EXHIBIT 10.18
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AMENDED AND RESTATED MASTER LEASE
(Del Monte Corporation Trust No. 1998-A)
Dated as of April 5, 1999
between
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual capacity, but solely as
Certificate trustee,
as Lessor,
and
DEL MONTE CORPORATION, as Lessee
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THIS MASTER LEASE HAS BEEN EXECUTED IN _____ MANUALLY EXECUTED SERIALLY NUMBERED
COUNTERPARTS OF WHICH THIS IS COUNTERPART NUMBER ___. TO THE EXTENT, IF ANY,
THAT THIS 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 MASTER LEASE MAY BE CREATED THROUGH THE TRANSFER OR
POSSESSION OF ANY COUNTERPART HEREOF OTHER THAN COUNTERPART "NUMBER 1", WHICH
SHALL BE IDENTIFIED AS THE COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED
BY CERTIFICATE TRUSTEE ON OR FOLLOWING THE SIGNATURE PAGE THEREOF.
SEE SECTION 23.20 FOR THE NATURE OF THIS TRANSACTION AND INTENTION OF THE
PARTIES.
TABLE OF CONTENTS
(Lease)
Page
ARTICLE I - DEFINITIONS; LESSEE LIABILITY
ARTICLE II - LEASE OF PREMISES; LEASE TERM
SECTION 2.1. Acceptance and Lease of Sites.......................... 2
SECTION 2.2. Acceptance Procedure................................... 2
SECTION 2.3. Term................................................... 3
ARTICLE III - OTHER PROPERTY
ARTICLE IV - RENT
SECTION 4.1. Basic Rent............................................. 3
SECTION 4.2. Supplemental Rent...................................... 4
SECTION 4.3. Method and Amount of Payment........................... 4
SECTION 4.4. Late Payment........................................... 4
ARTICLE V - NET LEASE
ARTICLE VI - UTILITY CHARGES
ARTICLE VII - CONDITION AND USE OF PREMISES
SECTION 7.1. Waivers................................................
ARTICLE VIII - NO LESSOR CONSENT OR LIABILITY
ARTICLE IX - MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS
SECTION 9.1. Maintenance and Repair;
Compliance With Law......................................... 9
SECTION 9.2. Improvements and Alterations........................... 9
SECTION 9.3. Title to Alterations................................... 11
SECTION 9.4. Maintenance and Repair Reports......................... 12
SECTION 9.5. Permitted Contests..................................... 12
SECTION 9.6. Liens.................................................. 13
ARTICLE X - USE
ARTICLE XI - INSURANCE
SECTION 11.1. Required Coverages..................................... 14
SECTION 11.2. Delivery of Insurance Certificates..................... 16
ARTICLE XII
ASSIGNMENT AND SUBLEASING
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ARTICLE XIII - LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
SECTION 13.1. Event of Loss; Condemnation or Casualty............... 17
SECTION 13.2. Application of Payments Relating to an Event
of Loss.................................................... 18
SECTION 13.3. Application of Certain Payments Relating to a
Condemnation............................................... 18
SECTION 13.4. Casualty.............................................. 18
SECTION 13.5. Negotiations.......................................... 19
SECTION 13.6. No Rent Abatement..................................... 19
SECTION 13.7. Notice of Environmental Matters....................... 19
ARTICLE XIV - NON-INTERFERENCE
SECTION 14.1. Non-Interference...................................... 20
SECTION 14.2. Certain Duties and Responsibilities
of Lessor.................................................. 20
ARTICLE XV - INSPECTION AND REPORTS
SECTION 15.1. Inspection............................................ 21
SECTION 15.2. Reports............................................... 21
ARTICLE XVI - OWNERSHIP, GRANT OF LIEN AND FURTHER ASSURANCES
SECTION 16.1. Grant of Security Interest............................ 21
SECTION 16.2. Attorney-in-Fact...................................... 22
ARTICLE XVII - LEASE EVENTS OF DEFAULT
ARTICLE XVIII - ENFORCEMENT
SECTION 18.1. Remedies.............................................. 25
SECTION 18.2. Proceeds of Sale; Deficiency.......................... 30
SECTION 18.3. Mortgage and Lease Supplement Remedies................ 30
SECTION 18.4. Remedies Cumulative; No Waiver; Consents.............. 30
SECTION 18.5. Limitation of Recourse Liability...................... 31
ARTICLE XIX - RIGHT TO PERFORM FOR LESSEE
SECTION 19.1. Right to Cure......................................... 31
SECTION 19.2. Grants and Releases of Easements...................... 31
SECTION 19.3. Power of Attorney..................................... 32
ARTICLE XX - EARLY TERMINATION OPTION AND OBLIGATION TO PURCHASE
SECTION 20.1. Early Termination Option.............................. 33
SECTION 20.2. Required Purchase..................................... 34
ARTICLE XXI - END OF TERM OPTIONS
SECTION 21.1. End of Term Options................................... 34
SECTION 21.2. Election of Options................................... 35
SECTION 21.3. Renewal Options; Extension Options.................... 35
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ARTICLE XXII - SALE OPTION
SECTION 22.1. Sale Option Procedures.............................. 36
SECTION 22.2. Sale................................................ 37
SECTION 22.3. Application of Sale Proceeds and Recourse Payments.. 38
SECTION 22.4. Appraisal........................................... 39
ARTICLE XXIII - MISCELLANEOUS
SECTION 23.1. Binding Effect; Successors and Assigns; Survival.... 39
SECTION 23.2. Severability........................................ 39
SECTION 23.3. Notices............................................. 40
SECTION 23.4. Amendment; Complete Agreements...................... 40
SECTION 23.5. Headings............................................ 40
SECTION 23.6. Original Lease...................................... 40
SECTION 23.7. GOVERNING LAW....................................... 41
SECTION 23.8. RESERVED............................................ 41
SECTION 23.9. Liability of Lessor Limited......................... 41
SECTION 23.10. Estoppel Certificates............................... 42
SECTION 23.11. No Joint Venture.................................... 42
SECTION 23.12. No Accord and Satisfaction.......................... 42
SECTION 23.13. No Merger........................................... 43
SECTION 23.14. Successor Lessor.................................... 43
SECTION 23.15. Survival............................................ 43
SECTION 23.16. Transfer of Premises................................ 43
SECTION 23.17. Enforcement of Certain Warranties................... 44
SECTION 23.18. Security Interest in Funds.......................... 44
SECTION 23.19. Recording of Lease Supplements...................... 45
SECTION 23.20. Nature of Transaction............................... 45
EXHIBIT A-1 - Form of Lease Supplement (California)
EXHIBIT A-2 - Form of Lease Supplement (Indiana)
THIS AMENDED AND RESTATED
MASTER LEASE, dated as of April 5, 1999 (as
amended, supplemented, or otherwise modified from time to time, this "Lease"),
is between STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., a national
banking association, not in its individual capacity, except as expressly stated
herein, but solely as Certificate Trustee under the Trust Agreement, as Lessor
("Lessor"), and DEL MONTE CORPORATION, as Lessee ("Lessee").
W I T N E S S E T H:
A. Lessee desired to enter into the Overall Transaction for the
purpose of financing the acquisition of a fee interest in certain of the Sites
and the construction on the Sites of the Financed Improvements.
B. Subject to the terms and conditions set forth in the Operative
Documents, (i) Lessor has purchased the Hanford and Kingsburg Sites and has
entered into the Ground Lease pursuant to which Lessee has leased the Modesto
Site to Lessor, using Advances funded by the Participants; (ii) Lessor will
purchase on the Site Acquisition Date the Plymouth Site from one or more third
parties designated by Lessee on the Site Acquisition Date, using Advances
funded by the Participants; (iii) during the Construction Period, Construction
Agent, using Advances funded by the Participants, will construct on the Sites
the Financed Improvements on behalf of Lessor, and (iv) pursuant to this Lease,
Lessor will lease the Sites (or in the case of the Modesto Site, sublease such
Site) and the Financed Improvements to Lessee, and Lessee will lease such Sites
(or in the case of the Modesto Site, sublease such Site) and Financed
Improvements from Lessor.
C. This Lease is intended to amend and completely restate and
supersede the
Master Lease dated as of November 19, 1998, by and between Lessor
and Lessee, as amended to the date hereof (the "ORIGINAL
MASTER LEASE").
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to
be legally bound hereby, hereby agree as follows:
ARTICLE I
DEFINITIONS; LESSEE LIABILITY
For all purposes hereof, the capitalized terms used herein and not
otherwise defined shall have the meanings assigned thereto in Appendix 1 to
that certain Amended and Restated Participation Agreement dated as of even date
herewith, among Lessee, Guarantor, Lessor, Agent, and the Participants
identified therein (the "Participation Agreement"). Except as specially
provided for at Section 18.5 hereof, all obligations imposed on the "Lessee" in
this Lease shall be the full recourse liability of Lessee. Upon the effective
date of the Participation Agreement, this Lease will amend and completely
restate and supersede the Original
Master Lease.
ARTICLE II
LEASE OF PREMISES; LEASE TERM
SECTION 2.1. Acceptance and Lease of Sites. Lessor, subject to the
satisfaction or waiver of the conditions set forth in Article III of the
Participation Agreement, hereby agrees to accept delivery on each Site
Acquisition Date of fee title to each Site (or in the case of the Modesto Site,
a leasehold interest) to be delivered on such Site Acquisition Date and of the
Financed Improvements to be constructed thereon pursuant to the terms of the
Construction Agency Agreement and to lease all of Lessor's interest in such
Site and Financed Improvements to Lessee hereunder, and Lessee hereby agrees,
expressly for the direct benefit of Lessor, to lease from Lessor for the Site
Term applicable to such Site, Lessor's interest in such Site and such Financed
Improvements.
SECTION 2.2. Acceptance Procedure. Lessor hereby authorizes one or more
employees of Lessee, to be designated by Lessee, as the authorized
representative or representatives of Lessor to accept delivery of each Site
identified on the applicable Advance Request and the Financed Improvements to be
constructed thereon. Lessee hereby agrees that acceptance of delivery by such
authorized representative or representatives and the execution and delivery by
Lessee on each Site Acquisition Date of a Lease Supplement (in the form of
Exhibit A-1 or Exhibit A-2 attached hereto, as applicable, appropriately
completed) with respect to such Site and the Improvements now on such site and
all Improvements, including without limitation all Financed Improvements, to be
constructed during the applicable Site Term shall, without further act,
constitute the irrevocable acceptance by Lessee of such Site and all such
Improvements for all purposes of this Lease and the other Operative Documents on
the terms set forth therein and herein and
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that such Site and such Improvements shall be deemed to be included in the
Premises and shall be subject to the terms and conditions of this Lease during
the applicable Site Term.
SECTION 2.3. Term.
(a) Site Term. Unless earlier terminated, the term of the Lease
Supplement with respect to each Site shall consist of (a) an interim period
(the "Interim Term") commencing on and including the Site Acquisition Date for
such Site and ending on but not including the earlier of (i) the Completion
Date for such Site or (ii) such Site becoming subject to this Lease pursuant to
Section 5.1 of the Construction Agency Agreement, (b) a base term (the "Base
Term") commencing on and including the last day of the Interim Term for such
Site (such day, the "Base Term Commencement Date") and ending on but not
including the fifth anniversary of the First Document Closing Date, and (c) if
exercised and approved pursuant to each of the terms and conditions of Section
2.14 of the Participation Agreement, each Lease Renewal Term (the Interim Term,
the Base Term and the Lease Renewal Terms, if any, with respect to a Site
collectively the "Site Term").
(b) Lease Term. The term of this Lease (the "Lease Term") shall begin on
the first occurring Site Acquisition Date and shall end on the last occurring
Site Expiration Date.
ARTICLE III
OTHER PROPERTY
Lessee may from time to time own or hold under lease from Persons other
than Lessor, furniture, trade fixtures, equipment and other tangible personal
property located on or about any Site that is not subject to this Lease and
does not constitute a portion of the Financed Improvements.
ARTICLE IV
RENT
SECTION 4.1. Basic Rent. During the Base Term with respect to a Site and
any Lease Renewal Term, Lessee shall pay to Lessor Basic Rent (i) on each
Quarterly Payment Date, (ii) on the date required under Section 22.3 hereof in
connection with Lessee's exercise of the Sale Option and (iii) on any date on
which this Lease terminates or upon demand following a Lease Event of Default
pursuant to Section 17.1 hereof. Basic Rent payable on each Quarterly Payment
Date shall be allocated to each Lease Supplement.
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in the same proportion that the Advances with respect to, or allocated to, the
Site subject to such Lease Supplement bears to the aggregate amount of all
Advances made by the Participants.
SECTION 4.2. Supplemental Rent. Lessee shall pay to Lessor, or to
whomever shall be entitled thereto as expressly provided herein or in any other
Operative Document (and Lessor hereby directs Lessee, on behalf of Lessor, to
so pay any such other Person), any and all Supplemental Rent promptly as the
same shall become due and payable and, in the event of any failure on the part
of Lessee to pay any Supplemental Rent, Lessor shall have all rights, powers
and remedies provided for herein or by law or in equity or otherwise in the
case of nonpayment of Basic Rent. Lessee hereby reaffirms that is obligation to
pay Supplement Rent shall include the payment of any and all Additional Costs.
The expiration or other termination of Lessee's obligations to pay Basic Rent
hereunder shall not limit or modify the obligations of Lessee with respect to
Supplemental Rent.
SECTION 4.3. Method and Amount of Payment. Basic Rent and Supplemental
Rent shall be paid by wire transfer to Lessor (or, in the case of Supplemental
Rent, to such Person as may be entitled thereto) at such place as Lessor (or
such other Person) shall specify in writing to Lessee pursuant to Schedule II
to the Participation Agreement or Section 9.3 of the Participation Agreement;
provided, however, that, so long as the Notes remain outstanding, Lessor
directs Lessee to pay Basic Rent directly to the Agent. Each payment of Rent
shall be made by Lessee prior to 12:00 noon
New York time (and payments made
after such time shall be deemed to have been made on the next day) at the place
of payment in funds consisting of lawful currency of the United States of
America which (in the case of any amount payable to Lessor, Agent or any
Participant or any other Indemnitee) shall be immediately available on the
scheduled date when such payment shall be due unless with respect to
Supplemental Rent, the scheduled date shall not be a Business Day, in which
case such payment shall be due and made on the next succeeding Business Day.
The provisions of the foregoing sentence of this Section 4.3 shall be
applicable only to Basic Rent and to Supplement Rent payable to, or on behalf
of or for the account of, Lessor, Agent, any Participant and any other
Indemnitee.
SECTION 4.4. Late Payment. If any Basic Rent shall not be paid when due,
Lessee shall pay to Lessor, or if any Supplemental Rent payable to or on behalf
or for the account of Lessor, Agent, any Participant, or other Indemnitee is
not paid when due, Lessee shall pay to whomever shall be entitled thereto, in
each case as Supplemental Rent, interest at the Overdue Rate (to the maximum
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extent permitted by law) on such overdue amount from and including the due date
thereof (without regard to any applicable grace period) to but excluding the
Business Day of payment thereof.
ARTICLE V
NET LEASE
This Lease shall constitute a net lease and, notwithstanding any other
provision of this Lease, it is intended that Basic Rent, Supplemental Rent, the
Lease Balance and all other amounts due and payable under the Operative
Documents shall be paid without counterclaim, setoff, deduction or defense of
any kind and without abatement, suspension, deferment, diminution or reduction
of any kind, and Lessee's obligation to pay all such amounts throughout the
Lease Term is absolute and unconditional. The obligations and liabilities of
Lessee hereunder shall in no way be released, discharged or otherwise affected
for any reason, including, to the maximum extent permitted by law: (a) any
defect in the condition, merchantability, design, construction, quality or
fitness for use of any portion of any Leased Property, or any failure of any
Leased Property to comply with all Applicable Laws and Regulations, including
any inability to occupy or use any Leased Property by reason of such
non-compliance; (b) any damage to, abandonment, loss, contamination of or
Release from or destruction of or any requisition or taking of any Leased
Property or any part thereof, including eviction; (c) any restriction,
prevention or curtailment of or interference with any use of any Leased Property
or any part thereof, including eviction; (d) any defect in title to or rights to
any Leased Property or any Lien on such title or rights or on any Leased
Property; (e) any change, waiver, extension, indulgence or other action or
omission or breach in respect of any obligation or liability of or by Lessor,
Agent or any Participant; (f) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceedings
relating to Lessee, Lessor, Agent, any Participant or any other Person, or any
action taken with respect to this Lease by any trustee or receiver of Lessee,
Lessor, Agent, any Participant or any other Person, or by any court, in any such
proceeding; (g) any claim that Lessee has or might have against any Person,
including, without limitation, Lessor, Agent, or any Participant; (h) any
failure on the part of Lessor to perform or comply with any of the terms of this
Lease, any other Operative Document or of any other agreement whether or not
related to the Overall Transaction; (i) any invalidity or unenforceability or
disaffirmance against or by Lessee of this Lease or any provision hereof or any
of the other Operative Documents or any provision of any thereof; (j) the
impossibility of performance by Lessee, Lessor or both; (k) any action by any
court,
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administrative agency or other Authority; (1) any restriction, prevention or
curtailment of or any use of any Leased Property or any part thereof or the
construction of any Alterations; (m) the failure of Lessee or Guarantor to
achieve any accounting or tax benefits or the characterization of the
transaction intended by Section 23.20 hereinbelow and Section 2.7 of the
Participation Agreement; or (n) any other occurrence whatsoever, whether
similar or dissimilar to the foregoing, whether or not Lessee shall have notice
or knowledge of any of the foregoing. Except as specifically set forth in
Article XIII or Section 20.1 of this Lease, this Lease shall be noncancellable
by Lessee for any reason whatsoever, and Lessee, to the extent permitted by
Applicable Laws and Regulations, waives all rights now or hereafter conferred
by statute or otherwise to quit, terminate or surrender this Lease, or to any
diminution, abatement or reduction of Rent payable by Lessee hereunder. If for
any reason whatsoever this Lease shall be terminated in whole or in part by
operation of law or otherwise, except as expressly provided in Article XIII or
Section 20.1 of this Lease, Lessee shall, unless prohibited by Applicable Laws
and Regulations, nonetheless pay to Lessor (or, in the case of Supplemental
Rent, to whomever shall be entitled thereto) an amount equal to each Rent
payment (including the Lease Balance or any other amount due and payable under
any Operative Documents) at the time and in the manner that such payment would
have become due and payable under the terms of this Lease if it had not been
terminated in whole or in part. Each payment of Rent and any payment of the
Lease Balance made by Lessee hereunder shall be final and, absent manifest
error in the computation of the amount thereof, Lessee shall not seek or have
any right to recover all or any part of such payment from Lessor, Agent, any
Participant or any party to any agreements related thereto for any reason
whatsoever. Lessee assumes the sole responsibility for the condition, use,
operation, maintenance, and management of the Premises and Lessor shall have no
responsibility in respect thereof and shall have no liability for damage to the
property of Lessee or any subtenant of Lessee on any account or for any reason
whatsoever other than by reason of Lessor's willful misconduct or gross
negligence or negligence in the handling of funds; provided, however, any
liability of Lessor with respect to any such willful misconduct or gross
negligence or negligence in the handling of funds shall not limit or affect
Lessee's absolute obligations as set forth in this Article V. Without affecting
Lessee's obligation to pay Basic Rent, Supplemental Rent, the Lease Balance and
all other amounts due and payable under the Operative Documents or to perform
its obligations under the Operative Documents, Lessee may seek damages or any
other remedy at law or equity against Lessor for a breach by Lessor of its
obligations under this Lease or the Participation Agreement, subject to the
limitations set forth at Section 23.9 hereof.
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ARTICLE VI
UTILITY CHARGES
During the Lease Term Lessee shall pay or cause to be paid all charges for
electricity, power, gas, oil, water, telephone, sanitary sewer service and all
other rents and utilities used in or on each Leased Property during the Lease
Term. Lessee shall be entitled to receive any credit or refund with respect to
any utility charge paid by Lessee and the amount of any credit or refund
received by Lessor on account of any utility charges paid by Lessee, net of the
costs and expenses reasonably incurred by Lessor in obtaining such credit or
refund, shall be promptly paid over to Lessee. All charges for utilities
imposed with respect to a Leased Property for a billing period during which
this Lease expires or terminates (except pursuant to Article XX or Section
21.1(b) hereof, in which case Lessee shall be solely responsible for all such
charges) shall be adjusted and prorated on a daily basis between Lessee and any
purchaser or such Leased Property, and each party shall pay or reimburse the
other for each party's pro rata share thereof; provided, that in no event shall
Lessor have any liability therefor.
ARTICLE VII
CONDITION AND USE OF PREMISES
SECTION 7.1. Waivers. LESSEE ACKNOWLEDGES AND AGREES THAT, ALTHOUGH LESSOR
WILL OWN AND HOLD RECORD TITLE TO THE PREMISES, LESSEE SELECTED THE SITES AND
IS SOLELY RESPONSIBLE FOR THE DESIGN, DEVELOPMENT, BUDGETING AND THE
SUPERVISION OF CONSTRUCTION OF THE FINANCED IMPROVEMENTS AND ANY ALTERATIONS.
The Premises are let by Lessor "AS IS" in its present condition, subject to (a)
any rights of any parties in possession thereof, (b) the state of the title
thereto existing at the time Lessor acquired its interest in the Premises, (c)
any state of facts which an accurate survey or physical inspection might show
(including any survey delivered on the First Document Closing Date, the Second
Document Closing Date, and Advance Date or any Completion Date), (d) all
Applicable Laws and Regulations, and (e) any violations of Applicable Laws and
Regulations which may exist at the commencement of the Lease Term. Lessee has
examined the Premises and (insofar as Lessor is concerned) has found the same
to be satisfactory. WITHOUT LIMITING THE SPECIFIC REPRESENTATIONS AND
WARRANTIES IN SECTIONS 4.2, 4.3 AND 4.4 OF THE PARTICIPATION AGREEMENT, NONE OF
LESSOR, AGENT NOR ANY PARTICIPANT HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO HAVE ANY
LIABILITY WHATSOEVER AS TO THE TITLE TO THE PREMISES OR
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TO THE VALUE, MERCHANTABILITY, HABITABILITY, CONDITION, OR FITNESS FOR USE OF
THE PREMISES, OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES, OR ANY PART
THEREOF, AND NONE OF LESSOR, AGENT NOR ANY PARTICIPANT SHALL BE LIABLE FOR ANY
LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE PREMISES, OR ANY
PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS AND REGULATIONS, except that
Lessor hereby represents and warrants that as of the date of this Lease, the
Premises are free of Certificate Trustee Liens (such Certificate Trustee
representations and warranty being made by (x) Bank with respect to any
Certificate Trustee Liens attributable to Bank, and (y) Certificate Trustee
with respect to any Certificate Trustee Liens attributable to Certificate
Trustee). Lessee has been afforded full opportunity to inspect the Premises, is
satisfied with the results of its inspections and is entering into this Lease
solely on the basis of the results of its own inspections, and all risks
incident to the matters discussed in the preceding sentence, as between Lessor,
Agent and the Participants, on the one hand, and Lessee, on the other, are to
be borne by Lessee. The provisions of this Article VII have been negotiated,
and, except to the extent otherwise expressly stated, the foregoing provisions
are intended to be a complete exclusion and negation of any representations or
warranties by any of Lessor, Agent or the Participants, express or implied,
with respect to the Premises (or any interest therein), that may arise pursuant
to any law now or hereinafter in effect or otherwise.
ARTICLE VIII
NO LESSOR CONSENT OR LIABILITY
Nothing contained in this Lease shall be construed as constituting the
consent or request of 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 Premises or any part
thereof. NOTICE IS HEREBY GIVEN THAT NONE OF LESSOR, AGENT OR ANY PARTICIPANT
IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE
FURNISHED TO LESSEE, OR TO ANYONE HOLDING THE PREMISES OR ANY PART THEREOF
THROUGH OR UNDER LESSEE, AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH
LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR
OR AGENT IN AND TO THE PREMISES.
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ARTICLE IX
MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS
SECTION 9.1. Maintenance and Repair; compliance With Law. At all times
during each Site Term with respect to each Site on and after the Base Term
Commencement Date for each Site with respect to the Financed Improvements to be
constructed thereon, Lessee, at its own expense, shall at all times (a) maintain
such Leased Property in good operating condition, subject to ordinary wear and
tear, and in any event at least as good as the condition of similar buildings
owned or leased by Guarantor or its Subsidiaries and in good repair and
condition; (b) maintain such Leased Property in accordance with all Applicable
Laws and Regulations in all material respects, whether or not such maintenance
requires structural modifications; (c) comply in all material respects with the
Insurance Requirements which are in effect any time with respect to such Leased
Property or any part thereof; (d) use such Leased Property only in accordance
with Article X below and cause such Leased Property to have at all times the
capacity and functional ability to be used, on a continuing basis and in
commercial operation, in accordance with such Article X; (e) make all necessary
or appropriate repairs, replacements and renewals of such Leased Property or any
part thereof which may be required to keep such Leased Property in the condition
required by the preceding clauses (a) through (d), whether interior or exterior,
structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen,
and including, without limitation, repairs, replacements and renewals that would
constitute capital expenditures under GAAP if incurred by an owner of property;
and (f) procure, maintain and comply in all material respects with all material
licenses, permits, orders, approvals, consent and other authorizations required
for the construction, use, maintenance and operation of such Leased Property.
Lessee waives any right that it may now have or hereafter acquire to (x) require
Lessor to maintain, repair, replace, alter, remove or rebuild all or any part of
such Leased Property or (y) make repairs at the expense of Lessor pursuant to
any Applicable Laws and Regulations or other agreements.
SECTION 9.2. Improvements and Alterations.
(a) In addition to Lessee's obligations as Construction Agent to
build the Financed Improvements on each Site under the Construction Agency
Agreement, on and after the Base Term Commencement Date with respect to a Site
(i) Lessee, at lessee's own cost and expense, shall make alterations,
renovations, improvements and additions to such Leased Property or any part
thereof and substitutions and replacements therefor (collectively,
"Alterations") which are (A) necessary to repair or maintain such
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Leased Property in the condition required by Section 9.1 above; (B) necessary in
order for such Leased Property to be in compliance in all material respects with
Applicable Laws and Regulations; or (C) necessary or advisable to restore such
Leased Property to its condition existing prior to a Casualty or Condemnation to
the extent required pursuant to Article XIII hereof; and (ii) so long as no
Lease Event of Default has occurred and is continuing, Lessee, at Lessee's own
cost and expense, may undertake Alterations on such Leased Property so long as
such Alterations comply in all material respects with Applicable Laws and
Regulations except to the extent such non-compliance would not have a Material
Adverse Effect with Section 9.1 above and subsection (b) of this Section 9.2.
(b) The making of any Alterations must be in compliance with the
following requirements:
(1) No such Alterations with a cost exceeding $1,000,000 shall be
made or undertaken except upon not less than thirty days' prior written
notice to Lessor.
(2) Lessee shall not make any Alterations in violation of the terms
of any restriction, easement, condition, covenant or other similar matter
affecting title to or binding on such Leased Property.
(3) No Alterations shall be undertaken until Lessee shall have
procured and paid for, so far as the same may be required from time to
time, all permits and authorizations relating to such Alterations of all
municipal and other Authorities having jurisdiction over such Leased
Property. Lessor, at Lessee's expense, shall join in the application for
any such permit or authorization and execute and deliver any document in
connection therewith, whenever such joinder is necessary or advisable.
(4) The Alterations shall be completed in a good and workmanlike
manner and in compliance in all material respects with all Applicable Laws
and Regulations then in effect and with the standards imposed by any
insurance policies required to be maintained hereunder.
(5) All Alterations shall, when completed, be of such a character as
to not materially adversely affect the Fair Market Value, utility,
remaining economic useful life or residual value of such Leased Property
from its Fair Market Value, utility, remaining economic useful life or
residual value immediately prior to the making thereof or, in the case
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of Alterations being made by virtue of a Casualty or Condemnation,
immediately prior to the occurrence of such Casualty or Condemnation. If
such alterations have a cost exceeding $1,000,000 and if requested by
Required Participants, Lessor may engage an appraiser of nationally
recognized standing, at Lessee's sole cost and expense, to determine (by
appraisal methods satisfactory to the Required Participants) the projected
Fair Market Value of such Leased Property following completion of the
Alterations relating thereto.
(6) Lessee shall have made adequate arrangements for payment of the
cost of all Alterations when due so that the Leased Property shall at all
times be free of Liens for Labor and materials supplied or claimed to have
been supplied to the Premises, other than Permitted Liens; provided, that
Lessee shall have the right to engage in Permitted Contests in accordance
with Section 9.5 below.
(7) The Alterations must be located solely on such Site.
SECTION 9.3. Title to Alterations. Title to the following described
Alterations shall without further act vest in Lessor and shall be deemed to
constitute a part of a Leased Property and be subject to this Lease:
(a) each of the Financed Improvements;
(b) Alterations that are in replacement of or in substitution for a
portion of any Improvements existing on the date of this Lease with respect to a
Site or any Financed Improvements with respect to a Site;
(c) Alterations that are required to be made pursuant to the terms of
Section 9.1 or 9.2(a)(i) hereof; or
(d) Alterations that are Nonseverable.
Lessee, at Lessor's request, shall execute and deliver any deeds,
bills of sale, assignments or other documents of conveyance reasonably necessary
to evidence the vesting of title in and to such Alterations to Lessor.
If such Alterations are not within any of the categories set forth in
clauses (a) through (d) of this Section 9.3, then title to such Alterations
shall vest in Lessee and such Alterations shall not be deemed to be Alterations
which are part of the Premises.
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All alterations to which Lessee shall have title may, so long as removal
thereof shall not result in the violation of any Applicable Laws and
Regulations and no Lease Event of Default is continuing, be removed at any
time by Lessee. Lessee agrees to notify Lessor in writing at least 30 days
before it removes any such Alterations which individually or in aggregate had
an original cost exceeding $1,000,000, and Lessee shall at its expense prior to
the Lease Term Expiration Date repair any damage to the Premises caused by the
removal of such Alterations. Lessor (or the purchaser of the applicable Leased
Property if Lessee elects the Sale Option or in connection with a Sale pursuant
to Section 18.1 below) may purchase from Lessee any such Alterations (if not
already owned by Lessor) that Lessee intends to remove from a Leased Property
prior to the Lease Term Expiration Date, which purchase shall be at the Fair
Market Value of such Alterations as determined by the Appraiser at the time of
such purchase. Title to any such Alterations shall vest in Lessor (or the
purchaser of the applicable Leased Property) if not removed from the Leased
Property by Lessee prior to the return of such Leased Property to Lessor or
sale of such Leased Property if Lessee elects the Sale Option or in connection
with a Sale pursuant to Section 18.1 below.
SECTION 9.4. Maintenance and Repair Reports. During the Lease Term Lessee
shall keep maintenance and repair reports in sufficient detail, on the same
basis as records are kept for similar properties owned or leased by Guarantor
or its Subsidiaries, to indicate the nature and date of major work done. Such
reports shall be kept on file by Lessee at its offices during the Lease Term,
and shall be made available at Lessee's office to Lessor upon reasonable
request. Lessee shall give notice to Lessor of any Condemnation of Casualty the
cost to repair which is reasonably expected by Lessee to exceed $500,000,
promptly after Lessee has knowledge thereof.
SECTION 9.5. Permitted Contests. If, to the extent and for so long as (a) a
contest of the legality, validity or applicability to any Leased Property or any
interest therein of, or the operation, use or maintenance thereof by, Lessee of
(i) any Applicable Laws and Regulations, (ii) any term or condition of, or any
revocation or amendment of, or other proceeding relating to, any Governmental
Action, or (iii) any Lien or Tax shall be made in good faith, by appropriate
proceedings initiated timely and diligently prosecuted, by Lessee, or (b)
compliance with such Applicable Laws and Regulations, Governmental Action, Lien
or Tax shall have been excused or exempted by a valid nonconforming use permit,
waiver, extension or forbearance, Lessee shall not be required to comply with
such Applicable Laws and Regulations, Governmental Action, Lien or Tax but only
if and so long as any
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such contest or noncompliance shall in the reasonable opinion of Lessor, acting
at the direction of the Required Participants, constitute a Permitted Contest.
Lessor will not be required to join in any Permitted Contest pursuant to
this Section 9.5 unless a provision of any Applicable Laws and Regulations
requires, or, in the good faith opinion of Lessee, it is helpful to Lessee,
that such proceedings be brought by or in the name of Lessor; and in that
event, Lessor will join in the proceedings or permit them or any part thereof
to be brought in its name if and so long as no Lease Event of Default is
continuing and Lessee pays all related expenses, and Lessee shall be deemed to
have acknowledged and agreed that Lessor is indemnified therefor pursuant to
Article VII of the Participation Agreement.
SECTION 9.6. Liens. During the Lease Term Lessee will not directly or
indirectly create, incur, assume or suffer to exist any Lien (other than
Permitted Liens) on or with respect to any portion of any Leased Property,
Lessor's title thereto, or any interest therein. Lessee, at its own expense,
will promptly pay, satisfy and otherwise take such actions as may be necessary
to keep the Premises free and clear of, and duly to discharge, eliminate or
bond in a manner reasonably satisfactory to Lessor, Agent and the Required
Participants, any such Lien (other than Permitted Liens) not accepted above if
the same shall arise at any time.
ARTICLE X
USE
Each Leased Property shall be used only for the production (including
labeling), storage and distribution of processed and fresh fruits and
vegetables and fruit and vegetable products. Lessee shall not use any Site or
any part thereof for any purpose or in any manner that would materially
adversely affect the Fair Market Value, utility, remaining useful life or
residual value of such Leased Property. Lessee shall use each Leased Property
in compliance in all material respects with (a) any Applicable Laws and
Regulations, except to the extent permitted by Section 9.5 above, (b) any
insurance policies required by Article XI below, and (c) all of the Operative
Documents. Lessee shall pay, or cause to be paid, all charges and costs
required in connection with the use of each Leased Property in accordance with
this Lease and the Participation Agreement. Lessee shall not commit or permit
any waste of any Leased Property or any part thereof.
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ARTICLE XI
INSURANCE
SECTION 11.1. Required Coverages. During the Site Term for each Leased
Property Lessee will provide or cause to be provided insurance with respect to
each such Leased Property of a character usually insured by Persons engaged in
the same or similar business similarly situated against loss or damage of the
kinds and in the amounts customarily insured against by such Persons, and carry
such other insurance as is usually carried by such Persons; provided, that in
any event Lessee will maintain:
(a) Commercial General Liability Insurance. Combined single limit
insurance against claims for third-party bodily injury, including death and
third-party property damage occurring on, in or about each Leased Property
(including adjoining streets and sidewalks) in an amount at least equal to
$19,000,000 per occurrence. Following the Base Term Commencement Date for each
Leased Property, such coverage may be subject to deductibles or self-insured
retentions up to an amount that is customarily carried by a company of similar
size and engaged in business similar to Lessee; provided however, that during
the Construction Period with respect to a Leased Property there shall be no
such deductibles and self insurance amounts. (This coverage may be provided in
a combination of umbrella and excess liability policies.)
(b) Property Insurance. Insurance against loss or damage covering
each Leased Property or any portion thereof by reason of any Peril (as defined
below) in an amount (following the Base Term Commencement Date) for each Leased
Property, subject to such deductibles and/or self-insurance in such minimum
amounts as is carried by corporations owning and/or operating similar
properties; provided, however, that during the Construction Period with respect
to a Leased Property there shall be no such deductibles and self insurance
amounts; provided, however, that at no time shall the amount of such coverage
be less than the replacement cost of the Improvements with respect to a Leased
Property, including any costs that may be required to cause such Leased
Property to be reconstructed to then current Applicable Laws and Regulations.
The term "Peril" shall mean (i) collectively, fire, lightning, flood,
windstorm, hail, explosion, riot and civil commotion, vandalism and malicious
mischief, damage from aircraft, vehicles and smoke and all other perils covered
by the "all risk endorsement" then in use in the State in which such Leased
Property is located and (ii) earthquake. Alternatively, at Lessee's election,
such insurance shall be on a coverage form reasonably available in the
commercial insurance market at the time of the
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most recent policy reviewed, provided that all Perils are covered by such
alternate coverage form or forms.
(c) Workers' Compensation Insurance. Lessee shall, in the
construction of the Financed Improvements or other Alterations and the operation
of each Leased Property, comply with the applicable Workers' Compensation laws
and protect Lessor, Agent and the Participants against any liability under such
laws.
(d) Builder's Risk Insurance. During the construction of any
Alteration costing in excess of $1,000,000, Lessee shall also maintain, for the
benefit of Lessor, all-risk Builders' Risk Insurance in an amount equal to the
greater of the replacement value of such Alterations and the aggregate cost for
the construction of same.
(e) Other Insurance. Such other insurance, including earthquake,
worker's compensation and business interruption insurance, in each case as is
generally carried by owners of similar properties in such amounts and against
such risks as are then customary for properties similar in use and to the extent
required by any Participant, and flood insurance to the extent required by
Applicable Law and Regulations applicable to such Participant.
Such insurance shall be written by reputable insurance companies that
are financially sound and solvent and otherwise reasonably appropriate
considering the amount and type of insurance being provided by such companies.
Any insurance company selected by Lessee shall be rated in A.M. Best's Insurance
Guide or any successor thereto (of if there be none, an organization having a
similar national reputation) and shall have a general policyholder rating of "A"
(or comparable rating for a rating by an organization other than A.M. Best) and
a financial rating of at least "X" (or comparable rating for a rating by an
organization other than A.M. Best) or be otherwise acceptable to the Required
Participants. In the case of liability insurance maintained by Lessee, it shall
name Lessor (both in its individual capacity and as trustee), Agent and each of
the Participants as additional insureds and, in the case of property insurance
maintained by Lessee, it shall name Agent as mortgagee and loss payee as its
interests may appear. Each policy referred to in this Section 11.1 shall provide
that: (i) it will not be canceled, materially modified or its limits reduced, or
allowed to lapse without renewal, except after not less than 30 days' prior
written notice to Lessor; (ii) the interests of Lessor, Agent and any
Participant shall not be invalidated by any act or negligence of or breach of
warranty or representation by Lessee or any Person having an interest in the
Premises or the
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Improvements; (iii) such insurance is primary with respect to any other
insurance carried by or available to Lessor, Agent or any Participant; (iv) the
insurer shall waive and right of subrogation, setoff, counterclaim, or other
deduction, whether by attachment or otherwise, against Lessor; and (v) such
policy shall contain a cross-liability clause providing for coverage of Lessor,
Agent and each Participant, as if separate policies had been issued to each of
them. Lessee will notify Lessor promptly of any policy cancellation, reduction
in policy limits, modification or amendment.
SECTION 11.2. Delivery of Insurance Certificates. With respect to the
Site or Sites to be acquired on each Site Acquisition Date, Lessee shall deliver
to Lessor certificates of insurance satisfactory to Lessor evidencing the
existence of all insurance required to be maintained hereunder and setting forth
the respective coverages, limits of liability, carrier, policy number and period
of coverage. Thereafter, throughout the Lese Term, at the time each of Lessee's
insurance policies is renewed (but in no event less frequently than once each
year on or before December 31) or upon written request by any Lessor following a
Lease Event of Default, Lessee shall deliver to Lessor certificates of insurance
evidencing that all insurance required by Section 11.1 to be maintained by
Lessee with respect to the Premises is in effect.
ARTICLE XII
ASSIGNMENT AND SUBLEASING
Lessee during the Lease Term may not assign, mortgage or pledge to any
Person, including an Affiliate of Lessee, at any time, in whole or in part, any
of its right, title or interest in, to or under this Lease or any portion of any
Leased Property, and any such assignment, mortgage or pledge shall be void.
Except for the leasehold interest in the Modesto Site granted to Lessor pursuant
to the Ground Lease and as expressly permitted in this Article XII, Lessee may
not sublease, in whole or in part, any of its right, title or interest in, to or
under this Lease or any portion of any Leased Property to any Person, except
that, following the final Completion Date, Lessee may enter into subleases with
(i) a direct or indirect wholly-owned Subsidiary of Guarantor and (ii) a Person
which is not a direct or indirect wholly-owned Subsidiary of Lessee ("Third
Party Sublease"); provided, however, that in no event shall the aggregate
subleased space (together with the nonexclusive use of any related or necessary
portion of any Site as necessary to access and parking) subject to all Third
Party Subleases exceed 30% of the aggregate net rentable square feet of any
Site. Lessee shall not sublease
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any portion of any Leased Property to, or permit the sublease of any portion of
any Leased Property by, any Person who shall then be engaged in any proceedings
for relief under any bankruptcy or insolvency law or laws relating to the relief
of debtors.
No sublease hereunder will discharge or diminish any of Lessee's
obligations to Lessor hereunder, and Lessee shall remain directly and primarily
liable under the Lease with respect to the entire Premises. Each sublease
permitted hereby shall be made and shall expressly provide in writing that it is
subject and subordinate to this Lease and the rights of Lessor hereunder, shall
expressly provide for the surrender of the space subleased by the applicable
sublessee at the election of Lessor after a Lease Event of Default, and that
such provisions may be directly enforced by Lessor or Agent. All such subleases
under this Article XII shall expressly provide in writing for termination on or
prior to the Lease Expiration Date unless Lessee shall purchase all of the
Premises pursuant to Section 21.1(b) of this Lease.
Lessee shall, within fifteen (15) days after the execution of any Third
Party Sublease, deliver to Agent a fully executed copy of such sublease.
ARTICLE XIII
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
SECTION 13.1. Event of Loss; Condemnation or Casualty.
(a) If an Event of Loss shall occur during the Lease Term, Lessee
shall give Lessor prompt written notice of such occurrence and the date thereof
and Lessee shall purchase the Leased Property(ies) affected thereby from Lessor
on the next succeeding Quarterly Payment Date after the date such Event of Loss
shall have occurred or, if such Event of Loss shall have occurred within ten
(10) Business Days preceding a Quarterly Payment Date, then on the next
succeeding Quarterly Payment Date after such Event of Loss shall have occurred,
at a purchase price equal to the Purchase Amount of such Leased Property. In the
case of an Event of Taking which is deemed to have occurred because of a
requisition which is not scheduled to last beyond the earlier of the Lease
Expiration Date and Lessee's election of the Sale Option but which in fact is
continuing on the earlier of such dates, the foregoing purchase price shall be
paid on such earlier date.
(b) Upon payment in full of all amounts payable pursuant to Section
13.1(a), (i) the Site Term shall end with respect to the affected Leased
Property(ies), (ii) the obligations of Lessee
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hereunder with respect to the affected Leased Property(ies) (other than any
obligations expressed herein or any other Operative Document as surviving
termination of this Lease) shall terminate as of the date of such payment.
Lessor shall thereupon transfer its right, title and interest in the affected
Leased Property(ies) to Lessee in accordance with Section 23.16(a) and (iii)
the Lease Supplement for the affected Leased Property(ies) shall be canceled.
SECTION 13.2. Application of Payments Relating to an Event of Loss. All
net Condemnation Proceeds and property insurance proceeds received at any time
by Lessee during the Lease Term from any Authority or other Person with respect
to any Event of Loss shall be promptly remitted to Lessor (up to, but not
exceeding, the amounts owed under Section 13.1(a) above) and, upon the purchase
of the affected Leased Property(ies) by Lessee pursuant to such Section 13.1(a)
and the payment by Lessee of the purchase price and all other amounts payable
by Lessee pursuant to such Section 13.1(a), any such Net Condemnation Proceeds
and property insurance proceeds remaining thereafter shall be paid over to, or
retained by, Lessee, or as Lessee may direct.
SECTION 13.3. Application of Certain Payments Relating to a Condemnation.
In case of a requisition for temporary use of all or a portion of any Leased
Property which is not an Event of Taking, this Lease shall remain in full force
and effect, without any abatement or reduction of Rent, and the proceeds
received from any Authority relating to a Condemnation for the affected portion
of the Leased Property shall, so long as no Lease Event of Default exists and
subject to Section 16.2 hereof, be paid to Lessee and, to the extent
applicable, shall be used by Lessee to repair and restore the affected Premises
to the condition required by Section 9.1 hereof. Notwithstanding anything
herein to the contrary, any portion of such proceeds that is awarded with
respect to the time period after the expiration or termination of the Lease
Term (unless Lessee shall have exercised an option to purchase all of the
Premises and consummated such purchase) shall be paid to Lessor; provided, that
if Lessee has paid the Lease Balance to Lessor, such proceeds (or the portion
of such proceeds in excess of portion thereof applied to the Lease Balance)
shall be paid over to Lessee.
SECTION 13.4. Casualty. Upon any Casualty during the Lease Term with
respect to any portion of any Leased Property the cost of repair of which would
exceed $500,000 Lessee shall give to Lessor written notice thereof. As soon as
practicable after a Casualty, Lessee shall repair and rebuild the affected
portions of the Leased Property suffering such Casualty (or cause such affected
portions to be repaired and rebuilt) to the condition required to be
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maintained by Section 9.1 hereof; provided, that the value and functional
capability of such item as restored is at least equivalent to the value and
functional capability of such item as in effect immediately prior to the
occurrence of such Casualty. So long as no Lease Event of Default or Material
Default is continuing, any insurance proceeds received with respect to any
Casualty shall be paid over to or retained by Lessee up to $500,000. Insurance
proceeds received with respect to any Casualty in excess of $500,000 shall be
held by Agent and made available to Lessee to pay costs actually incurred by
Lessee to restore the Premises as required herein.
SECTION 13.5. Negotiations. In the event any part of any Leased Property
becomes subject to condemnation or requisition proceedings during the Lease
Term, Lessee shall give notice thereof to Lessor promptly after Lessee has
knowledge thereof and, to the extent permitted by any Applicable Laws and
Regulations, Lessee shall control the negotiations with the relevant Authority
unless a Lease Event of Default exists, in which case Lessor shall be entitled
to control such negotiations; provided, that in any event Lessor may
participate at Lessor's expense (or if a Lease Event of Default exists, at
Lessee's expense) in such negotiations; and provided in all cases, that no
settlement will be made without Lessor's prior written consent acting at the
direction of the Required Participants, not to be unreasonably withheld. Lessee
shall give to Lessor such information, and copies of such documents, which
relate to such proceedings, or which relate to the settlement of amounts due
under insurance policies required by Section 11.1 above, and are in the
possession of Lessee, as are reasonably requested by Lessor. If the proceedings
relate to an Event of Taking, Lessee shall act diligently in connection
therewith. Nothing contained in this Section 13.5 shall diminish Lessor's
rights with respect to Condemnation Proceeds and property insurance proceeds
under Section 13.2 above.
SECTION 13.6. No Rent Abatement. Rent shall not ▇▇▇▇▇ hereunder by reason
of any Casualty, any Event of Loss, any Event of Taking or any Condemnation of
any portion of any Leased Property, and Lessee shall continue to perform and
fulfill all of Lessee's obligations, covenants and agreement hereunder
notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation
until the Lease Expiration Date.
SECTION 13.7. Notice of Environmental Matters. Promptly, but in an event
within thirty (30) days from the date a Responsible Officer of Lessee has
actual knowledge thereof, Lessee shall provide to Lessor written notice of any
pending or, to Lessee's knowledge, threatened claim, action or proceeding
involving any
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Environmental Law or any Release on or in connection with any Leased Property,
which claim, action or proceeding would require in excess of $250,000 in
remediation costs in respect of such Leased Property (such claim, action or
proceeding, a "Material Environmental Claim"). All such notices shall describe
in reasonable detail the nature of the claim, action or proceeding and Lessee's
proposed response thereto. In addition, Lessee shall provide to Lessor, within
thirty (30) days of receipt, copies of all Material Environmental Claim. Lessee
shall also promptly provide such detailed reports of any such Material
Environmental Claims as may reasonably be requested by Lessor or Agent.
ARTICLE XIV
NON-INTERFERENCE
SECTION 14.1. Non-Interference. Subject to Lessor's cure rights, as
provided for in Article XIX below, Lessor covenants that it will not interfere
in Lessee's use or possession of the Premises during the Lease Term, so long as
no Lease Event of Default has occurred and is continuing; it being agreed that
Lessee's remedies for breach of the foregoing covenant shall be limited to a
claim for damages or the commencement of proceedings to enjoin such breach. Such
right is independent of and shall not affect Lessee's obligations hereunder and
under the other Operative Documents or Lessor's rights otherwise to initiate
legal action to enforce the obligations of Lessee under this Lease. The
foregoing covenant shall not require Lessor to take any action contrary to, or
which would permit Lessee to use the Premises for a use not permitted under the
provisions of, this Lease.
SECTION 14.2. Certain Duties and Responsibilities of Lessor. Lessor
undertakes to perform such duties and only such duties as are specifically set
forth herein and in the other Operative Documents, and no implied covenants or
obligations shall be read into this Lease against Lessor, and Lessor agrees that
it shall not, nor shall it have a duty to, manage, control, use, sell, maintain,
insure, register, lease, operate, modify, dispose of or otherwise deal with the
Premises or any other part of the Trust Estate in any manner whatsoever, except
as required by the terms of the Operative Documents and as otherwise provided
herein.
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ARTICLE XV
INSPECTION AND REPORTS
SECTION 15.1. Inspection. Upon five (5) Business Days prior notice to
Lessee, Lessor or its authorized representatives (the "Inspecting Parties") at
any time during the Lease Term may inspect (a) the Premises and (b) the books
and records of Lessee relating to the Premises and make copies and abstracts
therefrom. All such inspections shall be during Lessee's normal business hours
(unless a Lease Event of Default has occurred and is existing) and shall be at
the expense and risk of the Inspecting Parties, except that one such inspection
in each calendar year shall be at Lessee's expense at a cost not to exceed
$1,000 per Site inspected and except that if a Lease Event of Default or Lease
Default has occurred and is continuing, Lessee shall reimburse the Inspecting
Parties for the reasonable costs of such inspections and, except for the
Inspecting Party's gross negligence or willful misconduct, such inspection shall
be at Lessee's risk. No inspection shall unreasonably interfere with Lessee's
operations. None of the Inspecting Parties shall have any duty to make any such
inspection or inquiry. None of the Inspecting Parties shall incur any liability
or obligation by reason of making any such inspection or inquiry unless and to
the extent such Inspecting Party causes damage to the Premises or any property
of Lessee or any other Person during the course of such inspection.
SECTION 15.2. Reports. To the extent permissible under Applicable Laws
and Regulations, during the Lease Term Lessee shall prepare and file in timely
fashion, or, where Lessor shall be required to file, Lessee shall prepare and
make available to Lessor within a reasonable time prior to the date for filing
and Lessor shall file, any reports with respect to the condition or operation of
the Premises that shall be required to be filed with any Authority.
ARTICLE XVI
OWNERSHIP, GRANT OF LIEN AND FURTHER ASSURANCES
SECTION 16.1. Grant of Security Interest. Title to the Premises are held
by Lessor, as security for the obligations of Lessee hereunder and under each of
the other Operative Documents to which it is a party until such time as Lessee
shall have fulfilled all of its obligations hereunder and under such other
Operative Documents. Lessee hereby assigns, grants, warrants and pledges to
Lessor for the benefit of the Participants a Lien against all of the Lessee's
right, title and interest, whether now or hereafter existing or acquired, in the
Premises and the other Del Monte
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Collateral to secure the payment and performance of all obligations of Lessee
now or hereafter existing under this Lease or any other Operative Document.
Lessee shall, at its expense, promptly and duly execute, acknowledge and
deliver to Lessor and file, register and record such documents and assurances
including the Mortgages and any financing statements and fixture filings and
take such further actions as Lessor, Agent or any Participant may from time to
time reasonably request in order to carry out more effectively the intent and
purpose of this Lease and the other Operative Documents, to establish and
protect the rights and remedies created or intended to be created in favor of
Lessor hereunder and thereunder, and to establish, perfect and maintain the
right, title and interest of Lessor in and to the Premises and the other Del
Monte Collateral, subject to no Lien other than Permitted Liens, and Lessee
agrees to execute and deliver promptly such of the foregoing Mortgages,
financing statements and fixture filings or other documents as may require
execution by Lessee. To the extent permitted by Applicable Laws and
Regulations, Lessee hereby authorizes any such Mortgages, financing statements
and fixture filings to be filed without the necessity of the signature of
Lessee. Upon Lessee's request, Lessor shall at such time as all of the
obligations of Lessee under this Lease or any other Operative Documents have
been indefeasibly paid or performed in full (other than Lessee's contingent
obligations, if any, under Article VII of the Participation Agreement and under
Article VI of the Construction Agency Agreement) execute and deliver
termination statements and other appropriate documentation reasonably requested
by Lessee, all at Lessee's expense, to evidence Lessor's release of its Lien
against the Del Monte Collateral.
SECTION 16.2. Attorney-in-Fact. Lessee hereby irrevocably appoints
Lessor as Lessee's attorney-in-fact, with full authority in the place and stead
of Lessee and in the name of Lessee or otherwise, from time to time in Lessor's
discretion, to execute any instrument which Lessor may deem necessary or
advisable to accomplish the purposes of this Lease (subject to any limitations
set forth in the Operative Documents), and to take any action (including any
action that Lessee is entitled to take), including, without limitation:
(a) to ask, demand, collect, ▇▇▇ for, recover, compromise,
receive and give acquittance and receipts for money due and to become due under
or in connection with all or any portion of the Premises and the other Del
Monte Collateral;
(b) to receive, endorse and collect any drafts or other
instruments, documents and chattel paper in connection with the foregoing
clause (a);
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(c) to file any claim or take any action or institute any
proceedings which Lessor may deem to be necessary or advisable for the
collection thereof or to enforce compliance with the terms and conditions of
this Lease; and
(d) to perform any affirmative obligations of Lessee hereunder,
including the execution of mortgages, financing statements and other documents.
Lessee hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section 16.2 is irrevocable and coupled with an
interest. Notwithstanding anything contained herein to the contrary, the rights
and powers presently granted Lessor by this Section 16.2 may be exercised by
Lessor only upon the occurrence and during the continuance of a Lease Event of
Default.
ARTICLE XVII
LEASE EVENTS OF DEFAULT
The occurrence of any one or more of the following events, whether any
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) Lessee shall fail to make any payment of (i) Basic Rent and
such failure shall continue for a period of three days or (ii) amounts payable
pursuant to Section 13.1(a), Article XX, or Sections 21.1(b), 22.3 or 22.4
hereof when due;
(b) Lessee or Guarantor shall fail to make payment of any other
amount payable hereunder or under any of the other Operative Documents and such
failure shall continue for a period of five (5) days after the earlier of
notice to Lessee or Guarantor, as the case may be, of such failure or a
Responsible Officer of Lessee or Guarantor knew or reasonably should have known
of such failure;
(c) Lessee shall fail to maintain insurance as required by
Section 11.1 above;
(d) Lessee shall fail to purchase the Premises in accordance
with Section 20.2 below or Lessee shall fail to sell all of the Premises on the
Lease Expiration Date in accordance with and satisfaction of each of the terms,
covenants, conditions and
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agreements set forth at Articles XXI and XXII hereof in connection with and
following its exercise of the Sale Option, including each of Lessee's
obligations at Sections 21.1 and 21.2 hereof;
(e) Lessee or Guarantor shall fail timely to perform or observe any
covenant, condition or agreement (not included in any other clause of this
Article XVII) to be performed or observed by it hereunder or under any other
Operative Document and such failure shall continue for a period of 30 days (but
in no event later than the Lease Expiration Date) after the earlier to occur of
(i) written notice thereof to Lessee from any Lessor, Agent or any Participant
or (ii) the date upon which a Responsible Officer of Lessee knew or reasonably
should have known thereof;
(f) the occurrence of a Del Monte Event of Default;
(g) Any Operative Document or the security interest and lien granted
under this Lease (except in accordance with its terms), in whole or in part,
terminates, ceases to be effective or ceases to be the legal, valid and binding
enforceable obligation of Lessee, Guarantor, or any of their Affiliates, as the
case may be, on account of, or as a result of, directly or indirectly, any act
or omission of Lessee, Guarantor or any of their Affiliates, or Lessee,
Guarantor or any of their Affiliates, directly or indirectly, contests in any
manner in any court the effectiveness, validity, binding nature or
enforceability thereof; or the security interest and lien securing Lessee's or
Guarantor's obligations under the Operative Documents, in whole or in part,
ceases to be a perfected first priority security interest and lien on account
of, or as a result of, directly or indirectly, any action or omission of Lessee,
Guarantor of any of their Affiliates;
(h) A Construction Agency Agreement Event of Default shall have
occurred and be continuing;
(i) An Event of Default shall occur under any Material Credit
Agreement;
(j) Lessee fails to provide and maintain the Letter of Credit as
described in Section 5.2(k) of the Participation Agreement; or
(k) Lessee fails to replace any Non-Funding Participant within the
ninety (90) day period permitted to such replacement in Section 2.17 of the
Participation Agreement.
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ARTICLE XVIII
ENFORCEMENT
SECTION 18.1. Remedies. During the existence of a Lease Event of Default,
at Lessor's option and without limiting Lessor in the exercise of any other
right or remedy Lessor may have on account of such default (including, without
limitation, the obligation of Lessee to purchase the Premises as set forth
below), and without any further demand or notice, Lessor may cause the following
to occur:
(i) By notice to Lessee, Lessor may terminate Lessee's right to
possession of the Premises. A notice given in connection with unlawful
detainer proceedings specifying a time within which to cure a default shall
terminate Lessee's right to possession if Lessee fails to cure the default
within the time specified in the notice.
(ii) Upon termination of Lessee's right to possession and without
further demand or notice, Lessee shall surrender possession and vacate the
Premises and deliver possession thereof, and Lessor may re-enter the
Premises and remove any Persons in possession thereof.
(iii) Lessor may terminate this Lease with respect to all or any of
the Leased Properties and/or on and after the Base Term Commencement Date
with respect to a Leased Property declare the aggregate outstanding Site
Balance for such Leased Property to be immediately due and payable, and
Lessor shall be entitled to (x) recover from Lessee the following amounts
and (y) take the following actions:
(A) Lessee shall pay all accrued and unpaid Rent hereunder
(including, without limitation, Basic Rent and Supplemental Rent) with
respect to such Leased Property for the period commencing on the Base Term
Commencement Date with respect to such Leased Property through the Final
Rent Payment Date with respect to such Leased Property;
(B) Lessor may elect either of the following with respect
to any or all of the Leased Properties:
(1) Lessor may demand, by written notice to the Lessee
specifying a payment date (the "Final Rent Payment Date") not
earlier than ten (10) days after the date of such notice, that
Lessee purchase such Leased Property, and Lessee shall pay to
Lessor, on the Final Rent Payment Date (in lieu of Basic Rent
with respect to
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such Leased Property due after the Final Rent Payment Date with
respect to such Leased Property), an amount equal to the sum of (A)
the Site Balance for such Leased Property computed for the period
commencing on the Base Term Commencement Date with respect to such
Leased Property to and including the Final Rent Payment Date with
respect to such Leased Property, plus (B) all accrued and unpaid Rent
with respect to such Leased Property due and unpaid for the period
commencing on the Base Term Commencement Date with respect to such
Leased Property to and including the Final Rent Payment Date with
respect to such Leased Property, and upon payment of such amount, and
the amount of all other sums due and payable by Lessee under this
Lease and the other Operative Documents (and interest at the Overdue
Rate on the amounts payable under this clause (B)(1) from the Final
Rent Payment Date to the date of actual payment) with respect to such
Leased Property, Lessor shall transfer to Lessee all of Lessor's
right, title and interest in and to such Leased Property pursuant to
Section 23.16 below; or
(2) Lessor may sell its interest in such leased Property
and the other applicable Del Monte Collateral in which event Lessee
shall pay to Lessor an amount equal to the excess, if any, of (x) all
amounts due Lessor under clause (B)(1) above over (y) the net Sale
Proceeds received by Lessor from the foregoing sale (provided, that in
calculating such net Sale Proceeds, all expenses and Taxes incurred by
Lessor or any of the Participants in connection with such sale,
including, without limitation, legal fees, shall be deducted from such
Sale Proceeds);
(C) Any other amount necessary to compensate Lessor for all the
damages proximately caused by Lessee's failure to perform Lessee's
obligation under this Lease or which in the ordinary course of things would
be likely to result therefrom, including, but not limited to, the costs and
expenses (including, without limitation, reasonable attorneys' fees,
advertising costs and brokers' commissions) of recovering possession of the
Premises, removing Persons or property therefrom, placing the Premises in
good order, condition and repair, preparing and altering the Premises for
reletting, and all other costs and expenses of reletting; and
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(D) Such other amounts in addition to or in lieu of the foregoing as
may be permitted from time to time by Applicable Laws and Regulations.
(iv) Lessor may enforce the Lien given hereunder pursuant to Section 16.1
hereof, Section 5 of the Lease Supplements, the Mortgages, the Uniform
Commercial Code or any other Applicable Laws and Regulations to recover all
damages caused by a Lease Event of Default, including any damages arising from
Lessee's failure to purchase the Premises pursuant to Section 20.2 hereof.
(v) If Lessee has breached this Lease, this Lease shall continue in effect
for so long as Lessor does not terminate this Lease, and Lessor may enforce all
of Lessor's rights and remedies under this Lease, including the right to
recover the Rent hereunder (including, without limitation, Basic Rent (when
applicable) and Supplemental Rent) as it becomes due under this Lease. Lessee's
right to possession shall not be deemed to have been terminated by Lessor
except pursuant to clause (iii) above. The following do not constitute a
termination of this Lease:
(A) Acts of maintenance or preservation or efforts to relet the
Premises;
(B) The appointment of a receiver upon the initiative of Lessor to
protect Lessor's interest under this Lease; or
(C) Withholding of consent to an assignment or subletting, or
terminating a subletting or assignment by Lessee.
(vi) In the event that Lessor elects to continue this Lease in full force
and effect following the termination of Lessee's right of possession, Lessor, to
the maximum extent permitted by Applicable Laws and Regulations, may enforce all
its rights and remedies under this Lease, including, but not limited to, the
right to recover Rent hereunder as it becomes due. During the continuance of a
Lease Event of Default or following the termination of Lessee's right to
possession, Lessor may enter the Premises in accordance with Applicable Laws and
Regulations without terminating this Lease and sublet all or any part of the
Premises for Lessee's account to any Person, for such term (which may be a
period beyond the remaining Lease Term), at such rents and on such other terms
and conditions as are commercially reasonable. In the event
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of any such subletting, rents received by Lessor from such subletting shall be
applied (a) first, to the payment of the reasonable costs incurred by Lessor in
maintaining, preserving, altering and preparing the Premises for subletting and
other reasonable costs of subletting, including, but not limited to, brokers'
commissions and attorneys' fees; (b) second, to the payment of Rent hereunder
then due and payable; (c) third, to the payment of future Rent hereunder as the
same may become due and payable hereunder; (d) fourth, to the payment of all
other obligations of Lessee hereunder and under the other Operative Documents
(including, without limitation, the Lease Balance), and (e) fifth, the balance,
if any, shall be paid to Lessee upon (but not before) expiration of the Lease
Term. If the rents received by Lessor from such subletting, after application as
provided above, are insufficient in any period to pay the Rent due and payable
hereunder for such period, Lessee shall pay such deficiency to Lessor upon
demand. Notwithstanding any such subletting for Lessee's account without
termination, Lessor may at any time thereafter, by written notice to Lessee,
elect to terminate this Lease.
(vii) Lessor may exercise any other right or remedy that may be available
to it under Applicable Laws and Regulations or in equity, or proceed by
appropriate court action (legal or equitable) to enforce the terms or to
recover damages for the breach hereof, including those arising from a breach by
Lessee of its obligations under Section 20.2 hereof. Separate suits may be
brought to collect any such damages for any Rent installment period(s), and
such suits shall not in any manner prejudice Lessor's right to collect any such
damages for any subsequent Rent installment period(s), or Lessor may defer any
such suit until after the expiration of the Basic Term or any Renewal Term, in
which event such suit shall be deemed not to have accrued until the expiration
of the Lease Term.
(viii) Lessor may retain and apply against Lessor's damages all sums which
Lessor would, absent such Lease Event of Default, be required to pay to, or
turn over to, Lessee pursuant to the terms of this Lease.
(ix) As a matter of right and without notice to Lessee or anyone claiming
under Lessee, and without regard to the then value of the Del Monte Collateral
or the interest of Lessee therein, Lessor shall have the right to apply to any
court having jurisdiction to appoint a receiver or receivers of the Del Monte
Collateral at Lessee's sole cost and expense, and Lessee hereby irrevocably
consents to such appointment and
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waives notice of any application therefor. Any such receiver or receivers shall
have all the usual powers and duties of receivers in like or similar cases and
all the powers and duties of Lessor in case of entry as provided in this Lease
and shall continue as such and exercise all such powers until the latest to
occur of (i) the date of confirmation of sale of the Del Monte Collateral; (ii)
the disbursement of all proceeds of the Del Monte Collateral collected by such
receiver and the payment of all expenses incurred in connection therewith; or
(iii) the termination of such receivership with the consent of Lessor or
pursuant to an order by a court of competent jurisdiction.
(x) Lessor may exercise the remedies described in Section 5 of the Lease
Supplements.
(xi) Lessee hereby grants to Chicago Title Company, as trustee (together
with all successor trustees, the "Trustee"), IN TRUST for the benefit of Lessor
as security for the obligations hereunder A SECURITY INTEREST AND LIEN against
the Premises WITH POWER OF SALE, and that, upon the occurrence of any Lease
Event of Default, Lessor shall have the power and authority, to the extent
provided by Applicable Laws, after proper notice and lapse of such time as may
be required by Applicable Laws, to cause the Trustee to sell the Premises, or
any portion thereof, at the time and place of sale fixed by Lessor in said
notice of sale, either as a whole, or in separate lots or parcels or items and
in such order as Lessor may elect, at auction to the highest bidder for cash in
lawful money of the United States payable at the time of sale; accordingly, it
is acknowledged that A POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT; A
POWER OF SALE MAY ALLOW LESSOR TO TAKE THE APPLICABLE PREMISES AND SELL IT
WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY LESSEE UNDER THIS
INSTRUMENT, and (ii) upon the occurrence of Lease Event of Default, Lessor, in
lieu of or in addition to exercising any power of sale hereinabove given, may
proceed by a suit or suits in equity or at law, whether for a foreclosure, or
for the sale of the premises, or against Lessee on a recourse basis for the
Lease Balance and all accrued and unpaid interest on the Loans, all accrued and
unpaid Yield on the Certificate Amounts, and all other amounts owing by Lessee
under the Operative Documents with respect to such Premises, or for the specific
performance of any covenant or agreement herein contained or in aid of the
execution of any power herein granted, or for the appointment of a receiver
pending any foreclosure hereunder or the sale of the Premises, or for
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the enforcement of any other appropriate legal or equitable remedy.
(xii) The Agent may draw under the Letter of Credit and apply the
proceeds thereof, all as described in the Loan Agreement.
Lessor acknowledges and agrees that upon the declaration of a Lease Event
of Default the amount due and owing by it to Lessor hereunder shall be the
Lease Balance and that to the maximum extent permitted by Applicable Laws,
Lessee waives any right to contest the Lease Balance as the liquidated sum due
upon acceleration of this Lease.
SECTION 18.2. Proceeds of Sale; Deficiency. All payments received and
amounts held or realized by Lessor at any time when a Lease Event of Default
shall be continuing and after the Lease Balance shall have been accelerated
pursuant to this Article XVIII as well as all payments or amounts then held or
thereafter received by Lessor (except for rents received by Lessor from
subletting pursuant to Section 18.1(vi) above, which shall be distributed as
set forth therein) and the proceeds of sale pursuant to Section 18.1(iii)(B)(2)
above or pursuant to the Mortgages shall be distributed forthwith upon receipt
by Lessor in accordance with Article III of the Loan Agreement.
SECTION 18.3. Mortgage and Lease Supplement Remedies. Without limiting any
other remedies set forth in this Lease, Lessor and Lessee agree that upon the
occurrence of a Lease Event of Default, the Lessor and Agent shall have all the
rights and may pursue any of the remedies provided to it in the Mortgages and
Lease Supplements, the terms and provisions of which Mortgages and Lease
Supplements, the terms and provisions of which Mortgages and the Lease
Supplements are incorporated herein by this reference.
SECTION 18.4. Remedies Cumulative; No Waiver; Consents. To the extent
permitted by, and subject to the mandatory requirements of, Applicable Laws and
Regulations, each and ever right, power and remedy herein specifically given to
Lessor or otherwise in this Lease shall be cumulative and shall be in addition
to every other right, power and remedy herein specifically given or now or
hereafter existing at law, in equity or by statute, and each and ever right,
power and remedy whether specifically herein given or otherwise existing may be
exercised from time to time and as often and in such order as may be deemed
expedient by Lessor, and the exercise or the beginning of the exercise of any
power or remedy shall not be construed to be a waiver of the right to exercise
at the same time or thereafter any other right, power or remedy. No delay or
omission by Lessor in the exercise of any right, power or
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remedy or in the pursuit of any remedy shall impair any such right, power or
remedy or be construed to be a waiver of any default on the part of Lessee or
be acquiescence therein. Lessor's consent to any request made by Lessee shall
not be deemed to constitute or preclude the necessity for obtaining Lessor's
consent, in the future, to all similar requests. No express or implied waiver
by Lessor of any Lease Event of Default shall in any way be, or be construed to
be, a waiver of any future or subsequent Lease Default or Lease Event of
Default. To the extent permitted by Applicable Laws and Regulations and subject
to the provisions of Section 18.1 above, Lessee hereby waives any rights now or
hereafter conferred by statute or otherwise that may require Lessor to sell,
lease or otherwise use the Premises, the other Del Monte Collateral or any part
thereof in mitigation of Lessor's damages upon the occurrence of a Lease Event
of Default or that may otherwise limit or modify any of Lessor's rights or
remedies under this Article XVIII.
Section 18.5. Limitation of Recourse Liability. Notwithstanding anything
set forth herein to the contrary, prior to the commencement of the Base Term
with respect to a Lease Supplement for a Site, the aggregate amount payable by
Lessee on a recourse basis under this Article XVIII shall be subject to the
limitations on recourse liability set forth in Section 7.9 of the Participation
Agreement to the extent such amounts arose solely as a result of an Nonrelated
Construction Event relating directly to such Leased Property.
ARTICLE XIX
RIGHT TO PERFORM FOR LESSEE
SECTION 19.1. Right to Cure. If any Lease Default or Lease Event of
Default shall be continuing and in Lessor's reasonably exercised judgment
Lessee is not acting diligently and appropriately to cure such Lease Default or
Lease Event of Default, Lessor may, but shall not be obligated to, on five (5)
Business Day's prior notice to Lessee (except in the event of an emergency, in
which case only one Business Day's prior notice shall be required), cure such
Lease Default or Lease Event of Default, and Lessor shall not thereby be deemed
to have waived any default caused by such failure to cure, and the amount of
such payment and the amount of the expenses of Lessor (including reasonable
attorneys' fees and expenses) incurred in connection with such cure, together
with interest thereon at the Overdue Rate, shall be deemed Supplemental Rent,
payable by Lessee to Lessor upon demand.
SECTION 19.2. Grants and Releases of Easements. Provided that no Default
or Lease Event of Default shall have occurred and
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be continuing, Lessor hereby consents in each instance to the following actions
by Lessee, in the name and stead of Lessor and as Lessor's attorney-in-fact,
but at 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 any
Leased Property in accordance with this Lease; (ii) the release of existing
easements or other rights in the nature of easements which are for the benefit
of any Leased Property; (iii) the dedication or transfer of unimproved portions
of any Leased Property for road, highway or other public purposes; (iv) the
execution of petitions to have any Leased Property annexed to any municipal
corporation or utility district; (v) the execution of any covenants and
restrictions affecting any Leased Property or amendments or modifications
thereto; and (vi) the execution or release of any similar agreements; provided,
however, that in each case Lessee, prior to taking any such action, shall have
delivered to Lessor an Officer's Certificate stating that (x) such grant,
release, dedication, transfer, annexation, or amendment or similar agreement
does not materially impair the Fair Market Value, residual value, utility,
operation or remaining useful life of the applicable Leased Property, (y) such
grant, release, dedication, transfer, annexation or amendment will not cause
the applicable Leased Property or any portion thereof to fail to comply in any
respect with the provisions of this Lease of any other Operative Document or in
any material respect with all Applicable Laws and Regulations (including,
without limitation, all applicable zoning, planning, building and subdivision
ordinances, all applicable restrictive covenants and all applicable
architectural approval requirements), and (z) Lessee shall timely pay and
perform any obligations of Lessor under such grant, release, dedication,
transfer, annexation or amendment during the Lease Term. Without limiting the
effectiveness of the foregoing or the power of attorney granted to Lessee
pursuant to Section 19.3 below, provided that no Material Default or Lease
Event of Default shall have occurred and be continuing, Lessor shall, upon the
request of Lessee, and at Lessee's sole cost and expense, execute and deliver
any instruments necessary or appropriate to confirm any such grant, release,
dedication, transfer, annexation or amendment to any Person permitted under
Sections 19.2 and 19.3 hereof.
SECTION 19.3. Power of Attorney. Unless and until a Default or Lease
Event of Default has occurred and is continuing, the Lessor does, solely for
the purposes stated in Section 19.2 above, hereby irrevocably make, constitute
and appoint Lessee and any of its officers or designees its true and lawful
attorney-in-fact, with full power and authority to do any and all acts
necessary or proper to carry out the intent of Sections 19.2 and 19.3 hereof,
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including, without limitation, the right, power and authority (i) to take such
actions described in Section 19.2 above, and (ii) to execute such documents and
agreements as Lessee may reasonably determine are necessary for the purposes of
carrying out the intent of such Sections 19.2 and 19.3, and Lessor hereby
ratifies and confirms all that Lessee as such attorney-in-fact or its
substitute undertakes by virtue of this power of attorney, which power is
coupled with an interest and is irrevocable. Lessor hereby agrees to execute,
at Lessee's sole cost and expense, such additional powers of attorney in
recordable form as may be necessary for Lessee to carry out the intent of such
Sections 19.2 and 19.3.
ARTICLE XX
EARLY TERMINATION OPTION AND OBLIGATION TO PURCHASE
SECTION 20.1 Early Termination Option. Without limitation of Lessee's
purchase obligation pursuant to Section 20.2, on (1) any scheduled Quarterly
Payment Date following the expiration of the Construction Period for all of the
Sites, or (2) on an Business Day following the occurrence of a Lease Event of
Default of the types described in clause (ii) of the next sentence, Lessee may,
at its options, purchase all, but not less than all, of the Premises (the
"Early Termination Option") at a price equal to the Purchase Amount. Lessee's
right to purchase all of the Premises pursuant to this Section 20.1 shall
terminate automatically and without notice (i) upon the occurrence of a Lease
Event of Default arising as a result of an Insolvency Event and (ii) upon the
occurrence of any other Lease Event of Default, unless in the case of a Lease
Event of Default described in this clause (ii) Lessee delivers a written notice
of its election to exercise this option to purchase not less than three (3)
days prior to the date of the purchase and consummates the purchase within ten
(10) Business Days following the occurrence of such Lease Event of Default. In
order to exercise its option to purchase the Premises pursuant to this Section
20.1 and except as provided for in clause (ii) of the foregoing sentence,
Lessee shall give to Lessor not less than ten (10) days' prior written notice
of such election to exercise, which election shall become irrevocable if not
revoked or extended by written notice to Lessor not later than five (5) days
prior to the end of such ten (10) day period. Upon receipt of the Purchase
Amount, Lessor shall transfer the Premises to Lessee, or its assigns, pursuant
to Section 23.16 below, on the date set forth in the written notice delivered
by Lessee pursuant to this Section 20.1. If a Lease Event of Default of the
type described in clause (ii) above (other than a Lease Event of Default of the
type described in clause (a) or (b) of Article XVII hereof) relates only to a
specific Leased Property but not all Leased Properties, the
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exercise of the Early Termination Option and the purchase of such Leased
Properties for the applicable Purchase Amount in accordance with the
requirements hereof shall be deemed to cure such Lease Event of Default;
provided that Lessee may, if all of the Participants consent, cure such Lease
Event of Default for a specific Leased Property by exercising the Early
Termination Option and paying the Purchase Amount for such Leased Property;
provided, further, if any Participant fails to consent, Lessee may nonetheless
exercise the Early Termination Option and pay the Purchase Amount for all of
the Leased Properties.
SECTION 20.2. Required Purchase. Provided that Lessor has not exercised
any other remedy inconsistent therewith, Lessee shall be obligated to purchase
Lessor's interest in the Premises for the Purchase Amount (a) automatically
and without notice upon the occurrence of any Lease Event of Default arising as
a result of an Insolvency Event, (b) immediately upon the written demand of
Lessor upon the occurrence of any other Lease Event of Default.
ARTICLE XXI
END OF TERM OPTIONS
SECTION 21.1. End of Term Options. At least 270 days before the scheduled
expiration date of the Lease Term, Lessee shall, by delivery of written notice
to Lessor and the Agent, exercise one of the following options:
(a) Renew this Lease (together with each Lease Supplement) with respect
to all, but not less than all, of the Premises for five (5) additional one-year
Lease Renewal Terms (the "Renewal Option") on the terms and conditions set
forth set forth herein and in the other Operative Documents; provided, however,
such Renewal Option shall be available at the end of the Base Term only if the
conditions to the Extension Option set forth in Section 2.14 of the
Participation Agreement are satisfied; and provided further, that the Renewal
Option shall not be available during the fifth Renewal Term; or
(b) Purchase for cash for the Purchase Amount all, but not less than all,
of the Premises then subject to this Lease on the last day of the Lease Term
(the "Purchase Option"); and if Lessee shall have elected the Purchase Option,
Lessor shall, upon the payment to Lessor of the Purchase Amount, transfer all
of Lessor's right, title and interest in and to the Premises pursuant to
Section 23.16 below; or
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(c) Sell on behalf of Lessor for cash to a single purchaser not in any way
affiliated with Lessee or any of its Affiliates all, but not less than all, of
the Premises then subject to this Lease on the last day of the Lease Term (the
"Sale Option"). Lessee's right to sell the Premises pursuant to the Sale Option
shall be conditioned upon the subject to (i) the full performance by Lessee of
its obligations pursuant to Section 2 of each of the Utility Easements before
such election of the Sale Option is made, (ii) the fulfillment by Lessee of each
of the terms and conditions set forth in Article XXII below, and (iii) there not
being at the time of such election any existing Third Party Subleases. Lessee
shall not enter into any additional subleases or renew any subleases with
respect to the Premises following Lessee's election of the Sale Option.
Following Lessee's election of the Sale Option, Lessee shall not remove any
Alterations.
SECTION 21.2. Election of Options. To the extent that the Renewal Option
is available, unless Lessee shall have affirmatively elected in accordance
herewith the Purchase Option or the Sale Option, Lessee shall be deemed to have
elected the Renewal Option. To the extent that the Renewal Option is not
available for any reason (including because of the Participants' refusal to
consent to an Extension Option Request), unless Lessee shall have (a)
affirmatively elected the Sale Option within the time period provided for in
Section 21.1. and (b) satisfied each of the requirements in Article XXII hereof,
Lessee shall be deemed to have elected the Purchase Option. In addition, the
Sale Option shall automatically be revoked if there exists a Lease Default,
Lease Event of Default or Event of Loss at any time after the Sale Option is
properly elected or Lessee fails to comply with each of the terms and conditions
set forth at such Article XXII and Lessor shall be entitled to exercise all
rights and remedies provided in Article XVIII hereof. Lessee may not elect the
Sale Option if there exists on the date the election is made a Lease Default, a
Lease Event of Default, an Event of Loss, or an outstanding Extension Option
Request.
SECTION 21.3. Renewal Options; Extension Options. The exercise of any
Renewal Option by Lessee shall be subject to satisfaction of the following
conditions:
(i) on the Lease Expiration Date then in effect and on the date
Lessee gives notice of its exercise of the Renewal Option, no Lease Event
of Default or Lease Default shall have occurred and be continuing; and
(ii) Lessee shall not have exercised the Sale Option or the Purchase
Option.
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Lessee's exercise of a Renewal Option shall be deemed to be a representation by
Lessee that on both the Lease Expiration Date then in effect and the date Lessee
gives notice of its exercise of the Renewal Option, no Lease Event of Default or
Lease Default shall have occurred and be continuing. Following the Extension
Effective Date, each Renewal Option (other than the first) shall be at the sole
option of Lessee, not subject to the consent of the Participants.
ARTICLE XXII
SALE OPTION
SECTION 22.1. Sale Option Procedures. If Lessee elects the Sale Option,
Lessee shall use its best commercial efforts as nonexclusive agent for Lessor to
obtain the highest all cash purchase price for the purchase of the Premises, and
in the event Lessee receives any bid, Lessee shall within five (5) Business Days
after receipt thereof, and at least twenty (20) Business Days prior to the Lease
Expiration Date, certify to Lessor in writing the amount and terms of such bid,
the name and address of the party (who shall not be Lessee, Guarantor or any
Affiliate of Lessee or Guarantor or any Person with whom Lessee or Guarantor has
an understanding or arrangement regarding their future use, possession or
ownership of the Premises), but who may be Lessor or a Participant, any
Affiliates thereof, or any Person contacted by any Participant (other than any
Person referred to in the foregoing parenthetical) submitting such bid. Unless
pursuant to the terms of the bid submitted, the Sale Proceeds shall exceed the
aggregate outstanding Lease Balance as of the Lease Expiration Date any
Participant may submit a bid to Lessee not later than five (5) Business Days
prior to the Lease Expiration Date. Lessee shall bear its own expense and pay
the expenses of Lessor and each Participant in connection with any such bidding
and sale process pursuant to this Section 22.1 as well as all costs and expenses
incurred by any party (including a buyer or potential buyer) to place the
Premises in the condition required by Section 9.1 above and costs of repair and
alterations for improvements desired by such buyer. None of the foregoing costs
or expenses shall be deducted from the Sale Proceeds or serve to reduce the
purchase price to be paid for the Premises. After Lessee shall have certified to
Lessor all bids received, if all such bids received on an all cash basis are for
less than the aggregate outstanding Lease Balance as of the Lease Expiration
Date, any Participant, any Affiliate thereof, or any Person contacted by any
Participant may submit a further bid or bids to Lessee not later than five (5)
Business Days prior to the Lease Expiration Date. On or before the Lease
Expiration Date, so long as no Lease Event of Default or
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Lease Default shall have occurred and be continuing: (i) Lessee shall transfer
all of Lessee's right, title and interest in the Premises, or cause the Premises
to be transferred, to the bidder, if any, which shall have submitted the highest
bid therefor at least twenty (20) (or in the case of a Participant, any
Affiliate thereof or Person contacted by a Participant, five (5)) Business Days)
prior to such Lease Expiration Date, in the same manner and in the same
condition and otherwise in accordance with all of the terms of this Lese; (ii)
subject to the prior or current payment by Lessee of all amounts due under
clause (iii) of this sentence, Lessor shall comply with any conditions to
transfer set forth in Section 22.2 hereof and the transfer provisions of Section
23.16 hereof in order to transfer Lessor's right, title and interest in and to
the Premises for cash to such bidder; and (iii) Lessee shall simultaneously pay
to Lessor all of the amounts required pursuant to Section 22.3 below. All costs
related to a sale and delivery pursuant to this Section 22.1 including the cost
of sales agents retained by Lessee, Lessor or the Participants, improvements
desired by the potential buyer, delivery of documents, filing and documentary
transfer fees, Taxes relating to or arising as a result of such transfer, title
insurance, certification and testing of the Premises, environmental audits,
legal costs, costs of notices, any advertisement or other similar costs shall be
borne entirely by Lessee, without regard to whether such costs were incurred by
Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid
by the purchaser of the Premises or from any of the Sale Proceeds or as a
reduction to the purchase price. Neither Lessor nor any Participant shall have
any responsibility for procuring any purchaser; provided, however, that Lessor
and its designees may, at the direction of the Required Participants, engage in
activities to market and sell the Premises. Any such activities undertaken by
Lessor pursuant to this Section 22.1 shall not reduce Lessee's obligations under
this Section 22.1 to use its best commercial efforts to sell the Premises in
accordance with the requirements of this Article XXII.
SECTION 22.2. Sale. Lessee shall, on the Lease Expiration Date at Lessee's
own expense, transfer each Leased Property to the purchaser thereof free and
clear of all Liens other than Permitted Exceptions, in as good condition as it
was on the applicable Site Acquisition Date and on the applicable Completion
Date, ordinary wear and tear excepted, and in compliance with all Applicable
Laws and Regulations (and in any event without (x) any asbestos installed or
maintained in any part of the Premises, (y) any polychlorinated biphenyls (PCBs)
in, on or used, stored or located at the Premises, and (z) any other Hazardous
Materials). As a condition to Lessees' rights hereunder, Lessee shall obtain all
necessary governmental consents and approvals and make all
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governmental filings required by Lessee or Lessor in connection with any third
party sale. Lessee shall cooperate with the purchaser of the Premises in order
to facilitate the ownership and operation of each Leased Property by such
purchaser after the date of the sale or transfer, including providing all books,
reports and records regarding the maintenance, repair and ownership of the
Premises and granting or assigning all licenses necessary for the operation of
each Leased Property and cooperating in seeking and obtaining all necessary
Governmental Action. As a further condition to Lessee's rights hereunder, Lessee
shall pay the total cost for the completion of the Financed Improvements and of
all Alterations commenced prior to the Lease Expiration Date and for the repair
and rebuilding of the affected portions of each Leased Property suffering a
Casualty. All Financed Improvements and Alterations and all such repairs and
rebuilding shall be completed prior to the date of Lessee's election of the Sale
Option. Prior to the Lease Expiration Date, Lessee shall furnish to the
Certificate Trustee, the Agent, and the Participants and the independent
purchaser hereunder a reasonably current Environmental Audit for each Leased
Property dated not earlier than 45 days prior to the Lease Expiration Date and
addressed to each such party in form and substance satisfactory in the sole
discretion of such purchaser, the Certificate Trustee, the Agent and the
Required Participants. The obligations of Lessee under this Section 22.2 shall
survive the expiration or termination of this Lease. Unless Lessee shall have
exercised or been deemed to have exercised its Purchase Option, Lessor shall at
Lessee's expense be entitled to perform such investigation, including obtaining
reports of engineers and other experts as to the condition and state of repair
and maintenance of the Premises required by this Section 22.2 and as to the
compliance of the Premises with Applicable Laws and Regulations including
Environmental Laws, as it deems appropriate. Lessee, at its sole cost and
expense, shall cause the repair or other remediation of any discrepancies
between the actual condition of the Premises and the condition required under
this Lease, such repair or remediation to be completed not later than the Lease
Expiration Date.
SECTION 22.3. Application of Sale Proceeds and Recourse Payments.
(a) On the Lease Expiration Date in connection with an exercise of the
Sale Option, Lessee shall pay to Lessor all Rent then due together with all
other amounts due and payable by Lessee to Lessor, Agent, any Participant or any
Indemnitee. Lessee also shall pay to Lessor, as Supplemental Rent, from the
aggregate Sale Proceeds the aggregate outstanding Lease Balance as of the Lease
Expiration Date (as determined after the payment of all Rent due on
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such date). If the Sale Proceeds exceed the Lease Balance as of the Lease
Expiration Date, Lessee shall retain the portion of the Sale Proceeds in excess
thereof. If the Sale Proceeds are less than the aggregate outstanding Lease
Balance, Lessee shall pay or shall cause to be paid to Lessor, as Supplemental
Rent, on the Lease Expiration Date, in addition to the Sale Proceeds an
additional amount equal to the lesser of (x) the Sales Recourse Amount and (y)
the amount that the Lease Balance exceeds the Sale Proceeds.
(b) The obligation of Lessee to pay the amounts determined pursuant
to Sections 22.3(a) and 22.4 hereof shall be recourse obligations of Lessee, and
such payments by Lessee shall not limit any other obligation of Lessee under the
Operative Documents, including pursuant to Article VII of the Participation
Agreement.
SECTION 22.4. Appraisal. If any Participant expects that the Sale Proceeds
will be less than the outstanding Lease Balance as of the Lease Expiration Date,
Lessor (upon direction from such Participant) shall engage an appraiser
reasonably satisfactory to Lessee, at Lessee's expense, to determine (by
appraisal methods reasonably satisfactory to the Required Participants) the Fair
Market Value of the Premises then subject to this Lease as of the Lease
Expiration Date. If the Appraiser concludes that the Fair Market Value of such
Premises as of the Lease Expiration Date is in excess of the Sale Proceeds to be
obtained from the sale of the Premises, Lessee shall promptly pay to Lessor on
the date of such sale together with the Sale Proceeds, as Supplemental Rent,
such excess which, together with such Sale Proceeds and the Sale Recourse Amount
so paid to Lessor, shall not exceed the Lease Balance determined immediately
before the application of the foregoing amounts.
ARTICLE XXIII
MISCELLANEOUS
SECTION 23.1. Binding Effect; Successors and Assigns; Survival. The terms
and provisions of this Lease, and the respective rights and obligations
hereunder of Lessor, Lessee, Agent and the Participants shall be binding upon
them and their respective successors, legal representatives and assigns
(including, in the case of Lessor, any Person to whom Lessor may transfer the
Premises or any interest therein in accordance with the provisions of the
Operative Documents), and inure to their benefit and the benefit of their
respective permitted successors, legal representatives and assigns.
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SECTION 23.2. Severability. Any provision of this Lease that shall be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, and Lessee shall remain
liable to perform its obligations hereunder except to the extent of such
unenforceability. To the extent permitted by Applicable Laws and Regulations,
Lessee hereby waives any provision of law that renders any provision hereof
prohibited or unenforceable in any respect.
SECTION 23.3. Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be in writing and shall be delivered and shall be deemed to have
been given in accordance with Section 9.3 of the Participation Agreement.
SECTION 23.4. Amendment; Complete Agreements. Neither this Lease nor any
of the terms hereof may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification shall be sought. This Lease, together with the other Operative
Documents, is intended by the parties as a final expression of their agreement
and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations and representations between the parties having been
incorporated herein and therein. No course of prior dealings between the parties
or their officers, employees, agents or Affiliates shall be relevant or
admissible to supplement, explain, or vary any of the terms of this Lease or any
other Operative Document. Acceptance of, or acquiescence in, a course of
performance rendered under this or any prior agreement between the parties or
their Affiliates shall not be relevant or admissible to determine the meaning of
any of the terms of this Lease or any other Operative Document. No
representations, undertakings, or agreements have been made or relied upon in
the making of this Lease other than those specifically set forth in the
Operative Documents.
SECTION 23.5. Headings. The Table of Contents and headings of the various
Articles and Sections of this Lease are for convenience of reference only and
shall not modify, define or limit any of the terms or provisions hereof.
SECTION 23.6. Original Lease. The single executed original of this Lease
containing the receipt of Lessor therefor on or following the signature page
thereof shall be the "original
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executed counterpart" of this Lease. To the extent that this Lease constitutes
chattel paper, as such term is defined in the UCC as in effect in any
applicable jurisdiction, no security interest in this Lease may be created
through the transfer or possession of any counterpart other than the "original
executed counterpart."
SECTION 23.7. GOVERNING LAW. THIS LEASE HAS BEEN DELIVERED IN, AND SHALL
IN ALL RESPECTS BE GOVERNED BY AN CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE
STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (EXCEPT
SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT AS TO MATTERS
RELATING TO THE GRANTING, CONVEYANCING, OR LEASING OF, AND CREATION OF LIENS
AND THE EXERCISE OF REMEDIES WITH RESPECT TO, THE PREMISES CONSTITUTING REAL
PROPERTY, WHICH, TO THE EXTENT REQUIRED BY APPLICABLE LAWS AND REGULATIONS,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN
WHICH THE APPLICABLE LEASED PROPERTY IS LOCATED.
SECTION 23.8. RESERVED.
SECTION 23.9. Liability of Lessor Limited. The parties hereto agree that
State Street Bank and Trust Company of California, N.A., in its individual
capacity (the "State Street CA"), shall have no personal liability whatsoever to
Lessee or its respective successors and assigns for any Claim based on or in
respect of this Lease or any of the other Operative Documents or arising in any
way from the transactions contemplated hereby or thereby; provided, however,
that State Street CA shall be liable in its individual capacity (a) for its own
willful misconduct or gross negligence (or negligence in the handling of funds),
(b) for liabilities that may result from the incorrectness of any representation
or warranty expressly made by it in its individual capacity in Section 4.3 of
the Participation Agreement or from the failure of State Street CA to perform
its covenants and agreements set forth in Section 6.2(a) of the Participation
Agreement, or (c) for any Tax based on or measured by any fees, commission or
compensation received by it for acting as Lessor as contemplated by the
Operative Documents. It is understood and agreed that, except as provided in the
preceding proviso: (i) State Street CA shall have no personal liability under
any of the Operative Documents as a result of acting pursuant to and consistent
with any of the Operative Documents; (ii) all obligations of the Certificate
Trustee to Lessee are solely nonrecourse obligations except to the extent that
it has received payment from others; (iii) all such personal liability of State
Street CA is expressly waived and released as a condition of, and as
consideration for, the execution and delivery of the Operative Documents by
State Street CA; and (iv) this Lease is executed and delivered by State Street
CA solely
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as Certificate Trustee in the exercise of the powers expressly conferred upon it
as Lessor under the Trust Agreement.
SECTION 23.10. Estoppel Certificates. Each party hereto agrees that at
any time and from time to time during the Lease Term, it will promptly, but in
no event later than thirty (30) days after request by the other party hereto,
execute, acknowledge and deliver to such other party or to any prospective
purchaser (if such prospective purchase has signed a commitment letter or letter
of intent to purchase the Premises or any part thereof or to purchase any
Certificate), assignee or mortgagee or third party designated by such other
party, a certificate stating (a) that this Lease is unmodified and in force and
effect (or if there have been modifications, that this Lease is in force and
effect as modified, and identifying the modification agreements); (b) the date
to which Basic Rent has been paid; (c) in the case of an estoppel certificate to
be given by Lessee, whether or not there is any existing default by Lessee in
the payment of Basic Rent or any other sum of money hereunder, and whether or
not there is any other existing Lease Default or Lease Event of Default with
respect to which a notice of default has been served, and, if there is any such
default, specifying the nature and extent thereof; (d) in the case of an
estoppel certificate to be given by Lessee, whether or not, to the knowledge of
Lessee after due inquiry and investigation, there are any purported setoffs,
defenses or counterclaims against enforcement of the obligations to be performed
hereunder existing in favor Lessee; and (e) other items that may be reasonably
requested; provided, that no such certificate may be requested unless the
requesting party has a good faith reason for such request. In addition, Lessee,
promptly, but in no event later than ten (10) Business Days after request by any
other party hereto, shall use commercially reasonable efforts to obtain and
deliver to such other party or to any prospective purchaser (if such prospective
purchaser has signed a commitment letter or letter of intent to purchase the
Premises or any part thereof or to purchase any Certificate), assignee,
mortgagee or third party designated by such other party, an estoppel certificate
from each subtenant under each sublease containing such items as reasonably
requested by the party requesting the same; provided, that no such certificate
may be requested unless the requesting party has a good faith reason for such
request.
SECTION 23.11 No Joint Venture. Any intention to create a joint venture
or partnership relation hereunder or pursuant to any other Operative Document
between Lessor and lessee is hereby expressly disclaimed.
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SECTION 23.12. No Accord and Satisfaction. The acceptance by Lessor of
any sums from Lessee (whether as Basic Rent or otherwise) in amounts which are
less than the amounts due and payable by Lessee hereunder is not intended, nor
shall be construed, to constitute an accord and satisfaction of any dispute
between Lessor and Lessee regarding sums due and payable by Lessee hereunder,
unless the Required Participants specifically deem it as such in writing.
SECTION 23.13. No Merger. In no event shall the leasehold estate of
Lessee hereunder merge with any interests, estates or rights of Lessor in or to
the Premises, it being understood that such leasehold estate of Lessee hereunder
shall be deemed to be separate and distinct from Lessor's interests, estates and
rights in or to the Premises, notwithstanding that any such interests, estates
or rights shall at any time or times be held by or vested in the same Person.
SECTION 23.14. Successor Lessor. Lessee agrees that, in the case of the
appointment of any successor certificate trustee pursuant to the Trustee
Agreement and the other Operative Documents, such successor certificate trustee
shall, upon written notice by such successor certificate trustee to Lessee,
succeed to all the rights, powers and title of Lessor hereunder and shall be
deemed to be Lessor for all purposes hereof and without in any way altering the
terms of this Lease or Lessee's obligations hereunder.
SECTION 23.15. Survival. The termination of this Lease pursuant to
Section 18.1 hereof shall in no event relieve Lessee of its liabilities and
obligations hereunder which accrued prior to such termination, all of which
shall survive any such termination. The extension of any applicable statute of
limitations by Lessor, Lessee, any Participant or any other Indemnitee shall not
affect such survival.
SECTION 23.16. Transfer of Premises. (a) Whenever pursuant to any
provision of this Lease, Lessor is required to transfer all or any portion of
the Premises or to any Leased Property to Lessee or to an independent third
party, such transfer shall be made at Lessee's expense by the transfer by a deed
and assignment of all of Lessor's interest in and to the applicable Premises on
an "as is, where is, with all faults" basis free and clear of all Certificate
Trustee Liens, without covenants or warranties of title, except for matters
arising by, through or under Lessor, and otherwise without recourse,
representation or warranty of any kind, and together with the due assumption by
Lessee (or such third party) of, and due release of Lessor from, all obligations
relating to the applicable Premises and the applicable Del Monte Collateral. In
connection
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with any transfer to an independent third party, Lessee shall execute and
deliver such documents, certificates and estoppels as may be required to
facilitate the transfer of the applicable Premises. Any provision in this Lease
or other Operative Document to the contrary notwithstanding, Lessor shall not be
obligated to make any such transfer until Lessor and the Participants have
received all Rent and other amounts then due and owing by Lessee hereunder and
under the other Operative Documents. At or subsequent to the transfer or return
of all or any of the Premises, Lessee will provide Lessor with such lien and
title searches as Lessor may reasonably request to demonstrate to Lessor's
satisfaction that the applicable Premises are subject to no liens for which
Lessor would be liable under any warranties of title.
(b) Lessee may assign to another Person its right, upon a purchase by
Lessee, to take title to the Premises or to any Leased Property pursuant to
Article XX or Section 21.1(b) hereof; provided, that (i) Lessee shall exercise
any such option, (ii) such assignee shall be bound by the provisions of such
Article XX or Section 21.1(b), as applicable, with respect to the Premises or
the Leased Property to be purchased by it, (iii) Lessee shall have delivered to
Lessor proof that all necessary governmental approvals, consents and filings
with respect to such transfer, including the purchase of the Premises or any
Leased Property by any other Person as contemplated herein, have been obtained
or made, as applicable, and (iv) no such assignment shall release Lessee from
its obligations under any such Section, and Lessee shall remain personally
liable to Lessor for the payment of all amounts due under any such section and
this Section 23.16.
SECTION 23.17. Enforcement of Certain Warranties. Unless a Lease Event of
Default shall have occurred and be continuing, Lessor authorizes lessee
(directly or through agents), at Lessee's expense, to assert, during the Lease
Term, all of Lessor's rights (if any) under any applicable warranty and any
other claim that Lessee or Lessor may have under the warranties provided to
Lessor in connection with the Financed Improvements and Lessor agrees to
cooperate, at Lessee's expense, with Lessee and its agents in asserting such
rights. Any amount recovered by Lessee under any such warranties shall be
retained by or paid over to Lessee, subject to Section 23.18 below.
SECTION 23.18. Security Interest in Funds. As long as a Lease Event of
Default, or a Lease Default that upon notice or lapse of time, or both, would
become an Insolvency Event, shall have occurred and be continuing, any amount
that would otherwise be payable to Lessee under the Operative Documents shall be
paid to or retained by Lessor (including amounts to be paid to Lessee pursuant
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to Article XIII or Section 23.17 hereof) as security for the performance by
Lessee in full of its obligations under this Lease and the other Operative
Documents, and it may be applied to the obligations of Lessee hereunder and
under the other Operative Documents and distributed pursuant to Section 18.2
hereof. At such time as no Lease Event of Default, or no Lease Event of Default
that upon notice or lapse of time, or both, would become an Insolvency Event, or
failure to perform shall be continuing, such amounts, net of any amounts
previously applied to Lessee's obligations hereunder or under any other
Operative Documents, shall be paid to Lessee. Any such amounts which are held
pending paying to Lessee or application hereunder shall be invested by Lessor as
directed from time to time in writing by Lessee, and at the expense and risk of
Lessee, in Permitted Investments. Any gain (including interest received)
realized as the result of any such investment (net of any fees, commissions and
other expenses, if any, incurred in connection with such investment) shall be
applied from time to time in the same manner as the principal invested. Lessor
shall not be liable for any losses on such investments or for any failure to
make any investment. Lessee will promptly pay to Lessor, on demand, the amount
of any loss realized as the result of any such investment (together with any
fees, commissions and other expenses, if any, incurred in connection with such
investment), such amount to be held, paid and applied in the same manner as
other amounts subject to this Section 23.18.
SECTION 23.19. Recording of Lease Supplements. Concurrently with the
execution and delivery of this Lease and concurrently with the execution and
delivery of each Lease Supplement, Lessor and Lessee shall execute, acknowledge
and cause to be recorded each such Lease Supplement or a memorandum thereof in
the official records of the Counties where each Site that is the subject of this
Lease or such Lease Supplement is located and in such other places as Lessor
deems necessary to perfect the Lien granted pursuant to this Lease or such Lease
Supplement. Notwithstanding the execution, delivery and recording of any such
Lease Supplement or memorandum thereof, the terms, covenants and conditions of
this Lease shall control.
SECTION 23.20. Nature of Transaction. It is the intention of the parties
that:
(a) the Overall Transaction constitutes an operating lease from
Lessor to Lessee for purposes of Lessee's and Guarantor's financial reporting;
(b) for federal and state income tax, property tax, bankruptcy
(including the substantive law upon which bankruptcy
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proceedings are based) and real estate and Uniform Commercial Code purposes:
(i) the Overall Transaction constitutes a financing by the
Participants to Lessee, and on each Site Acquisition Date beneficial
ownership in the Premises shall be deemed to pass directly to and that the
Overall Transaction preserves beneficial ownership in the Premises in
Lessee, and the obligations of Lessee to pay Basic Rent shall be treated
as payments of interest to the Participants, and the payment by Lessee of
any amounts in respect of the Lease Balance shall be treated as payments
of principal to the Participants;
(ii) Lessor holds title in the Premises as security for Lessee's and
Guarantor's obligations under the Operative Documents, and the Lease
grants a security interest or a lien, as the case may be, in the Premises
and the other Del Monte Collateral in favor of the Certificate Trustee,
and for the benefit of the Participants; and
(iii) the Mortgages create liens and security interests in the
Mortgaged Property defined therein for the benefit of all the Participants.
Nevertheless, Lessee acknowledges and agrees that none of Certificate Trustee,
Agent, Arranger, or any Participant has made any representations or warranties
concerning the tax, accounting or legal characteristics of the Operative
Documents or any aspect of the Overall Transaction and that Lessee and
Guarantor have obtained and relied upon such tax, accounting and legal advice
concerning the Operative Documents and the Overall Transaction as each deems
appropriate.
[SIGNATURE PAGES FOLLOW]
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Amended and Restated
Master Lease
IN WITNESS WHEREOF, the undersigned have each caused this Amended and
Restated
Master Lease to be duly executed and delivered by their respective
officers thereunto duly authorized as of the day and year first above written.
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A., not in its individual
capacity, but solely as Certificate
Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name : ▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
DEL MONTE CORPORATION, as Lessee
By:
----------------------------------
Name : ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, General
Counsel, Secretary
S-1
Amended and Restated Master Lease
IN WITNESS WHEREOF, the undersigned have each caused this Amended and
Restated Master Lease to be duly executed and delivered by their respective
officers thereunto duly authorized as of the day and year first above written.
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A., not in its individual
capacity, but solely as Certificate
Trustee
By:
----------------------------------
Name : ▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
DEL MONTE CORPORATION, as Lessee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name : ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, General
Counsel, Secretary
S-1