EX-10..1




AMENDED AND RESTATED MASTER LEASE




(amending and restating the Master Lease




dated as of December 29, 1999)




Dated as of September 30, 2004




between




ELECTRONICS FOR IMAGING, INC.,




as the Lessee,




and




SOCIETE GENERALE FINANCIAL CORPORATION,




as the Lessor.




This Amended and Restated Master Lease has been executed in several counterparts. To the
extent, if any, that this Amended and Restated Master Lease constitutes chattel paper (as such term
is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction), no lien on
this Amended and Restated Master Lease may be created through the transfer or possession of any
counterpart other than the original counterpart containing the receipt therefor executed by Lessor
on the counterpart signature page entitled “Original Executed Counterpart”.



[This counterpart is not the original counterpart.]






1






ARTICLE I




DEFINITIONS




1.1 Definitions; Interpretation 1



ARTICLE II




MASTER LEASE1




	 	 	 	 	 	 	 	 	 
	2.1
	 	Acceptance and Lease of the Property            
	 	 	1	 
	2.2
	 	Acceptance Procedure                            
	 	 	2	 
	2.3
	 	Lease Term                                      
	 	 	2	 
	2.4
	 	Title                                           
	 	 	2	 







ARTICLE III




PAYMENT OF RENT




	 	 	 	 	 	 	 	 	 
	3.1
	 	Rent                         
	 	 	2	 
	3.2
	 	Payment of Rent              
	 	 	2	 
	3.3
	 	Supplemental Rent            
	 	 	2	 
	3.4
	 	Method of Payment            
	 	 	3	 







ARTICLE IV




QUIET ENJOYMENT; RIGHT TO INSPECT




	 	 	 	 	 	 	 	 	 
	4.1
	 	Quiet Enjoyment             
	 	 	3	 
	4.2
	 	Right to Inspect            
	 	 	3	 







ARTICLE V




NET LEASE, ETC




	 	 	 	 	 	 	 	 	 
	5.1
	 	Net Lease                              
	 	 	3	 
	5.2
	 	No Termination or Abatement            
	 	 	4	 







ARTICLE VI




SUBLEASES




6.1 Subletting 5



ARTICLE VII




LESSEE ACKNOWLEDGMENTS




	 	 	 	 	 	 	 	 	 
	7.1
	 	Condition of the Property            
	 	 	5	 
	7.2
	 	Risk of Loss                         
	 	 	6	 







ARTICLE VIII




POSSESSION AND USE OF THE PROPERTY, ETC




	 	 	 	 	 	 	 	 	 
	8.1
	 	Utility Charges                                                            
	 	 	6	 
	8.2
	 	Possession and Use of Property                                             
	 	 	6	 
	8.3
	 	Compliance with Requirements of Laws and Insurance Requirements            
	 	 	6	 
	8.4
	 	Assignment by Lessee                                                       
	 	 	7	 







ARTICLE IX




MAINTENANCE AND REPAIR; RETURN




9.1 Maintenance and Repair; Return 7



ARTICLE X




MODIFICATIONS, ETC




10.1 Modifications, Substitutions and Replacements 8



ARTICLE XI




WARRANT OF TITLE; EASEMENTS




	 	 	 	 	 	 	 	 	 
	11.1
	 	Warrant of Title                                              
	 	 	9	 
	11.2
	 	Grants and Releases of Easements; Lessor’s Waivers            
	 	 	9	 







ARTICLE XII




PERMITTED CONTESTS





	 	12.1	 	Permitted Contests in Respect of Applicable Law Other Than Impositions
10	 





ARTICLE XIII




INSURANCE




13.1 Public Liability and Workers’ Compensation Insurance 11



ARTICLE XIV




CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS




	 	 	 	 	 	 	 	 	 
	14.1
	 	Casualty and Condemnation                  
	 	 	12	 
	14.2
	 	Environmental Matters                      
	 	 	13	 
	14.3
	 	Notice of Environmental Matters            
	 	 	14	 







ARTICLE XV




TERMINATION OF LEASE




	 	 	 	 	 	 	 	 	 
	15.1
	 	Partial Termination upon Certain Events            
	 	 	14	 
	15.2
	 	Termination Procedures                             
	 	 	14	 







ARTICLE XVI




EVENTS OF DEFAULT




	 	 	 	 	 	 	 	 	 
	16.1
	 	Lease Events of Default             
	 	 	15	 
	16.2
	 	Remedies                            
	 	 	17	 
	16.3
	 	Waiver of Certain Rights            
	 	 	22	 
	16.4
	 	Limitation of Liability             
	 	 	22	 







ARTICLE XVII




LESSOR’S RIGHT TO CURE




17.1 The Lessor’s Right to Cure the Lessee’s Lease Defaults 22



ARTICLE XVIII




PURCHASE PROVISIONS




18.1 Purchase of the Property 23



ARTICLE XIX




EXTENSION OF EXPIRATION DATE




19.1 Extension of Expiration Date 23



ARTICLE XX




REMARKETING OPTION




	 	 	 	 	 	 	 	 	 
	20.1
	 	Option to Remarket                      
	 	 	24	 
	20.2
	 	Certain Obligations Continue            
	 	 	26	 







ARTICLE XXI




PROCEDURES RELATING TO PURCHASE OR REMARKETING





	 	21.1	 	Provisions Relating to the Exercise of Purchase Option or Obligation
and Conveyance Upon Remarketing and Conveyance Upon Certain Other Events 26	 





ARTICLE XXII




ESTOPPEL CERTIFICATES




22.1 Estoppel Certificates 27



ARTICLE XXIII




ACCEPTANCE OF SURRENDER




23.1 Acceptance of Surrender 28



ARTICLE XXIV




NO MERGER OF TITLE




24.1 No Merger of Title 28



ARTICLE XXV




INTENT OF THE PARTIES




25.1 Nature of Transaction 28



ARTICLE XXVI




MISCELLANEOUS




	 	 	 	 	 	 	 	 	 
	26.1
	 	Survival; Severability; Etc               
	 	 	29	 
	26.2
	 	Amendments and Modifications              
	 	 	29	 
	26.3
	 	No Waiver                                 
	 	 	29	 
	26.4
	 	Notices                                   
	 	 	29	 
	26.5
	 	Successors and Assigns                    
	 	 	30	 
	26.6
	 	Headings and Table of Contents            
	 	 	30	 
	26.7
	 	Counterparts                              
	 	 	30	 
	26.8
	 	GOVERNING LAW                             
	 	 	30	 
	26.9
	 	Liability Limited                         
	 	 	30	 
	26.10
	 	Original Master Lease                     
	 	 	30	 
	26.11
	 	Effective Date                            
	 	 	30	 







2



AMENDED AND RESTATED MASTER LEASE




THIS AMENDED AND RESTATED MASTER LEASE (this “Amended and Restated Master Lease”),
dated as of September 30, 2004 (amending and restating in its entirety the Master Lease dated as of
December 29, 1999), between SOCIETE GENERALE FINANCIAL CORPORATION, a Delaware corporation, as
lessor (in such capacity, the “Lessor”) and ELECTRONICS FOR IMAGING, INC., a Delaware
corporation, as lessee (in such capacity, the “Lessee”).



W I T N E S S E T H:




WHEREAS, Lessee, as Lessee and Construction Agent (as defined in the Original Participation
Agreement), the Lessor and Société Générale, New York Branch, as initial Lender (the
“Lender”), entered into the Original Participation Agreement;



WHEREAS, pursuant to the Original Participation Agreement, the Lessee and the Lessor entered
into the Original Ground Lease pursuant to which Lessee, as ground lessor, leased the Land to
Lessor, as ground lessee;



WHEREAS, simultaneously with the execution and delivery of the Original Participation
Agreement, the Lessee and the Lessor entered into the Master Lease, dated as of December 29, 1999
(the “Original Master Lease”) pursuant to which the Lessor agreed to lease to the Lessee
the Property;



WHEREAS, the Lessee, the Lessor and Société Générale, New York Branch, as Collateral Agent,
are entering into the Amended and Restated Participation Agreement;



WHEREAS, the Lessee and the Lessor desire to extend the term of the Original Master Lease and
amend and restate in full the Original Master Lease (the Original Master Lease, as amended and
restated as set forth herein and as further amended, supplemented, amended and restated or
otherwise modified from time to time after the date hereof, this “Amended and Restated Master
Lease”); and



WHEREAS, the Property shall be subject to the terms of this Amended and Restated Master Lease
and the Amended and Restated Lease Supplement.



NOW, THEREFORE, in consideration of the foregoing, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:



ARTICLE I




DEFINITIONS




1.1 Definitions; Interpretation. Capitalized terms used but not otherwise defined in
this Amended and Restated Master Lease have the respective meanings specified in Appendix A to this
Amended and Restated Master Lease (as the same may be amended, supplemented, amended and restated
or otherwise modified from time to time, “Appendix A to this Amended and Restated Master
Lease”); and the rules of interpretation set forth in Appendix A to this Amended and
Restated Master Lease shall apply to this Amended and Restated Master Lease.



ARTICLE II




MASTER LEASE




2.1 Acceptance and Lease of the Property. Subject to the conditions set forth in the
Amended and Restated Participation Agreement, including without limitation the satisfaction or
waiver of the conditions set forth in Article VI thereof, the Lessor hereby covenants and agrees to
lease to the Lessee hereunder and under the Amended and Restated Lease Supplement for the Lease
Term, the Lessor’s interest in the Land described on the Amended and Restated Lease Supplement and
any Improvements constructed thereon, and the Lessee hereby agrees, expressly for the direct
benefit of the Lessor, to lease from the Lessor for the Lease Term, the Lessor’s interest in the
Land and in such Improvements.



2.2 Acceptance Procedure. The Lessee hereby agrees that the execution and delivery by
the Lessee on the Effective Date of an appropriately completed Amended and Restated Lease
Supplement in the form of Exhibit A-1 hereto covering the Property shall, without further
act, constitute the acceptance by the Lessee of the Property which is the subject of such Amended
and Restated Lease Supplement for all purposes of this Amended and Restated Master Lease and the
other Operative Documents on the terms set forth therein and herein.



2.3 Lease Term. The term (the “Basic Lease Term”) of this Amended and
Restated Master Lease with respect to the Property shall begin on the date of the Amended and
Restated Lease Supplement which subjects the Property to the term of this Lease and the other
Operative Documents (with respect to the Property, the “Basic Term Commencement Date”) and
shall end on the Expiration Date.



2.4 Title. The Property is leased to the Lessee without any representation or
warranty, express or implied, by the Lessor and subject to the rights of parties in possession, the
existing state of title (including, without limitation, all Liens other than Lessor Liens) and all
applicable Requirements of Law. The Lessee shall in no event have any recourse against the Lessor
for any defect in or exception to title to the Property other than resulting from Lessor Liens.



ARTICLE III




PAYMENT OF RENT




3.1 Rent. During the Basic Lease Term for the Property, the Lessee shall pay Basic
Rent for the Property to the Lessor on each Basic Rent Payment Date, on the date required under
Section 20.1(g) in connection with the Lessee’s exercise of the Remarketing Option and on
any date on which this Amended and Restated Master Lease shall terminate with respect to the
Property. At least 10 days prior to each Basic Rent Payment Date, the Lessor shall deliver to the
Lessee a notice of the amount of the Basic Rent due on such date (the “Invoice”). For the
purposes of this Section 3.1, delivery of the Invoice by facsimile transmission, receipt
confirmed, will be sufficient.



3.2 Payment of Rent. Rent shall be paid absolutely net to each Person entitled
thereto, so that this Amended and Restated Master Lease shall yield to such Person the full amount
thereof, without setoff, deduction or reduction.



3.3 Supplemental Rent. The Lessee shall pay to the Lessor or any other Person
entitled thereto any and all Supplemental Rent promptly as the same shall become due and payable,
and if the Lessee fails to pay any Supplemental Rent, the Lessor and such other Persons entitled to
the receipt of such payment shall have all rights, powers and remedies provided for herein or by
law or equity or otherwise. The Lessee shall pay to the Lessor, as Supplemental Rent, among other
things, on demand, to the extent permitted by applicable Requirements of Law, interest at the
applicable Overdue Rate on any installment of Basic Rent not paid when due for the period for which
the same shall be overdue and on any payment of Supplemental Rent not paid when due or demanded by
the Lessor for the period from the due date or the date of any such demand, as the case may be,
until the same shall be paid. The expiration or other termination of the Lessee’s obligations to
pay Basic Rent hereunder shall not limit or modify the obligations of the Lessee with respect to
Supplemental Rent. Unless expressly provided otherwise in this Amended and Restated Master Lease,
in the event of any failure on the part of the Lessee to pay and discharge any Supplemental Rent as
and when due, the Lessee shall also promptly pay and discharge any fine, penalty, interest or cost
which may be assessed or added under any agreement to which Lessee is a party or which is
authorized in writing by the Lessee with a third party for nonpayment or late payment of such
Supplemental Rent, all of which shall also constitute Supplemental Rent.



3.4 Method of Payment. Each payment of Basic Rent payable under this Amended and
Restated Master Lease shall be made by the Lessee to the Lessor; and each payment of Supplement
Rent payable by the Lessee hereunder or under any other Operative Document shall be made by the
Lessee to the Person entitled to receive such payment, in each case prior to 2:00 p.m., New York
City time, to the Account in immediately available funds consisting of lawful currency of the
United States of America on the date when such payment shall be due. Payments received after 2:00
p.m., New York City time, on the date due shall for the purpose of Section 16.1 hereof be
deemed received on such day; provided, however, that for the purposes of the second
sentence of Section 3.3 hereof, such payments shall be deemed received on the next
succeeding Business Day and, unless the Lessor (or other Person, as applicable) is otherwise able
to invest or employ such funds on the date received, subject to interest at the Overdue Rate as
provided in such Section 3.3.



ARTICLE IV




QUIET ENJOYMENT; RIGHT TO INSPECT




4.1 Quiet Enjoyment. Subject to Sections 2.4 and 4.2, and subject to
the rights of the Lessor contained in Article XV and the other terms of the Operative
Documents to which the Lessee is a party, the Lessee shall peaceably and quietly have, hold and
enjoy the Property for the Lease Term, free of any claim or other action by the Lessor or anyone
claiming by, through or under the Lessor (other than the Lessee) with respect to any matters
arising from and after the applicable Basic Term Commencement Date. Such right of quiet enjoyment
is independent of, and shall not affect the Lessor’s rights otherwise to initiate legal action to
enforce the obligations of the Lessee under this Amended and Restated Master Lease.



4.2 Right to Inspect. During the Lease Term, the Lessee shall upon reasonable notice
from the Lessor, permit the Lessor and its respective authorized representatives to inspect the
Property subject to this Amended and Restated Master Lease during normal business hours,
provided that such inspections shall not unreasonably interfere with the Lessee’s business
operations at the Property.



ARTICLE V




NET LEASE, ETC.




5.1 Net Lease. This Amended and Restated Master Lease shall constitute a net lease.
Any present or future law to the contrary notwithstanding, this Amended and Restated Master Lease
shall not terminate, nor shall the Lessee be entitled to any abatement, suspension, deferment,
reduction, setoff, counterclaim, or defense with respect to the Rent, nor shall the obligations of
the Lessee hereunder be affected (except as expressly herein permitted and by performance of the
obligations in connection therewith) by reason of: (i) any defect in the condition,
merchantability, design, construction, quality or fitness for use of the Property or any part
thereof, or the failure of the Property to comply with all Requirements of Law, including any
inability to occupy or use the Property by reason of such non-compliance; (ii) any damage to,
removal, abandonment, salvage, loss, contamination of or Release from, scrapping or destruction of
or any requisition or taking of the Property or any part thereof; (iii) any restriction, prevention
or curtailment of or interference with the construction on or any use of the Property or any part
thereof including eviction; (iv) any defect in title to or rights to the Property or any Lien on
such title or rights or on the Property (other than Lessor Liens); (v) any change, waiver,
extension, indulgence or other action or omission or breach in respect of any obligation or
liability of or by the Lessor; (vi) to the extent permitted by Applicable Law, any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like
proceedings relating to the Lessee, the Lessor or any other Person, or any action taken with
respect to this Amended and Restated Master Lease by any trustee or receiver of the Lessee, the
Lessor or any other Person, or by any court, in any such proceeding; (vii) any claim that the
Lessee has or might have against any Person, including without limitation the Lessor or any vendor,
manufacturer, contractor of or for the Property; (viii) any failure on the part of the Lessor to
perform or comply with any of the terms of this Amended and Restated Master Lease (other than
performance by the Lessor of its obligations set forth in Section 2.1 hereof), of any other
Operative Document or of any other agreement; (ix) any invalidity or unenforceability or illegality
or disaffirmance of this Amended and Restated Master Lease against or by the Lessee or any
provision hereof or any of the other Operative Documents or any provision of any thereof; (x) the
impossibility or illegality of performance by the Lessee, the Lessor or both; (xi) any action by
any court, administrative agency or other Governmental Authority; or (xii) any other cause or
circumstances whether similar or dissimilar to the foregoing and whether or not the Lessee shall
have notice or knowledge of any of the foregoing. The Lessee’s agreement in the preceding sentence
shall not affect any claim, action or right the Lessee may have against the Lessor. The parties
intend that the obligations of the Lessee hereunder shall be covenants and agreements that are
separate and independent from any obligations of the Lessor hereunder or under any other Operative
Documents and the obligations of the Lessee shall continue unaffected unless such obligations shall
have been modified or terminated in accordance with an express provision of this Amended and
Restated Master Lease.



5.2 No Termination or Abatement. The Lessee shall remain obligated under this Amended
and Restated Master Lease in accordance with its terms and shall not take any action to terminate,
rescind or avoid this Amended and Restated Master Lease (except as provided herein),
notwithstanding any action for bankruptcy, insolvency, reorganization, liquidation, dissolution, or
other proceeding affecting the Lessor or any action with respect to this Amended and Restated
Master Lease which may be taken by any trustee, receiver or liquidator of the Lessor or by any
court with respect to the Lessor. The Lessee hereby waives all right to terminate or surrender
this Amended and Restated Master Lease (except as provided herein) or except as a consequence of a
reduction in the Lease Balance as a result of Casualty or Condemnation proceeds pursuant to the
terms of Section 14.1 of this Amended and Restated Master Lease, or as a result of a
purchase of the Property pursuant to Section 18.1 of this Amended and Restated Master
Lease, to avail itself of any abatement, suspension, deferment, reduction, setoff, counterclaim or
defense with respect to the Lease Balance. The Lessee shall remain obligated under this Amended
and Restated Master Lease in accordance with its terms and the Lessee hereby waives any and all
rights now or hereafter conferred by statute or otherwise to modify or to avoid strict compliance
with its obligations under this Amended and Restated Master Lease and the Operative Documents.
Notwithstanding any such statute or otherwise, the Lessee shall be bound by all of the terms and
conditions contained in this Amended and Restated Master Lease.



ARTICLE VI




SUBLEASES




6.1 Subletting. (a) The Lessee may from time to time, sublease the Property or any
portion thereof to any Person and extend, modify or renew any sublease without the approval of
Lessor; provided, however, that: (i) no sublease or other relinquishment of
possession of the Property shall in any way discharge or diminish any of the Lessee’s obligations
to the Lessor hereunder, and the Lessee shall remain directly and primarily liable under this
Amended and Restated Master Lease as to the Property, or portion thereof, so sublet and (ii) each
sublease to an Affiliate of the Lessee shall be made subject and subordinate to this Amended and
Restated Master Lease and to the rights of the Lessor hereunder.



(b) Lessor hereby agrees, that, in the event of the early termination of this Amended and
Restated Master Lease from any cause whatsoever, and while any sublease is in full force and
effect, such termination of this Amended and Restated Master Lease shall not act as a merger or
other termination of such sublease, and Lessee’s interest as sublessor in such sublease shall be
deemed automatically assigned, transferred, and conveyed to Lessor; and, from and after such
termination, Lessor shall be bound by the provisions of the sublease then in full force and effect
on the part of the Lessee, as sublessor; and that the sublessee shall be deemed thereupon and
without further act to have attorned to Lessor. It is the intention hereof to provide that the
termination of this Lease while such sublease is in full force and effect shall not, in any way, by
reason thereof, terminate such sublease or affect the rights of such sublessee. The foregoing is
subject to the right of Lessee (or Lessor, if this Amended and Restated Master Lease has
terminated) to terminate any sublease which is in default (notice thereof, if any required, having
been given and the time for curing such default having expired) and any other rights and remedies
reserved to Lessee in such sublease, and any other rights and remedies afforded to a lessor of real
property against a defaulting lessee.



ARTICLE VII




LESSEE ACKNOWLEDGMENTS




7.1 Condition of the Property. THE LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING
THE PROPERTY AND THE IMPROVEMENTS CONSTRUCTED THEREON “AS IS” WITHOUT REPRESENTATION, WARRANTY OR
COVENANT (EXPRESS OR IMPLIED) BY THE LESSOR AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF
TITLE (EXCLUDING LESSOR LIENS), (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF, (C) ANY STATE
OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW, AND (D) VIOLATIONS OF
REQUIREMENTS OF LAW WHICH MAY EXIST ON THE DATE HEREOF. THE LESSOR HAS NOT MADE OR SHALL NOT BE
DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) OR SHALL BE
DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE (OTHER THAN FOR LESSOR LIENS), VALUE,
HABITABILITY, USE, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF ANY PROPERTY (OR ANY PART
THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT (EXCEPT SECTION 4.1 HEREOF)
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PART THEREOF) AND THE LESSOR
SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN (OTHER THAN FOR LESSOR LIENS)
OR THE FAILURE OF ANY PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY REQUIREMENT OF LAW.



7.2 Risk of Loss. Subject to the terms of Section 14.1 of this Amended and
Restated Master Lease, during the Lease Term the risk of loss of or decrease in the enjoyment and
beneficial use of the Property as a result of the damage or destruction thereof by fire,
earthquake, the elements, casualties, thefts, riots, wars or otherwise is assumed by the Lessee,
and except for loss or damages arising from the gross negligence or willful misconduct of Lessor or
its respective agents, employees or contractors, the Lessor shall not in any event be answerable or
accountable to Lessee therefor.



ARTICLE VIII




POSSESSION AND USE OF THE PROPERTY, ETC.




8.1 Utility Charges. The Lessee shall pay or cause to be paid all charges for
electricity, power, gas, oil, water, telephone, sanitary sewer service and all other rents and
utilities used in or on the Property during the Lease Term. The Lessee shall be entitled to
receive any credit or refund with respect to any utility charge paid by the Lessee and the amount
of any credit or refund received by the Lessor on account of any utility charges paid by the
Lessee, net of the costs and expenses reasonably incurred by the Lessor in obtaining such credit or
refund, shall be promptly paid over to the Lessee.



8.2 Possession and Use of Property. After the Basic Term Commencement Date for the
Property, the Property shall be used in a manner consistent with this Amended and Restated Master
Lease for any lawful purpose in accordance with Applicable Law now or hereafter in effect;
provided, that such use does not (i) result in a diminution in the value of the Property
from that projected in the original Appraisal delivered with respect to the Property or (ii)
violate any restriction with respect to Hazardous Materials as they relate to the Property pursuant
to the Operative Documents. The Lessee shall pay, or cause to be paid, all charges and costs
required in connection with the use of the Property as contemplated by this Amended and Restated
Master Lease. The Lessee shall not commit or permit any waste of the Property or any part thereof.



8.3 Compliance with Requirements of Laws and Insurance Requirements. Subject to the
terms of Article XII relating to permitted contests, the Lessee, at its sole cost and
expense, shall (a) comply in all material respects with all Requirements of Law (including all
Hazardous Materials Laws) and Insurance Requirements relating to the Property, including the use,
construction, operation, maintenance, repair and restoration thereof and the remarketing thereof
pursuant to Article XX, whether or not compliance therewith shall require structural or
extraordinary changes in the Improvements or interfere with the use and enjoyment of the Property,
and (b) procure, maintain and comply with all licenses, permits, orders, approvals, consents and
other authorizations required for the construction, use, maintenance and operation of the Property
and for the use, operation, maintenance, repair and restoration of the Improvements.
Notwithstanding the preceding sentence, the Lessee shall be deemed to be in compliance with all
Hazardous Materials Laws for purposes of this Amended and Restated Master Lease notwithstanding any
Environmental Violation if the severity of such Environmental Violation is less than Federal, state
or local standards requiring remediation or removal or, if such standards are exceeded, remediation
or removal is proceeding in accordance with all applicable Hazardous Materials Laws.



8.4 Assignment by Lessee. The Lessee may not assign this Amended and Restated Master
Lease or any of its rights or obligations hereunder in whole or in part to any Person.
Notwithstanding the foregoing sentence, the Lessee may, so long as no Event of Default has occurred
and is continuing or would result therefrom, upon prior written notice to the Lessor, assign this
Amended and Restated Master Lease and all of the Lessee’s rights and obligations hereunder to an
Affiliate of the Lessee pursuant to an assignment and assumption agreement and such other
documentation, including opinions of counsel, all in form and substance reasonably satisfactory to
the Lessor; provided, that, in any event of such assignment, the Lessee shall deliver a
guaranty of such Affiliate’s obligation hereunder in form and substance and in all respects
satisfactory to the Lessor.



ARTICLE IX




MAINTENANCE AND REPAIR; RETURN




9.1 Maintenance and Repair; Return. (a) From and after the Basic Term Commencement
Date, the Lessee, at its sole cost and expense, without limiting those obligations of any permitted
subtenant under a sublease pursuant to Article VI shall maintain the Property in good
condition (ordinary wear and tear excepted) and make all necessary repairs thereto, of every kind
and nature whatsoever, whether interior or exterior, ordinary or extraordinary, structural or
nonstructural or foreseen or unforeseen, in each case as required by all Requirements of Law and
Insurance Requirements and in no event less than the standards applied by the Lessee in the
operation and maintenance of other comparable properties owned or leased by the Lessee or its
Affiliates.



(b) The Lessor shall under no circumstances be required to build any improvements on the
Property, make any repairs, replacements, alterations or renewals of any nature or description to
the Property, make any expenditure whatsoever in connection with this Amended and Restated Master
Lease (other than payment of the Funding Amount in accordance with and pursuant to the terms of the
Amended and Restated Participation Agreement) or maintain the Property in any way. The Lessee
waives any right to (i) require the Lessor to maintain, repair, or rebuild all or any part of the
Property or (ii) make repairs at the expense of the Lessor pursuant to any Requirement of Law,
Insurance Requirement, contract, agreement, or covenant, condition or restriction in effect at any
time during the Lease Term.



(c) The Lessee shall, upon the expiration or earlier termination of this Amended and Restated
Master Lease with respect to the Property (other than as a result of the Lessee’s purchase of the
Property from the Lessor as provided herein), vacate and surrender the Property to the Lessor in
its then-current, “AS IS” condition, without any express or implied warranty subject to the
Lessee’s obligations under Sections 8.3, 9.1(a), 10.1, 11.1,
14.1, 14.2 and 20.1. Title to all improvements, furnishings, furniture,
fixtures and any personal property of the Lessee which were not funded by the Lessor pursuant to
the Amended and Restated Participation Agreement, located on or about the Property whether or not
affixed to the realty, shall, subject to the following sentence, be and remain the property of the
Lessee throughout the Lease Term, and at any time during the Lease Term, and within thirty (30)
days following the expiration or earlier termination date, may be removed by the Lessee or, at the
Lessee’s election surrendered with the Property, in which event title to such surrendered property
shall, if the Lessor so elects, be deemed transferred to the Lessor. Notwithstanding the
foregoing, any fixture constituting part of the Property which is required by Applicable Law or
which cannot be removed without causing Material damage to or the diminution in the Fair Market
Sales Value of the Property shall at all times remain part of the Property.



ARTICLE X




MODIFICATIONS, ETC.




10.1 Modifications, Substitutions and Replacements. During the Lease Term, the
Lessee, at its sole cost and expense, may at any time and from time to time make alterations,
renovations, improvements and additions to the Property or any part thereof and substitutions and
replacements therefor (collectively, “Modifications”); provided, however,
that:




(i) except for any Modification required to be made pursuant to a Requirement of Law (a
“Required Modification”), no Modification shall adversely affect the Fair Market
Sales Value of the Property below the Lease Balance following the completion of such
Modification;




(ii) such Modifications shall be (and shall be done in a manner) consistent with the
Plans and Specifications for the Property;




(iii) such Modifications shall comply with Sections 8.3 and 9.1(a); and




(iv) the Lessee shall have provided notice to the Lessor of any structural Modification
the cost of which exceeds 10% of the Lease Balance.



(It being understood that any obligations of a permitted subtenant under a sublease entered
into pursuant to Section 6.2 shall not be limited or otherwise determined by this
Section 10.1).



All Modifications shall remain part of the realty and shall be subject to this Amended and
Restated Master Lease; provided, however, that Modifications that (x) are not
Required Modifications, (y) were not financed by the Lessor and (z) can be removed without causing
Material damage to or diminution in the Fair Market Sales Value of the Property below the Lease
Balance shall be the property of the Lessee or other third party and may be removed by Lessee
during the Lease Term and up to 30 days following the expiration or earlier termination thereof and
shall not be subject to this Amended and Restated Master Lease. The Lessee may place upon the
Property any trade fixtures, machinery, equipment, inventory or other property belonging to the
Lessee or third parties and may remove the same, subject, however, to the terms of Section
9.1(a); provided, however, that such trade fixtures, machinery, equipment,
inventory or other property can be removed without causing material damage to or diminution in the
Fair Market Sales Value of the Property below the Lease Balance; provided, further,
however, that the Lessee shall keep and maintain at the Property and shall not remove from
the Property any Equipment financed or otherwise paid for by the Lessor pursuant to the Amended and
Restated Participation Agreement.



ARTICLE XI




WARRANT OF TITLE; EASEMENTS




11.1 Warrant of Title. (a) The Lessee agrees that except as otherwise provided herein
and subject to the terms of Article 12 relating to permitted contests, the Lessee shall not
directly or indirectly create or allow to remain, and shall promptly discharge at its sole cost and
expense, any Lien (other than any Lessor Lien or any Permitted Property Lien), defect, attachment,
levy, title retention agreement or claim upon the Property or any Lien, attachment, levy or claim
with respect to the Rent or with respect to any amounts held by the Lessor pursuant to the
Operative Documents, other than Permitted Property Liens and Liens on machinery, equipment, general
intangibles and other personal property not financed by the proceeds of the Lessor Amounts.



(b) Nothing contained in this Amended and Restated Master Lease shall be construed as
constituting the consent or request of the Lessor, expressed or implied, to or for the performance
by any contractor, mechanic, laborer, materialman, supplier or vendor of any labor or services or
for the furnishing of any materials for any construction, alteration, addition, repair or
demolition of or to the Property or any part thereof. NOTICE IS HEREBY GIVEN THAT THE LESSOR IS
NOT OR SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO THE
LESSEE, OR TO ANYONE HOLDING A PROPERTY OR ANY PART THEREOF THROUGH OR UNDER THE LESSEE, AND THAT
NO MECHANIC’S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT
THE INTEREST OF THE LESSOR OR THE LENDER IN AND TO THE PROPERTY.



11.2 Grants and Releases of Easements; Lessor’s Waivers. (a) Provided that no Lease
Event of Default shall have occurred and be continuing, and subject to the provisions of
Articles VII, IX and X and Section 8.3, the Lessor hereby consents
in each instance to the following actions by the Lessee as the Lessor’s agent, and the Lessor
hereby appoints the Lessee the Lessor’s attorney-in-fact, with full authority in the place and
stead of the Lessor to take such action or actions from time to time during the Lease Term, but at
the Lessee’s sole cost and expense: (i) the granting of easements, licenses, rights-of-way and
other rights and privileges in the nature of easements reasonably necessary or desirable for the
use, repair, or maintenance of the Property as herein provided; (ii) the release of existing
easements or other rights in the nature of easements which are for the benefit of the Property;
(iii) if required by applicable Governmental Authority, the dedication or transfer of unimproved
portions of the Property for road, highway or other public purposes; (iv) the imposition of and the
execution of amendments to any covenants and restrictions; (v) the filing and processing of Site
Development Permit Amendments, Parcel Maps, Tentative Maps, Development Agreements and any and all
other permit applications, authorizations, entitlement, agreements with any government or
regulatory agency or amendments thereof, or other documents reasonably required or beneficial for
construction or Modification of the Improvements, or amendments to Permitted Property Liens or
governmental permits or approvals affecting the Property; and (vi) the execution and filing of
tract or parcel maps subdividing the Land into lots or parcels or reconfiguring existing lots or
parcels; provided, however, that in each case (A) such grant, release, dedication,
transfer, imposition or amendment does not reduce the Fair Market Sales Value of the Property, (B)
such grant, release, dedication, transfer or amendment that in the Lessee’s judgment is reasonably
necessary or beneficial in connection with the use, maintenance, alteration or improvement of the
Property, (C) such grant, release, dedication, transfer, imposition or amendment will not cause the
Property or any portion thereof to fail to comply with the provisions of this Amended and Restated
Master Lease or any other Operative Documents and all Requirements of Law (including, without
limitation, all applicable zoning, planning, building and subdivision ordinances, all applicable
restrictive covenants and all applicable architectural approval requirements); (D) any and all
governmental consents or approvals required prior to such grant, release, dedication, transfer,
imposition, annexation or amendment have been obtained, and any and all filings required prior to
such action have been made; (E) the Lessee shall remain obligated under this Amended and Restated
Master Lease and under any instrument executed by the Lessee consenting to the assignment of the
Lessor’s interests in this Amended and Restated Master Lease as security for indebtedness, in each
such case in accordance with their terms, substantially as though such grant, release, dedication,
transfer or amendment had not been effected and (F) the Lessee shall pay and perform any
obligations of the Lessor under such grant, release, dedication, transfer, imposition or amendment.
Without limiting the effectiveness of the foregoing, the Lessor shall, upon the request of the
Lessee, and at the Lessee’s sole cost and expense, execute and deliver any instruments necessary or
appropriate to confirm any such grant, release, dedication, transfer, imposition or amendment to
any Person permitted under this Section 11.2(a) including landlord waivers with respect to
any of the foregoing.



(b) The Lessor acknowledges the Lessee’s (and any permitted sublessee’s) right to finance and
to secure under the Uniform Commercial Code, inventory, furnishings, furniture, equipment,
machinery, leasehold improvements and other personal property located at the Property other than
Equipment, and the Lessor agrees to execute Lessor waiver forms and release of Lessor Liens in
favor of any purchase money seller, lessor or lender which has financed or may finance in the
future such items.



ARTICLE XII




PERMITTED CONTESTS




12.1 Permitted Contests in Respect of Applicable Law Other Than Impositions. Except
to the extent otherwise provided in Section 13.5(b) of the Amended and Restated Participation
Agreement regarding Taxes and other Impositions, if, to the extent and for so long as (a) a test,
challenge, appeal or proceeding for review of any Applicable Law relating to the Property shall be
prosecuted diligently and in good faith in appropriate proceedings by the Lessee or (b) compliance
with such Applicable Law shall have been excused or exempted by a valid nonconforming use, variance
permit, waiver, extension or forbearance, the Lessee shall not be required to comply with such
Applicable Law but only if and so long as any such test, challenge, appeal, proceeding, waiver,
extension, forbearance or noncompliance shall not, in the reasonable opinion of the Lessor, involve
(A) any risk of criminal liability being imposed on the Lessor or (B) any risk of (1) foreclosure,
forfeiture or loss of the Property, or any material part thereof, or (2) the nonpayment of Rent or
(C) any substantial risk of (1) the sale of, or the creation of any Lien (other than a Permitted
Property Lien) on, any part of the Property, (2) civil liability being imposed on the Lessor or the
Property, or (3) enjoinment of, or interference with, the use, possession or disposition of the
Property in any material respect. Lessor, at Lessee’s sole cost and expense, shall execute and
deliver to Lessee such authorizations and other documents as may reasonably be required in
connection with any such permitted contest.



The Lessor will not be required to join in any proceedings pursuant to this Section
12.1 unless a provision of any Applicable Law requires that such proceedings be brought by or
in the name of the Lessor; and in that event the Lessor will join in the proceedings or permit them
or any part thereof to be brought in its name if and so long as (i) the Lessee has not elected the
Remarketing Option and (ii) the Lessee pays all related expenses and indemnifies the Lessor with
respect to such proceedings.



ARTICLE XIII




INSURANCE




13.1 Public Liability and Workers’ Compensation Insurance. (a) During the Lease
Term, the Lessee shall procure and carry, at the Lessee’s sole cost and expense, commercial general
liability insurance for claims for injuries or death sustained by persons or damage to property
while on the Property and such other public liability coverages as are ordinarily procured by the
Lessee or its Affiliates who own or operate similar properties, but in any case shall provide
liability coverage of at least $2,000,000 per person and $1,000,000 for property damage per
occurrence. Such insurance shall be on terms and in amounts that are no less favorable than
insurance maintained by the Lessee or such Affiliates with respect to similar properties that they
own and that are in accordance with normal industry practice. The policy shall be endorsed to
include the Lessor as an additional insured. The policy shall also specifically provide that the
policy shall be considered primary insurance which shall apply to any loss or claim before any
contribution by any insurance which the Lessor may have in force.



(b) During the Basic Lease Term, the Lessee shall have the right to self-insure with respect
to any of the insurance required under this Amended and Restated Master Lease so long as (i) the
Lessee is a publicly traded domestic corporation whose stock is traded on a nationally recognized
exchange; (ii) the Lessee has not assigned this Amended and Restated Master Lease other than to an
Affiliate in accordance with the requirements of Section 8.4; (iii) the Lessee maintains a
consolidated net worth (determined as provided in Section 10.2.1 of the Amended and Restated
Participation Agreement) of at least $400 million according to its most recent audited financial
statement; and (iv) the Lessee governs and manages its self-insurance program in a manner
consistent with programs managed by prudent businesses whose stock is publicly traded on nationally
recognized exchanges. Upon request, the Lessee shall supply the Lessor from time to time with
evidence reasonably satisfactory to the Lessor of the Lessee’s net worth and the satisfaction of
the condition set forth above. If the Lessee elects to self-insure, the Lessee shall be
responsible for losses or liabilities which would have been assumed by the insurance companies
which would have issued the insurance required of the Lessee under the Amended and Restated Master
Lease. The Lessee will notify the Lessor in advance of any period for which it intends to
self-insure and shall provide Lessor with satisfactory evidence that it complies with these
requirements in order to give the Lessor an opportunity to confirm the satisfaction of the
conditions set forth above. For so long as the Lessee self-insures and without limiting Lessee’s
obligations under Article XIII of the Amended and Restated Participation Agreement, the Lessee, for
applicable periods, shall and does hereby indemnify and hold harmless the Lessor, its officers,
directors, agents, employees and representatives from and against all costs, damages, or expenses
(including reasonable attorneys’ fees) incurred or paid by the Lessor as a result of any claim
customarily covered by a broad-form policy of commercial general liability insurance, including a
contractual liability endorsement.



ARTICLE XIV




CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS




14.1 Casualty and Condemnation. (a) Subject to the provisions of this Article
XIV, if all or a portion of the Property is damaged or destroyed in whole or in part by a
Casualty or if the use, access, occupancy, easement rights or title to the Property or any part
thereof, is the subject of a Condemnation, then




(i) any insurance proceeds payable with respect to such Casualty shall be paid directly
to the Lessee (or if received by the Lessor, shall be paid over to the Lessee) for the sole
purpose of reconstruction, refurbishment and repair of the Property; provided, that
such reconstruction, refurbishment or repair can be completed prior to the end of the Lease
Term; provided, further, that in the event that either (i) such
reconstruction, refurbishment or repair cannot be completed prior to the end of the Lease
Term or (ii) the Lessee shall elect not to use such proceeds for the reconstruction,
refurbishment or repair of the Property, then all such insurance proceeds payable with
respect to such Casualty shall be paid to the Lessor to be applied towards the payment of
the Lease Balance in accordance with Section 7.2 of the Amended and Restated
Participation Agreement, and




(ii) (x) in the case of a Condemnation (that is not a Significant Condemnation) of any
part of the Land (not including the applicable Improvements), any award or compensation
relating thereto shall be paid to the Lessee for the sole purpose of restoration of the
Property (provided, that such restoration can be completed prior to the end of the
Lease Term) or else shall be paid to the Lessor to be applied in the Lessor’s reasonable
discretion to the partial restoration of the Property or towards the payment of the Lease
Balance, and (y) in the case of a Significant Condemnation, such award or compensation shall
be paid to the Lessor to be applied in the Lessor’s reasonable discretion to the restoration
of the Property or toward the payment of the Lease Balance in accordance with Article VII of
the Amended and Restated Participation Agreement;



provided, however, that, in each case, if a Lease Event of Default shall have
occurred and be continuing, such award, compensation or insurance proceeds shall be paid directly
to the Lessor or, if received by the Lessee, shall be held in trust for the Lessor, and shall be
paid by the Lessee to the Account to be distributed in accordance with Article VII of the Amended
and Restated Participation Agreement. All amounts held by the Lessor when a Lease Event of Default
exists hereunder on account of any award, compensation or insurance proceeds either paid directly
to the Lessor or turned over to the Lessor shall at the option of the Lessor either be (i) paid to
the Lessee for the repair of damage caused by such Casualty or Condemnation in accordance with
clause (d) of this Section 14.1, or (ii) applied to the repayment of the Lease
Balance on the Termination Date with respect to the Property in accordance with Article XV.



(b) The Lessee may appear in any proceeding or action to negotiate, prosecute, adjust or
appeal any claim for any award, compensation or insurance payment on account of any such Casualty
or Condemnation and shall pay all expenses thereof. At the Lessee’s reasonable request, and at the
Lessee’s sole cost and expense, the Lessor shall participate in any such proceeding, action,
negotiation, prosecution or adjustment. The Lessor and the Lessee agree that this Amended and
Restated Master Lease shall control the rights of the Lessor and the Lessee in and to any such
award, compensation or insurance payment.



(c) If the Lessor or the Lessee shall receive notice of a Casualty or of an actual, pending or
threatened Condemnation of the Property or any interest therein, the Lessor or the Lessee, as the
case may be, shall give notice thereof to the other promptly after the receipt of such notice.



(d) If pursuant to this Section 14.1 and Section 15.1 this Amended and
Restated Master Lease shall continue in full force and effect following a Casualty or Condemnation
with respect to the Property, the Lessee shall, at its sole cost and expense (and, without
limitation, if any award, compensation or insurance payment is not sufficient to restore the
Property in accordance with this clause (d), the Lessee shall pay the shortfall), promptly
and diligently repair any damage to the Property caused by such Casualty or Condemnation in
conformity with the requirements of Sections 8.3 and 9.1, to restore the Property
to at least the same condition, operative value and useful life as existed immediately prior to
such Casualty or Condemnation. Upon completion of such restoration, the Lessee shall furnish to
the Lessor an architect’s certificate of substantial completion and a Responsible Officer’s
Certificate confirming that such restoration has been completed pursuant to this Amended and
Restated Master Lease.



(e) In no event shall a Casualty or Condemnation affect the Lessee’s obligations to pay Rent
pursuant to Section 3.1 or to perform its obligations and pay any amounts due on the
Expiration Date or pursuant to Articles XVIII and XXI.



(f) Any Excess Casualty/Condemnation Proceeds received by the Lessor in respect of a Casualty
or Condemnation shall be turned over to the Lessee.



14.2 Environmental Matters. Promptly upon the Lessee’s knowledge of the existence of
an Environmental Violation with respect to the Property, the Lessee shall notify the Lessor in
writing of such Environmental Violation. If the Lessor elects not to terminate this Amended and
Restated Master Lease with respect to the Property pursuant to Section 15.1, at the
Lessee’s sole cost and expense, the Lessee shall promptly and diligently commence any response,
clean up, remedial or other action necessary to remove, clean up or remediate the Environmental
Violation in accordance with the terms of Section 8.3 (including the last sentence
thereof). The Lessee shall, upon completion of remedial action by the Lessee, cause to be prepared
by an environmental consultant reasonably acceptable to the Lessor a report describing the
Environmental Violation and the actions taken by the Lessee (or its agents) in response to such
Environmental Violation, and a statement by the consultant that the Environmental Violation has
been remedied in compliance in all material respects with applicable Hazardous Materials Laws.
Each such Environmental Violation shall be remedied prior to the Expiration Date unless the
Property with respect to which an Environmental Violation has occurred but has not been remedied
has been purchased by the Lessee in accordance with Section 18.1. Nothing in this
Article XIV shall reduce or limit the Lessee’s obligations under Sections 13.1, 13.2 or
13.3 of the Amended and Restated Participation Agreement.



14.3 Notice of Environmental Matters. Promptly, but in any event within thirty (30)
Business Days from the date the Lessee has actual knowledge thereof pursuant to written notice from
any Governmental Authority, the Lessee shall provide to the Lessor written notice of any pending or
threatened claim, action or proceeding involving any Hazardous Materials Laws or any Release on or
in connection with the Property. All such notices shall describe in reasonable detail the nature
of the claim, action or proceeding and the Lessee’s proposed response thereto. In addition, the
Lessee shall provide to the Lessor, within thirty (30) Business Days of receipt, copies of all
written communications with any Governmental Authority relating to any Environmental Violation in
connection with the Property. The Lessee shall also promptly provide such detailed reports of any
such material environmental claims. In the event that the Lessor receives written notice of any
pending or threatened claim, action or proceeding involving any Hazardous Materials Laws or any
Release on or in connection with the Property, the Lessor shall promptly give notice thereof to the
Lessee. For purposes of this paragraph, “actual knowledge” of the Lessee shall mean the actual
knowledge of the Lessee’s Senior Director of Facilities and Real Estate, who is responsible for the
day to day operations of the Property.



ARTICLE XV




TERMINATION OF LEASE




15.1 Partial Termination upon Certain Events. If any of the following occurs during
the Basic Lease Term with respect to the Land or related Improvements:




(i) a Significant Casualty occurs;




(ii) a Significant Condemnation occurs; or




(iii) an Environmental Violation occurs or is discovered the cost of remediation of
which would exceed $5,000,000 (x) and such violation has not been remediated within 180 days
after the occurrence or discovery or (y) the Lessee has notified the Lessor prior to the
expiration of such 180 day period that the violation will not be remediated within such
period;



and the Lessor shall have given written notice (a “Termination Notice”) to the Lessee that,
as a consequence of such event (x) the Amended and Restated Lease Supplement is to be terminated
and (y) this Amended and Restated Master Lease is to be terminated, then the Lessee shall be
obligated to purchase the Lessor’s interest in the Land and related Improvements within 30 days
after Lessee’s receipt of the Termination Notice, by paying to the Lessor an amount equal to the
Lease Balance.



15.2 Termination Procedures. On the date of the payment by the Lessee of the Lease
Balance in accordance with Section 15.1 (such date, the “Termination Date”), the
Amended and Restated Lease Supplement shall terminate and this Amended and Restated Master Lease
shall terminate and, concurrent with the Lessor’s receipt of such payment,




(a) the Improvements relative to the Property shall be conveyed to the Lessee (or to
the Lessee’s designee) “AS IS” and in its then present physical condition free of Lessor
Liens attributable to the Lessor and the Lessor shall execute and deliver a termination of
Amended and Restated Ground Lease with respect to the Land on which the relevant
Improvements are located and an assignment of the Lessor’s entire interest in the
Improvements thereon with respect to the Land in recordable form; and




(b) in the case of a termination pursuant to clause (i) or (ii) of
Section 15.1, the Lessor shall convey to the Lessee any Net Proceeds with respect to
the Significant Casualty or Significant Condemnation giving rise to the termination of this
Amended and Restated Master Lease theretofore received by the Lessor or, at the request of
the Lessee, such amounts shall be applied towards payment of the Lease Balance.



ARTICLE XVI




EVENTS OF DEFAULT




16.1 Lease Events of Default. The occurrence of any one or more of the following
events (whether such event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) shall constitute a
“Lease Event of Default”:




(a) the Lessee shall fail to make payment of (i) any Basic Rent within three (3)
Business Days after the same shall be due and payable, (ii) any Supplemental Rent due and
payable within five (5) Business Days after receipt of written notice thereof, or (iii) any
Lease Balance, Purchase Option Price or Maximum Recourse Amount on the date due therefor; or




(b) the Lessee shall fail to deposit with the Collateral Agent, on the Business Day
next succeeding the occurrence of a Deficiency Date, the Deficiency Collateral;




(c) the Lessee shall not be in compliance with Section 10.2 of the Amended and Restated
Participation Agreement;




(d) the Lessee shall fail to observe or perform any term, covenant or condition of the
Lessee under this Amended and Restated Master Lease or the other Operative Documents to
which it is party other than those described in clause (a), (b), (c)
or (f) of this Section 16.1, and, in each such case, such failure shall have
continued unremedied for thirty (30) days after written notice; provided, that such
cure period shall be extended from thirty (30) days to one-hundred and twenty (120) days if
such term, covenant or condition is, without prejudice to the Lessor, curable or remediable
and the Lessee is at all times during such extended period diligently taking action
reasonably satisfactory to the Lessor to so cure or remedy default;




(e) any representation or warranty made or deemed made by the Lessee herein or in any
Operative Document or which is contained in any certificate, document or financial or other
statement furnished at any time under or in connection with any Operative Document shall
prove to have been incorrect, false or misleading in any material respect on or as of the
date made or deemed made, unless the fact or condition which made such representation of
warranty incorrect, false or misleading is, without prejudice to the Lessor, curable or
remediable and the Lessee is at all times diligently taking action reasonably satisfactory
to the Lessor to so cure or remedy such fact or condition in order to make such
representation and/or warranty true and correct in all material respects, in which event the
Lessee shall have one-hundred and eighty (180) days from the date such representation or
warranty was made or deemed made to cure or remedy such default;




(f) the Lessee shall fail to observe or perform any covenant or condition set forth in
Section 20.1 hereof;




(g) any Operative Document or any Lien granted under any Operative Document shall,
taken as a whole, terminate, cease to be effective against, or cease to be the legal, valid,
binding and enforceable obligation of the Lessee;




(h) the Lessee shall directly or indirectly contest the effectiveness, validity,
binding nature or enforceability of any Operative Document or any Lien granted under any
Operative Document;




(i) a contribution failure occurs with respect to any Pension Plan sufficient to give
rise to a Lien under section 302(f) of ERISA.




(j) any judgments or orders for the payment of money, in any case not covered by
insurance, individually or in the aggregate in excess of $10,000,000 shall be rendered
against the Lessee and such judgment or order shall continue unsatisfied and unstayed
(pursuant to laws, rules or court orders) for a period of thirty (30) days;




(k) (i) a default shall occur in the payment when due (subject to any grace period),
whether by acceleration or otherwise, of any Indebtedness of the Lessee or any of its
Consolidated Subsidiaries having a principal amount, individually or in the aggregate, in
excess of $10,000,000, or (ii) a default shall occur in the performance or observance of any
obligation or condition with respect to any Indebtedness if the effect of such default is to
accelerate the maturity of any such Indebtedness (provided that a Lease Event of
Default under this Section 16.1(k)(ii) will not occur if the Lessor or any
Subsidiary (direct or indirect) of the Lessor (or its successors or assigns) has the
unilateral right (through vote or otherwise) to accelerate the maturity of such
Indebtedness) or (iii) in the case of an event described in clause (i) above, such
default shall continue unremedied for any applicable period of time sufficient to permit the
holder or holders of such Indebtedness, or any trustee or agent for such holders, to cause
such Indebtedness to become due and payable prior to its expressed maturity;




(l) [Intentionally Omitted]




(m) the Lessee shall fail to maintain the insurance required under Article XIII
hereof;




(n) the Lessee shall (i) admit in writing its inability to pay its debts generally as
they become due, (ii) file a petition under the United States bankruptcy laws or any other
applicable insolvency law or statute of the United States of America or any State or
Commonwealth thereof, (iii) make a general assignment for the benefit of its creditors,
(iv) consent to the appointment of a receiver of itself or the whole or any substantial part
of its property, (v) fail to cause the discharge of any custodian, trustee or receiver
appointed for the Lessee or the whole or a substantial part of its property within sixty
(60) days after such appointment, or (vi) file a petition or answer seeking or consenting to
reorganization under the United States bankruptcy laws or any other applicable insolvency
law or statute of the United States of America or any State or Commonwealth thereof; or




(o) insolvency proceedings or a petition under the United States bankruptcy laws or any
other applicable insolvency law or statute of the United States of America or any State or
Commonwealth thereof shall be filed against the Lessee and not dismissed within sixty (60)
days from the date of its filing (provided, that the Lessee, hereby expressly
authorizes the Lessor to appear in any court conducting any such proceeding during such
sixty (60) day period to preserve, protect and defend their respective rights under the
Operative Documents), or a court of competent jurisdiction shall enter an order or decree
appointing, without the consent of the Lessee, a receiver of the Lessee or the whole or a
substantial part of any of its property, and such order or decree shall not be vacated or
set aside within sixty (60) days from the date of the entry thereof;



Lessor acknowledges that in making a determination that a Lease Event of Default has occurred
under Section 16.1(d), (e), (k)(iii) or (f), to the extent the Lessor exercises
discretion in making such determination, it shall exercise such discretion in a commercially
reasonable manner.



16.2 Remedies. Upon the occurrence of any Lease Event of Default and the declaration
thereof, the Lease Balance due hereunder without further act shall be accelerated and be deemed to
be due and payable hereunder, and at any time thereafter, the Lessor may, subject to the last three
paragraphs of this Section 16.2 and so long as such Lease Event of Default is continuing,
do one or more of the following as the Lessor in its sole discretion shall determine, without
limiting any other right or remedy the Lessor may have on account of such Lease Event of Default.



(a) The Lessor may, by notice to the Lessee, rescind or terminate this Amended and Restated
Master Lease as to the Property as of the date specified in such notice; provided,
however (i) no reletting, reentry or taking of possession of the Property (or any portion
thereof) by the Lessor will be construed as an election on the Lessor’s part to terminate this
Amended and Restated Master Lease unless a written notice of such intention is given to the Lessee,
(ii) notwithstanding any reletting, reentry or taking of possession, the Lessor may at any time
thereafter elect to terminate this Amended and Restated Master Lease for a continuing Lease Event
of Default and (iii) no act or thing done by the Lessor or any of its agents, representatives or
employees and no agreement accepting a surrender of the Property shall be valid unless the same be
made in writing and executed by the Lessor;



(b) The Lessor may (i) demand that the Lessee, and the Lessee shall upon the written demand of
the Lessor, return the Property promptly to the Lessor in the manner and condition required by, and
otherwise in accordance with all of the provisions of, Articles VII and IX and
Section 8.3 hereof as if the Property were being returned at the end of the Lease Term, and
the Lessor shall not be liable for the reimbursement of the Lessee for any costs and expenses
incurred by the Lessee in connection therewith and (ii) without prejudice to any other remedy which
the Lessor may have for possession of the Property, and to the extent and in the manner permitted
by Applicable Law, enter upon the Property and take immediate possession of (to the exclusion of
the Lessee) the Property or any part thereof and expel or remove the Lessee and any other Person
who may be occupying the Property subject to the terms and conditions of any existing sublease to
an unaffiliated third party, by summary proceedings or otherwise, all without liability to the
Lessee for or by reason of such entry or taking of possession, whether for the restoration of
damage to property caused by such taking or otherwise and, in addition to the Lessor’s other
damages, the Lessee shall be responsible for all costs and expenses incurred by the Lessor in
connection with any reletting, including, without limitation, reasonable brokers’ fees and all
costs of any alterations or repairs made by the Lessor;



(c) As more fully set forth in the Amended and Restated Lease Supplement, the Lessor may sell
the Property, subject to the Amended and Restated Ground Lease, at public or private sale, as the
Lessor may determine and upon any such sale the Lessee’s obligation to pay Basic Rent with respect
to the Property sold shall terminate;



(d) The Lessor may, at its option, elect not to terminate this Amended and Restated Master
Lease with respect to the Property and continue to collect all Basic Rent, Supplemental Rent, and
all other amounts due to the Lessor (together with all costs of collection) and enforce the
Lessee’s obligations under this Amended and Restated Master Lease as and when the same become due,
or are to be performed, and at the option of the Lessor, upon any abandonment of the Property by
the Lessee or re-entry of same by the Lessor, the Lessor may enforce, by suit or otherwise, all
other covenants and conditions hereof to be performed or complied with by the Lessee hereunder and
to exercise all other remedies permitted by Section 1951.4 of the California Civil Code or any
amendments thereof or any successor laws which replace such Section 1951.4;



(e) Unless the Property has been sold in its entirety, the Lessor may, whether or not the
Lessor shall have exercised or shall thereafter at any time exercise any of its rights under
clause (b), (c) or (d) of this Section 16.2 with respect to the
Property or any portions thereof, demand, by written notice (the “Acceleration Notice”) to
the Lessee specifying a date (a “Termination Date”) not earlier than five (5) days after
the date of such notice, that the Lessee purchase, on such Termination Date for a price equal to
the Lease Balance subject to the Amended and Restated Master Lease, in accordance with the
provisions of Article XXI;



(f) The Lessor may exercise any other right or remedy that may be available to it under
Applicable Law, including any and all rights or remedies under the Amended and Restated Basic Term
Pledge Agreement, or proceed by appropriate court action (legal or equitable) to enforce the terms
hereof or to recover damages for the breach hereof. Separate suits may be brought to collect any
such damages for any period(s), and such suits shall not in any manner prejudice the Lessor’s right
to collect any such damages for any subsequent period(s), or the Lessor may defer any such suit
until after the expiration of the Lease Term, in which event such suit shall be deemed not to have
accrued until the expiration of the Lease Term;



(g) The Lessor may retain and apply against the Lease Balance all sums which the Lessor would,
absent such Lease Event of Default, be required to pay to, or turn over to, the Lessee pursuant to
the terms of this Amended and Restated Master Lease and upon payment in full of the Lease Balance
from such sums, the Property shall be conveyed to Lessee in accordance with Section 21.1 of
the Amended and Restated Master Lease;



(h) If a Lease Event of Default shall have occurred and be continuing, the Lessor, to the
extent permitted by Applicable Law, as a matter of right and with notice to the Lessee, shall have
the right to apply to any court having jurisdiction to appoint a receiver or receivers of the
Property, and the Lessee hereby irrevocably consents to any such appointment. Any such receiver(s)
shall have all of the usual powers and duties of receivers in like or similar cases and all of the
powers and duties of the Lessor in case of entry, and shall continue as such and exercise such
powers until the date of confirmation of the sale of the Property unless such receivership is
sooner terminated;



(i) To the maximum extent permitted by law, the Lessee hereby waives the benefit of any
appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in
force and all rights of marshalling in the event of any sale of the Property or any interest
therein;



(j) The Lessor shall be entitled to enforce payment of the indebtedness and performance of the
obligations secured hereby and to exercise all rights and powers under this instrument or under any
of the other Operative Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the obligations secured hereby may now or hereafter be otherwise
secured, whether by mortgage, security agreement, pledge, lien, assignment or otherwise. Neither
the acceptance of this instrument nor its enforcement, shall prejudice or in any manner affect the
Lessor’s right to realize upon or enforce any other security now or hereafter held by the Lessor,
it being agreed that the Lessor shall be entitled to enforce this instrument and any other security
now or hereafter held by the Lessor in such order and manner as the Lessor may determine in its
absolute discretion. No remedy herein conferred upon or reserved to the Lessor is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative
and shall be in addition to every other remedy given hereunder or now or hereafter existing at law
or in equity or by statute. Every power or remedy given by any of the Operative Documents to the
Lessor or to which it may otherwise be entitled, may be exercised, concurrently or independently,
from time to time and as often as may be deemed expedient by the Lessor. In no event shall the
Lessor, in the exercise of the remedies provided in this instrument (including, without limitation,
in connection with the assignment of rents to Lessor, or the appointment of a receiver and the
entry of such receiver onto all or any part of the Property), be deemed a “mortgagee in
possession”, and the Lessor shall not in any way be made liable for any act, either of commission
or omission, in connection with the exercise of such remedies, except for the exercise of the
remedies set forth in clauses (c), (j) or (k) of this Section 16.2
within thirty (30) days after the declaration of the occurrence of a Lease Event of Default in
contravention of Lessee’s purchase right set forth in the last paragraph of this Section
16.2;



(k) Foreclosure; Power of Sale. The Lessee hereby grants to Chicago Title Insurance
Company, as trustee (together with all successor trustees, the “Trustee”), IN TRUST, WITH
POWER OF SALE AND RIGHT OF ENTRY, all of the Lessee’s right, title and interest in and to the
Property and, upon the occurrence of a Lease Event of Default and following termination of this
Amended and Restated Master Lease by the Lessor, the Lessor shall have the power and authority,
after proper notice and lapse of such time as may be required by law and by this Amended and
Restated Master Lease, to cause the Trustee to sell the Property by notifying the Trustee of that
election and depositing with the Trustee this instrument and receipts and evidence of expenditures
made and secured hereby as the Trustee may reasonably require. Upon receipt of any such notice
from the Lessor, the Trustee shall cause to be recorded, published and delivered to Lessee such
notice of default and election to sell (“Notice of Default and Election to Sell”) as is
then required by applicable statutory authority and by this instrument, which notice shall set
forth, among other things, the nature of the breach(es) or default(s), the action(s) required to
effect a cure thereof and the time period within which that cure may be effected. If no cure is
effected within the statutory time limits following recordation of the Notice of Default and
Election to Sell and after Notice of Sale has been given as required by the above-referenced
statutes, the Trustee may without further notice or demand sell and convey the Property in
accordance with the above-referenced statutes. The Property may be sold as a whole or in separate
lots, parcels or items and in such order as the Lessor may direct, at public auction to the highest
bidder for cash in lawful money of the United States payable at the time of sale. The Trustee
shall deliver to such purchaser(s) a good and sufficient deed or deeds conveying the property so
sold, but without any covenant or warranty express or implied. The recitals in such deed of any
matter or fact shall be conclusive proof of the truthfulness thereof. Any Person, including the
Lessee, the Trustee or the Lessor, may purchase at any sale. After deducting all costs, fees and
expenses of the Lessor and the Trustee, including costs of evidence of title in connection with any
sale, the Lessor shall apply the proceeds of sale, in the following order of priority, to payment
of the following (collectively referred to herein as the “Obligated Amounts”): (i) first,
all amounts expended by or for the account of the Lessor under the terms hereof and not then
repaid, with accrued interest at the Overdue Rate; (ii) second, as set forth in Article VII of the
Amended and Restated Participation Agreement; and (iii) the remainder, if any, to the Person or
Persons legally entitled thereto. Subject to California Civil Code Section 2924(g), the Trustee
may postpone the sale of all or any portion of the Property by public announcement at the time and
place of sale, and from time to time thereafter may again postpone that sale by public announcement
or subsequently noticed sale, and without further notice may make such sale at the time fixed at
the last postponement or may, in its discretion, give a new notice of sale. A sale of less than
all of the Property or any defective or irregular sale made hereunder shall not exhaust the power
of sale provided for herein, and subsequent sales may be made hereunder until all of the Obligated
Amounts have been satisfied or the Property has been sold, without defect or irregularity. No
action of the Lessor or the Trustee based upon the provisions contained herein or contained in the
applicable statutes, including, without limitation, the giving of the Notice of Default and
Election to Sell or the Notice of Sale, shall constitute an election of remedies which would
preclude the Lessor from pursuing judicial foreclosure and foreclosing this instrument and its
security interest as a mortgage before a completed sale pursuant to the power of sale contained
herein or specifically enforcing any covenants hereof. The Lessor shall have the right, with the
irrevocable consent of the Lessee hereby given and evidenced by the execution of this instrument,
to obtain appointment of a receiver by any court of competent jurisdiction without further notice
to the Lessee and without regard to the then value of the Property or the adequacy of security for
the obligations hereunder, which receiver shall be authorized and empowered to enter upon and take
possession of the Property, including all personal property used upon or in connection with the
real property herein conveyed (other than as set forth in Section 9.1(c)), to let the
Property, to receive all the rents, issues and profits, if any, which may be due or become due in
respect to the leasing of the Property to another party (herein, “Property Rents”), and
apply the Property Rents after payment of all necessary charges and expenses to reduction of the
Obligated Amounts in such order, proportion and priority as the Lessor may elect. At the option of
the Lessor, the receiver shall accomplish entry and taking possession of the Property by actual
entry and possession or by notice to the Lessee subject to the terms of any sublease entered into
in accordance with Section 6.1(b). The receiver so appointed by a court of competent
jurisdiction shall be empowered to issue receiver’s certificates for funds advanced by the Lessor
for the purpose of protecting the value of the Property as security for the Obligated Amounts. The
amounts evidenced by receiver’s certificates shall bear interest at the Overdue Rate and may be
added to the Obligated Amounts if the Lessee or a junior lienholder purchases the Property at the
trustee’s sale. The Trustee or any successor acting hereunder may resign and thereupon be
discharged of the trusts hereunder upon thirty (30) days’ prior written notice to the Lessor.
Regardless of whether the Trustee resigns, the Lessor may, from time to time, substitute a
successor or successors to any Trustee named herein or acting hereunder in accordance with any
statutory procedure for such substitution; or if Lessor, in its sole and absolute discretion, so
elects, and if permitted by law, the Lessor may substitute such successors or successors by
recording, in the office of the recorder of the county or counties where the Property is located, a
document executed by the Lessor and containing the name of the original Lessee and Lessor
hereunder, the book and page where this instrument (or a memorandum hereof) is recorded (and/or
instrument number, as applicable) and the name of the new Trustee, which instrument shall be
conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without
conveyance from the predecessor Trustee, succeed to the rights, powers and duties hereunder. It is
acknowledged that A POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT; A POWER OF SALE MAY ALLOW
LESSOR TO TAKE THE PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT
BY THE LESSEE UNDER THIS INSTRUMENT.



The Lessor acknowledges and agrees that upon the declaration of an Event of Default, to the
maximum extent permitted by law, the Lessee waives any right to contest the sum of the Lease
Balance as the liquidated sum due upon acceleration of this instrument.



If, pursuant to the exercise by the Lessor of its remedies pursuant to this Section
16.2, the Lease Balance and all other amounts due and owing from the Lessee under this Amended
and Restated Master Lease and the other Operative Documents have been paid in full, then the Lessor
shall remit to the Lessee any excess amounts received by the Lessor. The obligation to deliver
such excess to the Lessee shall survive this Amended and Restated Master Lease.



The Lessor agrees that for thirty (30) days after the declaration of the occurrence of a Lease
Event of Default, the Lessor shall forebear from exercising the remedies set forth in clauses
(c), (j) or (k) of this Section 16.2 during which time the Lessee may
tender to the Lessor in immediately available funds the Lease Balance and all past due and accrued
and unpaid Rent upon the receipt of which Lessor shall transfer the Land and related Improvements
to the Lessee or its designee in accordance with Article XXI hereof.



16.3 Waiver of Certain Rights. Subject to the foregoing, if this Amended and Restated
Master Lease shall be terminated pursuant to Section 16.2, the Lessee waives, to the
fullest extent permitted by law, (a) any notice of re-entry or the institution of legal proceedings
to obtain re-entry or possession; (b) any right of redemption, re-entry or repossession except as
expressly provided herein; (c) the benefit of any laws now or hereafter in force exempting property
from liability for rent or for debt or limiting the Lessor with respect to the election of
remedies; and (d) any other rights which might otherwise limit or modify any of the Lessor’s rights
or remedies under this Article XVI.



16.4 Limitation of Liability. Notwithstanding anything else in any Operative Document
to the contrary, if the sole Lease Event of Default is triggered by the occurrence of either (each
a “Limited Recourse Event”) (x) an event set forth in Section 16.1(d) (as it
pertains only to Section 10.1(a)(v) of the Amended and Restated Participation Agreement), (y) an
event set forth in Section 16.1(k)(iii) or (z) Section 16.1(c) (as it pertains only to
Section 10.2.2 of the Amended and Restated Participation Agreement), or any combination of the
foregoing and no other event that gives rise to a Lease Event of Default has occurred and is
continuing, Lessee’s recourse liability (including any amount that may be realized from the
Collateral) to Lessor as a consequence thereof (including any liability for amounts due pursuant to
Section 9.1 of the Amended and Restated Participation Agreement for enforcement costs or losses
arising as a result of such Event of Default and Section 13.1 for any Claims arising out of any
Limited Recourse Event) shall be limited to the sum of all accrued and unpaid Rent, plus the
Maximum Recourse Amount for the Property (it being understood by the parties hereto that the limit
on Lessee’s recourse liability with respect to any indemnification provisions shall only pertain to
Claims that directly arise from a Limited Recourse Event). In addition, any amounts owed to the
Lessor which are not paid in full from the Maximum Recourse Amount may be realized by the exercise
of remedies against the Property by the Lessor. The Net Proceeds of such actions shall be
distributed in accordance with Section 7.4 of the Amended and Restated Participation Agreement.



If there is an occurrence of a Limited Recourse Event and no other Lease Event of Default is
continuing, and Lessee has paid to Lessor all accrued and unpaid Rent, plus the Maximum Recourse
Amount within five days after Lessee’s receipt of an Acceleration Notice from Lessor, then Lessor
shall obtain an Appraisal at the Lessee’s expense from an Appraiser regarding Fair Market Sales
Value of the Property. If the conclusion of the Appraisal is that the Fair Market Sales Value of
the Property is greater than the sum of (i) the Lease Balance (after giving effect to the payment
by Lessee of the Maximum Recourse Amount), plus (ii) the reasonably estimated costs of
remarketing and selling the Property, then Lessor shall remarket for six months the Property in a
commercially reasonable manner, in accordance with Applicable Law and the procedures set forth in
Section 21.1. Lessee may bid on the Property so remarketed by Lessor and Lessee may also
solicit bids from other Persons in respect of the Property. If the Property is sold, the Net
Proceeds of such remarketing shall be distributed first, to Lessor in an amount equal to the
difference between the sum of Lease Balance and all accrued and unpaid Rent and the amount paid by
Lessee pursuant to the first sentence of this paragraph, and second to Lessee. Basic Rent (using
the Overdue Rate) shall continue to accrue and shall be payable by Lessee to Lessor during the
period that Lessee is remarketing the Property.



ARTICLE XVII




LESSOR’S RIGHT TO CURE




17.1 The Lessor’s Right to Cure the Lessee’s Lease Defaults. The Lessor, without
waiving or releasing any obligation or Lease Event of Default, may (but shall be under no
obligation to) remedy any Lease Event of Default for the account and at the sole cost and expense
of the Lessee, including the failure by the Lessee to maintain the insurance required by
Article XIII, and may, to the fullest extent permitted by law, and notwithstanding any
right of quiet enjoyment in favor of the Lessee, enter upon the Property for such purpose and take
all such action thereon as may be necessary or appropriate therefor. No such entry shall be deemed
an eviction of the Lessee. All reasonable out-of-pocket costs and expenses so incurred (including
fees and expenses of counsel), together with interest thereon at the Overdue Rate from the date on
which such sums or expenses are paid by the Lessor, shall be paid by the Lessee to the Lessor as
Supplemental Rent.



ARTICLE XVIII




PURCHASE PROVISIONS




18.1 Purchase of the Property. (a) Subject to the conditions contained herein, the
Lessee shall have the irrevocable option on any Business Day to purchase the Property subject to
this Amended and Restated Master Lease at a price (the “Purchase Price”) equal to the Lease
Balance on the date of such purchase, plus Break Costs (if any). The Lessee’s exercise of its
option pursuant to this Section 18.1 shall be subject to the following conditions:




(i) the Lessee shall have delivered a Purchase Notice to the Lessor not less than
thirty (30) days prior to such purchase, specifying the date of such purchase;




(ii) the Lessee shall not have given notice of its intention to exercise the
Remarketing Option;




(iii) notwithstanding any other provision contained herein, if any Environmental
Violation shall not be remedied by the Lessee with respect to the Property in accordance
with Section 14.2, the Lessee shall be deemed to have made a timely election of its
option to purchase the Property in accordance with this Section 18.1.




(b) [Intentionally Omitted].



(c) If the Lessee exercises its option pursuant to this Section 18.1 then, upon the
Lessor’s receipt of all amounts due in connection therewith, the Lessor shall transfer to the
Lessee or its designee all of the Lessor’s right, title and interest in and to the Property in
accordance with the procedures set forth in Section 21.1(a), such transfer to be effective
as of the date specified in the Purchase Notice. The Lessee may designate, in a notice given to
the Lessor not less than ten (10) Business Days prior to the closing of such purchase (time being
of the essence), the transferee or transferees to whom the conveyance shall be made (if other than
to the Lessee), in which case such conveyance shall (subject to the terms and conditions set forth
herein) be made to such designee; provided, however, that such designation of a
transferee or transferees shall not cause the Lessee to be released, fully or partially, from any
of its obligations under this Amended and Restated Master Lease, including, without limitation, the
obligation to pay to the Lessor that portion of the Lease Balance allocable to the Property on the
date specified in the applicable Purchase Notice. The Lessee shall have the right to elect by
written notice to the Lessor to have all or part of any such Purchase Price paid by liquidation of
the Collateral so long as, in the case of a purchase of less than all the Property, Sufficient
Collateral remains subject to the Amended and Restated Basic Term Pledge Agreement.



ARTICLE XIX




EXTENSION OF EXPIRATION DATE




19.1 Extension of Expiration Date. The Lessee may extend the Expiration Date subject
to, and in accordance with, the terms and conditions of Section 11.2 of the Amended and Restated
Participation Agreement.



ARTICLE XX




REMARKETING OPTION




20.1 Option to Remarket. Subject to the fulfillment of each of the conditions set
forth in this Section 20.1, the Lessee shall have the option (the “Remarketing
Option”) to market the Property on behalf of the Lessor.



The Lessee’s effective exercise and consummation of the Remarketing Option shall be subject to
the due and timely fulfillment of each of the following provisions as to the affected Property as
of the dates set forth below:




(a) No earlier than eighteen months and not later than twelve months prior to the
Scheduled Basic Lease Term Termination Date, the Lessee shall give to the Lessor written
notice of the Lessee’s exercise of the Remarketing Option with respect to the Property.
Failure by the Lessee to give timely notice with respect to the Property shall be deemed to
be an election by the Lessee, without further act thereby, of its Purchase Option for the
Property.




(b) Not later than ninety (90) days prior to the Scheduled Basic Lease Term Termination
Date, the Lessee shall deliver to the Lessor an Environmental Audit for the Property. Such
Environmental Audit shall be prepared by an environmental consultant selected by the Lessor
in the Lessor’s reasonable discretion and shall contain conclusions reasonably satisfactory
to the Lessor as to the environmental status of the Property. If any such Environmental
Audit indicates any exceptions, the Lessee shall have also delivered prior to the Scheduled
Basic Lease Term Termination Date, a Phase Two environmental assessment by such
environmental consultant and a written statement by such environmental consultant indicating
that all such exceptions have been remedied in compliance with Applicable Law. As of the
Scheduled Basic Lease Term Termination Date, any Permitted Property Liens (other than (x)
Liens of the type described in clause (iii) of the definition of “Permitted Property
Liens” to the extent, but only to the extent, the Lessor is in its opinion fully indemnified
therefrom, and (y) Liens of the type described in clause (vii) of the definition of
“Permitted Property Liens”) on the Property that were contested by the Lessee shall have
been removed.




(c) No Event of Default shall have occurred and be continuing that shall not have been
cured on or prior to the Expiration Date.




(d) During the Marketing Period, the Lessee shall, as nonexclusive agent for the
Lessor, use reasonable commercial efforts to sell the Lessor’s interest in the Property on
or before the Scheduled Basic Lease Term Termination Date and will attempt to obtain the
highest purchase price therefor and for not less than the Fair Market Sales Value.




(e) The Lessee shall have obtained, at its cost and expense, all required governmental
and regulatory consents and approvals and shall have made all filings as required by
Applicable Law in order to carry out and complete the transfer of the Property. As to the
Lessor, any such sale shall be made on an “as is, with all faults” basis without
representation or warranty by the Lessor other than the absence of Lessor Liens attributable
to it.




(f) The Lessee shall pay directly, and not from the sale proceeds, all prorations and
credits, whether incurred by the Lessor or the Lessee, including without limitation, the
cost of all environmental reports, appraisals required under Section 13.2 of the Amended and
Restated Participation Agreement and the Lessee’s attorneys’ fees.




(g) The Lessee shall pay to the Lessor on or prior to the Scheduled Basic Lease Term
Termination Date (or in the case of Supplemental Rent, to the Person entitled thereto) an
amount equal to the Maximum Recourse Amount plus all accrued and unpaid Rent and all other
amounts hereunder which have accrued or will accrue prior to or as of the Scheduled Basic
Lease Term Termination Date, in the type of funds specified in Section 3.1(b)
hereof;




(h) The gross proceeds (the “Gross Remarketing Proceeds”) of the sale of the
Property (less any marketing, closing or other costs, prorations or commissions related to
the marketing of the Property), shall be paid directly to the Lessor; provided,
however, that if the sum of (x) the Gross Remarketing Proceeds from such sale plus
(y) the Maximum Recourse Amount received by the Lessor pursuant to Section 20.1(g)
creates an excess over the Lease Balance, then the excess shall be paid to the Lessee
promptly after receipt thereof by the Lessor. The obligations of the Lessor under this
paragraph shall survive the expiration or termination of this Amended and Restated Master
Lease.




(i) No subleases affecting the Property shall be in effect on the Scheduled Basic Lease
Term Termination Date.



If the Lessee effectively elects the Remarketing Option and the sale of any affected Property
is not consummated prior to the end of the Marketing Period, the Lessee shall, in addition to
making the payment required pursuant to Section 20.1(g) above, at its own cost and expense,
do each of the following:




(i) execute and deliver to the Lessor and the Lessor’s title insurance company an
affidavit as to the absence of any Liens (other than Permitted Property Liens of the type
described in clause (i), (vii), (viii), (ix) or (x)
Liens for taxes not yet due and Lessor Liens), and shall execute and deliver to the Lessor a
statement of termination of this Amended and Restated Master Lease to the extent relating to
the Property;




(ii) on the Expiration Date, transfer possession of the Property to the Lessor or any
Person designated by the Lessor, by surrendering the same into the possession of the Lessor
or such Person, as the case may be, in the condition required by this Section 20.1
and in compliance with Applicable Law; and




(iii) for a period of up to one year after the Expiration Date, cooperate reasonably
with the Lessor and/or any Person designated by the Lessor to receive the Property, which
cooperation shall include reasonable efforts with respect to the following, all of which the
Lessee shall do on or before the Expiration Date for the Property or as soon thereafter as
is reasonably practicable: providing copies of all books and records regarding the
maintenance and ownership of the Property and all know-how, data and technical information
relating thereto, providing a current copy of the applicable Plans and Specifications,
granting or assigning all assignable licenses necessary for the operation and maintenance of
the Property and cooperating reasonably in seeking and obtaining all necessary Governmental
Action. The obligations of the Lessee under this paragraph shall survive the expiration or
termination of this Amended and Restated Master Lease.



Lessor shall have no obligation to approve any bid for the Property except for bona fide
all-cash bids which, together with amounts payable by the Lessee under clause (g) hereof,
in the aggregate is at least equal to Lease Balance and the acceptance of which will not subject
the Lessor to any additional liability. Except as expressly set forth herein, the Lessee shall
have no right, power or authority to bind the Lessor in connection with any proposed sale of the
Property.



If one or more of the foregoing clauses (a) through (i) shall not be
fulfilled as of the Expiration Date with respect to the Property, then the Remarketing Option shall
be null and void (whether or not it has been theretofore exercised by the Lessee) as to the
Property, in which event all of the Lessee’s rights under this Section 20.1 shall
immediately terminate and the Lessee shall purchase from the Lessor, and the Lessor shall convey to
the Lessee, on the Expiration Date all of the Lessor’s interest in the Property for an amount equal
to the Lease Balance.



If Lessor has neither sold nor foreclosed upon the Property within two (2) years after receipt
of the Maximum Recourse Amount, Lessor will appoint a qualified independent sales agent to sell the
Property pursuant to the first offer received of a purchase price at the then Fair Market Sales
Value of the Property to the extent the conditions therefor are satisfied. Any proceeds resulting
from any such sale will be applied in accordance with Section 7.4 of the Amended and Restated
Participation Agreement.



20.2 Certain Obligations Continue. During the Marketing Period, the obligation of the
Lessee to pay Rent with respect to the Property (including the installment of Rent due on the
Expiration Date) shall continue undiminished until payment in full of the Lease Balance
plus any unpaid Supplemental Rent due to the Lessor with respect to the Property under the
Operative Documents to which the Lessee is a party. The Lessor shall have the right, but shall be
under no duty, to solicit bids, to inquire into the efforts of the Lessee to obtain bids or
otherwise to take action in connection with any such sale.



ARTICLE XXI




PROCEDURES RELATING TO PURCHASE OR REMARKETING




21.1 Provisions Relating to the Exercise of Purchase Option or Obligation and Conveyance
Upon Remarketing and Conveyance Upon Certain Other Events. (a) In connection with any
termination of this Amended and Restated Master Lease with respect to the Property pursuant to the
terms of Article XV, in connection with any purchase or in connection with the Lessee’s
purchase of the Property in accordance with Section 18.1 or in connection with the Lessee’s
exercise of the purchase right under Section 16.2, then, upon the date on which this
Amended and Restated Master Lease is to terminate with respect to the Property, and upon tender by
the Lessee of the amounts set forth in Article XV, Sections 16.2 or 18.1,
as applicable:




(i) the Lessor shall execute and deliver to the Lessee (or to the Lessee’s designee) at
the Lessee’s cost and expense an instrument of transfer relating to the Lessor’s entire
interest in the Property (which shall include a termination of the Amended and Restated
Ground Lease and an assignment of all of the Lessor’s right, title and interest in and to
any Net Proceeds with respect to the Property not previously received by the Lessor), in
each case in recordable form and otherwise in conformity with local custom and free and
clear of the Lien of the Lessor Mortgage and any Lessor Liens attributable to Lessor;




(ii) the Property shall be conveyed to the Lessee “AS IS” and in its then present
physical condition; and




(iii) the Lessor shall execute and deliver to Lessee and the Lessee’s title insurance
company an affidavit as to the Lessor’s title and release Lessor Liens attributable to it
and the Lessor Mortgage and shall execute and deliver to Lessee a statement of termination
of this Amended and Restated Master Lease with respect to the Property.



(b) If the Lessee properly exercises the Remarketing Option and the Property is sold, then the
Lessee shall, on the Expiration Date, and at its own cost, transfer possession of all of the
Property to the independent purchaser(s) thereof, in each case by surrendering the same into the
possession of the Lessor or such purchaser(s), as the case may be, free and clear of all Liens, in
good condition (as modified by Modifications permitted by this Amended and Restated Master Lease),
ordinary wear and tear excepted, and in compliance with Applicable Law.



ARTICLE XXII




ESTOPPEL CERTIFICATES




22.1 Estoppel Certificates. At any time and from time to time upon not less than
thirty (30) Business Days’ prior request by the Lessor or the Lessee (the “Requesting
Party”), the other party (whichever party shall have received such request, the “Certifying
Party”) shall furnish to the Requesting Party a certificate signed by an individual having the
office of vice president or higher in the Certifying Party certifying that this Amended and
Restated Master Lease is in full force and effect (or that this Amended and Restated Master Lease
is in full force and effect as modified and setting forth the modifications); the dates to which
the Basic Rent and Supplemental Rent have been paid; to the best knowledge of the signer of such
certificate, whether or not the Requesting Party is in default under any of its obligations
hereunder (and, if so, the nature of such alleged default); and such other matters under this
Amended and Restated Master Lease as the Requesting Party may reasonably request. Any such
certificate furnished pursuant to this Article XXII may be relied upon by the Requesting
Party, and any existing or prospective mortgagee, purchaser or lender, and any accountant or
auditor, of, from or to the Requesting Party (or any Affiliate thereof).



ARTICLE XXIII




ACCEPTANCE OF SURRENDER




23.1 Acceptance of Surrender. No surrender to the Lessor of this Amended and Restated
Master Lease or of the Property or of any part thereof or of any interest therein shall be valid or
effective unless agreed to and accepted in writing by the Lessor and no act by the Lessor or any
representative or agent of the Lessor, other than a written acceptance, shall constitute an
acceptance of any such surrender.



ARTICLE XXIV




NO MERGER OF TITLE




24.1 No Merger of Title. There shall be no merger of this Amended and Restated Master
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 Amended and Restated
Master Lease or the leasehold estate created hereby or any interest in this Amended and Restated
Master Lease or such leasehold estate, (b) the fee or ground leasehold estate in the 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 the Lessor.



ARTICLE XXV




INTENT OF THE PARTIES




25.1 Nature of Transaction. (a) It is the intent of the parties that: (i) the Lease
constitutes an operating lease from Lessor to the Lessee for purposes of the Lessee’s financial
reporting, (ii) the Lease and other transactions contemplated will result in the Lessee being
recognized as the owner of the Property for Federal and state income tax and bankruptcy purposes,
(iii) the Amended and Restated Lease Supplement grants to Lessor a Lien on the Lessee’s interest in
the Property (exclusive of Lessee’s fee interest in the Land) covered thereby, and (iv) the
obligations of the Lessee to pay Basic 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
purposes. The Lessor shall be deemed to have a valid and binding security interest in and Lien on
the Lessee’s interest in the Property, free and clear of all Liens other than Permitted Property
Liens, as security for the obligations of the Lessee under the Operative Documents (it being
understood and agreed that the Lessee does hereby grant a Lien, and convey, transfer, assign,
mortgage and warrant to Lessor and its successors, transferees and assigns, for the benefit of the
Lessor and its successors, transferees and assigns, the Property and any proceeds or products
thereof, to have and hold the same as collateral security for the payment and performance of the
obligations of the Lessee under the Operative Documents), each of the parties hereto agrees that it
will not, nor will it permit any Affiliate to at any time, take any action or fail to take any
action with respect to the preparation or filing of any income tax return, including an amended
income tax return, to the extent that such action or such failure to take action would be
inconsistent with the intention of the parties expressed in this Section 25.1.



(b) Specifically, without limiting the generality of clause (a) of this Section
25.1, the parties hereto intend and agree that in the event of any insolvency or receivership
proceedings or a petition under the United States bankruptcy laws or any other applicable
insolvency laws or statute of the United States of America or any State or Commonwealth thereof
affecting Lessee, Lessor or any collection actions, the transactions evidenced by the Operative
Documents shall be regarded as loans made by the Lessor to the Lessee.



ARTICLE XXVI




MISCELLANEOUS




26.1 Survival; Severability; Etc. Anything contained in this Amended and Restated
Master Lease to the contrary notwithstanding, all claims against and liabilities of the Lessee or
the Lessor arising from events commencing prior to the expiration or earlier termination of this
Amended and Restated Master Lease shall survive such expiration or earlier termination for a period
of one year except as to indemnification which shall continue to survive. If any term or provision
of this Amended and Restated Master Lease or any application thereof shall be declared invalid or
unenforceable, the remainder of this Amended and Restated Master Lease and any other application of
such term or provision shall not be affected thereby. If any right or option of the Lessee
provided in this Amended and Restated Master Lease, including any right or option described in
Article XIV, XV, XVIII or XX, would, in the absence of the
limitation imposed by this sentence, be invalid or unenforceable as being in violation of the rule
against perpetuities or any other rule of law relating to the vesting of an interest in or the
suspension of the power of alienation of property, then such right or option shall be exercisable
only during the period which shall end twenty-one (21) years after the date of death of the last
survivor of the descendants of Franklin D. Roosevelt, the former President of the United States,
Henry Ford, the deceased automobile manufacturer, and John D. Rockefeller, the founder of the
Standard Oil Company, known to be alive on the date of the execution, acknowledgment and delivery
of this Amended and Restated Master Lease.



26.2 Amendments and Modifications. Subject to the requirements, restrictions and
conditions set forth in the Amended and Restated Participation Agreement, neither this Amended and
Restated Master Lease nor any provision hereof may be amended, waived, discharged or terminated
except by an instrument in writing in recordable form signed by the Lessor and the Lessee.



26.3 No Waiver. No failure by the Lessor or the Lessee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy upon a default hereunder,
and no acceptance of full or partial payment of Rent during the continuance of any such default,
shall constitute a waiver of any such default or of any such term. To the fullest extent permitted
by law, no waiver of any default shall affect or alter this Amended and Restated Master Lease, and
this Amended and Restated Master Lease shall continue in full force and effect with respect to any
other then existing or subsequent default.



26.4 Notices. All notices, demands, requests, consents, approvals and other
communications hereunder shall be in writing and directed to the address described in, and deemed
received in accordance with the provisions of, Section 15.3 of the Amended and Restated
Participation Agreement.



26.5 Successors and Assigns. All the terms and provisions of this Amended and
Restated Master Lease shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.



26.6 Headings and Table of Contents. The headings and table of contents in this
Amended and Restated Master Lease are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.



26.7 Counterparts. This Amended and Restated Master Lease may be executed in any
number of counterparts, each of which shall be an original, but all of which shall together
constitute one and the same instrument.



26.8 GOVERNING LAW. THIS AMENDED AND RESTATED MASTER LEASE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES.



26.9 Liability Limited. The parties hereto agree that except as specifically set
forth in this Amended and Restated Master Lease or in any other Operative Document, the Lessor
shall have no personal liability whatsoever to the Lessee or its respective successors and assigns
for any claim based on or in respect of this Amended and Restated Master Lease or any of the other
Operative Documents or arising in any way from the transactions contemplated hereby or thereby and
the recourse shall be solely had against the Lessor’s interest in the Property; provided,
however, that Lessor shall be liable in its individual capacity (a) for its own willful
misconduct or gross negligence, (b) breach of any of its representations, warranties or covenants
under the Operative Documents, or (c) for any Tax based on or measured by any fees, commission or
compensation received by it for acting as the Lessor as contemplated by the Operative Documents;
and further provided nothing herein or therein shall impair or limit the rights of Lessee against
the Lessor relating to any Collateral held by either of them from time to time under the Operative
Documents.



26.10 Original Master Lease. The single executed original of this Amended and
Restated Master Lease marked “THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART” on the
signature page thereof and containing the receipt thereof of Lessor therefor on or following the
signature page thereof shall be the Original Executed Counterpart of this Amended and Restated
Master Lease (the “Original Executed Counterpart”). To the extent that this Amended and
Restated Master Lease constitutes chattel paper, as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction, no security interest in this Amended and Restated
Master Lease may be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.



26.11 Effective Date. This Amended and Restated Master Lease shall become effective
on the Effective Date.



3



IN WITNESS WHEREOF, the parties have caused this Amended and Restated Master Lease be duly
executed and delivered as of the date first above written.




ELECTRONICS FOR IMAGING, INC.,


as Lessee




By




Name:




Title:



4




SOCIETE GENERALE FINANCIAL CORPORATION, as Lessor




By    




Name:




Title:



5



THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.



Receipt of this original counterpart of the foregoing Amended and Restated Master Lease is hereby
acknowledged as of the date hereof.



SOCIETE GENERALE FINANCIAL CORPORATION, as Lessor



By    




Name:



Title:




6