EXHIBIT 10.13
This instrument was prepared by
and upon recordation should be
returned to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
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LEASE AGREEMENT
Dated as of April 20, 1998
between
ATLANTIC FINANCIAL GROUP, LTD., as Lessor,
and
SUPER RITE FOODS, INC., as Lessee
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==============================================================================
|| TABLE OF CONTENTS
(Lease Agreement)
Page
ARTICLE I. DEFINITIONS............................................... 1
ARTICLE II. LEASE OF LEASED PROPERTY.................................. 1
Section 2.1 Acceptance and Lease of Property.......................... 1
Section 2.2 Acceptance Procedure...................................... 2
ARTICLE III. RENT..................................................... 2
Section 3.1 Basic Rent................................................ 2
Section 3.2 Supplemental Rent......................................... 2
Section 3.3 Method of Payment......................................... 2
Section 3.4 Late Payment.............................................. 3
Section 3.5 Net Lease; No Setoff, Etc................................. 3
Section 3.6 Certain Taxes............................................. 4
Section 3.7 Utility Charges........................................... 5
ARTICLE IV. WAIVERS................................................... 5
ARTICLE V. LIENS; EASEMENTS; PARTIAL CONVEYANCES...................... 6
ARTICLE VI. MAINTENANCE AND REPAIR;ALTERATIONS,
MODIFICATIONS AND ADDITIONS........................ 8
Section 6.1 Maintenance and Repair; Compliance
With Law............................................ 8
Section 6.2 Alterations............................................... 8
Section 6.3 Title to Alterations...................................... 8
ARTICLE VII. USE...................................................... 9
ARTICLE VIII. INSURANCE............................................... 9
ARTICLE IX. ASSIGNMENT AND SUBLEASING................................ 11
ARTICLE X. LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE............... 11
Section 10.1 Event of Loss...................................... 11
Section 10.2 Event of Taking.................................... 12
Section 10.3 Casualty........................................... 13
Section 10.4 Condemnation....................................... 13
Section 10.5 Verification of Restoration and
Rebuilding......................................... 13
Section 10.6 Application of Payments............................ 13
Section 10.7 Prosecution of Awards.............................. 15
Section 10.8 Application of Certain Payments Not Relating
to an Event of Taking.............................. 15
Section 10.9 Other Dispositions................................. 15
Section 10.10 No Rent Abatement.................................. 16
ARTICLE XI. INTEREST CONVEYED TO LESSEE.............................. 16
ARTICLE XII. EVENTS OF DEFAULT....................................... 21
ARTICLE XIII. ENFORCEMENT............................................ 24
Section 13.1 Remedies........................................... 24
Section 13.2 Remedies Cumulative; Redemption Right;
No Waiver; Consents................................ 27
ARTICLE ▇▇▇.▇▇▇▇, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL .... 28
Section 14.1 Lessee's Option to Purchase........................ 28
Section 14.2 Conveyance to Lessee............................... 28
Section 14.3 Acceleration of Purchase Obligation................ 28
Section 14.4 Determination of Purchase Price.................... 29
Section 14.5 Purchase Procedure................................. 29
Section 14.6 Option to Remarket; Surrender Option............... 30
Section 14.7 Rejection of Sale.................................. 33
Section 14.8 Return of Leased Property.......................... 33
Section 14.9 Renewal............................................ 34
ARTICLE XV. LESSEE'S EQUIPMENT....................................... 34
ARTICLE XVI. RIGHT TO PERFORM FOR LESSEE............................. 35
ARTICLE XVII. MISCELLANEOUS.......................................... 35
Section 17.1 Reports............................................ 35
Section 17.2 Binding Effect; Successors and Assigns; Survival... 35
Section 17.3 Quiet Enjoyment.................................... 36
Section 17.4 Notices............................................ 36
Section 17.5 Severability....................................... 37
Section 17.6 Amendment; Complete Agreements..................... 37
Section 17.7 Construction....................................... 37
Section 17.8 Headings........................................... 37
Section 17.9 Counterparts....................................... 37
Section 17.10 GOVERNING LAW...................................... 38
Section 17.11 Discharge of Lessee's Obligations by
its Affiliates..................................... 38
Section 17.12 Liability of Lessor Limited........................ 38
Section 17.13 Estoppel Certificates.............................. 39
Section 17.14 No Joint Venture................................... 39
Section 17.15 No Accord and Satisfaction......................... 39
Section 17.16 No Merger.......................................... 39
Section 17.17 Survival........................................... 40
Section 17.18 Chattel Paper...................................... 40
Section 17.19 Time of Essence.................................... 40
Section 17.20 Recordation of Lease............................... 40
Section 17.21 Investment of Security Funds....................... 40
APPENDICES AND EXHIBITS
APPENDIX A Defined Terms
EXHIBIT A Legal Description
||
THIS LEASE AGREEMENT (as from time to time amended or supplemented, this
"Lease"), dated as of April 20, 1998, is between ATLANTIC FINANCIAL GROUP, LTD.,
a Texas limited partnership qualified to do business in Pennsylvania (together
with its successors and assigns hereunder, the "Lessor"), as Lessor, and SUPER
RITE FOODS, INC., a Delaware corporation qualified to do business in
Pennsylvania (together with its successors and permitted assigns hereunder, the
"Lessee"), as Lessee.
PRELIMINARY STATEMENT
A. Lessor will purchase from the Seller a parcel of real property to be
specified by Lessee, together with any improvements thereon.
▇. ▇▇▇▇▇▇ desires to lease to Lessee, and Lessee desires to lease from
Lessor, such property.
In consideration of the mutual agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, Lessor and Lessee hereby agree as follows:
ARTICLE II.
DEFINITIONS
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in Appendix A hereto for all purposes hereof.
ARTICLE III.
LEASE OF LEASED PROPERTY
Section III.1 On the Closing Date, Lessor, subject to the satisfaction or
waiver of the conditions set forth in Section 3 of the Master Agreement, hereby
agrees to accept delivery from the Seller on the Closing Date of the Land and
Buildings designated by Lessee to be delivered on the Closing Date pursuant to
the terms of the Master Agreement, and simultaneously to lease to Lessee
hereunder for the Lease Term, Lessor's interest in such Land and Buildings, and
Lessee hereby agrees, expressly for the direct benefit of Lessor, commencing on
the Closing Date for the Lease Term, to lease from Lessor Lessor's interest in
the Land and Buildings. The legal description of the Land is set forth on
Exhibit A hereto.
Section III.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 on behalf of
Lessor of the Leased Property. Lessee hereby agrees that such acceptance of
delivery by such authorized representative or representatives and the execution
and delivery by Lessee on the Closing Date of this Lease shall, without further
act, constitute the irrevocable acceptance by Lessee of the Leased Property for
all purposes of this Lease and the other Operative Documents on the terms set
forth therein and herein, and that the Leased Property shall be deemed to be
included in the leasehold estate of this Lease and shall be subject to the terms
and conditions of this Lease as of the Closing Date. The demise and lease of the
Building pursuant to this Section 2.2 shall include any additional right, title
or interest in the Building which may at any time be acquired by Lessor, the
intent being that all right, title and interest of Lessor in and to the Building
shall at all times be demised and leased to Lessee hereunder.
ARTICLE IV.
RENT
Section IV.1 Basic Rent. Beginning with and including the first Payment
Date occurring after the Closing Date, Lessee shall pay to the Agent, as
assignee of Lessor, the Basic Rent for the Leased Property, in installments,
payable in arrears on each Payment Date during the Lease Term.
Section IV.2 Supplemental Rent. Lessee shall pay to the Agent (as assignee
of Lessor), or to whomever shall be entitled thereto as expressly provided
herein or in any other Operative Document, any and all Supplemental Rent within
five (5) Business Days of the date the same shall become due and payable and in
the event of any failure on the part of Lessee to pay any Supplemental Rent, the
Agent (as assignee of 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. All Supplemental Rent to be paid pursuant to this
Section 3.2 shall be payable in the type of funds and in the manner set forth in
Section 3.3.
Section IV.3 Method of Payment. Basic Rent shall be paid to the Agent, and
Supplemental Rent (including amounts due under Article XIV hereof) shall be paid
to the Agent (or to such Person as may be entitled thereto) or, in each case, to
such Person as the Agent (or such other Person) shall specify in writing to
Lessee, and at such place as the Agent (or such other Person) shall specify in
writing to Lessee, which specifications by the Agent shall be given by the Agent
at least five (5) Business Days prior to the due date therefor. Each payment of
Basic Rent and payments of Supplemental Rent hereunder shall be made by Lessee
prior to 12:00 p.m. (noon) Atlanta, Georgia time at the place of payment in
funds consisting of lawful currency of the United States of America which shall
be immediately available on the date when such payment shall be due, unless such
date shall not be a Business Day, in which case such payment shall be made on
the next succeeding Business Day.
Section IV.4 Late Payment. If any Basic Rent shall not be paid on the date
when due, Lessee shall pay to the Agent, as Supplemental Rent, interest (to the
maximum extent permitted by law) on such overdue amount from and including the
due date thereof to but excluding the Business Day of payment thereof at the
Overdue Rate.
Section IV.5 Net Lease; No Setoff, Etc. This Lease is a net lease and
notwithstanding any other provision of this Lease, Lessee shall pay all Basic
Rent and Supplemental Rent, and all costs, charges, taxes (other than taxes and
other items covered by the exclusion described in Section 7.4(b) of the Master
Agreement), assessments and other expenses foreseen or unforeseen, for which
Lessee or any Indemnitee is or shall become liable by reason of Lessee's or such
Indemnitee's estate, right, title or interest in the Leased Property, or that
are connected with or arise out of the acquisition (except the initial costs of
purchase by Lessor of its interest in the Leased Property, which costs, subject
to the terms of the Master Agreement, shall be funded by the Funding Parties
pursuant to the Master Agreement), installation, possession, use, occupancy,
maintenance, ownership, leasing, repairs and rebuilding of, or addition to, the
Leased Property or any portion thereof, and any other amounts payable hereunder
and under the other Operative Documents without counterclaim, setoff, deduction
or defense and without abatement, suspension, deferment, diminution or
reduction, 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 without limitation: (a) any defect in the condition,
merchantability, design, quality or fitness for use of the Leased Property or
any part thereof, or the failure of the Leased Property to comply with all
Applicable Law, including any inability to occupy or use the Leased Property by
reason of such non-compliance; (b) any damage to, removal, abandonment, salvage,
loss, contamination of or Release from, scrapping or destruction of or any
requisition or taking of the Leased Property or any part thereof; (c) any
restriction, prevention or curtailment of or interference with any use of the
Leased Property or any part thereof including eviction; (d) any defect in title
to or rights to the Leased Property or any Lien on such title or rights or on
the 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, the Agent or any Lender; (f) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceedings
relating to Lessee, Lessor, any Lender, the Agent or any other Person, or any
action taken with respect to this Lease by any trustee or receiver of Lessee,
Lessor, any Lender, the Agent 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, any vendor, manufacturer, contractor of or
for any Building or any part thereof, the Agent or any Lender; (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; (i) any invalidity or
unenforceability or illegality or disaffirmance of this Lease against or by
Lessee or any provision hereof or any of the other Operative Documents or any
provision of any thereof whether or not related to the Transaction; (j) the
impossibility or illegality of performance by Lessee, Lessor or both; (k) any
action by any court, administrative agency or other Governmental Authority; (l)
any restriction, prevention or curtailment of or interference with any use of
the Leased Property or any part thereof; or (m) 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 XIV or X of this Lease, this Lease shall be noncancellable by Lessee in
any circumstance whatsoever and Lessee, to the extent permitted by Applicable
Law, 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. Each payment of Rent made by
Lessee hereunder shall be final and Lessee shall not seek or have any right to
recover all or any part of such payment from Lessor, the Agent, any Lender 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 Leased Property and Lessor shall have no responsibility in
respect thereof and shall have no liability for damage to the property of either
Lessee or any subtenant of Lessee on any account or for any reason whatsoever,
other than solely by reason of Lessor's or its agent's (other than Lessee) or
employee's willful misconduct or gross negligence.
Section IV.6 Certain Taxes. Without limiting the generality of Section
3.5, Lessee agrees to pay when due all real estate taxes, personal property
taxes, gross sales taxes, including any sales or lease tax imposed upon the
rental payments hereunder or under a sublease, occupational license taxes, water
charges, sewer charges, assessments of any nature and all other governmental
impositions and charges of every kind and nature whatsoever (the "tax(es)"),
when the same shall be due and payable without penalty or interest; provided,
however, that this Section shall not apply to any of the taxes and other items
covered by the exclusion described in Section 7.4(b) of the Master Agreement. It
is the intention of the parties hereto that, insofar as the same may lawfully be
done, Lessor shall be, except as specifically provided for herein, free from all
expenses in any way related to the Leased Property and the use and occupancy
thereof. Any tax relating to a fiscal period of any taxing authority falling
partially within and partially outside the Lease Term, shall be apportioned and
adjusted between Lessor and Lessee. Lessee covenants to furnish Lessor and the
Agent, upon the Agent's request, within forty-five (45) days after the last date
when any tax must be paid by Lessee as provided in this Section 3.6, official
receipts of the appropriate taxing, authority or other proof satisfactory to
Lessor, evidencing the payment thereof.
So long as no Event of Default has occurred and is continuing, Lessee may
defer payment of a tax so long as the validity or the amount thereof is
contested by Lessee with diligence and in good faith; provided, however, that
Lessee shall pay the tax in sufficient time to prevent delivery of a tax deed.
Such contest shall be at Lessee's sole cost and expense. Lessee covenants to
indemnify and save harmless Lessor, the Agent and each Lender from any actual
and reasonable costs or expenses incurred by Lessor, the Agent or any Lender as
a result of such contest.
Section IV.7 Utility Charges. Lessee agrees to pay or cause to be paid as
and when the same are due and payable all charges for gas, water, sewer,
electricity, lights, heat, power, telephone or other communication service and
any other utility services used, rendered or supplied to, upon or in connection
with the Leased Property.
ARTICLE V.
WAIVERS
During the Lease Term, Lessor's interest in the Building(s) and the Land
is demised and let by Lessor "AS IS" subject to (a) the rights of any parties in
possession thereof, (b) the state of the title thereto existing at the time
Lessor acquired its interest in the Leased Property, (c) any state of facts
which an accurate survey or physical inspection might show (including the survey
delivered on the Closing Date), (d) all Applicable Law, and (e) any violations
of Applicable Law which may exist upon or subsequent to the commencement of the
Lease Term. LESSEE ACKNOWLEDGES THAT, ALTHOUGH LESSOR WILL OWN AND HOLD TITLE TO
THE LEASED PROPERTY, LESSOR IS NOT RESPONSIBLE FOR THE DESIGN, DEVELOPMENT,
BUDGETING AND CONSTRUCTION OF THE BUILDING(S) OR ANY ALTERATIONS. NEITHER
LESSOR, THE AGENT NOR ANY LENDER 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 VALUE, MERCHANTABILITY, TITLE, HABITABILITY,
CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE LEASED PROPERTY (OR ANY
PART THEREOF), OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE LEASED PROPERTY (OR ANY PART THEREOF), ALL SUCH
WARRANTIES BEING HEREBY DISCLAIMED, AND NEITHER LESSOR, THE AGENT NOR ANY LENDER
SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE
OF THE LEASED PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAW,
except that Lessor hereby represents and warrants that the Leased Property is
and shall be free of Lessor Liens. As between Lessor and Lessee, Lessee has been
afforded full opportunity to inspect the Leased Property, is satisfied with the
results of its inspections of the Leased Property and is entering into this
Lease solely on the basis of the results of its own inspections and all risks
incident to the matters discussed in the two preceding sentences, as between
Lessor, the Agent or the Lenders on the one hand, and Lessee, on the other, are
to be borne by Lessee. The provisions of this Article IV 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 Lessor, the Agent or the Lenders, express or implied, with respect
to the Leased Property, that may arise pursuant to any law now or hereafter in
effect, or otherwise.
ARTICLE VI.
LIENS; EASEMENTS; PARTIAL CONVEYANCES
Lessee shall not directly or indirectly create, incur or assume, any Lien
on or with respect to the Leased Property, the title thereto, or any interest
therein, including any Liens which arise out of the possession, use, occupancy,
construction, repair or rebuilding of the Leased Property or by reason of labor
or materials furnished or claimed to have been furnished to Lessee, or any of
its contractors or agents or by reason of the financing of any personalty or
equipment purchased or leased by Lessee from third parties and not financed by
Lessor or Alterations constructed by Lessee, except, in all cases, Permitted
Liens.
Notwithstanding the foregoing paragraph, at the request of Lessee, Lessor
(and Agent and the Lenders by accepting an assignment of this Lease) shall, from
time to time during the Lease Term and upon reasonable advance written notice
from Lessee, and receipt of the materials specified in the next succeeding
sentence, consent to and join in any (i) grant of easements, licenses, rights of
way and other rights in the nature of easements, including, without limitation,
utility easements to facilitate Lessee's use, development, construction, repair
and operation of the Leased Property, (ii) release or termination of easements,
licenses, rights of way or other rights in the nature of easements which are for
the benefit of the Land or the Building(s) or any portion thereof, (iii)
dedication or transfer of portions of the Land, not improved with a building,
for road, highway or other public purposes, (iv) execution of agreements for
ingress and egress and amendments to any covenants and restrictions affecting
the Land or the Building(s) or any portion thereof and (v) request to any
Governmental Authority for platting or subdivision or replatting or
resubdivision approval with respect to the Land or any portion thereof or any
parcel of land of which the Land or any portion thereof forms a part or a
request for any variance from zoning or other governmental requirements.
Lessor's obligations pursuant to the preceding sentence shall be subject to the
requirements that:
(a) any such action shall be at the sole cost and expense of Lessee
and Lessee shall pay all actual and reasonable out-of-pocket costs of Lessor,
the Agent and any Lender in connection therewith (including, without limitation,
the reasonable fees of attorneys, architects, engineers, planners, appraisers
and other professionals reasonably retained by Lessor, the Agent or any Lender
in connection with any such action),
(b) Lessee shall have delivered to Lessor and Agent a certificate of
a Responsible Officer of Lessee stating that
(1) such action will not cause the Leased Property, the Land
or any Building or any portion thereof to fail to comply in any material
respect with the provisions of this Lease or any other Operative
Documents, or in any material respect with Applicable Law; and
(2) except as to Alterations required by Applicable Law, such
action will not materially reduce the Fair Market Sales Value, utility or
useful life of the Leased Property, the Land or any Building nor Lessor's
interest therein; and
(c) in the case of any release or conveyance, if Lessor, the Agent
or any Lender so reasonably requests, Lessee will cause to be issued and
delivered to Lessor and the Agent by the Title Insurance Company an endorsement
to the Title Policy pursuant to which the Title Insurance Company agrees that
its liability for the payment of any loss or damage under the terms and
provisions of the Title Policy will not be affected by reason of the fact that a
portion of the real property referred to in Schedule A of the Title Policy has
been released or conveyed by Lessor.
ARTICLE VII
MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS
Section VII.1 Maintenance and Repair; Compliance With Law. Lessee, at its
own expense, shall at all times (a) maintain the Leased Property in good repair
and condition (subject to ordinary wear and tear), in accordance with prudent
industry standards for similar types of property located in the geographical
area where the Leased Property is located and, in any event, in no less a manner
as other similar office/warehouse buildings owned or leased by Lessee or its
Affiliates, (b) make all Alterations in accordance with, and maintain (whether
or not such maintenance requires structural modifications or Alterations) and
operate and otherwise keep the Leased Property in compliance in all material
respects with, all Applicable Laws and insurance requirements, and (c) make all
material repairs, replacements and renewals of the Leased Property or any part
thereof which may be required to keep the Leased Property in the condition
required by the preceding clauses (a) and (b). Lessee shall perform the
foregoing maintenance obligations regardless of whether the Leased Property is
occupied or unoccupied. Lessee waives any right that it may now have or
hereafter acquire to (i) require Lessor, the Agent or any Lender to maintain,
repair, replace, alter, remove or rebuild all or any part of the Leased Property
or (ii) make repairs at the expense of Lessor, the Agent or any Lender pursuant
to any Applicable Law or other agreements or otherwise. NEITHER LESSOR, THE
AGENT NOR ANY LENDER SHALL BE LIABLE TO LESSEE OR TO ANY CONTRACTORS,
SUBCONTRACTORS, LABORERS, MATERIALMEN, SUPPLIERS OR VENDORS FOR SERVICES
PERFORMED OR MATERIAL PROVIDED ON OR IN CONNECTION WITH ANY LEASED PROPERTY OR
ANY PART THEREOF. Neither Lessor, the Agent nor any Lender shall be required to
maintain, alter, repair, rebuild or replace the Leased Property in any way.
Section VII.2 Alterations. Lessee may, without the consent of Lessor, at
Lessee's own cost and expense, make Alterations which do not materially diminish
the value, utility or useful life of the Leased Property.
Section VII.3 Title to Alterations. Title to all non-severable Alterations
and all Alternations required by Applicable Law or by any applicable insurance
policy shall without further act vest in Lessor (subject to Lessee's right to
remove trade fixtures, refrigeration equipment, racking, conveyor systems,
personal property, equipment and other severable Alterations not required by
Applicable Law or by any insurance policy which were not acquired with funds
advanced by Lessor or any Lender at a time when no Event of Default has occurred
and is continuing, title to all of which shall be vested in Lessee) and shall be
deemed to constitute a part of the Leased Property and be subject to this Lease.
Lessee shall be responsible for the repair of any damage caused by the removal
of any Alteration.
ARTICLE VIII.
USE
Lessee may use the Leased Property or any part thereof for its existing
use and any other lawful purpose, provided that such use does not materially
adversely affect the Fair Market Sales Value, utility, remaining useful life or
residual value of the Leased Property, and does not materially violate or
conflict with, or constitute or result in a material default under, any
Applicable Law or any insurance policy required hereunder. In the event Lessee's
use substantially changes the character of the Building in a manner or to an
extent that, in Lessor's or the Lenders' reasonable opinion, adversely affects
the Fair Market Sales Value and/or marketability of the Leased Property, Lessee
shall, upon the termination or expiration of this Lease, at Lessor's request,
restore the Leased Property to its general character at the Closing Date
(ordinary wear and tear excepted), unless Lessee has purchased the Leased
Property pursuant to the terms of this Lease. Lessee shall not commit or permit
any waste of the Leased Property or any material part thereof.
ARTICLE IX.
INSURANCE
(a) At any time during which any part of the Building or any
Alteration is under construction and as to any part of the Building or any
Alteration under construction, Lessee shall maintain, or cause to be maintained,
at its sole cost and expense, as a part of its blanket policies or otherwise,
"all risks" non-reporting completed value form of builder's risk insurance.
(b) During the Lease Term, Lessee shall maintain, at its sole cost
and expense, insurance against loss or damage to any Building by fire and other
risks, including comprehensive boiler and machinery coverage, on terms and in
amounts no less favorable than insurance covering other similar properties owned
or leased by Lessee or its Affiliates, but in no event less than the replacement
cost of such Building from time to time.
(c) During the Lease Term, Lessee shall maintain, at its sole cost
and expense, commercial general liability insurance with respect to the Leased
Property. Such insurance shall be on terms and in amounts that are no less
favorable than insurance maintained by Lessee or its Affiliates with respect to
similar properties that it owns or leases, but in no event less than $3,000,000
per occurrence. Such insurance policies shall also provide that Lessee's
insurance shall be considered primary insurance. Nothing in this Article VIII
shall prohibit Lessor, the Agent or any Lender from carrying at its own expense
other insurance on or with respect to the Leased Property, provided that any
insurance carried by Lessor, the Agent or any Lender shall not prevent Lessee
from carrying the insurance required hereby.
(d) Each policy of insurance maintained by Lessee pursuant to
clauses (a) and (b) of this Article IX shall provide that all insurance proceeds
in respect of any loss or occurrence shall be adjusted by Lessee, except (a)
that with respect to any loss, the estimated cost of restoration of which is in
excess of $10,000,000, the adjustment thereof shall be subject to the prior
written approval of the Agent and the insurance proceeds therefor shall be paid
to the Agent for application in accordance with this Lease, and (b) if, and for
so long as an Event of Default exists, all losses shall be adjusted solely by,
and all insurance proceeds shall be paid solely to, the Agent for application
pursuant to this Lease.
(e) On the Closing Date, Lessee shall furnish Lessor with
certificates showing the insurance required under this Article VIII to be in
effect and naming Lessor, the Agent and the Lenders as additional insureds. Such
certificates shall include a provision for thirty (30) days' advance written
notice by the insurer to Lessor and the Agent in the event of cancellation or
expiration or nonpayment of premium with respect to such insurance, and shall
include a customary breach of warranty clause. Lessee shall provide evidence to
Lessor and the Agent that each insurance policy required by this Article VIII
has been renewed prior to the scheduled expiration date therefor.
(f) Each policy of insurance maintained by Lessee pursuant to this
Article VIII shall (1) contain the waiver of any right of subrogation of the
insurer against Lessor, the Agent and the Lenders, and (2) provide that in
respect of the interests of Lessor, the Agent and the Lenders, such policies
shall not be invalidated by any fraud, action, inaction or misrepresentation of
Lessee or any other Person acting on behalf of Lessee.
(g) All insurance policies carried in accordance with this Article
VIII shall be maintained with insurers rated at least A by A.M. Best & Company,
and in all cases the insurer shall be qualified to insure risks in the State
where such Leased Property is located.
ARTICLE X.
ASSIGNMENT AND SUBLEASING
Lessee may not assign any of its right, title or interest in, to or under
this Lease, except as set forth in the following sentence. Lessee may assign
this Lease to the Guarantor or any Subsidiary (including a Person that becomes a
Subsidiary in connection with such assignment), without the consent of the
Funding Parties, or to any other Person consented to by the Funding Parties
(which consent shall not be unreasonably withheld, conditioned or delayed),
provided that in each case other than an assignment to the Guarantor, the
Guarantor shall have reaffirmed its obligations under the Guaranty in writing.
Lessee may sublease all or any portion of the Leased Property to any Person
without the consent of the Funding Parties, provided that (a) all obligations of
Lessee shall continue in full effect as obligations of a principal and not of a
guarantor or surety, as though no sublease had been made, such sublease shall be
expressly subject and subordinate to this Lease, the Loan Agreement and the
other Operative Documents, and each such sublease shall terminate on or before
the Lease Termination Date and (b) the Guarantor shall have reaffirmed its
obligations under the Guaranty in writing.
Except pursuant to an Operative Document, this Lease shall not be
mortgaged or pledged by Lessee, nor shall Lessee mortgage or pledge any interest
in the Leased Property or any portion thereof. Any such mortgage or pledge shall
be void.
ARTICLE XI.
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
Section XI.1 Event of Loss. Any event (i) which would otherwise
constitute a Casualty during the Base Term, and (ii) which, in the good-faith
judgment of Lessee, renders repair and restoration of the Leased Property
impractical or uneconomical, and (iii) as to which Lessee, within sixty (60)
days after the occurrence of such event, delivers to Lessor an Officer's
Certificate notifying Lessor of such event and of such judgment, shall
constitute an "Event of Loss". In the case of any other event which constitutes
a Casualty, Lessee shall restore the Leased Property pursuant to Section 10.3.
If an Event of Loss other than an Event of Taking shall occur, Lessee shall pay
to Lessor on the next Payment Date occurring not less than 90 days following
delivery of the Officer's Certificate pursuant to clause (iii) above an amount
equal to the Lease Balance. Upon Lessor's receipt of such Lease Balance on such
date, Lessor shall cause Lessor's interest in the Leased Property to be conveyed
to Lessee in accordance with and subject to the provisions of Section 14.5
hereof; upon completion of such purchase, but not prior thereto, this Lease and
all obligations hereunder shall terminate, except with respect to obligations
and liabilities hereunder, actual or contingent, that have arisen or relate to
events occurring on or prior to such date of purchase, or which are expressly
stated herein to survive termination of this Lease.
Upon the consummation of the purchase of the Leased Property pursuant to
this Section 10.1, any proceeds derived from insurance required to be maintained
by Lessee pursuant to this Lease for the Leased Property remaining after payment
of such purchase price shall be paid over to, or retained by, Lessee or as it
may direct, and Lessor shall assign to Lessee, without warranty, all of Lessor's
rights to and interest in insurance required to be maintained by Lessee pursuant
to this Lease.
Section XI.2 Event of Taking. Any event (i) which constitutes a
Condemnation of all of, or substantially all of, the Leased Property, or (ii)
(A) which would otherwise constitute a Condemnation, (B) which, in the
good-faith judgment of Lessee, renders restoration and rebuilding of the Leased
Property impossible, impractical or uneconomical, and (C) as to which Lessee,
within sixty (60) days after the occurrence of such event, delivers to Lessor an
Officer's Certificate notifying Lessor of such event and of such judgment, shall
constitute an "Event of Taking". In the case of any other event which
constitutes a Condemnation, Lessee shall restore and rebuild the Leased Property
pursuant to Section 10.4. If an Event of Taking shall occur, Lessee shall pay to
Lessor (1) on the next Payment Date occurring not less than ninety (90) days
after the occurrence of such Event of Taking, in the case of an Event of Taking
described in clause (i) above, or (2) on the next Payment Date occurring not
less than ninety (90) days after delivery of the Officer's Certificate pursuant
to clause (ii) above, in the case of an Event of Taking described in clause (ii)
above, an amount equal to the Lease Balance. Upon Lessor's receipt of such Lease
Balance on such date, Lessor shall cause Lessor's interest in the Leased
Property to be conveyed to Lessee in accordance with and subject to the
provisions of Section 14.5 hereof (provided that such conveyance shall be
subject to all rights of the condemning authority); upon completion of such
purchase, but not prior thereto, this Lease and all obligations hereunder shall
terminate, except with respect to obligations and liabilities hereunder, actual
or contingent, that have arisen or relate to events occurring on or prior to
such date of purchase, or which are expressly stated herein to survive
termination of this Lease.
Upon the consummation of the purchase of the Leased Property pursuant to
this Section 10.2, all Awards received by Lessor, after deducting any reasonable
costs incurred by Lessor in collecting such Awards, received or payable on
account of an Event of Taking with respect to the Leased Property during the
Lease Term shall be paid to Lessee, and all rights of Lessor in Awards not then
received shall be assigned to Lessee by Lessor.
Section XI.3 Casualty. If a Casualty shall occur and this Lease is not
terminated pursuant to Section 10.1, Lessee shall rebuild and restore the Leased
Property, and will complete the same prior to the Lease Termination Date,
regardless of whether insurance proceeds received as a result of such Casualty
are sufficient for such purpose, unless Lessee purchases the Leased Property in
accordance with the terms of this Lease.
Section XI.4 Condemnation. If a Condemnation shall occur and this Lease
is not terminated pursuant to Section 10.1, Lessee shall rebuild and restore the
Leased Property, and will complete the same prior to the Lease Termination Date,
unless Lessee purchases the Leased Property in accordance with the terms of this
Lease.
Section XI.5 Verification of Restoration and Rebuilding. In the event of
Casualty or Condemnation in excess of $10,000,000, to verify Lessee's compliance
with the foregoing Sections 10.3 and 10.4, Lessor, the Agent, the Lenders and
their respective authorized representatives may, upon five (5) Business Days'
prior notice to Lessee, make inspections of the Leased Property with respect to
(i) the extent of the Casualty or Condemnation and (ii) the restoration and
rebuilding of the Building and the Land. All actual and reasonable out-of-pocket
costs of such inspections incurred by Lessor, the Agent or any Lender will be
paid by Lessee promptly after written request. No such inspection shall
unreasonably interfere with Lessee's operations or the operations of any other
occupant of the Leased Property. None of the inspecting parties shall have any
duty to make any such inspection or inquiry and none of the inspecting parties
shall incur any liability or obligation by reason of making or not making any
such inspection or inquiry (other than for such inspecting party's gross
negligence or willful misconduct).
Section XI.6 Application of Payments. All proceeds (except for payments
under insurance policies maintained other than pursuant to Article VIII of this
Lease) received at any time by Lessor, Lessee or the Agent from any Governmental
Authority or other Person with respect to any Condemnation or Casualty to the
Leased Property or any part thereof or with respect to an Event of Loss or an
Event of Taking, plus the amount of any payment that would have been due from an
insurer but for Lessee's self-insurance or deductibles ("Loss Proceeds"), shall
(except to the extent Section 10.9 applies) be applied as follows:
(a) In the event Lessee purchases the Leased Property pursuant to
Section 10.1 or Section 10.2, such Loss Proceeds shall be applied as set
forth in Section 10.1 or Section 10.2, as the case may be;
(b) In the event of a Casualty at such time when no Event of Default
has occurred and is continuing and Lessee is obligated to repair and
rebuild the Leased Property pursuant to Section 10.3, Lessee may, in good
faith and subsequent to the date of such Casualty, certify to Lessor and
to the applicable insurer that no Event of Default has occurred and is
continuing, in which event the applicable insurer shall pay the Loss
Proceeds to Lessee, unless the estimated cost of restoration exceeds
$10,000,000, in which case the Loss Proceeds shall be paid to the Agent,
and shall be promptly released to Lessee upon certification by Lessee to
Lessor and the Agent that Lessee has incurred costs in the amount
requested to be released for the repair and rebuilding of the Leased
Property (and any such funds remaining after completion of such repair and
rebuilding shall be released to Lessee);
(c) In the event of a Condemnation at such time when no Event of
Default has occurred and is continuing and Lessee is obligated to repair
and rebuild the Leased Property pursuant to Section 10.4, Lessor shall
upon Lessee's request assign to Lessee Lessor's interest in any applicable
Awards; and
(d) As provided in Section 10.8, if such section is applicable.
During any period of repair or rebuilding pursuant to this Article X, this
Lease will remain in full force and effect and Basic Rent shall continue to
accrue and be payable without abatement or reduction. Lessee shall maintain
records setting forth information relating to the receipt and application of
payments in accordance with this Section 10.6. Such records shall be kept on
file by Lessee at its offices and shall be made available to Lessor, the Lenders
and the Agent upon request.
Section XI.7 Prosecution of Awards. (a) If, during the continuance of
any Event of Default, any Condemnation shall occur, Lessee shall give to Lessor
and the Agent promptly, but in any event within thirty (30) days after the
occurrence thereof, written notice of such occurrence and the date thereof,
generally describing the nature and extent of such Condemnation. With respect to
any Event of Taking or any Condemnation, Lessee shall control the negotiations
with the relevant Governmental Authority as to any proceeding in respect of
which Awards are required, under Section 10.6, to be assigned or released to
Lessee, unless an Event of Default shall have occurred and be continuing, in
which case (1) the Agent (or Lessor if the Funded Amounts have been fully paid)
shall control such negotiations; and (2) Lessee hereby irrevocably assigns,
transfers and sets over to Lessor all rights of Lessee to any Award made during
the continuance of an Event of Default on account of any Event of Taking or any
Condemnation and, if there will not be separate Awards to Lessor and Lessee on
account of such Event of Taking or Condemnation, irrevocably authorizes and
empowers the Agent (or Lessor if the Funded Amounts have been fully paid) during
the continuance of an Event of Default, with full power of substitution, in the
name of Lessee or otherwise (but without limiting the obligations of Lessee
under this Article X), to file and prosecute what would otherwise be Lessee's
claim for any such Award and to collect, receipt for and retain the same;
provided, however, that in any event Lessor and the Agent may participate in
such negotiations, and no settlement will be made without the prior consent of
the Agent (or Lessor if the Funded Amounts have been fully paid), not to be
unreasonably withheld.
(b) Notwithstanding the foregoing, Lessee may prosecute, and Lessor shall
have no interest in, any claim with respect to Lessee's personal property and
equipment not financed by Lessor and Lessee's relocation expenses.
Section XI.8 Application of Certain Payments Not Relating to an Event of
Taking. In case of a requisition for temporary use of all or a portion of the
Leased Property which is not an Event of Taking, this Lease shall remain in full
force and effect, without any abatement or reduction of Basic Rent, and the
Awards for the Leased Property shall, unless an Event of Default has occurred
and is continuing, be paid to Lessee.
Section XI.9 Other Dispositions. Notwithstanding the foregoing provisions
of this Article X, so long as an Event of Default shall have occurred and be
continuing, any amount that would otherwise be payable to or for the account of,
or that would otherwise be retained by, Lessee pursuant to this Article X shall
be paid to the Agent (or Lessor if the Funded Amounts have been fully paid) as
security for the obligations of Lessee under this Lease and, at such time
thereafter as no Event of Default shall be continuing, such amount, with the
earnings thereon, if any, shall be paid promptly to Lessee to the extent not
previously applied by Lessor or the Agent in accordance with the terms of this
Lease or the other Operative Documents.
Section XI.10 No Rent Abatement. Rent shall not ▇▇▇▇▇ hereunder by reason
of any Casualty, any Event of Loss, any Event of Taking or any Condemnation of
the Leased Property, and Lessee shall continue to perform and fulfill all of
Lessee's obligations, covenants and agreements hereunder notwithstanding such
Casualty, Event of Loss, Event of Taking or Condemnation until the Lease
Termination Date.
ARTICLE XII.
INTEREST CONVEYED TO LESSEE
(a) It is the intent of the parties hereto that: (i) this Lease
constitutes an "operating lease" pursuant to Statement of Financial Accounting
Standards No. 13, as amended, for purposes of Lessee's financial reporting, and
(ii) for purposes of Federal, state and local income tax, the transaction
contemplated by this Lease is a financing arrangement and transfers ownership in
the Leased Property to the Lessee.
(b) Insofar as the transactions hereby are intended to be a financing
arrangement, it is the intent of the parties hereto that (i) the obligations of
the Lessee under the Lease to pay Basic Rent and Supplemental Rent (other than
Supplemental Rent related to indemnity payments) or the Lease Balance in
connection with any purchase of the Leased Property pursuant to this Lease shall
be treated as payments of interest on and principal of, respectively, loans from
the Lessor and the Lenders to the Lessee, and (ii) this Lease grants, subject to
Permitted Liens, a security interest and mortgage or deed of trust or lien, as
the case may be, in the Leased Property to the Lessor and the Lenders to secure
Lessee's performance under and payment of all amounts due to the Agent and the
Funding Parties under this Lease and the other Operative Documents.
(c) Specifically, without limiting the generality of subsection (b) of
this Article XI, the Lessor and the Lessee intend and agree that with respect to
the nature of the transactions evidenced by this Lease in the context of the
exercise of remedies under the Operative Documents, including, without
limitation, in the case of any insolvency or receivership proceedings or a
petition under the United States bankruptcy laws or any other applicable
insolvency laws or statute of the United States of America or any State or
Commonwealth thereof affecting the Lessee or the Lessor or any enforcement or
collection actions, the transactions evidenced by this Lease are loans made by
the Lessor and the Lenders as unrelated third party lenders to the Lessee
secured by the Leased Property (it being understood that Lessee hereby
mortgages, grants, conveys, assigns, warrants, transfers and sets over to the
Lessor, and grants a security interest in, the Leased Property (consisting of a
fee mortgage with respect to Lessor's fee interest in the Land and Buildings) to
the Lessor and the Lenders to secure such loans, effective on the date hereof,
in each case subject to Permitted Liens, to have and to hold such interests in
the Leased Property unto the Lessor and the Lenders and their respective
successors and assigns, forever, provided always that these presents are upon
the express condition that, if all amounts due under this Lease shall have been
paid and satisfied in full and all obligations of the Lessor, the Agent and the
Lenders under the Operative Documents to advance funds shall have been
terminated, then this instrument and the estate hereby granted shall cease and
become void).
(d) Specifically, but without limiting the generality of subsection (b) of
this Article XI, the Lessor and the Lessee further intend and agree that, for
the purpose of securing the Lessee's obligations for the repayment of the
above-described loans from the Lessor and the Lenders to the Lessee, (i) this
Lease shall also be deemed to be a security agreement and financing statement
within the meaning of Article 9 of the Uniform Commercial Code and a real
property mortgage or deed of trust; (ii) the conveyance provided for hereby
shall be deemed to be a grant by the Lessee to the Lessor and the Lenders of a
mortgage lien and security interest in all of the Lessee's right, title and
interest in and to the Leased Property and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, investments, securities or
other property, whether in the form of cash, investments, securities or other
property (consisting of a fee mortgage with respect to Lessor's fee interest in
the Land and Building) to the Lessor and the Lenders to secure such Loans,
effective on the date hereof, to have and to hold such interests in the Leased
Property unto the Lessor and the Lenders and their respective successors and
assigns, forever, provided always that these presents are upon the express
condition that, if all amounts due under this Lease to the Agent and the Funding
Parties shall have been paid and satisfied in full and all obligations of the
Lessor, the Agent and the Lenders under the Operative Documents to advance funds
shall have been terminated, then this instrument and the estate hereby granted
shall cease and become void; (iii) the possession by the Lessor or any of its
agents of notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the Uniform Commercial Code; and (iv) notifications to
Persons holding such property, and acknowledgments, receipts or confirmations
from financial intermediaries, bankers or agents (as applicable) of the Lessee
shall be deemed to have been given for the purpose of perfecting such security
interest under Applicable Law. The Lessor and the Lessee shall, to the extent
consistent with this Lease, take such actions and execute, deliver, file and
record such other documents, financing statements, mortgages and deeds of trust
as may be necessary to ensure that, if this Lease were deemed to create a
security interest in the Leased Property in accordance with this Section, such
security interest would be deemed to be a perfected security interest of first
priority under Applicable Law and will be maintained as such throughout the
Lease Term.
(e) Without limiting any other remedies set forth in this Lease, in the
event that a court of competent jurisdiction rules that this Lease constitutes a
mortgage, deed of trust or other secured financing as is the intent of the
parties (to the extent that the transactions contemplated hereby are intended to
be a financing arrangement), then the Lessor and the Lessee agree that the
following terms shall apply:
(A) If an Event of Default has occurred and is continuing, the
Lessor may, either in person or by an agent or court-appointed receiver, and
without regard to the adequacy of its security:
(i) commence an action to foreclose this instrument or
specifically enforce any of the covenants hereof;
(ii) enter upon and take possession of the Leased Property or any
part thereof and do any acts which it deems necessary or desirable
(including without limitation the construction of improvements and the
making of alterations) to preserve the value, marketability or rentability
of the Leased Property or any part thereof or interest therein, increase
the income therefrom or protect the lien and security hereof;
(iii) with or without entering upon and taking possession of the
Leased Property (A) direct, or cause the Lessee to direct, all tenants or
other obligors under all leases to pay all rents directly to the Lessor,
(B) collect all rents as the same become due and payable, (C) take such
action as the Lessor shall deem necessary or desirable in order to enforce
the provisions of any lease and (D) amend, modify, extend, enter into or
terminate any lease or waive performance by any tenant or other obligor
thereunder of any provision thereof, in the name of the Lessee or
otherwise;
(iv) bring an appropriate action from time to time to recover any
sums required to be paid by the Lessee under the terms of this instrument
as they become due, without regard to whether or not any other sums
secured by this instrument shall be due, and without prejudice to the
right of the Lessor thereafter to bring an action of mortgage foreclosure,
or any other action, for any Event of Default existing at the time the
earlier action was commenced; or
(v) exercise any other remedy available to it hereunder, at law or
in equity.
(B) If an Event of Default shall have occurred and be continuing,
the Lessor, as a matter of right and without notice to the Lessee, shall have
the right to apply to any court having jurisdiction to appoint a receiver or
receivers of the Leased Property, and the Lessee hereby irrevocably consents to
any such appointment. Any such receiver(s) shall have all of the usual powers
and duties of receivers in like or similar cases and all of the powers and
duties of the Lessor in case of entry as provided above, and shall continue as
such and exercise such powers until the date of confirmation of the sale of the
Property unless such receivership is sooner terminated.
(f) SOLELY FOR THE PURPOSE OF OBTAINING POSSESSION OF THE SUBJECT
PROPERTY AT ANY TIME WHEN AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING,
THE LESSEE HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY, PROTHONOTARY
OR CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR
ELSEWHERE, AS ATTORNEY FOR THE LESSEE AND ALL PERSONS CLAIMING UNDER OR THROUGH
THE LESSEE, AS OF ANY TERM OR TIME, TO COMMENCE AN AMICABLE ACTION IN EJECTMENT
FOR POSSESSION OF THE LEASED PROPERTY AND TO APPEAR IN SUCH COURT FOR AND TO
CONFESS JUDGMENT AGAINST THE LESSEE, AND AGAINST ALL PERSONS CLAIMING UNDER OR
THROUGH THE LESSEE, IN FAVOR OF THE LESSOR, FOR RECOVERY BY THE LESSOR OF
POSSESSION THEREOF, FOR WHICH THIS INSTRUMENT, OR A COPY THEREOF VERIFIED BY
AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT; AND THEREUPON A WRIT OF POSSESSION MAY
IMMEDIATELY BE ISSUED FOR POSSESSION OF THE PROPERTY, WITHOUT ANY PRIOR WRIT OR
PROCEEDING WHATSOEVER, AND WITHOUT ANY STAY OF EXECUTION. THE LESSEE HEREBY
IRREVOCABLY WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND IN THE ENTRY
OF ANY JUDGMENT RESULTING THEREFROM, STAY OF EXECUTION, THE RIGHT OF INQUISITION
AND EXTENSION OF TIME OF PAYMENT. IF FOR ANY REASON AFTER SUCH ACTION HAS BEEN
COMMENCED IT SHALL BE DISCONTINUED, OR POSSESSION OF THE LEASED PROPERTY SHALL
REMAIN IN OR BE RESTORED TO THE LESSEE, THE LESSOR SHALL HAVE THE RIGHT FOR THE
SAME EVENT OF DEFAULT OR ANY SUBSEQUENT EVENT OF DEFAULT TO BRING ONE OR MORE
FURTHER AMICABLE ACTIONS AS ABOVE PROVIDED TO RECOVER POSSESSION OF THE LEASED
PROPERTY. THE LESSOR MAY BRING AN AMICABLE ACTION IN EJECTMENT AND CONFESS
JUDGMENT THEREIN BEFORE OR AFTER THE INSTITUTION OF PROCEEDINGS TO FORECLOSE
THIS INSTRUMENT, OR AFTER ENTRY OF JUDGMENT THEREIN, OR AFTER SHERIFF SALE OF
THE SUBJECT PROPERTY IN WHICH THE LESSOR IS THE SUCCESSFUL BIDDER. THE
AUTHORIZATION TO PURSUE SUCH PROCEEDINGS FOR OBTAINING POSSESSION AND TO CONFESS
JUDGMENT THEREIN IS AN ESSENTIAL PART OF THE REMEDIES FOR ENFORCEMENT OF THIS
INSTRUMENT AND SHALL SURVIVE ANY EXECUTION SALE TO THE LESSOR.
THE LESSEE EXPRESSLY ACKNOWLEDGES THAT THIS IS A COMMERCIAL
TRANSACTION, THAT THE FOREGOING PROVISION FOR CONFESSION OF JUDGMENT HAS BEEN
READ, UNDERSTOOD AND VOLUNTARILY AGREED TO BY THE LESSEE AND THAT BY AGREEING TO
SUCH PROVISION THE LESSEE IS WAIVING IMPORTANT LEGAL RIGHTS, INCLUDING ANY RIGHT
TO NOTICE OR A HEARING WHICH MIGHT OTHERWISE BE REQUIRED BEFORE ENTRY OF
JUDGMENT HEREUNDER.
(g) The Lessee hereby waives the benefit of all appraisement,
valuation, extension, reinstatement and redemption laws now or hereafter in
force and all rights of marshalling in the event of any sale of the Leased
Property or any interest therein. Notwithstanding the foregoing, should the
Lessor commence an action for the foreclosure of the mortgage created by this
Article XI, the Lessee shall have the right, at any time prior to the sale of
the Leased Property by the sheriff, to redeem the Leased Property by payment of
the Lease Balance and any other amounts due and owing by the Lessee to the Agent
or the Funding Parties under the Operative Documents.
(h) The Lessor shall be entitled to enforce payment of the
indebtedness and performance of the obligations secured hereby and to exercise
all rights and powers under this instrument or under any of the other Operative
Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the obligations secured hereby may now or
hereafter be otherwise secured, whether by mortgage, security agreement, pledge,
lien, assignment or otherwise. Neither the acceptance of this instrument nor its
enforcement, shall prejudice or in any manner affect the Lessor's right to
realize upon or enforce any other security now or hereafter held by the Lessor,
it being agreed that the Lessor shall be entitled to enforce this instrument and
any other security now or hereafter held by the Lessor in such order and manner
as the Lessor may determine in its absolute discretion. No remedy herein
conferred upon or reserved to the Lessor is intended to be exclusive of any
other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. Every power or remedy
given by any of the Operative Documents to the Lessor or to which it may
otherwise be entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by the Lessor. In no event
shall the Lessor, in the exercise of the remedies provided in this instrument
(including, without limitation, in connection with the assignment of rents to
Lessor, or the appointment of a receiver and the entry of such receiver on to
all or any part of the Leased Property), be deemed a "mortgagee in possession,"
and the Lessor shall not in any way be made liable for any act, either of
commission or omission, in connection with the exercise of such remedies, except
for its gross negligence and willful misconduct.
(i) (1) In the event that a court of competent jurisdiction rules that
this instrument constitutes a mortgage, deed of trust or other secured financing
as is the intent of the parties to the extent that the transactions contemplated
hereby are intended to be a financing arrangement, this instrument shall be
deemed to be an Open-End Mortgage as defined in 42 Pa. C.S.A. ' 8143(f) and, as
such, is entitled to the benefits of Senate ▇▇▇▇ 693, 1989 session of the
General Assembly of Pennsylvania (the "Act") as codified at 42 Pa. C.S.A. '8143
et seq. The parties to this instrument intend that, in addition to any other
debt or obligations secured hereby, this instrument shall secure unpaid balances
of advances made pursuant to the Operative Documents after this instrument is
left for recordation with the Recorder's Office of the County where the Leased
Property is located, whether such advances are made pursuant to an obligation of
the Lessor or otherwise. The maximum amount of unpaid indebtedness secured by
this instrument is $58,000,000.00, which indebtedness may consist of present and
future loans made under the Operative Documents, interest thereon, fees payable
pursuant thereto, advances made with respect to the Leased Property for the
payment of, among other things, taxes, assessments, maintenance charges,
insurance premiums and the like, and costs and expenses, including but not
limited to attorney's fees, incurred for the protection of the Leased Property
or the lien and security of this instrument or by reason of an Event of Default.
ARTICLE XIII.
EVENTS OF DEFAULT
The following events shall constitute Events of Default (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 Governmental
Authority):
(a) Lessee shall fail to make any payment of Basic Rent when due, and such
failure shall continue for three (3) or more Business Days;
(b) Lessee shall fail to make any payment of Rent (other than Basic Rent)
or any other amount payable hereunder or under any of the other Operative
Documents (other than Basic Rent and other than as set forth in clause (c)), and
such failure shall continue for a period of ten (10) days;
(c) Lessee shall fail to pay the Lease Balance when due pursuant to
Section 10.1, 10.2, 14.1 or 14.2, or Lessee shall fail to pay the Recourse
Deficiency Amount when required pursuant to Article XIV, or the Guarantor shall
fail to comply with Section 5.26 of the Master Agreement;
(d) Lessee shall fail to maintain insurance as required by Article VIII
hereof, and such failure shall continue until the earlier of (i) 30 days after
written notice thereof from Lessor and (ii) the day immediately preceding the
date on which any applicable insurance coverage would otherwise lapse or
terminate;
(e) the Guarantor or any of its Subsidiaries (including Lessee) shall (i)
default in the payment of any Debt the aggregate outstanding amount of which
Debt is in excess of $10,000,000 beyond the period of grace, if any, provided in
the instrument or agreement under which such Debt was created, (ii) default in
the payment of an amount due under a synthetic or other structured lease (other
than this Lease) the aggregate implied principal amount of which lease
calculated in accordance with applicable Federal income tax laws and regulations
is in excess of $10,000,000 beyond the period of grace, if any, provided in the
instrument or agreement under which such lease was created, or (iii) default in
the observance or performance of any other agreement or condition relating to
any such Debt or any such lease or contained in any instrument or agreement
evidencing, securing or relating thereto or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Debt or such lease (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt or any such lease to become due prior to
its stated maturity (any applicable grace period having expired);
(f) the Guarantor or any Subsidiary (including Lessee) shall (i) commence
a voluntary case under the federal bankruptcy laws (as now or hereafter in
effect), (ii) file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or composition for adjustment of debts, (iii) consent to or fail to contest
in a timely and appropriate manner any petition filed against it in an
involuntary case under such bankruptcy laws or other laws, (iv) apply for or
consent to, or fail to contest in a timely and appropriate manner, the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
or liquidator of itself or of a substantial part of its property, domestic or
foreign, (v) admit in writing its inability to pay its debts as they become due,
(vi) make a general assignment for the benefit of creditors, or (vii) take any
corporate action for the purpose of authorizing any of the foregoing;
(g) A case or other proceeding shall be commenced against the Guarantor or
any Subsidiary (including Lessee) in any court of competent jurisdiction seeking
(i) relief under the federal bankruptcy laws (as now or hereafter in effect) or
under any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or adjustment of debts, or (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like for Lessee or any
Subsidiary or for all or any substantial part of their respective assets,
domestic or foreign, and such case or proceeding shall continue undismissed or
unstayed for a period of sixty (60) consecutive days, or an order granting the
relief requested in such case or proceeding (including, but not limited to, an
order for relief under such federal bankruptcy laws) shall be entered;
(h) any representation or warranty by Lessee or the Guarantor in any
Operative Document or in any certificate or document delivered to Lessor, the
Agent or any Lender pursuant to any Operative Document shall have been incorrect
in any material respect when made;
(i) the Guarantor shall repudiate or terminate the Guaranty, or the
Guaranty shall at any time cease to be in full force and effect or cease to be
the legal, valid and binding obligation of Lessee;
(j) Lessee or the Guarantor shall fail in any material respect to timely,
perform or observe any covenant, condition or agreement (not included in clause
(a), (b), (c), (d), (e), (f), (g), (h) or (i) of this Article XII) 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 after Lessee's or the
Guarantor's, as the case may be, receipt of written notice thereof from Lessor,
the Agent or any Lender;
(k) Any person or group of persons (within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, as amended) shall obtain ownership or
control in one or more series of transactions of thirty percent (30%) or more of
the common stock or thirty percent (30%) or more of the voting power of the
Guarantor entitled to vote in the election of members of the board of directors
of the Guarantor or there shall have occurred under any indenture or other
instrument evidencing any Debt in excess of $10,000,000 any Achange in control@
(as defined in such indenture or other evidence of Debt) obligating the
Guarantor to repurchase, redeem or repay all or any part of the Debt provided
for therein (any such event, a AChange in Control@);
(l) The occurrence of any of the following events: (i) the Guarantor or
any ERISA Affiliate fails to make full payment when due of all amounts which,
under the provisions of any Pension Plan or Section 412 of the Code, the
Guarantor or any ERISA Affiliate is required to pay as contributions thereto,
except in cases in which a failure to make such payment is not reasonably likely
to result, in any given instance or in the aggregate, in liability of the
Guarantor or any ERISA Affiliate in excess of $25,000,000, (ii) an accumulated
funding deficiency in excess of $25,000,000 occurs or exists, whether or not
waived, with respect to any Pension Plan, (iii) a Termination Event or (iv) the
Guarantor or any ERISA Affiliate as employers under one or more Multiemployer
Plan makes a complete or partial withdrawal from any such Multiemployer Plan and
the plan sponsor of such Multiemployer Plans notifies such withdrawing employer
that such employer has incurred a withdrawal liability requiring payments in an
amount exceeding $25,000,000; and
(m) A judgment or order for the payment of money which causes the
aggregate amount of all such judgments to exceed $10,000,000 in any Fiscal Year
shall be entered against the Guarantor or any of its Subsidiaries (including
Lessee) by any court and such judgment or order shall continue undischarged or
unstayed for a period of thirty (30) days.
ARTICLE XIV.
ENFORCEMENT
Section XIV.1 Remedies. Upon the occurrence and during the continuance of
any Event of Default, Lessor may do one or more of the following as Lessor in
its sole discretion shall determine, without limiting any other right or remedy
Lessor may have on account of such Event of Default (including, without
limitation, the obligation of Lessee to purchase the Leased Property as set
forth in Section 14.3):
(a) Lessor may, by notice to Lessee, terminate this Lease as of the date
specified in such notice; however, (A) no reletting, reentry or taking of
possession of the Leased Property by Lessor will be construed as an election on
Lessor's part to terminate this Lease unless a written notice of such intention
is given to Lessee, (B) notwithstanding any reletting, reentry or taking of
possession, Lessor may at any time thereafter elect to terminate this Lease for
a continuing Event of Default, and (C) no act or thing done by Lessor or any of
its agents, representatives or employees and no agreement accepting a surrender
of the Leased Property shall be valid unless the same be made in writing and
executed by Lessor;
(b) Lessor may (i) demand that Lessee, and Lessee shall upon the written
demand of Lessor, return the Leased Property promptly to Lessor in the manner
and condition required by, and otherwise in accordance with all of the
provisions of, Articles VI and XIV hereof as if the Leased Property were being
returned at the end of the Lease Term, and Lessor shall not be liable for the
reimbursement of Lessee for any costs and expenses incurred by Lessee in
connection therewith and (ii) without prejudice to any other remedy which Lessor
may have for possession of the Leased Property, and to the extent and in the
manner permitted by Applicable Law, enter upon the Leased Property and take
immediate possession of (to the exclusion of Lessee) the Leased Property or any
part thereof and expel or remove Lessee and any other person who may be
occupying the Leased Property, by summary proceedings or otherwise, all without
liability to Lessee for or by reason of such entry or taking of possession,
whether for the restoration of damage to property caused by such taking or
otherwise and, in addition to Lessor's other damages, Lessee shall be
responsible for the actual and reasonable costs and expenses of reletting,
including brokers' fees and the reasonable costs of any alterations or repairs
made by Lessor;
(c) Lessor may (i) sell all or any part of the Leased Property at public
or private sale, as Lessor may determine, free and clear of any rights of Lessee
and, except as required by Applicable Law, without any duty to account to Lessee
with respect to such action or inaction or any proceeds with respect thereto
(except to the extent required by clause (ii) below if Lessor shall elect to
exercise its rights thereunder) in which event Lessee's obligation to pay Basic
Rent hereunder for periods commencing after the date of such sale shall be
terminated or proportionately reduced, as the case may be; and (ii) if Lessor
shall so elect, demand that Lessee pay to Lessor, and Lessee shall pay to
Lessor, on the date of such sale, as liquidated damages for loss of a bargain
and not as a penalty (the parties agreeing that Lessor's actual damages would be
difficult to predict, but the aforementioned liquidated damages represent a
reasonable approximation of such amount) (in lieu of Basic Rent due for periods
commencing on or after the Payment Date coinciding with such date of sale (or,
if the sale date is not a Payment Date, the Payment Date next preceding the date
of such sale)), an amount equal to (a) the excess, if any, of (1) the sum of (A)
all Rent due and unpaid to and including such Payment Date and (B) the Lease
Balance, computed as of such date, over (2) the net proceeds of such sale (that
is, after deducting all costs and expenses incurred by Lessor, the Agent or any
Lender incident to such conveyance (including, without limitation, all costs,
expenses, fees, premiums and taxes described in Section 14.5(b))); plus (b)
interest at the Overdue Rate on the foregoing amount from such Payment Date
until the date of payment;
(d) Lessor may, at its option, not terminate this Lease, and continue to
collect all Basic Rent, Supplemental Rent, and all other amounts (including,
without limitation, the Lease Balance) due Lessor (together with all costs of
collection) and enforce Lessee's obligations under this Lease as and when the
same become due, or are to be performed, and at the option of Lessor, upon any
abandonment of the Leased Property by Lessee or re-entry of same by Lessor,
Lessor may, in its sole and absolute discretion, elect not to terminate this
Lease with respect thereto and may make such reasonable alterations and
necessary repairs in order to relet the Leased Property, and relet the Leased
Property or any part thereof for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Lessor in its reasonable discretion may deem
advisable; and upon each such reletting all rentals actually received by Lessor
from such reletting shall be applied to Lessee's obligations hereunder in such
order, proportion and priority as Lessor may elect in Lessor's sole and absolute
discretion. If such rentals received from such reletting during any Rent Period
are less than the Rent to be paid during that Rent Period by Lessee hereunder,
Lessee shall pay any deficiency, as calculated by Lessor, to Lessor on the
Payment Date for such Rent Period;
(e) If the Leased Property has not been sold, Lessor may, whether or not
Lessor shall have exercised or shall thereafter at any time exercise any of its
rights under paragraph (b), (c) or (d) of this Article XIII with respect to the
Leased Property, demand, by written notice to Lessee specifying a date (the
"Final Rent Payment Date") not earlier than 30 days after the date of such
notice, that Lessee purchase, on the Final Rent Payment Date, the Leased
Property in accordance with the provisions of Sections 14.2, 14.4 and 14.5;
provided, however, that (1) such purchase shall occur on the date set forth in
such notice, notwithstanding the provision in Section 14.2 calling for such
purchase to occur on the Lease Termination Date; and (2) Lessor's obligations
under Section 14.5(a) shall be limited to delivery of a special warranty deed
and quit claim ▇▇▇▇ of sale of the Leased Property, without recourse or
warranty, but free and clear of Lessor Liens;
(f) Lessor may exercise any other right or remedy that may be available to
it under Applicable Law, or proceed by appropriate court action (legal or
equitable) to enforce the terms hereof or to recover damages for the breach
hereof. Separate suits may be brought to collect any such damages for any Rent
Period(s), and such suits shall not in any manner prejudice Lessor's right to
collect any such damages for any subsequent Rent Period(s), or Lessor may defer
any such suit until after the expiration of the Lease Term, in which event such
suit shall be deemed not to have accrued until the expiration of the Lease Term;
or
(g) Lessor may retain and apply against Lessor's damages all sums which
Lessor would, absent such Event of Default, be required to pay to, or turn over
to, Lessee pursuant to the terms of this Lease.
Section XIV.2 Remedies Cumulative; Redemption Right; No Waiver; Consen.
To the extent permitted by, and subject to the mandatory requirements of,
Applicable Law, each and every right, power and remedy herein specifically given
to Lessor or otherwise in this Lease shall be cumulative and shall be in
addition to every other right, power and remedy herein specifically given or now
or hereafter existing at law, in equity or by statute, and each and every right,
power and remedy whether specifically herein given or otherwise existing may be
exercised from time to time and as often and in such order as may be deemed
expedient by Lessor, and the exercise or the beginning of the exercise of any
power or remedy shall not be construed to be a waiver of the right to exercise
at the same time or thereafter any right, power or remedy. Notwithstanding the
foregoing or any provision of Article XI, so long as Lessee purchases the Leased
Property in accordance with Sections 14.2, 14.4 and 14.5 (including the payment
of the Lease Balance in cash) prior to the sale of the Leased Property by the
sheriff, the Lessor shall have neither the right to conclude the sheriff's sale
nor the right to exercise any other remedy set forth in Article XI or Section
13.1. No delay or omission by Lessor in the exercise of any right, power or
remedy or in the pursuit of any remedy shall impair any such right, power or
remedy or be construed to be a waiver of any default on the part of Lessee or to
be an acquiescence therein. Lessor's consent to any request made by Lessee shall
not be deemed to constitute or preclude the necessity for obtaining Lessor's
consent, in the future, to all similar requests. No express or implied waiver by
Lessor of any Event of Default shall in any way be, or be construed to be, a
waiver of any future or subsequent Potential Event of Default or Event of
Default. To the extent permitted by Applicable Law, Lessee hereby waives any
rights now or hereafter conferred by statute or otherwise that may require
Lessor to sell, lease or otherwise use the Leased Property or part thereof in
mitigation of Lessor's damages upon the occurrence of an Event of Default or
that may otherwise limit or modify any of Lessor's rights or remedies under this
Article XIII.
ARTICLE XV.
SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL
Section XV.1 Lessee's Option to Purchase. Subject to the terms, conditions
and provisions set forth in this Article XIV, Lessee shall have the option (the
"Purchase Option"), to be exercised as set forth below, to purchase from Lessor,
Lessor's interest in the Leased Property. Such option must be exercised by
written notice to Lessor not later than twelve months prior to the Lease
Termination Date which notice shall be irrevocable; such notice shall specify
the date that such purchase shall take place, which date shall be a date
occurring not less than thirty (30) days after such notice or the Lease
Termination Date (whichever is earlier). If the Purchase Option is exercised
pursuant to the foregoing, then, subject to the provisions set forth in this
Article XIV, on the applicable purchase date or the Lease Termination Date, as
the case may be, Lessor shall convey to Lessee, and Lessee shall purchase from
Lessor, Lessor's interest in the Leased Property in accordance with Section
14.5.
Section XV.2 Conveyance to Lessee. Unless (a) Lessee shall have properly
exercised the Purchase Option and purchased the Leased Property pursuant to
Section 14.1 hereof, or (b) Lessee shall have properly exercised the Remarketing
Option or the Surrender Option and shall have fulfilled all of the conditions of
Section 14.6 hereof, then, subject to the terms, conditions and provisions set
forth in this Article XIV, Lessee shall purchase from Lessor, and Lessor shall
convey to Lessee, on the Lease Termination Date all of Lessor's interest in the
Leased Property in accordance with Section 14.5. Lessee may designate, in a
notice given to Lessor not less than ten (10) Business Days prior to the closing
of such purchase (time being of the essence), the transferee to whom the
conveyance shall be made (if other than to Lessee), in which case such
conveyance shall (subject to the terms and conditions set forth herein) be made
to such designee; provided, however, that such designation of a transferee shall
not cause Lessee to be released, fully or partially, from any of its obligations
under this Lease.
Section XV.3 Acceleration of Purchase Obligation. Lessee shall be
obligated to purchase Lessor's interest in the Leased Property immediately,
automatically and without notice upon the occurrence of any Event of Default
specified in clause (f) or (g) of Article XII, for the purchase price set forth
in Section 14.4. Upon the occurrence and during the continuance of any other
Event of Default, Lessee shall be obligated to purchase Lessor's interest in the
Leased Property for the purchase price set forth in Section 14.4 upon notice of
such obligation from Lessor.
Section XV.4 Determination of Purchase Price. Upon the purchase by Lessee
of Lessor's interest in the Leased Property upon the exercise of the Purchase
Option or pursuant to Section 14.2 or 14.3, the purchase price for the Leased
Property shall be an amount equal to the Lease Balance as of the closing date
for such purchase, plus any amount due pursuant to Section 7.5 of the Master
Agreement as a result of such purchase.
Section XV.5 Purchase Procedure. (a) If Lessee shall purchase Lessor's
interest in the Leased Property pursuant to any provision of this Lease, (i)
Lessee shall accept from Lessor and Lessor shall convey the Leased Property by a
duly executed and acknowledged special warranty deed and quit claim ▇▇▇▇ of sale
of the Leased Property in recordable form, (ii) upon the date fixed for any
purchase of Lessor's interest in the Leased Property hereunder, Lessee shall pay
to the order of the Agent the Lease Balance, plus any amount due pursuant to
Section 7.5 of the Master Agreement as a result of such purchase by wire
transfer of immediately available funds, and (iii) Lessor will execute and
deliver to Lessee such other documents, including releases, termination
agreements and termination statements, as may be legally required or as may be
reasonably requested by Lessee in order to effect such conveyance, free and
clear of Lessor Liens and the Liens of the Operative Documents.
(b) Lessee shall, at Lessee's sole cost and expense, obtain all required
governmental and regulatory approval and consents and shall make such filings as
required by Applicable Law, and Lessor shall cooperate with Lessee upon Lessor's
request in connection therewith; in the event that Lessor is required by
Applicable Law to take any action in connection with such purchase and sale,
Lessee shall pay all costs incurred by Lessor in connection therewith. In
addition, all charges incident to such conveyance, including, without
limitation, Lessee's reasonable attorneys' fees, Lessor's reasonable attorneys'
fees, commissions, Lessee's and Lessor's escrow fees, recording fees, title
insurance premiums and all applicable documentary transfer or other transfer
taxes and other taxes required to be paid in order to record the transfer
documents that might be imposed by reason of such conveyance and the delivery of
such deed shall be borne entirely and paid by Lessee.
(c) Upon expiration or termination of this Lease resulting in conveyance
of Lessor's interest in the title to the Leased Property to Lessee, there shall
be no apportionment of rents (including, without limitation, water rents and
sewer rents), taxes, insurance, utility charges or other charges payable with
respect to the Leased Property, all of such rents, taxes, insurance, utility or
other charges due and payable with respect to the Leased Property prior to
termination being payable by Lessee hereunder and all due after such time being
payable by Lessee as the then owner of the Leased Property.
Section XV.6 Option to Remarket; Surrender Option. Subject to the
fulfillment of each of the conditions set forth in this Section 14.6, Lessee
shall have the option to either (i) market the Leased Property for Lessor (the
"Remarketing Option") or (ii) surrender the Leased Property to Lessor (the
"Surrender Option").
Lessee's effective exercise and consummation of the Remarketing Option or
the Surrender Option, as the case may be, shall be subject to the due and timely
fulfillment of each of the following provisions, the failure of any of which
shall render the Remarketing Option or the Surrender Option, as the case may be,
and Lessee's exercise thereof null and void, in which event, Lessee shall be
obligated to perform its obligations under Section 14.2.
(a) Not later than twelve months prior to the Lease Termination
Date, Lessee shall give to Lessor and the Agent written notice of Lessee's
exercise of the Remarketing Option or the Surrender Option, as the case
may be, which exercise shall be irrevocable and shall state whether Lessee
has exercised the Remarketing Option or the Surrender Option.
(b) Not later than ten (10) Business Days prior to the Lease
Termination Date, Lessee shall deliver to Lessor and the Agent an
environmental assessment of the Leased Property dated not later than
forty-five (45) days prior to the Lease Termination Date. Such
environmental assessment shall be prepared by an environmental consultant
approved by the Required Funding Parties, shall be in form, detail and
substance reasonably satisfactory to the Required Funding Parties, and
shall otherwise indicate the environmental condition of the Leased
Property to be the same as described in the Environmental Audit.
(c) On the date of Lessee's notice to Lessor and the Agent of
Lessee's exercise of the Remarketing Option or the Surrender Option, as
the case may be, no Event of Default or Potential Event of Default shall
exist, and thereafter, no Event of Default or Potential Event of Default
shall exist under this Lease.
(d) Lessee shall have completed all Alterations, restoration and
rebuilding of the Leased Property pursuant to Sections 6.1, 6.2, 10.3 and
10.4 (as the case may be) and shall have fulfilled all of the conditions
and requirements in connection therewith pursuant to said Sections, in
each case by the date on which Lessor and the Agent receive Lessee's
notice of Lessee's exercise of the Remarketing Option or the Surrender
Option, as the case may be (time being of the essence), regardless of
whether the same shall be within Lessee's control.
(e) Lessee shall promptly provide any maintenance records relating
to the Leased Property to Lessor, the Agent and any potential purchaser
upon request, and shall otherwise do all things necessary to deliver
possession of the Leased Property to the purchaser. Lessee shall allow
Lessor, the Agent and any potential purchaser access to the Leased
Property for the purpose of inspecting the same during regular business
hours (or as otherwise agreed by Lessee).
(f) On the Lease Termination Date, Lessee shall surrender the Leased
Property in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Property pursuant
to the Remarketing Option, Lessee will provide to the purchaser all
customary "seller's" indemnities, representations and warranties regarding
title, absence of Liens (except Lessor Liens) and the condition of the
Leased Property, including, without limitation, an environmental indemnity
identical in all material respects to the environmental indemnity set
forth in Section 7.2 of the Master Agreement. Lessee shall fulfill all of
the requirements set forth in clause (b) of Section 14.5, and such
requirements are incorporated herein by reference. As to Lessor, any such
sale shall be made on an "as is, with all faults" basis without
representation or warranty by Lessor, other than the absence of Lessor
Liens.
(h) In connection with any such sale of Leased Property, Lessee
shall pay directly, and not from the sale proceeds, all prorations,
credits, costs and expenses of the sale of the Leased Property, whether
incurred by Lessor, any Lender, the Agent or Lessee, including without
limitation, the cost of all title insurance, surveys, environmental
reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys'
fees, Lessee's attorneys' fees, commissions, escrow fees, recording fees,
and all applicable documentary and other transfer taxes.
(i) Lessee shall pay to the Agent on the Lease Termination Date (or
to such other Person as Agent shall notify Lessee in writing, or in the
case of Supplemental Rent, to the Person entitled thereto) an amount equal
to the Recourse Deficiency Amount, plus all Basic Rent and Supplemental
Rent, and all other amounts hereunder which have accrued prior to or as of
such date and remain unpaid, in the type of funds specified in Section 3.3
hereof.
If Lessee has exercised the Remarketing Option, the following additional
provisions shall apply: During the period commencing on the date twelve months
prior to the scheduled expiration of the Lease Term, Lessee shall, as
nonexclusive agent for Lessor, use commercially reasonable efforts to sell
Lessor's interest in the Leased Property and will attempt to obtain the highest
purchase price therefor. All such marketing of the Leased Property shall be at
Lessee's sole expense. Lessee shall submit all bids to Lessor and the Agent and
Lessor and the Agent will have the right to review the same and the right to
submit any one or more bids. All bids shall be on an all-cash basis. In no event
shall the Agent be required to accept a bid submitted by Lessee or any
Subsidiary or Affiliate of Lessee. The written offer must specify the Lease
Termination Date as the closing date. If, and only if, the selling price (net of
closing costs and prorations, as reasonably estimated by the Agent) is less than
an amount equal to the Lease Balance at such time minus the Recourse Deficiency
Amount, then Lessor or the Agent may, in its sole and absolute discretion, by
notice to Lessee, reject such offer to purchase, in which event the parties will
proceed according to the provisions of Section 14.7 [Rejection of Sale] hereof.
If neither Lessor nor the Agent rejects such purchase offer as provided above,
the closing of such purchase of the Leased Property by such purchaser shall
occur on the Lease Termination Date, contemporaneously with Lessee's surrender
of the Leased Property in accordance with Section 14.8 hereof, and the gross
proceeds of the sale (i.e., without deduction for any marketing, closing or
other costs, prorations or commissions) shall be paid directly to the Agent;
provided, however, that if the sum of the gross proceeds from such sale plus the
Recourse Deficiency Amount paid by Lessee on the Lease Termination Date pursuant
to Section 14.6(i), minus any and all costs and expenses (including broker fees,
appraisal costs, legal fees and transfer taxes) incurred by the Agent or Lessor
in connection with the marketing of the Leased Property or the sale thereof
exceeds the Lease Balance as of such date, then the excess shall be paid to
Lessee on the Lease Termination Date. Lessee shall have no right, power or
authority to bind Lessor in connection with any proposed sale of the Leased
Property.
Section XV.7 Rejection of Sale. Notwithstanding anything contained
herein to the contrary, if Lessor or the Agent rejects the purchase offer for
the Leased Property as provided in Section 14.6, then (a) Lessee shall pay to
the Agent the Recourse Deficiency Amount pursuant to Section 14.6(i), (b) Lessor
shall retain title to the Leased Property, and (c) in addition to Lessee's other
obligations hereunder, Lessee will reimburse Lessor and the Agent, within ten
(10) Business Days after written request, for all reasonable costs and expenses
incurred by Lessor or Agent during the period ending on the first anniversary of
the Lease Termination Date in connection with the marketing, sale, closing or
transfer of the Leased Property, which obligation shall survive the Lease
Termination Date and the termination or expiration of this Lease.
Section XV.8 Return of Leased Property. If Lessor retains title to the
Leased Property pursuant to Section 14.7 hereof or Lessee has properly exercised
the Surrender Option, then Lessee shall, on the Lease Termination Date, and at
its own expense, return possession of the Leased Property to Lessor for
retention by Lessor or, if Lessee properly exercises the Remarketing Option and
fulfills all of the conditions of Section 14.6 hereof and neither Lessor nor the
Agent rejects such purchase offer pursuant to Section 14.6, then Lessee shall,
on such Lease Termination Date, and at its own cost, transfer possession of the
Leased Property to the independent purchaser thereof, in each case by
surrendering the same into the possession of Lessor or such purchaser, as the
case may be, free and clear of all Liens other than Lessor Liens, in as good
condition as it was on the Closing Date (as modified by Alterations permitted by
this Lease), ordinary wear and tear excepted, and in compliance in all material
respects with Applicable Law. Lessee shall, on and within a reasonable time
before and after the Lease Termination Date, cooperate with Lessor and the
independent purchaser of the Leased Property in order to facilitate the
ownership and operation by such purchaser of the Leased Property after the Lease
Termination Date, which cooperation shall include the following, all of which
Lessee shall do on or before the Lease Termination Date or as soon thereafter as
is reasonably practicable: providing all available books and records regarding
the maintenance and ownership of the Leased Property and all know-how, data and
technical information relating thereto, providing a copy of the plans and
specifications for all of the Buildings, granting or assigning all licenses (to
the extent assignable) necessary for the operation and maintenance of the Leased
Property, and cooperating in seeking and obtaining all necessary Governmental
Action. Lessee shall have also paid the cost of all Alterations commenced prior
to the Lease Termination Date. The obligations of Lessee under this Article XIV
shall survive the expiration or termination of this Lease.
Section XV.9 Renewal. Subject to the conditions set forth herein, Lessee
may, by written notice to Lessor and the Agent given not later than twelve
months and not earlier than sixteen months, prior to the Lease Termination Date
then in effect, renew this Lease, for up to five years commencing on the date
following the Lease Termination Date then in effect, provided that Lessee may
only exercise such renewal option two times. No later than the date that is 45
days after the date the request to renew has been delivered to each of Lessor
and the Agent, the Agent will notify Lessee whether or not Lessor and the
Lenders consent to such renewal request (which consent, in the case of Lessor
and the Lenders, may be granted or denied in their sole discretion, and may be
conditioned on such conditions precedent as may be specified by Lessor and the
Lenders). If the Agent fails to respond within such time frame, such failure
shall be deemed to be a rejection of such request. If the Agent notifies Lessee
of Lessor's and the Lenders' consent to such renewal, such renewal shall be
effective.
ARTICLE XVI.
LESSEE'S EQUIPMENT
After any repossession of the Leased Property (whether or not this Lease
has been terminated), as a result of the exercise of the Surrender Option or
otherwise, Lessee, at its expense and so long as such removal of such Alteration
shall not result in a violation of Applicable Law, shall, within a reasonable
time after such repossession or within sixty (60) days after Lessee's receipt of
Lessor's written request (whichever shall first occur), remove all of Lessee's
trade fixtures, refrigeration equipment, racking, conveyor systems, personal
property and equipment from the Leased Property (to the extent that the same can
be readily removed from the Leased Property without causing material damage to
the Leased Property); provided, however, that Lessee shall not remove any such
trade fixtures, refrigeration equipment, racking, conveyor systems, personal
property or equipment that has been financed by Lessor under the Operative
Documents or otherwise constituting Leased Property (or that constitutes a
replacement of such property). Any of Lessee's trade fixtures, refrigeration
equipment, racking, conveyor systems, personal property and equipment not so
removed by Lessee within such period shall be considered abandoned by Lessee,
and title thereto shall without further act vest in Lessor, and may be
appropriated, sold, destroyed or otherwise disposed of by Lessor without notice
to Lessee and without obligation to account therefor and Lessee will pay Lessor,
upon written demand, all reasonable costs and expenses incurred by Lessor in
removing, storing or disposing of the same and all costs and expenses incurred
by Lessor to repair any damage to the Leased Property caused by such removal.
Lessee will immediately repair at its expense all damage to the Leased Property
caused by any such removal (unless such removal is effected by Lessor, in which
event Lessee shall pay all reasonable costs and expenses incurred by Lessor for
such repairs). Lessor shall have no liability in exercising Lessor's rights
under this Article XV, nor shall Lessor be responsible for any loss of or damage
to Lessee's personal property and equipment, except for loss or damage resulting
from Lessor's gross negligence or willful misconduct.
ARTICLE XVII.
RIGHT TO PERFORM FOR LESSEE
If Lessee shall fail to perform or comply with any of its agreements
contained herein, Lessor may perform or comply with such agreement (provided
that, unless there is imminent danger of cancellation or termination of
insurance, or forfeiture or material damage to the Leased Property or Lessor's
interest therein, Lessor shall give Guarantor five (5) Business Days' prior
notice of its intent to so perform or comply), and Lessor shall not thereby be
deemed to have waived any default caused by such failure, and the amount of such
payment and the amount of the expenses of Lessor (including actual and
reasonable attorneys' fees and expenses) incurred in connection with such
payment or the performance of or compliance with such agreement, as the case may
be, shall be deemed Supplemental Rent, payable by Lessee to Lessor within thirty
(30) days after written demand therefor.
ARTICLE XVIII.
MISCELLANEOUS
Section XVIII.1 Reports. To the extent required under Applicable Law and
to the extent it is reasonably practical for Lessee to do so, Lessee shall
prepare and file in timely fashion, or, where such filing is required to be made
by Lessor or it is otherwise not reasonably practical for Lessee to make such
filing, Lessee shall prepare and deliver to Lessor (with a copy to the Agent)
within a reasonable time prior to the date for filing and Lessor shall file, any
material reports with respect to the condition or operation of the Leased
Property that shall be required to be filed with any Governmental Authority.
Section XVIII.2 Binding Effect; Successors and Assigns; Survival. The
terms and provisions of this Lease, and the respective rights and obligations
hereunder of Lessor and Lessee, shall be binding upon their respective
successors, legal representatives and assigns (including, in the case of Lessor,
any Person to whom Lessor may transfer any Leased Property or any interest
therein in accordance with the provisions of the Operative Documents), and inure
to the benefit of their respective permitted successors and assigns, and the
rights hereunder of the Agent and the Lenders shall inure (subject to such
conditions as are contained herein) to the benefit of their respective permitted
successors and assigns. Lessee hereby acknowledges that Lessor has assigned all
of its right, title and interest to, in and under this Lease to the Agent and
the Lenders, and that all of Lessor's rights hereunder may be exercised by the
Agent so long as any Lender's Funded Amount remains unpaid in whole or in part.
Section XVIII.3 Quiet Enjoyment. Lessor covenants that it will not
interfere in Lessee's or any of its permitted sublessees' quiet use and
enjoyment of the Leased Property in accordance with this Lease during the Lease
Term, so long as no Event of Default has occurred and is continuing. Such right
of quiet use and enjoyment is independent of, and shall not affect, Lessor's
rights otherwise to initiate legal action to enforce the obligations of Lessee
under this Lease.
Section XVIII.4 Notices. Unless otherwise specified herein, all notices,
offers, acceptances, rejections, consents, requests, demands or other
communications to or upon the respective parties hereto shall be in writing and
shall be deemed to have been given as set forth in Section 8.2 of the Master
Agreement. All such notices, offers, acceptances, rejections, consents,
requests, demands or other communications shall be addressed as follows or to
such other address as any of the parties hereto may designate by written notice:
If to Lessee:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Richfood Holdings, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
If to Lessor:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Section XVIII.5 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 Law, Lessee hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
Section XVIII.6 Amendment; Complete Agreemetns. Neither this Lease nor any
of the terms hereof may be terminated, amended, supplemented, waived or modified
orally, except by an instrument in writing signed by Lessor and Lessee in
accordance with the provisions of Section 8.4 of the Master Agreement. This
Lease, together with the other Operative Documents, is intended by the parties
as a final expression of their lease agreement and as a complete and exclusive
statement of the terms thereof, all negotiations, considerations and
representations between the parties having been incorporated herein 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 XVIII.7 Construction. This Lease shall not be construed more
strictly against any one party, it being recognized that both of the parties
hereto have contributed substantially and materially to the preparation and
negotiation of this Lease.
Section XVIII.8 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 XVIII.9 Counterparts. Subject to Section 17.18, this Lease may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section XVIII.10 GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES, EXCEPT AS TO MATTERS RELATING TO
THE CREATION OF THE LEASEHOLD ESTATES HEREUNDER AND THE EXERCISE OF RIGHTS AND
REMEDIES WITH RESPECT THERETO, WHICH SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA. WITHOUT LIMITING
THE FOREGOING, IN THE EVENT THAT THIS LEASE IS DEEMED TO CONSTITUTE A FINANCING,
THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES, SHALL GOVERN THE CREATION, TERMS AND PROVISIONS OF THE INDEBTEDNESS
EVIDENCED HEREBY, BUT THE LIEN CREATED HEREBY AND THE ENFORCEMENT OF SAID LIEN
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF PENNSYLVANIA.
Section XVIII.11 Discharge of Lessee's Obligations by its Affiliates.
Lessor agrees that performance of any of Lessee's obligations ates hereunder by
one or more of Lessee's Affiliates or one or more of Lessee's sublessees of the
Leased Property or any part thereof shall constitute performance by Lessee of
such obligations to the same extent and with the same effect hereunder as if
such obligations were performed by Lessee, but no such performance shall excuse
Lessee from any obligation not performed by it or on its behalf under the
Operative Documents.
Section XVIII.12 Liability of Lessor Limited. Except as otherwise
expressly provided below in this Section 17.12, it is expressly understood and
agreed by and between Lessee, Lessor and their respective successors and assigns
that nothing herein contained shall be construed as creating any liability of
Lessor or any of its Affiliates or any of their respective officers, directors,
employees or agents, individually or personally, to perform any covenant, either
express or implied, contained herein, all such liability, if any, being
expressly waived by Lessee and by each and every Person now or hereafter
claiming by, through or under Lessee, and that, so far as Lessor or any of its
Affiliates or any of their respective officers, directors, employees or agents,
individually or personally, is concerned, Lessee and any Person claiming by,
through or under Lessee shall look solely to the right, title and interest of
Lessor in the Leased Property and any proceeds from Lessor's sale or encumbrance
thereof (provided, however, that Lessee shall not be entitled to any double
recovery) for the performance of any obligation under this Lease and under the
Operative Documents and the satisfaction of any liability arising therefrom,
provided that Lessor shall be liable for actual damages resulting from its or
any of its Affiliate's gross negligence, willful misconduct, misrepresentation
and breach of its covenants set forth in Section 5.29 or 5.30 of the Master
Agreement.
Sectin XVIII.13 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 purchaser has signed a commitment or letter of
intent to purchase the Leased Property or any part thereof or any Note),
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) 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 default by either party 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) whether or not, to the actual
knowledge of the signer, there are any setoffs, defenses or counterclaims
against enforcement of the obligations to be performed hereunder existing in
favor of the party executing such certificate 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.
Section XVIII.14 No Joint Venture. Any intention to create a joint venture
or partnership relation between Lessor and Lessee is hereby expressly
disclaimed.
Section XVIII.15 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 Lessor specifically deems it as such in writing.
Section XVIII.16 No Merger. In no event shall the leasehold interests,
estates or rights of Lessee hereunder, or of the holder of any Notes secured by
a security interest in this Lease, merge with any interests, estates or rights
of Lessor in or to the Leased Property, it being understood that such leasehold
interests, estates and rights of Lessee hereunder, and of the holder of any
Notes secured by a security interest in this Lease, shall be deemed to be
separate and distinct from Lessor's interests, estates and rights in or to the
Leased Property, notwithstanding that any such interests, estates or rights
shall at any time or times be held by or vested in the same person, corporation
or other entity.
Section XVIII.17 Survival. The obligations of Lessee to be performed under
this Lease prior to the Lease Termination Date and the obligations of Lessee
pursuant to Article III, Articles X, XI, XIII, Sections 14.2, 14.3, 14.4, 14.5,
14.8, Articles XIV, XV, and XVI, and Sections 17.10 and 17.12 shall survive the
expiration or termination of this Lease. The extension of any applicable statute
of limitations by Lessor, Lessee, the Agent or any Indemnitee shall not affect
such survival.
Section XVIII.18 Chattel Paper. To the extent that this Lease constitutes
chattel paper (as such term is defined in the Uniform Commercial Code 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
counterpart, which shall be identified as the original counterpart by the
receipt of the Agent.
Section XVIII.19 Time of Essence. Time is of the essence of this Lease.
Section XVIII.20 Recordation of Lease. Lessee will, at its expense, cause
this Lease or memorandum of lease (if permitted by Applicable Law) to be
recorded in the proper office or offices in the States and the municipalities in
which the Land is located. Lessor agrees to execute and deliver a memorandum of
lease, provided it is reasonably satisfactory to Lessor.
Section XVIII.21 Investment of Security Funds. Any amounts not payable to
Lessee pursuant to any provision of Article VIII, X or XIV or this Section 17.21
solely because an Event of Default shall have occurred and be continuing shall
be held by the Agent as security for the obligations of Lessee under this Lease
and the Master Agreement. At such time as no Event of Default shall be
continuing, such amounts, net of any amounts previously applied to Lessee's
obligations hereunder or under the Master Agreement, shall be paid to Lessee.
Any such amounts which are held by the Agent pending payment to Lessee shall
until paid to Lessee, as provided hereunder or, as long as the Loan Agreement is
in effect, until applied against Lessee's obligations herein and under the
Master Agreement and distributed as provided in the Loan Agreement or herein
(after the Loan Agreement is no longer in effect) in connection with any
exercise of remedies hereunder, be invested by the Agent or Lessor, as the case
may be as directed from time to time in writing by Lessee (provided, however, if
an Event of Default has occurred and is continuing it will be directed by the
Agent) and at the expense and risk of Lessee, in investments approved by the
Agent. 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 in the same manner as the
principal invested.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned have each caused this Lease Agreement
to be duly executed and delivered and attested by their respective officers
thereunto duly authorized as of the day and year first above written.
Witnessed by: SUPER RITE FOODS, INC.
as Lessee
__________________________ By____________________________
Name: Name:
Title:
__________________________
Name:
ATLANTIC FINANCIAL GROUP, LTD., as Lessor
By: Atlantic Financial Managers,
Witnessed by: Inc., its General Partner
__________________________ By____________________________
Name: Name:
Title:
___________________________
Name:
STATE OF
: SS:
COUNTY OF :
On this, the day of , 1998, before me, a Notary Public in
and for the above-named State and County, the undersigned officer, personally
appeared , who acknowledged self to be the of
Atlantic Financial Managers, Inc., a Texas corporation and the general partner
of Atlantic Financial Group, Ltd., a Texas limited partnership, and that s/he as
such officer, being authorized to do so, executed the foregoing instrument for
the purpose therein contained by signing the name of the limited partnership
by self as the of its corporate general partner.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_____________________
Notary Public
(SEAL)
My commission expires: _________________________
STATE OF )
) SS.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the state aforesaid and in the county aforesaid to take acknowledgments,
personally appeared _____________ and ________________________, to me known to
be the _______ of SUPER RITE FOODS, INC., a Delaware corporation, who are
described in and who executed the foregoing instrument and who are either
personally known to me or produced ___________ as identification, and who
acknowledged before me that they executed the same for the purposes expressed
therein.
WITNESS my hand and official seal in the county and state aforesaid this
__________ day of April, 1998.
(Notary Signature)
(NOTARY SEAL)
(Notary Name Printed)
NOTARY PUBLIC
APPENDIX A
to
Master Agreement, Lease and
Loan Agreement
DEFINITIONS AND INTERPRETATION
A. Interpretation. In each Operative Document, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and vice
versa;
(ii) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by the Operative Documents;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative Document),
document or instrument means such agreement, document or instrument as
amended, supplemented or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms of the
other Operative Documents and reference to any promissory note includes
any promissory note which is an extension or renewal thereof or a
substitute or replacement therefor;
(v) reference to any Applicable Law means such Applicable Law as
amended, modified, codified, replaced or reenacted, in whole or in part,
and in effect from time to time, including rules and regulations
promulgated thereunder and reference to any section or other provision of
any Applicable Law means that provision of such Applicable Law from time
to time in effect and constituting the substantive amendment,
modification, codification, replacement or reenactment of such section or
other provision;
(vi) reference in any Operative Document to any Article, Section,
Appendix, Schedule or Exhibit means such Article or Section thereof or
Appendix, Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar import
shall be deemed references to an Operative Document as a whole and not to
any particular Article, Section or other provision hereof;
(viii) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding
such term;
(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time, "from"
means "from and including" and "to" means "to but excluding".
C. Accounting Terms. In each Operative Document, unless expressly
otherwise provided, accounting terms shall be construed and interpreted, and
accounting determinations and computations shall be made, in accordance with
GAAP.
D. Conflict in Operative Documents. If there is any conflict between any
Operative Documents, such Operative Document shall be interpreted and construed,
if possible, so as to avoid or minimize such conflict but, to the extent (and
only to the extent) of such conflict, the Master Agreement shall prevail and
control.
E. Legal Representation of the Parties. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring the Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
F. Defined Terms. Unless a clear contrary intention appears, terms defined
herein have the respective indicated meanings when used in each Operative
Document.
"A Loan" means the A Percentage of the aggregate Fundings made pursuant to
the Loan Agreement and the Master Agreement.
"A Note" is defined in Section 2.2 of the Loan Agreement.
"A Percentage" means 85%.
"Address" means with respect to any Person, its address set forth in
Schedule 8.2 to the Master Agreement or such other address as it shall have
identified to the parties to the Master Agreement in writing.
"Adjusted LIBOR Rate" means the LIBOR Rate adjusted to include (if imposed
upon any Funding Party) the cost, in basis points, of any applicable reserve
requirements of the Board of Governors of the Federal Reserve System (or any
successor), applicable to "Eurocurrency Liabilities" pursuant to Regulation D or
other then-applicable regulations of the Board of Governors.
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary of such first Person) which directly or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, such first Person or any of its Subsidiaries. The term "control"
means (a) the power to vote five percent (5%) or more of the securities or other
equity interests of a Person having ordinary voting power, or (b) the
possession, directly or indirectly, of any other power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"After-Tax Basis" means (a) with respect to any payment to be received by
an Indemnitee (which, for purposes of this definition, shall include any Tax
Indemnitee), the amount of such payment supplemented by a further payment or
payments so that, after deducting from such payments the amount of all Taxes
(net of any current credits, deductions or other Tax benefits arising from the
payment by the Indemnitee of any amount, including Taxes, for which the payment
to be received is made) imposed currently on the Indemnitee by any Governmental
Authority or taxing authority with respect to such payments, the balance of such
payments shall be equal to the original payment to be received and (b) with
respect to any payment to be made by any Indemnitee, the amount of such payment
supplemented by a further payment or payments so that, after increasing such
payment by the amount of any current credits or other Tax benefits realized by
the Indemnitee under the laws of any Governmental Authority or taxing authority
resulting from the making of such payments, the sum of such payments (net of
such credits or benefits) shall be equal to the original payment to be made;
provided, however, for the purposes of this definition, and for purposes of any
payment to be made to either the Lessee or an Indemnitee on an after-tax basis,
it shall be assumed that (i) federal, state and local taxes are payable at the
highest combined marginal federal and state statutory income tax rate (taking
into account the deductibility of state income taxes for federal income tax
purposes) applicable to corporations from time to time and (ii) such Indemnitee
or the Lessee has sufficient income to utilize any deductions, credits (other
than foreign tax credits, the use of which shall be determined on an actual
basis) and other Tax benefits arising from any payments described in clause (b)
of this definition.
"Agent" means SunTrust Bank, Atlanta, a Georgia banking corporation, in
its capacity as agent under the Master Agreement and the Loan Agreement.
"Alterations" means fixtures, alterations, improvements, modifications
and additions to the Leased Property.
"Applicable Law" means all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"Applicable Margin" means (i) means on the Closing Date, Category 5 and
(ii) thereafter shall be determined by reference to the Consolidated Funded Debt
to Consolidated EBITDA ratio of the Guarantor in accordance with the following
table:
Consolidated Funded Debt to Applicable
Consolidated EBITDA Ratio Category Applicable Margin
Base Rate + LIBOR Rate +
Less than or equal to Category 1 0% .400%
2.0 to 1
Greater than 2.0 to 1 Category 2 0% .500%
but less than or
equal to 2.5 to 1
Greater than 2.5 to 1 Category 3 0% .625%
but less than or
equal to 3.0 to 1
Greater than 3.0 to 1 Category 4 0% .750%
but less than or
equal to 3.5 to 1
Greater than 3.5 to 1 Category 5 0% 1.00%
The Applicable Margin shall be automatically adjusted by the Agent on the fifth
Business Day after the receipt by the Agent of a compliance certificate from the
Guarantor evidencing a change in the Consolidated Funded Debt to Consolidated
EBITDA ratio of the Guarantor which would cause a change in the Applicable
Margin in accordance with the preceding table. In the event that the Guarantor
does not enter into an amendment to the Credit Agreement providing for, among
other things, the pricing set forth above and a pledge of the stock of the
Guarantor's Subsidiaries within 90 days of the Closing Date, each Applicable
Margin for LIBOR Rate Advances shall be increased by 0.10%.
"Appraisal" is defined in Section 3.1 of the Master Agreement.
"Appraiser" means an MAI appraiser satisfactory to the Agent and the
Lessor.
"Assignment and Acceptance" is defined in Section 6.2(a) of the Master
Agreement.
"Assignment of Lease and Rents" means the Assignment of Lease and Rents,
dated as of the Closing Date, from the Lessor to the Agent, substantially in the
form of Exhibit B to the Master Agreement.
"Awards" means any award or payment received by or payable to the Lessor
or the Lessee on account of any Condemnation or Event of Taking (less the actual
costs, fees and expenses incurred in the collection thereof, for which the
Person incurring the same shall be reimbursed from such award or payment).
"B Loan" means the B Percentage of the aggregate Fundings made pursuant to
the Loan Agreement and the Master Agreement.
"B Note" is defined in Section 2.2 of the Loan Agreement.
"B Percentage" means 11.5%.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate plus 2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"Base Rate Advance" means any portion of the Funded Amounts bearing
interest or Yield based upon the Base Rate.
"Base Term" means (a) the period commencing on the Closing Date and ending
on the fifth (5th) anniversary of the Closing Date or (b) such shorter period as
may result from earlier termination of the Lease as provided therein.
"Basic Rent" means the rent payable pursuant to Section 3.1 of the Lease,
determined in accordance with the following: each installment of Basic Rent
payable on any Payment Date shall be in an amount equal to the sum of (i) the
interest accrued on the Loans during the Rent Period ending on such Payment Date
pursuant to the Loan Agreement, plus (ii) the Yield accrued during the Rent
Period ending on such Payment Date.
"Board of Directors", with respect to a corporation, means either the
Board of Directors or any duly authorized committee of that Board which pursuant
to the by-laws of such corporation has the same authority as that Board as to
the matter at issue.
"Building" means the buildings, structures and improvements located or to
be located on the Land, along with all fixtures used or useful in connection
with the operation of the Leased Property, including, without limitation, all
furnaces, boilers, compressors, elevators, fittings, pipings, connectives,
conduits, ducts, partitions, equipment and apparatus of every kind and
description now or hereafter affixed or attached or used or useful in connection
with the Building, all equipment financed by the Lessor and/or the Lenders and
all Alterations (including all restorations, repairs, replacements and
rebuilding of such buildings, improvements and structures) thereto (but in each
case excluding trade fixtures, equipment, refrigeration equipment, racking and
conveyor systems financed other than by the Lessor or the Lenders).
"Business Day" means any day other than a Saturday, Sunday or other day on
which banks are required or authorized to be closed for business in Atlanta,
Georgia.
"Capital Asset" means, with respect to the Guarantor and its Subsidiaries,
any asset that should, in accordance with GAAP, be classified and accounted for
as a capital asset on a Consolidated balance sheet of the Guarantor and its
Subsidiaries.
"Capital Lease" means, with respect to the Guarantor and its Subsidiaries,
any lease of any property that should, in accordance with GAAP, be classified
and accounted for as a capital lease on a Consolidated balance sheet of the
Guarantor and its Subsidiaries.
"Casualty" means an event of damage or casualty relating to all or part of
the Leased Property that does not constitute an Event of Loss.
"Claims" means liabilities, obligations, damages, losses, demands,
penalties, fines, claims, actions, suits, judgments, proceedings, settlements,
utility charges, costs, expenses and disbursements (including, without
limitation, reasonable legal fees and expenses) of any kind and nature
whatsoever.
"Closing Date" means the date on which the Leased Property is acquired by
the Lessor from the Seller and the Funding occurs under the Master Agreement.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise modified.
"Commitment" means as to each Funding Party, its obligation to make
Fundings as investments in the Leased Property, or to make Loans to the Lessor,
as the case may be, in an aggregate amount not to exceed at any one time
outstanding the amount set forth for such Funding Party on Schedule 2.2 to the
Master Agreement.
"Commitment Percentage" means as to any Funding Party, at a particular
time, the percentage of the aggregate Commitments of all Funding Parties in
effect at such time constituted by such Funding Party's Commitment, as such
percentage is shown for such Funding Party on Schedule 2.2 to the Master
Agreement (as it may be adjusted from time to time pursuant to Section 6 of the
Master Agreement).
"Competitor" means any Person who derives a material portion of its
revenues from grocery wholesaling or retailing operations.
"Condemnation" means any condemnation, requisition, confiscation, seizure
or other taking or sale of the use, occupancy or title to the Leased Property or
any part thereof in, by or on account of any actual eminent domain proceeding or
other action by any Governmental Authority or other Person under the power of
eminent domain, which in any case does not constitute an Event of Taking. A
Condemnation shall be deemed to have "occurred" on the earliest of the dates
that use, occupancy or title is taken.
"Consolidated" means, when used with reference to financial statements or
financial statement items of the Guarantor and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Consolidated EBITDA" means, for any period and without duplication, the
Consolidated net income of the Guarantor and its Subsidiaries for such period
plus the aggregate amount deducted in determining such Consolidated net income
for such period with respect to interest, taxes, depreciation and amortization;
provided that, in calculating Consolidated EBITDA for any period, (i) any
Subsidiary acquired during such period shall be treated as if it were a
Subsidiary for the entire period and (ii) any non-cash gains or losses resulting
from the sale, conversion or other disposition of assets, any gains or losses
resulting from the write-up or write-down of assets, any equity in the
unremitted earnings of any company which is not a Wholly-Owned Subsidiary and
any other non-cash extraordinary items shall be disregarded.
"Consolidated EBITDAR" means, for any period and without duplication, the
Consolidated net income of the Guarantor and its Subsidiaries for such period
plus the aggregate amount deducted in determining such Consolidated net income
for such period with respect to interest, taxes, depreciation, amortization and
net rent (including, without limitation, rent under synthetic and other
structured leases); provided that, in calculating Consolidated EBITDAR for any
period, (i) any Subsidiary acquired during such period shall be treated as if it
were a Subsidiary for the entire period, and (ii) any non-cash gains or losses
resulting from the sale, conversion or other disposition of assets, any gains or
losses resulting from the write-up or write-down of assets, any equity in the
unremitted earnings of any company which is not a Wholly-Owned Subsidiary and
any other non-cash extraordinary items shall be disregarded.
"Consolidated Fixed Charges" means, for any period and without
duplication, the sum of the Consolidated interest expense (including, without
limitation, the portion of any obligation under Capital Leases allocable to
Consolidated interest expense in accordance with GAAP) of the Guarantor and its
Subsidiaries for such period, the Consolidated net rent expense (including,
without limitation, rent expense under synthetic and other structured leases) of
the Guarantor and its Subsidiaries for such period, the Consolidated current
maturities of long-term debt of the Guarantor and its Subsidiaries as of the end
of such period, and the Consolidated obligations of the Guarantor and its
Subsidiaries with respect to the principal components of payments under Capital
Leases which were payable during such period.
"Consolidated Funded Debt" means, at any date and without duplication, the
sum of (i) the Consolidated Debt of the Guarantor and its Subsidiaries of the
types described in clauses (a), (b), (c) and (d) of the definition of Debt at
such date (including current maturities of such Debt), and (ii) the aggregate
implied principal amount of synthetic and other structured leases of the
Guarantor and its Subsidiaries at such date calculated in accordance with
applicable Federal income tax laws and regulations.
"Consolidated Net Tangible Assets" means, at any date and without
duplication, the aggregate amount of assets of the Guarantor and its
Subsidiaries (less applicable reserves and other properly deductible items)
after deducting therefrom (i) all current liabilities, and (ii) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles, all as set forth on the most recent balance sheet of the
Guarantor and its Subsidiaries and computed in accordance with GAAP.
"Contractual Obligation", as applied to any Person, means any provision of
any Securities issued by that Person or any indenture, mortgage, deed of trust,
contract, undertaking, agreement, instrument or other document to which that
Person is a party or by which it or any of its properties is bound or to which
it or any of its properties is subject (including, without limitation, any
restrictive covenant affecting any of the properties of such Person).
"Credit Agreement" means the Credit Agreement, dated as of February 27,
1998, by and among the Guarantor, the lenders party thereto, First Union
National Bank, as administrative agent, Crestar Bank, as syndicating agent, and
SunTrust Bank, Atlanta, as documentation agent, together with any replacements
thereof.
"Debt" means, with respect to the Guarantor and its Subsidiaries at any
date and without duplication, the sum of the following calculated in accordance
with GAAP: (a) all liabilities, obligations and indebtedness for borrowed money
including but not limited to obligations evidenced by bonds, debentures, notes
or other similar instruments of any such Person, (b) all obligations to pay the
deferred purchase price of property or services of any such Person, except trade
payables arising in the ordinary course of business, (c) all obligations of any
such Person as lessee with respect to the principal components of Capital
Leases, (d) all Debt of any other Person secured by a Lien on any asset of any
such Person, (e) all Guaranty Obligations of any such Person, (f) all
obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, including without limitation
any reimbursement obligation with respect thereto, and banker's acceptances
issued for the account of any such Person and (g) all obligations incurred by
any such Person pursuant to Hedging Agreements.
"Deed" means a Special Warranty Deed, dated the Closing Date, from the
Seller to the Lessor, conveying the Leased Property.
"Eligible Assignee" means, with respect to any assignment of the rights,
interests and obligations of a Lender under the Master Agreement, a Person that
at the time of such assignment is not itself or through a Subsidiary a
Competitor and is (a) a commercial bank organized under the laws of the United
States or any state thereof or under the laws of a country which is a member of
the Organization for Economic Cooperation and Development, having combined
capital and surplus in excess of $500,000,000, (b) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (c) already a Lender (whether as an original party to
the Master Agreement or as the assignee of another Lender), (d) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially all
of the commercial lending business of the assigning Lender, or (e) any other
Person that has been approved in writing as an Eligible Assignee by the
Guarantor and the Agent.
"Employee Benefit Plan" means any employee benefit plan within the meaning
of Section 3(3) of ERISA which (a) is maintained for employees of the Guarantor
or any ERISA Affiliate or (b) has at any time within the preceding six years
been maintained for the employees of the Guarantor or any current or former
ERISA Affiliate.
"Environmental Audit" means a Phase I Environmental Assessment, dated no
more than 60 days prior to the Closing Date, by an environmental services firm
selected by the Lessee and reasonably satisfactory to the Funding Parties.
"Environmental Laws" means any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health or the environment, including, but not limited
to, requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
"Environmental Permits" means all permits, licenses, authorizations,
certificates and approvals of Governmental Authorities required by Environmental
Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, and the
rules and regulations thereunder, each as amended, supplemented or otherwise
modified.
"ERISA Affiliate" means any Person who together with the Guarantor is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of Eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.
"Event of Default" means any event or condition designated as an "Event of
Default" in Article XII of the Lease.
"Event of Loss" is defined in Section 10.1 of the Lease.
"Event of Taking" is defined in Section 10.2 of the Lease.
"Fair Market Rental Value" means the fair market rental value as
determined by an independent appraiser selected by the Lessee and reasonably
acceptable to the Agent that would be obtained in an arm's-length lease between
an informed and willing lessee and an informed and willing lessor, in either
case under no compulsion to lease, and neither of which is related to the Lessor
or Lessee for the lease of the Leased Property on the terms set forth, or
referred to, in the Lease. Such fair market rental value shall be calculated as
the value for the use of the Leased Property to be leased in place at the Land,
assuming, in the determination of such fair market rental value, that the Leased
Property is in the condition and repair required to be maintained by the terms
of the Lease.
"Fair Market Sales Value" means, with respect to the Leased Property or
any portion thereof, the fair market sales value as determined by an independent
appraiser selected by the Lessee and reasonably acceptable to by the Agent that
would be obtained in an arm's-length transaction between an informed and willing
buyer (other than a lessee currently in possession) and an informed and willing
seller, under no compulsion, respectively, to buy or sell and neither of which
is related to the Lessor or Lessee, for the purchase of the Leased Property.
Such fair market sales value shall be calculated as the value for the use of the
Leased Property, assuming, in the determination of such fair market sales value,
that the Leased Property is in the condition and repair required to be
maintained by the terms of the Lease.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Agent and confirmed in Federal Reserve Board
Statistical Release H.15 (519) or any successor or substitute publication
selected by the Agent. If, for any reason, such rate is not available, then
"Federal Funds Rate" shall mean a daily rate which is determined, in the opinion
of the Agent, to be the rate at which federal funds are being offered for sale
in the national federal funds market at 9:00 a.m. (Atlanta time). Rates for
weekends or holidays shall be the same as the rate for the most immediate
preceding Business Day.
"Final Rent Payment Date" is defined in Section 13.1(e) of the Lease.
"Fiscal Year" means the fiscal year of the Guarantor and its Subsidiaries
ending on the Saturday nearest April 30.
"Funded Amount" means, as to the Lessor, the outstanding balance of the
Lessor's Invested Amount (excluding the Yield thereon), and, as to each Lender,
the outstanding principal of such Lender's Loans.
"Funding" means any funding by the Funding Parties pursuant to
Section 2.2 of the Master Agreement.
"Funding Parties" means the Lessor and the Lenders, collectively.
"Funding Party Balance" means (i) for the Lessor as of any date of
determination, an amount equal to the sum of the outstanding Lessor's Invested
Amount, all accrued and unpaid Yield on such outstanding Lessor's Invested
Amount, all unpaid related fees owing to the Lessor under the Operative
Documents, and all other related amounts owing to the Lessor by the Lessee under
the Operative Documents, and (ii) for any Lender as of any date of
determination, an amount equal to the sum of the outstanding related Loans of
such Lender, all accrued and unpaid interest thereon, all unpaid related fees
owing to such Lender under the Operative Documents, and all other amounts owing
to such Lender by the Lessee under the Operative Documents.
"Funding Request" is defined in Section 2.2 of the Master Agreement.
"GAAP" means generally accepted accounting principles, as recognized from
time to time by the American Institute of Certified Public Accountants and the
Financial Accounting Standards Board, consistently applied and maintained on a
consistent basis for the Guarantor and its Subsidiaries throughout the period
indicated and consistent with the prior financial practice of the Guarantor and
its Subsidiaries.
"General Partner" means Atlantic Financial Managers, Inc., a Texas
corporation.
"Governmental Action" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, decrees,
licenses, exemptions, publications, filings, notices to and declarations of or
with, or required by, any Governmental Authority, or required by any Applicable
Law and shall include, without limitation, all citings, environmental and
operating permits and licenses that are required for the use, occupancy, zoning
and operation of the Leased Property.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantor" means Richfood Holdings, Inc., a Virginia corporation.
"Guaranty" means the Guaranty, dated as of April 20, 1998 by the Guarantor
in favor of the Funding Parties.
"Guaranty Obligation" means, with respect to the Guarantor and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other similar obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Material" means any substance, waste or material which is
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous, including petroleum, crude oil or any fraction
thereof, petroleum derivatives, by products and other hydrocarbons, or which is
or becomes regulated under any Environmental Law by any Governmental Authority,
including any agency, department, commission, board or instrumentality of the
United States, any jurisdiction in which a Leased Property is located or any
political subdivision thereof and also including, without limitation, asbestos,
urea formaldehyde foam insulation, polychlorinated biphenyls ("PCBs") and radon
gas.
"Hedging Arrangement" means any agreement with respect to an interest rate
swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of the Guarantor, and any confirming letter
executed pursuant to such hedging agreement.
"Indemnitee" means the Agent (in its individual capacity and in its
capacity as Agent), each Lender, the Lessor, and their respective Affiliates,
successors, permitted assigns, permitted transferees, employees, officers,
directors and agents; provided, however, that in no event shall the Lessee be an
Indemnitee.
"Indemnitee Group" means the respective Affiliates, employees, officers,
directors and agents of the Agent (in its individual capacity), each Lender or
the Lessor, as applicable; provided, however, that in no event shall the Lessee
be a member of the Indemnitee Group.
"Land" means the land described in Appendix A to the Lease.
"Lease" means the Lease Agreement, dated as of April 20, 1998, between the
Lessee and the Lessor.
"Lease Balance" means as of any date of determination, an amount equal to
the aggregate sum of the outstanding Funded Amounts of all Funding Parties, all
accrued and unpaid interest on the Loans, all accrued and unpaid Yield on the
Lessor's Invested Amounts, all unpaid fees owing to the Funding Parties under
the Operative Documents, and all other amounts owing to the Funding Parties by
the Lessee under the Operative Documents.
"Lease Term" with respect to the Lease means (a) the Base Term, as it may
be renewed pursuant to Section 14.9 of the Lease or (b) such shorter period as
may result from earlier termination of the Lease as provided therein.
"Lease Termination Date" means the last day of the Lease Term, as the same
may be accelerated pursuant to the Lease.
"Leased Property" means the Land and the Building(s).
"Lender Basic Rent" means, for any Rent Period under the Lease, the
aggregate amount of interest accrued on the Loans pursuant to Section 2.5 of the
Loan Agreement during such Rent Period.
"Lenders" means such financial institutions as are, or who may hereafter
become, parties to the Loan Agreement as Lenders to the Lessor.
"Lending Office" with respect to any Funding Party means the office listed
for such Funding Party on Schedule 8.2 of the Master Agreement.
"Lessee" is defined in the preamble to the Master Agreement.
"Lessor" is defined in the preamble to the Master Agreement.
"Lessor Basic Rent" means, for any Rent Period, the Yield accrued on
the Invested Amounts during such Rent Period.
"Lessor Liens" means Liens on or against the Leased Property or any
portion thereof, the Lease, any other Operative Document or any payment of Rent
(a) which result from any act or omission of, or any Claim against, the Lessor
or any of its Affiliates (including the General Partner)unrelated to the
transactions contemplated by the Operative Documents or that results from a
violation by the Lessor of the Operative Documents or (b) which result from any
Tax owed by the Lessor or any of its Affiliates (including the General Partner),
except any Lien arising pursuant to Section 5.30 of the Master Agreement and any
Tax for which the Lessee is obligated to indemnify (including, without
limitation, in the foregoing exception, any assessments with respect to the
Leased Property noted on the related Title Policy or assessed in connection with
any construction or development by the Lessee).
"Lessor Side Letter" means the letter agreement between Lessor and Lessee,
dated as of April 20, 1998.
"Lessor's Invested Amount" means the amounts funded by the Lessor pursuant
to Section 2 of the Master Agreement that are not proceeds of Loans by a Lender.
"LIBOR" means the rate of interest per annum determined on the basis of
the rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a
period equal to the applicable Rent Period which appears on the Telerate Page
3750 at approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of the applicable Rent Period (rounded upward, if necessary, to
the nearest one-sixteenth of one percent (1/16%)). If, for any reason, such rate
does not appear on Telerate Page 3750, then "LIBOR" shall be determined by the
Agent to be the arithmetic average (rounded upward, if necessary, to the nearest
one-sixteenth of one percent (1/16%)) of the rate per annum at which deposits in
Dollars would be offered by first class banks in the London interbank market to
the Agent at approximately 11:00 a.m. (London time) two (2) Business Days prior
to the first day of the applicable Rent Period for a period equal to such Rent
Period and in an amount substantially equal to the amount of the applicable
Funded Amounts.
"LIBOR Rate" means a rate per annum (rounded upward, if necessary, to the
next higher 1/100th of 1%) determined by the Agent pursuant to the following
formula:
LIBOR Rate = LIBOR
---------------------------------
1 - Eurodollar Reserve Percentage
"LIBOR Rate Advance" means any portion of the Funded Amounts bearing
interest or Yield based upon the LIBOR Rate.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind with respect to such asset.
For the purposes of this definition, a Person shall be deemed to own subject to
a Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
"Loan" shall have the meaning specified in Section 2.1 of the Loan
Agreement.
"Loan Agreement" means the Loan Agreement, dated as of April 20, 1998,
among the Lessor, the Agent and the Lenders.
"Loan Documents" means the Loan Agreement, the Notes, the Assignment of
Lease and Rents, the Mortgage and all documents and instruments executed and
delivered in connection with each of the foregoing.
"Loan Event of Default" means any of the events specified in Section 5.1
of the Loan Agreement, provided that any requirement for the giving of notice,
the lapse of time, or both, or any other condition, event or act has been
satisfied.
"Loan Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become a Loan Event of
Default.
"Loss Proceeds" is defined in Section 10.6 of the Lease.
"Master Agreement" means the Master Agreement, dated as of April 20, 1998,
among the Guarantor, the Lessee, the Lessor, the Agent and the Lenders.
"Material Adverse Change" means a material adverse change in the condition
(financial or otherwise), operations, business, properties or financial
prospects of the Guarantor or of the Guarantor and its Subsidiaries, taken as a
whole.
"Material Adverse Effect" means a material adverse effect upon the
condition (financial or otherwise), operations, performance, business, financial
prospects or properties of the Guarantor, or the Guarantor and its Subsidiaries,
taken as a whole, or the ability of the Lessee or the Guarantor to perform its
obligations under the Operative Documents or the value, utility or useful life
of the Leased Property, or the validity, enforceability or legality of any of
the Operative Documents, or the priority, perfection or status of any Funding
Party's interest in the Leased Property.
"Material Contract" means (a) any multi-year supply agreement with a
customer producing revenue in excess of $50,000,000 per year or any other
contract or other agreement, written or oral, of the Guarantor or any of its
Subsidiaries involving monetary liability of or to any such Person in an amount
in excess of $10,000,000 per year, or (b) any other contract or agreement,
written or oral, of the Guarantor or any of its Subsidiaries the failure to
comply with which could reasonably be expected to have a Material Adverse
Effect.
"Mortgage" means that certain mortgage, deed of trust or security deed,
dated as of the Closing Date, by the Lessor to the Agent, in the form of Exhibit
C attached to the Master Agreement, with such modifications as are satisfactory
to the Lessor and the Agent in conformity with Applicable Law to assure
customary remedies in favor of the Agent in the jurisdiction where the Leased
Property is located.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Guarantor or any ERISA Affiliate is making or
is accruing an obligation to make contributions or has made or has accrued an
obligation to make contributions within the preceding six years.
"Notes" means the A Notes and the B Notes issued by the Lessor under the
Loan Agreement, and any and all notes issued in replacement or exchange therefor
in accordance with the provisions thereof.
"Obligations" means, all amounts owed by, and obligations of, the Lessor
to the Lenders or the Agent under the Loan Agreement, Notes and other Operative
Documents.
"Officer's Certificate" of a Person means a certificate signed by a
Responsible Officer.
"Officer's Compliance Certificate" is defined in Section 5.1(c) of the
Master Agreement.
"Operative Documents" means the Master Agreement, the Guaranty, the Deed,
the Lease, the Notes, the Loan Agreement, the Assignment of Lease and Rents, the
Mortgage and the other documents delivered in connection with the transactions
contemplated by the Master Agreement.
"Overdue Rate" means the lesser of (a) the highest interest rate permitted
by Applicable Law and (b) an interest rate per annum (calculated on the basis of
a 365-day (or 366-day, if appropriate) year equal to (i) in the case of each
LIBOR Rate Advance, 2.0% in excess of the rate then applicable to such LIBOR
Rate Advance until the end of the applicable Rent Period and thereafter 2.0%
above the Base Rate in effect from time to time and (ii) in the case of Base
Rate Advances, 2.0% above the Base Rate in effect from time to time.
"Partnership Agreement" means the Agreement of Limited Partnership of AFG,
dated as of February 28, 1996, among Atlantic Financial Managers, Inc., as
general partner, and the persons listed on Schedule A thereto as limited
partners.
"Payment Date" means the last day of each Rent Period (and, if such Rent
Period exceeds 3 months, the third month anniversary of the first day of such
Rent Period).
"Payment Date Notice" is defined in Section 2.3(c) of the Master
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of
the Code and which (a) is maintained for employees of the Guarantor or any ERISA
Affiliate or (b) has at any time within the preceding six years been maintained
for the employees of the Guarantor or any of their current or former ERISA
Affiliates.
"Permitted Liens" means the following: (a) the respective rights and
interests of the Lessee, the Lessor, the Agent and any Lender, as provided in
the Operative Documents (and it is understood that the Lease shall be recorded
before, and shall be prior to, the Mortgage), (b) Liens for Taxes either not yet
due or being contested in good faith and by appropriate proceedings, so long as
enforcement thereof is stayed pending such proceedings, (c) materialmen's,
mechanics', workers', repairmen's, employees' or other like Liens arising after
the Closing Date in the ordinary course of business for amounts either not yet
due or being contested in good faith and by appropriate proceedings, so long as
enforcement thereof is stayed pending such proceedings, (d) Liens arising after
the Closing Date out of judgments or awards with respect to which at the time an
appeal or proceeding for review is being prosecuted in good faith, so long as
the enforcement thereof has been stayed pending such appeal or review, (e)
easements, rights of way, reservations, servitudes and rights of others against
the Land which do not materially and adversely affect the value or the utility
of the Leased Property, (f) other Liens incidental to the conduct of Lessee's
business which were not incurred in connection with the borrowing of money or
the obtaining of advances or credit and which do not in the aggregate materially
detract from the value of the Leased Property or materially impair the use
thereof,(g) assignments, leases and subleases expressly permitted by the
Operative Documents, (h) Lessor Liens, and (i) exceptions shown on the Title
Policy.
"Person" means an individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, nonincorporated
organization or government or any agency or political subdivision thereof.
"Potential Event of Default" means any event, condition or failure which,
with notice or lapse of time or both, would become an Event of Default.
"Prime Rate" means, at any time, the rate of interest per annum publicly
announced from time to time by the Agent as its prime rate. Each change in the
Prime Rate shall be effective as of the opening of business on the day such
change in the Prime Rate occurs. The parties hereto acknowledge that the rate
announced publicly by the Agent as its Prime Rate is an index or base rate and
shall not necessarily be its lowest or best rate charged to its customers or
other banks.
"Purchase Option" is defined in Section 14.1(a) of the Lease.
"Purchase Price" means $56,263,019.
"Recourse Deficiency Amount" means, as of any date of determination
thereof, the sum of (i) the aggregate principal amount of the A Loans then
outstanding, plus (ii) all accrued and unpaid interest on the A Loans.
"Regulations" means the income tax regulations promulgated from time to
time under and pursuant to the Code.
"Release" means the release, deposit, disposal or leak of any Hazardous
Material into or upon or under any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal,
discharge, emission, injection, spillage, leakage, seepage, leaching, dumping,
pumping, pouring, escaping, emptying, placement and the like.
"Release Date" means the earlier of (i) the date that the Lease Balance
has been paid in full, and (ii) the date on which the Agent gives notice to the
Lessor that the Lenders release any and all interest they may have in the Leased
Property, and all proceeds thereof, and any rights to direct, consent or deny
consent to any action by the Lessor with respect to the Leased Property.
"Remarketing Option" is defined in Section 14.6 of the Lease.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Rent Period" means (x) in the case of Base Rate Advances, means the
period from, and including, the first day of a calendar month to, but excluding,
the first day of the next succeeding calendar month (or, if earlier, the date of
the conversion of such Base Rate Advance to a LIBOR Rate Advance pursuant to
Section 2.3 of the Master Agreement) and (y) in the case of LIBOR Rate Advances,
either a 1, 2, 3 or 6 month period; provided that:
(a) The initial Rent Period for any Funding shall commence on the
Closing Date, and each Rent Period occurring thereafter in respect of such
Funding shall commence on the day on which the immediately preceding Rent
Period expires;
(b) If any Rent Period would otherwise expire on a day which is not
a Business Day, such Rent Period shall expire on the next succeeding
Business Day, provided that if any Rent Period in respect of LIBOR Rate
Advances would otherwise expire on a day that is not a Business Day but is
a day of the month after which no further Business Day occurs in such
month, such Rent Period shall expire on the immediately preceding Business
Day;
(c) Any Rent Period in respect of LIBOR Rate Advances which begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Rent Period shall, subject to paragraph
(d) below, expire on the last Business Day of such calendar month;
(d) No Rent Period shall extend beyond the Lease Termination Date;
and
(e) There shall be no more than eight (8) Rent Periods outstanding
at any one time.
"Report" is defined in Section 7.6 of the Master Agreement.
"Required Lenders" means, at any time, Lenders holding an aggregate
outstanding principal amount of Loans equal to at least 51% of the aggregate
outstanding principal amount of all Loans.
"Required Funding Parties" means, at any time, Funding Parties holding an
aggregate outstanding principal amount of Funded Amounts equal to at least 51%
of the aggregate outstanding principal amount of all Funded Amounts.
"Requirements of Law" means, as to any Person, the charter and by-laws or
other organizational or governing documents of such Person, and any law, rule or
regulation, permit, approval, authorization, license or variance, order or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject, including, without
limitation, the Securities Act, the Securities Exchange Act, Regulations G, T, U
and X of the Board of Governors of the Federal Reserve System, and any building,
environmental or land use requirement or permit or occupational safety or health
law, rule or regulation.
"Responsible Officer" means the Chairman or Vice Chairman of the Board of
Directors, the Chairman or Vice Chairman of the Executive Committee of the Board
of Directors, the President, any Senior Vice President or Executive Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer.
"SEC" means the United States Securities and Exchange Commission.
"Securities" means any stock, shares, voting trust certificates, bonds,
debentures, notes or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities", or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Seller" means G.F. Lucknow Associates, a Pennsylvania limited
partnership.
"Senior Debt Rating" means the senior debt rating assigned to the
Guarantor from time to time by S&P or, if no senior debt rating is so assigned,
the corporate debt rating assigned to the Guarantor from time to time by S&P.
"Significant Subsidiary" means (i) Richfood, Inc., Rotelle, Inc.,
SuperRite Corporation, SuperRite Foods, Inc., Foodarama Incorporated, and (ii)
each other Subsidiary, whether now existing or hereafter formed or acquired,
which now or at any time hereafter owns three percent (3%) or more
of Consolidated Net Tangible Assets.
"Solvent" means, as to any Person and its Subsidiaries on a particular
date, that any such Person (a) has capital sufficient to carry on its business
and transactions and all business and transactions in which it is about to
engage and is able to pay its debts as they mature, (b) owns property having a
value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
"S&P" means Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor rating agency thereto.
"Subordinated Debt" means the Debt described on Schedule 4.2(t) designated
as Subordinated Debt and any other Debt of the Guarantor or any Subsidiary the
payment of which is subordinated to the payment of the obligations of the
Guarantor under the Operative Documents.
"Subsidiary" means as to any Person, any corporation, partnership, limited
liability company or other entity of which more than fifty percent (50%) of the
outstanding capital stock or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other managers of such
corporation, partnership, limited liability company or other entity is at the
time, directly or indirectly, owned by such Person (irrespective of whether, at
the time, capital stock or other ownership interests of any other class or
classes of such corporation, partnership, limited liability company or other
entity shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified, references to "Subsidiary" or
"Subsidiaries" herein shall refer to those of the Guarantor. Notwithstanding the
foregoing, the term "Subsidiary" shall not include any "Equity Store" or Person
participating in the Business Development Program. For purposes of this
definition, (a) "Equity Store" means a Person in which the Guarantor or any of
its Subsidiaries has invested capital or to which it has made loans in
accordance with the business practice of the Guarantor and its Subsidiaries of
making equity investments in Persons, and making or guaranteeing loans to such
Persons, for the purpose of assisting such Persons in acquiring, remodeling,
refurbishing, expanding or operating one or more retail grocery stores and
pursuant to which such Persons are permitted or required to reduce the
Guarantor's or the Subsidiary's equity interest to a minority position over
time, and (b) "Business Development Program" means the business practice of the
Guarantor and its Subsidiaries of making or guaranteeing loans to, or making
equity investments in, third parties engaged in the retail grocery business in
exchange for long-term supply agreements with the Guarantor or any Subsidiary.
"Supplemental Rent" means any and all amounts, liabilities and obligations
other than Basic Rent which the Lessee assumes or agrees or is otherwise
obligated to pay under the Lease or any other Operative Document (whether or not
designated as Supplemental Rent) to the Lessor, the Agent, any Lender or any
other party, including, without limitation, amounts under Article XVI of the
Lease, and indemnities and damages for breach of any covenants, representations,
warranties or agreements, and all overdue or late payment charges in respect of
any Funded Amount.
"Surrender Option" is defined in Section 14.6 of the Lease.
"Tax" or "Taxes" is defined in Section 7.4 of the Master Agreement.
"Tax Indemnitee" means the Lessor, the Agent, each Lender and their
respective Affiliates, successors, permitted assigns, permitted transferees,
employees, officers, directors and agents thereof, provided, however, that in no
event shall the Lessee be a Tax Indemnitee.
"Termination Event" means any of the following events which results or is
reasonably likely to result, either in any given instance or in the aggregate
with one or more other such events, in a Material Adverse Effect or in liability
of the Guarantor or any Subsidiary in excess of $25,000,000: (a) a "Reportable
Event" described in Section 4043 of ERISA, or (b) the withdrawal of the Lessee
or any ERISA Affiliate from a Pension Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, or (c) the
termination of a Pension Plan, the filing of a notice of intent to terminate a
Pension Plan or the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA, or (d) the institution of proceedings to terminate, or
the appointment of a trustee with respect to, any Pension Plan by the PBGC, or
(e) any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan, or (f) the partial or complete withdrawal of the
Guarantor or any ERISA Affiliate from a Multiemployer Plan, or (g) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302 of
ERISA, or (h) any event or condition which results in the reorganization or
insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i)
any event or condition which results in the termination of a Multiemployer Plan
under Section 4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA.
"Title Insurance Company" means the company that has or will issue the
title policies with respect to the Leased Property, which company shall be
selected by the Lessee and shall be reasonably acceptable to the Funding
Parties.
"Title Policy" is defined in Section 3.1 of the Master Agreement.
"Transaction" means all the transactions and activities referred to in
or contemplated by the Operative Documents.
"Transaction Expenses" means the fees and expenses, including legal fees
and disbursements, incurred by the Guarantor, the Lessee, the Lessor or the
Agent in connection with closing the Transaction.
"UCC" means the Uniform Commercial Code of Georgia, as in effect from time
to time.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the shares
of capital stock or other ownership interests of such Subsidiary (other than
qualifying shares held by directors) are, directly or indirectly, owned or
controlled by the Guarantor and/or one or more of its Wholly-Owned Subsidiaries.
"Yield" is defined in Section 2.3 of the Master Agreement.
