross negligence or willful misconduct of a Lessor Party; PROVIDED,
HOWEVER, that the Lessee shall have no obligation
38
under this SECTION 24.1 on account of any such loss or liability arising with
respect to the Expansion Improvements only prior to the Completion Date,
except as follows:
(i) The Lessee shall be liable to the Lessor
under this SECTION 24.1 for all such losses and liabilities
within the Lessee's Control, subject to the following:
(A) if any such loss or liability is
not related to an inability or failure to
complete construction of the Expansion
Improvements (or if such loss or liability
is related to an inability or failure to
complete construction of the Expansion
Improvements but also constitutes or arises
out of a Fully Indemnifiable Event), the
Lessee's obligations in this SECTION 24.1
shall not be subject to any monetary
limitation; and
(B) if such loss or liability is
related to an inability or failure to
complete construction of the Expansion
Improvements and such loss or liability does
not constitute or arise out of a Fully
Indemnifiable Event, the Lessee's monetary
obligation provided in this SECTION 24.1,
together with all other amounts payable
prior to the Completion Date for the
Expansion Improvements under Section
9.1(b)(i) of the Participation Agreement,
Section 9.3(b)(i) of the Participation
Agreement, clause (5)(a)(ii) of Section 13.1
of the Participation Agreement or Section
13.10 of the Participation Agreement and any
similarly limited payment obligation of the
Lessee in connection with the return or sale
of the Property under this Lease or the
Construction Agency Agreement, shall not
exceed the maximum Expansion Improvements
Residual Value Guarantee Amount.
(ii) If any Lessor Party incurs any such
loss or liability for which the Lessee is not liable pursuant
to this SECTION 24.1, the amount of such loss or liability
shall, if such Lessor Party shall so request by a written
notice to the Lessor and the Lessor shall give its prior
written consent thereto, be capitalized pursuant to Section
3.7(e)(ii) of the Participation Agreement.
ARTICLE XXV.
25.1 SUBLETTING AND ASSIGNMENT. THE LESSEE MAY NOT ASSIGN THIS
LEASE OR ANY OF ITS RIGHTS OR OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT
OF LESSOR. The Lessee may, without the consent of the Lessor, sublease the
Property or portion thereof to any Person, PROVIDED, that no such sublease
shall, in the opinion of the Lessor, materially adversely affect any of the
Lessor's interests, rights or remedies under the Lease or the Lessor's title
to the Property. No assignment, sublease or other relinquishment of
possession of the Property shall in any way discharge or diminish any of the
Lessee's obligations to the Lessor hereunder and the Lessee shall remain
directly and primarily liable under this Lease
39
as to the Property, or portion thereof, so assigned or sublet. Any sublease
of the Property shall be made subject to and subordinated to this Lease and
to the rights of the Lessor hereunder, and shall expressly provide for the
surrender of the Property (or portion thereof) after a Lease Event of Default
hereunder, PROVIDED THAT, the Lessor hereby consents to the sublease by
Lessee to Micron pursuant to the Micron Sublease of approximately 25,000
square feet of office space at the Property for a term not to exceed nine (9)
months and agrees that it will cause the Agent to enter into the Micron SNDA;
PROVIDED, that in no event shall the term of such Micron SNDA exceed nine (9)
months. All such subleases shall expressly provide for termination at or
prior to the earlier of the applicable Expiration Date or other date of
termination of this Lease unless the Lessee shall have purchased the Property
pursuant to ARTICLE XX. No assignee or sublessee shall use the Property in a
manner which is substantially different from the manner in which the Property
is used or intended for use by the Lessee or in any manner not otherwise
permitted under SECTION 8.2, without the prior written consent of the Lessor.
ARTICLE XXVI.
26.1 ESTOPPEL CERTIFICATES. At any time and from time to time upon
not less than twenty (20) days' prior request by the Lessor or the Lessee (the
"REQUESTING PARTY"), the other party (whichever party shall have received such
request, the "CERTIFYING PARTY") shall furnish to the Requesting Party (but not
more than four times per year unless required to satisfy the requirements of any
sublessees and only to the extent that the required information has been
provided to the Certifying Party by the other party) a certificate signed by an
individual having the office of vice president or higher in the Certifying Party
certifying that this Lease is in full force and effect (or that this Lease is in
full force and effect as modified and setting forth the modifications); the
dates to which the Basic Rent and Supplemental Rent have been paid; to the best
knowledge of the signer of such certificate, whether or not the Requesting Party
is in default under any of its obligations hereunder (and, if so, the nature of
such alleged default); and such other matters under this Lease as the Requesting
Party may reasonably request. Any such certificate furnished pursuant to this
ARTICLE XXVI may be relied upon by the Requesting Party, and any existing or
prospective mortgagee, purchaser or lender, and any accountant or auditor, of,
from or to the Requesting Party (or any Affiliate thereof), as well as by Micron
in connection with the Micron Sublease.
ARTICLE XXVII.
27.1 RIGHT TO INSPECT. During the Term, the Lessee shall upon
reasonable notice from the Lessor (except that no notice shall be required if a
Lease Event of Default has occurred and is continuing), permit the Lessor, the
Agent and their respective authorized representatives to inspect the Property
during normal business hours, provided that (i) such inspections shall not
unreasonably interfere with the Lessee's business operations at the Property,
(ii) the Lessee may, if it so chooses, be present during such inspections and
(iii) the Lessor shall be responsible for the reasonable costs of any damage to
the Property caused by the gross negligence or willful misconduct of the Lessor
during such inspection.
40
27.2 NO WAIVER. No failure by the Lessor or the Lessee to insist
upon the strict performance of any term hereof or to exercise any right, power
or remedy upon a default hereunder, and no acceptance of full or partial payment
of Rent during the continuance of any such default, shall constitute a waiver of
any such default or of any such term. To the fullest extent permitted by law, no
waiver of any default shall affect or alter this Lease, and this Lease shall
continue in full force and effect with respect to any other then existing or
subsequent default.
ARTICLE XXVIII.
28.1 ACCEPTANCE OF SURRENDER. No surrender to the Lessor of this
Lease or of all or any portion of the Property or of any part thereof or of any
interest therein shall be valid or effective unless agreed to and accepted in
writing by the Lessor and, prior to the payment or performance of all
obligations under the Participation Agreement and termination of the
Commitments, the Agent, and no act by the Lessor or the Agent or any
representative or agent of the Lessor or the Agent, other than a written
acceptance, shall constitute an acceptance of any such surrender.
ARTICLE XXIX.
29.1 NO MERGER OF TITLE. There shall be no merger of this Lease or
of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, in whole or in part,
(a) this Lease or the leasehold estate created hereby or any interest in this
Lease or such leasehold estate, or (b) any estate of others in the Property
created by any sublease permitted under this Lease, except as may expressly be
stated in a written instrument duly executed and delivered by the appropriate
Person.
ARTICLE XXX.
30.1 NOTICES. All notices, demands, requests, consents, approvals
and other communications hereunder shall be in writing and delivered (i)
personally, (ii) by a nationally recognized overnight courier service, (iii) by
mail (by registered or certified mail, return receipt requested, postage
prepaid) or (iv) by confirmed facsimile, addressed to the respective parties, as
follows:
If to the Lessee: TriQuint Semiconductor Texas, LP
13512 North Central Expressway
Dallas, Texas 75243-1108
Attention: Vice President
Telephone: (972) 994-8511
Facsimile: (972) 994-8499
41
TriQuint Semiconductor, Inc.
with a copy to: 2300 N.E. Brookwood Parkway
Hillsboro, Oregon 97124
Attention: Treasurer
Telephone: (503) 615-9189
Facsimile: (503) 615-8904
If to the Lessor: Lease Plan North America, Inc.
135 South LaSalle Street, Suite 740
Chicago, Illinois 60603
Attention: Elizabeth R. McClellan
Telephone: (312) 904-2809
Facsimile: (312) 904-6217
If to the Agent: ABN AMRO Bank N.V.
208 South LaSalle Street, Suite 1500
Chicago, Illinois 60604
Attention: Gregory R. Miller
Telephone: (312) 992-5170
Facsimile: (312) 992-5111
with a copy to: ABN AMRO Bank N.V.
One Union Square
600 University Street, Suite 2323
Seattle, Washington 98101
Attention: Lee Lee Miao
Telephone: (206) 654-0362
Facsimile: (206) 682-5641
or such additional parties and/or other address as such party may hereafter
specify in writing in accordance with this Lease, and shall be effective upon
receipt or refusal thereof.
ARTICLE XXXI.
31.1 MISCELLANEOUS. Anything contained in this Lease to the
contrary notwithstanding, all claims against and liabilities of the Lessee or
the Lessor arising from events commencing prior to the expiration or earlier
termination of this Lease shall survive such expiration or earlier termination.
If any term or provision of this Lease or any application thereof shall be
declared invalid or unenforceable, the remainder of this Lease and any other
application of such term or provision shall not be affected thereby. If any
right or option of the Lessee provided in this Lease, including any right or
option described in ARTICLES XV, XVI, XX, XXI or XXII, would, in the absence of
the limitation imposed by this sentence, be invalid or unenforceable as being in
violation of the rule against perpetuities or any other rule of law relating to
the vesting of an interest in or the suspension of the power of alienation of
property, then such right or option shall be exercisable only during the period
which shall end twenty-one (21) years after the date of death of the last
survivor of the descendants of Franklin D. Roosevelt, the former president of
the
42
United States, Henry Ford, the deceased automobile manufacturer, and John D.
Rockefeller, the founder of the Standard Oil Company, known to be alive on
the date of the execution, acknowledgment and delivery of this Lease.
31.2 AMENDMENTS AND MODIFICATIONS. Subject to the requirements,
restrictions and conditions set forth in the Participation Agreement, neither
this Lease, any Lease Supplement nor any provision hereof may be amended,
waived, discharged or terminated except by an instrument in writing in
recordable form signed by the Lessor and the Lessee.
31.3 SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Lease shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
31.4 HEADINGS AND TABLE OF CONTENTS. The headings and table of
contents in this Lease are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof.
31.5 COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
31.6 GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK (EXCLUDING ANY CONFLICT OF LAW OR
CHOICE OF LAW RULES (OTHER THAN SECTION 5-1401 OR 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK) WHICH MIGHT LEAD TO THE APPLICATION OF
THE INTERNAL LAWS OF ANY OTHER JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, EXCEPT AS TO MATTERS RELATING TO THE CREATION OF
LEASEHOLD INTERESTS AND THE CREATION, ATTACHMENT AND PERFECTION OF SECURITY
INTERESTS OR EXERCISE OF REMEDIES WITH RESPECT THERETO, WHICH MATTERS SHALL BE
GOVERNED BY THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, SUBJECT TO
SECTIONS 9-103 AND 1-105 OF THE APPLICABLE UNIFORM COMMERCIAL CODE.
31.7 LIMITATIONS ON RECOURSE. The parties hereto agree that the
Lessor shall have no personal liability whatsoever to the Lessee or its
respective successors and assigns for any claim based on or in respect of this
Lease or any of the other Operative Documents or arising in any way from the
transactions contemplated hereby or thereby; PROVIDED, HOWEVER, that the Lessor
shall be liable in its individual capacity (a) for its own fraud, willful
misconduct or gross negligence (or negligence in the handling of funds), (b) for
liabilities that may result from the incorrectness of any representation or
warranty expressly made by it in Section 8.1 of the Participation Agreement or
from the failure of the Lessor to perform its covenants and agreements set forth
in Section 10.3 of the Participation Agreement, and (c) for any Taxes based on
or measured by any fees, commission or compensation received by it for acting as
the Lessor as contemplated by the Operative Documents. It is understood and
agreed that, except as provided in the preceding proviso: (i) the Lessor shall
have no personal liability under any of the Operative Documents as a result of
acting pursuant to and consistent with any of the Operative Documents; (ii) all
obligations of the Lessor to the Lessee are solely nonrecourse obligations
43
except to the extent that it has received payment from others and are
enforceable solely against the Lessor's interest in the Property; and (iii) all
such personal liability of the Lessor is expressly waived and released as a
condition of, and as consideration for, the execution and delivery of the
Operative Documents by the Lessor.
31.8 ORIGINAL LEASE. The single executed original of this Lease
marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on the signature
page thereof and containing the receipt of the Agent therefor on or following
the signature page thereof shall be the Original Executed Counterpart of this
Lease (the "ORIGINAL EXECUTED COUNTERPART"). To the extent that this Lease
constitutes chattel paper, as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction, no security interest in this
Lease may be created through the transfer or possession of any counterpart other
than the Original Executed Counterpart.
31.9 LANDLORD'S WAIVER. The Lessor hereby waives all statutory,
contractual or common law landlord's liens or any other Liens in favor of the
Lessor with respect to all inventory, equipment and personalty of the Guarantor
and the Lessee located at the Property, other than the Equipment and all
renewals and replacements of the Equipment. The Lessor agrees to execute such
further and additional instruments as the Lessee (or its other lenders) may
reasonably request, including, without limitation, UCC-3's, to evidence and
effectuate the waiver contained in the preceding sentence.
[signature page follows]
44
IN WITNESS WHEREOF, the parties have caused this Lease to be duly
executed and delivered as of the date first above written.
LEASE PLAN NORTH AMERICA, INC.,
an Illinois corporation, as Lessor
By: /S/ ELIZABETH R. McCELLAN
---------------------------------------
Name: ELIZABETH R. McCELLAN
---------------------------------------
Title: VICE PRESIDENT
---------------------------------------
TRIQUINT SEMICONDUCTOR TEXAS, LP, a Texas limited
partnership, as Lessee
By: TriQuint Texas General Holding Company,
its general partner
By: /s/ STEVEN J. SHARP
-----------------------------------------------
Name: STEVEN J. SHARP
---------------------------------------------
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
--------------------------------------------
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of August 30, 2000.
ABN AMRO BANK N.V., as Agent
By: /S/ ELIZABETH R. McCELLAN
-----------------------------
Name: ELIZABETH R. McCELLAN
-----------------------------
Title: VICE PRESIDENT
-----------------------------
By: /S/ BLAKE J. LACHER
-----------------------------
Name: BLAKE J. LACHER
-----------------------------
Title: VICE PRESIDENT
-----------------------------
Prepared by and upon recording return to: W. Kirk Grimm, Esq., McGuireWoods
LLP, 77 West Wacker Drive, Chicago, Illinois 60601 (312) 849-3697
EXHIBIT A
TO THE LEASE
LEASE SUPPLEMENT NO. 1,
MEMORANDUM OF LEASE, DEED OF TRUST
AND SECURITY AGREEMENT
THIS LEASE SUPPLEMENT NO. 1, MEMORANDUM OF LEASE, DEED OF TRUST AND
SECURITY AGREEMENT (this "LEASE SUPPLEMENT") dated as of August ___, 2000 among
LEASE PLAN NORTH AMERICA, INC. an Illinois corporation, (the "LESSOR"), with an
address at 135 S. LaSalle Street, Chicago, Illinois 60603 and TriQuint
Semiconductor Texas, LP, a Texas limited partnership, as lessee (the "LESSEE"),
with an address at 13512 North Central Expressway, Dallas, Texas 75243, and
Charles R. Swartz, as Trustee, with an address at McGuireWoods LLP, One James
Center, 901 East Cary Street, Richmond, Virginia 23219-4030, for the benefit of
Lessor (the "TRUSTEE").
WHEREAS, the Lessor is the fee owner of the Existing Facility (the
"EXISTING FACILITY") described on SCHEDULE 1 hereto and Tenant Improvements to
be constructed thereon ("TENANT IMPROVEMENTS") and wishes to lease the Existing
Facility and Tenant Improvements to the Lessee;
WHEREAS, the Lessee desires to grant a deed of trust lien on its
interest in the Existing Facility and Tenant Improvements created by the Lease
to the Trustee for the benefit of the Lessor to secure the Obligations (as
hereinafter defined) of the Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix 1 to that certain Deed of Trust,
Security Agreement and Financing Statement from Lessor, as Grantor, to the
Trustee for the benefit of ABN AMRO Bank N.V., in its capacity as agent under
the Participation Agreement, to be recorded hereafter in the Real Property
Records of Collin County, Texas; and the rules of interpretation set forth in
such Appendix 1 shall apply to this Lease Supplement.
SECTION 2. EXISTING FACILITY. Attached hereto as SCHEDULE 1 is the
description of the Existing Facility. Effective upon the execution and delivery
of this Lease Supplement by the Lessor and the Lessee, the Existing Facility and
Tenant Improvements shall be subject to the terms and provisions of the Lease.
Subject to the terms and conditions of the Lease, the Lessor hereby leases to
the Lessee for the Term (as defined below) of the Lease, the Lessor's interest
in the Existing Facility and Tenant Improvements, and the Lessee hereby agrees,
expressly for the
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direct benefit of the Lessor, to lease from the Lessor for the Term, the
Lessor's interest in the Existing Facility and Tenant Improvements.
SECTION 3. PARTIES AND ADDRESSES. The Lease is dated as of August ___,
2000, between the Lessor, whose principal office is at 135 South LaSalle Street,
Chicago, Illinois 60603 and the Lessee, whose principal office is 13512 North
Central Expressway, Dallas, Texas 75243-1108.
SECTION 4. LEASE TERM. The term of the Lease (the "TERM") shall begin
on the Lease Commencement Date and shall end on August ___, 2005 unless the Term
is renewed or earlier terminated in accordance with the provisions of the Lease.
The Lease contains two option periods of two years each, which give the Lessee
the right, subject to the terms thereof, to extend the term of the Lease to no
later than August ___, 2009.
SECTION 5. OWNERSHIP OF THE PROPERTY.
(a) It is the intent of the parties hereto that: (i) the Lease
constitutes an "operating lease" pursuant to Statement of Financial Accounting
Standards No. 13, as amended and interpreted, for purposes of the Lessee's
financial reporting, and (ii) for purposes of federal, state, and local income
or franchise taxes (and for any other tax imposed on or measured by income) and
documentary, intangibles and transfer taxes, the transaction contemplated hereby
and by the Lease is a financing arrangement and preserves ownership in the
Property in the Lessee. The parties shall take no action inconsistent with such
intention. Nevertheless, the Lessee acknowledges and agrees that neither the
Agent, the Lessor nor any Participant has made any representations or warranties
to the Lessee concerning the tax, accounting or legal characteristics of the
Operative Documents and that the Lessee has obtained and relied upon such tax,
accounting and legal advice concerning the Operative Documents as it deems
appropriate.
(b) Anything to the contrary in the Operative Documents
notwithstanding, the Lessor and the Lessee intend and agree that with respect to
the nature of the transactions evidenced by the Lease in the context of the
exercise of remedies under the Operative Documents, including, without
limitation, in the case of any insolvency or receivership proceedings or a
petition under the United States bankruptcy laws or any other applicable
insolvency laws or statute of the United States of America or any State or
Commonwealth thereof or any foreign country affecting the Lessee, the Lessor, or
any Participant or any enforcement or collection actions arising out of or
relating to bankruptcy or insolvency laws, (i) the transactions evidenced by the
Lease shall be deemed to be loans made by the Lessor and the Participants to the
Lessee secured by the Property, (ii) the obligations of the Lessee under the
Lease to pay Basic Rent, Supplemental Rent, Asset Termination Value, Existing
Facility and Tenant Improvements Residual Value Guarantee Amount or Expansion
Improvements Residual Value Guarantee Amount in connection with a purchase of
the Property pursuant to the Lease shall be treated as payments of interest on
(with respect to Rent), and principal of (with respect to all other such
payments), loans from the Lessor and the Participants to the Lessee, and (iii)
the Lease grants a security interest and mortgage or deed of trust lien, as the
case may be, in the Property to the Lessor and the Lease has been assigned by
the Lessor to the Agent for the benefit of the Participants to secure the
Lessee's performance under and payment of all amounts under the Lease and the
other Operative Documents.
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(c) Specifically, without limiting the generality of SUBSECTIONS
(a) and (b) of this SECTION 5, the parties hereto intend and agree that, for
purposes of filing federal, state and local returns, reports and other
statements relating to income or franchise taxes, or any other taxes imposed
upon or measured by income, (i) the Lessee shall be entitled to take any
deduction, credit, allowance or other reporting position consistent with its
status as owner of the Property; and (ii) neither the Lessor nor any Participant
shall take an initial position on its federal, state and local returns, reports
and other statements relating to income or franchise taxes that is inconsistent
with the Lessee's status as owner of the Property.
(d) If the transactions evidenced by this Agreement and the other
Operative Documents can no longer be treated as an operating lease pursuant to
GAAP for accounting purposes, all provisions in the Operative Documents limiting
the Lessee's obligation to pay the Asset Termination Value (including the
Remarketing Option) on the Expiration Date shall no longer apply. If any such
change in accounting treatment shall occur, the Lessee, the Lessor, the Agent
and the Participants shall negotiate in good faith to enter into such amendments
to the Operative Documents as may be reasonably necessary or desirable to
reflect the foregoing.
(e) In the event that, after the date hereof, the UCC as enacted
and in effect in any applicable jurisdiction shall be revised or amended, the
Lessee, the Lessor, the Agent and the Participants shall negotiate in good faith
to enter into such amendments to the Operative Documents as may be reasonably
necessary or desirable to effect the intended purposes of the Lease and the
other Operative Documents in light of the effect of such revisions or
amendments.
(f) Specifically, without limiting the generality of subsection
(b) of this SECTION 5, in order to secure the Lessee's obligation to pay Basic
Rent, Supplemental Rent, Asset Termination Value, the Residual Value Guarantee
Amount, the Purchase Option Price and all other obligations owing by the Lessee
under the Operative Documents (the "OBLIGATIONS"), the Lessee hereby grants,
remises, releases, aliens, conveys, transfers, mortgages, assigns and warrants
to the Trustee for the benefit of the Lessor, WITH POWER OF SALE and right of
entry and possession, all of the Lessee's right, title and interest in and to
the following (collectively, the "COLLATERAL"):
(i) all right, title and interest of the Lessee in and to the
Property, including, without limitation, the property described on
Schedule 1 hereto, or any part thereof and the reversions, remainders,
rents, issues and profits thereof;
(ii) all right, title and interest of the Lessee in and to all
Fixtures and Improvements and all substitutes and replacements of, and
all additions and improvements to, the Improvements and the Fixtures,
subsequently acquired by the Lessee or constructed, assembled or placed
by Lessee on the Land Interest, immediately upon such acquisition,
release, construction, assembling or placement, including, without
limitation, any and all building materials whether stored at the
Property or offsite, and, in each such case, without any further
mortgage, deed of trust, conveyance, assignment or other act by the
Lessee;
(iii) all right, title and interest of the Lessee in, to and
under all books and records relating to or used in connection with the
operation of the Property or the Fixtures
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or any part thereof and the Equipment (other than any records related
to the business conducted from the Property);
(iv) all right, title and interest of the Lessee in and to all
insurance policies (including title insurance policies) required to be
maintained by the Lessee pursuant to this Lease, including the right to
collect and receive such proceeds; and all awards and other
compensation, including the interest payable thereon and the right to
collect and receive the same, made to the owner of the Property for the
taking by eminent domain, condemnation or otherwise, of all or any part
of the Property or any easement or other right therein, all to the
extent the same are assignable by the Lessee;
(v) all right, title and interest of the Lessee in and to (i)
all governmental consents, licenses, building permits, certificates of
occupancy and other governmental approvals relating to construction,
completion, occupancy, use or operation of the Property or any part
thereof, provided that any such consent, license, permit, certificate
or approval that by its terms or by operation of law would become void,
voidable, terminable or revocable or would result in a breach or
default thereunder or under any applicable law if subjected to the lien
granted pursuant to this clause (v) is expressly excepted and excluded
from this clause (v) to the extent necessary to avoid such result, and
(ii) all plans and specifications relating to the Property, in each
case to the extent assignable;
(vi) all Rent and all other rents, payments, purchase prices,
receipts, revenues, issues and profits payable under the Lease or
pursuant to any other lease with respect to the Property;
(vii) all proceeds, both cash and noncash, of the foregoing
and any items acquired in substitution of, or replacement for, any of
the foregoing; and
(viii) all right, title and interest of the Lessee in and to
all of the Operative Documents, including, without limitation, this
Lease Supplement, the Restated Lease Supplement and the Equipment
Schedules, regardless of whether the interest of the Lessee therein is
that of lessee, sublessee, sublessor or borrower.
(g) Specifically, without limiting the generality of subsection
(b) of this SECTION 5, the Lessor and the Lessee further intend and agree that,
for the purpose of securing the Lessee's obligations for the repayment of the
loans from the Lessor and the Participants to the Lessee, (i) the Lease shall
also be deemed to be a security agreement and financing statement within the
meaning of Article 9 of the Uniform Commercial Code (and specifically, a
construction mortgage, as said term is defined in Section 9-313(1)(c) of the
Uniform Commercial Code), a fixture filing and a real property deed of trust of
the Property; (ii) the conveyance provided for in Article II of the Lease shall
be deemed to be a grant by the Lessee to the Lessor, assigned by the Lessor to
the Agent for the benefit of the Participants, of a mortgage or deed of trust,
as applicable, lien and security interest in all of the Lessee's right, title
and interest in and to the Property, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, investments, securities or
other property, whether in the form of cash, investments, securities or other
property (it being understood that the Lessee hereby mortgages and warrants and
grants a
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security interest in the Property to Lessor to secure the loans); (iii) the
possession by the Lessor or any of its agents of any notes and such other
items of the Collateral as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" for purposes of perfecting the security interest pursuant to Section
9-305 of the Uniform Commercial Code; and (iv) notifications to Persons
holding such property, and acknowledgments, receipts or confirmations from
financial intermediaries, bankers or agents (as applicable) of the Lessee
shall be deemed to have been given for the purpose of perfecting such
security interest under Applicable Law. The Lessor and the Lessee shall, to
the extent consistent with the Lease, take such actions and execute, deliver,
file and record such other documents, financing statements, mortgages and
deeds of trust as may be necessary to ensure that, if the Lease were deemed
to create a Lien and/or security interest in the Property in accordance with
this Section, such Lien and/or security interest would be deemed to be a
perfected Lien and/or security interest of first priority (except as to
Permitted Exceptions) under Applicable Law and will be maintained as such
throughout the Term.
SECTION 6. LEASE EVENTS OF DEFAULT AND REMEDIES. Sections 17.2 through
17.5 of the Lease, which are hereby incorporated by reference, set forth the
remedies available to the Lessor and, as applicable, the Trustee, in the event
of a Lease Event of Default.
SECTION 7. PURCHASE OPTION. Sections 17.2(h), 17.2(i), 19 and 20 of the
Lease contain various purchase options which may be exercised by the Lessee
during the term of the Lease subject to the terms and conditions of said
Sections of the Lease.
SECTION 8. LIENS.
(a) THIS LEASE SUPPLEMENT IS SUPERIOR TO A DEED OF TRUST IN FAVOR
OF ABN AMRO BANK N.V., AS AGENT (THE "AGENT") UNDER THE PARTICIPATION AGREEMENT
DATED AS OF AUGUST ___, 2000 AS AMENDED OR SUPPLEMENTED, AMONG THE LESSOR, THE
AGENT, THE LESSEE, THE CONSTRUCTION AGENT, THE LESSEE'S GENERAL PARTNER, THE
GUARANTOR, THE TRANCHE T PARTICIPANT AND THE BANKS OR FINANCIAL INSTITUTIONS
PARTIES THERETO.
(b) NOTICE IS HEREBY GIVEN THAT NEITHER THE LESSOR, ANY
PARTICIPANT NOR THE AGENT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE, THE CONSTRUCTION AGENT OR
TO ANYONE HOLDING THE PROPERTY OR ANY PART THEREOF THROUGH OR UNDER THE LESSEE,
AND THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS
SHALL ATTACH TO OR AFFECT THE INTEREST OF THE LESSOR IN AND TO THE PROPERTY.
SECTION 9. RATIFICATION. Except as specifically modified hereby,
the terms and provisions of the Lease are hereby ratified and confirmed and
remain in full force and effect.
SECTION 10. ORIGINAL LEASE SUPPLEMENT. The single executed original of
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
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COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the Original
Executed Counterpart of this Lease Supplement (the "ORIGINAL EXECUTED
COUNTERPART"). To the extent that this Lease Supplement constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK (EXCLUDING ANY CONFLICT OF LAW OR
CHOICE OF LAW RULES (OTHER THAN SECTION 5-1401 OR 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK) WHICH MIGHT LEAD TO THE APPLICATION OF
THE INTERNAL LAWS OF ANY OTHER JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, EXCEPT AS TO MATTERS RELATING TO THE CREATION OF
LEASEHOLD INTERESTS AND THE CREATION, ATTACHMENT AND PERFECTION OF SECURITY
INTERESTS OR EXERCISE OF REMEDIES WITH RESPECT THERETO, WHICH MATTERS SHALL BE
GOVERNED BY THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, SUBJECT TO
SECTIONS 9-103 AND 1-105 OF THE APPLICABLE UNIFORM COMMERCIAL CODE.
SECTION 12. COUNTERPART EXECUTION. This Lease Supplement may be
executed in any number of counterparts and by each of the parties hereto in
separate counterparts, all such counterparts together constituting but one
and the same instrument.
SECTION 13. INCORPORATION BY REFERENCE. The terms and provisions of the
Lease are incorporated herein as if they were fully set forth herein and are
made a part of this Lease Supplement.
SECTION 14. RECEIPT. The Lessee hereby declares and acknowledges
that the Lessee has received, without charge, a true copy of the Lease and
this Lease Supplement.
SECTION 15. SUBSTITUTION OF TRUSTEE. From time to time, by a writing
signed and acknowledged by Lessor and recorded in the Real Property Records of
the County in which the Property is situated, Lessor may appoint another trustee
to act in the place and stead of Trustee or any successor. Such writing shall
refer to this Lease Supplement No. 1, Memorandum of Lease, Deed of Trust and
Security Agreement and set forth the date, book and page of its recordation. The
recordation of such instrument of substitution shall discharge Trustee herein
named and shall appoint the new trustee as the trustee hereunder with the same
effect as if originally named trustee herein. A writing recorded pursuant to the
provisions of this paragraph shall be conclusive proof of the proper
substitution of such new trustee.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
LEASE PLAN NORTH AMERICA, INC.
an Illinois corporation, as the Lessor
By:-------------------------------------
Name:-----------------------------------
Title:----------------------------------
TRIQUINT SEMICONDUCTOR TEXAS, LP, a
Texas limited partnership, as Lessee
By: TriQuint Texas General Holding
Company, its general partner
By:-------------------------------------
Name:-----------------------------------
Title:----------------------------------
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STATE OF )
---------------------------
SS::
COUNTY OF )
--------------------------
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared _______________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged [himself/herself] to be a Vice President of
LEASE PLAN NORTH AMERICA, INC., a corporation, and that [he/she] as such
_________________, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by [himself/herself] as such Vice President.
WITNESS my hand and seal, at office, on this the ____ day of August,
2000.
-----------------------------------
Notary Public
My Commission Expires:
- ----------------------------
A-8
STATE OF )
---------------------------
SS::
COUNTY OF )
--------------------------
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared __________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged [himself/herself] to be the _________ of
TriQuint Texas General Holding Company, a corporation and the general partner of
TriQuint Semiconductor Texas, LP, a limited partnership, and that [he/she] as
such _________, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by [himself/herself], as such _________, as general partner of
TriQuint Semiconductor Texas, LP.
WITNESS my hand and seal, at office, on this the ____ day of August,
2000.
-----------------------------------------
Notary Public
My Commission Expires:
- ----------------------------
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THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease Supplement
is hereby acknowledged as of August ____, 2000.
ABN AMRO BANK N.V., as Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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SCHEDULE 1
TO LEASE SUPPLEMENT NO. 1
EXISTING FACILITY AND TENANT IMPROVEMENTS DESCRIPTION
A-11
Prepared by and upon recording return to: W. Kirk Grimm, Esq., McGuireWoods LLP,
77 West Wacker Drive, Chicago, Illinois 60601 (312) 849-3697
EXHIBIT B
TO THE LEASE
AMENDED AND RESTATED LEASE SUPPLEMENT NO. 1,
MEMORANDUM OF LEASE, DEED OF TRUST AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LEASE SUPPLEMENT NO. 1, MEMORANDUM OF
LEASE, DEED OF TRUST AND SECURITY AGREEMENT (this "RESTATED LEASE
SUPPLEMENT") dated as of _________ ___, among LEASE PLAN NORTH AMERICA, INC.,
an Illinois corporation, (the "LESSOR"), with an address at 135 S. LaSalle
Street, Chicago, Illinois 60603, and TRIQUINT SEMICONDUCTOR TEXAS, LP, a
Texas limited partnership, as lessee (the "LESSEE"), with an address at 13512
North Central Expressway, Dallas, Texas 75243, and ____________, as Trustee,
with an address at ___________, for the benefit Lessor (the "TRUSTEE").
WHEREAS, the Lessor and the Lessee entered into that certain Lease
Supplement No. 1, Memorandum of Lease, Deed of Trust and Security Agreement,
dated as of August ___, 2000, recorded with the Real Property Records of
Collin County, Texas, in Book _________, at Page ________ for the benefit,
among others, of the Trustee;
WHEREAS, the Lessor is the fee owner of the Existing Facility
("EXISTING FACILITY") described on Schedule 1 hereto, Tenant Improvements
("TENANT IMPROVEMENTS") and Expansion Improvements ("EXPANSION IMPROVEMENTS")
to be constructed thereon hereto and wishes to lease the Existing Facility,
Tenant Improvements and Expansion Improvements to the Lessee;
WHEREAS, the Lessee desires to grant a deed of trust lien on its
interest in the Existing Facility, Tenant Improvements and Expansion
Improvements created by the Lease to the Trustee for the benefit of the
Lessor to secure the Obligations (as hereinafter defined) of the Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION. For purposes of this
Restated Lease Supplement, capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in Appendix 1 to that
certain Deed of Trust, Security Agreement and Financing Statement from
Lessor, as Grantor, to the Trustee for the benefit of ABN AMRO Bank N.V., in
its capacity as agent under the Participation Agreement, recorded in the Real
Property Records of Collin County, Texas in Book ___ at Page ____; and the
rules of interpretation set forth in Appendix 1 shall apply to this Lease
Supplement.
SECTION 2. THE PROPERTY. Attached hereto as SCHEDULE I is the
description of the Existing Facility. Effective upon the execution and
delivery of this Restated Lease Supplement
B-1
by the Lessor and the Lessee, the Existing Facility, Tenant Improvements and
Expansion Improvements shall be subject to the terms and provisions of the
Lease. Subject to the terms and conditions of the Lease, the Lessor hereby
leases to the Lessee for the Term (as defined below) of the Lease, the
Lessor's interest in the Existing Facility, Tenant Improvements and Expansion
Improvements, and the Lessee hereby agrees, expressly for the direct benefit
of the Lessor, to lease from the Lessor for the Term, the Lessor's interest
in the Existing Facility, Tenant Improvements and Expansion Improvements.
SECTION 3. PARTIES AND ADDRESSES. The Lease is dated as of August
___, 2000, between the Lessor, whose principal office is at 135 South LaSalle
Street, Chicago, Illinois 60603, and the Lessee, whose principal office is
13512 North Central Expressway, Dallas, Texas 75243-1108.
SECTION 4. LEASE TERM. The term of the Lease (the "TERM") began on
the Lease Commencement Date and shall end on August ___, 2005 unless the Term
is renewed or earlier terminated in accordance with the provisions of the
Lease. The Lease contains two option periods of two years each, which give
the Lessee the right, subject to the terms thereof, to extend the term of the
Lease to no later than August ___, 2009.
SECTION 5. OWNERSHIP OF THE PROPERTY.
(a) It is the intent of the parties hereto that: (i) the Lease
constitutes an "operating lease" pursuant to Statement of Financial
Accounting Standards No. 13, as amended and interpreted, for purposes of the
Lessee's financial reporting, and (ii) for purposes of federal, state, and
local income or franchise taxes (and for any other tax imposed on or measured
by income) and documentary, intangibles and transfer taxes, the transaction
contemplated hereby and by the Lease is a financing arrangement and preserves
ownership in the Property in the Lessee. The parties shall take no action
inconsistent with such intention. Nevertheless, the Lessee acknowledges and
agrees that neither the Agent, the Lessor nor any Participant has made any
representations or warranties to the Lessee concerning the tax, accounting or
legal characteristics of the Operative Documents and that the Lessee has
obtained and relied upon such tax, accounting and legal advice concerning the
Operative Documents as it deems appropriate.
(b) Anything to the contrary in the Operative Documents
notwithstanding, the Lessor and the Lessee intend and agree that with respect
to the nature of the transactions evidenced by the Lease in the context of
the exercise of remedies under the Operative Documents, including, without
limitation, in the case of any insolvency or receivership proceedings or a
petition under the United States bankruptcy laws or any other applicable
insolvency laws or statute of the United States of America or any State or
Commonwealth thereof or any foreign country affecting the Lessee, the Lessor,
or any Participant or any enforcement or collection actions arising out of or
relating to bankruptcy or insolvency laws, (i) the transactions evidenced by
the Lease shall be deemed to be loans made by the Lessor and the Participants
to the Lessee secured by the Property, (ii) the obligations of the Lessee
under the Lease to pay Basic Rent, Supplemental Rent, Asset Termination Value
or Existing Facility and Tenant Improvements Residual Value Guarantee Amount
or Expansion Improvements Residual Value Guarantee Amount in connection with
a purchase of the Property pursuant to the Lease shall be treated as payments
of interest on (with respect to Rent), and principal of (with respect to all
other such payments),
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respectively, loans from the Lessor and the Participants to the Lessee, and
(iii) the Lease grants a security interest and mortgage or deed of trust
lien, as the case may be, in the Property to the Lessor and the Lease has
been assigned by the Lessor to the Agent for the benefit of the Participants
to secure the Lessee's performance under and payment of all amounts under the
Lease and the other Operative Documents.
(c) Specifically, without limiting the generality of SUBSECTIONS (a)
AND (b) of this SECTION 5, the parties hereto intend and agree that, for
purposes of filing federal, state and local returns, reports and other
statements relating to income or franchise taxes, or any other taxes imposed
upon or measured by income, (i) the Lessee shall be entitled to take any
deduction, credit, allowance or other reporting position consistent with its
status as owner of the Property; and (ii) neither the Lessor nor any
Participant shall take an initial position on its federal, state and local
returns, reports and other statements relating to income or franchise taxes
that is inconsistent with the Lessee's status as owner of the Property.
(d) If the transactions evidenced by this Agreement and the other
Operative Documents can no longer be treated as an operating lease pursuant
to GAAP for accounting purposes, all provisions in the Operative Documents
limiting the Lessee's obligation to pay the Asset Termination Value
(including the Remarketing Option) on the Expiration Date shall no longer
apply. If any such change in accounting treatment shall occur, the Lessee,
the Lessor, the Agent and the Participants shall negotiate in good faith to
enter into such amendments to the Operative Documents as may be reasonably
necessary or desirable to reflect the foregoing.
(e) In the event that, after the date hereof, the UCC as enacted and
in effect in any applicable jurisdiction shall be revised or amended, the
Lessee, the Lessor, the Agent and the Participants shall negotiate in good
faith to enter into such amendments to the Operative Documents as may be
reasonably necessary or desirable to effect the intended purposes of the
Lease and the other Operative Documents in light of the effect of such
revisions or amendments.
(f) Specifically, without limiting the generality of subsection (b)
of this SECTION 5, in order to secure the Lessee's obligation to pay Basic
Rent, Supplemental Rent, Asset Termination Value, the Residual Value
Guarantee Amount, the Purchase Option Price, and all other obligations owing
by the Lessee under the Operative Documents (the "OBLIGATIONS"), the Lessee
hereby grants, remises, releases, aliens, conveys, transfers, mortgages,
assigns and warrants to the Trustee for the benefit of the Lessor, WITH POWER
OF SALE and right of entry and possession, all of the Lessee's right, title
and interest in and to the following (collectively, the "COLLATERAL"):
(i) all right, title and interest of the Lessee in and to the
Property, including, without limitation, the property described on
Schedule 1 hereto, or any part thereof and the reversions, remainders,
rents, issues and profits thereof;
(ii) all right, title and interest of the Lessee in and to all
Fixtures and Improvements and all substitutes and replacements of, and
all additions and improvements to, the Improvements and the Fixtures,
subsequently acquired by the Lessee or constructed, assembled or placed
by Lessee on the Land Interest, immediately upon such acquisition,
release, construction, assembling or placement, including, without
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limitation, any and all building materials whether stored at the
Property or offsite, and, in each such case, without any further
mortgage, deed of trust, conveyance, assignment or other act by the
Lessee;
(iii) all right, title and interest of the Lessee in, to and
under all books and records relating to or used in connection with the
operation of the Property or the Fixtures or any part thereof and the
Equipment (other than any records related to the business conducted
from the Property);
(iv) all right, title and interest of the Lessee in and to all
insurance policies (including title insurance policies) required to be
maintained by the Lessee pursuant to this Lease, including the right to
collect and receive such proceeds; and all awards and other
compensation, including the interest payable thereon and the right to
collect and receive the same, made to the owner of the Property for the
taking by eminent domain, condemnation or otherwise, of all or any part
of the Property or any easement or other right therein, all to the
extent the same are assignable by the Lessee;
(v) all right, title and interest of the Lessee in and to (i)
all governmental consents, licenses, building permits, certificates of
occupancy and other governmental approvals relating to construction,
completion, occupancy, use or operation of the Property or any part
thereof, PROVIDED that any such consent, license, permit, certificate
or approval that by its terms or by operation of law would become void,
voidable, terminable or revocable or would result in a breach or
default thereunder or under any applicable law if subjected to the lien
granted pursuant to this CLAUSE (v) is expressly excepted and excluded
from this CLAUSE (v) to the extent necessary to avoid such result, and
(ii) all plans and specifications relating to the Property, in each
case to the extent assignable;
(vi) all Rent and all other rents, payments, purchase prices,
receipts, revenues, issues and profits payable under the Lease or
pursuant to any other lease with respect to the Property;
(vii) all proceeds, both cash and noncash, of the foregoing
and any items acquired in substitution of, or replacement for, any of
the foregoing; and
(viii) all right, title and interest of the Lessee in and to
all of the Operative Documents, including, without limitation, this
Lease Supplement, the Restated Lease Supplement and the Equipment
Schedules, regardless of whether the interest of the Lessee therein is
that of lessee, sublessee, sublessor or borrower.
(g) Specifically, without limiting the generality of subsection (b)
of this SECTION 5, the Lessor and the Lessee further intend and agree that,
for the purpose of securing the Lessee's obligations for the repayment of the
loans from the Lessor and the Participants to the Lessee, (i) the Lease shall
also be deemed to be a security agreement and financing statement within the
meaning of Article 9 of the Uniform Commercial Code (and specifically, a
construction mortgage, as said term is defined in Section 9-313(1)(c) of the
Uniform Commercial Code), a fixture filing and a real property deed of trust
of the Property; (ii) the conveyance provided for in
B-4
Article II of the Lease shall be deemed to be a grant by the Lessee to the
Lessor, assigned by the Lessor to the Agent for the benefit of the
Participants, of a mortgage or deed of trust, as applicable, lien and
security interest in all of the Lessee's right, title and interest in and to
the Property, and all proceeds of the conversion, voluntary or involuntary,
of the foregoing into cash, investments, securities or other property,
whether in the form of cash, investments, securities or other property (it
being understood that the Lessee hereby mortgages and warrants and grants a
security interest in the Property to the Lessor to secure the loans); (iii)
the possession by the Lessor or any of its agents of any notes and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-305 of the
Uniform Commercial Code; and (iv) notifications to Persons holding such
property, and acknowledgments, receipts or confirmations from financial
intermediaries, bankers or agents (as applicable) of the Lessee shall be
deemed to have been given for the purpose of perfecting such security
interest under Applicable Law. The Lessor and the Lessee shall, to the extent
consistent with the Lease, take such actions and execute, deliver, file and
record such other documents, financing statements, mortgages and deeds of
trust as may be necessary to ensure that, if the Lease were deemed to create
a Lien and/or security interest in the Property in accordance with this
Section, such Lien and/or security interest would be deemed to be a perfected
Lien and/or security interest of first priority (except as to Permitted
Exceptions) under Applicable Law and will be maintained as such throughout
the Term.
SECTION 6. LEASE EVENTS OF DEFAULT AND REMEDIES. Sections 17.2
through 17.5 of the Lease, which are hereby incorporated by reference, set
forth the remedies available to the Lessor and, as applicable, the Trustee,
in the event of a Lease Event of Default.
SECTION 7. PURCHASE OPTION. Sections 17.2(h), 17.2(i), 19 and 20 of
the Lease contain various purchase options which may be exercised by the
Lessee during the term of the Lease subject to the terms and conditions of
said Sections of the Lease.
SECTION 8. LIENS.
(a) THIS RESTATED LEASE SUPPLEMENT IS SUPERIOR TO A DEED OF TRUST IN
FAVOR OF ABN AMRO BANK N.V., AS AGENT (THE "AGENT") UNDER THE PARTICIPATION
AGREEMENT DATED AS OF AUGUST ___, 2000 AS AMENDED OR SUPPLEMENTED, AMONG THE
LESSOR, THE AGENT, THE LESSEE, THE CONSTRUCTION AGENT, THE LESSEE'S GENERAL
PARTNER, THE GUARANTOR, THE TRANCHE T PARTICIPANT AND THE BANKS OR FINANCIAL
INSTITUTIONS PARTIES THERETO.
(b) NOTICE IS HEREBY GIVEN THAT NEITHER THE LESSOR, ANY PARTICIPANT
NOR THE AGENT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS
FURNISHED OR TO BE FURNISHED TO THE LESSEE, THE CONSTRUCTION AGENT OR TO
ANYONE HOLDING THE PROPERTY OR ANY PART THEREOF THROUGH OR UNDER THE LESSEE,
AND THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF THE LESSOR IN AND TO THE
PROPERTY.
B-5
SECTION 9. RATIFICATION. Except as specifically modified hereby,
the terms and provisions of the Lease are hereby ratified and confirmed
and remain in full force and effect. This Restated Lease Supplement amends,
restates, supersedes and replaces that certain Lease Supplement No. 1,
Memorandum of Lease, Deed of Trust and Security Agreement dated as of
August ___, 2000 between the Lessee and the Lessor in its entirety.
SECTION 10. ORIGINAL LEASE SUPPLEMENT. The single executed original
of this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the
Original Executed Counterpart of this Restated Lease Supplement (the
"ORIGINAL EXECUTED COUNTERPART"). To the extent that this Restated Lease
Supplement constitutes chattel paper, as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction, no security
interest in this Restated Lease Supplement may be created through the
transfer or possession of any counterpart other than the Original Executed
Counterpart.
SECTION 11. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK (EXCLUDING ANY CONFLICT OF LAW
OR CHOICE OF LAW RULES (OTHER THAN SECTION 5-1401 OR 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK) WHICH MIGHT LEAD TO THE APPLICATION
OF THE INTERNAL LAWS OF ANY OTHER JURISDICTION) AS TO ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, EXCEPT AS TO MATTERS RELATING TO THE
CREATION OF LEASEHOLD INTERESTS AND THE CREATION, ATTACHMENT AND PERFECTION
OF SECURITY INTERESTS OR EXERCISE OF REMEDIES WITH RESPECT THERETO, WHICH
MATTERS SHALL BE GOVERNED BY THE LAWS OF THE STATE IN WHICH THE PROPERTY IS
LOCATED, SUBJECT TO SECTIONS 9-103 AND 1-105 OF THE APPLICABLE UNIFORM
COMMERCIAL CODE.
SECTION 12. COUNTERPART EXECUTION. This Restated Lease Supplement
may be executed in any number of counterparts and by each of the parties
hereto in separate counterparts, all such counterparts together constituting
but one and the same instrument.
SECTION 13. INCORPORATION BY REFERENCE. The terms and provisions of
the Lease are incorporated herein as if they were fully set forth herein and
are made a part of this Restated Lease Supplement.
SECTION 14. RECEIPT. The Lessee hereby declares and acknowledges
that the Lessee has received, without charge, a true copy of the Lease and
this Restated Lease Supplement.
SECTION 15. SUBSTITUTION OF TRUSTEE. From time to time, by a writing
signed and acknowledged by Lessor and recorded in the Real Property Records
of the County in which the Property is situated, Lessor may appoint another
trustee to act in the place and stead of Trustee or any successor. Such
writing shall refer to this Restated Lease Supplement and set forth the date,
book and page of its recordation. The recordation of such instrument of
substitution shall discharge Trustee herein named and shall appoint the new
trustee as the trustee hereunder with the same effect as if originally named
trustee herein. A writing recorded pursuant to the
B-6
provisions of this paragraph shall be conclusive proof of the proper
substitution of such new trustee.
[signature page follows]
B-7
IN WITNESS WHEREOF, each of the parties hereto has caused this
Restated Lease Supplement to be duly executed by an officer thereunto duly
authorized as of the date and year first above written.
LEASE PLAN NORTH AMERICA, INC.,
an Illinois corporation, as Lessor
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
TRIQUINT SEMICONDUCTOR TEXAS,
LP, a Texas limited partnership, as Lessee
By: TriQuint Texas General Holding
Company, its general partner
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
B-8
STATE OF )
---------------------------
SS::
COUNTY OF )
--------------------------
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared _______________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory
evidence), and who, upon oath, acknowledged [himself/herself] to be a Vice
President of LEASE PLAN NORTH AMERICA, INC., a corporation, and that [he/she]
as such __________________, being duly authorized so to do, executed the
foregoing instrument for the purposes therein contained by signing the name
of the corporation by [himself/herself] as such Vice President.
WITNESS my hand and seal, at office, on this the ____ day of August,
2000.
-------------------------------------
Notary Public
My Commission Expires:
- ----------------------------
B-9
STATE OF )
---------------------------
SS::
COUNTY OF )
--------------------------
Before me, the undersigned, a Notary Public within and for the State
and County aforesaid, personally appeared __________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory
evidence), and who, upon oath, acknowledged [himself/herself] to be the
_________ of TriQuint Texas General Holding Company, a corporation and the
general partner of TriQuint Semiconductor Texas, LP, a limited partnership,
and that [he/she] as such _________, being duly authorized so to do, executed
the foregoing instrument for the purposes therein contained by signing the
name of the corporation by [himself/herself], as such _________, as general
partner of TriQuint Semiconductor Texas, LP.
WITNESS my hand and seal, at office, on this the ____ day of August,
2000.
-------------------------------------
Notary Public
My Commission Expires:
- ----------------------------
B-10
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Restated
Lease Supplement is hereby acknowledged as of __________________. _______.
ABN AMRO BANK N.V., as Agent
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
B-11
SCHEDULE I
TO AMENDED AND RESTATED LEASE SUPPLEMENT NO. 1
DESCRIPTION OF EXISTING FACILITY,
TENANT IMPROVEMENTS AND EXPANSION IMPROVEMENTS
B-12
EXHIBIT C
TO THE LEASE
[FORM OF EQUIPMENT SCHEDULE]
EQUIPMENT SCHEDULE NO. ___
Forming a part of Master Lease dated as of August ___, 2000 (the
"LEASE"), between LEASE PLAN NORTH AMERICA, INC., as the Lessor (the
"LESSOR"), and TRIQUINT SEMICONDUCTOR TEXAS, LP, a Texas limited partnership,
as the Lessee (the "LESSEE").
1. EQUIPMENT. The Equipment leased hereunder shall be as set forth
in the schedule attached hereto as Annex A.
TOTAL PROPERTY IMPROVEMENTS COST: $____________
2. TERM. Upon and after the date of execution hereof, the Equipment
shall be subject to the terms and conditions provided herein and in the Lease
(which is incorporated herein by reference).
3. RENT. From and after the date hereof, the Basic Rent for said
Equipment during the Term shall be payable on the dates and in the amounts
set forth in Article III of the Lease which is incorporated herein by
reference.
4. LESSEE CONFIRMATION. The Lessee hereby confirms and warrants to
the Lessor that the Equipment: (a) was duly delivered to the Lessee on or
prior to the date hereof at the locations specified in Section 5 hereof; (b)
has been received, inspected and determined to be in compliance with all
applicable specifications and that the Equipment is hereby accepted for all
purposes of the Lease; and (c) is a part of the "Equipment" referred to in
the Lease and is taken subject to all terms and conditions therein and herein
provided.
5. LOCATION OF EQUIPMENT. The locations of the Equipment are
specified on the Schedule of Equipment attached hereto as ANNEX A.
6. FINANCING STATEMENTS. ANNEX B attached hereto specifies the
location of all UCC financing statements or other similar documents under
applicable law covering the Equipment.
[signature page follows]
C-1
Date of Execution: ____________, ____
LEASE PLAN NORTH AMERICA, INC., TRIQUINT SEMICONDUCTOR TEXAS,
an Illinois corporation LP, a Texas limited partnership
By: TriQuint Texas General Holding
Company, its general partner
By: By:
----------------------------- -----------------------------
Name: Name:
--------------------------- ---------------------------
Title: Title:
-------------------------- --------------------------
C-2
ANNEX A
TO EQUIPMENT SCHEDULE
EQUIPMENT
Approved by ____________________________________ Page No. ___ of ___ total pages
(The Lessee to initial each page)
Attached Bill of Sale dated Equipment located at:
- ---------------, ----
-------------------------
and Street No.
--------- -------- -------- --------
Equipment Schedule No. ___. City County State Zip
This location is owned, X leased, X mortgaged.
--- --- ---
MANUFACTURER AND/OR
VENDOR NAME &
INVOICE NO. DESCRIPTION EQUIPMENT COST
See Schedule 1 Attached
C-3
ANNEX B
TO EQUIPMENT SCHEDULE
FINANCING STATEMENTS COVERING EQUIPMENT
SECURED PARTY STATEMENT NO. FILING DATE FILING LOCATION
------------- ------------- ----------- ---------------
C-4
EXHIBIT D
TO THE LEASE
LEGAL DESCRIPTION OF LAND INTEREST
Being Lot 1, in Block 1, of TELECOM INDUSTRIAL PARK (Replat), an
addition to the City of Richardson, Collin County, Texas, according to the
Map or Plat thereof recorded in Volume J, Page 733, Map and Plat Records of
Collin County, Texas.
D-1