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LEASE AGREEMENT
(Tax Retention Operating Lease)
Dated as of December 1, 1995
between
FIRST SECURITY BANK OF UTAH, N.A.,
not individually,
but solely as Owner Trustee
under the FM Trust 1995-2,
as Lessor,
and
▇▇▇▇ ▇▇▇▇▇, INC.,
as Lessee
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This Lease Agreement is subject to a security interest in favor of
NationsBank of Texas, N.A., as Administrative Agent (the "Agent"), under a
Credit Agreement dated as of December 1, 1995, among First Security Bank of
Utah, N.A., not individually except as expressly stated therein, but solely
as Owner Trustee under the FM Trust 1995-2, the Lenders and the Agent, as
amended, modified, supplemented, restated and/or replaced from time to
time. This Lease Agreement has been executed in several counterparts. To
the extent, if any, that this Lease Agreement constitutes chattel paper (as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), the counterpart of this Lease Agreement
containing the receipt therefor executed by the Agent on the signature page
hereof shall be deemed the only original counterpart hereof.
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TABLE OF CONTENTS
ARTICLE I.................................................................. 1
1.1 Definitions.................................................. 1
1.2 Interpretation............................................... 1
ARTICLE II................................................................. 2
2.1 Property..................................................... 2
2.2 Lease Term................................................... 2
2.3 Title........................................................ 2
2.4 Lease Supplements............................................ 2
ARTICLE III................................................................ 2
3.1 Rent......................................................... 2
3.2 Payment of Basic Rent........................................ 3
3.3 Supplemental Rent............................................ 3
3.4 Performance on a Non-Business Day............................ 3
3.5 Rent Payment Provisions...................................... 4
ARTICLE IV................................................................. 4
4.1 Utility Charges.............................................. 4
ARTICLE V.................................................................. 4
5.1 Quiet Enjoyment.............................................. 4
5.2 Transfers by Lessor; Lessor Liens............................ 4
ARTICLE VI................................................................. 5
6.1 Net Lease.................................................... 5
6.2 No Termination or Abatement.................................. 5
ARTICLE VII................................................................ 6
7.1 Ownership of the Property.................................... 6
ARTICLE VIII............................................................... 7
8.1 Condition of the Property.................................... 7
8.2 Possession and Use of the Property........................... 7
ARTICLE IX................................................................. 8
9.1 Compliance With Legal Requirements and Insurance
Requirements................................................. 8
ARTICLE X.................................................................. 9
10.1 Maintenance and Repair; Return............................... 9
10.2 Environmental Inspection.................................... 10
ARTICLE XI................................................................ 11
11.1 Modifications, Substitutions and Replacements............... 11
ARTICLE XII............................................................... 11
12.1 Warranty of Title........................................... 11
ARTICLE XIII.............................................................. 12
13.1 Permitted Contests Other Than in Respect of
Indemnities................................................. 12
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ARTICLE XIV............................................................... 13
14.1 Public Liability and Workers' Compensation
Insurance................................................... 13
14.2 Hazard and Other Insurance.................................. 13
14.3 Coverage.................................................... 14
ARTICLE XV................................................................ 15
15.1 Casualty and Condemnation................................... 15
15.2 Environmental Matters....................................... 17
15.3 Notice of Environmental Matters............................. 17
ARTICLE XVI............................................................... 18
16.1 Termination Upon Certain Events............................. 18
16.2 Procedures.................................................. 18
ARTICLE XVII.............................................................. 19
17.1 Lease Events of Default..................................... 19
17.2 Surrender of Possession..................................... 22
17.3 Reletting................................................... 22
17.4 Damages..................................................... 22
17.5 Power of Sale............................................... 23
17.6 Final Liquidated Damages.................................... 23
17.7 Lessee's Purchase Option During Default..................... 24
17.8 Waiver of Certain Rights.................................... 24
17.9 Assignment of Rights Under Contracts........................ 24
17.10 Remedies Cumulative......................................... 25
ARTICLE XVIII............................................................. 25
18.1 Lessor's Right to Cure Lessee's Lease Defaults.............. 25
ARTICLE XIX............................................................... 25
19.1 Provisions Relating to Lessee's Exercise of its
Purchase Option............................................. 25
19.2 No Termination With Respect to Less than All of
a Property.................................................. 26
ARTICLE XX................................................................ 26
20.1 Purchase Options............................................ 26
20.2 Expiration Date Purchase or Sale Option..................... 27
20.3 Lessor's Transfer Option.................................... 27
ARTICLE XXI............................................................... 28
21.1 Renewal..................................................... 28
ARTICLE XXII.............................................................. 28
22.1 Sale Procedure.............................................. 28
22.2 Application of Proceeds of Sale............................. 30
22.3 (intentionally omitted)..................................... 31
22.4 (intentionally omitted)..................................... 31
22.5 Certain Obligations Continue................................ 31
22.6 Sale of Undeveloped Pads.................................... 31
ARTICLE XXIII............................................................. 31
23.1 Holding Over................................................ 31
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ARTICLE XXIV.............................................................. 32
24.1 Risk of Loss................................................ 32
ARTICLE XXV............................................................... 32
25.1 Assignment.................................................. 32
25.2 Subleases................................................... 32
ARTICLE XXVI.............................................................. 33
26.1 No Waiver................................................... 33
ARTICLE XXVII............................................................. 33
27.1 Acceptance of Surrender..................................... 33
27.2 No Merger of Title.......................................... 34
ARTICLE XXVIII............................................................ 34
28.1 Incorporation of Covenants.................................. 34
ARTICLE XXIX.............................................................. 34
29.1 Notices..................................................... 34
ARTICLE XXX............................................................... 36
30.1 Miscellaneous............................................... 36
30.2 Amendments and Modifications................................ 36
30.3 Successors and Assigns...................................... 36
30.4 Headings and Table of Contents.............................. 36
30.5 Counterparts................................................ 36
30.6 GOVERNING LAW............................................... 36
30.7 Calculation of Rent......................................... 36
30.8 Memoranda of Lease and Lease Supplements.................... 36
30.9 Allocations between the Lenders and the Holders............. 37
30.10 Limitations on Recourse..................................... 37
30.11 Estoppel Certificates....................................... 37
30.12 Decision Making by Parties.................................. 37
30.13 Limited Power of Attorney................................... 37
30.14 Submission To Jurisdiction; Waivers......................... 38
30.15 WAIVERS OF JURY TRIAL....................................... 39
EXHIBITS
EXHIBIT A - Lease Supplement No. ___
EXHIBIT B-1 - Memorandum of Lease and Lease Supplement
EXHIBIT B-2 - Memorandum of Lease
LEASE AGREEMENT
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(Tax Retention Operating Lease Agreement)
THIS LEASE AGREEMENT (Tax Retention Operating Lease) (this "Lease"),
dated as of December 1, 1995, is between FIRST SECURITY BANK OF UTAH, N.A.,
a national banking association, having its principal office at ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, not individually, but solely as
Owner Trustee under the FM Trust 1995-2, as lessor (the "Lessor"), and ▇▇▇▇
▇▇▇▇▇, INC., a Delaware corporation, having its principal place of business
at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, as lessee (the "Lessee").
W I T N E S S E T H:
- - - - - - - - - -
A. WHEREAS, subject to the terms and conditions of the Agency
Agreement, Lessor will (i) purchase or ground lease various parcels of real
property, some of which will have existing Improvements thereon, from one
or more third parties designated by Lessee and (ii) fund the development,
refurbishment and construction by the Construction Agent of Improvements on
such real property; and
B. WHEREAS, the Basic Term shall commence with respect to
each Property on the Basic Term Commencement Date described in
Section 2.2 hereof; and
C. WHEREAS, Lessor desires to lease to Lessee, and Lessee
desires to lease from Lessor, each Property;
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1 Definitions. Capitalized terms used but not otherwise defined in
this Lease have the respective meanings specified in Appendix A to the
Participation Agreement of even date herewith (as such may be amended,
modified, supplemented, restated and/or replaced from time to time, the
"Participation Agreement") among the Lessee, the Construction Agent, First
Security Bank of Utah, N.A., not individually, except as expressly stated
therein, as Owner Trustee under the FM Trust 1995-2, the Holders, the
Lenders and the Agent.
1.2 Interpretation. The rules of usage set forth in Appendix A to the
Participation Agreement shall apply to this Lease.
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ARTICLE II
2.1 Property. Subject to the terms and conditions hereinafter set
forth and contained in the respective Lease Supplement relating to each
Property, Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor, each Property.
2.2 Lease Term. The term of this Lease with respect to each Property
(the "Basic Term") shall begin upon the earliest to occur of (i) the
Completion Date for such Property, (ii) with respect to Improved Property,
the Property Closing Date with respect to such Improved Property or (iii)
if such Property is a Construction Period Property as of the date of any
Agency Agreement Event of Default, the date of such Agency Agreement Event
of Default (in each case the "Basic Term Commencement Date") and shall end
on December 8, 2000 (the "Basic Term Expiration Date"), unless the Term is
extended or earlier terminated in accordance with the provisions of this
Lease.
2.3 Title. Each Property is leased to Lessee without any
representation or warranty, express or implied, by Lessor and subject to
the rights of parties in possession, the existing state of title
(including, without limitation, the Permitted Exceptions) and all
applicable Legal Requirements. Lessee shall in no event have any recourse
against Lessor for any defect in title to any Property.
2.4 Lease Supplements. On or prior to the Completion Date with
respect to the Improvements to be constructed on Unimproved Property and on
or prior to the Property Closing Date with respect to each acquisition of
Improved Property, Lessee covenants and agrees with Lessor that it will
execute and deliver to Lessor a Lease Supplement for the Property to be
leased effective as of the Basic Term Commencement Date for such Property
(such Lease Supplement to be in substantially the form of Exhibit A
hereto), and thereafter such Property shall be subject to the terms of this
Lease.
ARTICLE III
3.1 Rent.
(a) Lessee shall pay Basic Rent in arrears, on each Payment
Date, and on any date on which this Lease shall terminate with
respect to any or all Properties during the Term; provided, however,
with respect to each individual Property Lessee shall have no
obligation to pay Basic Rent with respect to such Property until the
Basic Term has commenced with respect to such Property.
(b) Basic Rent shall be due and payable in lawful money of the
United States and shall be paid by wire transfer (including Automated
Clearing House transfer) of immediately available funds on the due
date therefor to such
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account or accounts at such bank or banks as Lessor shall from time
to time direct.
(c) Lessee's inability or failure to take possession of all or
any portion of any Property when delivered by Lessor, whether or not
attributable to any act or omission of Lessee or any act or omission
of Lessor (other than an act or omission that constitutes gross
negligence or wilful misconduct of Lessor), or for any other reason
whatsoever, shall not delay or otherwise affect Lessee's obligation
to pay Rent for such Property in accordance with the terms of this
Lease.
3.2 Payment of Basic Rent. Basic Rent shall be paid absolutely net to
Lessor or its designee, so that this Lease shall yield to Lessor the full
amount thereof, without setoff, deduction or reduction.
3.3 Supplemental Rent. Lessee shall pay to Lessor or its designee or
to the Person entitled thereto any and all Supplemental Rent promptly as
the same shall become due and payable, and if Lessee fails to pay any
Supplemental Rent, Lessor shall have all rights, powers and remedies
provided for herein or by law or equity or otherwise in the case of
nonpayment of Basic Rent. Lessee shall pay to Lessor, as Supplemental Rent,
among other things, on demand, to the extent permitted by applicable Legal
Requirements, (a) any and all unpaid fees, charges, payments and other
obligations (other than the obligations of Lessor to pay the principal
amount of the Loans and the Holder Amounts) due and owing by Lessor under
the Credit Agreement, under the Trust Agreement and/or under any other
Operative Agreement (including specifically without limitation any amounts
owing to the Lenders under Section 2.10 or Section 2.11 of the Credit
Agreement and any amounts owing to the Holders under Section 3.8 or Section
3.9 of the Trust Agreement) and (b) interest at the applicable Overdue Rate
on any installment of Basic Rent not paid when due for the period for which
the same shall be overdue and on any payment of Supplemental Rent not paid
when due or demanded by Lessor for the period from the due date or the date
of any such demand, as the case may be, until the same shall be paid. The
expiration or other termination of Lessee's obligations to pay Basic Rent
hereunder shall not limit or modify the obligations of Lessee with respect
to Supplemental Rent. Unless expressly provided otherwise in this Lease, in
the event of any failure on the part of Lessee to pay and discharge any
Supplemental Rent as and when due, Lessee shall also promptly pay and
discharge any fine, penalty, interest or cost which may be assessed or
added for nonpayment or late payment of such Supplemental Rent, all of
which shall also constitute Supplemental Rent.
3.4 Performance on a Non-Business Day. If any payment is required
hereunder on a day that is not a Business Day, then such payment shall be
due on the next succeeding Business Day.
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3.5 Rent Payment Provisions. Lessee shall make payment of all Basic
Rent and Supplemental Rent when due regardless of whether any of the
Operative Agreements pursuant to which same is calculated and is owing
shall have been rejected, avoided or disavowed in any bankruptcy or
insolvency proceeding involving any of the parties to any of the Operative
Agreements. Such provisions of such Operative Agreements and their related
definitions are incorporated herein by reference and shall survive any
termination, amendment or rejection of any such Operative Agreements.
ARTICLE IV
4.1 Utility Charges. Lessee shall pay or cause to be paid all charges
for electricity, power, gas, oil, water, telephone, sanitary sewer service
and all other rents and utilities used in or on a Property and related real
property during the Term. Lessee shall be entitled to receive any credit or
refund with respect to any utility charge paid by Lessee. The amount of any
credit or refund received by Lessor on account of any utility charges paid
by Lessee, net of the reasonable costs and expenses incurred by Lessor in
obtaining such credit or refund, if any, shall be promptly paid over to
Lessee. All charges for utilities imposed with respect to a Property for a
billing period during which this Lease expires or terminates shall be
adjusted and prorated on a daily basis between Lessor and Lessee, and each
party shall pay or reimburse the other for such party's pro rata share
thereof.
ARTICLE V
5.1 Quiet Enjoyment. Subject to the rights of Lessor contained in
Sections 17.2, 17.3 and 20.3 and the other terms of this Lease and so long
as no Lease Event of Default shall have occurred and be continuing, Lessee
shall peaceably and quietly have, hold and enjoy each Property for the
applicable Term, free of any claim or other action by Lessor or anyone
rightfully claiming by, through or under Lessor (other than Lessee) with
respect to any matters arising from and after the applicable Basic Term
Commencement Date.
5.2 Transfers by Lessor; Lessor Liens. So long as no Lease Event of
Default shall have occurred and be continuing, Lessor shall not assign or
convey any of its right, title or interest in and to this Lease or the
Properties, except for the Liens specifically contemplated under the
Operative Agreements or as otherwise required by Law. In addition to the
foregoing, Lessor agrees that it will, in its individual capacity and at
its own cost and expense (and without any right of indemnity under the
Operative Agreements) promptly take such action as may be necessary to duly
discharge and satisfy in full any Lessor Liens in a manner consistent with
the requirements of Section 10.2(a) of the Participation Agreement.
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ARTICLE VI
6.1 Net Lease. This Lease shall constitute a net lease. Any present
or future law to the contrary notwithstanding, this Lease shall not
terminate, nor shall Lessee be entitled to any abatement, suspension,
deferment, reduction, setoff, counterclaim, or defense with respect to the
Rent, nor shall the obligations of Lessee hereunder be affected (except as
expressly herein permitted and by performance of the obligations in
connection therewith) by reason of: (i) any damage to or destruction of any
Property or any part thereof; (ii) any taking of any Property or any part
thereof or interest therein by Condemnation or otherwise; (iii) any
prohibition, limitation, restriction or prevention of Lessee's use,
occupancy or enjoyment of any Property or any part thereof, or any
interference with such use, occupancy or enjoyment by any Person or for any
other reason; (iv) any title defect, Lien or any matter affecting title to
any Property; (v) any eviction by paramount title or otherwise; (vi) any
default by Lessor hereunder; (vii) any action for bankruptcy, insolvency,
reorganization, liquidation, dissolution or other proceeding relating to or
affecting Lessor or any Governmental Authority; (viii) the impossibility or
illegality of performance by Lessor, Lessee or both; (ix) any action of any
Governmental Authority; (x) Lessee's acquisition of ownership of all or
part of any Property; (xi) breach of any warranty or representation with
respect to any Property or any Operative Agreement; (xii) any defect in the
condition, quality or fitness for use of any Property or any part thereof;
or (xiii) any other cause or circumstance whether similar or dissimilar to
the foregoing and whether or not Lessee shall have notice or knowledge of
any of the foregoing. The parties intend that the obligations of Lessee
hereunder shall be covenants, agreements and obligations that are separate
and independent from any obligations of Lessor hereunder and shall continue
unaffected unless such covenants, agreements and obligations shall have
been modified or terminated in accordance with an express provision of this
Lease. Lessor and Lessee acknowledge and agree that the provisions of this
Section 6.1 have been specifically reviewed and subject to negotiation.
6.2 No Termination or Abatement. Lessee shall remain obligated under
this Lease in accordance with its terms and shall not take any action to
terminate, rescind or avoid this Lease, notwithstanding any action for
bankruptcy, insolvency, reorganization, liquidation, dissolution, or other
proceeding affecting Lessor or any Governmental Authority, or any action
with respect to this Lease or any Operative Agreement which may be taken by
any trustee, receiver or liquidator of Lessor or any Governmental Authority
or by any court with respect to Lessor or any Governmental Authority.
Lessee hereby waives all right (i) to terminate or surrender this Lease or
(ii) to avail itself of any abatement, suspension, deferment, reduction,
setoff, counterclaim or defense with respect to any Rent. Lessee shall
remain obligated under this Lease in accordance with its terms and Lessee
hereby waives any and all rights now or hereafter
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conferred by statute or otherwise to modify or to avoid strict compliance
with its obligations under this Lease. Notwithstanding any such statute or
otherwise, Lessee shall be bound by all of the terms and conditions
contained in this Lease.
ARTICLE VII
7.1 Ownership of the Property.
(a) Lessor and Lessee intend that (i) for financial accounting
purposes with respect to Lessee (A) this Lease will be treated as an
"operating lease" pursuant to Statement of Financial Accounting
Standards No. 13, as amended, (B) Lessor will be treated as the owner
and lessor of each Property and (C) Lessee will be treated as the
lessee of each Property, but (ii) for federal and all state and local
income tax purposes, bankruptcy and commercial law and real estate
purposes and all other purposes (A) this Lease will be treated as a
financing arrangement, and (B) Lessee will be treated as the owner of
the Properties and will be entitled to all tax benefits ordinarily
available to owners of property similar to the Properties for such
tax purposes.
(b) To the extent this Lease is hereafter deemed to constitute
a finance lease and not a true lease, then and only in such event,
Lessor and Lessee intend and agree that, for the purpose of securing
Lessee's obligations hereunder, (i) this Lease shall be deemed to be
a security agreement and financing statement within the meaning of
Article 9 of the Uniform Commercial Code respecting each of the
Properties to the extent such is personal property and an irrevocable
grant and conveyance of a lien and mortgage on each of the Properties
to the extent such is real property; (ii) the conveyance provided for
in Article II shall be deemed to be a grant by Lessee to Lessor of,
and Lessee hereby grants to Lessor, a lien on and security interest,
mortgage and deed of trust in all of Lessee's right, title and
interest in and to the Property and all proceeds (including without
limitation insurance 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, and an assignment of all rents, profits and income
produced by the Property; and (iii) notifications to Persons holding
such property, and acknowledgements, receipts or confirmations from
financial intermediaries, bankers or agents (as applicable) of Lessee
shall be deemed to have been given for the purpose of perfecting such
security interest, mortgage, deed of trust or lien under applicable
law. Lessor and Lessee shall, to the extent consistent with this
Lease, take such actions as may be necessary (including without
limitation the filing of Uniform Commercial Code Financing
Statements, Uniform Commercial Code Fixture
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Filings and memoranda of this Lease and the various Lease
Supplements) to ensure that, if this Lease were deemed to create a
lien, mortgage, deed of trust or security interest in the Property in
accordance with this Section, such lien, mortgage, deed of trust or
security interest would be deemed to be perfected and to have a first
priority position under applicable law and will be maintained as such
throughout the Term.
ARTICLE VIII
8.1 Condition of the Property. EXCEPT FOR THE COVENANTS OF LESSOR SET
FORTH IN ARTICLE V HEREOF, LESSEE ACKNOWLEDGES AND AGREES THAT IT IS
LEASING EACH PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) BY LESSOR AND IN EACH CASE SUBJECT TO (A) THE EXISTING
STATE OF TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF, (C)
ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT
SHOW, (D) ALL APPLICABLE LEGAL REQUIREMENTS AND (D) VIOLATIONS OF LEGAL
REQUIREMENTS WHICH MAY EXIST ON THE DATE HEREOF. NEITHER LESSOR NOR THE
AGENT NOR ANY LENDER NOR ANY HOLDER HAS MADE OR SHALL BE DEEMED TO HAVE
MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) OR SHALL
BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE, VALUE,
HABITABILITY, USE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS
FOR USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION,
WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY
PROPERTY (OR ANY PART THEREOF), AND NEITHER LESSOR NOR THE AGENT NOR ANY
LENDER NOR ANY HOLDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREIN OR THE FAILURE OF ANY PROPERTY, OR ANY PART THEREOF, TO
COMPLY WITH ANY LEGAL REQUIREMENT. THE LESSEE HAS OR WILL HAVE BEEN
AFFORDED FULL OPPORTUNITY TO INSPECT THE PROPERTY AND THE IMPROVEMENTS
THEREIN, IS OR WILL BE (INSOFAR AS THE LESSOR, THE AGENT, EACH LENDER AND
EACH HOLDER ARE CONCERNED) SATISFIED WITH THE RESULTS OF ITS INSPECTIONS
AND IS ENTERING INTO THIS LEASE SOLELY ON THE BASIS OF THE RESULTS OF ITS
OWN INSPECTIONS, AND ALL RISKS INCIDENT TO THE MATTERS DESCRIBED IN THE
PRECEDING SENTENCE, AS BETWEEN THE LESSOR, THE AGENT, THE LENDERS AND THE
HOLDERS, ON THE ONE HAND, AND THE LESSEE, ON THE OTHER HAND, ARE TO BE
BORNE BY LESSEE.
8.2 Possession and Use of the Property.
(a) At all times during the Term with respect to each Property,
such Property shall not be used by Lessee for any unlawful purpose.
Lessee shall pay, or cause to be paid, all charges and costs required
in connection with the use of the Properties as contemplated by this
Lease. During the Term, Lessee may cease operations at Properties
having a Maximum Property Cost not to exceed fifty percent (50%) of
the Maximum Property Cost of all Properties as of the Construction
Period Termination Date; provided, during such
8
period of ceased operations Lessee shall comply with its obligations
under the Operative Agreements.
(b) The address of Lessee set forth in Section 29.1 herein or
otherwise disclosed to Lessor by Lessee pursuant to written notice
hereunder no less than 30 days prior to the effective date of such
changed location is the chief place of business and chief executive
office of Lessee (as such terms are used in Section 9-103(3) of the
Uniform Commercial Code of any applicable jurisdiction). Regarding a
particular Property, each Lease Supplement correctly identifies the
initial location of the related Equipment and Improvements and
contains an accurate legal description for the related parcel of
Land. Lessee has no other places of business where the Equipment or
Improvements will be located other than those identified on the
applicable Lease Supplement.
(c) Lessee will not attach or incorporate any item of Equipment
to or in any other item of equipment or personal property or to or in
any real property (except the Land identified in the Lease Supplement
in which such Equipment is also described) in a manner that could
give rise to the assertion of any Lien on such item of Equipment by
reason of such attachment or the assertion of a claim that such item
of Equipment has become a fixture and is subject to a Lien in favor
of a third party that is prior to the Liens thereon created by the
Operative Agreements.
(d) With respect to each Property, subject to the terms and
conditions of this Lease and the Participation Agreement, on each
Basic Term Commencement Date Lessor and Lessee shall execute and
deliver a Lease Supplement containing, in regard to such Property, an
Equipment Schedule that has a complete description of each item of
Equipment, an Improvement Schedule that has a complete description of
each Improvement and a legal description of the Land, to be leased
hereunder as of such date. Simultaneously therewith, such Equipment,
Improvements and Land shall be deemed to have been accepted by Lessee
for all purposes of this Lease and to be subject to this Lease.
ARTICLE IX
9.1 Compliance With Legal Requirements and Insurance Requirements.
Subject to the terms of Article XIII relating to permitted contests,
Lessee, at its sole cost and expense, shall (i) comply with all material
Legal Requirements (including without limitation all Environmental Laws)
relating to the Properties, and all Insurance Requirements relating to the
Properties, including the use, development, construction, operation,
maintenance, repair, refurbishment and restoration thereof, whether or not
compliance therewith shall require structural or extraordinary changes in
the Improvements or
9
interfere with the use and enjoyment of the Properties, and (ii) procure,
maintain and comply with all material licenses, permits, orders, approvals,
consents and other authorizations required for the construction, use,
maintenance and operation of the Properties and for the use, development,
construction, operation, maintenance, repair and restoration of the
Improvements.
ARTICLE X
10.1 Maintenance and Repair; Return.
(a) Lessee, at its sole cost and expense, shall maintain each
Property in good condition, repair and working order (ordinary wear
and tear excepted) and make all necessary repairs thereto, of every
kind and nature whatsoever, whether interior or exterior, ordinary or
extraordinary, structural or nonstructural or foreseen or unforeseen,
in each case as required by all Legal Requirements, Insurance
Requirements, and manufacturer's specifications and standards and on
a basis consistent with the operation and maintenance of other
similar properties or equipment of Lessee as of the date hereof
subject, however, to the provisions of Article XV with respect to
Condemnation and Casualty.
(b) Lessee shall not use or locate any component of any
Property outside of any Approved State. Lessee shall not move or
relocate any component of any Property beyond the boundaries of the
Land (comprising part of the Property) described in the applicable
Lease Supplement.
(c) (Intentionally Omitted).
(d) Upon reasonable advance notice, Lessor and its agents shall
have the right to inspect each Property and all maintenance records
with respect thereto at any reasonable time during normal business
hours but shall not, in the absence of a Lease Event of Default,
materially disrupt the business of Lessee.
(e) If, at any time, the aggregate appraised value of
Properties then subject to this Lease and with respect to which
operations have not ceased as described in Section 8.2(a) for which
the Lessor has received an Appraisal pursuant to the terms of Section
5.6 of the Participation Agreement is less than the lesser of
$8,400,000 (provided, in the event of a Commitment Increase for the
Lenders and the Holders, such minimum aggregate value of the
Properties then subject to the terms of the Operative Agreements
shall be increased from $8,400,000 to an amount equal to the sum of
(x) $8,400,000 plus (y) the product of (I) the aggregate Amount of
Commitment Increase multiplied by (II) fourteen percent (14%)) or the
aggregate Property Cost of all Properties then subject to this Lease
and with respect to
10
which operations have not ceased as described in Section 8.2(a) (such
lesser amount being hereafter referred to as the "Base Amount"), then
the Lessee will cause an additional Appraisal or Appraisals to be
immediately delivered to the Lessor in an amount sufficient to cause
such aggregate appraised value to equal or exceed the Base Amount. In
addition, Lessee shall cause to be delivered to Lessor (at Lessee's
sole expense) any additional Appraisals (or reappraisals) as Lessor
may request if any one of Lessor, the Agent, any Lender or any Holder
is required pursuant to any applicable Legal Requirement to obtain
such an Appraisal (or reappraisal). Any such request by Lessor will
identify the Person and the applicable Legal Requirement that
necessitates the additional Appraisal (or reappraisal). Lessee may
cause the additional Appraisal (or reappraisal) to be performed in a
manner that satisfies the minimum requirements of such Legal
Requirement, including, without limitation, if permitted by the Legal
Requirement, providing a supplement or date-down to a previously
provided Appraisal. The parties will cooperate on efforts to minimize
the frequency and costs of such additional Appraisals (or
reappraisals).
(f) Lessor shall under no circumstances be required to build
any improvements on any Property, make any repairs, replacements,
alterations or renewals of any nature or description to any Property,
make any expenditure whatsoever in connection with this Lease or
maintain any Property in any way. Lessor shall not be required to
maintain, repair or rebuild all or any part of any Property, and
Lessee waives the right to (i) require Lessor to maintain, repair, or
rebuild all or any part of any Property, or (ii) make repairs at the
expense of Lessor pursuant to any Legal Requirement, Insurance
Requirement, contract, agreement, covenants, condition or restriction
at any time in effect.
(g) Lessee shall, upon the expiration or earlier termination of
this Lease with respect to a Property, if Lessee shall not have
exercised its Purchase Option or Expiration Date Purchase Option with
respect to such Property, surrender such Property to Lessor, or the
third party purchaser, as the case may be, subject to Lessee's
obligations under this Lease (including without limitation Sections
9.1, 10.1(a)-(f), 10.2, 11.1, 12.1, 22.1 and 23.1).
10.2 Environmental Inspection. If Lessee has not given notice of
exercise of its Expiration Date Purchase Option pursuant to Section 20.2,
then not more than 120 days nor less than 60 days prior to the Expiration
Date, Lessee shall, at its sole cost and expense, provide to Lessor a
report by a reputable environmental consultant selected by Lessee, which
report shall be in form and substance satisfactory to Lessor.
11
ARTICLE XI
11.1 Modifications, Substitutions and Replacements.
(a) Lessee may, either at its sole cost and expense or with the
proceeds of Modification Advances made pursuant to the terms of the
Participation Agreement during the Construction Period, at any time
and from time to time without the consent of Lessor make alterations,
renovations, improvements and additions to the Property or any part
thereof and substitutions and replacements therefor (collectively,
"Modifications"); provided, that: (i) except for any Modification
required to be made pursuant to a Legal Requirement, no Modification
shall materially impair the value, utility or useful life of the
Property from that which existed immediately prior to such
Modification; (ii) the Modification shall be done expeditiously and
in a good and workmanlike manner; (iii) Lessee shall comply with all
Legal Requirements (including all Environmental Laws) and Insurance
Requirements applicable to the Modification, including the obtaining
of all permits and certificates of occupancy, and the structural
integrity of the Property shall not be adversely affected; (iv) to
the extent required by Section 14.2(a), Lessee shall maintain
builders' risk insurance at all times when a Modification is in
progress; (v) subject to the terms of Article XIII relating to
permitted contests, Lessee shall pay all costs and expenses and
discharge any liens arising with respect to the Modification; and
(vi) such Modification shall comply with the requirements of this
Lease (including without limitation Sections 8.2 and 10.1). All
Modifications financed by Lessor shall become the property of, and
title thereto shall immediately and without further action vest in,
the Lessor, when installed (and the Ground Lease shall expressly
provide). All other Modifications shall become the property of, and
title thereto shall immediately and without further action vest in,
Lessor, on surrender of the Property, the earlier termination of this
Lease or the occurrence of a Lease Default or Lease Event of Default
under Section 17.1(j) of this Lease.
(b) The construction process provided for in the Agency
Agreement is acknowledged by Lessor and the Agent to be consistent
with and in compliance with the terms and provisions of this Article
XI.
ARTICLE XII
12.1 Warranty of Title.
(a) Lessee agrees that, except as otherwise provided herein and
subject to the terms of Article XIII relating to permitted contests,
Lessee shall not directly or indirectly create or allow to remain,
and shall promptly discharge at
12
its sole cost and expense, any Lien, defect, attachment, levy, title
retention agreement or claim upon any Property or any Modifications
or any Lien, attachment, levy or claim with respect to the Rent or
with respect to any amounts held by the Agent pursuant to the Credit
Agreement, other than Permitted Liens and Lessor Liens. Lessee shall
promptly notify Lessor in the event it receives actual knowledge that
a Lien other than a Permitted Lien or Lessor Lien has occurred with
respect to a Property, and Lessee represents and warrants to, and
covenants with, Lessor that the Liens in favor of the Lessor created
by the Operative Agreements are first priority perfected liens
subject only to Permitted Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, expressed or implied,
to or for the performance by any contractor, mechanic, laborer,
materialman, supplier or vendor of any labor or services or for the
furnishing of any materials for any construction, alteration,
addition, repair or demolition of or to any Property or any part
thereof. NOTICE IS HEREBY GIVEN THAT LESSOR IS NOT AND SHALL NOT BE
LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE
FURNISHED TO LESSEE, OR TO ANYONE HOLDING A PROPERTY OR ANY PART
THEREOF THROUGH OR UNDER LESSEE, AND THAT NO MECHANIC'S OR OTHER
LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR
AFFECT THE INTEREST OF LESSOR IN AND TO ANY PROPERTY.
ARTICLE XIII
13.1 Permitted Contests Other Than in Respect of Indemnities. Except
to the extent otherwise provided for in Section 13 of the Participation
Agreement, Lessee, on its own or on Lessor's behalf but at Lessee's sole
cost and expense, may contest, by appropriate administrative or judicial
proceedings conducted in good faith and with due diligence, the amount,
validity or application, in whole or in part, of any Legal Requirement, or
utility charges payable pursuant to Section 4.1 or any Lien, attachment,
levy, encumbrance or encroachment, and Lessor agrees not to pay, settle or
otherwise compromise any such item, provided that (a) Lessee provides to
Lessor such security or other assurances reasonably acceptable to Lessor
that Lessee can and will satisfy the Lien and comply with the Legal
Requirements in sufficient time to prevent any sale, forfeiture or loss by
reason of such non-payment or noncompliance, (b) at no time during the
permitted contest shall there be a risk of the imposition of criminal
liability or material civil liability (in the case of a civil liability,
unless Lessee provides to Lessor such security or other assurances
reasonably acceptable to Lessor that Lessee can and will satisfy such
liability) on Lessor, any Holder, the Agent or any Lender for failure to
comply therewith; and (c) in the event that, at any time, there shall be a
material risk of extending the application of such item beyond the end of
the Term, then Lessee shall deliver to Lessor an Officer's
13
Certificate certifying as to the matters set forth in clauses (a) and (b)
of this Section 13.1. Lessor, at Lessee's sole cost and expense, shall
execute and deliver to Lessee such authorizations and other documents as
may reasonably be required in connection with any such contest and, if
reasonably requested by Lessee, shall join as a party therein at Lessee's
sole cost and expense.
ARTICLE XIV
14.1 Public Liability and Workers' Compensation Insurance. During the
Term of each Property, Lessee shall procure and carry, at Lessee's sole
cost and expense, commercial general liability insurance for claims for
injuries or death sustained by persons or damage to property while on the
Properties or the premises where the Equipment is located and such other
public liability coverages as are ordinarily procured by Persons who own or
operate similar properties or equipment in similar businesses. Such
insurance shall be on terms and in amounts that are no less favorable than
insurance maintained by Lessee with respect to similar properties and
equipment that it owns and that are in accordance with normal industry
practice. The policies shall be endorsed to name Lessor, the Holders, the
Agent and the Lenders as additional insureds. The policies shall also
specifically provide that such policies shall be considered primary
insurance which shall apply to any loss or claim before any contribution by
any insurance which Lessor, the Holders, the Agent or the Lenders may have
in force. Lessee shall, in the operation of the Properties, comply with the
applicable workers' compensation laws and protect Lessor, the Holders, the
Agent and the Lenders against any liability under such laws.
14.2 Hazard and Other Insurance.
(a) During the Term for each Property, Lessee shall keep, or
cause to be kept, such Property insured against loss or damage by
fire and other risks and shall maintain builders' risk insurance
during construction of any Improvements or Modifications on terms and
in amounts that are no less favorable than insurance covering other
similar properties owned by Lessee and that are in accordance with
normal industry practice. The policies shall be endorsed to name
Lessor, the Holders, the Agent and the Lenders, to the extent of
their respective interests, as additional loss payees; provided, so
long as no Lease Event of Default exists, any loss payable under the
insurance policies required by this Section will be paid to Lessee
and Lessee will have the sole authority to settle any such insurance
claim without the need for prior approval by any such additional loss
payee.
(b) During the Term with respect to a Property the area in
which such Property is located is designated a "flood-prone" area
pursuant to the Flood Disaster Protection Act of 1973, or any
amendments or supplements thereto, then
14
Lessee shall comply with the National Flood Insurance Program as set
forth in the Flood Disaster Protection Act of 1973. In addition,
Lessee will fully comply with the requirements of the National Flood
Insurance Act of 1968 and the Flood Disaster Protection Act of 1973,
as each may be amended from time to time, and with any other Legal
Requirement, concerning flood insurance to the extent that it apply
to any such Property.
14.3 Coverage.
(a) As of the date of this Lease and annually thereafter,
Lessee shall furnish Lessor and the Agent with certificates showing
the insurance required under Sections 14.1 and 14.2 to be in effect,
naming Lessor, the Holders, the Agent and the Lenders as additional
insureds and loss payees and evidencing the other requirements of
this Article XIV. All such insurance shall be at the cost and expense
of Lessee. 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 material alteration of such
insurance. If a Lease Event of Default has occurred and is continuing
and Lessor so requests, Lessee shall deliver to Lessor copies of all
insurance policies required by Sections 14.1 and 14.2.
(b) Lessee agrees that the insurance policy or policies
required by Sections 14.1, 14.2(a) and 14.2(b) shall include an
appropriate clause pursuant to which any such policy shall provide
that it will not be invalidated by any act or omission of Lessee or
to the extent Lessee waives, at any time, any or all rights of
recovery against any party for losses covered by such policy. Lessee
hereby waives any and all such rights against the Lessor, the
Holders, the Agent and the Lenders to the extent of payments made to
any such Person under any such policy.
(c) Neither Lessor nor Lessee shall carry separate insurance
concurrent in kind or form or contributing in the event of loss with
any insurance required under this Article XIV, except that Lessor may
carry separate liability insurance at Lessor's sole cost so long as
(i) Lessee's insurance is designated as primary and in no event
excess or contributory to any insurance Lessor may have in force
which would apply to a loss covered under Lessee's policy and (ii)
each such insurance policy will not cause Lessee's insurance required
under this Article XIV to be subject to a coinsurance exception of
any kind.
(d) Lessee shall pay as they become due all premiums for the
insurance required by Section 14.1 and Section 14.2, shall renew or
replace each policy prior to the expiration date thereof or otherwise
maintain the coverage required by such Sections without any lapse in
coverage.
15
(e) Any insurance required to be carried hereunder may contain
such deductibles and/or self insurance consistent with industry
standards and the then current practice of Lessee with respect to its
other properties similar to the Properties. Any liability insurance
required under Section 14.1 may be met through "blanket" policies of
insurance.
ARTICLE XV
15.1 Casualty and Condemnation.
(a) Subject to the provisions of this Article XV and Article
XVI (in the event Lessee delivers, or is obligated to deliver, a
Termination Notice), and prior to the occurrence and continuation of
a Lease Default or Lease Event of Default, Lessee shall be entitled
to receive (and Lessor hereby irrevocably assigns to Lessee all of
Lessor's right, title and interest in) any award, compensation or
insurance proceeds under Sections 14.2(a) or (b) hereof to which
Lessee or Lessor may become entitled by reason of their respective
interests in a Property (i) if all or a portion of such Property is
damaged or destroyed in whole or in part by a Casualty or (ii) if the
use, access, occupancy, easement rights or title to such Property or
any part thereof is the subject of a Condemnation; provided, however,
if a Lease Default or Lease Event of Default shall have occurred and
be continuing such award, compensation or insurance proceeds shall be
paid directly to Lessor or, if received by Lessee, shall be held in
trust for Lessor, and shall be paid over by Lessee to Lessor and held
in accordance with the terms of this paragraph (a). All amounts held
by Lessor hereunder on account of any award, compensation or
insurance proceeds either paid directly to Lessor or turned over to
Lessor shall be held as security for the performance of Lessee's
obligations hereunder for the duration of any applicable cure period.
(b) Lessee may appear in any proceeding or action to negotiate,
prosecute, adjust or appeal any claim for any award, compensation or
insurance payment on account of any such Casualty or Condemnation and
shall pay all expenses thereof. At Lessee's reasonable request, and
at Lessee's sole cost and expense, Lessor and the Agent shall
participate in any such proceeding, action, negotiation, prosecution
or adjustment. Lessor and Lessee agree that this Lease shall control
the rights of Lessor and Lessee in and to any such award,
compensation or insurance payment.
(c) If Lessee shall receive notice of a Casualty or a possible
Condemnation of a Property or any interest therein where damage to
the affected Property is estimated to equal or exceed ten percent
(10%) of the Property Cost of such
16
Property, Lessee shall give notice thereof to the Lessor and to the
Agent promptly after the receipt of such notice.
(d) In the event of a Casualty or a Condemnation (regardless of
whether notice thereof must be given pursuant to paragraph (c)), this
Lease shall terminate with respect to the applicable Property in
accordance with Section 16.1 if Lessee, within sixty (60) days after
such occurrence, delivers to Lessor and the Agent a notice to such
effect.
(e) If pursuant to this Section 15.1 this Lease shall continue
in full force and effect following a Casualty or Condemnation with
respect to the affected Property, Lessee shall, at its sole cost and
expense and using, if available, the proceeds of any award,
compensation or insurance with respect to such Casualty or
Condemnation (including, without limitation, any such award,
compensation or insurance which has been received by the Agent and
which should be turned over to Lessee pursuant to the terms of the
Operative Agreements), promptly and diligently repair any damage to
the applicable Property caused by such Casualty or Condemnation in
conformity with the requirements of Sections 10.1 and 11.1, so as to
restore the applicable Property to substantially the same condition,
operation, function and value as existed immediately prior to such
Casualty or Condemnation. In such event, title to the applicable
Property shall remain with Lessor.
(f) In no event shall a Casualty or Condemnation with respect
to which this Lease remains in full force and effect under this
Section 15.1 affect Lessee's obligations to pay Rent pursuant to
Section 3.1.
(g) Notwithstanding anything to the contrary set forth in
Section 15.1(a) or Section 15.1(e), if during the Term with respect
to a Property a Casualty occurs with respect to such Property or
Lessee receives notice of a Condemnation with respect to such
Property, and following such Casualty or Condemnation, Lessee is
unable to use the remaining applicable Property in substantially the
same manner as the Property was used prior to such Casualty or
Condemnation and the applicable Property cannot reasonably be
restored, repaired or replaced in a manner consistent with the
requirements of this Lease by the earlier to occur of the Expiration
Date or the date nine (9) months after the occurrence of such
Casualty or Condemnation (if such Casualty or Condemnation occurs
during the Term), to permit such use, then Lessee shall be required
to exercise its Purchase Option with respect to the applicable
Property on the next Payment Date (notwithstanding the limits on such
exercise contained in Section 20.1), and pay Lessor the Purchase
Option Price and any and all Rent then due and owing and all other
amounts then due and owing (including without limitation amounts
described in clause FIRST of Section 22.2); provided, if any Lease
Default or Lease Event
17
of Default has occurred and is continuing, Lessee shall also promptly
(and in any event within three (3) Business Days) pay Lessor any
award, compensation or insurance proceeds received on account of any
Casualty or Condemnation with respect to any Property. Provided that
no Lease Default or Lease Event of Default has occurred and is
continuing, any Excess Proceeds shall be paid to Lessee. If a Lease
Default has occurred and is continuing and any Loans, Holder Advances
or other amounts are owing with respect thereto, then any Excess
Proceeds (to the extent of any such Loans, Holder Advances or other
amounts owing with respect thereto) shall be paid to the Lessor.
15.2 Environmental Matters. Promptly upon Lessee's actual knowledge
of the presence of Hazardous Substances in any portion of any Property or
Properties in concentrations and conditions that constitute an
Environmental Violation and which, in the reasonable opinion of Lessee, the
cost to undertake any legally required response, clean up, remedial or
other action will or might result in a cost to Lessee of more than
$100,000, Lessee shall notify Lessor in writing of such condition. In the
event of any Environmental Violation (regardless of whether notice thereof
must be given), Lessee shall, not later than thirty (30) days after Lessee
has actual knowledge of such Environmental Violation, either deliver to
Lessor a Termination Notice with respect to the applicable Property or
Properties pursuant to Section 16.1, if applicable, or, at Lessee's sole
cost and expense, promptly and diligently commence any response, clean up,
remedial or other action (including the pursuit by Lessee of appropriate
action against any off-site or third party source for contamination, as
appropriate) necessary to remove, cleanup or remediate the Environmental
Violation in accordance with all Environmental Laws. If Lessee does not
deliver a Termination Notice with respect to such Property pursuant to
Section 16.1, Lessee shall, upon completion of remedial action by Lessee,
cause to be prepared by a reputable environmental consultant acceptable to
Lessor a report describing the Environmental Violation and the actions
taken by Lessee (or its agents) in response to such Environmental
Violation, and a statement by the consultant that the Environmental
Violation has been remedied in full compliance with applicable
Environmental Law. Not less than sixty (60) days prior to any time that
Lessee elects to cease operations with respect to any Property in excess of
that permitted by Section 8.2(a) hereof or to remarket any Property
pursuant to Section 20.2 hereof or any other provision of any Operative
Agreement, Lessee shall deliver a Phase I environmental survey respecting
such Property satisfactory in form and substance to the Lessor.
15.3 Notice of Environmental Matters. Promptly, but in any event
within five (5) Business Days from the date Lessee has actual knowledge
thereof, Lessee shall provide to Lessor written notice of any material
pending or threatened claim, action or proceeding involving any
Environmental Law or any Release on or in connection with any Property or
Properties. All such notices shall describe in reasonable detail the nature
of the claim,
18
action or proceeding and Lessee's proposed response thereto. In addition,
Lessee shall provide to Lessor, within ten (10) Business Days of receipt,
copies of all material written communications with any Governmental
Authority relating to any Environmental Law in connection with any
Property. Lessee shall also promptly provide such detailed reports of any
such material environmental claims as may reasonably be requested by
Lessor.
ARTICLE XVI
16.1 Termination Upon Certain Events. If any of the following occur:
(i) Lessee has delivered a notice pursuant to Section 15.1(d) that
following the applicable Casualty or Condemnation this Lease shall
terminate with respect to the affected Property, or (ii) Lessee has
delivered notice pursuant to the second sentence of Section 15.2 that, due
to the occurrence of an Environmental Violation, this Lease shall terminate
with respect to the affected Property, then Lessee shall be obligated to
deliver, within thirty (30) days of its receipt of notice of the applicable
Condemnation or the occurrence of the applicable Casualty or Environmental
Violation, a written notice to the Lessor in the form described in Section
16.2(a) (a "Termination Notice") of the termination of this Lease with
respect to the applicable Property.
16.2 Procedures.
(a) A Termination Notice shall contain: (i) notice of
termination of this Lease with respect to the affected Property on a
Payment Date not more than sixty (60) days after Lessor's receipt of
such Termination Notice (the "Termination Date"); and (ii) a binding
and irrevocable agreement of Lessee to pay the Termination Value for
the applicable Property, any and all Rent then due and owing and all
other amounts then due and owing (including without limitation
amounts described in clause FIRST of Section 22.2) and purchase such
Property on such Termination Date.
(b) On each Termination Date, Lessee shall pay to Lessor the
Termination Value for the applicable Property, any and all Rent then
due and owing and all other amounts then due and owing (including
without limitation amounts described in clause FIRST of Section 22.2)
theretofore accruing, and Lessor shall convey such Property or the
remaining portion thereof, if any, to Lessee (or Lessee's designee),
all in accordance with Section 19.1, as well as any Net Proceeds with
respect to the Casualty or Condemnation giving rise to the
termination of this Lease with respect to such Property theretofore
received by Lessor; provided, that if a Lease Event of Default shall
have occurred and be continuing and any Loans or Holder Advances are
owing with respect thereto or under this Lease, then any Excess
Proceeds shall be paid to Lessor.
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ARTICLE XVII
17.1 Lease Events of Default. If any one or more of the
following events (each a "Lease Event of Default") shall occur:
(a) Lessee shall fail to make payment of (i) any Basic Rent
(except as set forth in clause (ii)) within five (5) days after the
same has become due and payable or (ii) any Purchase Option Price or
Termination Value, on the date any such payment is due, or any
payment of Basic Rent or Supplemental Rent due on the due date of any
such payment of Purchase Option Price or Termination Value, or any
amount due on the Expiration Date;
(b) Lessee shall fail to make payment of any Supplemental Rent
(other than Supplemental Rent referred to in Section 17.1(a)(ii)) due
and payable within ten (10) Business Days after receipt of notice
thereof;
(c) Lessee shall fail to maintain insurance as required by
Article XIV of this Lease and such failure shall remain uncured for a
period of thirty (30) days after receipt of written notice thereof;
(d) Lessee shall fail to observe or perform any term, covenant
or condition of Lessee under this Lease or any other Operative
Agreement to which Lessee is a party other than those set forth in
Sections 17.1(a), (b), (c) or (g) hereof, or any representation or
warranty made by Lessee set forth in this Lease or in any other
Operative Agreement or in any document entered into in connection
herewith or therewith or in any document, certificate or financial or
other statement delivered in connection herewith or therewith shall
be false or inaccurate in any material way, and if such failure or
misrepresentation or breach of warranty is capable of being cured, it
shall remain uncured for a period of thirty (30) days after receipt
of written notice from Lessor thereof; provided, if such failure or
misrepresentation or breach of warranty is capable of being cured but
cannot be cured within such thirty-day period, so long as Lessee is
diligently pursuing such cure, Lessee shall have an additional
period, not exceeding 60 days, within which to effect such cure;
(e) an Agency Agreement Event of Default shall have
occurred and be continuing;
(f) a failure by Lessee to pay any Imposition, in whole or in
part, or to observe any Legal Requirement, regarding any Property
imposed by any governmental entity or agency thereunder, subject to
Lessee's rights relating to permitted contests under Section 13.1 and
if such failure is capable of being cured, it remains uncured for a
period of thirty (30) days after receipt of written notice from
Lessor thereof; provided, if such a failure is capable of being
20
cured but cannot be cured within such thirty-day period, so long as
Lessee is diligently pursuing such cure, Lessee shall have an
additional period, not exceeding 60 days, within which to effect such
cure;
(g) Lessee shall fail to observe or perform any term, covenant
or condition incorporated by reference herein pursuant to Article
XXVIII hereof and such failure shall remain uncured for a period of
thirty (30) days (or such shorter or longer cure period subsequently
available under the 1995 Credit Agreement with respect to an event of
default thereunder regarding the Incorporated Covenants) after
receipt of written notice from Lessor thereof;
(h) Any default shall occur under the terms applicable to any
Debt of Lessee or any Subsidiary of Lessee in an aggregate amount
(for all Debt so affected) exceeding $5,000,000 and such default
shall (a) consist of the failure to pay such Debt when due (subject
to any applicable grace period), whether by acceleration or
otherwise, or (b) accelerate the maturity of such Debt or permit the
holder or holders thereof, or any trustee or agent for such holder or
holders, to cause such Debt to become due and payable prior to its
expressed maturity;
(i) Any default shall occur in the payment when due of any
obligation of $5,000,000 or more of Lessee or any Subsidiary of
Lessee with respect to any material purchase or lease of goods or
services (except only to the extent that the existence of any such
default is being contested by Lessee or such Subsidiary in good faith
and by appropriate proceedings and appropriate reserves have been
made in respect of such default), and continuance of such default for
30 days after notice thereof from the Lessor;
(j) Lessee or any Material Subsidiary becomes insolvent or
generally fails to pay, or admits in writing its inability or refusal
to pay, debts as they become due; or Lessee or any Material
Subsidiary applies for, consents to, or acquiesces in the appointment
of a trustee, receiver or other custodian for Lessee or such Material
Subsidiary or any property thereof, or makes a general assignment for
the benefit of creditors; or, in the absence of such application,
consent or acquiescence, a trustee, receiver or other custodian is
appointed for Lessee or any Material Subsidiary or for a substantial
part of any property of Lessee or any Material Subsidiary and is not
discharged within 60 days; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or
insolvency law, or any dissolution or liquidation proceeding, is
commenced in respect of Lessee or any Material Subsidiary, and if
such case or proceeding is not commenced by Lessee or such Material
Subsidiary, it is consented to or acquiesced in by Lessee or such
Material Subsidiary, or remains for 60 days undismissed; or Lessee or
21
any Material Subsidiary takes any corporate action to
authorize, or in furtherance of, any of the foregoing;
(k) ____ (i) Institution of any steps by Lessee or any other
Person to terminate a Pension Plan if as a result of such termination
Lessee could be required to make a contribution to such Pension Plan,
or could incur a liability or obligation to such Pension Plan, in
excess of $5,000,000, or (ii) a contribution failure occurs with
respect to any Pension Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA;
(l) Lessee or any ERISA Affiliate shall make a complete or
partial withdrawal from a Multiemployer Plan and the plan sponsor or
such Multiemployer Plan shall notify such withdrawing employer that
such employer has incurred a withdrawal liability in an annual amount
exceeding $5,000,000, unless and only for as long as such liability
shall be contested in good faith and such reserve or other
appropriate provision, if any, as shall be required by GAAP shall
have been made therefor;
(m) Any money judgment, writ or warrant or attachment or
similar process involving in any case a final judgment in an amount
in excess of $5,000,000 shall be entered or filed against Lessee or
any Material Subsidiary or any of their respective assets and shall
remain unsatisfied, undischarged, unvacated, unbonded or unstayed for
a period of 60 days or in any event later than five days prior to the
date of any proposed sale thereunder;
(n) Any Change in Control shall occur; or
(o) Any Operative Agreement to which Lessee or the Construction
Agent is a party shall cease to be enforceable (other than in
accordance with its terms) against such party or such party shall
claim in writing that such is the case.
then, in any such event, (i) all Construction Period Properties shall
automatically become Properties that are subject to the terms of this Lease
as more specifically provided in Section 2.2 and thereafter all references
hereunder to "Property" or "Properties" and all obligations of the Lessee
with respect to the Properties (including specifically without limitation
the obligations of the Lessee contained in this Article XVII) shall be
deemed to include such Construction Period Properties, and (ii) Lessor may,
in addition to the other rights and remedies provided for in this Article
XVII and in Section 18.1, terminate this Lease by giving Lessee five (5)
days notice of such termination (provided that such Event of Default is
continuing at the end of such five-day period), and this Lease shall
terminate, and all rights of Lessee under this Lease shall cease. Lessee
shall, to the fullest extent permitted by law, pay as Supplemental Rent all
costs and expenses incurred by or on behalf of Lessor, including without
limitation reasonable fees and
22
expenses of counsel, as a result of any Lease Event of Default hereunder.
As used in this Lease, a "notice" of a Lease Default or a Lease Event of
Default shall mean a written notice to Lessee pursuant to Section 29.1,
which specifies (i) the Lease Default or the Lease Event of Default and
(ii) that it is intended as a notice of a Lease Default or a Lease Event of
Default.
17.2 Surrender of Possession. If a Lease Event of Default shall have
occurred and be continuing, and whether or not this Lease shall have been
terminated pursuant to Section 17.1, Lessee shall, upon thirty (30) days
written notice, surrender to Lessor possession of the Properties. Lessor
may enter upon and repossess the Properties by such means as are available
at law or in equity, and may remove Lessee and all other Persons and any
and all personal property and Lessee's equipment and personalty and
severable Modifications from the Properties. Lessor shall have no liability
by reason of any such entry, repossession or removal performed in
accordance with applicable law. Upon the written demand of Lessor, Lessee
shall return the Properties promptly to Lessor, in the manner and condition
required by, and otherwise in accordance with the provisions of, Section
22.1(c) hereof.
17.3 Reletting. If a Lease Event of Default shall have occurred and
be continuing, and whether or not this Lease shall have been terminated
pursuant to Section 17.1, Lessor may, but shall be under no obligation to,
relet any or all of the Properties, for the account of Lessee or otherwise,
for such term or terms (which may be greater or less than the period which
would otherwise have constituted the balance of the Term) and on such
conditions (which may include concessions or free rent) and for such
purposes as Lessor may determine, and Lessor may collect, receive and
retain the rents resulting from such reletting. Lessor shall not be liable
to Lessee for any failure to relet any Property or for any failure to
collect any rent due upon such reletting.
17.4 Damages. Neither (a) the termination of this Lease as to all or
any of the Properties pursuant to Section 17.1; (b) the repossession of all
or any of the Properties; nor (c) the failure of Lessor to relet all or any
of the Properties, the reletting of all or any portion thereof, nor the
failure of Lessor to collect or receive any rentals due upon any such
reletting, shall relieve Lessee of its liabilities and obligations
hereunder, all of which shall survive any such termination, repossession or
reletting. If any Lease Event of Default shall have occurred and be
continuing and notwithstanding any termination of this Lease pursuant to
Section 17.1, Lessee shall forthwith pay to Lessor all Rent and other sums
due and payable hereunder to and including the date of such termination.
Thereafter, on the days on which the Basic Rent or Supplemental Rent, as
applicable, are payable under this Lease or would have been payable under
this Lease if the same had not been terminated pursuant to Section 17.1 and
until the end of the Term hereof or what would have been the Term in the
absence of such termination, Lessee shall pay
23
Lessor, as current liquidated damages (it being agreed that it would be
impossible accurately to determine actual damages) an amount equal to the
Basic Rent and Supplemental Rent that are payable under this Lease or would
have been payable by Lessee hereunder if this Lease had not been terminated
pursuant to Section 17.1, less the net proceeds, if any, which are actually
received by Lessor with respect to the period in question of any reletting
of any Property or any portion thereof; provided, that Lessee's obligation
to make payments of Basic Rent and Supplemental Rent under this Section
17.4 shall continue only so long as Lessor shall not have received the
amounts specified in Section 17.6. In calculating the amount of such net
proceeds from reletting, there shall be deducted all of Lessor's, any
Holder's, the Agent's and any Lender's reasonable expenses in connection
therewith, including repossession costs, brokerage or sales commissions,
fees and expenses for counsel and any necessary repair or alteration costs
and expenses incurred in preparation for such reletting. To the extent
Lessor receives any damages pursuant to this Section 17.4, such amounts
shall be regarded as amounts paid on account of Rent.
17.5 Power of Sale. 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, then the Lessor and the Lessee agree that
the Lessee has granted, pursuant to Section 7.1(b) hereof and each Lease
Supplement, a Lien against the Properties WITH POWER OF SALE, and that,
upon the occurrence and during the continuance of any Lease Event of
Default, the Lessor shall have the power and authority, to the extent
provided by law, after prior notice and lapse of such time as may be
required by law, to foreclose its interest (or cause such interest to be
foreclosed) in all or any part of the Properties.
17.6 Final Liquidated Damages. If a Lease Event of Default shall have
occurred and be continuing, whether or not this Lease shall have been
terminated pursuant to Section 17.1 and whether or not Lessor shall have
collected any current liquidated damages pursuant to Section 17.4, Lessor
shall have the right to recover, by demand to Lessee and at Lessor's
election, and Lessee shall pay to Lessor, as and for final liquidated
damages, but exclusive of the indemnities payable under Section 13 of the
Participation Agreement, and in lieu of all current liquidated damages
beyond the date of such demand (it being agreed that it would be impossible
accurately to determine actual damages) the sum of (a) the Termination
Value for all Properties remaining under this Lease, plus (b) all other
amounts owing in respect of Rent and Supplemental Rent theretofore accruing
under this Lease. Upon payment of the amount specified pursuant to the
first sentence of this Section 17.6, Lessee shall be entitled to receive
from Lessor, either at Lessee's request or upon Lessor's election, in
either case at Lessee's cost, a transfer and assignment of Lessor's entire
right, title and interest in and to the Properties, the Improvements,
Fixtures, Modifications and
24
Equipment. To effect such transfer and assignment, Lessor shall execute,
acknowledge (where required) and deliver to Lessee each of the following:
(i) a special or limited warranty Deed conveying the Property (to the
extent it is real property) to Lessee free and clear of the Lien of this
Lease, the Lien of the Credit Documents and any Lessor Liens; (ii) a ▇▇▇▇
of Sale conveying the Property (to the extent it is personal property) to
Lessee free and clear of the Lien of this Lease, the Lien of the Credit
Documents and any Lessor Liens; (iii) any real estate tax affidavit or
other document required by law to be executed and filed in order to record
the Deed; and (iv) a FIRPTA affidavit. Subject to the foregoing, the
Properties shall be conveyed to Lessee (or Lessee's designee) "AS IS" and
in their then present physical condition. If any statute or rule of law
shall limit the amount of such final liquidated damages to less than the
amount agreed upon, Lessor shall be entitled to the maximum amount
allowable under such statute or rule of law; provided, however, Lessee
shall not be entitled to receive an assignment of Lessor's interest in the
Properties, the Improvements, Fixtures, Modifications or Equipment or
documents unless Lessee shall have paid in full the Termination Value and
all other amounts due and owing hereunder and under the other Operative
Agreements.
17.7 Lessee's Purchase Option During Default. If Lessee exercises its
Purchase Option in accordance with Section 20.1 with respect to a Property
while a Lease Default or Lease Event of Default is continuing, the exercise
of such Purchase Option shall be deemed to have cured such Lease Default or
Lease Event of Default to the extent such Lease Default or Lease Event of
Default is no longer continuing with respect to any other Property
remaining subject to this Lease after the exercise of the Purchase Option.
17.8 Waiver of Certain Rights. If this Lease shall be terminated
pursuant to Section 17.1, Lessee waives, to the fullest extent permitted by
law, (a) any notice of re-entry or the institution of legal proceedings to
obtain re-entry or possession; (b) any right of redemption, re-entry or
possession; (c) the benefit of any laws now or hereafter in force exempting
property from liability for rent or for debt; and (d) any other rights
which might otherwise limit or modify any of Lessor's rights or remedies
under this Article XVII.
17.9 Assignment of Rights Under Contracts. If a Lease Event of
Default shall have occurred and be continuing, and whether or not this
Lease shall have been terminated pursuant to Section 17.1, Lessee shall
upon Lessor's demand immediately assign, transfer and set over to Lessor
all of Lessee's right, title and interest in and to each agreement executed
by Lessee in connection with the purchase, construction, development, use
or operation of the Properties (including, without limitation, all right,
title and interest of Lessee with respect to all warranty, performance,
service and indemnity provisions), as and to the extent that the same
relate to the purchase, construction, use and operation of the Properties.
25
17.10 Remedies Cumulative. The remedies herein provided shall be
cumulative and in addition to (and not in limitation of) any other remedies
available at law, equity or otherwise, including, without limitation, any
mortgage foreclosure remedies.
ARTICLE XVIII
18.1 Lessor's Right to Cure Lessee's Lease Defaults. Lessor, without
waiving or releasing any obligation or Lease Event of Default, may (but
shall be under no obligation to) remedy any Lease Event of Default for the
account and at the sole cost and expense of Lessee, including the failure
by Lessee to maintain the insurance required by Article XIV, and may, to
the fullest extent permitted by law, and notwithstanding any right of quiet
enjoyment in favor of Lessee, enter upon any Property, or real property
owned or leased by Lessee and take all such action thereon as may be
necessary or appropriate therefor. No such entry shall be deemed an
eviction of any lessee. All reasonable out-of-pocket costs and expenses so
incurred (including without limitation reasonable fees and expenses of
counsel), together with interest thereon at the Overdue Rate from the date
on which such sums or expenses are paid by Lessor, shall be paid by Lessee
to Lessor on demand.
ARTICLE XIX
19.1 Provisions Relating to Lessee's Exercise of its Purchase Option.
Subject to Section 19.2, in connection with any termination of this Lease
with respect to any Property pursuant to the terms of Section 16.2, or in
connection with Lessee's exercise of its Purchase Option or Expiration Date
Purchase Option, upon the date on which this Lease is to terminate with
respect to the applicable Property or upon the Expiration Date with respect
to the applicable Property, and upon tender by Lessee of the amounts set
forth in Sections 16.2(b), 20.1 or 20.2, as applicable, Lessor shall
execute and deliver to Lessee (or to Lessee's designee) at Lessee's cost
and expense an assignment and transfer of Lessor's entire interest in the
applicable Property (which shall include an assignment of all of Lessor's
right, title and interest in and to any Net Proceeds not previously
received by Lessor). To effect such transfer and assignment, Lessor shall
execute, acknowledge (where required) and deliver to Lessee each of the
following: (i) a special or limited warranty Deed conveying the Property
(to the extent it is real property) to Lessee free and clear of the Lien of
this Lease, the Lien of the Credit Documents and any Lessor Liens; (ii) a
▇▇▇▇ of Sale conveying the Property (to the extent it is personal property)
to Lessee free and clear of the Lien of this Lease, the Lien of the Credit
Documents and any Lessor Liens; (iii) any real estate tax affidavit or
other document required by law to be executed and filed in order to record
the Deed; and (iv) a FIRPTA affidavit. Subject to the foregoing, the
26
applicable Property shall be conveyed to Lessee "AS IS" "WHERE IS" and in
then present physical condition.
19.2 No Termination With Respect to Less than All of a Property.
Lessee shall not be entitled to exercise its Purchase Option separately
with respect to portions of a Property consisting of Land, Equipment and
Improvements but shall be required to exercise its Purchase Option with
respect to such entire Property.
ARTICLE XX
20.1 Purchase Options. Provided that no Lease Default of the types
specified in Sections 17.1(a), (b) or (j) or Lease Event of Default shall
have occurred and be continuing (unless such Lease Event of Default
involves a single Property and can be cured by the exercise of the option
to purchase by Lessee of such Property and such Property is referenced in
the Purchase Notice (referenced below)), and subject to Section 19.2,
Lessee shall have the option (the "Purchase Option"), exercisable by giving
Lessor no less than sixty (60) days irrevocable written notice (the
"Purchase Notice") of Lessee's election to exercise such option as to any
Property, on any anniversary of the Basic Term Commencement Date for such
Property (or if all Properties are to be acquired on any such anniversary),
to purchase all or one or more Properties on such date specified in such
Purchase Notice at a price equal to the Termination Value for such Property
or Properties (which the parties do not intend to be a "bargain" purchase
price), and Lessee at such time shall also pay any and all Rent then due
and owing and all other amounts then due and owing (including without
limitation amounts, if any, described in clause FIRST of Section 22.2)
(such Termination Value, Rent and other amounts being hereafter referred to
as the "Purchase Option Price"); provided, however, that unless the Lessor
otherwise consents or the Purchase Option is exercised after the
Construction Period Termination Date with respect to all of the Properties,
the Purchase Option may not be exercised by the Lessee if, after giving
effect to such exercise, the Maximum Property Cost of the purchased
Properties (together with all other Properties purchased by Lessee pursuant
to this Section 20.1) would be greater than 35% of the greatest Maximum
Property Cost applicable at any time during the Term. If Lessee exercises
its Purchase Option pursuant to this Section 20.1, Lessor shall transfer to
Lessee all of Lessor's right, title and interest in and to such Property as
of the date specified in the Purchase Notice upon receipt of the Purchase
Option Price, amounts, if any, referred to in clause FIRST of Section 22.2
and all Rent and other amounts then due and payable under this Lease and
any other Operative Agreement. To effect any transfer and assignment by
Lessor to Lessee under this Section 20.1, Lessor shall execute, acknowledge
(where required) and deliver to Lessee each of the following: (i) a special
or limited warranty Deed conveying the Property (to the extent it is real
property) to Lessee free and clear of the Lien of this Lease, the Lien of
the Credit Documents
27
and any Lessor Liens; (ii) a ▇▇▇▇ of Sale conveying the Property (to the
extent it is personal property) to Lessee free and clear of the Lien of
this Lease, the Lien of the Credit Documents and any Lessor Liens; (iii)
any real estate tax affidavit or other document required by law to be
executed and filed in order to record the Deed; and (iv) a FIRPTA
affidavit. For purposes of this Lease and the other Operative Agreements,
any and all amounts paid by Lessee pursuant to the provisions of Section
10.3(f) of the Participation Agreement shall be deemed to be amounts paid
and received pursuant to this Section 20.1. Lessee may assign its rights
under this Section 20.1 to another Person; provided, Lessee shall remain
liable for all obligations of Lessee hereunder respecting Property
remaining subject to the terms of this Lease subsequent to such assignment
as if such assignment had not occurred.
20.2 Expiration Date Purchase or Sale Option. Not less than 90 days
and no more than 180 days prior to the Expiration Date, Lessee may give
Lessor and Agent written notice (the "Expiration Date Election Notice")
that Lessee is electing to exercise the Expiration Date Purchase Option or
the option of Lessee to remarket and sell the Properties pursuant to
Section 22.1. If Lessee does not give an Expiration Date Election Notice at
least 90 days and not more than 180 days prior to the then current
Expiration Date, then Lessee shall be obligated to repurchase the
Properties pursuant to Section 20.1. If any Property is the subject of
remediation efforts respecting Hazardous Substances at the Expiration Date
which could materially and adversely impact the Fair Market Sales Value of
such Property, then Lessee shall be obligated to repurchase each such
Property pursuant to Section 20.1. Prior to the Expiration Date, Lessee may
rescind its election to remarket the Properties pursuant to Section 22.1
and elect instead the Expiration Date Purchase Option. If Lessee shall
either (i) elect, or be deemed to have elected, to exercise the Expiration
Date Purchase Option or (ii) elect to remarket the Properties pursuant to
Section 22.1 and fail to cause all of the Properties to be sold on the
Expiration Date in accordance with the terms of Sections 20.1 or 22.1,
respectively, then in either case, on the Expiration Date Lessee shall pay
to Lessor an amount equal to the Termination Value for all the Properties
(which the parties do not intend to be a "bargain" purchase) and, upon
receipt of such amount plus all Rent and other amounts then due and payable
under this Lease and under any other Operative Agreement (including without
limitation the amounts described in clause FIRST of Section 22.2), Lessor
shall transfer to Lessee all of Lessor's right, title and interest in and
to the Properties in accordance with Section 19.1.
20.3 Lessor's Transfer Option. If, on the Construction Period
Termination Date, there are fewer than three (3) Properties then subject to
the terms of this Lease, then Lessor shall have the option to give Lessee
irrevocable written notice that Lessor, on a Payment Date that is not less
than thirty (30) days after the date of such written notice, shall transfer
and convey all of its right, title and interest in and to any or all
28
of the Properties to Lessee. On any transfer and conveyance date specified
by Lessor pursuant to this Section 20.3, (i) Lessor shall transfer and
convey all of its right, title and interest in and to any or all of the
Properties previously specified to Lessee, (ii) Lessee shall accept such
transfer and conveyance of right, title and interest in and to the
respective Property or Properties and (iii) Lessee shall pay the
Termination Value for such respective Property or Properties and all Rent
and other amounts then due and payable under this Lease and under any other
Operative Agreement (including without limitation all costs and expenses
referred to in clause FIRST of Section 22.2), in accordance with Section
19.1.
ARTICLE XXI
21.1 Renewal. Provided that no Lease Event of Default shall have
occurred and be continuing and provided that the Lenders agree at such time
to extend the Maturity Date to a date that is identical to the final day of
the Extended Term, at the Basic Term Expiration Date, Lessee may renew this
Lease (the "Renewal Option") for the Extended Term upon not more than 180
days and not less than 90 days prior written notice to Lessor, with respect
to all Property, other than Property which Lessee shall have elected to
purchase pursuant to Section 20.1. Unless otherwise agreed, any such
renewal of this Lease for the Extended Term shall be on the same terms and
conditions as set forth in this Lease for the original Term (which the
parties do not intend to be a "bargain" renewal), subject in any case to
renegotiation of the rental rate applicable during the Extended Term.
ARTICLE XXII
22.1 Sale Procedure.
(a) During the Marketing Period, Lessee, on behalf of any
assignee of Lessee pursuant to Section 25.1 or the Lessor, shall
obtain bids for the cash purchase of all of the Properties in
connection with a sale to one or more purchasers to be consummated on
the Expiration Date for the highest price available (subject to the
proviso in the next sentence), shall notify Lessor promptly of the
name and address of each prospective purchaser and the cash price
which each prospective purchaser shall have offered to pay for any
Property and shall provide Lessor with such additional information
about the bids and the bid solicitation procedure as Lessor may
reasonably request from time to time. Lessor may reject any and all
bids and may assume sole responsibility for obtaining bids by giving
Lessee written notice to that effect; provided, however, that
notwithstanding the foregoing, Lessor may not reject the bids for the
Properties submitted by the Lessee if such bids, in the aggregate,
are greater than or equal to the sum of the Limited Recourse Amount
for all of the Properties,
29
plus all amounts, if any, referred to in clause FIRST of Section 22.2
and represent bona fide offers from one or more third party
purchasers. If the price which a prospective purchaser or purchasers
shall have offered to pay for the Properties is less than the sum of
the Limited Recourse Amount plus all costs and expenses referred to
in clause FIRST of Section 22.2, Lessor may elect to retain all the
Properties by giving Lessee prior written notice of Lessor's election
to retain the Properties, and upon receipt of such notice, Lessee
shall surrender, or cause to be surrendered, the Properties to Lessor
pursuant to Section 10.1. Unless Lessor shall have elected to retain
the Properties pursuant to the preceding sentence, Lessee shall
arrange for Lessor to sell the Properties, for cash on the Expiration
Date to the purchaser or purchasers identified by Lessee or Lessor,
as the case may be. To effect such transfer and assignment, Lessor
shall execute, acknowledge (where required) and deliver to Lessee
each of the following: (i) a special or limited warranty Deed
conveying the Property (to the extent it is real property) to the
purchaser or purchasers free and clear of the Lien of this Lease, the
Lien of the Credit Documents and any Lessor Liens; (ii) a ▇▇▇▇ of
Sale conveying the Property (to the extent it is personal property)
to the purchaser or purchasers free and clear of the Lien of this
Lease, the Lien of the Credit Documents and any Lessor Liens; (iii)
any real estate tax affidavit or other document required by law to be
executed and filed in order to record the Deed; and (iv) a FIRPTA
affidavit. Lessee shall surrender, or cause to be surrendered, the
Property so sold or subject to such documents to each purchaser in
the condition specified in Section 10.1. Neither party shall take any
action or fail to take any action (where action is required under the
Operative Agreements) which would have the effect of discouraging
bona fide third party bids for any Property. If all of the Properties
are not either (i) sold on the Expiration Date in accordance with the
terms of this Section 22.1, or (ii) retained by the Lessor pursuant
to an affirmative election made by the Lessor pursuant to the third
sentence of this Section 22.1(a), then the Lessee shall be obligated
to pay the Lessor on the Expiration Date an amount equal to the
Termination Value for all of the Properties (plus all Rent and other
amounts then due and payable under this Lease and any other Operative
Agreements) in accordance with the terms of Section 20.2.
(b) If the Properties are sold on the Expiration Date to one or
more third party purchasers in accordance with the terms of Section
22.1(a) and the aggregate purchase price paid for the Properties
minus the sum of all amounts, if any, referred to in clause FIRST of
Section 22.2 is less than the sum of the aggregate Termination Values
for all of the Properties plus all Rent and other amounts then due
and payable under this Lease and under any other Operative Agreements
(hereinafter such difference shall be referred to
30
as the "Deficiency Balance"), then the Lessee hereby unconditionally
promises to pay to the Lessor on the Expiration Date the lesser of
(i) the Deficiency Balance, or (ii) the Maximum Residual Guarantee
Amount for all of the Properties. If the Properties are retained by
the Lessor pursuant to an affirmative election made by the Lessor
pursuant to the third sentence of Section 22.1(a), then the Lessee
hereby unconditionally promises to pay to the Lessor on the
Expiration Date an amount equal to the aggregate Maximum Residual
Guaranty Amounts for all of the Properties.
(c) In the event the Properties are either sold to a third
party purchaser on the Expiration Date or retained by the Lessor in
connection with an affirmative election by the Lessor pursuant to the
third sentence of Section 22.1(a), then in either case on the
Expiration Date the Lessee shall provide, or cause to be provided,
Lessor or such third party purchaser, with (i) all permits,
certificates of occupancy, governmental licenses and authorizations
(to the extent such licenses or authorizations are transferable)
necessary to use and operate such Property for its intended purposes,
(ii) such easements, licenses, rights-of-way and other rights and
privileges in the nature of an easement as are reasonably necessary
or desirable in connection with the use, repair, access to or
maintenance of such Property for its intended purpose or otherwise as
the Lessor shall reasonably request, and (iii) a services agreement
covering such services as Lessor or such third party purchaser may
request in order to use and operate the Property for its intended
purposes at such rates (not in excess of arm's-length fair market
rates) as shall be acceptable to Lessee and Lessor or such third
party purchaser. All assignments, licenses, easements, agreements and
other deliveries required by clauses (i) and (ii) of this paragraph
(c) shall be in form satisfactory to the Lessor or such third party
purchaser, as applicable, and shall be fully assignable (including
both primary assignments and assignments given in the nature of
security) without payment of any fee, cost or other charge.
22.2 Application of Proceeds of Sale. The Lessor shall apply the
proceeds of sale of any Property in the following order of priority:
(i) FIRST, to pay or to reimburse Lessor for the
payment of all reasonable costs and expenses, if any,
incurred by Lessor in connection with the sale;
(ii) SECOND, so long as the Credit Agreement is in
effect and the Holder Advances or any amount is owing to any Holder
under any Operative Agreement, to the Agent to be applied pursuant to
inter-creditor provisions between the Lenders and the Holders
contained in Section 8 of the Credit Agreement and any other
applicable provisions of the Operative Agreements; and
31
(iii) THIRD, to the Lessee.
22.3 (intentionally omitted).
22.4 (intentionally omitted).
22.5 Certain Obligations Continue. During the Marketing Period, the
obligation of Lessee to pay Rent with respect to the Properties (including
the installment of Basic Rent due on the Expiration Date) shall continue
undiminished until payment in full to Lessor of the sale proceeds, if any,
the Maximum Residual Guarantee Amount and all other amounts due to Lessor
with respect to all Properties. Lessor shall have the right, but shall be
under no duty, to solicit bids, to inquire into the efforts of Lessee to
obtain bids or otherwise to take action in connection with any such sale,
other than as expressly provided in this Article XXII.
22.6 Sale of Undeveloped Pads. Provided that no Lease Default or
Lease Event of Default shall have occurred and be continuing, Lessee shall
have the option, exercisable by giving Lessor no less than fifteen (15)
days written notice of Lessee's election to transfer and convey any
undeveloped Land (excluding any de minimus site improvements) regarding any
Property on the following terms and conditions: (a) the Person to whom the
transfer and conveyance is made shall not be an Affiliate of Lessee; (b)
the purchase price for such Land shall be equal to or greater than the Fair
Market Sales Value thereof and the net proceeds from the sale of such Land
shall be retained by Lessee; (c) the applicable Property, excluding such
Land transferred and conveyed therefrom, shall (on and after the date of
such transfer and conveyance) satisfy all of the terms and conditions of
the Operative Agreements and (d) all Rent and other amounts due and payable
by Lessee under any Operative Agreement shall be paid on or prior to the
date of such transfer and conveyance.
ARTICLE XXIII
23.1 Holding Over. If Lessee shall for any reason remain in
possession of a Property after the expiration or earlier termination of
this Lease as to such Property (unless such Property is conveyed to
Lessee), such possession shall be as a tenancy at sufferance during which
time Lessee shall continue to pay Supplemental Rent that would be payable
by Lessee hereunder were the Lease then in full force and effect with
respect to the Property and Lessee shall continue to pay Basic Rent at 110%
of the Basic Rent that would otherwise be due and payable at such time.
Such Basic Rent shall be payable from time to time upon demand by Lessor
and such additional 10% amount shall be applied by the Lessor to the
payment of the Loans pursuant to the Credit Agreement and the Holder
Advances pursuant to the Trust Agreement pro rata between the Loans and the
Holder Advances. During any period of tenancy at sufferance, Lessee shall,
subject to the second preceding sentence, be obligated to perform and
observe
32
all of the terms, covenants and conditions of this Lease, but shall have no
rights hereunder other than the right, to the extent given by law to
tenants at sufferance, to continue their occupancy and use of such
Property. Nothing contained in this Article XXIII shall constitute the
consent, express or implied, of Lessor to the holding over of Lessee after
the expiration or earlier termination of this Lease as to any Property
(unless such Property is conveyed to Lessee) and nothing contained herein
shall be read or construed as preventing Lessor from maintaining a suit for
possession of such Property or exercising any other remedy available to
Lessor at law or in equity.
ARTICLE XXIV
24.1 Risk of Loss. During the Term, unless Lessee shall not be in
actual possession of the Property in question solely by reason of Lessor's
exercise of its remedies of dispossession under Article XVII, the risk of
loss or decrease in the enjoyment and beneficial use of such Property as a
result of the damage or destruction thereof by fire, the elements,
casualties, thefts, riots, wars or otherwise is assumed by Lessee, and
Lessor shall in no event be answerable or accountable therefor.
ARTICLE XXV
25.1 Assignment.
(a) Without the consent of the Lessor, Lessee may assign,
subject to Section 25.1(b), this Lease and its rights hereunder in
whole or in part to any Person provided the aggregate Property Cost
of all such Properties under assignment, at the time such assignment
becomes effective, does not exceed 25% of the aggregate Property Cost
of all Properties then subject to this Lease. Lessee may not assign
this Lease or its rights hereunder in whole or in part in addition to
that referenced in the preceding sentence without first obtaining the
prior written consent of the Lessor. Each assignment hereunder shall
be made in the normal course of Lessee's business, on commercially
reasonable terms and at market rates.
(b) No such assignment or other relinquishment of possession to
any Property shall in any way discharge or diminish any of the
obligations of Lessee to Lessor hereunder and Lessee shall remain
directly and primarily liable under this Lease as to any assignment
regarding this Lease.
25.2 Subleases.
(a) Without the consent of the Lessor, Lessee may sublet,
subject to Section 25.2(c), any Property or portion thereof to (i)
any wholly-owned Subsidiary of Lessee or (ii)
33
any Person (which is not a wholly-owned Subsidiary of Lessee)
provided the aggregate Property Cost of all such Properties under
sublease to Persons (which are not wholly-owned Subsidiaries of
Lessee), at the time such sublease becomes effective, does not exceed
25% of the aggregate Property Cost of all Properties then subject to
this Lease. Lessee may not sublet any Property or portion thereof in
addition to that referenced in the preceding sentence without first
obtaining the prior written consent of the Lessor. Each sublease
hereunder shall be made in the normal course of Lessee's business, on
commercially reasonable terms and at market rates. Each sublease may
be for a term less than, equal to or greater than the Term, as
extended from time to time.
(b) Promptly following the execution and delivery of any
sublease permitted by this Article XXV, Lessee shall notify Lessor
and the Agent of the execution of such sublease. As of the date of
each Lease Supplement, Lessee shall lease the respective Properties
described in such Lease Supplement from Lessor, and any existing
tenant respecting such Property shall automatically be deemed to be a
subtenant of Lessee and not a tenant of Lessor.
(c) No such sublease or other relinquishment of possession to
any Property shall in any way discharge or diminish any of Lessee's
obligations to Lessor hereunder and Lessee shall remain directly and
primarily liable under this Lease as to the Property, or portion
thereof, so sublet.
ARTICLE XXVI
26.1 No Waiver. No failure by Lessor or Lessee to insist upon the
strict performance of any term hereof or to exercise any right, power or
remedy upon a default hereunder, and no acceptance of full or partial
payment of Rent during the continuance of any such default, shall
constitute a waiver of any such default or of any such term. To the fullest
extent permitted by law, no waiver of any default shall affect or alter
this Lease, and this Lease shall continue in full force and effect with
respect to any other then existing or subsequent default.
ARTICLE XXVII
27.1 Acceptance of Surrender. No surrender to Lessor of this Lease or
of all or any portion of any Property or of any part of any thereof or of
any interest therein shall be valid or effective unless agreed to and
accepted in writing by Lessor and, prior to the payment or performance of
all obligations under the Credit Documents, the Agent, and no act by Lessor
or the Agent or any representative or agent of Lessor or the Agent, other
than a
34
written acceptance, shall constitute an acceptance of any such
surrender.
27.2 No Merger of Title. There shall be no merger of this Lease or of
the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, in whole or in
part, (a) this Lease or the leasehold estate created hereby or any interest
in this Lease or such leasehold estate, (b) any right, title or interest in
any Property, (c) any Notes, or (d) a beneficial interest in Lessor.
ARTICLE XXVIII
28.1 Incorporation of Covenants. Reference is made to that certain
Credit Agreement dated as of October 30, 1995 (the "1995 Credit Agreement")
among the Lessee, Bank of America National Trust and Savings Association,
as Agent, and the other financial institutions party thereto. Further
reference is made to the covenants contained in Section 10 of the 1995
Credit Agreement (hereinafter referred to as the "Incorporated Covenants").
The Lessee agrees with the Lessor that the Incorporated Covenants (and all
other relevant provisions of the Credit Agreement related thereto) are
hereby incorporated by reference into this Lease to the same extent and
with the same effect as if set forth fully herein, without giving effect to
any waiver, amendment, modification or replacement of the 1995 Credit
Agreement or any term or provision of the Incorporated Covenants occurring
subsequent to the date of this Lease, except to the extent otherwise
specifically provided in the following provisions of this paragraph. In the
event a waiver is granted under the 1995 Credit Agreement or an amendment
or modification is executed with respect to the 1995 Credit Agreement, and
such waiver, amendment and/or modification affects the Incorporated
Covenants, then such waiver, amendment or modification shall be effective
with respect to the Incorporated Covenants as incorporated by reference
into this Lease only if consented to in writing by the Lessor and the
Majority Lenders. In the event of any replacement of the 1995 Credit
Agreement with a similar credit facility (the "New Facility") the covenants
contained in the New Facility which correspond to the covenants contained
in Section 10 of the 1995 Credit Agreement shall become the Incorporated
Covenants hereunder only if consented to in writing by the Lessor and the
Majority Lenders and, if such consent is not granted or if the 1995 Credit
Agreement is terminated and not replaced, then the covenants contained in
Section 10 of the 1995 Credit Agreement (together with any modifications or
amendments approved in accordance with this paragraph) shall continue to be
the Incorporated Covenants hereunder.
ARTICLE XXIX
29.1 Notices. All notices required or permitted to be given
under this Lease shall be in writing. Notices may be served by
35
certified or registered mail, postage paid with return receipt requested;
by private courier, prepaid; by telex, facsimile, or other
telecommunication device capable of transmitting or creating a written
record; or personally. Mailed notices shall be deemed delivered five days
after mailing, properly addressed. Couriered notices shall be deemed
delivered when delivered as addressed, or if the addressee refuses
delivery, when presented for delivery notwithstanding such refusal. Telex
or telecommunicated notices shall be deemed delivered when receipt is
either confirmed by confirming transmission equipment or acknowledged by
the addressee or its office. Personal delivery shall be effective when
accomplished. Unless a party changes its address by giving notice to the
other party as provided herein, notices shall be delivered to the parties
at the following addresses:
If to Lessee:
▇▇▇▇ ▇▇▇▇▇, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
and Corporate Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lessor:
First Security Bank of Utah, N.A.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇. ▇▇▇▇▇
Corporate Trust Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the Agent:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Ms. ▇▇▇▇▇ Oxford
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or such additional parties and/or other address as such party may hereafter
designate, and shall be effective upon receipt or refusal thereof.
36
ARTICLE XXX
30.1 Miscellaneous. Anything contained in this Lease to the contrary
notwithstanding, all claims against and liabilities of Lessee or Lessor
arising from events commencing prior to the expiration or earlier
termination of this Lease shall survive such expiration or earlier
termination. If any provision of this Lease shall be held to be
unenforceable in any jurisdiction, such unenforceability shall not affect
the enforceability of any other provision of this Lease and such
jurisdiction or of such provision or of any other provision hereof in any
other jurisdiction.
30.2 Amendments and Modifications. Neither this Lease, any Lease
Supplement nor any provision hereof may be amended, waived, discharged or
terminated except by an instrument in writing in recordable form signed by
Lessor and Lessee.
30.3 Successors and Assigns. All the terms and provisions of this
Lease shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
30.4 Headings and Table of Contents. The headings and table of
contents in this Lease are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
30.5 Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
30.6 GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OREGON.
30.7 Calculation of Rent. All calculation of Basic Rent payable
hereunder (to the extent computed with reference to the Eurodollar Rate)
shall be computed based on the actual number of days elapsed over a year of
360 days.
30.8 Memoranda of Lease and Lease Supplements. This Lease shall not
be recorded; provided, Lessor and Lessee shall promptly record (a) a
memorandum of this Lease and the applicable Lease Supplement (in
substantially the form of Exhibit B-1 attached hereto) regarding (i) each
Improved Property promptly after the acquisition thereof in the local
filing office with respect thereto and (ii) each Property which is not an
Improved Property promptly after the commencement of the Basic Term
therefor in the local filing office with respect thereto, and (b) a
memorandum of this Lease (in substantially the form of Exhibit B-2 attached
hereto) regarding each Property which is not an Improved Property promptly
after the acquisition thereof in the local filing office with respect
thereto, in all cases at Lessee's cost and expense, and as required under
applicable law to sufficiently evidence this Lease or any such Lease
Supplement in the applicable real estate filing records.
37
30.9 Allocations between the Lenders and the Holders. Notwithstanding
any other term or provision of this Lease to the contrary, the allocations
of the proceeds of the Properties and any and all other Rent and other
amounts received hereunder shall be subject to the inter-creditor
provisions between the Lenders and the Holders contained in the Operative
Agreement (or as otherwise agreed among the Lenders and the Holders from
time to time).
30.10 Limitations on Recourse. Notwithstanding anything
contained in this Lease to the contrary, Lessee agrees to look solely to
Lessor's estate and interest in the Properties (and in no circumstance to
the Agent, the Lenders, the Holders or otherwise to Lessor) for the
collection of any judgment requiring the payment of money by Lessor in the
event of liability by Lessor, and no other property or assets of Lessor or
any shareholder, owner or partner (direct or indirect) in or of Lessor, or
any director, officer, employee, beneficiary, Affiliate of any of the
foregoing shall be subject to levy, execution or other enforcement
procedure for the satisfaction of the remedies of Lessee under or with
respect to this Lease, the relationship of Lessor and Lessee hereunder or
Lessee's use of the Properties or any other liability of Lessor to Lessee.
Nothing in this Section shall be interpreted so as to limit the terms of
Sections 6.1 or 6.2.
30.11 Estoppel Certificates. Upon twenty (20) days' prior
notice of the request, either party will execute, acknowledge and deliver
to the other party a certificate stating (a) that this Lease is unmodified
and in full force and effect (or, if there have been modifications, that
this Lease is in full force and effect as modified, and setting forth such
modifications), (b) the dates to which Rent and other sums payable
hereunder have been paid, and (c) either that to the knowledge of the party
no default exists under this Lease or specifying each such default of which
the party has knowledge. A party shall not be obligated, except as provided
herein, to update any certificate once delivered.
30.12 Decision Making by Parties. Wherever a party's consent,
approval, decision or determination is required under this Lease, such
consent or approval shall be given or decision or determination shall be
made in writing and in a commercially reasonable manner. No change in Rent,
the rights of the parties or the economic terms of this Lease shall be
required as a condition to granting of consent. Any denial of consent will
include in reasonable detail the reason for denial or aspect of the request
that was not acceptable.
30.13 Limited Power of Attorney. To the extent required by
Lessee, Lessor hereby agrees to provide Lessee with a Limited Power of
Attorney permitting Lessee to act on behalf of Lessor in connection with
(i) consenting to all Subleases referenced in Section 25.2 of this Lease
(respecting up to, but not to exceed, 25% of the aggregate Property Costs
of all Properties then
38
subject to the Lease), (ii) executing all easements, use, restrictive
covenant, assessment or bonding agreements referenced in the first
paragraph of Section 10.5 of the Participation Agreement and (iii) selling
undeveloped Land as is more specifically described in Section 22.6 of this
Lease (provided, all such sales shall be conducted in compliance with the
terms of such Section 22.6, without modification of such provisions
pursuant to the utilization of the Limited Power of Attorney by Lessee);
provided, the Limited Power of Attorney may be utilized only to the extent
(x) no Default or Event of Default shall have occurred or be continuing at
the time of the contemplated exercise of the Limited Power of Attorney and
(y) such Sublease, easement, use, restrictive covenant, assessment or
bonding agreement or document of sale shall be made in the normal course of
the Lessee's business, at market rates, on commercially reasonable terms
and accomplished in a manner so as not to diminish the value of any
Property in any material respect.
To the extent any Event of Default has occurred and is continuing or
the Lessee has received written notice of the occurrence of any Default,
the Limited Power of Attorney shall immediately terminate and be void and
of no further force or effect unless reinstated in writing by the Lessor
and acknowledged and agreed to by the Holders and the Agent. Each action
taken by the Lessee under the Limited Power of Attorney shall
automatically, without further action, be deemed to be a representation and
warranty as of such date that the conditions set forth in the first
sentence of this Section 30.13 are satisfied in full as of such date.
30.14 Submission To Jurisdiction; Waivers. Each of the
parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Lease and the other Operative Agreements to
which it is a party, or for recognition and enforcement of any judgement in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of Oregon, the courts of the United States of America for the
District of Oregon, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail) postage prepaid,
to such party at its address set forth in Section 29.1 or at such other
address of which the parties hereto shall have been notified pursuant
thereto;
39
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 30.14 any special, exemplary or punitive
damages.
30.15 WAIVERS OF JURY TRIAL. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE LESSOR AND THE LESSEE HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS LEASE OR ANY OTHER OPERATIVE AGREEMENT TO WHICH SUCH
ENTITY IS A PARTY AND FOR ANY COUNTERCLAIM THEREIN.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Lease to be duly
executed and delivered as of the date first above written.
▇▇▇▇ ▇▇▇▇▇, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Corporate
Treasurer
FIRST SECURITY BANK OF UTAH, N.A., not
individually, but solely as Owner
Trustee under the FM Trust
1995-2
By: ▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
Receipt of this original
counterpart of the foregoing
Lease is hereby acknowledged
as the date hereof
NationsBank of Texas, N.A.,
as Agent
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A TO
THE LEASE
LEASE SUPPLEMENT NO. ___
THIS LEASE SUPPLEMENT NO. ___ (this "Lease Supplement") dated as of
________________ between FIRST SECURITY BANK OF UTAH, N.A., a national
banking association, not individually, but solely as Owner Trustee under
the FM Trust 1995-2, as lessor (the "Lessor"), and ▇▇▇▇ ▇▇▇▇▇, INC., as
lessee (the "Lessee").
WHEREAS, the Lessor is the owner or will be owner of the Property
described on Schedule I hereto (the "Leased Property") and wishes to lease
the same to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. DEFINITIONS; RULES OF USAGE. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in Appendix A to the Participation
Agreement, dated as of December 1, 1995, among the Lessee, the Lessor, not
individually, except as expressly stated therein, but solely as Owner
Trustee under the FM Trust 1995-2, NationsBank of Texas, N.A., Greenwich
Funding Corporation and Credit Suisse, as the Holders, the various banks
and banking institutions which are parties thereto from time to time and
NationsBank of Texas, N.A., as Agent for the Lenders.
SECTION 2. THE PROPERTIES. Attached hereto as Schedule I is the
description of the Leased Property, with an Equipment Schedule attached
hereto as Schedule I-A, an Improvement Schedule attached hereto as Schedule
I-B and a legal description of the Land for such Project attached hereto as
Schedule I-C. Effective upon the execution and delivery of this Lease
Supplement by the Lessor and the Lessee, the Leased Property shall be
subject to the terms and provisions of the Lease.
SECTION 3. RATIFICATION; INCORPORATION BY REFERENCE. Except as
specifically modified hereby, the terms and provisions of the Lease and the
Operative Agreements are hereby ratified and confirmed and remain in full
force and effect. The Lease is hereby incorporated herein by reference as
though restated herein in its entirety.
SECTION 4. ORIGINAL LEASE SUPPLEMENT. The single executed original of
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of
the Agent therefor on or following the signature page thereof shall be the
original executed counterpart of this Lease Supplement (the "Original
Executed Counterpart").
To the extent that this Lease Supplement constitutes chattel paper, as such
term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than
the Original Executed Counterpart.
SECTION 5. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF OREGON.
SECTION 6. MORTGAGE; POWER OF SALE. Without limiting any other
remedies set forth in the Lease, in the event that a court of competent
jurisdiction rules that the Lease constitutes a mortgage, deed of trust or
other secured financing as is the intent of the parties, then the Lessor
and the Lessee agree that the Lessee hereby grants a Lien against the
Leased Property WITH POWER OF SALE, and that, upon the occurrence and
during the continuance of any Lease Event of Default, the Lessor shall have
the power and authority, to the extent provided by law, after prior notice
and lapse of such time as may be required by law, to foreclose its interest
(or cause such interest to be foreclosed) in all or any part of the Leased
Property.
SECTION 7. COUNTERPART EXECUTION. This Lease Supplement
may be executed in any number of counterparts and by each of the
parties hereto in separate counterparts, all such counterparts
together constituting but one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
[IF NECESSARY, MODIFY TO PUT IN RECORDABLE FORM.]
[CONFORM TO STATE LAW REQUIREMENTS]
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
On this ____ day of ______________, 19___, before me,
_____________________ [NOTARY'S NAME], a Notary Public of the State of
______, duly commissioned and sworn, personally appeared _________________
to me personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the written instrument as the
_________________ of FIRST SECURITY BANK OF UTAH, N.A., a national banking
association, not individually, but solely as Owner Trustee under the FM
Trust 1995-2, of and on behalf of such national banking association and
acknowledged to me that such national banking association executed the
same.
[NOTARIAL SEAL] _____________________________________
Notary Public for the State of ______
Residing at:_________________________
My commission expires:_______________
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
On this ____ day of ______________, 19___, before me,
_____________________ [NOTARY'S NAME], a Notary Public of the State of
Oregon, duly commissioned and sworn, personally appeared _________________
to me personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the written instrument as the
_________________ of ▇▇▇▇ ▇▇▇▇▇, INC., a Delaware corporation, of and on
behalf of such corporation and acknowledged to me that such corporation
executed the same.
[NOTARIAL SEAL] __________________________________
Notary Public for the State of Oregon
Residing at:______________________
My commission expires:____________
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
On this ____ day of ______________, 19___, before me,
_____________________ [NOTARY'S NAME], a Notary Public of the State of
______, duly commissioned and sworn, personally appeared _________________
to me personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the written instrument as the
_________________ of NATIONSBANK OF TEXAS, N.A., a national banking
association, as Agent, of and on behalf of such national banking
association and acknowledged to me that such national banking association
executed the same.
[NOTARIAL SEAL] _____________________________________
Notary Public for the State of ______
Residing at:_________________________
My commission expires:_______________
SCHEDULE I
TO LEASE SUPPLEMENT NO. ____
SCHEDULE I-A
TO LEASE SUPPLEMENT NO. ____
(Equipment)
SCHEDULE I-B
TO LEASE SUPPLEMENT NO. ____
(Improvements)
SCHEDULE I-C
TO LEASE SUPPLEMENT NO. ____
(Land)
EXHIBIT B-1 TO THE LEASE
Recordation requested by:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC
After recordation return to:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC (WMA)
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Space above this line
for Recorder's use
-------------------------------------------------------------------------------
MEMORANDUM OF LEASE AGREEMENT
(TAX RETENTION OPERATING LEASE) AND
LEASE SUPPLEMENT NO. _____________
THIS MEMORANDUM OF LEASE AGREEMENT (TAX RETENTION OPERATING LEASE)
AND LEASE SUPPLEMENT NO. ____________ ("Memorandum"), dated as of
_____________, 199___, is by and between FIRST SECURITY BANK OF UTAH, N.A.,
a national banking association, not individually, but solely as Owner
Trustee under the FM Trust 1995-2, with an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Landlord") and ▇▇▇▇
▇▇▇▇▇, INC., a Delaware corporation, with an office at ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter referred to as
"Tenant").
WITNESSETH:
That for value received, Landlord and Tenant do hereby covenant,
promise and agree as follows:
1. DEMISED PREMISES. Landlord has leased to Tenant, and Tenant
has leased from Landlord, for the Term (as hereinafter defined), certain
real property and other property located in ________________, which is
described in the attached Exhibit A (the "Property"), pursuant to the terms
of a Lease Agreement (Tax Retention Operating Lease Agreement), between
Landlord and Tenant dated December 1, 1995 (the "Lease") and a Lease
Supplement No. _____ between Landlord and Tenant dated ______________ (the
"Lease Supplement").
2. TERM. The term of the Lease ("Term") commenced on
_______ and shall end December 8, 2000, unless the Term is
extended or earlier terminated in accordance with the provisions
of the Lease.
3. MORTGAGE; POWER OF SALE. Without limiting any other remedies
set forth in the Lease, in the event that a court of competent jurisdiction
rules that the Lease constitutes a mortgage, deed of trust or other secured
financing as is the intent of the parties, then the Lessor and the Lessee
agree that the Lessee has granted, pursuant to the terms of the Lease and
the Lease Supplement, a Lien against the Property WITH POWER OF SALE, and
that, upon the occurrence and during the continuance of any Lease Event of
Default, the Lessor shall have the power and authority, to the extent
provided by law, after prior notice and lapse of such time as may be
required by law, to foreclose its interest (or cause such interest to be
foreclosed) in all or any part of the Property.
4. EFFECT OF MEMORANDUM. The purpose of this instrument is to
give notice of the Lease and the Lease Supplement and their respective
terms, covenants and conditions to the same extent as if the Lease and the
Lease Supplement were fully set forth herein. This Memorandum shall not
modify in any manner the terms, conditions or intent of the Lease or the
Lease Supplement and the parties agree that this Memorandum is not intended
nor shall it be used to interpret the Lease or the Lease Supplement or
determine the intent of the parties under the Lease or the Lease
Supplement.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: TENANT:
FIRST SECURITY BANK ▇▇▇▇ ▇▇▇▇▇, INC., a Delaware
OF UTAH, N.A. not individually, corporation
but solely as Owner Trustee
under the FM Trust 1995-2
By:___________________________ By:__________________________
Its:__________________________ Its:_________________________
[CONFORM TO STATE LAW REQUIREMENTS]
ACKNOWLEDGEMENTS
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
On this ____ day of ______________, 19___, before me,
_____________________ [NOTARY'S NAME], a Notary Public of the State of
______, duly commissioned and sworn, personally appeared _________________
to me personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the written instrument as the
_________________ of FIRST SECURITY BANK OF UTAH, N.A., a national banking
association, not individually, but solely as Owner Trustee under the FM
Trust 1995-2, of and on behalf of such national banking association and
acknowledged to me that such national banking association executed the
same.
[NOTARIAL SEAL] _____________________________________
Notary Public for the State of ______
Residing at:_________________________
My commission expires:_______________
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
On this ____ day of ______________, 19___, before me,
_____________________ [NOTARY'S NAME], a Notary Public of the State of
Oregon, duly commissioned and sworn, personally appeared _________________
to me personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the written instrument as the
_________________ of ▇▇▇▇ ▇▇▇▇▇, INC., a Delaware corporation, of and on
behalf of such corporation and acknowledged to me that such corporation
executed the same.
[NOTARIAL SEAL] __________________________________
Notary Public for the State of Oregon
Residing at:______________________
My commission expires:____________
EXHIBIT B-2 TO THE LEASE
Recordation requested by:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC
After recordation return to:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC (WMA)
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Space above this line
for Recorder's use
-------------------------------------------------------------------------------
MEMORANDUM OF LEASE AGREEMENT
(TAX RETENTION OPERATING AGREEMENT)
THIS MEMORANDUM OF LEASE AGREEMENT (TAX RETENTION OPERATING
LEASE) ("Memorandum"), dated as of __________________, 199__, is by and
between FIRST SECURITY BANK OF UTAH, N.A., a national banking association,
not individually, but solely as Owner Trustee under the FM Trust 1995-2,
with an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Landlord") and ▇▇▇▇ ▇▇▇▇▇, INC., a Delaware
corporation, with an office at ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter referred to as "Tenant").
WITNESSETH:
That for value received, Landlord and Tenant do hereby
covenant, promise and agree as follows:
1. DEMISED PREMISES. Landlord hereby agrees to lease to Tenant,
and Tenant hereby agrees to lease from Landlord, for the Term (as
hereinafter defined), certain real property and other property located in
___________________ which is described in the attached Exhibit A (the
"Property"), pursuant to the terms of a Lease Agreement (Tax Retention
Operating Lease Agreement), between Landlord and Tenant dated December 1,
1995 (the "Lease").
2. TERM. The term of the Lease ("Term") shall commence upon the
earlier to occur of (i) the Completion Date (as such term is defined in the
Lease) for the Property or (ii) as of the date of any Agency Agreement
Event of Default (as such term is defined in the Lease) and shall end on
December 8, 2000, unless the Term is extended or earlier terminated in
accordance with the provisions of the Lease.
3. MORTGAGE; POWER OF SALE. Without limiting any other remedies
set forth in the Lease, in the event that a court of competent jurisdiction
rules that the Lease constitutes a mortgage, deed of trust or other secured
financing as is the intent of the parties, then the Lessor and the Lessee
agree that the Lessee has granted, pursuant to the terms of the Lease, a
Lien against the Property WITH POWER OF SALE, and that, upon the occurrence
and during the continuance of any Lease Event of Default during the Term,
the Lessor shall have the power and authority, to the extent provided by
law, after prior notice and lapse of such time as may be required by law,
to foreclose its interest (or cause such interest to be foreclosed) in all
or any part of the Property.
4. EFFECT OF MEMORANDUM. The purpose of this instrument is to
give notice of the Lease and its terms, covenants and conditions to the
same extent as if the Lease were fully set forth herein. This Memorandum
shall not modify in any manner the terms, conditions or intent of the Lease
and the parties agree that this Memorandum is not intended nor shall it be
used to interpret the Lease or determine the intent of the parties under
the Lease.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LANDLORD: TENANT:
FIRST SECURITY BANK ▇▇▇▇ ▇▇▇▇▇, INC., a Delaware
OF UTAH, N.A. not individually, corporation
but solely as Owner Trustee
under the FM Trust 1995-2
By:___________________________ By:__________________________
Its:__________________________ Its:_________________________
[CONFORM TO STATE LAW REQUIREMENTS]
ACKNOWLEDGEMENTS
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
On this ____ day of ______________, 19___, before me,
_____________________ [NOTARY'S NAME], a Notary Public of the State of
______, duly commissioned and sworn, personally appeared _________________
to me personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the written instrument as the
_________________ of FIRST SECURITY BANK OF UTAH, N.A., a national banking
association, not individually, but solely as Owner Trustee under the FM
Trust 1995- 2, of and on behalf of such national banking association and
acknowledged to me that such national banking association executed the
same.
[NOTARIAL SEAL] _____________________________________
Notary Public for the State of ______
Residing at:_________________________
My commission expires:_______________
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
On this ____ day of ______________, 19___, before me,
_____________________ [NOTARY'S NAME], a Notary Public of the State of
Oregon, duly commissioned and sworn, personally appeared _________________
to me personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the written instrument as the
_________________ of ▇▇▇▇ ▇▇▇▇▇, INC., a Delaware corporation, of and on
behalf of such corporation and acknowledged to me that such corporation
executed the same.
[NOTARIAL SEAL] __________________________________
Notary Public for the State of Oregon
Residing at:______________________
My commission expires:____________
--------------------------------------------------------------------------------
Appendix A
Rules of Usage and Definitions
--------------------------------------------------------------------------------
I. Rules of Usage
The following rules of usage shall apply to this Appendix A and the
Operative Agreements (and each appendix, schedule, exhibit and annex to the
foregoing) unless otherwise required by the context or unless otherwise
defined therein:
(a) Except as otherwise expressly provided, any definitions set
forth herein or in any other document shall be equally applicable to
the singular and plural forms of the terms defined.
(b) Except as otherwise expressly provided, references in any
document to articles, sections, paragraphs, clauses, annexes,
appendices, schedules or exhibits are references to articles,
sections, paragraphs, clauses, annexes, appendices, schedules or
exhibits in or to such document.
(c) The headings, subheadings and table of contents used in any
document are solely for convenience of reference and shall not
constitute a part of any such document nor shall they affect the
meaning, construction or effect of any provision thereof.
(d) References to any Person shall include such Person, its
successors and permitted assigns and transferees.
(e) Except as otherwise expressly provided, reference to any
agreement means such agreement as amended, modified, extended,
supplemented, restated and/or replaced from time to time in
accordance with the applicable provisions thereof.
(f) Except as otherwise expressly provided, references to any
law includes any amendment or modification to such law and any rules
or regulations issued thereunder or any law enacted in substitution
or replacement therefor.
(g) When used in any document, words such as "hereunder",
"hereto", "hereof" and "herein" and other words of like import shall,
unless the context clearly indicates to the contrary, refer to the
whole of the applicable document and not to any particular article,
section, subsection, paragraph or clause thereof.
A-1
(h) References to "including" means including without limiting
the generality of any description preceding such term and for
purposes hereof the rule of ejusdem generis shall not be applicable
to limit a general statement, followed by or referable to an
enumeration of specific matters, to matters similar to those
specifically mentioned.
(i) References herein to "attorney's fees", "legal fees",
"costs of counsel" or other such references shall be deemed to
include the allocated cost of in-house counsel.
(j) Each of the parties to the Operative Agreements and their
counsel have reviewed and revised, or requested revisions to, the
Operative Agreements, and the usual rule of construction that any
ambiguities are to be resolved against the drafting party shall be
inapplicable in the construing and interpretation of the Operative
Agreements and any amendments or exhibits thereto.
II. Definitions
"ABR" shall have the meaning specified in Section 1.1 of the
Credit Agreement.
"acquire" or "purchase" shall mean, with respect to any Property, the
acquisition, lease or purchase of such Property by the Owner Trustee from
any Person.
"Acquisition Advance" shall mean an advance of funds to pay Property
Acquisition Costs and other amounts related thereto pursuant to Section 5.3
of the Participation Agreement.
"Additional Up-Front Fee" shall have the meaning specified in Section
9.4 of the Participation Agreement.
"Advance" shall mean a Construction Advance or Modification
Advance or an Acquisition Advance.
"Affiliate" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"After Tax Basis" shall mean, with respect to any payment to be
received, the amount of such payment increased so that, after deduction of
the amount of all taxes required to be paid by the recipient calculated at
the then maximum marginal rates generally applicable to Persons of the same
type as the recipients (less any tax savings realized as a result of the
payment of the indemnified amount) with respect to the receipt by the
recipient of such amounts, such increased payment (as so reduced) is equal
to the payment otherwise required to be made.
"Agency Agreement" shall mean the Agency Agreement, dated as of the
Initial Closing Date, between the Construction Agent and the Owner Trustee.
A-2
"Agency Agreement Default" shall mean any event, act or condition
which with notice or lapse of time, or both, would constitute an Agency
Agreement Event of Default.
"Agency Agreement Event of Default" shall mean an "Event of Default"
as defined in Section 5.1 of the Agency Agreement.
"Agent" or "Administrative Agent" shall mean NationsBank of Texas,
N.A., as Administrative Agent for the Lenders pursuant to the Credit
Agreement, or any successor agent appointed in accordance with the terms of
the Credit Agreement.
"Allocated Interest" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Amount of Commitment Increase" shall mean, (a) in the aggregate for
the Lenders and the Holders, the sum of the amount of the Commitment
Increase of the Lenders plus the amount of the Commitment Increase of the
Holders and (b) as to the Lenders as a group or the Holders as a group, as
the case may be, the amount of the Commitment Increase of the Lenders or
the Commitment Increase of the Holders, as the case may be.
"Applicable Margin" shall have the meaning given such term in Section
1.1 of the Credit Agreement.
"Appraisal" shall mean, with respect to any Property, an appraisal to
be delivered in connection with a Property Closing Date or in accordance
with the terms of Section 10.1(e) of the Lease, in each case prepared by a
reputable appraiser reasonably acceptable to the Agent, which in the
judgment of counsel to the Agent, complies with all of the provisions of
the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as
amended, the rules and regulations adopted pursuant thereto, and all other
applicable Legal Requirements, with such appraisal to be performed by an
appraiser selected by the Agent after consultation with Lessee.
"Approved States" shall mean Washington, Oregon, Utah and Idaho, and
any other state approved in writing by the Lessor and the Agent.
"Appurtenant Rights" shall mean (i) all agreements, easements, rights
of way or use, rights of ingress or egress, privileges, appurtenances,
tenements, hereditaments and other rights and benefits at any time
belonging or pertaining to the Land underlying any Improvements, or the
Improvements, including, without limitation, the use of any streets, ways,
alleys, vaults or strips of land adjoining, abutting, adjacent or
contiguous to the Land and (ii) all permits, licenses and rights, whether
or not of record, appurtenant to such Land.
"Available Commitment" shall have the meaning specified in Section
1.1 of the Credit Agreement.
A-3
"Base Amount" shall have the meaning specified in Section
10.1 of the Lease.
"Basic Rent" shall mean, the sum of (i) the Loan Basic Rent and (ii)
the Lessor Basic Rent, calculated as of the applicable date on which Basic
Rent is due.
"Basic Term" shall have the meaning specified in Section 2.2
of the Lease.
"Basic Term Commencement Date" shall have the meaning specified in
Section 2.2 of the Lease.
"Basic Term Expiration Date" shall have the meaning specified in
Section 2.2 of the Lease.
"▇▇▇▇ of Sale" shall mean a ▇▇▇▇ of Sale regarding Equipment in form
and substance satisfactory to the Holders and the Agent.
"Borrowing Date" shall have the meaning specified in
Section 1.1 of the Credit Agreement.
"Business Day" shall mean a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina, Dallas,
Texas, Los Angeles, California, San Francisco, California, New York, New
York or Portland, Oregon, are authorized or required by law to close;
provided, however, that when used in connection with a Loan bearing
interest based on the Eurodollar Rate, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
"Capital Lease" means any lease of property (whether real, personal
or mixed) which would, in accordance with GAAP, be required to be
classified and accounted for on the books of the lessee as a capital lease.
"Casualty" shall mean any damage or destruction of all or any portion
of a Property as a result of a fire or other casualty.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. ▇▇.▇▇. 9601 et seq., as
amended by the Superfund Amendments and Reauthorization Act of 1986.
"Certificate" shall mean a Certificate in favor of each Holder
regarding the Holder Commitment of such Holder issued pursuant to the terms
and conditions of the Trust Agreement in favor of such Holder.
"Change in Control" means the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934, as
amended) of outstanding shares of voting
A-4
stock of Lessee representing in excess of 50% of voting control of Company,
which Person or Persons have beneficial ownership of less than 5% of the
outstanding shares of voting stock of Lessee as of the date of the
Participation Agreement.
"Claims" shall mean any and all obligations, liabilities, losses,
actions, suits, penalties, claims, demands, costs and expenses (including,
without limitation, reasonable attorney's fees and expenses) of any nature
whatsoever.
"Closing Date" shall mean the Initial Closing Date and each
Property Closing Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute hereto.
"Collateral" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Commitment" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Commitment Fee Payment Date" shall mean each Specified Interest
Payment Date and the last day of the Commitment Period, or such earlier
date as the Commitments shall terminate as provided in the Credit
Agreement.
"Commitment Fee Rate" shall mean, with respect to the Commitments, a
rate equal to 15 basis points (0.15%) per annum for the Commitment Period.
"Commitment Increase" shall mean an increase in the Commitments of
the Lenders pursuant to Section 9.8(d) of the Credit Agreement and a
concurrent increase in the Holder Commitments of the Holders pursuant to
Section 3.1(d) of the Trust Agreement.
"Commitment Period" shall mean the period from the Initial Closing
Date to and including the Construction Period Termination Date, or such
earlier date as the Commitments shall terminate as provided in the Credit
Agreement.
"Company" shall have the meaning specified in Section 7.3 of
the Participation Agreement.
"Completion" shall mean, with respect to a Property, such time as
final completion of the Improvements on such Property has been achieved in
accordance with the Plans and Specifications, the Agency Agreement and/or
the Lease, and in compliance with all material Legal Requirements and
Insurance Requirements and (unless not required in connection with the
construction, renovation and/or modification of Improvements on Improved
Property) a certificate of occupancy has been issued with respect to such
Property by the appropriate governmental entity.
A-5
"Completion Date" shall mean, with respect to a Property, the earlier
of (i) the date on which Completion for such Property has occurred and (ii)
the Construction Period Termination Date.
"Condemnation" shall mean any taking or sale of the use, access,
occupancy, easement rights or title to any Property or any part thereof,
wholly or partially (temporarily or permanently), by or on account of any
actual or threatened eminent domain proceeding or other taking of action by
any Person having the power of eminent domain, including an action by a
Governmental Authority to change the grade of, or widen the streets
adjacent to, any Property or alter the pedestrian or vehicular traffic flow
to any Property so as to result in a change in access to such Property, or
by or on account of an eviction by paramount title or any transfer made in
lieu of any such proceeding or action.
"Construction Advance" shall mean an advance of funds to pay Property
Costs and other amounts related thereto with respect to Unimproved Property
pursuant to Section 5.4 or 5.5 of the Participation Agreement.
"Construction Agent" shall mean ▇▇▇▇ ▇▇▇▇▇, Inc., a Delaware
corporation, as construction agent under the Agency Agreement.
"Construction Budget" shall mean, as to any Property, the aggregate
of Land acquisition costs and the estimated cost of constructing and
developing any Improvements, on a Property by Property basis, as determined
by the Construction Agent or the Lessee, as the case may be, in its
reasonable, good faith judgment, specifying the acquisition cost for Land
and the projected hard costs relating to Improvements and soft costs
relating to Improvements.
"Construction Commencement Date" shall mean, with respect to
Improvements, the date on which construction of such Improvements commences
pursuant to the Agency Agreement.
"Construction Period" shall mean, with respect to a Property, the
period commencing on the Construction Commencement Date for such Property
and ending on the Completion Date for such Property.
"Construction Period Property" shall have the meaning specified in
Section 1.1 of the Credit Agreement.
"Construction Period Termination Date" shall mean the second annual
anniversary of the Initial Closing Date, as such date may be extended for
up to six (6) additional months to the extent that a delay in construction
is caused by a Force Majeure Event.
"Control" shall mean (including the correlative meanings of the terms
"controlled by" and "under common control with"), as used with respect to
any Person, the possession directly or indirectly, of the power to direct
or cause the direction of the
A-6
management and policies of such Person, whether through the ownership of
voting securities or by contract or otherwise.
"Co-Owner Trustee" shall have the meaning specified in Section 9.2 of
the Trust Agreement.
"Credit Agreement" shall mean the Credit Agreement, dated as of the
Initial Closing Date, among the Lessor, the Agent and the Lenders, as
specified therein.
"Credit Agreement Default" shall mean any event or condition which,
with the lapse of time or the giving of notice, or both, would constitute a
Credit Agreement Event of Default.
"Credit Agreement Event of Default" shall mean any event or condition
defined as an "Event of Default" in Section 6 of the Credit Agreement.
"Credit Documents" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"Credit Suisse" shall mean Credit Suisse, a Swiss banking
corporation.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, whether or not evidenced by bonds,
debentures, notes or similar instruments, (b) all obligations of such
Person as lessee under Capital Leases which have been recorded as
liabilities on a balance sheet of such Person, (c) all obligations of such
Person to pay the deferred purchase price of property or services (other
than current accounts payable in the ordinary course of business), (d) all
indebtedness secured by a Lien on the property of such Person, whether or
not such indebtedness shall have been assumed by such Person (it being
understood that if such Person has not assumed or otherwise become
personally liable for any such indebtedness, the amount of the Debt of such
Person in connection therewith shall be limited to the lesser of the face
amount of such indebtedness or the fair market value of all property of
such Person securing such indebtedness), (e) all obligations, contingent or
otherwise, with respect to the face amount of all letters of credit
(whether or not drawn) and banker's acceptances issued for the account of
such Person, (f) all obligations of such Person in respect of Hedging
Arrangements, (g) all Suretyship Liabilities of such Person and (h) all
Debt (as defined above) of any partnership in which such Person is a
general partner. The amount of the Debt of any Person in respect of Hedging
Arrangements shall be deemed to be the unrealized net loss position of such
Person thereunder (determined for each counterparty individually, but
netted for all Hedging Arrangements maintained with such counterparty).
"Deed" shall mean a special or limited warranty deed regarding Land
and/or Improvements in form and substance satisfactory to the Owner Trustee
and the Agent.
A-7
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Employee Benefit Plan" or "Plan" shall mean an employee benefit plan
(within the meaning of Section 3(3) of ERISA, including any Multiemployer
Plan), or any "plan" as defined in Section 4975(e)(1) of the Code and as
interpreted by the Internal Revenue Service and the Department of Labor in
rules, regulations, releases or bulletins in effect on any Closing Date.
"Environmental Claims" shall mean any investigation, notice,
violation, demand, allegation, action, suit, injunction, judgment, order,
consent decree, penalty, fine, lien, proceeding, or claim (whether
administrative, judicial, or private in nature) arising (a) pursuant to, or
in connection with, an actual or alleged violation of, any Environmental
Law, (b) in connection with any Hazardous Substance, (c) from any
abatement, removal, remedial, corrective, or other response action in
connection with a Hazardous Material, Environmental Law, or other order of
a Tribunal or (d) from any actual or alleged damage, injury, threat, or
harm to health, safety, natural resources, or the environment.
"Environmental Laws" shall mean any Law, permit, consent, approval,
license, award, or other authorization or requirement of any Tribunal
relating to emissions, discharges, releases, threatened releases of any
Hazardous Substance into ambient air, surface water, ground water, publicly
owned treatment works, septic system, or land, or otherwise relating to the
handling, storage, treatment, generation, use, or disposal of Hazardous
Substances, pollution or to the protection of health or the environment,
including without limitation CERCLA, the Resource Conservation and Recovery
Act, 42 U.S.C. ss. 6901, et seq., and state statutes analogous thereto.
"Environmental Violation" shall mean any activity, occurrence or
condition that violates or threatens (if the threat requires remediation
under any Environmental Law and is not remediated during any grace period
allowed under such Environmental Law) to violate or results in or threatens
(if the threat requires remediation under any Environmental Law and is not
remediated during any grace period allowed under such Environmental Law) to
result in noncompliance with any Environmental Law.
"Equipment" shall mean equipment, apparatus, furnishings, fittings
and personal property of every kind and nature whatsoever purchased, leased
or otherwise acquired using the proceeds of the Loans or the Holder
Advances by the Construction Agent, the Lessee or the Lessor as specified
or described in either a Requisition or a Lease Supplement, whether or not
now or subsequently attached to, contained in or used or usable in any way
in connection with any operation of any Improvements or other improvements
to Land.
A-8
"Equipment Schedule" shall mean (a) each Equipment Schedule attached
to the applicable Requisition and (b) each Equipment Schedule attached to
the applicable Lease Supplement as Schedule I-A.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall mean each entity required to be aggregated
with any Lessee pursuant to the requirements of Section 414(b) or (c) of
the Code.
"Eurocurrency Reserve Requirements" shall have the meaning specified
in Section 1.1 of the Credit Agreement.
"Eurodollar Holder Advance" shall mean the Holder Advance
bearing a Holder Yield based on the Eurodollar Rate.
"Eurodollar Rate" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"Eurodollar Reserve Rate" shall have the meaning specified in Section
1.1 of the Credit Agreement.
"Event of Default" shall mean a Lease Event of Default, an
Agency Agreement Event of Default or a Credit Agreement Event of
Default.
"Excepted Payments" shall mean: (a) all indemnity payments (including
indemnity payments made pursuant to Section 13 of the Participation
Agreement), whether made by adjustment to Basic Rent or otherwise, to which
the Owner Trustee, any Holder or any of their respective Affiliates,
agents, officers, directors or employees is entitled;
(b) any amounts (other than Basic Rent, Termination Value, or
Purchase Option Price) payable under any Operative Agreement to reimburse
the Owner Trustee, the Trust Company, any Holder or any of their respective
Affiliates (including the reasonable expenses of the Owner Trustee, the
Trust Company and the Holders incurred in connection with any such payment)
for performing or complying with any of the obligations of the Lessee under
and as permitted by any Operative Agreement;
(c) any amount payable to any Holder by any transferee of such
interest of such Holder as the purchase price of such Holder's interest in
the Trust Estate (or a portion thereof);
(d) any insurance proceeds (or payments with respect to risks
self-insured or policy deductibles) under liability policies other than
such proceeds or payments payable to the Agent;
(e) any insurance proceeds under policies maintained by the
Owner Trustee or any Holder;
A-9
(f) Transaction Expenses or other amounts or expenses paid
or payable to or for the benefit of the Owner Trustee or any
Holder;
(g) all right, title and interest of any Holder or the Owner Trustee
to any Property or any portion thereof or any other property to the extent
any of the foregoing has been released from the Liens of the Security
Documents and the Lease pursuant to the terms thereof;
(h) upon termination of the Credit Agreement pursuant to
the terms thereof, all remaining property covered by the Lease or
Security Documents;
(i) all payments in respect of the Holder Yield;
(j) any payments in respect of interest to the extent
attributable to payments referred to in clauses (a) through (i)
above; and
(k) any rights of either the Owner Trustee or Trust Company to
demand, collect, ▇▇▇ for or otherwise receive and enforce payment of any of
the foregoing amounts.
"Excepted Rights" shall mean the rights retained by the Owner Trustee
pursuant to Section 8.2(a) of the Credit Agreement and all right, title and
interest of Owner Trustee in the Shared Rights.
"Excess Proceeds" shall mean the excess, if any, of the aggregate of
all awards, compensation or insurance proceeds payable in connection with a
Casualty or Condemnation over the Termination Value paid by the Lessee
pursuant to the Lease with respect to such Casualty or Condemnation.
"Excluded Taxes" shall have the meaning specified in Section 13.2(e)
of the Participation Agreement.
"Exemption Agreement" shall have the meaning specified in Section
13.2(f) of the Participation Agreement.
"Exemption Representation" shall have the meaning specified in
Section 13.2(g) of the Participation Agreement.
"Expiration Date" shall mean the Basic Term Expiration Date or the
last day of the Extended Term, if applicable.
"Expiration Date Election Notice" shall have the meaning specified in
Section 20.2 of the Lease.
"Expiration Date Purchase Option" shall mean the Lessee's option to
purchase all (but not less than all) of the Properties on the Expiration
Date.
A-10
"Extended Term" shall mean the five year period which immediately
follows the end of the Basic Term and expires on December 8, 2005 with
respect to which Lessee has exercised its Renewal Option pursuant to
Section 21.1 of the Lease.
"Facility" shall mean a facility used for the treatment, storage or
disposal of Hazardous Substances.
"Fair Market Sales Value" shall mean, with respect to any Property,
the amount, which in any event, shall not be less than zero, that would be
paid in cash in an arms-length transaction between an informed and willing
purchaser and an informed and willing seller, neither of whom is under any
compulsion to purchase or sell, respectively, such Property. Fair Market
Sales Value of any Property shall be determined based on the assumption
that, except for purposes of Section 17 of the Lease, such Property is in
the condition and state of repair required under Section 10.1 of the Lease
and the Lessee is in compliance with the other requirements of the
Operative Agreements.
"Federal Funds Effective Rate" shall have the meaning specified in
Section 1.1 of the Credit Agreement.
"Fixtures" shall mean all fixtures relating to the Improvements,
including all components thereof, located in or on the Improvements,
together with all replacements, modifications, alterations and additions
thereto.
"FM Trust 1995-2" shall mean the grantor trust created pursuant to
the terms and conditions of the Trust Agreement.
"Force Majeure Event" shall mean any event beyond the control of the
Construction Agent, including, but not limited to, strikes, lockouts,
adverse soil conditions, acts of God, adverse weather conditions, inability
to obtain labor or materials, governmental activities, civil commotion and
enemy action; but excluding any event, cause or condition that results from
the Construction Agent's financial condition.
"GAAP" shall mean the principles of accounting set forth in
pronouncements of the Financial Accounting Standards Board, the American
Institute of Certified Public Accountants, as such principles are from time
to time supplemented and amended.
"Governmental Action" shall mean all permits, authoriza tions,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, written interpretations, decrees, licenses, exemptions,
publications, filings, notices to and declarations of or with, or required
by, any Governmental Authority, or required by any Legal Requirement, and
shall include, without limitation, all environmental and operating permits
and licenses that are required for the contemplated use, occupancy, zoning
and operations of any Property.
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"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Greenwich Funding Corporation" shall mean Greenwich Funding
Corporation, a Delaware corporation.
"Ground Lease" shall mean a ground lease respecting any Property
owned by Lessee or a wholly-owned Subsidiary of Lessee in form and
substance satisfactory to Lessor (i) having a 99 year term and payments set
at $1.00 per year or (ii) subject to such other terms and conditions as are
reasonably satisfactory to Lessor, Lessee and the Agent.
"Hedging Arrangement" means any interest rate swap, cap or collar
agreement, currency swap agreement, commodity swap agreement or other
arrangement designed to hedge interest rate and/or currency risk or changes
in commodity prices.
"Hazardous Substance" shall mean any of the following: (i) any
petroleum or petroleum product, explosives, radioactive materials,
asbestos, formaldehyde, polychlorinated biphenyls, lead and radon gas; (ii)
any substance, material, product, derivative, compound or mixture, mineral,
chemical, waste, gas, medical waste, or pollutant, in each case whether
naturally occurring, man-made or the by-product of any process, that is
toxic, harmful or hazardous to the environment or human health or safety as
determined in accordance with any Environmental Law; or (iii) any
substance, material, product, derivative, compound or mixture, mineral,
chemical, waste, gas, medical waste or pollutant that would support the
assertion of any claim under any Environmental Law, whether or not defined
as hazardous as such under any Environmental Law. The term "Hazardous
Substances" shall not include (a) cleaning products, landscape fertilizers
and other products in the ordinary quantities that are customarily used in
the ordinary course of business of operating and maintaining commercial
properties or (b) products held in sealed containers for sale to customers.
"Holder" shall mean the several banks and other financial
institutions which are from time to time holders of Certificates in
connection with the FM Trust 1995-2.
"Holder Advance" shall have the meaning specified in Section 2 of the
Participation Agreement.
"Holder Amount" shall mean as of any date, the aggregate amount of
the Holder Advances made by each Holder to the Trust Estate pursuant to
Section 2 of the Participation Agreement and Section 3.1 of the Trust
Agreement less any payments of any Holder Advances received by the Holders
pursuant to Section 3.4 of the Trust Agreement.
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"Holder Applicable Margin" shall mean the Applicable Margin plus, in
each case, .50%.
"Holder Commitment" shall mean $1,800,000 in the aggregate, with
respect to which the commitment of NationsBank is $900,000 and the
commitment of Credit Suisse is $900,000, as such commitments may be reduced
or increased from time to time in accordance with the provisions of the
Trust Agreement.
"Holder Overdue Rate" shall mean the lesser of (i) the Overdue
Interest, as defined in the Credit Agreement, plus 1.00% and (ii) the
highest rate permitted by applicable law.
"Holder Property Cost" shall mean with respect to each Property, at
any date of determination, an amount equal to the product of (a) a
fraction, the numerator of which is the Property Cost for such individual
Property and the denominator of which is the aggregate Property Cost for
all Properties which are then subject to the terms and conditions of the
Operative Agreements multiplied by (b) the outstanding Holder Advances.
"Holder Up-Front Fee" shall have the meaning specified in Section 9.4
of the Participation Agreement.
"Holder Yield" shall mean the Eurodollar Reserve Rate plus the Holder
Applicable Margin; provided, however, (i) upon delivery of the notice
described in Section 3.7(c) of the Trust Agreement, the outstanding Holder
Advances of each Holder shall bear a yield at the ABR applicable from time
to time from and after the dates and during the periods specified in
Section 3.7(c) of the Trust Agreement, and (ii) upon the delivery by any
Holder of the notice described in Section 3.8(c) of the Trust Agreement,
the Holder Advances of such Holder shall bear a yield at the ABR applicable
from time to time after the dates and during the periods specified in
Section 3.8(c) of the Trust Agreement.
"Impositions" shall mean, except to the extent described in the
following sentence, any and all liabilities, losses, expenses, costs,
charges and Liens of any kind whatsoever for fees, taxes, levies, imposts,
duties, charges, assessments or withholdings ("Taxes"), including (i) real
and personal property taxes, including personal property taxes on any
property covered by the Lease that is classified by Governmental
Authorities as personal property, and real estate or ad valorem taxes in
the nature of property taxes; (ii) sales taxes, use taxes and other similar
taxes (including rent taxes and intangibles taxes); (iii) any excise taxes;
(iv) real estate transfer taxes, conveyance taxes, stamp taxes and
documentary recording taxes and fees; (v) taxes that are or are in the
nature of franchise, income, value added, privilege and doing business
taxes, license and registration fees; (vi) assessments on any Property,
including all assessments for public improvements or benefits, whether or
not such improvements are commenced or completed within the Term; and (vii)
any tax, Lien, assessment or charge
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asserted, imposed or assessed by the PBGC or any governmental authority
succeeding to or performing functions similar to, the PBGC; and in each
case all interest, additions to tax and penalties thereon, which at any
time prior to, during or with respect to the Term or in respect of any
period for which the Lessee shall be obligated to pay Supplemental Rent,
may be levied, assessed or imposed by any Governmental Authority upon or
with respect to (a) any Property or any part thereof or interest therein;
(b) the leasing, financing, refinancing, demolition, construction,
substitution, subleasing, assignment, control, condition, occupancy,
servicing, maintenance, repair, ownership, possession, activity conducted
on, delivery, insuring, use, operation, improvement, transfer of title,
return or other disposition of such Property or any part thereof or
interest therein; (c) the Notes or other indebtedness with respect to any
Property or any part thereof or interest therein; (d) the rentals, receipts
or earnings arising from any Property or any part thereof or interest
therein; (e) the Operative Agreements, the performance thereof, or any
payment made or accrued pursuant thereto; (f) the income or other proceeds
received with respect to any Property or any part thereof or interest
therein upon the sale or disposition thereof; (g) any contract (including
the Agency Agreement) relating to the construction, acquisition or delivery
of the Improvements or any part thereof or interest therein; (h) the
issuance of the Notes; or (i) otherwise in connection with the transactions
contemplated by the Operative Agreements.
The term "Imposition" shall not mean or include:
(i) Taxes and impositions (other than Taxes that are, or
are in the nature of, sales, use, rental, value added, transfer or
property taxes) that are imposed on a Indemnified Person (other than
Lessor) by the United States federal government that are based on or
measured by the net income (including taxes based on capital gains,
and minimum taxes or any tax imposed by Code ss. 59A) of such
Indemnified Person; provided, that this clause (i) shall not be
interpreted to prevent a payment from being made on an After Tax
Basis if such payment is otherwise required to be so made;
(ii) Taxes and impositions (other than Taxes that are, or
are in the nature of, sales, use, rental, value added, transfer or
property taxes) that are imposed on any Indemnified Person (other
than Lessor) by any state or local jurisdiction or taxing authority
within any state or local jurisdiction and that are in the nature of
franchise taxes or are based upon or measured by the overall gross or
net income or overall gross or net receipts of such Indemnified
Person except that this clause (ii) shall not apply to (and thus
shall not exclude) any such Taxes imposed on an Indemnified Person by
a state (or any local taxing authority thereof or therein) to the
extent that (A) such Taxes would not have been imposed but for the
location, possession or
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use of any Property in such jurisdiction, and (B) in the case of
Taxes based upon overall gross or net income or overall gross or net
receipts, such Taxes would not have been imposed had the transactions
described in the Operative Agreements been structured as a standard
financing arrangement (i.e, with the Indemnity Provider (x) being the
borrower of funds advanced by the Lenders and the Holders, (y)
holding title to each Property, and (z) being treated as the owner of
each Property for both financial accounting and federal income tax
purposes) rather than as a tax retention operating lease (it being
understood that any such indemnity would be payable only to the
extent of the net harm incurred by such Indemnified Person from such
Taxes, taking into account any incremental tax benefit in another tax
jurisdiction resulting from payment of such Taxes); provided, that
this clause (ii) shall not be interpreted to prevent a payment from
being made on an After Tax Basis if such payment is otherwise
required to be so made;
(iii) any Tax or imposition to the extent, but only to such
extent, it relates to any act, event or omission that occurs after
the termination of the Lease and redelivery or sale of the property
in accordance with the terms of the Lease (but not any Tax or
imposition that relates to such termination, redelivery or sale
and/or to any period prior to such termination, redelivery or sale);
or
(iv) any Taxes which are imposed on an Indemnified Person as
a result of the gross negligence or wilful misconduct of such
Indemnified Person itself (as opposed to gross negligence or wilful
misconduct imputed to such Indemnified Person), but not Taxes imposed
as a result of ordinary negligence of such Indemnified Person;
Any Tax or imposition excluded from the defined term "Imposition" in any
one of the foregoing clauses (i) through (iv) shall not be construed as
constituting an Imposition by any provision of any other of the
aforementioned clauses.
"Improved Property" shall mean a Property acquired by the Lessor
which contains Improvements that are suitable as of the Property Closing
Date for occupancy by the Lessee and the operation by the Lessee of a Store
therein.
"Improvements" shall mean, with respect to the construction,
renovation and/or Modification of a Store, all buildings, structures,
Fixtures, and other improvements of every kind existing at any time and
from time to time on or under the Land purchased, leased or otherwise
acquired using the proceeds of the Loans or the Holder Advances, together
with any and all appurtenances to such buildings, structures or
improvements, including sidewalks, utility pipes, conduits and lines,
parking areas and roadways, and including all Modifications and other
additions to or changes in the Improvements at any time,
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including without limitation (a) any Improvements existing as of the
Property Closing Date as such Improvements may be referenced on the
applicable Requisition and (b) any Improvements made subsequent to such
Property Closing Date.
"Incorporated Covenants" shall have the meaning specified in Section
28.1 of the Lease Agreement.
"Indebtedness" shall have the meaning specified in Section
1.1 of the Credit Agreement.
"Indemnified Person" shall mean the Lessor, the Owner Trustee, in its
individual and its trust capacity, the Agent, the Holders, the Lenders and
their respective successors, assigns, directors, shareholders, partners,
officers, employees, agents and Affiliates.
"Indemnity Provider" shall mean, respecting each Property, the
Construction Agent from the date of the Participation Agreement to and
including the Basic Term Commencement Date for such Property and the Lessee
for the duration of the Term for such Property.
"Initial Closing Date" shall mean December 8, 1995.
"Initial Construction Advance" shall mean any initial Advance (which
may be either a Construction Advance or a Modification Advance) to pay for:
(i) Property Costs for construction of any Improvements; (ii) the Property
Costs of restoring or repairing any Property which is required to be
restored or repaired in accordance with Section 15.1(e) of the Lease; and
(iii) the costs of any Modifications in accordance with Section 11.1 of the
Lease.
"Insurance Requirements" shall mean all terms and conditions of any
insurance policy either required by the Lease to be main tained by the
Lessee or required by the Agency Agreement to be maintained by the
Construction Agent, and all requirements of the issuer of any such policy
and, regarding self insurance, any other requirements of Lessee.
"Interest Period" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, together with the rules and regulations promulgated
thereunder.
"Land" shall mean a parcel of real property described on (a) the
Requisition issued by the Construction Agent on the Property Closing Date
relating to such parcel and (b) Schedule I- C to each applicable Lease
Supplement executed and delivered in accordance with the requirements of
Section 2.4 of the Lease.
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"Law" shall mean any statute, law, ordinance, regulation, rule,
order, writ, injunction or decree of any Tribunal.
"Lease" or "Lease Agreement" shall mean the Lease Agreement (Tax
Retention Operating Lease) dated as of the Initial Closing Date, between
the Lessor and the Lessee, together with any Lease Supplements thereto, as
such Lease Agreement may from time to time be supplemented, amended or
modified in accordance with the terms thereof.
"Lease Default" shall mean any event or condition which, with the
lapse of time or the giving of notice, or both, would constitute a Lease
Event of Default.
"Lease Event of Default" shall have the meaning specified in Section
17.1 of the Lease.
"Lease Supplement" shall mean each Lease Supplement substan tially in
the form of Exhibit A to the Lease, together with all attachments and
schedules thereto, as such Lease Supplement may be supplemented, amended or
modified from time to time.
"Lease Term Debt Percentage" shall mean, as of the date of
determination, a percentage equal to 1.000 minus the Lease Term Holder
Percentage.
"Lease Term Holder Percentage" shall mean, as of the date of
determination, a percentage equal to $1,800,000 (as such amount may be
reduced or increased from time to time pursuant to the terms of the Trust
Agreement) divided by the aggregate Property Costs for all Properties after
the Completion thereof and with respect to any Improved Property, after the
acquisition thereof.
"Legal Requirements" shall mean as to any Person all foreign,
Federal, state, county, municipal and other governmental statutes, laws,
rules, orders, regulations, ordinances, judgments, decrees and injunctions
affecting such Person and all foreign, Federal, state, county, municipal
and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and impositions affecting any Property or
the taxation, demolition, construction, use or alteration of such Property,
whether now or hereafter enacted and in force, including any that require
repairs, modifications or alterations in or to any Property or in any way
limit the use and enjoyment thereof (including all building, zoning and
fire codes and the Americans with Disabilities Act of 1990, 42 U.S.C. ss.
12101 et. seq., and any other similar Federal, state or local laws or
ordinances and the regulations promulgated thereunder) and any that may
relate to environmental requirements (including all Environmental Laws),
and all permits, certificates of occupancy, licenses, authorizations and
regulations relating thereto, and all covenants, agreements, restrictions
and encumbrances contained in any instruments which are either of record or
known to the Lessee affecting any Property, the Appurtenant Rights and
A-17
any easements, licenses or other agreements entered into pursuant to
Section 10.5 of the Participation Agreement.
"Lender Commitment Fee" shall have the meaning specified in Section
9.5(a) of the Participation Agreement.
"Lender Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdiction in order to procure a security interest in favor of
the Agent in any Equipment or in any Improvements.
"Lender Up-Front Fee" shall have the meaning specified in Section 9.4
of the Participation Agreement.
"Lenders" shall mean the several banks and other financial
institutions from time to time party to the Credit Agreement.
"Lessee" shall have the meaning set forth in the Lease.
"Lessor" shall mean the Owner Trustee, not in its individual
capacity, but as Lessor under the Lease.
"Lessor Basic Rent" shall mean the scheduled Holder Yield due on the
Holder Advances on any Specified Interest Payment Date pursuant to the
Trust Agreement (but not including interest on overdue amounts under the
Trust Agreement or otherwise).
"Lessor Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdictions in order to protect the Lessor's interest under
the Lease to the extent the Lease is a security agreement or a mortgage.
"Lessor Lien" shall mean any Lien, true lease or sublease or
disposition of title arising as a result of (a) any claim against the
Lessor or Trust Company, in its individual capacity, not resulting from the
transactions contemplated by the Operative Agreements, (b) any act or
omission of the Lessor or Trust Company, in its individual capacity, which
is not required by the Operative Agreements or is in violation of any of
the terms of the Operative Agreements, (c) any claim against the Lessor or
Trust Company, in its individual capacity, with respect to Taxes or
Transaction Expenses against which the Lessee is not required to indemnify
Lessor or Trust Company, in its individual capacity, pursuant to Section 13
of the Participation Agreement or (d) any claim against the Lessor arising
out of any transfer by the Lessor of all or any portion of the interest of
the Lessor in the Properties, the Trust Estate or the Operative Agreements
other than the transfer of title to or possession of any Properties by the
Lessor pursuant to and in accordance with the Lease, the Credit Agreement
or the Participation Agreement or pursuant to the exercise of the remedies
set forth in Article XVII of the Lease.
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"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien, option or charge of any kind.
"Limited Power of Attorney" shall mean the Limited Power of Attorney
dated as of the Initial Closing Date given by the Owner Trustee in favor of
the Company and in form and substance satisfactory to the Agent, the
Holders, the Owner Trustee and the Company.
"Limited Recourse Amount" shall mean with respect to the Properties
on an aggregate basis, an amount equal to the sum of the Termination Values
with respect to all of the Properties on each Payment Date, less the
Maximum Residual Guarantee Amount as of such date with respect to the
Properties.
"Loans" shall have the meaning specified in Section 2.1 of
the Credit Agreement.
"Loan Basic Rent" shall mean the interest due on the Loans on any
Specified Interest Payment Date pursuant to the Credit Agreement (but not
including interest on (i) any such Loan prior to the Basic Term
Commencement Date with respect to the Property to which such Loan relates
or (ii) any overdue amounts under Section 2.7(b) of the Credit Agreement or
otherwise).
"Loan Property Cost" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Majority Lenders" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"Marketing Period" shall mean, if the Lessee have not given the
Expiration Date Election Notice in accordance with Section 20.2 of the
Lease, the period commencing on the date 90 days prior to the applicable
Expiration Date and ending on such Expiration Date.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the ability of the Lessee or any Subsidiary to perform its respective
obligations under any Operative Agreement to which it is a party, (b) the
validity or enforceability of any Operative Agreement or the rights and
remedies of the Agent, the Lenders, the Holders, or the Lessor thereunder,
(c) the validity, priority or enforceability of any Lien on any Property
created by any of the Operative Agreements, or (d) the value, utility or
useful life of any Property or the use, or ability of the Lessee to use,
any Property for the purpose for which it was intended.
"Material Subsidiary" means any Subsidiary of Lessee which either (a)
has assets which constitute 5% or more of the consolidated assets of Lessee
and its Subsidiaries or (b) has revenues during its most recently-ended
fiscal year which constitute more than 5% of the consolidated revenues of
Lessee and its Subsidiaries during the most recently-ended fiscal year of
Lessee.
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"Maturity Date" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"Maximum Property Cost" shall mean the aggregate amount of the
Property Costs for all Properties subject to the Lease as of the applicable
determination date.
"Maximum Residual Guarantee Amount" shall mean an amount equal to the
product of the aggregate Property Cost for all of the Properties times 89
1/2%.
"Modification Advance" shall mean an advance of funds to pay Property
Costs and other amounts related thereto with respect to Improved Property
pursuant to Section 5.4 or 5.5 of the Participation Agreement.
"Modifications" shall have the meaning specified in Section
11.1(a) of the Lease.
"Mortgage Instrument" shall mean any mortgage, deed of trust or any
other instrument executed by the Owner Trustee in favor of the Agent and
evidencing a Lien on a Property, in form and substance substantially in the
form attached as Exhibit J to the Participation Agreement.
"Multiemployer Plan" shall mean any plan described in Section
4001(a)(3) of ERISA to which contributions are or have been made or
required by the Lessee or any of its Subsidiaries or ERISA Affiliates.
"Multiple Employer Plan" shall mean a plan to which the Lessee or any
ERISA Affiliate and at least one other employer other than an ERISA
Affiliate is making or accruing an obligation to make, or has made or
accrued an obligation to make, contributions.
"NationsBank" shall mean NationsBank of Texas, N.A., a
national banking association.
"Net Proceeds" shall mean all amounts paid in connection with any
Casualty or Condemnation, and all interest earned thereon, less the expense
of claiming and collecting such amounts, including all costs and expenses
in connection therewith for which the Agent or Lessor are entitled to be
reimbursed pursuant to the Lease.
"1995 Credit Agreement" shall have the meaning specified in Section
28.1 of the Lease.
"Notes" shall have the meaning specified in Section 1.1 of
the Credit Agreement.
"Occupational Safety and Health Law" shall mean the Occupational
Safety and Health Act of 1970 and any other federal, state or local
statute, law, ordinance, code, rule, regulation,
A-20
order or decree regulating or relating to, or imposing liability or
standards of conduct concerning, employee health and/or safety, as now or
at any time hereafter in effect.
"Officer's Certificate" shall mean a certificate signed by any
individual holding the office of vice president or higher, which
certificate shall certify as true and correct the subject matter being
certified to in such certificate.
"Operative Agreements" shall mean the following: the Participation
Agreement, the Agency Agreement, the Original Trust Agreement, the Trust
Agreement, the Certificates, the Credit Agreement, the Notes, the Lease
(and a memorandum thereof in a form reasonably acceptable to the Agent),
each Lease Supplement (and a memorandum thereof in a form reasonably
acceptable to the Agent), the Security Agreement and each Mortgage
Instrument.
"Orem Deed" shall mean the Warranty Deed dated September 26, 1995
executed by Philips Semiconductors Inc. for the benefit of the Owner
Trustee and recorded September 27, 1995, as Entry No. 64619, in Book 3777,
Page 619 in the Official Records of Utah County, Utah.
"Original Trust Agreement" shall have the meaning specified in the
recitals of the Trust Agreement.
"Overdue Rate" shall mean (i) with respect to Basic Rent, and any
other amount owed under or with respect to the Credit Agreement or the
Security Documents, the rate specified in Section 2.7(b) of the Credit
Agreement, (ii) with respect to Lessor Basic Rent, the Holder Yield and any
other amount owed under or with respect to the Trust Agreement, the
applicable rate specified in the Trust Agreement, and (iii) with respect to
any other amount, the amount specified in Section 2.7(b) of the Credit
Agreement.
"Owner Trustee" shall mean First Security Bank of Utah, N.A., not
individually, except as expressly stated in the various Operative
Agreements, but solely as Owner Trustee under the FM Trust 1995-2, and any
successor or replacement Owner Trustee expressly permitted under the
Operative Agreements.
"Participation Agreement" shall mean the Participation Agreement
dated as of December 1, 1995, among the Lessee, the Owner Trustee, not in
its individual capacity except as expressly stated therein, the Holders,
the Lenders and the Agent, as such Participation Agreement may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof or of any other Operative Agreement.
"Payment Date" shall mean any Specified Interest Payment Date and any
date on which interest or Holder Yield in connection with a prepayment of
principal on the Loans or of the Holder Advances is due under the Credit
Agreement or the Trust Agreement.
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"PBGC" shall mean the Pension Benefit Guaranty Corporation created by
Section 4002(a) of ERISA or any successor thereto.
"Permitted Exceptions" shall mean:
(i) Liens of the types described in clauses (i),
(ii) and (v) of the definition of Permitted Liens;
(ii) Liens for Taxes not yet due; and
(iii) all encumbrances, exceptions, restrictions, easements,
rights of way, servitudes, encroachments and irregularities in title,
other than Liens which, in the reasonable assessment of the Agent, do
not materially impair the use of the Property for its intended
purpose.
"Permitted Liens" shall mean:
(i) the respective rights and interests of the
parties to the Operative Agreements as provided in the
Operative Agreements;
(ii) the rights of any sublessee, assignee or
other transferee expressly permitted by the terms of the
Lease;
(iii) Liens for Taxes that either are not yet due
or are being contested in accordance with the provisions of
Section 13.1 of the Lease;
(iv) Liens arising by operation of law, material men's,
mechanics', workmen's, repairmen's, employees', carriers',
warehousemen's and other like Liens relating to the construction of
the Improvements or in connection with any Modifications or arising
in the ordinary course of business for amounts that either are not
more than 30 days past due or are being diligently contested in good
faith by appropriate proceedings, so long as such proceedings satisfy
the conditions for the continuation of proceedings to contest Taxes
set forth in Section 13.1 of the Lease;
(v) Liens of any of the types referred to in clause (iv)
above that have been bonded for not less than the full amount in
dispute (or as to which other security arrangements satisfactory to
the Lessor and the Agent have been made), which bonding (or
arrangements) shall comply with applicable Legal Requirements, and
shall have effectively stayed any execution or enforcement of such
Liens;
(vi) Liens arising out of judgments or awards with respect
to which appeals or other proceedings for review are being prosecuted
in good faith and for the payment of which adequate reserves have
been provided as required by GAAP or other appropriate provisions
have been made, so long as such
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proceedings have the effect of staying the execution of such
judgments or awards and satisfy the conditions for the continuation
of proceedings set forth in Section 13.1 of the Lease;
(vii) Liens in favor of municipalities to the
extent agreed to by the Lessor; and
(viii) Permitted Exceptions.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to title IV of ERISA (other than a
Multiemployer Plan), and to which the Company or any ERISA Affiliate may
have any liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any
time during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Person" shall mean any individual, corporation, partner ship, joint
venture, association, joint-stock company, trust, unincorporated
organization, governmental authority or any other entity.
"Plans and Specifications" shall mean, with respect to Improvements,
the plans and specifications for such Improvements to be constructed or
already existing, as such Plans and Specifications may be amended, modified
or supplemented from time to time.
"Prime Lending Rate" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Property" shall mean, with respect to each Store that is acquired,
constructed and/or renovated pursuant to the terms of the Operative
Agreements, the Land and each item of Equipment and the various
Improvements, in each case located on such Land.
"Property Acquisition Cost" shall mean the cost to Lessor to purchase
a Property on a Property Closing Date.
"Property Closing Date" shall mean each date on which (a) the Lessor
purchases or leases (pursuant to Ground Lease) a Property or (b) with
respect to the Property owned by Lessor pursuant to the Orem Deed, the date
as of which such Property is refinanced in accordance with the terms of the
Operative Agreements.
"Property Cost" shall mean with respect to a Property the aggregate
amount of Advances for such Property (as such amounts shall be increased
equally among all Properties respecting the Loans in regard to Section 9.1
of the Participation Agreement extended from time to time to pay for the
Transaction Expenses, fees, expenses and other disbursements referenced in
Sections 9.1(a) and (b) of the Participation Agreement).
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"Purchase Notice" shall have the meaning given to such term in
Section 20.1 of the Lease.
"Purchase Option" shall have the meaning given to such term in
Section 20.1 of the Lease.
"Purchase Option Price" shall have the meaning given to such term in
Section 20.1 of the Lease.
"Qualified Loan Assignment" shall have the meaning specified in
Section 1.1 of the Credit Agreement.
"Recipient Taxes" shall have the meaning specified in Section 13.2(e)
of the Participation Agreement.
"Release" shall mean any release, pumping, pouring, emptying,
injecting, escaping, leaching, dumping, seepage, spill, leak, flow,
discharge, disposal or emission of a Hazardous Substance.
"Renewal Option" shall have the meaning specified in Section
21.1 of the Lease.
"Rent" shall mean, collectively, the Basic Rent and the Supplemental
Rent, in each case payable under the Lease.
"Reportable Event" shall have the meaning specified in
ERISA.
"Requested Funds" shall mean any funds requested by the Lessee or the
Construction Agent, as applicable, in accordance with Section 5 of the
Participation Agreement.
"Requirement of Law" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Requisition" shall have the meaning specified in Section
4.2 of the Participation Agreement.
"Responsible Officer" shall mean 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, except
that when used with respect to the Trust Company or the Owner Trustee,
"Responsible Officer" shall also include the Cashier, any Assistant
Cashier, any Trust Officer or Assistant Trust Officer, the Controller and
any Assistant Controller or any other officer of the Trust Company or the
Owner Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
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"Scheduled Interest Payment Date" shall have the meaning specified in
Section 1.1 of the Credit Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Security Agreement" shall mean the Security Agreement, dated as of
the Initial Closing Date between the Owner Trustee and the Agent.
"Security Documents" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Shared Rights" shall mean the rights retained by the Lessor, but not
to the exclusion of the Agent, pursuant to Section 8.2(b) of the Credit
Agreement.
"Specialized Equipment" shall mean Equipment which is not, and is not
intended to be, affixed to or a component of any of the various
Improvements or Land subject to the Operative Agreements.
"Specified Interest Payment Date" shall have the meaning specified in
Section 1.1 of the Credit Agreement.
"Store" means a combination supermarket and general merchandise
multidepartment store that is substantially similar to stores owned and/or
leased by the Lessee as of the Initial Closing Date.
"Subsidiary" shall have the meaning specified in Section 1.1
of the Credit Agreement.
"Supplemental Rent" shall mean all amounts, liabilities and
obligations (other than Basic Rent) which the Lessee assumes or agrees to
pay to Lessor, the Holders, the Administrative Agent or any other Person
under the Lease or under any of the other Operative Agreements including,
without limitation, payments of Purchase Option Price, Termination Value
and the Maximum Residual Guarantee Amount and all indemnification amounts,
liabilities and obligations.
"Suretyship Liability" means any agreement, undertaking or other
contractual arrangement by which any Person guarantees, endorses or
otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply
funds to or otherwise to invest in a debtor, or otherwise to assure a
creditor against loss) any indebtedness, obligation or other liability
(including accounts payable) of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Person. The amount of any Person's obligation under any Suretyship
Liability shall (subject to any limitation set
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forth therein) be deemed to be the principal amount of the indebtedness,
obligation or other liability guaranteed thereby.
"Taxes" shall have the meaning specified in the definition of
Impositions; provided, solely for purposes of Section 13.2(e) of the
Participation Agreement "Taxes" shall have the meaning specified in such
Section 13.2(e).
"Term" shall mean the Basic Term and each Extended Term, if
any.
"Termination Date" shall have the meaning specified in
Section 16.2(a) of the Lease.
"Termination Event" shall mean (a) with respect to any Plan, the
occurrence of a Reportable Event or an event described in Section 4062(e)
of ERISA, (b) the withdrawal of the Lessee or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or the
termination of a Multiple Employer Plan, (c) the distribution of a notice
of intent to terminate a Plan or Multiemployer Plan pursuant to Section
4041(a)(2) or 4041A of ERISA, (d) the institution of proceedings to
terminate a Plan or Multiemployer Plan by the PBGC under Section 4042 of
ERISA, (e) any other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan or Multiemployer Plan, or (f) the complete
or partial withdrawal of the Lessee or any ERISA Affiliate from a
Multiemployer Plan.
"Termination Notice" shall have the meaning specified in
Section 16.1 of the Lease.
"Termination Value" shall mean, as of any Payment Date, (a) with
respect to all Properties, an amount equal to the sum of (i) the aggregate
outstanding principal of the Notes, plus (ii) the aggregate Holder Property
Cost, in each case as of the applicable Payment Date and (b) with respect
to a particular Property, an amount equal to the product of the Termination
Value of all the Properties as of such Payment Date times a fraction, the
numerator of which is the Property Cost as of such Payment Date allocable
to the particular Property in question and the denominator of which is the
aggregate Property Cost for all the Properties as of such Payment Date.
"Total Condemnation" shall mean a Condemnation that involves a taking
of Lessor's entire title to a Property.
"Transaction Expenses" shall mean all reasonable costs and expenses
incurred in connection with the preparation, execution and delivery of the
Operative Agreements and the transactions contemplated by the Operative
Agreements including without limitation:
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(a) the reasonable fees, out-of-pocket expenses and
disbursements of counsel in negotiating the terms of the Operative
Agreements and the other transaction documents, preparing for the
closings under, and rendering opinions in connection with, such
transactions and in rendering other services customary for counsel
representing parties to transactions of the types involved in the
transactions contemplated by the Operative Agreements;
(b) any and all other reasonable fees, charges or other amounts
payable to the Lenders, Agent, the Holders, the Owner Trustee or any
broker which arises under any of the Operative Agreements;
(c) any other reasonable fee, out-of-pocket expenses,
disbursement or cost of any party to the Operative Agree ments or any
of the other transaction documents; and
(d) any and all Taxes and fees incurred in recording or filing
any Operative Agreement or any other transaction document, any deed,
declaration, mortgage, security agreement, notice or financing
statement with any public office, registry or governmental agency in
connection with the transactions contemplated by the Operative
Agreement.
"Tribunal" shall mean any state, commonwealth, federal, foreign,
territorial, or other court or government body, subdivision agency,
department, commission, board, bureau or instrumentality of a governmental
body.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement
dated as of the Initial Closing Date among the Holders and the Owner
Trustee.
"Trust Company" shall mean First Security Bank of Utah, N.A., in its
individual capacity, and any successor owner trustee under the Trust
Agreement in its individual capacity.
"Trust Estate" shall have the meaning specified in Section 2.2 of the
Trust Agreement.
"UCC Financing Statements" shall mean collectively the
Lender Financing Statements and the Lessor Financing Statements.
"Unfunded Amount" shall have the meaning specified in Section 3.2 of
the Agency Agreement.
"Uniform Commercial Code" and "UCC" shall mean the Uniform Commercial
Code as in effect in any applicable jurisdiction.
"Unimproved Property" shall mean a Property acquired by the Lessor
which either consists entirely of Land or consists of Land and Improvements
but the existing Improvements are not suitable as of the Property Closing
Date for occupancy by the Lessee and the operation by the Lessee of a Store
therein.
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"Up-Front Fee" shall mean the fee payable by Lessee to Lessor on or
prior to the Initial Closing Date pursuant to the terms and conditions of
Section 9.4 of the Participation Agreement.
"Voting Power" shall mean, with respect to securities issued by any
Person, the combined voting power of all securities of such person which
are issued and outstanding at the time of determination and which are
entitled to vote in the election of directors or such Person, other than
securities having such power only by reason of the happening of a
contingency.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
"Work" shall mean the furnishing of labor, materials, components,
furniture, furnishings, fixtures, appliances, machinery, equipment, tools,
power, water, fuel, lubricants, supplies, goods and/or services with
respect to any Property.
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