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EXHIBIT 10.49
LEASE AGREEMENT
Dated as of February 5, 1998
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually,
but solely as the Owner Trustee
under the Guilford Real Estate Trust 1998-1,
as Lessor
and
GUILFORD PHARMACEUTICALS INC.,
as Lessee
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This Lease Agreement is subject to a security interest in favor of First Union
National Bank, as the agent for the Lenders and respecting the Security
Documents, as the agent for the Lenders and the Holders, to the extent of their
interests (the "Agent") under a Security Agreement dated as of February 5,
1998, between First Security Bank, National Association, not individually, but
solely as the Owner Trustee under the Guilford Real Estate Trust 1998-1 and the
Agent, as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof. 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), no security interest in this Lease Agreement may be created
through the transfer or possession of any counterpart other than the original
counterpart containing the receipt therefor executed by the Agent on the
signature page hereof.
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TABLE OF CONTENTS
ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Lease Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 Lease Supplements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Payment of Basic Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.3 Supplemental Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.4 Performance on a Non-Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.5 Rent Payment Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 Taxes; Utility Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.1 Net Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.2 No Termination or Abatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.1 Ownership of the Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.1 Condition of the Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.2 Possession and Use of the Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.3 Integrated Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9.1 Compliance With Legal Requirements,
Insurance Requirements and Manufacturer's Specifications and Standards . . . . . . . . . . . . . . 10
ARTICLE X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10.1 Maintenance and Repair; Return. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10.2 Environmental Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.1 Modifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12.1 Warranty of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
13.1 Permitted Contests Other Than in Respect of Indemnities. . . . . . . . . . . . . . . . . . . 14
13.2 Impositions, Utility Charges, Other Matters; Compliance with Legal . . . . . . . . . . . . . 14
Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.1 Public Liability and Workers' Compensation Insurance. . . . . . . . . . . . . . . . . . . . . 15
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14.2 Permanent Hazard and Other Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.3 Coverage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
15.1 Casualty and Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
15.2 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
15.3 Notice of Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE XVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
16.1 Termination Upon Certain Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
16.2 Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE XVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
17.1 Lease Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
17.2 Surrender of Possession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
17.3 Reletting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
17.4 Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
17.5 Power of Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
17.6 Final Liquidated Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
17.7 Environmental Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
17.8 Waiver of Certain Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
17.9 Assignment of Rights Under Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
17.10 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE XVIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
18.1 Lessor's Right to Cure Lessee's Lease Defaults. . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE XIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
19.1 Provisions Relating to Lessee's Exercise of its Purchase Option. . . . . . . . . . . . . . . 27
19.2 No Purchase or Termination With Respect to Less than All of a Property. . . . . . . . . . . . 27
ARTICLE XX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
20.1 Purchase Option or Sale Option-General Provisions. . . . . . . . . . . . . . . . . . . . . . 28
20.2 Lessee Purchase Option. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
20.3 Third Party Sale Option. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE XXI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
21.1 [Intentionally Omitted]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE XXII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
22.1 Sale Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
22.2 Application of Proceeds of Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
22.3 Indemnity for Excessive Wear. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
22.4 Appraisal Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
22.5 Certain Obligations Continue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE XXIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
23.1 Holding Over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE XXIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
24.1 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE XXV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
25.1 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
25.2 Subleases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE XXVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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26.1 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE XXVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
27.1 Acceptance of Surrender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
27.2 No Merger of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE XXVIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
28.1 (intentionally omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE XXIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
29.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE XXX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
30.1 Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
30.2 Amendments and Modifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
30.3 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
30.4 Headings and Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
30.5 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
30.6 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
30.7 Calculation of Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
30.8 Memoranda of Lease and Lease Supplements. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
30.9 Allocations between the Lenders and the Holders. . . . . . . . . . . . . . . . . . . . . . . 38
30.10 Limitations on Recourse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
30.11 WAIVERS OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
30.12 Exercise of Lessor Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
30.13 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . 39
30.14 USURY SAVINGS PROVISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
EXHIBITS
EXHIBIT A - Lease Supplement No. ____
EXHIBIT B - Memorandum of Lease and Lease Supplement No. ____
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LEASE AGREEMENT
THIS LEASE AGREEMENT dated as of February 5, 1998 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Lease") is between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, having its principal office at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, not individually, but solely as the Owner Trustee under
the Guilford Real Estate Trust 1998-1, as lessor (the "Lessor"), and GUILFORD
PHARMACEUTICALS 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
Participation Agreement and the Agency Agreement, Lessor will (i) purchase or
ground lease various parcels of real property, some of which will (or may) have
existing Improvements thereon, from one (1) or more third parties designated by
Lessee and (ii) fund the acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment and restoration of
the Properties by the Construction Agent; and
B. WHEREAS, the Term shall commence with respect to each Property
upon the Property Closing Date with respect thereto; provided, Basic Rent with
respect thereto shall not be payable until the applicable Rent Commencement
Date; 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.
For purposes of this Lease, capitalized terms used in this
Lease and not otherwise defined herein shall have the meanings assigned to them
in Appendix A to that certain Participation Agreement dated as of February 5,
1998 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Lessee, Lessor, the various banks and other
lending institutions which are parties thereto from time to time, as the
Holders, the various banks and other lending institutions which are parties
thereto from time to time, as the Lenders, and First Union National Bank, as
agent for the Lenders and respecting the Security Documents,
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as the agent for the Lenders and the Holders, to the extent of their interests.
Unless otherwise indicated, references in this Lease to articles, sections,
paragraphs, clauses, appendices, schedules and exhibits are to the same
contained in this Lease.
1.2 INTERPRETATION.
The rules of usage set forth in Appendix A to the
Participation Agreement shall apply to this Lease.
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
"Term") shall begin upon the Property Closing Date for such Property (in each
case the "Commencement Date") and shall end on the seventh annual anniversary
of the Initial Closing Date, unless the Term is earlier terminated.
Notwithstanding the foregoing, Lessee shall not be obligated to pay Basic Rent
until the Rent Commencement Date with respect to such Property.
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 (if any), the existing state of title (including without
limitation the Permitted Liens) and all applicable Legal Requirements. Lessee
shall in no event have any recourse against Lessor for any defect in Lessor's
title to any Property or any interest of Lessee therein other than for Lessor
Liens.
2.4 LEASE SUPPLEMENTS.
On or prior to each Commencement Date, Lessee and Lessor shall each
execute and deliver a Lease Supplement for the Property to be leased effective
as of such Commencement Date in substantially the form of EXHIBIT A hereto.
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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
Rent Commencement Date with respect to such Property (notwithstanding
that Basic Rent for such Property shall accrue from and including the
Scheduled Interest Payment Date immediately preceding such Rent
Commencement Date).
(b) Basic Rent shall be due and payable in lawful money
of the United States and shall be paid by wire transfer of immediately
available funds on the due date therefor (or within the applicable
grace period) to such 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 Lessor, the Construction
Agent, Lessee or any other Person 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.
(d) Lessee shall make all payments of Rent prior to 12:00
Noon, Charlotte, North Carolina time, on the applicable date for
payment of such amount.
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 the Person entitled thereto any and all
Supplemental Rent when and as the same shall become due and payable, and if
Lessee fails to pay any Supplemental Rent within three (3) days after the same
is due, 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. The
Lessee shall have the option without penalty to pay additional Supplemental
Rent to prepay the Notes in whole or in part (consistent with Section 9.1(c) of
the Participation Agreement and Section 2.6 of the Credit Agreement) and to
prepay the Holder Advances in whole or in part (consistent with Section 9.2(a)
of the Participation Agreement and Section 3.4 of the Trust Agreement). All
such payments of Supplemental Rent shall be in the full amount thereof, without
setoff, deduction or reduction. Lessee shall pay to the appropriate Person, as
Supplemental Rent due and owing to such Person, among other things, on demand,
to the extent permitted by applicable Legal Requirements, (a) any and all
payment obligations (except for
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amounts payable as Basic Rent) owing from time to time under the Operative
Agreements by any Person to the Agent, any Lender, any Holder or any other
Person and (b) interest at the applicable Overdue Rate on any installment of
Basic Rent not paid when due (subject to the applicable grace period) for the
period for which the same shall be overdue and on any payment of Supplemental
Rent not paid when due or demanded by the appropriate Person (subject to any
applicable grace period) 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. It shall be an
additional Supplemental Rent obligation of Lessee to pay to the appropriate
Person all rent and other amounts when such become due and owing from time to
time under each Ground Lease and without the necessity of any notice from
Lessor with regard thereto. 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 Basic Rent is required hereunder on a day that is not a
Business Day, then such Basic Rent shall be due on the corresponding Scheduled
Interest Payment Date. If any Supplemental Rent is required hereunder on a day
that is not a Business Day, then such Supplemental Rent shall be due on the
next succeeding Business Day.
3.5 RENT PAYMENT PROVISIONS.
Lessee shall make payment of all Basic Rent and Supplemental
Rent when due (subject to the applicable grace periods) regardless of whether
any of the provisions 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 TAXES; UTILITY CHARGES.
Lessee shall pay or cause to be paid all Impositions with
respect to the Properties and/or the use, occupancy, operation, repair, access,
maintenance or operation thereof and all charges for electricity, power, gas,
oil, water, telephone, sanitary sewer service and all other rents, utilities
and operating expenses of any kind or type used in or on any Property and
related real property during the Term. Upon Lessor's request, Lessee shall
provide from time to time Lessor with evidence of all such payments referenced
in the foregoing sentence. Lessee shall be
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entitled to receive any credit or refund with respect to any Imposition or
utility charge paid by Lessee. Unless an Event of Default shall have occurred
and be continuing, the amount of any credit or refund received by Lessor on
account of any Imposition or utility charge paid by Lessee, net of the costs
and expenses incurred by Lessor in obtaining such credit or refund, shall be
promptly paid over to Lessee. All charges for Impositions or utilities imposed
with respect to any Property for a 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.. Notwithstanding the foregoing provisions of this Section
4.1, Lessee shall not be responsible for Impositions to the extent such
Impositions are expressly excluded from the general tax indemnity pursuant to
the provisions of Section 11.2(b) of the Participation Agreement.
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 the other Operative
Agreements and so long as no 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 Commencement
Date.
ARTICLE VI
6.1 NET LEASE.
This Lease shall constitute a net lease, and the obligations
of Lessee hereunder are absolute and unconditional. Lessee shall pay all
operating expenses arising out of the use, operation and/or occupancy of each
Property. 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) for any reason whatsoever, including without limitation
by reason of: (a) any damage to or destruction of any Property or any part
thereof; (b) any taking of any Property or any part thereof or interest therein
by Condemnation or otherwise; (c) 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; (d) any title defect, Lien or any matter
affecting title to any Property; (e) any eviction by paramount title or
otherwise; (f) any default by Lessor hereunder; (g) any action for bankruptcy,
insolvency, reorganization, liquidation, dissolution or other proceeding
relating to or affecting the Agent, any Lender, Lessor, Lessee, any Holder or
any Governmental Authority; (h) the impossibility or illegality of performance
by Lessor, Lessee
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or both; (i) any action of any Governmental Authority or any other Person; (j)
Lessee's acquisition of ownership of all or part of any Property; (k) breach of
any warranty or representation with respect to any Property or any Operative
Agreement; (l) any defect in the condition, quality or fitness for use of any
Property or any part thereof; or (m) 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.
Notwithstanding the provisions of this Section 6.1, Lessee expressly reserves
and retains the right to ▇▇▇ ▇▇▇▇▇▇ in a court of law for damages relating to
any breach of Lessor's contractual obligations, tortious misconduct or
otherwise.
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 any
Person 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 any Person or any Governmental Authority or by any court with
respect to any Person, or any Governmental Authority. Lessee hereby waives all
right (a) to terminate or surrender this Lease (except as permitted under the
terms of the Operative Agreements) or (b) 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
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 PROPERTIES.
(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 and bankruptcy 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. Notwithstanding the foregoing,
neither party hereto has made, or shall be deemed to have
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made, any representation or warranty as to the availability of any of
the foregoing treatments under applicable accounting rules, tax,
bankruptcy, regulatory, commercial or real estate law or under any
other set of rules. Lessee shall claim the cost recovery tax
deductions associated with each Property, and Lessor shall not, to the
extent not prohibited by Law, take on its tax return a position
inconsistent with Lessee's claim of such deductions.
(b) For all purposes other than as set forth in Section
7.1(a)(i), Lessor and Lessee intend this Lease to constitute a finance
lease and not a true lease. In order to secure the obligations of
Lessee now existing or hereafter arising under any and all Operative
Agreements, Lessee hereby conveys, grants, assigns, transfers,
hypothecates, mortgages and sets over to Lessor, for the benefit of
all Financing Parties, a first priority security interest (but
subject to the security interest in the assets granted by Lessee in
favor of the Agent in accordance with the Security Agreement) in and
lien on all right, title and interest of Lessee (now owned or
hereafter acquired) in and to all Properties, to the extent such is
personal property and irrevocably grants and conveys a lien, deed of
trust and mortgage on all right, title and interest of Lessee (now
owned or hereafter acquired) in and to all Properties to the extent
such is real property. Lessor and Lessee further intend and agree
that, for the purpose of securing the obligations of Lessee and/or the
Construction Agent now existing or hereafter arising under the
Operative Agreements, (i) this Lease shall be a security agreement
within the meaning of Article 9 of the Uniform Commercial Code
respecting each of the Properties and all proceeds (including without
limitation insurance proceeds thereof) to the extent such is personal
property and an irrevocable grant and conveyance of a lien, deed of
trust and mortgage on each of the Properties and all proceeds
(including without limitation insurance proceeds thereof) to the
extent such is real property; (ii) the acquisition of title (or to the
extent applicable, a leasehold interest pursuant to a Ground Lease) in
each Property referenced in Article II constitutes a grant by Lessee
to Lessor of a security interest, lien, deed of trust and mortgage in
all of Lessee's right, title and interest in and to each Property and
all proceeds (including without limitation insurance proceeds thereof)
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 each Property; and (iii)
notifications to Persons holding such property, and acknowledgments,
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 lien, security interest, mortgage
lien and deed of trust under applicable law. Lessee shall promptly
take such actions as Lessor may reasonably request (including without
limitation the filing of Uniform Commercial Code Financing Statements,
Uniform Commercial Code Fixture Filings and memoranda (or short forms)
of this Lease and the various Lease Supplements) to ensure that the
lien, security interest, lien, mortgage lien and deed of trust in each
Property and the other items referenced above will be deemed to be a
perfected lien, security interest, mortgage lien and deed of trust of
first priority under applicable law and will be maintained as such
throughout the Term.
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ARTICLE VIII
8.1 CONDITION OF THE PROPERTIES.
LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING EACH
PROPERTY "AS-IS WHERE-IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS
OR IMPLIED) BY LESSOR (EXCEPT THAT LESSOR SHALL KEEP EACH PROPERTY FREE AND
CLEAR OF LESSOR LIENS) AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF
TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF (IF ANY), (C) ANY
STATE OF FACTS REGARDING ITS PHYSICAL CONDITION OR WHICH AN ACCURATE SURVEY
MIGHT SHOW, (D) ALL APPLICABLE LEGAL REQUIREMENTS AND (E) VIOLATIONS OF LEGAL
REQUIREMENTS WHICH MAY EXIST ON THE DATE HEREOF AND/OR THE DATE OF THE
APPLICABLE LEASE SUPPLEMENT. 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) (EXCEPT THAT LESSOR SHALL KEEP EACH
PROPERTY FREE AND CLEAR OF LESSOR LIENS) 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 THEREON OR THE FAILURE OF ANY PROPERTY, OR
ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT. LESSEE HAS OR PRIOR TO
THE COMMENCEMENT DATE WILL HAVE BEEN AFFORDED FULL OPPORTUNITY TO INSPECT EACH
PROPERTY AND THE IMPROVEMENTS THEREON (IF ANY), IS OR WILL BE (INSOFAR AS
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 LESSOR, THE AGENT, THE
LENDERS AND THE HOLDERS, ON THE ONE (1) HAND, AND LESSEE, ON THE OTHER HAND,
ARE TO BE BORNE BY LESSEE.
8.2 POSSESSION AND USE OF THE PROPERTIES.
(a) At all times during the Term with respect to each
Property, such Property shall be a Permitted Facility and shall be
used by Lessee in the ordinary course of its business. 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. Lessee
shall not commit or permit any waste of the Properties or any part
thereof, normal wear and tear excepted.
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(b) The address stated in Section 12.2 of the
Participation Agreement is the principal 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), and
Lessee will provide Lessor with prior written notice of any change of
location of its principal place of business or chief executive office.
Regarding a particular Property, each Lease Supplement correctly
identifies the initial location of the related Equipment (if any) and
Improvements (if any) and contains an accurate legal description for
the related parcel of Land or a copy of the Ground Lease (if any).
The Equipment and Improvements respecting each particular Property
will be located only at the location identified in 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 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) On the Commencement Date for each Property, Lessor
and Lessee shall execute a Lease Supplement in regard to such Property
which shall contain an Equipment Schedule that has a complete
description of each item of Equipment which is then a part of the
Property, an Improvement Schedule that has a complete description of
each Improvement which is then a part of the Property and a legal
description of the Land to be leased hereunder (or in the case of any
Property subject to a Ground Lease to be subleased hereunder) as of
such date. Each Property subject to a Ground Lease shall be deemed to
be ground subleased from Lessor to Lessee as of the Commencement Date,
and such ground sublease shall be in effect until this Lease is
terminated or expires, in each case in accordance with the terms and
provisions hereof. Lessee shall satisfy and perform all obligations
imposed on Lessor under each Ground Lease. Simultaneously with the
execution and delivery of each Lease Supplement, such Equipment,
Improvements, Land, ground subleasehold interest, all additional
Equipment and Improvements which are financed under the Operative
Agreements after the Commencement Date and the remainder of such
Property shall be deemed to have been accepted by Lessee for all
purposes of this Lease and to be subject to this Lease.
(e) At all times during the Term with respect to each
Property, Lessee will comply with all obligations under and (to the
extent no Event of Default exists and no Material Adverse Effect shall
result) shall be permitted to exercise all rights and remedies under,
all operation and easement agreements and related or similar
agreements applicable to such Property.
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8.3 INTEGRATED PROPERTIES.
On the Rent Commencement Date for each Property, such Property
and the applicable property subject to a Ground Lease shall constitute (and for
the duration of the Term shall continue to constitute) all of the equipment,
facilities, rights, other personal property and other real property necessary
or appropriate to operate, utilize, maintain and control a Permitted Facility
in a commercially reasonable manner.
ARTICLE IX
9.1 COMPLIANCE WITH LEGAL REQUIREMENTS, INSURANCE REQUIREMENTS AND
MANUFACTURER'S SPECIFICATIONS AND STANDARDS.
Subject to the terms of Article XIII relating to permitted
contests, Lessee, at its sole cost and expense, shall (a) comply with all
applicable Legal Requirements (including without limitation all Environmental
Laws) and all Insurance Requirements relating to the Properties, (b) procure,
maintain and comply with all licenses, permits, orders, approvals, consents and
other authorizations required for the acquisition, installation, testing, use,
development, construction, operation, maintenance, repair, refurbishment and
restoration of the Properties, and (c) comply with all manufacturer's
specifications and standards, including without limitation the acquisition,
installation, testing, use, development, construction, operation, maintenance,
repair, refurbishment and restoration of the Properties, whether or not
compliance therewith shall require structural or extraordinary changes in any
Property or interfere with the use and enjoyment of any Property unless the
failure to procure, maintain and comply with such items identified in
subparagraphs (b) and (c), individually or in the aggregate, shall not and
could not reasonably be expected to have a Material Adverse Effect. Lessor
agrees to take such actions as may be reasonably requested by Lessee in
connection with the compliance by Lessee of its obligations under this Section
9.1.
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 in the repair and condition as when
originally delivered to Lessor and make all necessary repairs thereto
and replacements thereof, 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
Section 9.1 and on a basis consistent with the operation and
maintenance of properties or equipment comparable in type and function
to the applicable Property, such that such Property is capable of
being immediately utilized by a third party and in compliance with
standard industry practice subject, however, to the provisions of
Article XV with respect to Casualty and Condemnation.
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(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 such Property) described in the applicable
Lease Supplement, except for the temporary removal of Equipment and
other personal property for repair or replacement.
(c) If any component of any Property becomes worn out,
lost, destroyed, damaged beyond repair or otherwise permanently
rendered unfit for use, Lessee, at its own expense, will within a
reasonable time replace such component with a replacement component
which is free and clear of all Liens (other than Permitted Liens and
Lessor Liens) and has a value, utility and useful life at least equal
to the component replaced (assuming the component replaced had been
maintained and repaired in accordance with the requirements of this
Lease). All such replacement components which are added to any
Property shall immediately become the property of (and title thereto
shall vest in) Lessor and shall be deemed incorporated in such
Property and subject to the terms of this Lease as if originally
leased hereunder.
(d) Upon reasonable advance written 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 an Event of
Default, materially disrupt the business of Lessee.
(e) Lessee shall cause to be delivered to Lessor (at
Lessee's sole expense) one (1) or more additional Appraisals (or
reappraisals of Property) as Lessor may request if any one (1) of
Lessor, the Agent, the Trust Company, any Lender or any Holder is
required pursuant to any applicable Legal Requirement to obtain such
Appraisals (or reappraisals) and upon the occurrence of any Event of
Default.
(f) Lessor shall under no circumstances be required (or
permitted, unless (x) an emergency exists and then only after Lessee
has failed to cure such emergency after receiving reasonable prior
notice from Lessor or (y) an Event of Default shall have occurred and
be continuing) to build any improvements or install any equipment 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,
covenant, 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 with respect to such Property
and purchased such Property, surrender such Property (i) to Lessor
pursuant to the exercise of the applicable remedies upon the
occurrence of a Lease Event
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of Default or (ii) pursuant to the second paragraph of Section 22.1(a)
hereof, to Lessor or the third party purchaser, as the case may be,
subject to Lessee's obligations under this Lease (including without
limitation the obligations of Lessee at the time of such surrender
under Sections 9.1, 10.1(a) through (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 Purchase
Option on the Expiration Date pursuant to Section 20.1 or for whatever reason
Lessee does not purchase a Property in accordance with the terms of this
Lease, then not more than one hundred twenty (120) days nor less than sixty
(60) days prior to the Expiration Date, Lessee at its expense shall cause to be
delivered to Lessor a Phase I environmental site assessment recently prepared
(no more than thirty (30) days prior to the date of delivery) by an independent
recognized professional reasonably acceptable to Lessor, and in form, scope and
content reasonably satisfactory to Lessor.
ARTICLE XI
11.1 MODIFICATIONS.
(a) Lessee at its sole cost and expense, at any time and
from time to time without the consent of Lessor may make
modifications, alterations, renovations, improvements and additions to
any Property or any part thereof and substitutions and replacements
therefor (collectively, "Modifications"), and Lessee shall make any
and all Modifications required to be made pursuant to all Legal
Requirements, Insurance Requirements and manufacturer's specifications
and standards; provided, that: (i) no Modification shall materially
impair the value, utility or useful life of any Property from that
which existed immediately prior to such Modification; (ii) each
Modification shall be done expeditiously and in a good and workmanlike
manner; (iii) no Modification shall adversely affect the structural
integrity of any Property; (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 other than Permitted Liens
arising with respect to any Modification; (vi) each Modification shall
comply with the requirements of this Lease (including without
limitation Sections 8.2 and 10.1); and (vii) no Improvement shall be
demolished or otherwise rendered unfit for use unless Lessee shall
finance the proposed replacement Modification outside of this lease
facility; provided, further, Lessee shall not make any Modification
(unless required by any Legal Requirement) to the extent any such
Modification, individually or in the aggregate, shall or could
reasonably be expected to have a Material Adverse Effect. All
Modifications (which in all cases shall exclude the Lessee Equipment)
shall immediately and without further action upon their incorporation
into the applicable Property (1) become property of Lessor, (2) be
subject to this Lease and (3) be titled in the name of Lessor. Lessee
shall not remove or attempt to remove any Modification from any
Property; provided, the foregoing restriction shall not restrict the
rights of the Lessee
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regarding Lessee Equipment. Each Ground Lease for a Property shall
expressly provide for the provisions of the foregoing sentence.
Lessee, at its own cost and expense, will pay for the repairs of any
damage to any Property caused by the removal or attempted removal of
any Modification.
(b) The construction process provided for in the Agency
Agreement is acknowledged by Lessor 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 hereby acknowledges and shall cause title in
each Property (including without limitation all Equipment, all
Improvements, all replacement components to each Property and all
Modifications (excluding Lessee Equipment)) immediately and without
further action to vest in and become the property of Lessor and to be
subject to the terms of this Lease (provided, respecting each Property
subject to a Ground Lease, Lessor's interest therein is acknowledged
to be a leasehold interest pursuant to such Ground Lease) from and
after the date hereof or such date of incorporation into any Property.
Lessee agrees that, 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 its sole cost and
expense, any Lien, defect, attachment, levy, title retention agreement
or claim upon any Property, any component thereof or any Modifications
(excluding Lessee Equipment) or any Lien, attachment, levy or claim
with respect to the Rent or with respect to any amounts held by
Lessor, the Agent or any Holder pursuant to any Operative 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, the Rent or any other such amounts, and Lessee
represents and warrants to, and covenants with, Lessor that the Liens
in favor of Lessor created by the Operative Agreements are (and until
the Financing Parties under the Operative Agreements have been paid in
full shall remain) first priority perfected Liens subject only to
Permitted Liens and Lessor Liens. At all times subsequent to the
Commencement Date respecting a Property, Lessee shall (i) cause a
valid, perfected, first priority Lien on each applicable Property to
be in place in favor of the Agent (for the benefit of the Lenders and
the Holders) and (ii) file, or cause to be filed, all necessary
documents under the applicable real property law and Article 9 of the
Uniform Commercial Code to perfect such title and 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
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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 EXCEPT FOR PERMITTED LIENS.
ARTICLE XIII
13.1 PERMITTED CONTESTS OTHER THAN IN RESPECT OF INDEMNITIES.
Except to the extent otherwise provided for in Section 11 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,
Imposition or utility charge 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) the
commencement and continuation of such proceedings shall suspend the collection
of any such contested amount from, and suspend the enforcement thereof against,
the applicable Properties, Lessor, each Holder, the Agent and each Lender; (b)
there shall not be imposed a Lien (other than Permitted Liens and Lessor Liens)
on any Property and no part of any Property nor any Rent would be in any
material risk of being sold, forfeited, lost or deferred; (c) at no time during
the permitted contest shall there be a risk of the imposition of criminal
liability or material civil liability on Lessor, any Holder, the Agent or any
Lender for failure to comply therewith; and (d) 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
Certificate certifying as to the matters set forth in clauses (a), (b) and (c)
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.
13.2 IMPOSITIONS, UTILITY CHARGES, OTHER MATTERS; COMPLIANCE WITH
LEGAL REQUIREMENTS.
Except with respect to Impositions, Legal Requirements,
utility charges and such other matters referenced in Section 13.1 which are the
subject of ongoing proceedings contesting the same in a manner consistent with
the requirements of Section 13.1, Lessee shall cause (a) all Impositions,
utility charges and such other matters to be timely paid, settled or
compromised, as appropriate, with respect to each Property and (b) each
Property to comply with all applicable Legal Requirements.
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ARTICLE XIV
14.1 PUBLIC LIABILITY AND WORKERS' COMPENSATION INSURANCE.
During the Term for each Property, Lessee shall procure and
carry, at Lessee's sole cost and expense, commercial general liability and
umbrella liability insurance for claims for injuries or death sustained by
persons or damage to property while on such Property or respecting the
Equipment and such other public liability coverages as are then customarily
carried by similarly situated companies conducting business similar to that
conducted by Lessee. 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 are then carried by similarly
situated companies conducting business similar to that conducted by Lessee, and
in no event shall have a minimum (a) combined single limit per occurrence
coverage (i) for commercial general liability of less than $1,000,000 and (ii)
for umbrella liability of less than $1,000,000 and (b) aggregate limit for
commercial general liability of less than $2,000,000. The policies shall name
Lessee as the insured and shall be endorsed to name Lessor, the Holders, the
Agent and the Lenders as additional 1insureds. 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, any Holder, the Agent or any Lender may have in force. In the
operation of the Properties, Lessee shall comply with applicable workers'
compensation laws and protect Lessor, each Holder, the Agent and each Lender
against any liability under such laws.
14.2 PERMANENT HAZARD AND OTHER INSURANCE.
(a) During the Term for each Property, Lessee shall keep
such Property insured against all risk of physical loss or damage by
fire and other risks and shall maintain builders' risk insurance
during construction of any Improvements or Modifications in each case
in amounts no less than the Termination Value from time to time and on
terms that (i) are no less favorable than insurance covering other
similar properties owned by Lessee and (ii) are then carried by
similarly situated companies conducting business similar to that
conducted by Lessee. The policies shall name Lessee as the insured
and shall be endorsed to name Lessor, the Holders and the Agent (on
behalf of the Lenders and the Holders) as a named additional insured
and loss payee, to the extent of their respective interests; provided,
so long as no Event of Default exists, any loss payable under the
insurance policies required by this Section for losses up to and
including $1,000,000 will be paid to Lessee.
(b) If, 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 or is in a zone designated A or V,
then 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
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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 applies to any such Property. During the Term,
Lessee shall, in the operation and use of each Property, maintain
workers' compensation insurance consistent with that carried by
similarly situated companies conducting business similar to that
conducted by Lessee and containing minimum liability limits of no less
than $100,000. In the operation of each Property, Lessee shall comply
with workers' compensation laws applicable to Lessee, and protect
Lessor, each Holder, the Agent and each Lender against any liability
under such laws.
14.3 COVERAGE.
(a) As of the date of this Lease and annually thereafter
during the Term, Lessee shall furnish the Agent (on behalf of Lessor
and the other beneficiaries of such insurance coverage) with
certificates prepared by the insurers or insurance broker of Lessee
showing the insurance required under Sections 14.1 and 14.2 to be in
effect, naming (to the extent of their respective interests) 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 and provided
by nationally recognized, financially sound insurance companies having
an A+ or better rating by A.M. Best's Key Rating Guide. Lessee shall
cause such certificates to include a provision for thirty (30) days'
advance written notice by the insurer to the Agent (on behalf of
Lessor and the other beneficiaries of such insurance coverage) in the
event of cancellation or material alteration of such insurance. If an
Event of Default has occurred and is continuing and the Agent (on
behalf of Lessor and the other beneficiaries of such insurance
coverage) so requests, Lessee shall deliver to the Agent (on behalf of
Lessor and the other beneficiaries of such insurance coverage) 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 should Lessee or any Contractor, as
the case may be, waive, at any time, any or all rights of recovery
against any party for losses covered by such policy or due to any
breach of warranty, fraud, action, inaction or misrepresentation by
Lessee or any Person acting on behalf of Lessee. Lessee hereby waives
any and all such rights against 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
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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.
ARTICLE XV
15.1 CASUALTY AND CONDEMNATION.
(a) Subject to the provisions of the Agency Agreement and
this Article XV and Article XVI (in the event Lessee delivers, or is
obligated to deliver or is deemed to have delivered, a Termination
Notice), and prior to the occurrence and continuation of a Default or
an 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 condemnation proceeds, award, compensation or
insurance proceeds under Sections 14.2(a) or 14.2(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 Default or an Event of Default shall have occurred and be
continuing or if such award, compensation or insurance proceeds shall
exceed $1,000,000, then 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 and under the other Operative Agreements. Upon
Lessee's performance of all its obligations pursuant hereto and
pursuant to the other Operative Agreements (and provided no Lease
Event of Default shall have occurred and be continuing) Lessor shall
return to Lessee any such award, compensation or insurance proceeds.
(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) (intentionally omitted)
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(d) In the event of a Casualty or a Condemnation, this
Lease shall terminate with respect to the applicable Property in
accordance with Section 16.1 if Lessee, within thirty (30) days after
such occurrence, delivers to Lessor 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 Lessor or the
Agent and which should be turned over to Lessee pursuant to the terms
of the Operative Agreements, and if not available or sufficient, using
its own funds), 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, using the
as-built Plans and Specifications or manufacturer's specifications for
the applicable Improvements, Equipment or other components of the
applicable Property (as modified to give effect to any subsequent
Modifications, any Condemnation affecting the applicable Property and
all applicable Legal Requirements), so as to restore the applicable
Property to the same or a greater remaining economic value, useful
life, utility, condition, operation and function as existed
immediately prior to such Casualty or Condemnation (assuming all
maintenance and repair standards have been satisfied). In such event,
title to the applicable Property shall remain with Lessor.
(f) In no event shall a Casualty or Condemnation affect
Lessee's obligations to pay Rent pursuant to Article III.
(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, the applicable Property
cannot reasonably be restored, repaired or replaced on or before the
day one hundred eighty (180) days prior to 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 the same or a greater remaining economic value, useful life,
utility, condition, operation and function as existed immediately
prior to such Casualty or Condemnation (assuming all maintenance and
repair standards have been satisfied) or on or before such day such
Property is not in fact so restored, repaired or replaced, then Lessee
shall be required to exercise its Purchase Option for such Property on
the next Payment Date (notwithstanding the limits on such exercise
contained in Section 20.2) and pay Lessor the Termination Value for
such Property; provided, if any Default or Event of Default has
occurred and is
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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, further, that if no Default or
Event of Default has occurred and is continuing, any Excess Proceeds
shall be paid to Lessee. If a Default or an Event of 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 Lessor, held as security for
the performance of Lessee's obligations hereunder and under the other
Operative Agreements and applied to such obligations upon the exercise
of remedies in connection with the occurrence of an Event of Default,
with the remainder of such Excess Proceeds in excess of such Loans,
Holder Advances and other amounts owing with respect thereto being
distributed to the Lessee.
15.2 Environmental Matters.
Promptly upon Lessee's actual knowledge of the presence of
Hazardous Substances (other than Hazardous Substances, if any, used in the
ordinary course of Lessee's business in accordance with Law) 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 $15,000, Lessee
shall notify Lessor in writing of such condition. Lessor acknowledges that
Lessee has given notice and Lessee hereby gives notice of any conditions
described in the environmental reports previously provided by Lessee to the
Agent; provided notwithstanding such notice, Lessee shall with respect to any
Environmental Violation referenced in such environmental reports take all other
actions required under the Operative Agreements subsequent to notification
thereof (including without limitation the delivery of a Termination Notice with
respect to any affected Property or any necessary removal, cleanup or
remediation of such Environmental Violation as elected by Lessee). 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 undertake and diligently complete any response, clean
up, remedial or other action (including without limitation the pursuit by
Lessee of appropriate action against any off-site or third party source for
contamination) necessary to remove, cleanup or remediate the Environmental
Violation in accordance with all Environmental Laws. Any such undertaking
shall be timely completed in accordance with prudent industry standards. 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 or to remarket any Property pursuant to Section 20.1 hereof or any
other provision of any Operative Agreement, Lessee at its expense shall cause
to be delivered to Lessor a Phase I environmental site assessment respecting
such Property recently prepared (no more than thirty (30) days prior to the
date of delivery) by an independent recognized professional acceptable to
Lessor in its reasonable discretion and in form, scope and content satisfactory
to Lessor in its reasonable discretion. Notwithstanding any
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other provision of any Operative Agreement, if Lessee fails to comply with the
foregoing obligation regarding the Phase I environmental site assessment,
Lessee shall be obligated to purchase such Property for its Termination Value
and shall not be permitted to exercise (and Lessor shall have no obligation to
honor any such exercise) any rights under any Operative Agreement regarding a
sale of such Property to a Person other than Lessee or any Affiliate of Lessee.
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 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, action or proceeding and Lessee's proposed response
thereto. In addition, Lessee shall provide to Lessor, within five (5) 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 Lessee has delivered, or is deemed to have delivered,
written notice of a termination of this Lease with respect to the applicable
Property to Lessor in the form described in Section 16.2(a) (a "Termination
Notice") pursuant to the provisions of this Lease, then following the
applicable Casualty, Condemnation or Environmental Violation, this Lease shall
terminate with respect to the affected Property on the applicable Termination
Date.
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 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, and Lessor shall
convey such Property or the remaining portion thereof, if any, to
Lessee (or Lessee's designee), all in accordance with Section 20.2.
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ARTICLE XVII
17.1 LEASE EVENTS OF DEFAULT.
If any one (1) 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 three (3) consecutive
Business Days after the same has become due and payable or (ii) any
Termination Value, on the date any such payment is due and payable, or
any payment of Basic Rent or Supplemental Rent due on the due date of
any such payment of 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))
which has become due and payable within seven (7) or more consecutive
days after receipt of written notice that such payment is due;
(c) Lessee shall fail to maintain insurance as required
by Article XIV of this Lease or to deliver any requisite annual
certificate with respect thereto within ten (10) Business Days of the
date such certificate is due under the terms hereof;
(d) (i) Lessee shall fail to observe or perform any term,
covenant, obligation or condition of Lessee under this Lease or any
other Operative Agreement (excluding the Agency Agreement) to which
Lessee is a party other than those set forth in Sections 17.1(a), (b)
or (c) hereof, and such failure shall (except for the covenants set
forth in Sections 8.3A(n), 8.3B(f), 8.3B(k) and 8.3B(m) of the
Participation Agreement for which there shall be no grace periods)
continue for fifteen (15) days after notice thereof to the Lessee;
provided, if any such failure is not capable of remedy with such
fifteen (15) day period but may be remedied with further diligence and
if Lessee has and continues to pursue such remedy, then Lessee shall
be granted additional time to pursue such remedy but in no event more
than an additional thirty (30) days, or (ii) 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 when made and shall continue
to be false or inaccurate in such way for fifteen (15) days after
notice thereof to Lessee; provided, if such default is not capable of
remedy within such fifteen (15) day period but may be remedied with
further diligence and if Lessee has and continues to pursue such
remedy, then Lessee shall be granted additional time to pursue such
remedy but in no event more than an additional thirty (30) days;
(e) (intentionally omitted)
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(f) Lessee or any of its Subsidiaries shall default
(beyond applicable periods of grace and/or notice and cure) in the
payment when due of any principal of or interest on any Indebtedness
having an outstanding principal amount of at least $1,000,000; or any
other event or condition shall occur which results in a default of any
such Indebtedness or enables the holder of any such Indebtedness or
any Person acting on such holder's behalf to accelerate the maturity
thereof;
(g) The liquidation or dissolution of Lessee, or the
suspension of the business of Lessee, or the filing by Lessee of a
voluntary petition or an answer seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the United
States Bankruptcy Code, as amended, or under any other insolvency act
or law, state or federal, now or hereafter existing, or any other
action of Lessee indicating its consent to, approval of or
acquiescence in, any such petition or proceeding; the application by
Lessee for, or the appointment by consent or acquiescence of Lessee of
a receiver, a trustee or a custodian of Lessee for all or a
substantial part of its property; the making by Lessee of any
assignment for the benefit of creditors; the admission by Lessee in
writing of its inability to pay its debts as they mature or Lessee is
generally not paying its debts and other financial obligations as they
become due and payable; or Lessee taking any corporate action to
authorize any of the foregoing;
(h) (i) The filing of an involuntary petition against
Lessee in bankruptcy or seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the United
States Bankruptcy Code, as amended, or under any other insolvency act
or law, state or federal, now or hereafter existing; or the
involuntary appointment of a receiver, a trustee or a custodian of
Lessee for all or a substantial part of its property; or the issuance
of a warrant of attachment, execution or similar process against any
substantial part of the property of Lessee; and (ii) the continuance
of any of the events in clause (i) for ninety consecutive (90) days
undismissed or undischarged;
(i) The adjudication of Lessee as bankrupt or insolvent;
(j) The entering of any order in any proceedings against
Lessee or any Subsidiary decreeing the dissolution, divestiture or
split-up of Lessee or any Subsidiary, if such order remains in effect
for more than sixty (60) consecutive days;
(k) Any report, certificate, financial statement or other
instrument delivered to Lessor by or on behalf of Lessee pursuant to
the terms of this Lease or any other Operative Agreement is false or
misleading in any material respect when made or delivered;
(l) Any Lessee Credit Agreement Event of Default
regarding the failure to make a payment shall have occurred and be
continuing and shall not have been waived;
(m) A final judgment or judgments for the payment of
money shall be rendered by a court or courts against Lessee or any of
its Subsidiaries or any of their assets in
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excess of $1,000,000 in the aggregate, and (i) the same shall not be
discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within ninety (90)
days from the date of entry thereof, or (ii) Lessee or such Subsidiary
shall not, within said period of ninety (90) days, or such longer
period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during
such appeal, or (iii) such judgment or judgments shall not be
discharged (or provisions shall not be made for such discharge) within
ninety (90) days after a decision has been reached with respect to
such appeal and the related stay has been lifted;
(n) Lessee or any member of the Controlled Group shall
fail to pay when due an amount or amounts aggregating in excess of
$2,000,000 which it shall have become liable to pay to the PBGC or to
a Pension Plan under Title IV of ERISA; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee
to be appointed to administer any such Pension Plan or Pension Plans;
or a condition shall exist under Sections 4042(a)(1) or 4042(a)(2) of
ERISA by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Pension Plan or Pension Plans must be
terminated;
(o) (intentionally omitted); or
(p) Any Operative Agreement (excluding the Agency
Agreement and also excluding any other Operative Agreement to which
Lessee is not a party) shall cease to be in full force and effect;
then, in any such event, 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) Business Days notice of such termination
(provided, notwithstanding the foregoing, this Lease shall be deemed to be
automatically terminated without the giving of notice upon the occurrence of a
Lease Event of Default under Sections 17.1(g), (h) or (i)), 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 or any other Financing
Party, including without limitation reasonable fees and expenses of counsel, as
a result of any Lease Event of Default hereunder.
A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A POWER OF SALE MAY
ALLOW LESSOR TO TAKE THE PROPERTIES AND SELL THE PROPERTIES WITHOUT GOING TO
COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE OF 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
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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
without limitation 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 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 without
limitation 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. Lessor shall promptly
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remit any net proceeds remaining, if any (after deducting therefrom all such
Basic Rent, Supplemental Rent and expenses payable to any of the Financing
Parties), to Lessee. 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. Lessee specifically acknowledges and agrees that its obligations under
this Section 17.4 shall be absolute and unconditional under any and all
circumstances and shall be paid and/or performed, as the case may be, without
notice or demand and without any abatement, reduction, diminution, setoff,
defense, counterclaim or recoupment whatsoever.
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, then Lessor
and Lessee agree that 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, 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 11 of the Participation Agreement (which, if requested,
shall be paid concurrently), 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 Termination Value. 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, an assignment of
Lessor's entire right, title and interest in and to the Properties,
Improvements, Fixtures, Modifications, Equipment and all components thereof, in
each case in recordable form and otherwise in conformity with local custom and
free and clear of the Lien of this Lease (including without limitation the
release of any memoranda of Lease and/or the Lease Supplement recorded in
connection therewith) and any Lessor Liens. The Properties shall be conveyed
to Lessee "AS-IS, WHERE-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, Equipment or the
components thereof unless Lessee shall have paid in full the Termination Value.
Lessee specifically acknowledges and agrees that its obligations under this
Section 17.6 shall be absolute and unconditional under any and all
circumstances and shall be paid and/or performed, as the
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case may be, without notice or demand and without any abatement, reduction,
diminution, setoff, defense, counterclaim or recoupment whatsoever.
17.7 ENVIRONMENTAL COSTS.
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 pay directly to any third party (or at Lessor's
election, reimburse Lessor) for the cost of any environmental testing and/or
remediation work undertaken respecting any Property, as such testing or work is
deemed necessary in the reasonable judgment of Lessor. Lessee shall pay all
amounts referenced in the immediately preceding sentence within ten (10)
Business Days of any request by Lessor for such payment. The provisions of
this Section 17.7 shall not limit the obligations of Lessee under any Operative
Agreement regarding indemnification obligations, environmental testing,
remediation and/or work.
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 promptly 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 acquisition, installation,
testing, use, development, construction, operation, maintenance, repair,
refurbishment and restoration 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 acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment and restoration of
the Properties or any of them.
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.
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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 without limitation 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, and take all such action thereon as may be necessary therefor;
provided, however, any such entry shall minimize disruption of Lessee's
business and shall follow such reasonable procedures as Lessee prescribes. No
such entry shall be deemed an eviction of any lessee. All out-of-pocket costs
and expenses so incurred (including without limitation 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, upon the date
on which this Lease is to terminate with respect to any Property, and upon
tender by Lessee of the amounts set forth in Sections 16.2(b) 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 (by deed or other
appropriate instrument) of Lessor's entire interest in such Property, in each
case in recordable form and otherwise in conformity with local custom and free
and clear of any Lessor Liens attributable to Lessor but without any other
warranties (of title or otherwise) from Lessor. Such Property shall be
conveyed to Lessee "AS-IS, "WHERE-IS" and in then present physical condition.
19.2 NO PURCHASE OR TERMINATION WITH RESPECT TO LESS THAN ALL OF A
PROPERTY.
Lessee shall not be entitled to exercise its Purchase Option or the
Sale Option separately with respect to a portion of any Property consisting of
Land, Equipment, Improvements and/or any interest pursuant to a Ground Lease
but shall be required to exercise its Purchase Option or the Sale Option with
respect to an entire Property.
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ARTICLE XX
20.1 PURCHASE OPTION OR SALE OPTION-GENERAL PROVISIONS.
Not less than one hundred twenty (120) days and no more than
one hundred eighty (180) days prior to either the third, fourth, fifth or sixth
annual anniversary of the date of this Lease, the Expiration Date or,
respecting the Purchase Option only, any Payment Date (such third, fourth,
fifth or sixth annual anniversary date, such Expiration Date or, respecting the
Purchase Option only, any such Payment Date being hereinafter referred to as
the "Election Date"), Lessee may give Lessor irrevocable written notice (the
"Election Notice") that Lessee is electing to exercise either (a) the option to
purchase all, but not less than all, the Properties on the applicable Election
Date (the "Purchase Option") or (b) with respect to an Election Notice given in
connection with the third or fourth annual anniversary of the date of this
Lease or the Expiration Date only, the option to remarket all, but not less
than all, the Properties to a Person other than Lessee or any Affiliate of
Lessee and cause a sale of such Properties to occur on the applicable Election
Date pursuant to the terms of Section 22.1 (the "Sale Option"). If Lessee does
not give an Election Notice indicating the Purchase Option or the Sale Option
at least one hundred twenty (120) days and not more than one hundred eighty
(180) days prior to the Expiration Date, then Lessee shall be deemed to have
elected for the Purchase Option to apply on the Expiration Date. If Lessee
shall either (i) elect (or be deemed to have elected) to exercise the Purchase
Option or (ii) elect the Sale Option and fail to cause all, but not less than
all, the Properties to be sold in accordance with the terms of Section 22.1 on
the applicable Election Date, then in either case Lessee shall pay to Lessor on
the date on which such purchase or sale is scheduled to occur an amount equal
to the Termination Value for all, but not less than all, the Properties (which
the parties do not intend to be a "bargain" purchase), and in connection
therewith, Lessee shall comply with the terms and provisions of Section 22.1(c)
to the same extent as if Lessor had exercised its option to retain one (1) or
more Properties pursuant to Section 22.1(a) and, upon receipt of such amounts
and satisfaction of such obligations, Lessor shall transfer to Lessee all of
Lessor's right, title and interest in and to all, but not less than all, the
Properties in accordance with Section 20.2.
20.2 LESSEE PURCHASE OPTION.
Provided, no Default or Event of Default shall have occurred
and be continuing (other than those that will be cured by the payment of the
Termination Value for all the Properties) and provided, that the Election
Notice has been appropriately given specifying the Purchase Option, Lessee
shall purchase all the Properties on the applicable Election Date at a price
equal to the Termination Value for such Properties (which the parties do not
intend to be a "bargain" purchase price).
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, upon the date
on which this Lease is to terminate with respect to a Property or all of the
Properties, and upon tender by Lessee of the amounts set forth in Section
16.2(b) or this Section 20.2, as applicable, Lessor shall execute, acknowledge
(where
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required) and deliver to Lessee, at Lessee's cost and expense, each of the
following: (a) a termination or assignment (as requested by the Lessee) of
each applicable Ground Lease and special warranty Deeds conveying each Property
(to the extent it is real property not subject to a Ground Lease) to Lessee
free and clear of the Lien of this Lease, the Lien of the Credit Documents and
any Lessor Liens; (b) a ▇▇▇▇ of Sale conveying each 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; (c) any real estate tax
affidavit or other document required by law to be executed and filed in order
to record the applicable Deed and/or the applicable Ground Lease termination;
(d) FIRPTA affidavits and (e) such other documents as are customarily provided
in similar transactions. All of the foregoing documentation must be in form
and substance reasonably satisfactory to Lessor and Lessee. The applicable
Property shall be conveyed to Lessee "AS-IS, WHERE-IS" and in then present
physical condition.
If any Property is the subject of remediation efforts
respecting Hazardous Substances at the applicable Election Date which could
materially and adversely impact the Fair Market Sales Value of such Property
(with materiality determined in Lessor's reasonable discretion), then Lessee
shall be obligated to repurchase each such Property pursuant to Section 20.2.
On the applicable Election Date on which Lessee has elected to
exercise its Purchase Option, Lessee shall pay (or cause to be paid) to Lessor,
the Agent and all other parties, as appropriate, the sum of all reasonable
costs and expenses incurred by any such party (unless such are expressly
prohibited by the Operative Agreements) in connection with the election by
Lessee to exercise its Purchase Option and all Rent and all other amounts then
due and payable or accrued under this Lease and/or any other Operative
Agreement.
20.3 THIRD PARTY SALE OPTION.
(a) Provided, that (i) no Default or Event of Default
shall have occurred and be continuing and (ii) the Election Notice has
been appropriately given specifying the Sale Option, Lessee shall
undertake to cause a sale of the Properties on the applicable Election
Date (all as specified in the Election Notice), in accordance with the
provisions of Section 22.1 hereof. Such Election Date on which a sale
is required may be hereafter referred to as the "Sale Date".
(b) In the event Lessee exercises the Sale Option then,
as soon as practicable and in all events not less than sixty (60) days
prior to the Sale Date, Lessee at its expense shall cause to be
delivered to Lessor a Phase I environmental site assessment for each
of the Properties recently prepared (no more than ninety (90) days old
prior to the Sale Date) by an independent recognized professional
reasonably acceptable to Lessor and in form, scope and content
reasonably satisfactory to Lessor. In the event that Lessor shall not
have received such environmental site assessment by the date sixty
(60) days prior to the Sale Date or in the event that such
environmental assessment shall reveal the existence of any material
violation of Environmental Laws, other material Environmental
Violation or potential material Environmental Violation (with
materiality determined in each case by
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Lessor in its reasonable discretion), then Lessee on the Sale Date
shall pay to Lessor an amount equal to the Termination Value for all
the Properties and any and all other amounts due and owing hereunder.
Upon receipt of such payment and all other amounts due under the
Operative Agreements, Lessor shall transfer to Lessee all of Lessor's
right, title and interest in and to all the Properties in accordance
with Section 19.1.
ARTICLE XXI
21.1 [INTENTIONALLY OMITTED].
ARTICLE XXII
22.1 SALE PROCEDURE.
(a) During the Marketing Period, Lessee, on behalf of
Lessor, shall obtain bids for the cash purchase of all the Properties
in connection with a sale to one (1) or more third party purchasers to
be consummated on the Sale Date for the highest price reasonably
available, 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 each such 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. All such prospective purchasers must be Persons other than
Lessee or any Affiliate of Lessee. On the Sale Date, Lessee shall pay
(or cause to be paid) to Lessor and all other parties, as appropriate,
the sum of all reasonable costs and expenses (unless such are
expressly prohibited by the Operative Agreements) incurred by Lessor
and/or the Agent (as the case may be) in connection with such sale of
one or more Properties, all Rent and all other amounts then due and
payable or accrued under this Lease and/or any other Operative
Agreement.
Lessor may reject any and all bids and may solicit and obtain
bids by giving Lessee written notice to that effect; provided,
however, that notwithstanding the foregoing, Lessor may not reject the
bids submitted by Lessee if such bids, in the aggregate, are greater
than or equal to the sum of the Limited Recourse Amount for all the
Properties, and represent bona fide offers from one (1) or more third
party purchasers. If the highest price which a prospective purchaser
or the prospective purchasers shall have offered to pay for all the
Properties on the Sale Date is less than the sum of the Limited
Recourse Amount for all the Properties or if such bids do not
represent bona fide offers from one (1) or more third parties or if
there are no bids, Lessor may elect to retain one or more of the
Properties by giving Lessee prior written notice of Lessor's election
to retain the same, and promptly upon receipt of such notice, Lessee
shall surrender, or cause to be surrendered, each of the Properties
specified in such notice in accordance with the terms and conditions
of Section 10.1. Upon acceptance of any bid, Lessor agrees, at
Lessee's request and expense, to execute a contract of sale with
respect to such sale, so long as the
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same is consistent with the terms of this Article 22 and provides by
its terms that it is nonrecourse to Lessor.
Unless Lessor shall have elected to retain one or more of the
Properties pursuant to the provisions of the preceding paragraph,
Lessee shall arrange for Lessor to sell all the Properties free and
clear of the Lien of this Lease and any Lessor Liens (all of which
Lessor shall release), without recourse or warranty (of title or
otherwise), for cash on the Sale Date to the purchaser or purchasers
offering the highest cash sales price, as 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 the
appropriate purchaser each of the following: (a) special warranty
Deeds conveying each such Property (to the extent it is real property
titled to Lessor) and an assignment of the Ground Lease conveying the
leasehold interest of Lessor in each such Property (to the extent it
is real property and subject to a Ground Lease) to the appropriate
purchaser free and clear of the Lien of this Lease, the Lien of the
Credit Documents and any Lessor Liens; (b) a ▇▇▇▇ of Sale conveying
each such Property (to the extent it is personal property) titled to
Lessor to the appropriate purchaser free and clear of the Lien of this
Lease, the Lien of the Credit Documents and any Lessor Liens; (c) any
real estate tax affidavit or other document required by law to be
executed and filed in order to record each Deed and/or each Ground
Lease assignment; (d) FIRPTA affidavits, as appropriate and (e) such
other documents as are customarily provided in similar transactions.
All of the foregoing documentation must be in form and substance
reasonably satisfactory to Lessor and Lessee. Lessee shall surrender
the Properties so sold or subject to such documents to each purchaser
in the condition specified in Section 10.1, or in such other condition
as may be agreed between Lessee and such purchaser. Lessee shall not
take or fail to take any action which would have the effect of
unreasonably discouraging bona fide third party bids for any Property.
If each of the Properties is not either (i) sold on the Sale Date in
accordance with the terms of this Section 22.1, or (ii) retained by
Lessor pursuant to an affirmative election made by Lessor pursuant to
the second sentence of the second paragraph of this Section 22.1(a),
then (x) Lessee shall be obligated to pay Lessor on the Sale Date an
amount equal to the Maximum Residual Guarantee Amount for all the
Properties and (y) if a sale of the Properties is consummated after
the Sale Date by Lessor, Lessor shall remit to Lessee, promptly after
consummation of such sale, an amount equal to the excess of (A) the
aggregate purchase price paid for the Properties in such sale over (B)
the excess of (I) the aggregate Property Cost for the Properties, plus
an amount equal to the sum of any and all reasonable out-of-pocket
fees, expenses and other amounts incurred by Lessee in connection with
any of the Properties or the sale thereof, plus any and all Basic Rent
and Supplemental Rent then due and owing or accrued over (II) any
amount paid by Lessee to Lessor pursuant to clause (x) above.
(b) If the Properties are sold on a Sale Date to one (1)
or more third party purchasers in accordance with the terms of Section
22.1(a) and the aggregate purchase price paid for all the Properties
is less than the sum of the aggregate Property Cost for all the
Properties (hereinafter such difference shall be referred to as the
"Deficiency Balance"), then Lessee hereby unconditionally promises to
pay to Lessor on the Sale Date
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the lesser of (i) the Deficiency Balance, or (ii) the Maximum Residual
Guarantee Amount for all the Properties. On a Sale Date if (x) Lessor
receives the aggregate Termination Value for all the Properties from
one (1) or more third party purchasers, (y) Lessor and such other
parties receive all other amounts specified in the last sentence of
the first paragraph of Section 22.1(a) and (z) the aggregate purchase
price paid for all the Properties on such date exceeds the sum of the
aggregate Property Cost for all the Properties, then Lessee may retain
such excess. If one or more of the Properties are retained by Lessor
pursuant to an affirmative election made by Lessor pursuant to the
provisions of Section 22.1(a), then Lessee hereby unconditionally
promises to pay to Lessor on the Sale Date an amount equal to the
Maximum Residual Guarantee Amount for the Properties so retained. Any
payment of the foregoing amounts described in this Section 22.1(b)
shall be made together with a payment of all other amounts referenced
in the last sentence of the first paragraph of Section 22.1(a).
(c) In the event that all the Properties are either sold
to one (1) or more third party purchasers on the Sale Date or retained
by Lessor in connection with an affirmative election made by Lessor
pursuant to the provisions of Section 22.1(a), then in either case on
the applicable Sale Date; Lessee shall provide Lessor or such third
party purchaser (unless otherwise agreed by such third party
purchaser) with the following (except to the extent such constitutes
intellectual property of Lessee or licensing or other such rights of
Lessee to manufacture its products, engage in research, development
and commercialization activities and otherwise conduct its business
(but excluding the general operation of the Property)) (i) all
permits, certificates of occupancy, governmental licenses and
authorizations necessary to use, operate, repair, access and maintain
each such Property, and (ii) such manuals, permits, 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, operation, repair, access to or maintenance of each such
Property for its intended purpose or otherwise as Lessor or such third
party purchaser(s) shall reasonably request (and a royalty-free
license or similar agreement to effectuate the foregoing on terms
reasonably agreeable to Lessor or such third party purchaser(s), as
applicable). All assignments, licenses, easements, agreements and
other deliveries required by clauses (i) and (ii) of this paragraph
(c) shall be in form reasonably satisfactory to Lessor or such third
party purchaser(s), as applicable, and shall be fully assignable
(including without limitation both primary assignments and assignments
given in the nature of security) without payment of any fee, cost or
other charge. Notwithstanding the foregoing, to the extent any item
listed in clauses (i) or (ii) of this paragraph (c) is not assignable
under its terms or under applicable law, Lessee shall not have any
obligations under this paragraph (c) with respect to the assignment of
such item. Lessee shall also execute any documentation reasonably
requested by Lessor or such third party purchaser(s), as applicable,
evidencing the continuation or assignment of each Ground Lease.
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22.2 APPLICATION OF PROCEEDS OF SALE.
Lessor shall apply the proceeds of sale of any Property in the
following order of priority:
(a) FIRST, to pay or to reimburse Lessor (and/or the
Agent, as the case may be) for the payment of all reasonable costs and
expenses incurred by Lessor (and/or the Agent, as the case may be) in
connection with the sale (to the extent Lessee has not satisfied its
obligation to pay such costs and expenses);
(b) SECOND, so long as the Credit Agreement is in effect
and any Loans or Holder Advances or any amount is owing to the
Financing Parties under any Operative Agreement, to the Agent to be
applied pursuant to intercreditor provisions among Lessor, the Lenders
and the Holders contained in the Operative Agreements; and
(c) THIRD, to Lessee.
22.3 INDEMNITY FOR EXCESSIVE WEAR.
If the proceeds of the sale described in Section 22.1 with
respect to the Properties shall be less than the Limited Recourse Amount with
respect to the Properties, and at the time of such sale it shall have been
reasonably determined (pursuant to the Appraisal Procedure) that the Fair
Market Sales Value of the Properties shall have been impaired by greater than
expected ordinary wear and tear during the term of the Lease, Lessee shall pay
to Lessor within ten (10) Business Days after receipt of Lessor's written
statement (i) the amount of such excess wear and tear determined by the
Appraisal Procedure or (ii) the amount of the Sale Proceeds Shortfall,
whichever amount is less.
22.4 APPRAISAL PROCEDURE.
For determining the Fair Market Sales Value of the Properties
or any other amount which may, pursuant to any provision of any Operative
Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use
the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall
endeavor to reach a mutual agreement as to such amount for a period of ten (10)
Business Days from commencement of the Appraisal Procedure under the applicable
section of the Lease, and if they cannot agree within ten (10) Business Days,
then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen
by Lessor, shall mutually agree thereupon, but if either party shall fail to
choose an appraiser within twenty (20) days after notice from the other party
of the selection of its appraiser, then the appraisal by such appointed
appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers
cannot agree within twenty (20) days after both shall have been appointed, then
a third appraiser shall be selected by the two (2) appraisers or, failing
agreement as to such third appraiser within thirty (30) days after both shall
have been appointed, by the American Arbitration Association. The decisions of
the three (3) appraisers shall be given within twenty (20) days of the
appointment of the third appraiser and the decision of the appraiser most
different from the average of the other two (2)
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shall be discarded and such average shall be binding on Lessor and Lessee;
provided, that if the highest appraisal and the lowest appraisal are
equidistant from the third appraisal, the third appraisal shall be binding on
Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee
shall be paid by Lessee; the fees and expenses of the appraiser appointed by
Lessor shall be paid by Lessor (such fees and expenses not being indemnified
pursuant to Section 13 of the Participation Agreement); and the fees and
expenses of the third appraiser shall be divided equally between Lessee and
Lessor.
22.5 CERTAIN OBLIGATIONS CONTINUE.
During the Marketing Period, the obligation of Lessee to pay
Rent with respect to the Properties (including without limitation the
installment of Basic Rent due on the Sale Date) shall continue undiminished
until payment in full to Lessor of all amounts due to Lessor or any other
Person with respect to all Properties or any Operative Agreement. 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.
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 such Property and Lessee shall
continue to pay Basic Rent at the lesser of the highest lawful rate and one
hundred ten percent (110%) of the last payment of Basic Rent due with respect
to such Property prior to such expiration or earlier termination of this Lease.
Such Basic Rent shall be payable from time to time upon demand by Lessor and
such additional amount of Basic Rent shall be applied by Lessor ratably to the
Lenders and the Holders based on their relative amounts of the then outstanding
aggregate Property Cost for all Properties. During any period of tenancy at
sufferance, Lessee shall, subject to the second preceding sentence, be
obligated to perform and observe all of the terms, covenants and conditions of
this Lease, but shall have no rights hereunder other than the right, to the
extent given by law to tenants at sufferance, to continue 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.
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ARTICLE XXIV
24.1 RISK OF LOSS.
During the Term, unless Lessee shall not be in actual
possession of any 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) Lessee may not assign this Lease or any of its rights
or obligations hereunder or with respect to any Property in whole or
in part to any Person without the prior written consent of the Agent,
the Lenders, the Holders and Lessor (which consent shall not be
unreasonably withheld, conditioned or delayed).
(b) No assignment by Lessee (referenced in this Section
25.1 or otherwise) 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 the Operative Agreements as to any rights or
obligations assigned by Lessee or regarding any Property in which
rights or obligations have been assigned or otherwise transferred.
25.2 SUBLEASES.
(a) Promptly, but in any event within five (5) Business
Days, following the execution and delivery of any sublease permitted
by this Article XXV, Lessee shall notify Lessor 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.
(b) Without the prior written consent of the Agent, any
Lender, any Holder or Lessor and subject to the other provisions of
this Section 25.2, Lessee may sublet any Property or portion thereof
to any wholly-owned Subsidiary of Lessee. Except as referenced in the
immediately preceding sentence, no other subleases shall be permitted
unless consented to in writing by Lessor (such consent not to be
unreasonably withheld, conditioned or delayed). All subleasing shall
be done on market terms and shall in no way diminish the fair market
value or useful life of any applicable Property.
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(c) No sublease (referenced in this Section 25.2 or
otherwise) 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 such Property, or portion thereof, so sublet. The
term of any such sublease shall not extend beyond the Term. Each
sublease shall be expressly subject and subordinate to this Lease.
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 no
act by Lessor or the Agent or any representative or agent of Lessor or the
Agent, other than a 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 (INTENTIONALLY OMITTED)
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ARTICLE XXIX
29.1 NOTICES.
All notices required or permitted to be given under this Lease
shall be in writing and delivered as provided in the Participation Agreement.
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 in such jurisdiction or of such provision or of any other provision
hereof in any other jurisdiction.
30.2 AMENDMENTS AND MODIFICATIONS.
Neither this Lease nor any Lease Supplement may be amended,
waived, discharged or terminated except in accordance with the provisions of
Section 12.4 of the Participation Agreement.
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
(1) and the same instrument.
30.6 GOVERNING LAW.
THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND.
37
42
30.7 CALCULATION OF RENT.
All calculation of Rent payable hereunder shall be computed
based on the actual number of days elapsed over a year of three hundred sixty
(360) days or, to the extent such Rent is based on the Prime Lending Rate,
three hundred sixty-five (365) (or three hundred sixty-six (366), as
applicable) 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 attached hereto) or a short
form lease (in form and substance reasonably satisfactory to Lessor) regarding
each 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 and any such
Lease Supplement in the applicable real estate filing records.
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 Agreements (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 or
the provisions of Section 12.9 of the Participation Agreement.
30.11 WAIVERS OF JURY TRIAL.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY, TO
THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW,
38
43
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE
AND FOR ANY COUNTERCLAIM THEREIN.
30.12 EXERCISE OF LESSOR RIGHTS.
Lessee hereby acknowledges and agrees that the rights and
powers of Lessor under this Lease have been assigned to the Agent pursuant to
the terms of the Security Agreement and the other Operative Agreements. Lessor
and Lessee hereby acknowledge and agree that (a) the Agent shall, in its
discretion, direct and/or act on behalf of Lessor pursuant to the provisions of
Sections 8.2(h) and 8.6 of the Participation Agreement, (b) all notices to be
given to Lessor shall be given to the Agent and (c) all notices to be given by
Lessor may be given by the Agent, at its election.
30.13 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO
SUBMISSION TO JURISDICTION, VENUE AND ARBITRATION ARE HEREBY INCORPORATED BY
REFERENCE HEREIN, MUTATIS MUTANDIS.
30.14 USURY SAVINGS PROVISION.
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND
CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN
EFFECT. TO THE EXTENT ANY RENT OR PAYMENTS HEREUNDER ARE HEREINAFTER
CHARACTERIZED BY ANY COURT OF COMPETENT JURISDICTION AS THE REPAYMENT OF
PRINCIPAL AND INTEREST THEREON, THIS SECTION 30.14 SHALL APPLY. ANY SUCH RENT
OR PAYMENTS SO CHARACTERIZED AS INTEREST MAY BE REFERRED TO HEREIN AS
"INTEREST." ALL AGREEMENTS AMONG THE PARTIES HERETO ARE HEREBY LIMITED BY THE
PROVISIONS OF THIS PARAGRAPH WHICH SHALL OVERRIDE AND CONTROL ALL SUCH
AGREEMENTS, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER WRITTEN OR
ORAL. IN NO WAY, NOR IN ANY EVENT OR CONTINGENCY (INCLUDING WITHOUT LIMITATION
PREPAYMENT OR ACCELERATION OF THE MATURITY OF ANY OBLIGATION), SHALL ANY
INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR RECEIVED UNDER THIS LEASE
OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER
APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF ANY OF THE OPERATIVE
AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST WOULD OTHERWISE BE
PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY SUCH CONSTRUCTION
SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH AMOUNTS UNDER
SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED TO THE MAXIMUM
NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW,
39
44
WITHOUT THE NECESSITY OF EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR
AGREEMENT. IF LESSOR SHALL EVER RECEIVE ANYTHING OF VALUE WHICH IS
CHARACTERIZED AS INTEREST WITH RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR
UNDER APPLICABLE LAW AND WHICH WOULD, APART FROM THIS PROVISION, BE IN EXCESS
OF THE MAXIMUM LAWFUL AMOUNT, AN AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE
BEEN EXCESSIVE INTEREST SHALL, WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF
THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL AND NOT TO THE PAYMENT OF
INTEREST, OR REFUNDED TO LESSEE OR ANY OTHER PAYOR THEREOF, IF AND TO THE
EXTENT SUCH AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE EXCEEDS THE COMPONENT OF
PAYMENTS DEEMED TO BE PRINCIPAL. THE RIGHT TO DEMAND PAYMENT OF ANY AMOUNTS
EVIDENCED BY ANY OF THE OPERATIVE AGREEMENTS DOES NOT INCLUDE THE RIGHT TO
RECEIVE ANY INTEREST WHICH HAS NOT OTHERWISE ACCRUED ON THE DATE OF SUCH
DEMAND, AND LESSOR DOES NOT INTEND TO CHARGE OR RECEIVE ANY UNEARNED INTEREST
IN THE EVENT OF SUCH DEMAND. ALL INTEREST PAID OR AGREED TO BE PAID TO LESSOR
SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE AMORTIZED, PRORATED,
ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED TERM (INCLUDING WITHOUT
LIMITATION ANY RENEWAL OR EXTENSION) OF THIS LEASE SO THAT THE AMOUNT OF
INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE MAXIMUM NONUSURIOUS
AMOUNT PERMITTED BY APPLICABLE LAW.
[Signature pages follow]
40
45
IN WITNESS WHEREOF, the parties have caused this Lease to be duly
executed and delivered as of the date first above written.
GUILFORD PHARMACEUTICALS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Senior Vice President &
--------------------------------------
Chief Financial Officer
--------------------------------------
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the Owner
Trustee under the Guilford Real Estate Trust
1998-1, as Lessor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Title: Assistant Vice President
--------------------------------------
Receipt of this original
counterpart of the foregoing
Lease is hereby acknowledged
as the date hereof
FIRST UNION NATIONAL BANK,
as the Agent
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
46
EXHIBIT A TO THE LEASE
LEASE SUPPLEMENT NO. ___
THIS LEASE SUPPLEMENT NO. ___ (this "Lease Supplement") dated as of
[________________] between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, not individually, but solely as the Owner Trustee
under the Guilford Real Estate Trust 1998-1, as lessor (the "Lessor"), and
GUILFORD PHARMACEUTICALS INC., a Delaware corporation, as lessee (the
"Lessee").
WHEREAS, Lessor is the owner or will be the owner of the Property
described on Schedule 1 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 February 5, 1998, among Lessee, Lessor, not
individually, except as expressly stated therein, but solely as the Owner
Trustee under the Guilford Real Estate Trust 1998-1, the various banks and
other lending institutions which are parties thereto from time to time, as the
Holders, the various banks and other lending institutions which are parties
thereto from time to time, as the Lenders, and First Union National Bank, as
the Agent for the Lenders and respecting the Security Documents, as the Agent
for the Lenders and Holders, to the extent of their interests, as such may be
amended, modified, extended, supplemented, restated and/or replaced from time
to time.
SECTION 2. THE PROPERTIES. Attached hereto as Schedule 1 is the
description of the Leased Property, with an Equipment Schedule attached hereto
as Schedule 1-A, an Improvement Schedule attached hereto as Schedule 1-B and [A
LEGAL DESCRIPTION OF THE LAND / A COPY OF THE GROUND LEASE] attached hereto as
Schedule 1-C. Effective upon the execution and delivery of this Lease
Supplement by Lessor and Lessee, the Leased Property shall be subject to the
terms and provisions of the Lease. Without further action, any and all
additional Equipment funded under the Operative Agreements and any and all
additional Improvements made to the Land shall be deemed to be titled to the
Lessor and subject to the terms and conditions of the Lease and this Lease
Supplement.
SECTION 3. USE OF PROPERTY. At all times during the Term with
respect to each Property, Lessee will comply with all obligations under and (to
the extent no Event of Default exists and provided, that such exercise will
not result in a Material Adverse Effect) shall be permitted to exercise all
rights and remedies under, all operation and easement agreements and related or
similar agreements applicable to such Property.
A-1
47
SECTION 4. 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 5. 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 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY
AND CONSTRUED, INTERPRETED TO AND ENFORCED IN ACCORDANCE WITH THE LAW OF THE
STATE OF MARYLAND.
SECTION 7. 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, then Lessor and Lessee agree that Lessee hereby grants
a Lien against the Leased Property WITH POWER OF SALE, and that, upon the
occurrence of any Lease Event of Default, Lessor shall have the power and
authority, to the extent provided by 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 8. 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 (1)
and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
A-2
48
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of
the date and year first above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as the Owner Trustee under the
Guilford Real Estate Trust 1998-1, as Lessor
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
GUILFORD PHARMACEUTICALS INC.,
as Lessee
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Receipt of this original counterpart of the foregoing Lease Supplement is
hereby acknowledged as the date hereof.
FIRST UNION NATIONAL BANK, as
the Agent
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
A-3
49
[CONFORM TO STATE LAW REQUIREMENTS]
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of FIRST SECURITY
BANK, NATIONAL ASSOCIATION, a national banking association, not individually,
but solely as the Owner Trustee under the Guilford Real Estate Trust 1998-1, on
behalf of the Owner Trustee.
[Notarial Seal]
-----------------------------
Notary Public
My commission expires:____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of GUILFORD
PHARMACEUTICALS INC., a Delaware corporation, on behalf of the corporation.
[Notarial Seal]
-----------------------------
Notary Public
My commission expires:____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of ________________ this ____ day of
___________, by _____________, as __________________ of FIRST UNION NATIONAL
BANK, a national banking association, as the Agent.
[Notarial Seal]
-----------------------------
Notary Public
My commission expires:____________
A-4
50
SCHEDULE 1
TO LEASE SUPPLEMENT NO. ____
(Description of the Leased Property)
A-5
51
SCHEDULE 1-A
TO LEASE SUPPLEMENT NO. ____
(Equipment)
A-6
52
SCHEDULE 1-B
TO LEASE SUPPLEMENT NO. ____
(Improvements)
A-7
53
SCHEDULE 1-C
TO LEASE SUPPLEMENT NO. ____
[(LAND)/
(GROUND LEASE)]
A-8
54
EXHIBIT B TO THE LEASE
[MODIFY OR SUBSTITUTE SHORT FORM LEASE AS
NECESSARY FOR LOCAL LAW REQUIREMENTS]
Recordation requested by:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC
After recordation return to:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC (WMA)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Space above this line
for Recorder's use
------------------------------------------------------------------------------
MEMORANDUM OF LEASE AGREEMENT
AND
LEASE SUPPLEMENT NO. _____________
THIS MEMORANDUM OF LEASE AGREEMENT AND LEASE SUPPLEMENT NO.
____________ ("Memorandum"), dated as of _____________, 199___, is by and
between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not individually, but solely as the Owner Trustee under the
Guilford Real Estate Trust 1998-1, with an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Lessor") and GUILFORD
PHARMACEUTICALS INC., a Delaware corporation, with an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Lessee").
WITNESSETH:
That for value received, Lessor and Lessee do hereby covenant, promise
and agree as follows:
1. DEMISED PREMISES AND DATE OF LEASE. Lessor has leased to
Lessee, and Lessee has leased from Lessor, for the Term (as hereinafter
defined), certain real property and other property located in ________________,
which is described in the attached Schedule 1 (the "Property"), pursuant to the
terms of a Lease Agreement between Lessor and Lessee dated as of February 5,
1998__ (as such may be amended, modified, extended, supplemented, restated
and/or replaced from time to time, "Lease") and a Lease Supplement No. _____
between Lessor and Lessee dated as of ______________ (the "Lease Supplement").
▇-▇
▇▇
▇. ▇▇▇▇, ▇▇▇▇▇▇▇, EXTENSION AND PURCHASE OPTION. The term of the
Lease for the Property ("Term") commenced as of __________, 19__ and shall end
as of _________, __, unless the Term is extended or earlier terminated in
accordance with the provisions of the Lease. The tenant has a purchase option
under the Lease.
3. TAX PAYER NUMBERS.
Lessor's tax payer number: __________________.
Lessee's tax payer number: ____________________.
4. 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, then Lessor and Lessee agree that 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, 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.
5. 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.]
B-2
56
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LESSOR:
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not individually,
but solely as the Owner Trustee under the Guilford Real
Estate Trust 1998-1
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
LESSEE:
GUILFORD PHARMACEUTICALS INC.,
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
B-3
57
SCHEDULE 1
(Description of Property)
B-4
58
[CONFORM TO STATE LAW REQUIREMENTS]
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Memorandum of Lease Agreement and Lease Supplement No.
_____ was acknowledged before me, the undersigned Notary Public, in the County
of _________________ this _____ day of ______________, by ________________, as
__________________ of FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, not individually, but solely as the Owner Trustee under
the Guilford Real Estate Trust 1998-1, on behalf of the Owner Trustee.
[Notarial Seal]
----------------------------
Notary Public
My commission expires:____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Memorandum of Lease Agreement and Lease Supplement No.
_____ was acknowledged before me, the undersigned Notary Public, in the County
of _________________ this _____ day of ______________, by ________________, as
__________________ of GUILFORD PHARMACEUTICALS INC., a Delaware corporation, on
behalf of the corporation.
[Notarial Seal]
----------------------------
Notary Public
My commission expires:____________
B-5