Maryland-Rockville Lease - Genome Statutory Trust 2001A and Human Genome Sciences Inc.
Counterpart No. _____ EXECUTION COPY
LEASE AGREEMENT
Dated as of November 7, 2001
between
GENOME STATUTORY TRUST 2001A,
as Lessor,
and
HUMAN GENOME SCIENCES, INC.,
as Lessee
Manufacturing Property
Office Research and Development Property
Rockville, Maryland
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Counterpart No. ___
LESSOR'S INTEREST UNDER THIS LEASE HAS BEEN ASSIGNED TO, AND IS SUBJECT TO A
SECURITY INTEREST IN FAVOR OF, FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT,
PURSUANT TO AN ASSIGNMENT OF LEASE, DATED AS OF THE DATE HEREOF, BETWEEN LESSOR
AND SAID ADMINISTRATIVE AGENT. INFORMATION CONCERNING SUCH SECURITY INTEREST MAY
BE OBTAINED FROM SAID ADMINISTRATIVE AGENT.
THIS LEASE HAS BEEN EXECUTED IN EIGHT COUNTERPARTS, OF WHICH THIS IS COUNTERPART
NUMBER _____. SEE SECTION 23.16 HEREIN FOR INFORMATION CONCERNING THE RIGHTS OF
THE HOLDERS OF THE VARIOUS COUNTERPARTS HEREOF.
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ARTICLE I.
DEFINITIONS
ARTICLE II.
LEASE OF PROPERTY
SECTION 2.1 Demise and Lease...............................................................1
SECTION 2.2 Nature of Lease................................................................1
ARTICLE III.
RENT
SECTION 3.1 Base Rent......................................................................2
SECTION 3.2 Supplemental Rent..............................................................2
SECTION 3.3 Method, Time of Payment........................................................2
SECTION 3.4 Late Payment...................................................................2
ARTICLE IV.
NET LEASE; LESSEE'S ACCEPTANCE OF PROPERTY
SECTION 4.1 Net Lease; No Setoff; Etc......................................................3
SECTION 4.2 Waivers........................................................................4
ARTICLE V.
LESSEE'S PURCHASE OPTION
SECTION 5.1 Purchase Option................................................................4
ARTICLE VI.
TERMINATION
[Intentionally omitted.]
ARTICLE VII.
LESSEE'S DISPOSITION OF LESSOR'S INTERESTS AT LEASE EXPIRATION
SECTION 7.1 Disposition of Lessor's Interests and Distribution of Sale Proceeds............6
SECTION 7.2 Conditions to Lessee's Exercise of the Remarketing Option......................7
ARTICLE VIII.
LIENS
SECTION 8.1 Lessee Obligation to Discharge Liens...........................................8
SECTION 8.2 Lessor's Notice to Potential Lienors...........................................8
SECTION 8.3 Lessee's Right to Encumber Lessee's Property...................................8
SECTION 8.4 Granting of Easements..........................................................9
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ARTICLE IX.
MAINTENANCE; ALTERATIONS; TAXES; LEGAL COMPLIANCE
SECTION 9.1 Maintenance and Repair; Utility Charges........................................9
SECTION 9.2 Alterations...................................................................10
SECTION 9.3 Title to Alterations..........................................................11
SECTION 9.4 Location......................................................................11
SECTION 9.5 Permitted Contests............................................................11
SECTION 9.6 Environmental Compliance......................................................12
SECTION 9.7 Compliance with Applicable Laws...............................................13
SECTION 9.8 Ground Sublease and Land Agreements Compliance................................13
SECTION 9.9 Lessee's Right to Enforce Warranties..........................................13
SECTION 9.10 Real Estate Taxes.............................................................13
ARTICLE X.
USE AND NAMING OF PROPERTY
SECTION 10.1 Use...........................................................................13
SECTION 10.2 Naming of the Properties......................................................13
ARTICLE XI.
INSURANCE
SECTION 11.1 Insurance.....................................................................14
SECTION 11.2 Risk of Loss..................................................................14
ARTICLE XII.
RETURN OF LEASED PROPERTY TO LESSOR
SECTION 12.1 Nature of Return..............................................................14
SECTION 12.2 Site Assessment...............................................................15
ARTICLE XIII.
LAND RELEASE
SECTION 13.1 Land Release..................................................................15
ARTICLE XIV.
LOSS DESTRUCTION, CONDEMNATION OR DAMAGE
SECTION 14.1 Event of Loss.................................................................15
SECTION 14.2 Application of Net Proceeds When Lease Continues; Repair and Restoration......16
SECTION 14.3 Application of Proceeds.......................................................17
SECTION 14.4 Application of Proceeds from a Temporary Taking...............................17
SECTION 14.5 Other Dispositions............................................................17
SECTION 14.6 Negotiations..................................................................17
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ARTICLE XV.
CONVEYANCE OF A PROPERTY TO LESSEE
SECTION 15.1 Terms of Conveyance...........................................................17
SECTION 15.2 Right of Lessee to Name Designee..............................................18
SECTION 15.3 Costs of Conveyance...........................................................18
SECTION 15.4 Preference Legal Opinion......................................................18
ARTICLE XVI.
SUBLEASE
SECTION 16.1 Subleasing Permitted; Lessee Remains Obligated................................18
ARTICLE XVII.
INSPECTION
SECTION 17.1 Inspection....................................................................19
ARTICLE XVIII.
LEASE EVENTS OF DEFAULT
SECTION 18.1 Defined.......................................................................19
SECTION 18.2 Remedies......................................................................21
SECTION 18.3 Proceeds of Sale; Deficiency..................................................23
SECTION 18.4 Grant and Foreclosure on Lessee's Estate......................................24
SECTION 18.5 Receipt of a Sufficient Discharge to Purchaser................................25
SECTION 18.6 Sale a Bar Against Lessee.....................................................25
SECTION 18.7 Liabilities to Become Due on Sale.............................................25
SECTION 18.8 Provisions Subject to Applicable Law..........................................26
SECTION 18.9 Survival of Lessee's Obligations..............................................26
SECTION 18.10 Remedies Cumulative; No Waiver; Consents......................................26
SECTION 18.11 Right to Perform Lessee's Obligations.........................................26
ARTICLE XIX.
HOLDING OVER
SECTION 19.1 Holding Over..................................................................27
ARTICLE XX.
GRANT OF SECURITY INTEREST
SECTION 20.1 Grant of Lien.................................................................27
SECTION 20.2 Assignment of Lease and Rents.................................................27
ARTICLE XXI.
COVENANTS OF LESSEE
SECTION 21.1 Assumption Upon Merger, Etc...................................................28
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ARTICLE XXII.
COVENANTS OF LESSOR
SECTION 22.1 Quiet Enjoyment...............................................................29
ARTICLE XXIII.
MISCELLANEOUS
SECTION 23.1 Binding Effect; Successors and Assigns........................................29
SECTION 23.2 Notices.......................................................................29
SECTION 23.3 Severability..................................................................29
SECTION 23.4 Amendment; Complete Agreements................................................30
SECTION 23.5 Headings......................................................................30
SECTION 23.6 Counterparts..................................................................30
SECTION 23.7 Governing Law.................................................................30
SECTION 23.8 Apportionments................................................................30
SECTION 23.9 Priority......................................................................30
SECTION 23.10 No Joint Venture..............................................................30
SECTION 23.11 No Accord and Satisfaction....................................................30
SECTION 23.12 No Merger.....................................................................30
SECTION 23.13 Lessor Bankruptcy.............................................................31
SECTION 23.14 Abandonment...................................................................31
SECTION 23.15 Investments...................................................................31
SECTION 23.16 Counterparts; Deed of Trust; Notice...........................................31
SECTION 23.17 Further Assurances............................................................31
SECTION 23.18 No Merger of Title............................................................31
SECTION 23.19 Non-recourse..................................................................32
Exhibit A-1 Description of Traville Site
Exhibit A-2 Description of Manufacturing Facility Site
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LEASE AGREEMENT (HGSI)
LEASE AGREEMENT, dated as of November 7, 2001, between GENOME
STATUTORY TRUST 2001A, a Connecticut statutory business trust as lessor, and
HUMAN GENOME SCIENCES, INC., a Delaware corporation as lessee.
In consideration of the mutual agreements herein contained and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I.
DEFINITIONS
The capitalized terms used herein and not otherwise defined
shall have the meanings assigned thereto in Appendix A of the Participation
Agreement, dated as of the date hereof, among the parties hereto and, inter
alia, Traville LLC, as Ground Lessor, Wells Fargo Bank Northwest, N.A., as
Trustee, BancBoston Leasing Investments Inc. and First Union National Bank, as
Investors, EagleFunding Capital Corporation, as Lender, Fleet Securities, Inc.
as Administrator, Fleet National bank and First Union National Bank, as
Liquidity Providers, Fleet National Bank, as Fleet National Bank Collateral
Agent, First Union National Bank, as First Union Collateral Agent and Fleet
National Bank, as Administrative Agent and Liquidity Agent. In addition, the
rules of construction set forth in said Appendix A shall also be applicable to
this Lease.
ARTICLE II.
LEASE OF PROPERTY
SECTION 2.1 Demise and Lease. On the Lease Commencement Date for
a Property, Lessor hereby agrees to accept delivery of such Property and, as a
precondition for such acceptance, to simultaneously lease to Lessee for the
Lease Term, such Property and, in the case of the Traville Site, sublease such
Site for the Lease Term. Lessee hereby agrees to lease from Lessor for the Lease
Term, commencing on the related Lease Commencement Date, such Property and, in
the case of the Traville Site, sublease such Site for the Lease Term. The demise
and lease of each Property pursuant to this Article II shall include any
additional right, title or interest in each Property of Lessor which may at any
time be acquired by Lessor, the intent being that all right, title and interest
of Lessor in and to each Property during the Lease Term shall be demised and
leased hereunder.
SECTION 2.2 Nature of Lease. The parties hereto intend that (i)
for financial accounting purposes with respect to Lessee, (A) Lessor will be
treated as the sublessor of the Traville Site under the Lease and the owner and
the lessor of the Improvements and the Manufacturing Facility Site and Lessee
will be treated as the lessee of the Manufacturing Facility Site and the
sublessee of the Traville Site under the Lease and the lessee of the
Improvements, and (B) the Investors will be deemed to have an equity investment
in Lessor, and (ii) for all federal and all state and local income tax purposes
and bankruptcy and commercial law purposes, (A) the Lease will be treated as a
financing arrangement, (B) Lessor, the Investors and the Lenders will be deemed
lenders making loans to Lessee in an amount equal to the sum of the Investor
Amounts and the outstanding principal amount of the Loans, which loans are
secured by the Liquid Collateral to the extent of the Lessor's interest therein
and each Property, (C) Lessee
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LEASE AGREEMENT (HGSI)
will be treated as the owner of the Properties for tax purposes and will be
entitled to all tax benefits ordinarily available to an owner of property like
the Properties for such tax purposes and (D) the obligations of Lessee to pay
the Base Rent and any part of the Lease Balance shall be treated as payments of
interest and principal, respectively, for Federal and state income tax and
bankruptcy and commercial law purposes. Nevertheless, each party acknowledges
and agrees that no other party has made any representations or warranties to any
other party concerning the tax, accounting or legal characteristics of the
Operative Documents and that each party has obtained and relied upon such tax,
accounting and legal advice concerning the Operative Documents as it deems
appropriate. Lessor shall have a valid and binding security interest in and Lien
on the Liquid Collateral and each Property, free and clear of all Liens other
than Permitted Liens, as security for the obligations of Lessee under the
Operative Documents.
ARTICLE III.
RENT
SECTION 3.1 Base Rent. Commencing on each Lease Commencement
Date with respect to each Property and on each Scheduled Payment Date,
throughout the Lease Term, Lessee shall pay to Lessor base rent ("Base Rent") in
an amount equal to the sum of (a) Loan Base Rent and (b) Investor Base Rent.
SECTION 3.2 Supplemental Rent. Commencing on each Lease
Commencement Date, Lessee shall pay to Lessor, or to such other Person as shall
be entitled thereto in the manner contemplated herein, any and all Supplemental
Rent as the same shall become due and payable. In the event of Lessee's failure
to pay any Supplemental Rent, Lessor shall have all rights, powers and remedies
provided for herein or by law or in equity or otherwise in the case of
nonpayment of Base Rent.
SECTION 3.3 Method, Time of Payment. Base Rent, and any
Supplemental Rent payable to Lessor shall be paid to the Administrative Agent as
designee for Lessor and its permitted assignees at such place and in such amount
in the contiguous continental United States as is specified in the Security
Agreement or as Administrative Agent (as such designee) shall specify in writing
to Lessee at least ten (10) Business Days prior to the due date therefor. Each
such payment of Rent shall be made by Lessee in funds consisting of lawful
currency of the United States of America which shall be immediately available at
the place of payment not later than 1:00 p.m. (New York time) on the date such
payment is due hereunder, and the Administrative Agent shall pay such funds on
the same date to the Person entitled thereto in accordance with Article X of the
Participation Agreement. Payments received following such time shall be deemed
received on the next succeeding Business Day unless Administrative Agent applies
such funds on such date in accordance with Article X of the Participation
Agreement.
SECTION 3.4 Late Payment. If any portion of the Rent due to
Lessor or any Participant shall not be paid by Lessee on or before the date such
payment was due hereunder, Lessee shall pay interest thereon from (and
including) the date such payment was due hereunder to (but excluding) the date
of Lessor's receipt thereof at a rate per annum equal to the Overdue Rate.
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LEASE AGREEMENT (HGSI)
ARTICLE IV.
NET LEASE; LESSEE'S ACCEPTANCE OF PROPERTY
SECTION 4.1 Net Lease; No Setoff; Etc. This Lease is a "triple"
net lease and, except to the extent otherwise expressly specified in this Lease,
it is agreed and intended that Base Rent, Supplemental Rent and any other
amounts payable hereunder by Lessee shall be paid without notice, demand,
counterclaim, setoff, deduction or defense and without abatement, suspension,
deferment, diminution or reduction, free from any charges, assessments,
impositions, withholdings, expenses or reductions, and that Lessee's obligation
to pay all such amounts, throughout the Term is absolute and unconditional. All
costs, expenses and obligations of every kind and nature whatsoever relating to
the Properties and the appurtenances thereto and the use and occupancy thereof
which may arise or become due and payable with respect to the period which ends
on the expiration or earlier termination of the Lease Term in accordance with
the provisions hereof (whether or not the same shall become payable during the
Lease Term or thereafter) shall be paid by Lessee except as otherwise expressly
provided herein or in another Operative Document. Lessee assumes the sole
responsibility for the condition, use, operation, maintenance, underletting and
management of each Property, and no Indemnitee shall have any responsibility in
respect thereof or any liability for damage to the property of Lessee, any
subtenant of Lessee or any other occupant of either Property on any account or
for any reason whatsoever other than by reason of, in the case of any particular
Indemnitee, such Indemnitee's willful misconduct or gross negligence. Except to
the extent otherwise expressly specified in this Lease, the obligations and
liabilities of Lessee hereunder shall in no way be released, discharged or
otherwise affected for any reason, including without limitation: (a) any defect
in the condition, merchantability, design, quality or fitness for use of either
Property or any part thereof, or the failure of either Property to comply with
all Applicable Laws, including any inability to occupy or use either Property by
reason of such noncompliance; (b) any damage to, removal, abandonment, salvage,
loss, scrapping or destruction of or any requisition or taking of either
Property or any part thereof; (c) any restriction, prevention or curtailment of
or interference with any use of either Property or any part thereof including
eviction; (d) any defect in title to or rights to either Property or any Lien on
such title or rights or on either Property; (e) any change, waiver, extension,
indulgence or other action or omission or breach in respect of any obligation or
liability of or by any Person; (f) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceedings
relating to Lessee. Lessor or any other Person, or any action taken with respect
to this Lease by any trustee or receiver of Lessee or any other Person, or by
any court, in any such proceeding; (g) any claim, set off, defense or right that
Lessee has or might have against any Person, including without limitation
Lessor, the Administrative Agent (including in its individual capacity) or any
vendor, manufacturer, contractor of or for either Property; (h) any failure on
the part of Lessor or any other Person to perform or comply with any of the
terms of this Lease, any other Operative Document or of any other agreement,
whether or not related to the transactions contemplated by the Operative
Documents; (i) any invalidity, unenforceability, illegality or disaffirmance of
this Lease against or by Lessee or any provision hereof or any of the other
Operative Documents or any provision of any thereof; (j) the impossibility or
illegality of performance by Lessee or Lessor, or both; (k) any action by any
court, administrative agency or other Governmental Authority; (1) any change in
or violation of Applicable Laws; (m) any restriction, prevention or curtailment
of or interference with the construction on or use of either Property or any
part thereof; or (n) any other occurrence whatsoever, whether similar or
dissimilar to the foregoing,
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LEASE AGREEMENT (HGSI)
whether or not Lessee shall have notice or knowledge of any of the foregoing.
Except as specifically set forth in this Lease, this Lease shall not be
cancelable by Lessee for any reason whatsoever and, except as expressly provided
in this Lease, Lessee, to the extent now or hereafter permitted by Applicable
Laws, waives all rights now or hereafter conferred by statute or otherwise to
quit, terminate or surrender this Lease.
SECTION 4.2 Waivers. Each Property is demised and let by Lessor
"AS IS" in its present condition, subject to (a) the rights of any parties in
possession thereof, (b) the state of the title thereto existing at the time
Lessor acquired title to such Property, (c) any state of facts which an accurate
survey or physical inspection might show, (d) all Applicable Laws and (e) any
violations of Applicable Laws which may exist at the commencement of the Lease
Term. Lessee has examined each Property and Lessor's title thereto and has found
the same to be satisfactory. LESSOR HAS NOT MADE AND SHALL NOT BE DEEMED TO HAVE
MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR BE DEEMED TO HAVE
ANY LIABILITY WHATSOEVER, AS TO THE VALUE, HABITABILITY, COMPLIANCE WITH ANY
APPLICABLE PLANS AND SPECIFICATIONS FOR EITHER PROPERTY CONDITION, LOCATION,
USE, DESCRIPTION, MERCHANTABILITY, DESIGN, OPERATION, OR FITNESS FOR USE OF
EITHER PROPERTY (OR ANY PART THEREOF), OR AS TO LESSOR'S TITLE THERETO OR
OWNERSHIP THEREOF OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, WITH RESPECT TO EITHER PROPERTY (OR ANY PART THEREOF) AND LESSOR SHALL
NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN, FOR ANY DEFECT
IN OR EXCEPTION TO TITLE THERETO, OR FOR THE FAILURE OF EITHER PROPERTY TO BE
CONSTRUCTED IN ACCORDANCE WITH THE APPLICABLE PLANS AND SPECIFICATIONS THEREFOR,
THE COMPLIANCE OF SUCH PLANS AND SPECIFICATIONS WITH APPLICABLE LAWS OR THE
FAILURE OF EITHER PROPERTY, OR ANY PART THEREOF, TO OTHERWISE COMPLY WITH ANY
APPLICABLE LAWS. It is agreed that Lessee has been afforded full opportunity to
inspect each Property, is satisfied with the results of its inspections of each
Property and is entering into this Lease solely on the basis of the results of
its own inspections and all risks incident to the matters discussed in the
preceding sentence. The provisions of this Section 4.2 have been negotiated, and
the foregoing provisions are intended to be a complete exclusion and negation of
any representations or warranties by Lessor, express or implied, with respect to
each Property, that may arise pursuant to the UCC or any other law now or
hereafter in effect, or otherwise.
ARTICLE V.
LESSEE'S PURCHASE OPTION
SECTION 5.1 Purchase Option.
(a) Subject to Section 5.1(e), Lessor hereby grants to
Lessee the exclusive and irrevocable option (the "Purchase Option") to purchase
either or both Properties and, with respect to the Traville Facility, Lessor's
interest in the Ground Lease, as of any date (the "Purchase Date") for (i) in
the event that Lessee exercises the Purchase Option with respect to only the
Traville Facility, the Traville Lease Balance, plus, without duplication, any
other amounts then due and owing under the Operative Documents, (ii) in the
event that Lessee exercises the Purchase Option with respect to only the
Manufacturing Facility, the
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LEASE AGREEMENT (HGSI)
Manufacturing Lease Balance, plus, without duplication, any other amounts then
due and owing under the Operative Documents, or (iii) in the event that Lessee
exercises the Purchase Option with respect to both Properties, the Lease
Balance, plus, without duplication, any other amounts then due and owing under
the Operative Documents (less any amounts actually paid by Lessee under Section
8.1(b) of the Participation Agreement). Such purchase and sale shall be effected
in accordance with Article XV.
(b) The Purchase Option shall be exercisable by notice to
Lessor given not later than one hundred eighty (180) days prior to the Purchase
Date and in any event, unless Lessee shall have exercised the Remarketing Option
with respect to a Property on or before one hundred eighty (180) days prior to
the Lease Term Expiration Date, the Purchase Option shall be deemed exercised
with respect to such Property (in which event the Purchase Date shall be the
Lease Term Expiration Date); provided, however, in the event that Lessee shall
not have refinanced the A Loans in accordance with Section 6.11 of the
Participation Agreement on or before one hundred eighty (180) days prior to the
A Loan Maturity Date, Lessee shall have the same options with respect to the
Properties under this Section 5 and Section 7 as it would have had assuming the
A Loan Maturity Date is also the Lease Term Expiration Date and the Lease shall
expire on the A Loan Maturity Date.
(c) On the Purchase Date, Lessee shall pay to Lessor the
amounts set forth in clause (i), (ii) or (iii) of Section 5.1(a), as applicable,
as the purchase price for the purchased Property or Properties, as applicable
(plus all other applicable amounts owing in respect of Rent.
(d) Notwithstanding anything to the contrary set forth
herein, Lessee shall have the right to exercise the Purchase Option with respect
to all of the Properties (but not less than all) within five (5) Business Days
following the occurrence of any Lease Event of Default. Notwithstanding the
notice provisions of Section 5.1(b), in the event that Lessee elects to exercise
the Purchase Option within such five Business Day period following the
occurrence of a Lease Event of Default, Lessee's payment to Lessor of the
applicable amounts required pursuant to Section 5.1(a)(iii) on or prior to the
fifth Business Day following the occurrence of a Lease Event of Default shall
constitute sufficient notice. In the event that Lessee shall not pay to Lessor
the applicable amounts required pursuant to Section 5.1(a)(iii) on or prior to
the fifth Business Day following the occurrence of a Lease Event of Default or
in the event that Lessee provides Lessor with written notice of its intention
not to exercise the Purchase Option during such five day period, Lessee's
ability to exercise the Purchase Option shall terminate.
(e) Notwithstanding anything to the contrary set forth
herein, in the event that the Lease Commencement Date shall have not yet
occurred with respect to both Properties, Lessee may not exercise its Purchase
Option with respect to the Property covered by the Lease unless it concurrently
exercises its purchase option under Section 2.6(ix) of the Construction Agency
Agreement with respect to the other Property or the other Property previously
had been purchased by Construction Agent pursuant to Section 2.6(ix) of the
Construction Agency Agreement.
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LEASE AGREEMENT (HGSI)
ARTICLE VI
TERMINATION
[Intentionally omitted.]
ARTICLE VII.
LESSEE'S DISPOSITION OF LESSOR'S INTERESTS AT LEASE EXPIRATION
SECTION 7.1 Disposition of Lessor's Interests and Distribution
of Sale Proceeds. Subject to Section 7.2, Lessee, on written notice to Lessor
given not later than one hundred eighty (180) days prior to the Lease Term
Expiration Date, shall have the option (the "Remarketing Option") to cause a
sale of one or both of the Properties in accordance with the following terms:
(a) Lessee shall act as non-exclusive agent (and may
appoint qualified independent sales agents to work on its behalf) in
connection with such sale and, in such capacity, shall use all
commercially reasonable best efforts to solicit bids from bona fide
third parties unrelated to Lessee, and its Affiliates or any Person with
whom Lessee or any of its Affiliates has an understanding or arrangement
pursuant to which Lessee or any of its Affiliates would use, possess or
own all or a portion of either Property.
(b) Lessee shall attempt to sell such Property or
Properties, as applicable, to the Person submitting an all cash bid that
will result in the highest Net Sale Proceeds, such sale to be effected
on the third day immediately preceding the Lease Term Expiration Date or
as soon as reasonably practicable thereafter (the date of sale being the
"Sale Date"); provided that:
(i) Lessee shall be required to obtain
Lessor's approval of the sale of any Property pursuant to any
such bid if a sale of such Property pursuant thereto would
result in the Investors and Lenders not being fully reimbursed
pursuant to Article X of the Participation Agreement for their
Investor Contributions and the outstanding principal amount of
the Loans;
(ii) With respect to a proposed sale that
Lessee wishes to consummate, Lessee shall provide Lessor with
reasonable advance notice of the identity of the prospective
purchaser, its relationship to any of the Participants and a
copy of purchase agreement (including all exhibits and schedules
thereto) for the proposed sale of such Property; and
(iii) Lessee and its Affiliates shall have no
right to submit bids for such Property, but a Participant or an
Affiliate of one or more Participants may bid on such Property.
(c) On the Sale Date, Lessee shall pay (i) the
Traville Residual Value Guaranty Amount in the event that only the
Traville Facility is sold on the Sale Date, together with any amounts,
including Break Costs, payable under any Lessor Hedging Agreement with
respect to the Traville Facility, plus Supplemental Rent due and
payable, (ii) the Manufacturing Residual Value Guaranty Amount in the
event that only the
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LEASE AGREEMENT (HGSI)
Manufacturing Facility is sold on the Sale Date, together with any
amounts, including Break Costs, payable under any Lessor Hedging
Agreement with respect to the Manufacturing Facility, plus Supplemental
Rent due and payable, or (iii) the aggregate Residual Value Guaranty
Amount in the event that both Properties are sold on the Sale Date,
together with any amounts, including Break Costs, payable under any
Lessor Hedging Agreement, plus Supplemental Rent due and payable to the
Administrative Agent and such amount, together with the proceeds of the
sale of such Property or Properties, as applicable, shall be distributed
in accordance with Article X of the Participation Agreement.
(d) Omitted.
(e) If either or both Properties are sold on or
after the Lease Term Expiration Date, then (i) on or before such date,
Lessee shall vacate such Property or Properties; (ii) on the Lease Term
Expiration Date, Lessee shall pay to Lessor (A) the Traville Residual
Value Guaranty Amount in the event that only the Traville Facility is
sold pursuant to the Remarketing Option and all other amounts due and
owing in respect of Rent (including Supplemental Rent) with respect to
such Property, (B) the Manufacturing Residual Value Guaranty Amount in
the event that only the Manufacturing Facility is sold pursuant to the
Remarketing Option and all other amounts due and owing in respect of
Rent (including Supplemental Rent) with respect to such Property, or (C)
the full Residual Value Guaranty Amount in the event that both
Properties are sold pursuant to the Remarketing Option and all other
amounts due and owing in respect of Rent (including Supplemental Rent)
with respect to both Properties; (iii) Lessor shall have the right to
enter into leases for such Property or Properties, sell such Property or
Properties or otherwise dispose of such Property or Properties and (iv)
Lessee shall continue to act as non-exclusive sale agent for the
marketing of such Property or Properties so long as such Property or
Properties are not otherwise disposed of. Upon the sale of such Property
or Properties, the Gross Sale Proceeds will be applied in accordance
with Article X of the Participation Agreement.
(f) Concurrently with the payments contemplated in
Section 7.1 (c), after payments of all other amounts due and owing in
respect of Rent, including Supplemental Rent through the payment date,
this Lease shall terminate with respect to the Property or Properties,
as applicable, sold pursuant to the Remarketing Option, and Lessor and
Lessee shall (except as otherwise herein provided) have no further
rights or obligations with respect to such Property or Properties, as
applicable, under this Lease.
SECTION 7.2 Conditions to Lessee's Exercise of the Remarketing
Option. Lessee's right to exercise the Remarketing Option and the consummation
of the sale of any Property on the Sale Date, as applicable, shall be subject to
the following conditions:
(a) on the Sale Date, such Property must be delivered by
Lessee in the condition required under Article XII;
(b) at least 60 days before the Sale Date, Lessee shall have
delivered the report required under Section 12.2;
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LEASE AGREEMENT (HGSI)
(c) as of the exercise of the Remarketing Option, the Final
Completion Work with respect to such Property and the restoration work required
to be performed under Section 9.2(d) (if any) shall have been completed;
(d) as of the exercise of the Remarketing Option, if there
remains to be performed hereunder any restoration work as a result of a Event of
Loss with respect to such Property, Lessee will be able, with the exercise of
reasonable diligence, to complete such work as of the Sale Date; and as of the
Sale Date, such work shall have been completed;
(e) as of the exercise of the Remarketing Option and the
Sale Date, there shall be no Lease Event of Default or Bankruptcy Default
continuing;
(f) as of the exercise of the Remarketing Option, there
shall be no default described in Section 18.1(c) or Section 18.1(e) that has
continued beyond 180 days after the giving of notice to Lessee by any
Participant or the Administrative Agent; and
(g) as of the Sale Date, Lessee shall have paid all amounts,
including Break Costs, payable under any Lessor Hedging Agreement and the other
Operative Documents.
If, after Lessee shall have given notice of its exercise of the Remarketing
Option in accordance with Section 7.1, any of the foregoing conditions (a)
through (g) is not satisfied on or prior to the Sale Date, then a Lease Event of
Default shall have occurred hereunder.
ARTICLE VIII.
LIENS
SECTION 8.1 Lessee Obligation to Discharge Liens. Lessee shall
not directly or indirectly create, incur, assume or suffer to exist any Lien on
or with respect to either Property, the Alterations, the Rent, title thereto or
any interest therein, which arises for any reason, including all Liens which
arise out of the possession, use, occupancy, construction, repair or rebuilding
of either Property or by reason of labor or materials furnished or claimed to
have been furnished with respect to either Property, except Permitted Liens.
Lessee shall promptly, at its own expense, take such action as may be necessary
to discharge or eliminate any such Lien (other than Permitted Liens).
SECTION 8.2 Lessor's Notice to Potential Lienors. Nothing
contained in this Lease shall be construed as constituting the consent or
request of Lessor, express or implied, to or for the performance by any
contractor, laborer, materialman, 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 either Property or any part thereof, which would result
in any liability of Lessor for payment therefor. Notice is hereby given that
none of Lessor, the Investors nor the Lenders will be liable for any labor,
services or materials furnished or to be furnished to Lessee, or to anyone
holding an interest in either Property or any part thereof through or under
Lessee, and that no mechanics or other Liens for any such labor, services or
materials shall attach to or affect the interest of Lessor, the Investors or the
Lenders in and to either Property.
SECTION 8.3 Lessee's Right to Encumber Lessee's Property. Lessee
may from time to time own, hold under lease from Persons other than Lessor and
encumber, grant security
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interests in and otherwise hypothecate in favor of Persons other than Lessor
inventory, furnishings, furniture, trade fixtures, leasehold improvements,
equipment and other personal property located on or about either Property (and
not purchased from Advances) ("Lessee's Property"), which shall not be subject
to this Lease or to any Lien in favor of Lessor (including any such Lien as may
arise by operation of Applicable Laws). Lessor shall from time to time, upon the
reasonable request of Lessee, promptly acknowledge in writing to Lessee and
other Persons that Lessor does not own or have, and waives, any lien or other
right or interest in or to any of Lessee's Property.
SECTION 8.4 Granting of Easements. Provided that no Lease Event
of Default or Bankruptcy Default is continuing, Lessor will join with Lessee
from time to time at the request of Lessee (and at Lessee's sole cost and
expense) to (i) subject to the terms of Article XIV, sell, assign, convey or
otherwise transfer an interest in either Property to any Person legally
empowered to take such interest under the power of eminent domain, (ii) grant
easements, licenses, rights of way and other rights and privileges in the nature
of easements, (iii) release existing easements and appurtenances which benefit
either Property, (iv) subject to the terms of Article XIV, dedicate or transfer
unimproved portions of either Property for road, highway or other public
purposes, (v) execute petitions to have either Property annexed to any municipal
corporation or utility district, (vi) execute any amendment, termination or
supplement of or to any Land Agreement, or a new Land Agreement, and (vii)
execute and deliver any instrument necessary or appropriate to make or confirm
such grants, releases or other actions described above in this Section 8.4 to
any Person; provided that Lessor shall not be required to take any such action,
and Lessee shall not effect any such action or grant, release, dedication,
transfer or amendment, unless Lessor shall have received a certificate of an
authorized officer of Lessee stating that such grant or release, or such
dedication, transfer or amendment, as the case may be, shall not adversely
affect the utility, economic useful life or residual value of the affected
Property or reduce the fair market value of the Traville Facility or
Manufacturing Facility below the Traville Lease Balance or Manufacturing Lease
Balance, respectively, and each Property shall comply with all Applicable Laws
after such grant or release, or such dedication, transfer or amendment, as the
case may be.
ARTICLE IX.
MAINTENANCE; ALTERATIONS; TAXES; LEGAL COMPLIANCE
SECTION 9.1 Maintenance and Repair; Utility Charges.
(a) Lessee shall at all times, (i) maintain each Property
and all components thereof in good order, repair and condition, subject to
ordinary wear and tear and, as to the Traville Property, in the same manner as
other "Class A" office and/or laboratory buildings in the locale of the Traville
Property, (ii) except to the extent Section 9.5 shall apply, maintain each
Property in accordance with and otherwise comply with all Applicable Laws, and
(iii) make any and all repairs of each Property necessary or appropriate to keep
the same in the condition required by the preceding clauses (i) and (ii),
whether interior or exterior, structural or nonstructural, ordinary or
extraordinary, foreseen or unforeseen and regardless of whether the repair was
caused by a Casualty, breach of warranty, wear and tear or otherwise.
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(b) Lessor shall not be required to maintain, repair,
replace, alter, remove or rebuild all or any part of either Property, and Lessee
waives any right that it may now have or hereafter acquire to (i) require Lessor
to maintain, repair, replace, alter, remove or rebuild all or any part of either
Property or (ii) make repairs (whether or not at the expense of Lessor) pursuant
to any Applicable Laws, insurance requirements, contract, agreement or covenant
in effect at any time during the Lease Term.
(c) Lessee shall pay or cause to be paid all charges for
electricity, power, gas, oil, water, telephone, sanitary sewer and all other
rents and utilities used in or on either Property during the Lease Term. Lessee
shall be entitled to receive any credit or refund with respect to any utility
charge paid by Lessee and received by Lessor on account thereof, net of the
costs and expenses reasonably incurred by Lessor in obtaining such credit or
refund, and, upon receipt by Lessor thereof, such credit or refund shall be
promptly paid over to Lessee.
SECTION 9.2 Alterations.
(a) Lessee may, without the consent of Lessor, at Lessee's
sole cost and expense, make Alterations to a Property, so long as, subject to
Section 9.2(d), such Alterations do not adversely effect the fair market value,
economic life, utility or residual value of such Property. Subject to the terms
of the foregoing proviso, Lessee shall have the right to change and/or seek
variances, exceptions and other exemptions in respect of the Applicable Laws
(including building and/or zoning laws, regulations and agreements) relating to
a Property or any portion thereof.
(b) Lessee shall make all Alterations to each Property
required so as to cause the same to comply with Applicable Laws, and the
limitations on Lessee's right to make Alterations contained in Section 9.2(a)
and Section 9.2(d) shall not be applicable to such Alterations, regardless of
their effect on the fair market value, economic life, utility or residual value
thereof.
(c) Lessee shall cause any Alterations to be done and
completed in a good and workmanlike manner, free from faults and defects, and in
compliance with all Applicable Laws. Lessee shall be responsible for the acts
and omissions of all of its employees and all other Persons performing any of
the Alterations.
(d) Upon Lessee's request (such request, a "Notice of
Alteration"), Lessor shall notify Lessee whether, in Lessor's judgment, an
Alteration proposed by Lessee would adversely effect the fair market value,
economic life, utility or residual value of the applicable Property. Each Notice
of Alteration shall be accompanied with reasonably detailed plans and
specifications. If Lessor in good faith determines that such Alterations would
adversely effect the fair market value, economic life, utility or residual value
of the applicable Property, Lessor shall give notice of its objection (a "Notice
of Objection") within fifteen (15) Business Days after Lessor's receipt of a
Notice of Alterations. If Lessor and Lessee cannot agree whether or not such
Alterations would adversely effect the fair market value, economic life, utility
or residual value of the applicable Property within fifteen (15) Business Days
after Lessee's receipt of a Notice of Objection, an Appraiser reasonably
acceptable to Lessor and Lessee shall resolve the dispute by appraising the
applicable property both with and without such Alterations. Lessee
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shall pay any and all reasonable out-of-pocket costs, including reasonable
attorneys' fees (collectively "Mediation Costs") incurred by Lessor or Lessee in
connection with any such dispute between the parties. If Lessor shall prevail in
any such dispute, Lessee shall not proceed to make such Alterations, without the
prior written consent of Lessor.
SECTION 9.3 Title to Alterations. Title to Alterations shall
immediately and without further act vest in Lessor and shall be deemed to
constitute a part of the applicable Property and be subject to this Lease in any
of the following cases:
(a) such Alteration shall be in replacement of or in
substitution for a portion of the applicable Property;
(b) such Alteration shall be required to be made pursuant to
the terms of Section 9.1(a) or Section 9.2(b);
(c) such Alteration shall be Nonseverable; and
(d) such Alteration shall be severable and paid for (i.e.,
with debt and/or equity) by Lessor.
Lessee shall, at Lessor's request, execute and deliver any deeds or assignments
reasonably necessary to evidence the vesting of title in and to such Alterations
in Lessor. If an Alteration is not within any of the categories set forth in
clauses (a) through (d) of this Section 9.3, then title to such Alteration, as
well as any item for which substitution or replacement is made as contemplated
in Section 9.3(a), shall vest in Lessee. So long as removal thereof shall not
result in the violation of any Applicable Laws or this Lease, all Alterations to
which title shall vest in Lessee as aforesaid may be removed at any time by
Lessee, provided that Lessee shall, at its expense, repair any material damage
to either Property caused by the removal of such Alteration and shall restore in
all material respects the affected portion of such Property in accordance with
Section 9.1(a).
SECTION 9.4 Location. Lessee shall not remove, or permit to be
removed, the improvements and equipment comprising either Property or any part
thereof without the prior written consent of Lessor, except that Lessee or any
other Person may remove (a) any Alteration with respect to which title has
passed to or remained with Lessee in accordance with the provisions of Section
9.3, (b) any part of either Property constructed on a temporary basis for the
purpose of repair or maintenance thereof, (c) any part of either Property which
has been replaced by another part which has become subject to this Lease and the
Lien of the Deed of Trust; and (d) any part of either Property which in Lessee's
good faith judgment has become obsolete, whereupon upon written notice to Lessor
and the Administrative Agent such obsolete part shall cease to be subject to
this Lease and the Lien of the Deed of Trust; provided that Lessee repairs any
damage to either Property caused by such removal.
SECTION 9.5 Permitted Contests. Provided no Lease Event of
Default or Bankruptcy Default is continuing, Lessee shall not be required to
comply with any Applicable Law or Land Agreement so long as it is engaged in a
Permitted Contest with respect thereto. At Lessee's expense, Lessor shall
cooperate fully with Lessee in connection with any such test, challenge, appeal
or proceeding and, at Lessee's request, will join in the proceedings or permit
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the proceedings to be brought in Lessor's name. The terms of this Section 9.5
shall qualify each provision of this Lease that impose a compliance obligation
on Lessee (other than an obligation to any Indemnitee), regardless of whether
such provision shall expressly make reference to this Section 9.5.
SECTION 9.6 Environmental Compliance.
(a) Lessee shall comply at all times with Environmental Laws
with respect to each Property, and no Hazardous Material shall be brought onto,
permitted to exist or remain at or upon, or stored, or disposed of from or used,
at either Property by Lessee or any of its employees, agents, independent
contractors, licensees, subtenants or invitees in violation of any Applicable
Laws, or in such manner as would result in any liability under any Applicable
Laws (with the exception of materials used or stored in connection with the
operation or maintenance of the property and in compliance with all
Environmental Laws). Lessee shall hold harmless, indemnify and defend the
Indemnitees from and against any Environmental Damages resulting from any breach
of the covenants set forth in this Section 9.6 and from all Environmental
Damages. Lessee's indemnification obligation hereinabove set forth shall survive
the expiration or earlier termination of this Lease.
(b) The indemnity contained in Section 9.6(a) shall
specifically include the direct obligation of Lessee to promptly perform any
investigatory and/or remedial or other activities required, ordered or
recommended by any Governmental Authority, or as otherwise necessary to avoid
injury or liability to any person or property, to prevent the spread of any
Hazardous Materials, or to provide for the continued safe operation of each
Property (the "Remedial Work"). Without waiving any of its rights pursuant to
the indemnity described in Section 9.6(a), upon failure of Lessee to perform the
Remedial Work in a reasonably prompt manner (subject to Lessee's rights under
Section 9.5). Lessor may, at its option and in its sole discretion, commence
such work itself in compliance with Environmental Laws, and Lessee shall pay all
reasonable costs thereby incurred.
(c) Without limiting Lessee's obligations under Section
9.6(a) or any other provision of this Lease, Lessee shall be solely and
completely responsible for responding to and complying with any administrative
notice, order, request or demand, or any third-party claim or demand relating to
the potential or actual presence of Hazardous Materials on either Property,
except where the contamination was caused solely by Lessor. The responsibility
conferred under this Section 9.6(c) includes responding to such orders on behalf
of Lessor and defending against any assertion of Lessor's financial
responsibility or individual duty to perform under such orders.
(d) "Environmental Damages" shall mean all claims, suits,
judgments, damages (including punitive damages), losses, penalties, fines,
liabilities (including, but not limited to, strict liability), encumbrances and
Liens, and any other costs and expenses, of any kind or nature whatsoever,
whether direct or indirect, joint or several, resulting from (i) any Hazardous
Material existing, released, or threatened to be released, on, in, under, or
near either Property, whether known or unknown and whether arising from historic
or threatened future releases of Hazardous Materials, or (ii) any violation or
alleged violation of any Environmental Law, in either case, including any
attorneys' fees, disbursements, consultants' fees and other costs resulting from
(A) investigation and defense of any alleged claim or demand by any third
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party, (B) claims or directives, notices or requests of any Governmental
Authorities, whether or not the claims or directives, notices or requests are
groundless, false or fraudulent or ultimately defeated, (C) any settlements or
judgments to which Lessee is a party, and (D) rendering both Properties in
compliance with Applicable Laws.
SECTION 9.7 Compliance with Applicable Laws. During the Lease
Term, at Lessee's expense, Lessee shall cause each Property to comply with all
Applicable Laws, whether or not such Applicable Laws shall necessitate
structural changes and/or improvements and/or interfere with the use and
enjoyment of such Property, subject to Section 9.5. Lessee shall also procure,
pay for and maintain all permits, licenses, approvals, certificates and other
authorizations necessary for the operation of its business at each Property from
time to time and its lawful use and occupancy of such Property in connection
therewith, subject to Section 9.5.
SECTION 9.8 Ground Sublease and Land Agreements Compliance.
Subject to Section 9.5, Lessee shall comply with, and shall fully and promptly,
at its own cost and expense, perform all obligations of Lessor under the Ground
Lease and any restrictive covenant, deed restriction or easement of record, as
well as any environmental land use restriction recorded against the Land, to the
extent relating to either Property (collectively, "Land Agreements"), including
the payment of all amounts owed by Lessor thereunder. For so long as no Event of
Default shall have occurred and be continuing, Lessee may exercise all rights,
privileges and remedies available to Lessor under the Land Agreements.
SECTION 9.9 Lessee's Right to Enforce Warranties. Provided no
Lease Event of Default or Bankruptcy Default shall have occurred and be
continuing, Lessee (including through its designees), at Lessee's expense, shall
have the right to assert all of Lessor's rights (if any) under any applicable
warranty and any other claim that Lessee or Lessor may have under any agreements
pertaining to the construction and/or modification of either Property, as well
as any other rights and claims that may exist by operation of law. Lessor agrees
to cooperate with Lessee, at Lessee's expense, in asserting such rights.
SECTION 9.10 Real Estate Taxes. Subject to Lessee's right in
respect of Permitted Contests, Lessee shall pay all real estate ad valorem and
personal property taxes owed in respect of each Property or any portion thereof,
as well as any payments due under any agreement described in clause (f) of the
definition of Permitted Liens.
ARTICLE X.
USE AND NAMING OF PROPERTY
SECTION 10.1 Use. Each Property may be used for any lawful
purpose; provided, that Lessee shall not use or permit the use of either
Property in any manner that adversely effects the fair market value, economic
life, utility or residual value of such Property. Lessee shall not use or permit
the use of either Property or any part thereof for any purpose or in any manner
in violation of any Applicable Laws, subject to the terms of Section 9.5.
SECTION 10.2 Naming of the Properties. Lessee shall have the
sole and exclusive right during the Lease Term, at any time and from time to
time, to select the name or names of each Property or any part thereof, as well
as the sole and exclusive right to determine
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not to use any name in connection with one or more portions of either
Properties, as well as all rights in respect of signage for or in connection
with either Properties. Lessor shall not have or acquire any right or interest
with respect to any such name or names used at any time by Lessee.
ARTICLE XI.
INSURANCE
SECTION 11.1 Insurance. On or before the Lease Commencement Date
for each Property, Lessee and the Administrative Agent (at the direction of the
Majority Banks) shall consult and agree upon insurance coverage (including
liability and property insurance) for each such Property. Failing mutual
agreement by the Lease Commencement with respect to a Property, Lessee shall
provide at the Lessee's expense insurance coverage (including liability and
property insurance) with respect to the Properties in amounts at least
commensurate with, and on terms no less favorable than, insurance carried by
other owners or lessees of similar real estate located on the Mid-Atlantic
region of the United States. Lessee shall, in the operation of each Property
subject hereto, comply with the applicable workers' compensation laws and
protect Lessor against any liability under such laws. Lessee shall furnish
Lessor and the Administrative Agent certificates showing the insurance required
under this Section 11.1 to be in effect and naming Lessor (and its beneficial
owners), the Investors, the Lenders, Administrative Agent and the Lessor Hedging
Agreement Counterparties as additional insureds and the property insurance
required hereunder shall contain a standard form mortgage endorsement in favor
of the Administrative Agent and shall name the Administrative Agent as sole loss
payee.
SECTION 11.2 Risk of Loss. During the Lease Term for each
Property subject hereto, Lessee shall bear all risk of loss (including any
Casualty or Condemnation) with respect to such Property or any portion thereof.
ARTICLE XII.
RETURN OF LEASED PROPERTY TO LESSOR
SECTION 12.1 Nature of Return. Unless a Property is then being
transferred to Lessee or its designee pursuant to the Purchase Option, Lessee
shall, on the expiration or earlier termination of this Lease, and at its own
expense, return such Property to Lessor by surrendering the same into the
possession of Lessor: (a) free and clear of all Liens, except that Lessee shall
have no responsibility or liability in respect of: (i) Lessor Liens, (ii) the
Lien of the Deeds of Trust, (iii) Liens described in clause (a) of the
definition of Permitted Liens (other than rights and interests of Lessee under
the Operative Documents), and (iv) Liens described in clause (f) of the
definition of "Permitted Liens"; (b) the Final Completion Work shall have been
completed; and (c) in the condition required by this Lease. All Alterations the
title to which has not been vested in Lessor hereunder that is not removed by
Lessee at or prior to the expiration or earlier termination of this Lease shall
be deemed abandoned in place by Lessee and shall become the property of Lessor.
Lessee shall have no obligation to remove any Alterations (i) required (at the
time of installation in a Property or at the end of the Lease Term) by
Applicable Laws or insurance requirements or (ii) included in such Property at
the Lease Commencement Date. Except as required under Section 9.2(d) and as
permitted under Section 10.1, Lessee may not remove any Nonseverable
Alterations. Lessee shall assign to Lessor any and all assignable warranties,
licenses and permits relating to the property surrendered to Lessor which extend
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beyond the expiration or earlier termination of this Lease, such assignment to
be without representation, warranty or recourse of any sort whatsoever.
SECTION 12.2 Site Assessment. Not earlier than two hundred and
seventy (270) days and not later than one hundred and eighty (180) days prior to
the Lease Term Expiration Date, Lessee shall, at Lessee's expense, deliver to
Lessor an environmental site investigation and assessment (the "Site
Assessment") substantially conforming to the requirements of ASTM 1527-E Phase I
or any then successor thereto and Lessee shall cause to be performed by the
Lease Term Expiration Date such additional testing, reporting and remediation as
is reasonably and specifically recommended by such report (such report, together
with such additional report, if any, shall be collectively referred to as the
"Environmental Report"); provided that Lessee shall have no obligation to
conduct a Site Assessment or cause an Environmental Report to be prepared if
Lessee shall have exercised the Purchase Option.
ARTICLE XIII.
LAND RELEASE
SECTION 13.1 Land Release. Provided that no Lease Event of
Default or Bankruptcy Default shall have occurred and be continuing, Lessee may
make a written request (a "Release Request") of Lessor, to enter into a
supplement or amendment to this Lease, changing the description of any Property
to exclude either a Modification which is not structurally integrated with the
existing Improvements or any unimproved portion of Land (a "Release Portion"),
and transferring such Release Portion to Lessee (or Lessee's designee) by
special or limited warranty deed (or like instrument), and Lessor will not
unreasonably withhold its consent to such Release Request, provided that such
Release Request (i) does not (x) materially impair the remaining useful life,
operation, utility or residual value of the applicable Property (or the
Improvements located or to be constructed thereon) to which such Release Request
relates, or (y) relate to a transfer the fair market value of which, when
aggregated with the fair market value of all transfers previously made pursuant
to Release Requests previously delivered hereunder, exceeds $5,000,000, (ii)
arises out of an arms-length sale to a non-affiliated party, and (iii) Lessor
has reasonable egress and ingress to the remaining Land or has been granted
appropriate easements ensuring access to such Property.
ARTICLE XIV.
LOSS DESTRUCTION, CONDEMNATION OR DAMAGE
SECTION 14.1 Event of Loss.
(a) If an Event of Loss shall occur, Lessee shall give
Lessor prompt written notice of such occurrence, and Lessee may elect one of the
following options (it being agreed that if Lessee shall fail to notify Lessor of
its election as between the following clauses (i) and (ii) within one hundred
and eighty (180) days after the occurrence of the Event of Loss, then Lessee
shall be deemed to have elected the option set forth in the following clause
(i)):
(i) Lessee may elect to purchase the
affected Property or Properties on a date occurring not less
than ten (10) days after the date such election is made, for a
purchase price equal to the sum of (A) Traville Lease
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Balance or the Manufacturing Lease Balance, as applicable, in
the event that such Event of Loss affected only the Traville
Facility or the Manufacturing Facility or the Lease Balance in
the event that such Event of Loss affected both Properties, each
determined as of such Payment Date, plus, without duplication,
(B) all Rent (including, without limitation, all amounts,
including Break Costs, payable under any Lessor Hedging
Agreement) due and owing as of such Payment Date; or
(ii) Lessee may restore and rebuild the
affected Property or Properties so as to restore the same to
their fair market value, utility, operation, residual value and
remaining useful life immediately prior to such Event of Loss.
(b) All insurance proceeds or condemnation awards received
in respect of either Property shall be paid solely to Administrative Agent as
sole loss payee, unless the insurance proceeds are less than $1,000,000
(provided that any insurance proceeds paid to any Person other than
Administrative Agent shall be required to be applied in accordance with Sections
9.1(a) and 14.2). Lessee's failure to maintain insurance shall not relieve
Lessee of any of Lessee's obligations hereunder to restore the affected Property
or Properties following any Casualty or Condemnation.
(c) Nothing in this Article XIV shall be construed to
prevent Lessee from pursuing and collecting a condemnation award or other
compensation or settlement payment in respect of its loss and damages resulting
from any condemnation or taking.
SECTION 14.2 Application of Net Proceeds When Lease Continues;
Repair and Restoration. Payments (except for payments under insurance policies
maintained by Lessor) received at any time by Lessor or Lessee from any
Governmental Authority, any insurer or any other Person with respect to (x) an
Event of Loss in a case in which this Lease will not terminate because Lessee
has elected Section 14.1(a)(ii) or (y) a Condemnation or Casualty shall be paid
to the Administrative Agent and Administrative Agent shall apply such proceeds
as follows:
(a) first, to Lessee, as necessary, for the repair
or restoration of the affected portions of the affected Property
or Properties,
(b) second, to Lessor, in reduction of the Traville
Lease Balance or the Manufacturing Lease Balance, as applicable,
in the event that such Event of Loss, Condemnation or Casualty
affected only the Traville Facility or the Manufacturing
Facility or the Lease Balance in the event that such Event of
Loss, Condemnation or Casualty affected both Properties until
the same has been reduced to zero,
(c) third, to each Participant, in reduction of all
other amounts then due and owing to such Participant under this
Lease or any other Operative Document,
(d) fourth, to each Lessor Hedging Agreement
Counterparty to pay in full all amounts then due and payable to
such Lessor Hedging Agreement Counterparty, including any Break
Costs, under the Lessor Hedging Agreements with respect to the
Property incurring such Event of Loss, Condemnation or Casualty,
as applicable,
(e) fifth, to Lessee.
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If, after a Casualty or Condemnation, or if, after an Event of
Loss, Lessee shall elect the option provided in Section 14.1(a)(ii), then this
Lease shall continue in full force and effect and Lessee shall, at Lessee's own
cost and expense and in accordance with the applicable provisions of Article IX,
proceed with reasonable diligence and promptness to carry out any necessary
demolition and to restore, repair, replace and/or rebuild the affected Property
or Properties in order to restore the same, to the extent it is reasonably
practicable, to the condition, utility and value of such Property or Properties
immediately prior to such Casualty or Condemnation or Event of Loss (assuming
such Property or Properties is maintained as required hereunder). All such
repair and restoration shall be effected by Lessee in compliance with the
requirements of Section 9.1.
SECTION 14.3 Application of Proceeds. In case of a Condemnation
or Casualty or in the case of an Event of Loss that does not result in a
termination of this Lease in accordance with the above provisions of this
Article XIV, this Lease shall remain in full force and effect, without any
abatement or reduction of Base Rent.
SECTION 14.4 Application of Proceeds from a Temporary Taking.
All Net Condemnation Proceeds from a temporary taking shall, to the extent
resulting from the taking of use during the Lease Term, be paid to Lessee, and
to the extent awarded with respect to use of a Property for any time period
after the expiration or termination of the Lease Term shall be paid as follows:
(a) if Lessee has elected to purchase the affected Property, to Lessee or its
designee or (b) if Lessee has not elected to purchase such Property, to Lessor
to be applied in accordance with Section 14.2(a) through (e).
SECTION 14.5 Other Dispositions. Notwithstanding the foregoing
provisions of this Article XIV, so long as a Bankruptcy Default or Lease Event
of Default shall be continuing, any amount that would otherwise be payable to or
for the account of or that would otherwise be retained by, Lessee pursuant to
this Article XIV or Section 7.2 shall be paid to the Administrative Agent (or to
Lessor when the Indebtedness shall not be outstanding as security for the
obligations of Lessee under this Lease) and, at such time thereafter as the
Lease Event of Default shall have been waived in writing or no longer be
continuing, such amount shall be paid promptly in accordance with this Article
XIV.
SECTION 14.6 Negotiations. In the event any part of either
Property becomes subject to Condemnation, Casualty or Event of Loss, Lessee
shall give notice thereof to Lessor promptly after Lessee has knowledge thereof
and Lessee shall control (and have the right to settle and compromise) the
negotiations with the relevant Governmental Authority or insurance carriers
unless a Lease Event of Default or Bankruptcy Default shall be continuing, in
which case Lessor (or if the Indebtedness is outstanding, the Administrative
Agent) may elect to control such negotiations.
ARTICLE XV.
CONVEYANCE OF A PROPERTY TO LESSEE
SECTION 15.1 Terms of Conveyance. Upon the purchase of Lessor's
Interests by Lessee with respect to either or both Properties, including
pursuant to Article V or Article XIV:
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i. with respect to the purchased Property or Properties, as
applicable, the Lease Term shall end, and the obligations of Lessee hereunder
(other than any obligations expressed herein as surviving the termination of
this Lease) shall terminate as of the date of such purchase, and
ii. Lessor shall convey to Lessee (or its designee) the
purchased Property or Properties, as applicable, and all rights, title and
interest of Lessor in and to the Net Proceeds (if any) applicable to such
purchased Property or Properties, with a warranty against Lessor's own acts and
otherwise "as is", except specifically, free and clear of all Lessor Liens
attributable to it (and the Lien of the Deed of Trust), but subject to any Liens
created pursuant to Section 9.8 or otherwise requested by or expressly consented
to by Lessee.
SECTION 15.2 Right of Lessee to Name Designee. In any instance
in which this Lease provides that Lessee may purchase either or both Properties,
including pursuant to Article V, then Lessee shall have the right at any time
and from time to time to designate another Person as the purchaser of such
Property or Properties provided that Lessee may not convey the Purchase Option
itself and may not delegate its obligations in respect of the payment of the
Purchase Price.
SECTION 15.3 Costs of Conveyance. Lessee shall pay all transfer
taxes, title insurance premiums, and other costs, fees and expenses incurred in
connection with any purchase in accordance with Article V or Article XIV,
including the recordation and filing charges for the satisfaction of the Deed of
Trust. Lessee shall pay the reasonable out-of-pocket costs and expenses of
Lessor and Lenders in connection with such purchase (including reasonable
attorneys' fees and expenses).
SECTION 15.4 Preference Legal Opinion. If, as of the date on
which Lessee purchases Lessor's Interest with respect to either or both
Properties, there is a Lease Event of Default or an event that with the passage
of time would mature into a Lease Event of Default described Section 18.1(d),
then, as a condition to the closing on the Purchase Option unless waived by the
Participants, Lessee shall deliver to Lessor (a) an opinion of outside counsel
that the closing on the Purchase Option would not constitute a preference under
the Bankruptcy Code, provided that such opinion may assume (without independent
investigation) that the value of the Property or Properties purchased is equal
to or greater than the price paid to Lessor for such purchase, and (b) if the
opinion of counsel referred to in the immediately preceding clause (a) contains
the assumption described in the proviso contained in said clause (a), an
appraisal of the Property or Properties prepared by an independent appraiser
showing a fair market value thereof at least equal to the Traville Lease Balance
or the Manufacturing Lease Balance, as applicable, in the event that Lessee
exercised the Purchase Option with respect to only the Traville Facility or the
Manufacturing Facility or the Lease Balance in the event that Lessee exercised
the Purchase Option with respect to both Properties.
ARTICLE XVI.
SUBLEASE
SECTION 16.1 Subleasing Permitted; Lessee Remains Obligated.
Provided no Lease Event of Default or Bankruptcy Default shall exist at the time
a sublease (a "Sublease") is
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entered into, Lessee may sublease either or both Properties or any portion or
portions thereof with any Person (provided, that Lessee hereby covenants and
agrees that it shall not sublease the either or both Properties or any portion
or portions thereof to any Person that is not generally meeting its obligations
as they become due or is subject to a proceeding under applicable bankruptcy,
solvency or reorganization laws on the date of such sublease) upon written
notice to Lessor and the Agents; provided that each of the following conditions
are satisfied: (A) the obligations of Lessee under the Lease and in the other
Operative Documents shall continue in full force and effect notwithstanding such
sublease, (B) any sublease does not extend beyond the Lease Term, (C) the
sublease shall expressly provide for the surrender of the Property after
termination upon the occurrence of a Lease Event of Default and (D) the sublease
is expressly subject and subordinate to this Lease. Lessee acknowledges and
agrees that this Lease has been assigned as described on the cover page hereof.
ARTICLE XVII.
INSPECTION
SECTION 17.1 Inspection. Lessor shall have the inspection rights
with respect to the Properties as set forth in the Participation Agreement.
ARTICLE XVIII.
LEASE EVENTS OF DEFAULT
SECTION 18.1 Defined. The following events shall constitute
"Lease Events of Default" (whether any such event shall be voluntary or in
voluntary 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 Governmental Authority):
(a) Lessee shall fail to make any payment of Base Rent,
Traville Lease Balance, Manufacturing Lease Balance, the Lease Balance, Traville
Residual Value Guaranty Amount, Manufacturing Residual Value Guaranty Amount or
the Residual Value Guaranty Amount when due (Lessor will notify Lessee if such
payment is not received when due, but Lessor will have no liability to Lessee if
it fails to deliver such notice and the Lessor's failure to provide such notice
shall not affect whether the same is a Lease Event of Default hereunder);
(b) Lessee shall fail to make payment of any amount required
hereunder, other than any amount described in Section 18.1(a), and such failure
shall continue for a period of ten (10) days after notice of such failure to
Lessee from Lessor or the Administrative Agent;
(c) Lessee shall default in the due performance or
observance by it of any term, covenant, condition or agreement on its part to be
performed or observed under any Operative Document to which it is a party (not
otherwise specified in this Section 18.1) and such default shall have continued
unremedied for a period of at least thirty (30) days after receipt of notice by
Lessee from either Lessor or Administrative Agent; provided, however, that if
such default is capable of cure but cannot be cured by payment of money or
cannot be cured by diligent efforts within such thirty (30) day period but such
diligent efforts shall be properly commenced within the cure period and Lessee
is diligently pursuing, and shall continue to pursue diligently, remedy of such
failure, the cure period shall be extended for an additional
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period of time as may be necessary to cure, not to exceed an additional one
hundred and twenty (120) days and not to extend beyond the Lease Term Expiration
Date;
(d) the commencement by Lessee of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or Lessee shall have consented to the entry of an order for relief in an
involuntary case under any such law, or the failure of Lessee generally to pay
its debts as such debts become due (within the meaning of the Bankruptcy Code),
or the appointment of or taking possession by a receiver, liquidator or other
similar official for Lessee or a general assignment by Lessee for the benefit of
its creditors; or the filing against Lessee of an involuntary petition in
bankruptcy which results in an order for relief being entered or,
notwithstanding that an order for relief has not been entered, the petition is
not dismissed within ninety (90) days of the date of the filing of the petition,
or the filing under any law relating to bankruptcy, insolvency or relief of
debtors of any petition against Lessee for reorganization, composition,
extension or arrangement with creditors which either (i) results in a finding or
adjudication of insolvency of Lessee or (ii) is not dismissed within ninety (90)
days of the date of the filing of such petition;
(e) any representation, warranty or statement made or
restated by Lessee in this Lease or in any other Operative Document, or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto, shall prove to be untrue in any material respect on the date as of
which made or restated, and (i) the circumstances rendering such representation
or warranty or statement incorrect shall not be remediable or, (ii) if such
representation or warranty or statement is remediable and Lessee is proceeding
diligently so to remedy, shall continue unremedied for thirty (30) days after
the earlier of: (x) the date on which written notice is delivered by Lessor or
Administrative Agent to Lessee specifying such circumstances and demanding that
they be remedied and (y) the date on which any Authorized Officer of Lessee has
actual knowledge of such incorrectness; provided, however, that if such default
is capable of cure but cannot be cured by payment of money or cannot be cured by
diligent efforts within such thirty (30) day period but such diligent efforts
shall be properly commenced within the cure period and Lessee is diligently
pursuing, and shall continue to pursue diligently, remedy of such failure, the
cure period shall be extended for an additional period of time as may be
necessary to cure, not to exceed an additional one hundred and twenty (120) days
and not to extend beyond the Lease Term Expiration Date.
(f) Lessee shall fail to maintain insurance required by
Section 11; provided that in the event that Lessee is otherwise in full
compliance with its obligations under Section 11, Lessee's failure to timely
deliver the certificates of insurance required by Section 11.1 shall not
constitute a Lease Event of Default unless such failure shall continue for a
period of ten (10) days after notice of such failure to Lessee from Lessor or
the Administrative Agent;
(g) the Lease Event of Default described in the last
sentence of Section 7.2 shall have occurred;
(h) the Facility Maturity Date (as defined in the Liquidity
Agreement), as the same may be modified or extended from time to time, with
respect to any one or more Liquidity Providers shall have occurred;
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(i) the Ground Lease shall terminate or shall cease to be in
effect by reason of a default by the Ground Lessor in its obligations
thereunder;
(j) Lessee shall default in the due performance and
observance of any of its obligations under Section 6.1(v), (w), (x), (y) or (aa)
of the Participation Agreement or Section 2.5(a)(i) or (ii) of either Liquid
Collateral Agreement;
(k) one or more judgments or orders for the payment of money
in the aggregate amount in excess of $10,000,000 shall be rendered against HGSI
or its Affiliates and such judgment or order shall continue unsatisfied or
unstayed for a period of sixty (60) days;
(l) any Lien granted under any Security Document shall, in
whole or in part, terminate, cease to be effective or lose its first priority
status, except as expressly contemplated by the Operative Documents or as the
result of an act or omission of Lessor or the Administrative Agent;
(m) An "event of default" shall occur in the payment when
due (subject to any applicable grace period), whether by acceleration or
otherwise, of any Indebtedness of HGSI or any of its Subsidiaries having a
principal amount, individually or in the aggregate, in excess of $10,000,000, or
a default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness;
(n) A Construction Agency Event of Default shall have
occurred;
(o) Lessor's rights pursuant to either Liquid Collateral
Agreement to require Lessee to pledge additional Permitted Investments shall for
any reason cease to be a legal, valid and binding agreement with Lessee; or
(p) the Lien of either Liquid Collateral Agreement with
respect to the Liquid Collateral shall cease to constitute a first priority
perfected security interest (except as a result of a voluntary release by
Administrative Agent of any Liquid Collateral).
SECTION 18.2 Remedies. Upon the occurrence of any Lease Event of
Default and at any time thereafter so long as the same shall be continuing,
Lessor may (subject to Section 18.2(h) and Section 18.2(i) below), at its
option, by notice to Lessee declare this Lease to be in default (and, if such
Lease Event of Default is described in Section 18.1(d), then this Lease shall
automatically be in default and no such declaration shall be required and the
terms of Section 18.2(i) shall be applicable) and do one or more of the
following as Lessor in its sole discretion shall determine:
(a) Lessor may, by notice to Lessee, rescind or terminate
this Lease as of the date specified in such notice; however, (i) no reletting,
reentry or taking of possession of either Property by Lessor will be construed
as an election on Lessor's part to terminate this Lease unless a written notice
of such intention is given to Lessee, (ii) notwithstanding any reletting,
reentry or taking of possession, 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 Lessor or any of its agents, representatives or employees and
no agreement accepting a surrender of either Property shall be valid unless the
same be made in writing and executed by Lessor;
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(b) Lessor may (i) demand that Lessee, and Lessee shall upon
the written demand of Lessor, return the Properties promptly to Lessor in the
manner and condition required by, and otherwise in accordance with all of the
provisions of, Section 12.1 as if the Properties were being returned at the end
of the Lease Term, and Lessor shall not be liable for the reimbursement of
Lessee for any costs and expenses incurred by Lessee in connection therewith and
(ii) without prejudice to any other remedy which Lessor may have for possession
of the Properties, enter upon either or both Properties and (to the exclusion of
Lessee) take immediate possession of either or both Properties and expel or
remove Lessee and any other person who may be occupying either or both
Properties (subject to the terms of any nondisturbance agreements with Lessor in
favor of any subtenants), by summary proceedings or otherwise, all without
liability to 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 Lessor's other damages, Lessee shall be
responsible for the reasonable costs and expenses of reletting, including
brokers fees and the costs of any repairs made by Lessor. The provisions of this
Section 18.2(b) shall operate as a notice to quit and shall be deemed to satisfy
any other requirement or provisions of Applicable Laws which may require Lessor
to provide a notice to quit or of Lessor's intention to re-enter either or both
Properties and any such requirements or provisions are hereby waived by Lessee;
(c) Lessor may sell all or any part of the Lessee Collateral
at public or private sale, as Lessor may determine, free and clear of any rights
of Lessee and without any duty to account to Lessee with respect to such action
or inaction or any proceeds with respect thereto (except to the extent
contemplated in clause (ii) of the next succeeding sentence if Lessor shall
elect to exercise its rights thereunder), in which event Lessee's obligation to
pay Base Rent hereunder for periods commencing after the date of such sale shall
be terminated or proportionately reduced, as the case may be (except to the
extent that Base Rent is to be included in computations under Section 18.2(e) if
Lessor shall elect to exercise its rights thereunder). If Lessor shall have sold
all of the Lessee Collateral pursuant to the above terms of this Section
18.2(c), Lessor, in lieu of exercising its rights under Section 18.2(e), may, if
it shall so elect, demand that Lessee pay to Lessor, and Lessee shall pay to
Lessor, on the date of such sale, as liquidated damages for loss of a bargain
and not as a penalty (the parties agreeing that Lessor's actual damages would be
difficult to predict, but the liquidated damages described below represent a
reasonable approximation of such amount), in lieu of Base Rent due for periods
commencing after such date of sale, an amount equal to the excess (if any) of
(i) the Lease Balance, computed as of such date of sale, over (ii) the net
proceeds of such sale;
(d) Lessor may hold, keep idle or lease to others all or any
part of either or both Properties as Lessor in its sole discretion may
determine, free and clear of any rights of Lessee and without any duty to
account to Lessee with respect to such action or inaction or for any proceeds
with respect to such action or inaction, except that Lessee's obligation to pay
Base Rent from and after the occurrence of a Lease Event of Default shall be
reduced by the net proceeds, if any, received by Lessor from leasing either or
both Properties to any Person, or allowing any Person (other than Lessee) to use
either or both Properties for the same periods or any portion thereof;
(e) Lessor may, whether or not Lessor shall have exercised
or shall thereafter at any time exercise any of its rights under Section 18.2(b)
or 18.2(d), but only if one or both of
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the Properties have not been sold under Section 18.2(c), demand, by written
notice to Lessee specifying a date (the "Final Payment Date") not earlier than
ten (10) days after the date of such notice, that Lessee pay to Lessor, and
Lessee shall pay to Lessor, on the Final Payment Date, as liquidated damages for
loss of a bargain and not as a penalty and in consideration of the transfer of
the applicable Property or Properties (the parties agreeing that Lessor's actual
damages would be difficult to predict, but the aforementioned liquidated damages
represent a reasonable approximation of such amount), an amount equal to the sum
of the then outstanding Lease Balance (after taking into account any amounts
received pursuant to this Section 18.2 that are applied in reduction of the
Lease Balance pursuant to the Operative Documents) and all Supplemental Rent
including all amounts payable under any Lessor Hedging Agreement including Break
Costs, then due and payable; upon payment of such sum, if the Lease Balance has
been reduced to zero Lessor shall convey to Lessee the Properties by special
warranty deed free and clear of all Lessor's Liens and the Lien of the Deed of
Trust and the other Operative Documents;
(f) Lessor may retain and apply against Lessor's damages all
sums which Lessor would, absent such Lease Event of Default, be required to pay
to, or turn over to, Lessee pursuant to the terms of this Lease; or
(g) Lessor may exercise any other right or remedy that may
be available to it under Applicable Laws or in equity, 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 or periods with respect to which rent shall have accrued,
and such suits shall not in any manner prejudice Lessor's right to collect any
such damages for any subsequent period, or Lessor may defer any such suit until
after the expiration of the Lease Term. in which event such suit shall be deemed
not to have accrued until the expiration of the Lease Term.
(h) [intentionally omitted]
(i) Upon the occurrence of the Lease Event of Default
described in Section 18.1(d) or 18.1(f), whether or not another Lease Event of
Default described in one or more other clauses of Section 18.1 shall have been
or thereafter is declared, this Lease shall terminate immediately without notice
and Lessee shall immediately pay to Administrative Agent, on behalf of Lessor,
as and for liquidated damages, an amount equal to the Lease Balance, together
with all Supplemental Rent payable under the Operative Documents, including
Break Costs payable under any Lessor Hedging Agreement.
(j) Notwithstanding anything to the contrary set forth
herein, upon the occurrence of a Lease Event of Default, Lessor shall not
reenter, take possession, foreclose, or sell either of the Properties until the
Purchase Option shall have terminated in accordance with Section 5.1(d).
SECTION 18.3 Proceeds of Sale; Deficiency. All payments received
and amounts held or realized by Lessor at any time when an Event of Default
shall have occurred and be continuing and after the Lease Balance shall have
been accelerated pursuant to this Lease, as well as all payments or amounts then
held or thereafter received by Lessor, except for the
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proceeds of sale pursuant to Section 18.2, shall be distributed forthwith upon
receipt by Lessor in accordance with Article X of the Participation Agreement.
SECTION 18.4 Grant and Foreclosure on Lessee's Estate. Without
limiting any other remedies set forth in this Lease, the following shall apply:
(a) Lessor and Lessee agree that if a Lease Event of
Default shall have occurred and be continuing, Lessor may proceed by a
suit or suits in equity or at law or otherwise, whether for a
foreclosure hereunder as against all or any part of Lessee's interests
in either or both Properties or for the sale of such interest under the
judgment or decree of a court of competent jurisdiction, or against
Lessee on a recourse basis for the Lease Balance and all other amounts
due from Lessee hereunder, or for the specific performance granted, or
for the appointment of a receiver pending any foreclosure hereunder or
the sale of the Lessee Collateral, or for the enforcement of any other
appropriate legal or equitable remedy, and at any sale of Lessee's
interest in either or both Properties, as applicable, whether pursuant
to power of sale, foreclosure or otherwise, Lessor may become the
purchaser of such interest or any part thereof, and in such case for the
purpose of making settlement for or payment of the purchase price, shall
be entitled to offset any claims for the indebtedness hereunder and
under the Operative Documents in order that they may be credited as paid
on the purchase price, and Lessor shall be entitled to recover all costs
incident to such proceedings, including attorneys' fees and expenses in
such amounts as may be fixed by the court. In accordance with Applicable
Law and rules of the court, Lessee does hereby assent to the passing and
entry of a decree for the sale of all or any portion of either or both
Properties. Upon any such purchase, such purchaser shall acquire good
title to either or both Properties, as applicable, so purchased, free of
the Lien of this Lease and free of all rights of redemption in favor of
Lessee;
(b) This instrument and the other Operative
Documents will be deemed given to secure not only the Lease Balance,
accrued Rent and all other sums due hereunder, but also future advances
made by Lessor in connection with the transactions contemplated by the
Operative Documents, whether such advances are obligatory or to be made
at the option of Lessor or otherwise to the same extent as if such
future advances were made on the Lease Commencement Date. To the fullest
extent permitted by law, the Lien of this instrument shall be valid as
to all such sums due hereunder, including all future advances, from the
time this instrument is executed.
(c) Without in any way limiting or restricting any
of Lessor's rights, remedies, powers and authorities under this
instrument, and in addition to all of such rights, remedies, powers, and
authorities, if a Lease Event of Default shall have occurred and be
continuing, Lessor shall also have and may exercise any and all rights,
remedies, powers and authorities under Applicable Laws upon default in
the payment of the Lease Balance, accrued Rent and all other sums due
hereunder, including, without limitation, any right or remedy available
to it as a secured party under the UCC. Promptly upon Lessor's request,
to the extent any portion of the Lessee Collateral constitutes property
subject to the UCC, Lessor at its option, may give Lessee notice of the
time and place of any public sale of any such property, or of the date
after which any private sale or other
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disposition thereof is to be made, by sending notice by registered or
certified first class mail, postage prepaid, to Lessee at least ten (10)
days before the time of such sale or other disposition. If any notice of
any proposed sale, assignment or transfer by Lessor of any portion of
the Lessee Collateral or any interest therein is required by law, Lessee
conclusively agrees that fifteen (15) days notice to Lessee of the date,
time and place (and, in the case of a private sale, the terms) thereof
is reasonable. Without limiting the generality of the foregoing, all
expenses incurred by Lessor to the extent reimbursable under the UCC,
whether incurred before or after any decree or judgment of foreclosure,
and whether or not enumerated in any other provision of this instrument,
shall be added to the indebtedness secured by this instrument and by the
judgment of foreclosure.
(d) Lessee, for itself and on behalf of all Persons
now or hereafter interested in the Lessee Collateral, voluntarily and
knowingly hereby waives to the fullest extent permitted by applicable
law any and all right to reinstatement or redemption and any and all
other rights under all present and future appraisement, homestead,
moratorium, valuation, exemption, stay, extension, and redemption
statutes, laws or equities now or hereafter existing and all rights or
marshalling in the event of any sale of the Lessee Collateral or any
part hereof or interest therein, and hereby further waives the pleading
of any statute of limitations as a defense to any and all indebtedness
secured by this instrument, and Lessee agrees that no defense, claim or
right based on any thereof will be asserted, or may be enforced, in any
action enforcing or relating to this instrument. Without limited the
generality of the preceding sentence, Lessee, for itself and on behalf
of each and every Person acquiring any interest in or title to the
Lessee Collateral subsequent to the date of this instrument, hereby
irrevocably waives any and all rights of reinstatement or redemption
from sale under any order, judgment or decree of foreclosure of this
instrument or under any power contained herein or under any sale
pursuant to any statute, order, judgment or decree of foreclosure of any
court.
SECTION 18.5 Receipt of a Sufficient Discharge to Purchaser.
Upon any sale of the Lessee Collateral, or any part thereof or interest therein,
whether pursuant to power of sale, foreclosure or otherwise, the receipt of
Lessor or the officer making the sale under judicial proceedings shall be a
sufficient discharge to the purchaser for the purchase money, and such purchaser
shall not be obliged to see to the application thereof.
SECTION 18.6 Sale a Bar Against Lessee. Any sale of the Lessee
Collateral, or any part thereof or interest therein, under or by virtue of this
instrument, whether pursuant to a power of sale, foreclosure or otherwise, shall
forever be a bar against Lessee.
SECTION 18.7 Liabilities to Become Due on Sale. Upon any sale of
the Lessee Collateral, or any portion thereof or interest therein, by reason of
Lessor's exercise of any remedy under or by virtue of this Lease or any other
Operative Document, whether pursuant to power of sale, foreclosure or other
remedy available at law or in equity or by statute or otherwise, at the option
of Lessor, if the Lease Balance shall not have been previously declared due and
payable, the Lease Balance and all other indebtedness which this agreement
secures (other than any obligations evidenced by any Lessor Hedging Agreement
except as otherwise provided by the terms thereof) shall immediately become due
and payable together with any interest accrued thereon.
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SECTION 18.8 Provisions Subject to Applicable Law. All rights,
powers and remedies provided in this instrument may be exercised only to the
extent that such exercise does not violate any Applicable Law, and are intended
to be limited to the extent necessary in order not to render this instrument
invalid, unenforceable or not entitled to be recorded, registered or filed under
the provisions of any Applicable Law. If any term of this instrument or any
application thereof shall be invalid or unenforceable, the remainder of this
instrument and any other application of such term shall not be affected thereby.
SECTION 18.9 Survival of Lessee's Obligations. No repossession
of either or both Properties or exercise of any remedy under Section 18.2,
including termination of this Lease, shall, except as specifically provided
therein, relieve Lessee of any of its liabilities and obligations hereunder,
including the obligation to pay Base Rent. In addition, except as specifically
provided therein, Lessee shall be liable, except as otherwise provided above,
for any and all unpaid Rent due hereunder before, after or during the exercise
of any of the foregoing remedies, including all reasonable legal fees and other
costs and expenses incurred by Lessor and the Administrative Agent by reason of
the occurrence of any Lease Event of Default or the exercise of Lessor's
remedies with respect thereto, and including all costs and expenses (excluding
internal in-house costs of the Participants' counsel) incurred in connection
with the return of either or both Properties, as applicable, in the manner and
condition required by, and otherwise in accordance with the provisions of,
Article XII as if such Property or Properties, as applicable, were being
returned at the end of the Lease Term. At any sale of either or both Properties
or any part thereof or any other rights pursuant to Section 18.2, Lessor or the
Administrative Agent may bid for and purchase such property.
SECTION 18.10 Remedies Cumulative; No Waiver; Consents. To the
extent permitted by, and subject to the mandatory requirements of, Applicable
Laws, each and every right, power and remedy herein specifically given to Lessor
or otherwise in this Lease shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute, and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
Lessor, and the exercise or the beginning of the exercise of any power or remedy
shall not be construed to be a waiver of the right to exercise at the same time
or thereafter any other right, power or remedy. No delay or omission by Lessor
in the exercise of any right, power or remedy or in the pursuit of any remedy
shall impair any such right, power or remedy or be construed to be a waiver of
any default on the part of Lessee or to be an acquiescence therein. Lessor's
consent to any request made by Lessee shall not be deemed to constitute or
preclude the necessity for obtaining Lessor's consent, in the future, to all
similar requests. No express or implied waiver by Lessor of any Lease Event of
Default shall in any way be, or be construed to be, a waiver of any future or
subsequent Lease Event of Default.
SECTION 18.11 Right to Perform Lessee's Obligations. If a Lease
Event of Default shall have occurred and be continuing, Lessor may perform or
comply with such agreement, and Lessor shall not thereby be deemed to have
waived any default caused by such failure, and the amount of payment required to
be made by Lessee hereunder and made by Lessor on behalf of Lessee, and the
reasonable out-of-pocket costs and expenses of Lessor (including reasonable
attorneys' fees and expenses) incurred in connection with the performance
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of or compliance with such agreement, as the case may be, together with interest
thereon at the Overdue Rate, shall be deemed Supplemental Rent, payable by
Lessee to Lessor upon demand.
ARTICLE XIX.
HOLDING OVER
SECTION 19.1 Holding Over. If Lessee shall for any reason remain
in possession of a Property after the expiration or earlier termination of this
Lease as to such Property (unless such Property is conveyed to Lessee), such
possession shall be as a tenancy at sufferance during which time Lessee shall
continue to pay Supplemental Rent that would be payable by Lessee hereunder were
the Lease then in full force and effect with respect to such Property and Lessee
shall continue to pay Base Rent in an amount equal to 150% of the Base Rent that
would have been payable had the Lease not terminated or expired for each month
or portion thereof after expiration of the Lease. Such Base Rent shall be
payable from time to time upon demand by Lessor. During any period of tenancy at
sufferance, 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 such
Property. Nothing contained in this Article XIX shall constitute the consent,
express or implied, of Lessor to the holding over of Lessee after the expiration
or earlier termination of this Lease as to any Property (unless such Property is
conveyed to Lessee) and nothing contained herein shall be read or construed as
preventing Lessor from maintaining a suit for possession of such Property or
exercising any other remedy available to Lessor at law or in equity.
ARTICLE XX.
GRANT OF SECURITY INTEREST
SECTION 20.1 Grant of Lien. Title to each Property shall remain
in Lessor, as security for the obligations of Lessee under this Lease and the
other Operative Documents, and Lessee hereby assigns, grants, pledges, mortgages
and warrants to Lessor, as secured party, for the benefit of Lessor and its
permitted transferees and assignees a Lien in the Lessee Collateral to secure
the payment and performance of all obligations of Lessee now or hereafter
existing under this Lease or any other Operative Document, until such time as
Lessee shall have fulfilled all of its obligations under the Operative
Documents. Upon Lessee's request, Lessor shall at such time as all of the
obligations (other than any contingent obligations) of Lessee under this Lease
and the other Operative Documents have been paid or performed in full with
respect to either or both Properties, execute and deliver termination statements
and other appropriate documentation presented to it in final execution form and
reasonably requested by Lessee, all at Lessee's expense, to evidence Lessor's
release of its Lien in respect of such Property or Properties, as applicable.
Lessee, at its expense, shall execute, acknowledge and deliver all such
instruments and take all such actions as Lessor may request from time to time in
order to further effectuate the terms of this Lease, to carry out the terms
hereof, or to better assure and confirm the rights, powers and remedies of
Lessor hereunder.
SECTION 20.2 Assignment of Lease and Rents. The assignment and
grant of the Lien contained in Section 20.1 above shall constitute an absolute,
present and irrevocable assignment and grant of the subleases, rents, income,
proceeds and benefits of each Property;
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provided that so long as no Lease Event of Default has occurred and is
continuing, Lessor hereby grants permission to Lessee to collect, receive and
apply such rents, income, proceeds and benefits as they become due and payable,
but not in advance hereof, and in accordance with all of the other terms,
conditions and provisions hereof and of the leases, contracts, agreements and
other instruments with respect to which such payments are made or such other
benefits are conferred. Upon the occurrence of a Lease Event of Default, such
permission shall terminate immediately and automatically, without notice to
Lessee or any other Person. Such assignment shall be fully effective without any
further action on the part of Lessee or Lessor and, upon the occurrence and
during the continuance of a Lease Event of Default hereunder, at Lessor's
option, Lessor shall be entitled to collect, receive and apply all rents,
income, proceeds and benefits from Lessor's Interest, including all right, title
and interest of Lessee in any escrowed sums or deposits or any portion thereof
or interest therein, whether or not Lessor takes possession of the Lessee
Collateral or any part thereof. Lessee further grants to Lessor the right, at
Lessor's option, upon the occurrence and during the continuance of a Lease Event
of Default hereunder:
(i) to enter upon and take possession of
either or both Properties for the purpose of collecting said
rents, income, proceeds and other benefits;
(ii) to dispossess by the customary summary
proceedings any tenant, purchaser or other Person;
(iii) to let or convey either or both
Properties or any portion thereof or any interest therein;
(iv) to apply such rents, income, proceeds
and other benefits, after the payment of all necessary fees,
charges and expenses, on account of the liabilities secured by
this instrument in accordance with Section 18.3.
ARTICLE XXI.
COVENANTS OF LESSEE
SECTION 21.1 Assumption Upon Merger, Etc. If Lessee shall
consolidate with or merge into any other Person or sell, convey, transfer or
lease all or substantially all its assets, then the Person (if other than
Lessee) formed by such consolidation or into which Lessee shall be merged or the
Person that shall acquire by sale, conveyance, transfer or lease all or
substantially all the assets of Lessee shall assume in writing all of the
obligations of Lessee under the Operative Documents to which Lessee is a party.
No such consolidation, merger or transfer of assets shall occur unless Lessor,
the Administrative Agent and the Participants have received a legal opinion of
independent counsel to the surviving entity in respect of the assumption
agreement in form and substance reasonably satisfactory to Lessor and the
Administrative Agent. Upon any such consolidation or merger, or any sale,
conveyance, transfer or lease of substantially all the assets of Lessee in
accordance with this Article XXI, the successor Person formed by such
consolidation or into which Lessee shall be merged or to which such sale,
conveyance, transfer or lease shall be made shall succeed to, and be substituted
for, and may exercise every right and power of, Lessee under this Lease and the
other Operative Documents to which Lessee is a party.
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ARTICLE XXII.
COVENANTS OF LESSOR
SECTION 22.1 Quiet Enjoyment. Lessor covenants that it will not
interfere in Lessee's right to peaceably and quietly hold, possess and use the
Properties hereunder during the Lease Term, so long as no Lease Event of Default
has occurred and is continuing.
ARTICLE XXIII.
MISCELLANEOUS
SECTION 23.1 Binding Effect; Successors and Assigns. The terms
and provisions of this Lease, and the respective rights and obligations
hereunder of Lessor and Lessee, shall be binding upon their respective
successors, legal representatives and assigns (including, in the case of Lessor,
any Person to whom Lessor may transfer Lessor's Interests or any interest
therein) and inure to the benefit of their respective permitted successors and
assigns.
HGSI hereby waives its right to assert any defense, claim or
counterclaim against the Lessor to the extent such defense, claim or
counterclaim arises out of the Lessor's lack of legal capacity to sue for
failure of qualifying to do business under Maryland Applicable Law.
SECTION 23.2 Notices. Unless otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be by letter, facsimile (with telephonic confirmation),
bank wire or where expressly provided for herein, telephone (with written
confirmation promptly thereafter shall be deemed to have been given, in the
case of notice by letter, the earlier of when delivered to the addressee by hand
or courier (including an overnight courier) if delivered on a Business Day and,
if not delivered on a Business Day, the first Business Day thereafter or on the
third Business Day after depositing the same in the mails, registered or
certified mail, postage prepaid, return receipt requested, addressed as provided
on Schedule II to the Participation Agreement and, in the case of notice by
facsimile, telephone or bank wire, when transmitted during business hours on a
Business Day and, if not transmitted during business hours on a Business Day,
the first Business Day thereafter, addressed as provided on Schedule II to the
Participation Agreement, or to such other address as any of the parties hereto
may designate by written notice. Copies of all notices given by facsimile or
bank wire shall be contemporaneously sent by overnight courier. Notwithstanding
any other provision of this Lease or the Operative Documents, if Lessee is
required to deliver notice to one or more of the parties to the Operative
Documents notice to all such parties shall be deemed to have been duly given by
Lessee by delivering any such notice to the Administrative Agent, who shall in
turn promptly deliver such notice to the appropriate party hereto.
SECTION 23.3 Severability. Any provision of this Lease that
shall be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction, and each party
hereto shall remain liable to perform its obligations hereunder except to the
extent of such unenforceability. To the extent
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permitted by applicable law, Lessee hereby waives any provision of law that
renders any provision hereof prohibited or unenforceable in any respect.
SECTION 23.4 Amendment; Complete Agreements. This Lease and the
terms hereof may be terminated, amended, supplemented, waived or modified only
in accordance with Section 12.5 of the Participation Agreement. This Lease and
the other Operative Documents are intended by the parties as a final expression
of their lease agreement and as a complete and exclusive statement of the terms
thereof, all negotiations, considerations and representations between the
parties having been incorporated herein. No representations, undertakings, or
agreements have been made or relied upon in the making of this Lease other than
those specifically set forth in this Lease and in the other Operative Documents.
SECTION 23.5 Headings. The Table of Contents and headings of the
various Articles and Sections of this Lease are for convenience of reference
only and shall not modify, define or limit any of the terms or provisions
hereof.
SECTION 23.6 Counterparts. This Lease may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 23.7 Governing Law. This Lease shall in all respects be
governed by, and construed in accordance with, the laws of the State of Maryland
applicable to agreements made and to be performed entirely within such State,
including all matters of construction, validity and performance.
SECTION 23.8 Apportionments. Upon any termination of this Lease
(other than a termination resulting in delivery of Lessor's Interests then
subject to this Lease to Lessee), except as otherwise set forth herein, there
shall be apportioned, as of the date of such termination, all rents (including
water or sewer rents), real estate taxes, municipal assessments, or other
charges payable with respect to the Properties.
SECTION 23.9 Priority. If a Lease Event of Default shall occur,
this Lease and the Lease Supplements shall be subject and subordinate to the
Deeds of Trust.
SECTION 23.10 No Joint Venture. Any intention to create a joint
venture or partnership relation between Lessor and Lessee is hereby expressly
disclaimed.
SECTION 23.11 No Accord and Satisfaction. The acceptance by
Lessor of any sums from Lessee (whether as Base Rent or otherwise) in amounts
which are less than the amounts due and payable by Lessee hereunder is not
intended, nor shall it be construed, to constitute an accord and satisfaction of
any dispute between such parties regarding sums due and payable by Lessee
hereunder, unless Lessor specifically acknowledges it as such in writing.
SECTION 23.12 No Merger. There shall be no merger of this Lease
or of the estate hereby with the fee or any other estate or interest or
ownership interest in the Properties or any part thereof by reason of the fact
that the same Person may acquire or own or hold, directly or indirectly, (a)
this Lease or any estate created hereby or any interest in this Lease or in any
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such estate and (b) the fee estate or other estate or interest or ownership
interest in the Properties or any part thereof.
SECTION 23.13 Lessor Bankruptcy. The parties hereto agree that
if Lessee elects to remain in possession of the Properties after the rejection
of the Lease by Lessor under Section 365(h) of the Bankruptcy Code all of the
terms and provisions of this Lease shall be effective during such period of
possession by Lessee, including Lessee's Purchase Option even if Lessor becomes
subject to a case or proceeding under the Bankruptcy Code prior to the exercise
by Lessee of such purchase rights.
SECTION 23.14 Abandonment. Lessee shall not abandon the
Properties during the Lease Term.
SECTION 23.15 Investments. Any funds held by Lessor as security
for Lessee's performance of its obligations hereunder (other than the Liquid
Collateral held in either Account) shall, until paid to Lessee or otherwise
applied in accordance herewith, be invested by Lessor in Cash Equivalents as
selected by Lessee. Any gain (including interest received) realized as a result
of any such investment (net of any fees, commissions, Taxes and other expenses,
if any, incurred in connection with such investment) shall be retained with, and
distributed and re-invested in the same manner, as the original security amount.
Provided Lessor invests such funds in accordance with the preceding sentence,
Lessor shall have no liability for any losses arising from any such investments
or reinvestments.
SECTION 23.16 Counterparts; Deed of Trust; Notice. This Lease
will be simultaneously executed in multiple counterparts, each of which, when so
executed and delivered, shall constitute an original, fully enforceable
counterpart for all purposes except that only the counterpart stamped or marked
"COUNTERPART NUMBER ONE" shall constitute to the extent applicable, if any,
"chattel paper" or other "collateral" within the meaning of the Uniform
Commercial Code in effect in any jurisdiction. The Administrative Agent or (if
no Loans are outstanding) Lessor shall be the sole authorized holder of
COUNTERPART NUMBER ONE. Lessee and Lessor agree that a notice of this Lease
shall be executed and recorded in the land records of Maryland.
SECTION 23.17 Further Assurances. Lessor and Lessee, at the cost
and expense of the requesting party, will cause to be promptly and duly taken,
executed, acknowledged and delivered all such further acts, documents and
assurances as any of the others reasonably may request from time to time in
order to carry out more effectively the intent and purposes of this Lease.
Lessee, at its own cost and expense, will cause all financing statements,
fixture filings and other documents to be recorded or filed at such places and
times and in such manner, and will take all such other actions or cause such
actions to be taken, as may be necessary or as may be reasonably requested by
Lessor in order to preserve and protect the title of Lessor to the Properties
and Lessor's rights under this Lease.
SECTION 23.18 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, (b) the free estate in any
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Property, except as may expressly be stated in a written instrument duly
executed and delivered by the appropriate Person or (c) a beneficial interest in
Lessor.
SECTION 23.19 Non-recourse. Lessee shall look only to Lessor's
Interests and other rights, if any, in the Properties for the satisfaction of
Lessee's remedies if there is a default by Lessor hereunder, and no other
property or assets of Lessor or its partners, owners or principals, disclosed or
undisclosed, shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Lessee's remedies under or with respect to (a) this
Lease, (b) the relationship of Lessor and Lessee hereunder or under Applicable
Laws, (c) Lessee's use or occupancy of the Properties or (d) any other liability
of Lessor to Lessee. Nothing in the immediately preceding sentence shall in any
way affect, impair or detract from (i) Lessee's "net lease" obligations
hereunder as provided in Section 4.1 or (ii) the duties and obligations under
the Participation Agreement and other Operative Documents of the Participants
and other parties to the Operative Documents.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Lessor and Lessee have duly authorized, executed and
delivered this LEASE as of the date first hereinabove set forth.
GENOME STATUTORY TRUST 2001A,
as Lessor
By: /s/ C. SCOTT NIELSON
------------------------------------
Name: C. Scott Nielson
Title: Vice President
<PAGE>
LEASE AGREEMENT (HGSI)
HUMAN GENOME SCIENCES, INC.,
as Lessee
By: /s/ STEVEN C. MAYER
------------------------------------
Name: Steven C. Mayer
Title: Senior Vice President and CFO
<PAGE>
LEASE AGREEMENT (HGSI)
STATE OF NEW YORK )
) SS
COUNTY OF NEW YORK )
On the 7th day of November in the year 2001 before me, the undersigned, a Notary
Public in and for said State, personally appeared C. Scott Nielson, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ DIMITRIOS J. ANGELIS
-------------------------------------------
(Signature and office of individual taking
acknowledgment)
Dimitrios J. Angelis
Notary Public
Notarial Seal
STATE OF NEW YORK )
) SS
COUNTY OF NEW YORK )
On the 7th day of November in the year 2001 before me, the undersigned, a Notary
Public in and for said State, personally appeared Steven C. Mayer, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ COLLEEN FANE
-------------------------------------------
(Signature and office of individual taking
acknowledgment)
Colleen Fane
Notary Public
Notarial Seal
<PAGE>
LEASE AGREEMENT (HGSI)
EXHIBIT A-1
Description of Traville Site
Attached.
<PAGE>
LEASE AGREEMENT (HGSI)
EXHIBIT A-2
Manufacturing Property
Attached.