Exhibit 10(s)
AMENDED AND RESTATED MASTER AGREEMENT
Dated as of October 31, 2001
among
▇▇▇▇▇ RENTS, INC.,
as Lessee and Guarantor,
SUNTRUST BANKS, INC., as Lessor,
SOUTHTRUST BANK, N.A., as Lender,
and
SUNTRUST BANK, as Agent
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS; INTERPRETATION..................................... 2
SECTION 2 ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION........................................... 2
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease......... 2
SECTION 2.2 Fundings of Purchase Price, Development Costs
and Construction Costs.................................. 3
SECTION 2.3 Funded Amounts and Interest and Yield Thereon........... 5
SECTION 2.4 Lessee Owner for Tax Purposes........................... 7
SECTION 2.5 Amounts Due Under Lease................................. 8
SECTION 3 CONDITIONS PRECEDENT; DOCUMENTS................................. 8
SECTION 3.1 Conditions to the Obligations of the Funding
Parties on each Closing Date............................ 8
SECTION 3.2 Additional Conditions for the Initial Closing
Date.................................................... 14
SECTION 3.3 Conditions to the Obligations of Lessee................. 15
SECTION 3.4 Conditions to the Obligations of the Funding
Parties on each Funding Date............................ 16
SECTION 3.5 Completion Date Conditions.............................. 17
SECTION 4 REPRESENTATIONS................................................. 19
SECTION 4.1 Representations of Lessee............................... 19
SECTION 4.2 Survival of Representations and Effect of
Fundings................................................ 26
SECTION 4.3 Representations of the Lessor........................... 26
SECTION 4.4 Representations of each Lender.......................... ▇▇
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▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ OF THE LESSEE......................................... 27
SECTION 5.1 Financial Statements and Other Information.............. 27
SECTION 5.2 Notices of Material Events.............................. 30
SECTION 5.3 Existence; Conduct of Business.......................... 30
SECTION 5.4 Compliance with Laws, Etc............................... 31
SECTION 5.6 Books and Records....................................... 31
SECTION 5.7 Visitation, Inspection, Etc............................. 31
SECTION 5.8 Maintenance of Properties; Insurance.................... 32
SECTION 5.9 Use of Proceeds and Letters of Credit................... 32
SECTION 5.10 Total Debt to EBITDA Ratio.............................. 32
SECTION 5.11 Total Adjusted Debt to Total Adjusted Capital
Ratio................................................... 32
SECTION 5.12 Fixed Charge Coverage Ratio............................. 33
SECTION 5.13 Minimum Consolidated Net Worth.......................... 33
SECTION 5.14 Indebtedness............................................ 33
SECTION 5.15 Negative Pledge......................................... 35
SECTION 5.16 Fundamental Changes..................................... 36
SECTION 5.17 Investments, Loans, Etc................................. 37
SECTION 5.18 Restricted Payments..................................... 38
SECTION 5.19 Sale of Assets.......................................... 39
SECTION 5.20 Transactions with Affiliates............................ 39
SECTION 5.21 Restrictive Agreements.................................. 39
SECTION 5.22 Sale and Leaseback Transactions......................... 40
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SECTION 5.23 Amendment to Material Documents......................... 40
SECTION 5.24 Accounting Changes...................................... 40
SECTION 5.25 Further Assurances...................................... 40
SECTION 5.26 Additional Required Appraisals.......................... 41
SECTION 6 TRANSFERS BY LESSOR AND LENDER.................................. 41
SECTION 6.1 Lessor Transfers........................................ 41
SECTION 6.2 Lender Transfers........................................ 41
SECTION 6.3 Distribution and Application of Rent Payments........... 42
SECTION 6.4 Distribution and Application of Purchase
Payment................................................. 42
SECTION 6.5 Distribution and Application to Funding Party
Balances of Lessee Payment of Recourse
Deficiency Amount Upon Exercise of Remarketing
Option.................................................. 42
SECTION 6.6 Distribution and Application to Funding Party
Balances of Remarketing Proceeds of Leased
Property................................................ 43
SECTION 6.7 Distribution and Application of Payments
Received When an Event of Default Exists or Has
Ceased to Exist Following Rejection of the
Lease................................................... 45
SECTION 6.8 Distribution of Other Payments.......................... 46
SECTION 6.9 Timing of Agent Distributions........................... 46
SECTION 6.10 Release of Leased Properties............................ 46
SECTION 7 INDEMNIFICATION................................................. 47
SECTION 7.1 General Indemnification................................. 47
SECTION 7.2 Environmental Indemnity................................. 49
SECTION 7.3 Proceedings in Respect of Claims........................ 51
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SECTION 7.4 General Tax Indemnity................................... 54
SECTION 7.5 Increased Costs, etc.................................... 61
SECTION 7.6 End of Term Indemnity................................... 67
SECTION 8 MISCELLANEOUS................................................... 68
SECTION 8.1 Survival of Agreements.................................. 68
SECTION 8.3 Expenses................................................ 68
SECTION 8.4 Liabilities of the Funding Parties; Sharing of
Payments................................................ 69
SECTION 8.5 Liabilities of the Agent................................ 70
SECTION 8.6 Effect of Amendment and Restatement..................... 70
APPENDIX A Definitions and Interpretation
SCHEDULES
SCHEDULE 2.2 Commitments
SCHEDULE 4.1(e) Environmental Matters
SCHEDULE 4.1(n) Subsidiaries
SCHEDULE 5.14 Outstanding Indebtedness
SCHEDULE 5.15 Existing Liens
SCHEDULE 5.17 Existing Investments
EXHIBITS
EXHIBIT A Form of Funding Request
EXHIBIT B Form of Assignment of Lease and Rents
EXHIBIT C Form of Security Agreement and Assignment
EXHIBIT D Form of Mortgage
EXHIBIT E [Reserved]
EXHIBIT F Form of Environmental Audit Reliance Letter
EXHIBIT G Forms of Opinions of Counsel
EXHIBIT H Form of Lessee Certification of Construction
Completion
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EXHIBIT I Form of Payment Date Notice
EXHIBIT J Form of Assignment and Assumption Agreement
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AMENDED AND RESTATED MASTER AGREEMENT
THIS AMENDED AND RESTATED MASTER AGREEMENT, dated as of October 31, 2001
(as it may be amended or modified from time to time in accordance with the
provisions hereof, this "Master Agreement"), is among ▇▇▇▇▇ RENTS, INC., a
Georgia corporation ("Lessee"); SUNTRUST BANKS, INC., a Georgia corporation, as
Lessor (the "Lessor"), SOUTHTRUST BANK, N.A., a national banking association
(together with any other financial institution that becomes a party hereto as a
lender, collectively referred to as "Lenders" and individually as a "Lender"),
and SUNTRUST BANK, a Georgia banking corporation, as Agent (the "Agent").
PRELIMINARY STATEMENT
The parties hereto have entered into the Master Agreement, dated as of
September 20, 1996 (the "Existing Master Agreement") and wish to amend and
restate the Existing Master Agreement as set forth herein. In accordance with
the terms and provisions of the Existing Master Agreement and the Existing
Operative Documents and of this Master Agreement, the Lease, the Lease
Participation Agreement, the Loan Agreement and the other Operative Documents,
(i) the Lessor has acquired, and contemplates acquiring, Land from time to time,
and has leased and contemplates leasing such Land to the Lessee, (ii) the
Lessee, as agent for Lessor, has constructed and wishes to construct Buildings
on such Land for the Lessor and, when completed, to lease such Buildings from
the Lessor as part of the Leased Property under the Lease, (iii) the Lessee, as
agent, wishes to obtain, and the Lessor is willing to provide, funding for the
acquisition of the Land and the construction of Buildings, (iv) the Lessor
wishes to sell, and the Lease Participant wishes to purchase, a participation
interest in the Lessor's rights under the Lease, (v) the Lessor wishes to
obtain, and Lenders are willing to provide, from time to time, financing of a
portion of the funding of the acquisition of the Land and the construction of
the Buildings, and (vi) the Lessee is willing to provide its Guaranty to the
Lease Participant, the Lenders and the Lessor.
In consideration of the mutual agreements contained in this Master
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and not
defined herein shall have the meanings assigned thereto in Appendix A hereto for
all purposes hereof; and the rules of interpretation set forth in Appendix A
hereto shall apply to this Master Agreement.
SECTION 2
ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease.
(a) Land. Subject to the terms and conditions of this Master
Agreement, with respect to each parcel of Land identified by the Construction
Agent, on the related Closing Date (i) the Lessor agrees to acquire such
interest in the related Land, and any Building thereon, from the applicable
Seller as is transferred, sold, assigned and conveyed to the Lessor pursuant to
the applicable Purchase Agreement, (ii) the Lessor hereby agrees to lease such
Land, and any Building thereon, to the Lessee pursuant to the Lease, and (iii)
the Lessee hereby agrees to lease such Land, and any Building thereon, from the
Lessor pursuant to the Lease.
(b) Building. With respect to each parcel of Land on which a
Building is to be constructed, subject to the terms and conditions of this
Master Agreement, from and after the Closing Date relating to such Land (i) the
Construction Agent agrees, pursuant to the terms of the Construction Agency
Agreement, to construct and install the Building on such Land for the Lessor
prior to the Scheduled Construction Termination Date, (ii) the Lenders and the
Lessor agree to fund the Construction Costs with respect to such Building, (iii)
the Lessor shall lease such Building as part of such Leased Property to the
Lessee pursuant to the Lease, and (iv) the Lessee shall lease such Building from
the Lessor pursuant to the Lease.
SECTION 2.2 Fundings of Purchase Price, Development Costs and Construction
Costs.
(a) Initial Funding and Payment of Purchase Price for Land and
Development Costs on Closing Date. Subject to the terms and conditions of this
Master Agreement, on the Closing Date for any Land and any Building thereon,
each Lender shall make available, or arrange to make available, to the Lessor
its
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initial Loan with respect to such Land in an amount equal to the product of such
Lender's Commitment Percentage times the purchase price for the Land and any
Building thereon and the Construction Costs incurred by the Construction Agent,
as Agent for the Lessor, through such Closing Date, which funds the Lessor shall
use, together with Lessor funds in an amount equal to the product of the
Lessor's Commitment Percentage times the purchase price for the related Land and
the Construction Costs incurred by the Construction Agent, as agent for the
Lessor, through such Closing Date, to purchase the Land from the applicable
Seller pursuant to the applicable Purchase Agreement and to pay to the Lessee
the amount of such Construction Costs, and the Lessor shall lease such Land to
the Lessee pursuant to the Lease.
(b) Subsequent Fundings and Payments of Construction Costs during
Construction Term. Subject to the terms and conditions of this Master Agreement,
if a Building is to be constructed on Land, on each Funding Date following the
Closing Date for each parcel of Land until the related Construction Term
Expiration Date, (i) each Lender shall make available, or arrange to make
available, to the Lessor a Loan in an amount equal to the product of such
Lender's Commitment Percentage times the amount of Funding requested by the
Lessee for such Funding Date, which funds the Lessor hereby directs the Lender
to pay over, or cause to be paid over, to the Agent, for distribution to the
Construction Agent, as agent for the Lessor, as set forth in paragraph (d), and
(ii) the Lessor shall pay over to the Agent, for distribution to the
Construction Agent, as agent for the Lessor, its own funds (which shall
constitute a part of and an increase in the Lessor's Invested Amount with
respect to such Leased Property) in an amount equal to the product of the
Lessor's Commitment Percentage times the amount of Funding requested by the
Construction Agent for such Funding Date.
(c) Aggregate Limits on Funded Amounts. The aggregate amount that
the Funding Parties shall be committed to provide, or cause to be provided, as
Funded Amounts under this Master Agreement, the Loan Agreement and the Lease
Participation Agreement shall not exceed (x) with respect to each Leased
Property the costs of purchase and construction of such Leased Property and the
related closing and financing costs, or (y) $25,000,000 in the aggregate for all
Leased Properties; provided, however, that in the event that the Lessee
exercises a Partial Purchase Option, the amount set forth in this clause (y)
shall be reinstated to the extent of the Funded Amounts paid by the Lessee in
connection with such Partial Purchase Option. The aggregate amount that any
Funding Party shall be committed to fund, or cause to be funded, under this
Master Agreement, the Lease Participation Agreement and the Loan Agreement shall
not exceed the lesser of (i) such Funding Party's Commitment and (ii) such
Funding Party's Commitment Percentage of the aggregate Fundings requested under
this Master Agreement.
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(d) Notice, Time and Place of Fundings. With respect to each
Funding, the Lessee or the Construction Agent, as the case may be, shall give
the Lessor and the Agent an irrevocable prior written notice not later than
11:00 a.m, Atlanta, Georgia time, three Business Days prior to the proposed
Closing Date or other Funding Date, as the case may be, pursuant, in each case,
to a Funding Request in the form of Exhibit A (a "Funding Request"), specifying
the Closing Date or subsequent Funding Date, as the case may be, the amount of
Funding requested, the Leased Property to which such Funding relates, whether
such Funding shall be a LIBOR Advance, a Base Rate Advance or a combination
thereof and the Rent Period(s) therefor. All documents and instruments required
to be delivered on such Closing Date pursuant to this Master Agreement shall be
delivered at the offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as may be determined by the
Lessor, the Construction Agent and the Agent. Each Funding shall occur on a
Business Day and shall be in an amount equal to $250,000 or an integral multiple
of $25,000 in excess thereof. All remittances made by, or caused to be made by,
any Lender and the Lessor for any Funding shall be made in immediately available
funds by wire transfer to or, as is directed by, the Construction Agent, with
receipt by the Construction Agent not later than 12:00 noon, Atlanta, Georgia
time, on the applicable Funding Date, upon satisfaction or waiver of the
conditions precedent to such Funding set forth in Section 3; such funds shall
(1) in the case of the initial Funding on a Closing Date, be used to pay the
purchase price to the applicable Seller for the related Land and any Building
thereon and pay Construction Costs related to such Land, and (2) in the case of
each subsequent Funding in respect of a Construction Land Interest to be paid to
the Construction Agent, as agent for the Lessor, for the payment or
reimbursement of Construction Costs incurred through such Funding Date and not
previously paid or reimbursed.
(e) Deemed Representation for Each Funding. Each Funding Request by
the Lessee or the Construction Agent shall be deemed a reaffirmation of the
Lessee's indemnity obligations in favor of the Indemnitees under the Operative
Documents and a representation and warranty by the Lessee to the Lessor, the
Agent, the Lease Participant and the Lenders that on the proposed Closing Date
or Funding Date, as the case may be, (i) the amount of Funding requested
represents amounts owing in respect of the purchase price of the related Land
and any Building thereon and Construction Costs in respect of the Leased
Property (in the case of the initial Funding on a Closing Date) or amounts that
are then due to third parties in respect of the Construction, or amounts paid by
the Construction Agent to third parties in respect of the Construction for which
the Construction Agent has not previously been reimbursed by a Funding (in the
case of any Funding), (ii) no Event of Default or Potential Event of Default
exists, and (iii) the representations and warranties
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of the Lessee set forth in Section 4.1 are true and correct in all material
respects as though made on and as of such Funding Date, except to the extent
such representations or warranties relate solely to an earlier date, in which
case such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date.
(f) Not Joint Obligations. Notwithstanding anything to the contrary
set forth herein or in the other Operative Documents, each Lender's and the
Lessor's commitments shall be several, and not joint. In no event shall any
Funding Party be obligated to fund an amount in excess of such Funding Party's
Commitment Percentage of any Funding, or to fund amounts in the aggregate in
excess of such Funding Party's Commitment.
SECTION 2.3 Funded Amounts and Interest and Yield Thereon.
(a) The Lessor's Invested Amount for any Leased Property outstanding
from time to time shall accrue yield ("Yield") at a rate equal to (1) with
respect to the portion thereof constituting a LIBOR Advance, the sum of (i) the
Adjusted LIBO Rate, plus (ii) the Applicable Margin per annum, and (2) with
respect to the portion thereof constituting a Base Rate Advance, the sum of (i)
the Base Rate, plus (ii) the Applicable Margin, in each case, computed using the
actual number of days elapsed and a 360 day year. If all or a portion of the
principal amount of or yield on the Lessor's Invested Amounts shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), such
overdue amount shall, without limiting the rights of the Lessor under the Lease,
to the maximum extent permitted by law, accrue yield at the Overdue Rate, from
the date of nonpayment until paid in full (both before and after judgment). Any
change in the Yield rate on the Lessor's Invested Amounts resulting from a
change in the Base Rate shall become effective as of the opening of business on
the day on which such Base Rate changes as provided in the definition thereof.
(b) Each Lender's Funded Amount for any Leased Property outstanding
from time to time shall accrue interest as provided in the Loan Agreement.
(c) During the Construction Term, in lieu of the payment of accrued
interest, on each Payment Date, each Lender's Funded Amount in respect of a
Construction Land Interest shall automatically be increased by the amount of
interest accrued on the related Loans pursuant to the Loan Agreement during the
Rent Period ending immediately prior to such Payment Date (except to the extent
that at any time such increase would cause such Lender's Funded Amount to exceed
such Lender's Commitment, in which event the Lessee shall pay such excess amount
to such Lender in immediately available funds on such
5
Payment Date). Similarly, during the Construction Term, in lieu of the payment
of accrued Yield, on each Payment Date, the Lessor's Invested Amount in respect
of such Construction Land Interest shall automatically be increased by the
amount of Yield accrued on the Lessor's Invested Amount in respect of such Land
during the Rent Period ending immediately prior to such Payment Date (except to
the extent that at any time such increase would cause the Lessor's Invested
Amount to exceed the Lessor's Commitment, in which event the Lessee shall pay
such excess amount to the Lessor in immediately available funds on such Payment
Date). Such increases in Funded Amounts shall occur without any disbursement of
funds by the Funding Parties, and without the need for delivery of a Funding
Request.
(d) Three Business Days prior to the last day of each Rent Period,
the Lessee shall deliver (which delivery may be by facsimile) to the Lessor and
the Agent a notice substantially in the form of Exhibit I (each, a "Payment Date
Notice"), appropriately completed, specifying the allocation of the Funded
Amounts related to such Rent Period to LIBOR Advances and Base Rate Advances and
the Rent Periods therefor, provided that no such allocation to LIBOR Advances
shall be in an amount less than $250,000. Each such Payment Date Notice shall be
irrevocable. If no such notice is given, the Funded Amounts shall be allocated
to a LIBOR Advance with a Rent Period of three (3) months.
(e) Lessee hereby agrees to pay to each Funding Party an unused fee
(the "Unused Fee") for each day from the date hereof until the Funding
Termination Date equal to (i) the Applicable Percentage per annum times (ii) the
difference between such Funding Party's Commitment and its outstanding Lessor's
Invested Amount or the principal of its outstanding Loans, as applicable, times
(iii) 1/360. Such unused fee shall be payable with the proceeds of Advances in
arrears on each Quarterly Payment Date and on the Funding Termination Date; on
each such Quarterly Payment Date during the Construction Period and on the
Funding Termination Date, each Funding Party's Funded Amount shall be
automatically increased by its Commitment Percentage of the aggregate unused fee
due on such date pursuant to this Section 2.3(e).
SECTION 2.4 Lessee Owner for Tax Purposes. With respect to each Leased
Property, it is the intent of the Lessee and the Funding Parties that for
federal, state and local tax purposes and commercial and bankruptcy law purposes
the Lease shall be treated as the repayment of, and security provisions with
respect to, a loan made by the Lessor to the Lessee, and that the Lessee shall
be treated as the legal and beneficial owner entitled to any and all benefits of
ownership of such Leased Property and all payments of Basic Rent during the
Lease Term shall be treated as payments of interest and principal. Nevertheless,
the Lessee acknowledges and agrees that neither the Agent, nor any Funding
6
Party, nor any other Person has made any representations or warranties
concerning the tax, financial, accounting or legal characteristics or treatment
of the Operative Documents and that the Lessee has obtained and relied solely
upon the advice of its own tax, accounting and legal advisors concerning the
Operative Documents and the accounting, tax, financial and legal consequences of
the transactions contemplated therein.
SECTION 2.5 Amounts Due Under Lease. With respect to each Leased Property,
anything else herein or elsewhere to the contrary notwithstanding, it is the
intention of the Lessee and the Funding Parties that: (i) the amount and timing
of Basic Rent due and payable from time to time from the Lessee under the Lease
shall be equal to the aggregate payments due and payable with respect to
interest on, and principal of, the Loans in respect of such Leased Property and
Yield on, and principal of, the Lessor's Invested Amounts, if any, in respect of
such Leased Property on each Payment Date; (ii) if the Lessee elects the
Purchase Option or the Partial Purchase Option with respect to a Leased Property
or becomes obligated to purchase such Leased Property under the Lease, the
Funded Amounts in respect of such Leased Property, all interest and Yield
thereon and all other obligations of the Lessee owing to the Funding Parties in
respect of the Leased Property shall be paid in full by the Lessee, (iii) if the
Lessee properly elects the Remarketing Option, the principal amount of, and
accrued interest on, the A Loans and the A Percentage of the Lessor's Invested
Amounts in respect of such Leased Property, if any, will be paid out of the
Recourse Deficiency Amount, and the Lessee shall only be required to pay to the
Lenders in respect of the principal amount of the B Loans in respect of such
Leased Property and to the Lessor in respect of the B Percentage of the Lessor's
Invested Amounts in respect of such Leased Property, if any, the proceeds of the
sale of such Leased Property; and (iv) upon an Event of Default resulting in an
acceleration of the Lessee's obligation to purchase such Leased Property under
the Lease, the amounts then due and payable by the Lessee under the Lease shall
include all amounts necessary to pay in full the Loans in respect of such Leased
Property, and accrued interest thereon, the Lessor's Invested Amounts in respect
of such Leased Property, if any, and accrued Yield thereon and all other
obligations of the Lessee owing to the Funding Parties in respect of such Leased
Property.
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SECTION 3
CONDITIONS PRECEDENT; DOCUMENTS
SECTION 3.1 Conditions to the Obligations of the Funding Parties on each
Closing Date. The obligations of the Lessor and each Lender to carry out their
respective obligations under Section 2 of this Master Agreement to be performed
on the Closing Date with respect to any Land and Building thereon shall be
subject to the fulfillment to the satisfaction of, or waiver by, each such party
hereto (acting directly or through its counsel) on or prior to such Closing Date
of the following conditions precedent, provided that the obligations of any
Funding Party shall not be subject to any conditions contained in this Section
3.1 which are required to be performed by such Funding Party:
(a) Documents. The following documents shall have been executed and
delivered by the respective parties thereto:
(i) Deed and Purchase Agreement. The related original Deed
duly executed by the applicable Seller in favor of the Lessor and in
recordable form, and copies of the related Purchase Agreement, assigned to
the Lessor (unless Lessor is the original party thereto), shall each have
been delivered to the Agent by the Lessee, with copies thereof to each
other Funding Party, shall each have been delivered to the Agent, with
copies thereof to each other Funding Party (it being understood, that each
Purchase Agreement shall be reasonably satisfactory in form and substance
to the Lessor and the Funding Parties).
(ii) Lease; Lease Supplement. The original of the related
Lease Supplement, duly executed by the Lessee and the Lessor and in
recordable form, shall have been delivered to the Agent by the Lessee.
(iii) Mortgage and Assignment of Lease and Rents. Counterparts
of the Mortgage, substantially in the form of Exhibit D attached hereto,
duly executed by the Lessor and in recordable form, shall have been
delivered to the Agent (which Mortgage shall secure all of the obligations
of the Lessor under the Operative Documents to the Agent unless such
mortgage is subject to a tax based on the amount of indebtedness secured
thereby, in which case the amount secured will be limited to debt in an
amount equal to 125% of the projected cost of acquisition and construction
of such Leased Property); and the Assignment of Lease and Rents
(substantially in the form of Exhibit B attached hereto) in recordable
form, duly executed by the Lessor, shall have been delivered to the Agent
by the Lessor.
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(iv) Security Agreement and Assignment. If Buildings are to be
constructed on the Land, counterparts of the Security Agreement and
Assignment (substantially in the form of Exhibit C attached hereto), duly
executed by the Construction Agent, with an acknowledgment and consent
thereto satisfactory to the Lessor and the Agent duly executed by the
related General Contractor and the related Architect or Engineer, as
applicable, and complete copies of the related Construction Contract and
the related Architect's Agreement or Engineer's Agreement certified by the
Construction Agent, shall have been delivered to the Lessor and the Agent
(it being understood and agreed that if no related Construction Contract,
Architect's Agreement or Engineer's Agreement exists on such Closing Date
the Lessee shall deliver such Security Agreement and Assignment and
consents concurrently with the Lessee's entering into such contracts). If
such Leased Property is a Construction Land Interest, counterparts of the
supplement to the Construction Agency Agreement for such Leased Property,
duly executed by the Construction Agent and the Lessor, shall have been
delivered to the Agent.
(v) Survey. The Lessee shall have delivered, or shall have
caused to be delivered, to the Lessor and the Agent, at the Lessee's
expense, an accurate survey certified to the Lessor and the Agent in a
form satisfactory to the Lessor and the Agent and showing no state of
facts unsatisfactory to the Lessor or the Agent and prepared within ninety
(90) days of the Closing Date (or such other time period agreed to by the
Lessor and the Agent) by a Person reasonably satisfactory to the Lessor
and the Agent. Such survey shall (1) be acceptable to the Title Insurance
Company for the purpose of providing extended coverage to the Lessor and a
lender's comprehensive endorsement to the Agent, (2) show no encroachments
on such Land by structures owned by others, and no encroachments from any
part of such Leased Property onto any land owned by others, and (3)
disclose no state of facts reasonably objectionable to the Lessor, the
Agent or the Title Insurance Company, and be reasonably acceptable to each
such Person.
(vi) Title and Title Insurance. On such Closing Date, the
Lessor shall receive from a title insurance company acceptable to the
Lessor and the Agent an ALTA Owner's Policy of Title Insurance issued by
such title insurance company and the Agent shall receive from such title
insurance company an ALTA Mortgagee's Policy of Title Insurance issued by
such title insurance company, in each case, in the amount of the projected
cost of acquisition and construction of such Leased Property, reasonably
acceptable in form and substance to the Lessor and the Agent, respectively
(collectively, the "Title Policy"). The Title Policy shall be dated as of
the Closing Date, and, to the extent permitted under
9
Applicable Law, shall include such affirmative endorsements as the Lessor
or the Agent shall reasonably request.
(vii) Appraisal. Each Funding Party shall have received a
report of the Appraiser (an "Appraisal"), paid for by the Lessee, which
shall meet the requirements of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, shall be satisfactory to such Funding Party
and shall state in a manner satisfactory to such Funding Party the
estimated "as vacant" value of such Land and any existing Building or any
Building to be constructed thereon. Such Appraisal must show that (1) the
estimated Fair Market Sales Value of the Leased Property (if a Building is
to be constructed on the Land, determined as if the Building had already
been completed in accordance with the related Plans and Specifications and
by excluding from such value the amount of assessments on such Leased
Property) at the commencement of the Lease Term with respect thereto is
equal to the projected cost of acquisition and construction of such Leased
Property, and (2) the "as vacant" value described above is at least 45% of
the total cost of the Leased Property, including the trade fixtures,
equipment and personal property to be included therein. Upon request by
the Lessee, the Funding Parties agree to waive delivery on such Closing
Date of an Appraisal, provided that no subsequent Funding shall occur
until such Appraisal has been delivered.
(viii) Environmental Audit and related Reliance Letter. The
Lessor and the Agent shall have received an Environmental Audit for such
Leased Property, which shall be conducted in accordance with ASTM
standards and shall not include a recommendation for further investigation
and is otherwise satisfactory to the Lessor and the Agent; and the firm
that prepared the Environmental Audit for such Leased Property shall have
delivered to the Lessor and the Agent a letter (substantially in the form
of Exhibit F) stating that the Lessor, the Agent, the Lease Participant
and the Lenders may rely upon such firm's Environmental Audit of such
Land, it being understood that the Lessor's and the Agent's acceptance of
any such Environmental Audit shall not release or impair the Lessee's
obligations under the Operative Documents with respect to any
environmental liabilities relating to such Leased Property.
(ix) Evidence of Insurance. The Lessor and the Agent shall
have received from the Lessee certificates of insurance evidencing
compliance with the provisions of Article VIII of the Lease (including the
naming of the Lessor, the Agent, the Lease Participant and the Lenders as
additional insured or loss payee with respect to such insurance, as their
interests may appear), in form and substance reasonably satisfactory to
the Lessor and the Agent.
10
(x) UCC Financing Statement; Recording Fees; Transfer Taxes.
Each Funding Party shall have received satisfactory evidence of (i) the
execution and delivery to Agent of a UCC-1 and, if required by Applicable
Law, UCC-2 financing statement to be filed with the Secretary of State of
the applicable State (or other appropriate filing office) and the county
where the related Land is located respectively, and such other Uniform
Commercial Code financing statements as any Funding Party deems necessary
or desirable in order to perfect such Funding Party's interests and (ii)
the payment of all recording and filing fees and taxes with respect to any
recordings or filings made of the related Deed, the Lease, the related
Lease Supplement, the related Mortgage and the related Assignment of Lease
and Rents.
(xi) Opinions. An opinion of local counsel for the Lessee
qualified in the jurisdiction in which such Leased Property is located,
substantially in the form set forth in Exhibit G-2, and containing such
other matters as the parties to whom they are addressed shall reasonably
request, shall have been delivered and addressed to each of the Lessor,
the Agent, the Lease Participant and the Lenders, and to the extent
requested by the Agent, opinions supplemental to those delivered under
Section 3.2(vii) and reasonably satisfactory to the Agent shall have been
delivered and addressed to each of the Lessor, the Agent, the Lease
Participant and the Lenders.
(xii) Good Standing Certificates. The Agent shall have
received good standing certificates for the Lessor and the Lessee from the
appropriate offices of the state where the related Land is located.
(b) Litigation. No action or proceeding shall have been instituted
or, to the knowledge Lessee, threatened nor shall any governmental action, suit,
proceeding or investigation be instituted or threatened before any Governmental
Authority, nor shall any order, judgment or decree have been issued or proposed
to be issued by any Governmental Authority, to set aside, restrain, enjoin or
prevent the performance of this Master Agreement or any transaction contemplated
hereby or by any other Operative Document or which is reasonably likely to
materially adversely affect any Leased Property or any transaction contemplated
by the Operative Documents or which could reasonably be expected to result in a
Material Adverse Effect.
(c) Legality. In the opinion of such Funding Party or its counsel,
the transactions contemplated by the Operative Documents shall not violate any
Applicable Law, and no change shall have occurred or been proposed in Applicable
Law that would make it illegal for such Funding Party to participate
11
in any of the transactions contemplated by the Operative Documents.
(d) No Events. (i) No Event of Default, Potential Event of Default,
Event of Loss or Event of Taking relating to such Leased Property shall have
occurred and be continuing, (ii) no action shall be pending or threatened by a
Governmental Authority to initiate a Condemnation or an Event of Taking, and
(iii) there shall not have occurred any event that could reasonably be expected
to have a Material Adverse Effect since December 31, 2000.
(e) Representations. Each representation and warranty of the parties
hereto or to any other Operative Document contained herein or in any other
Operative Document shall be true and correct in all material respects as though
made on and as of such Closing Date, except to the extent such representations
or warranties relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date.
(f) Cutoff Date. No Closing Date shall occur after the Funding
Termination Date.
(g) Transaction Expenses. The Lessee shall have paid the Transaction
Costs then accrued and invoiced which the Lessee has agreed to pay pursuant to
Section 8.3.
(h) Approval. The Agent shall not have rejected such Leased Property
for inclusion in the Lease by written notice to the Lessee (such rejection not
to be unreasonably made).
SECTION 3.2 Additional Conditions for the Initial Closing Date. The
obligations of the Lessor and each Lender to carry out their respective
obligations under Section 2 of this Master Agreement to be performed on the
initial Closing Date shall be subject to the satisfaction of, or waiver by, each
such party hereto (acting directly or through its counsel) on or prior to the
initial Closing Date of the following conditions precedent in addition to those
set forth in Section 3.1, provided that the obligations of any Funding Party
shall not be subject to any conditions contained in this Section 3.2 which are
required to be performed by such Funding Party:
(i) Guaranty. Counterparts of the Guaranty, duly executed by
the Lessee, shall have been delivered to each Funding Party.
(ii) Loan Agreement. Counterparts of the Loan Agreement, duly
executed by the Lessor, the Agent and each Lender shall have been
delivered to each of the Lessor and the Agent. An A Note and a B Note,
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duly executed by the Lessor, shall have been delivered to each Lender.
(iii) Lease Participation Agreement. Counterparts of the Lease
Participation Agreement, duly executed by the Lessor, the Agent and the
Lease Participant, shall have been delivered to each of the parties
thereto.
(iv) Master Agreement. Counterparts of this Master Agreement,
duly executed by the parties hereto, shall have been delivered to each of
the parties hereto.
(v) Construction Agency Agreement. Counterparts of the
Construction Agency Agreement, duly executed by the parties thereto shall
have been delivered to each of the parties hereto.
(vi) Lease. Counterparts of the Lease, duly executed by the
Lessee and the Lessor, shall have been delivered to each Funding Party and
the original, chattel paper copy of the Lease shall have been delivered to
the Agent.
(vii) Lessee's Resolutions and Incumbency Certificate, etc.
Each of the Agent and the Lessor shall have received (x) a certificate of
the Secretary or an Assistant Secretary of the Lessee, attaching and
certifying as to (i) the Board of Directors' resolution duly authorizing
the execution, delivery and performance by it of each Operative Document
to which it is or will be a party, (ii) the incumbency and signatures of
persons authorized to execute and deliver such documents on its behalf,
(iii) its articles of incorporation, certified as of a recent date by the
Secretary of State of the state of its incorporation and (iv) its by-laws,
and (y) good standing certificates for the Lessee from the appropriate
offices of the States of such Person's incorporation and principal place
of business.
(viii) Opinions of Counsel. The opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, dated the initial Closing Date, substantially in the form set forth
in Exhibit G-1, and containing such other matters as the parties to whom
it is addressed shall reasonably request, shall have been delivered and
addressed to each of the Lessor, the Agent, the Lease Participant and the
Lenders.
(ix) Lessor's Incumbency Certificate. The Agent shall have
received a certificate of secretary of the Lessor attaching and certifying
as to the incumbency and signatures of persons authorized to execute and
deliver such documents on its behalf.
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SECTION 3.3 Conditions to the Obligations of Lessee. The obligations of
the Lessee to lease a Leased Property from the Lessor are subject to the
fulfillment on the related Closing Date to the satisfaction of, or waiver by,
the Lessee, of the following conditions precedent:
(a) General Conditions. The conditions set forth in Sections 3.1 and
3.2 that require fulfillment by the Lessor or the Lenders shall have been
satisfied.
(b) Legality. In the opinion of the Lessee or its counsel, the
transactions contemplated by the Operative Documents shall not violate any
Applicable Law, and no change shall have occurred or been proposed in Applicable
Law that would make it illegal for the Lessee to participate in any of the
transactions contemplated by the Operative Documents.
SECTION 3.4 Conditions to the Obligations of the Funding Parties on each
Funding Date. The obligations of the Lessor and each Lender to carry out their
respective obligations under Section 2 of this Master Agreement to be performed
on each Funding Date shall be subject to the fulfillment to the satisfaction of,
or waiver by, each such party hereto (acting directly or through their
respective counsel) on or prior to each such Funding Date of the following
conditions precedent, provided that the obligations of any Funding Party shall
not be subject to any conditions contained in this Section 3.4 which are
required to be performed by such Funding Party:
(a) Funding Request. The Lessor and the Agent shall have received
from the Construction Agent or the Lessee the Funding Request therefor pursuant
to Section 2.2(d).
(b) Condition Fulfilled. As of such Funding Date, the condition set
forth in Section 3.1(c) and (d) shall have been satisfied.
(c) Representations. As of such Funding Date, both before and after
giving effect to the Funding requested by the Construction Agent or the Lessee
on such date, the representations and warranties that the Construction Agent or
the Lessee is deemed to make pursuant to Section 2.2(e) shall be true and
correct in all material respects on and as of such Funding Date as though made
on and as of such Funding Date, except to the extent such representations or
warranties relate solely to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects on and
as of such earlier date.
(d) No Bonded Stop Notice or Filed Mechanic's Lien. As of each
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Funding Date, and as to any Funded Amount requested for any Leased Property on
each such Funding Date, (i) none of the Lessor, the Agent, the Lease Participant
or any Lender has received (with respect to such Leased Property) a bonded
notice to withhold Loan funds that has not been discharged by the Construction
Agent or the Lessee, and (ii) no mechanic's liens or materialman's liens have
been filed against such Leased Property that have not been discharged by the
Construction Agent or the Lessee, bonded over in a manner reasonably
satisfactory to the Agent or insured over by the Title Insurance Company.
(e) Lease Supplement. If the Funding relates to a Building that will
be leased under a Lease Supplement separate from the Lease Supplement for the
related Land, the original of such separate Lease Supplement, duly executed by
the Lessee and the Lessor and in recordable form, shall have been delivered to
the Agent.
SECTION 3.5 Completion Date Conditions. The occurrence of the Completion
Date with respect to any Leased Property shall be subject to the fulfillment to
the satisfaction of, or waiver by, each party hereto (acting directly or through
its counsel) of the following conditions precedent:
(a) Title Policy Endorsements; Architect's Certificate. The Lessee
shall have furnished to each Funding Party (1) the following endorsements to the
related Title Policy (each of which shall be subject to no exceptions other than
those reasonably acceptable to the Agent): a date-down endorsement (redating and
confirming the coverage provided under the Title Policy and each endorsement
thereto) and a "Form 9" endorsement (if available in the applicable
jurisdiction), in each case, effective as of a date not earlier than the date of
completion of the Construction, and (2) a certificate of the Architect dated at
or about the Completion Date, in form and substance reasonably satisfactory to
the Agent, the Lessor and the Lenders, and stating that (i) the related Building
has been completed substantially in accordance with the Plans and Specifications
therefor, and such Leased Property is ready for occupancy, (ii) such Plans and
Specifications comply in all material respects with all Applicable Laws in
effect at such time, and (iii) to the best of the Architect's knowledge, such
Leased Property, as so completed, complies in all material respects with all
Applicable Laws in effect at such time. The Lessee shall also deliver to the
Agent true and complete copies of: (A) an "as built" or "record" set of the
Plans and Specifications, (B) a plat of survey of such Leased Property "as
built" to a standard reasonably acceptable to the Agent showing all easements,
paving, driveways, fences and exterior improvements, and (C) copies of a
certificate or certificates of occupancy for such Leased Property or other
legally equivalent permission to occupy such Leased Property.
(b) Construction Completion. The related Construction shall
15
have been completed substantially in accordance with the related Plans and
Specifications, the related Deed and all Applicable Laws, and such Leased
Property shall be ready for occupancy and operation. All fixtures, equipment and
other property contemplated under the Plans and Specifications to be
incorporated into or installed in such Leased Property shall have been
substantially incorporated or installed, free and clear of all Liens except for
Permitted Encumbrances.
(c) Lessee Certification. The Construction Agent shall have
furnished the Lessor, the Agent, the Lease Participant and each Lender with a
certification of the Construction Agent (substantially in the form of Exhibit H)
that:
(i) all amounts owing to third parties for the related
Construction have been paid in full (other than contingent obligations for
which the Construction Agent, as agent for the Lessor, has made adequate
reserves), and no litigation or proceedings are pending, or to the best of
the Construction Agent's knowledge, are threatened, against such Leased
Property or the Construction Agent or the Lessee which could reasonably be
expected to have a Material Adverse Effect;
(ii) all material consents, licenses and permits and
other governmental authorizations or approvals required for such
Construction and operation of such Leased Property have been obtained
and are in full force and effect;
(iii) such Leased Property has available all services of
public facilities and other utilities necessary for use and operation of
such Leased Property for its intended purposes including, without
limitation, adequate water, gas and electrical supply, storm and sanitary
sewerage facilities, telephone, other required public utilities and means
of access between the related Building and public highways for pedestrians
and motor vehicles;
(iv) all material agreements, easements and other rights,
public or private, which are necessary to permit the lawful use and
operation of such Leased Property as the Lessee intends to use such Leased
Property under the Lease and which are necessary to permit the lawful
intended use and operation of all then intended utilities, driveways,
roads and other means of egress and ingress to and from the same have been
obtained and are in full force and effect and neither the Construction
Agent nor the Lessee has any knowledge of any pending modification or
cancellation of any of the same; and the use of such Leased Property does
not depend on any variance, special exception or other municipal approval,
permit or consent that has not been obtained and is in full force
16
and effect for its continuing legal use;
(v) all of the requirements and conditions set forth in
Section 3.5(b) hereof have been completed and fulfilled with respect to
such Leased Property and the related Construction; and
(vi) such Leased Property is in compliance in all material
respects with all applicable zoning laws and regulations.
(d) Completion Date Appraisal. Within 90 days after the issuance of
the certificate of occupancy for each Building, the Lessor and the Agent shall
have received a report of the Appraiser (the "Completion Date Appraisal"), which
shall confirm the Appraisal of such Building and the related Leased Property
delivered on the Closing Date. The cost of such appraisal shall be paid by the
Lessee.
SECTION 4
REPRESENTATIONS
SECTION 4.1 Representations of Lessee. Effective as of the date of
execution hereof, as of each Closing Date and as of each Funding Date, the
Lessee represents and warrants to each of the other parties hereto as follows:
(a) Existence; Power. The Lessee and each of its Subsidiaries (i) is
duly organized, validly existing and in good standing as a corporation under the
laws of the jurisdiction of its organization, (ii) has all requisite power and
authority to carry on its business as now conducted, and (iii) is duly qualified
to do business, and is in good standing, in each jurisdiction where such
qualification is required, except where a failure to be so qualified could not
reasonably be expected to result in a Material Adverse Effect.
(b) Organizational Power; Authorization. The execution, delivery and
performance by Lessee and Guarantor of the Transaction Documents to which it is
a party are within Lessee's and Guarantor's organizational powers and have been
duly authorized by all necessary organizational, and if required, stockholder,
action. This Agreement has been duly executed and delivered by the Lessee, and
constitutes, and each other Transaction Document to which Lessee or Guarantor is
a party, when executed and delivered by Lessee or Guarantor, will constitute,
valid and binding obligations of Lessee or Guarantor (as the case may be),
enforceable against it in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
17
(c) Governmental Approvals; No Conflicts. The execution, delivery
and performance by the Lessee of this Agreement, and by Lessee and Guarantor of
the other Transaction Documents to which it is a party (i) do not require any
consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in
full force and effect or where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
(ii) will not violate any applicable law or regulation or the charter, by-laws
or other organizational documents of the Lessee or any of its Subsidiaries or
any judgment or order of any Governmental Authority binding on the Lessee or any
of its Subsidiaries, (iii) will not violate or result in a default under any
indenture, material agreement or other material instrument binding on the Lessee
or any of its Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by the Lessee or any of its
Subsidiaries and (iv) will not result in the creation or imposition of any Lien
on any asset of the Lessee or any of its Subsidiaries, except Liens (if any)
created under the Operative Documents.
(d) Financial Statements. The Lessee has furnished to Agent and each
Funding Party (i) the audited consolidated balance sheet of the Lessee and its
Subsidiaries as of December 31, 2000, and the related consolidated statements of
income, shareholders' equity and cash flows for the fiscal year then ended
prepared by Ernst & Young and (ii) the unaudited consolidated balance sheet of
the Lessee and its Subsidiaries as at the end of the June 30, 2001, and the
related unaudited consolidated statements of income and cash flows for the
fiscal quarter and year-to-date period then ending, certified by a Responsible
Officer. Such financial statements fairly present the consolidated financial
condition of the Lessee and its Subsidiaries as of such dates and the
consolidated results of operations for such periods in conformity with GAAP
consistently applied, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii). Since
December 31, 2000, there have been no changes with respect to the Lessee and its
Subsidiaries which have had or could reasonably be expected to have, singly or
in the aggregate, a Material Adverse Effect.
(e) Litigation and Environmental Matters.
(i) No litigation, investigation or proceeding of or before
any arbitrators or Governmental Authorities is pending against or, to the
knowledge of the Lessee, threatened against or affecting the Lessee or any
of its Subsidiaries (i) as to which there is a reasonable possibility of
an adverse determination that could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect or (ii) which
in
18
any manner draws into question the validity or enforceability of this
Agreement or any other Transaction Document.
(ii) Except for the matters set forth on Schedule 4.1(e),
neither the Lessee nor any of its Subsidiaries (i) has failed to comply in
any material respect with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability
in excess of $500,000, (iii) has received notice of any claim with respect
to any Environmental Liability in excess of $500,000 or (iv) knows of any
basis for any Environmental Liability in excess of $500,000.
(f) Compliance with Laws and Agreements. The Lessee and each
Subsidiary is in compliance with (a) all applicable laws, rules, regulations and
orders of any Governmental Authority, and (b) all indentures, agreements or
other instruments binding upon it or its properties, except where
non-compliance, either singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
(g) Investment Company Act, Etc. Neither the Lessee nor any of its
Subsidiaries is (a) an "investment company", as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended or (c) otherwise subject to any other
regulatory scheme limiting its ability to incur debt.
(h) Taxes. The Lessee and its Subsidiaries and each other Person for
whose taxes the Lessee or any Subsidiary could become liable have timely filed
or caused to be filed all Federal income tax returns and all other material tax
returns that are required to be filed by them, and have paid all taxes shown to
be due and payable on such returns or on any assessments made against it or its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, except (i) to the extent the failure to
do so would not have a Material Adverse Effect or (ii) where the same are
currently being contested in good faith by appropriate proceedings and for which
the Lessee or such Subsidiary, as the case may be, has set aside on its books
adequate reserves. The charges, accruals and reserves on the books of the Lessee
and its Subsidiaries in respect of such taxes are adequate, and no tax
liabilities that could be materially in excess of the amount so provided are
anticipated.
(i) Margin Regulations. None of the proceeds of any of the Fundings
will be used for "purchasing" or "carrying" any "margin stock" with the
respective meanings of each of such terms under Regulation U as now and
19
from time to time hereafter in effect or for any purpose that violates the
provisions of the applicable Margin Regulations.
(j) ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$1,000,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $1,000,000 the fair market value of the assets of
all such underfunded Plans.
(k) Ownership of Property.
(i) Each of the Lessee and its Subsidiaries has good title to,
or valid leasehold interests in, all of its real and personal property
material to the operation of its business.
(ii) Each of the Lessee and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents, trademarks,
service marks, tradenames, copyrights and other intellectual property
material to its business, and the use thereof by the Lessee and its
Subsidiaries does not infringe on the rights of any other Person, except
for any such infringements that, individually or in the aggregate, would
not have a Material Adverse Effect.
(l) Disclosure. The Lessee has disclosed to the Agent and the
Funding Parties all agreements, instruments, and corporate or other restrictions
to which the Lessee or any of its Subsidiaries is subject, and all other matters
known to any of them, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. None of the reports
(including without limitation all reports that the Lessee is required to file
with the Securities and Exchange Commission), financial statements, certificates
or other written information furnished by or on behalf of the Lessee to the
Agent or any Funding Party in connection with the negotiation or syndication of
this Agreement or any other Operative Document or delivered hereunder or
thereunder (as modified or supplemented by any other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, taken as a whole, in light of the
20
circumstances under which they were made, not misleading; provided, that with
respect to projected financial information, the Lessee represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
(m) Labor Relations. There are no strikes, lockouts or other
material labor disputes or grievances against the Lessee or any of its
Subsidiaries, or, to the Lessee's knowledge, threatened against or affecting the
Lessee or any of its Subsidiaries, and no significant unfair labor practice,
charges or grievances are pending against the Lessee or any of its Subsidiaries,
or to the Lessee's knowledge, threatened against any of them before any
Governmental Authority. All payments due from the Lessee or any of its
Subsidiaries pursuant to the provisions of any collective bargaining agreement
have been paid or accrued as a liability on the books of the Lessee or any such
Subsidiary, except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect.
(n) Subsidiaries. Schedule 4.1(n) sets forth the name of, the
ownership interest of the Lessee in, the jurisdiction of incorporation of, and
the type of, each Subsidiary as of the Closing Date.
(o) Hazardous Materials.
(i) To the best knowledge of the Lessee, on the Closing Date
for each Leased Property, there are no Hazardous Materials present at,
upon, under or within such Leased Property or released or transported to
or from such Leased Property (except in compliance in all material
respects with all Applicable Law).
(ii) On the related Closing Date, no Governmental Actions have
been taken or, to the best knowledge of the Lessee, are in process or have
been threatened, which could reasonably be expected to subject such Leased
Property, any Lender, the Lease Participant or the Lessor with respect to
such Leased Property to any Claims or Liens under any Environmental Law
which would have a materially adverse effect on the Lessee, the Lessor,
any Lender, the Lease Participant or such Leased Property.
(iii) The Lessee has, or will obtain on or before the date
required by Applicable Law, all Environmental Permits necessary to operate
such Leased Property in compliance in all material respects with
Environmental Laws and is complying with and has at all times complied
with all such Environmental Permits, except to the extent the failure to
obtain such Environmental Permits or to so comply would not have a
21
Material Adverse Effect.
(iv) No notice, notification, demand, request for information,
citations, summons, complaint or order has been issued or filed to or with
respect to the Lessee, no penalty has been assessed on the Lessee and no
investigation or review is pending or, to its best knowledge, threatened
by any Governmental Authority or other Person in each case relating to the
Leased Property with respect to any alleged material violation or
liability of the Lessee under any Environmental Law. No material notice,
notification, demand, request for information, citations, summons,
complaint or order has been issued or filed to or with respect to any
other Person, no material penalty has been assessed on any other Person
and no investigation or review is pending or, to its best knowledge,
threatened by any Governmental Authority or other Person relating to such
Leased Property with respect to any alleged material violation or
liability under any Environmental Law by any other Person.
(v) Such Leased Property and each portion thereof are
presently in compliance in all material respects with all Environmental
Laws, and there are no present or, to the Lessee's best knowledge, past
facts, circumstances, activities, events, conditions or occurrences
regarding such Leased Property (including without limitation the release
or presence of Hazardous Materials) that could reasonably be anticipated
to (A) form the basis of a material Claim against such Leased Property,
any Funding Party or the Lessee, (B) cause such Leased Property to be
subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law, (C) require the filing or
recording of any notice or restriction relating to the presence of
Hazardous Materials in the real estate records in the county or other
appropriate municipality in which such Leased Property is located, or (D)
prevent or interfere with the continued operation and maintenance of such
Leased Property as contemplated by the Operative Documents.
(p) Leased Property. The present condition and use of each Leased
Property conforms in all material respects with all conditions or requirements
of all existing permits and approvals issued with respect to such Leased
Property, and the present use of such Leased Property and the Lessee's future
intended use of such Leased Property under the Lease does not, in any material
respect, violate any Applicable Law. No material notices, complaints of orders
or violation or non-compliance have been issued or, to the Lessee's best
knowledge, threatened or contemplated by any Governmental Authority with respect
to such Leased Property or any present or intended future use thereof. All
agreements, easements and other rights, public or private, which are necessary
to permit the lawful use and operation of each Leased Property as the
22
Lessee intends to use such Leased Property under the Lease and which are
necessary to permit the lawful intended use and operation of all presently
intended utilities, driveways, roads and other means of egress and ingress to
and from the same have been, or to the Lessee's best knowledge will be, obtained
and are in full force and effect, and the Lessee has no knowledge of any pending
modification or cancellation of any of the same.
SECTION 4.2 Survival of Representations and Effect of Fundings.
(a) Survival of Representations and Warranties. All representations and
warranties made in Section 4.1 shall survive delivery of the Operative Documents
and every Funding, and shall remain in effect until all of the Obligations are
fully and irrevocably paid.
(b) Each Funding a Representation. Each Funding accepted by the Lessee or
the Construction Agent shall be deemed to constitute a representation and
warranty by the Lessee to the effect of Section 4.1 as though made on and as of
such Funding Date, except to the extent such representations or warranties
relate solely to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and as
of such earlier date.
SECTION 4.3 Representations of the Lessor. Effective as of the date of
execution hereof, as of each Closing Date and as of each Funding Date, in each
case, with respect to each of the Leased Properties, the Lessor represents and
warrants to the Agent, the Lease Participant, the Lenders and the Lessee as
follows:
(a) Securities Act. The interest being acquired or to be acquired by
the Lessor in such Leased Property is being acquired for its own account,
without any view to the distribution thereof or any interest therein, provided
that the Lessor shall be entitled to assign, convey or transfer its interest in
accordance with Section 6.1 and the Lease Participation Agreement.
(b) Employee Benefit Plans. The Lessor is not and will not be making
its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1)) of the Code.
SECTION 4.4 Representations of each Lender. Effective as of the date of
execution hereof, as of each Closing Date and as of each Funding Date, each
Lender represents and warrants to the Lessor and to the Lessee as follows:
23
(a) Securities Act. The interest being acquired or to be acquired by
such Lender in the Funded Amounts is being acquired for its own account, without
any view to the distribution thereof or any interest therein, provided that such
Lender shall be entitled to assign, convey or transfer its interest in
accordance with Section 6.2.
(b) Employee Benefit Plans. Such Lender is not and will not be
making its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1)) of the Code.
SECTION 5
COVENANTS OF THE LESSEE
SECTION 5.1 Financial Statements and Other Information. The Lessee will
deliver to the Agent:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of Lessee, a copy of the annual audited report for such
fiscal year for the Lessee and its Subsidiaries, containing a consolidated and
unaudited consolidating balance sheet of the Lessee and its Subsidiaries as of
the end of such fiscal year and the related consolidated and unaudited
consolidating statements of income, stockholders' equity and cash flows
(together with all footnotes thereto) of the Lessee and its Subsidiaries for
such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and reported on by Ernst &
Young or other independent public accountants of nationally recognized standing
(without a "going concern" or like qualification, exception or explanation and
without any qualification or exception as to scope of such audit) to the effect
that such financial statements present fairly in all material respects the
financial condition and the results of operations of the Lessee and its
Subsidiaries for such fiscal year on a consolidated basis in accordance with
GAAP and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards; provided that the requirement of this Section
5.1(a) shall be satisfied if the Lessee shall deliver to the Agent a copy of its
10-K Report filed with the SEC for such fiscal year, including a copy of the
audited annual report described above;
(b) as soon as available and in any event within 45 days after the
end of each fiscal quarter of each fiscal year of the Lessee (other than the
last fiscal quarter), an unaudited consolidated and consolidating balance sheet
of the Lessee and its Subsidiaries as of the end of such fiscal quarter and the
related
24
unaudited consolidated and consolidating statements of income and cash flows of
the Lessee and its Subsidiaries for such fiscal quarter and the then elapsed
portion of such fiscal year, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of Lessee's
previous fiscal year, all certified by the chief financial officer, treasurer or
controller of the Lessee as presenting fairly in all material respects the
financial condition and results of operations of the Lessee and its Subsidiaries
on a consolidated basis in accordance with GAAP, subject to normal year-end
audit adjustments and the absence of footnotes; provided that the requirement of
this Section 5.1(b) shall satisfied if the Lessee shall deliver to the Agent a
copy of its 10-Q filed with the SEC for such fiscal quarter;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of a Responsible
Officer, (i) certifying as to whether there exists a Potential Event of Default
or Event of Default on the date of such certificate, and if a Potential Event of
Default or an Event of Default then exists, specifying the details thereof and
the action which the Lessee has taken or proposes to take with respect thereto,
(ii) setting forth in reasonable detail calculations demonstrating compliance
with Sections 5.10 through 5.13 and (iii) stating whether any change in GAAP or
the application thereof has occurred since the date of the Lessee's audited
financial statements referred to in Section 4.1(d) and, if any change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with the delivery of the financial statements
referred to in clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained any
knowledge during the course of their examination of such financial statements of
any Potential Event of Default or Event of Default (which certificate may be
limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all functions of said Commission, or with any national securities
exchange, or distributed by the Lessee to its shareholders generally, as the
case may be; and
(f) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition of
the Lessee or any Subsidiary as the Agent or any Funding Party may reasonably
request; and
(g) as soon as available and in any event within 30 days after the
25
end of each fiscal year of the Lessee, a forecasted income statement, balance
sheet, and statement of cash flows for the following fiscal year.
SECTION 5.2 Notices of Material Events. The Lessee will furnish to the
Agent and each Funding Party prompt written notice of the following:
(a) the occurrence of any Potential Event of Default or Event of
Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or, to the knowledge
of the Lessee, affecting the Lessee or any Subsidiary which, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which
the Lessee or any of its Subsidiaries (i) fails to comply in any material
respect with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii)
becomes subject to any Environmental Liability in excess of $500,000, (iii)
receives notice of any claim with respect to any Environmental Liability in
excess of $500,000, or (iv) becomes aware of any basis for any Environmental
Liability in excess of $500,000 and in each of the preceding clauses, which
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Lessee and its Subsidiaries in an aggregate amount
exceeding $1,000,000;
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect; and
(f) Each notice delivered under this Section shall be accompanied by
a written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.3 Existence; Conduct of Business. The Lessee will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and maintain in full force and effect its legal existence and
its respective rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business
and will
26
continue to engage in the same business as presently conducted or such other
businesses that are reasonably related thereto; provided, that nothing in this
Section shall prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 5.16.
SECTION 5.4 Compliance with Laws, Etc. The Lessee will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its properties, except
where the failure to do so, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.5 Payment of Obligations. The Lessee will, and will cause each
of its Subsidiaries to, pay and discharge at or before maturity, all of its
obligations and liabilities (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Lessee or such
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.6 Books and Records. The Lessee will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities to the extent necessary to prepare the consolidated
financial statements of Lessee in conformity with GAAP.
SECTION 5.7 Visitation, Inspection, Etc. The Lessee will, and will cause
each of its Subsidiaries to, permit any representative of the Agent or any
Funding Party, to visit and inspect its properties, to examine its books and
records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with any of its officers and with its independent
certified public accountants, all at such reasonable times and as often as the
Agent or any Funding Party may reasonably request after reasonable prior notice
to the Lessee; provided, however, if a Potential Event of Default or an Event of
Default has occurred and is continuing, no prior notice shall be required. All
reasonable expenses incurred by the Agent and, at any time after the occurrence
and during the continuance of a Potential Event of Default or an Event of
Default, any Lenders in connection with any such visit, inspection, audit,
examination and discussions shall be borne by the Lessee.
SECTION 5.8 Maintenance of Properties; Insurance. The Lessee will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
27
ordinary wear and tear excepted, except where the failure to do so, either
individually or it the aggregate, could not reasonably be expected to result in
a Material Adverse Effect and (b) maintain with financially sound and reputable
insurance companies, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations. In addition, and not in limitation
of the foregoing, the Lessee shall maintain and keep in force insurance coverage
on its inventory, as is consistent with best industry practices. The Lessee
shall at all times cause the Agent to be named as additional insured on all of
its casualty and liability policies.
SECTION 5.9 Use of Proceeds and Letters of Credit. The Lessee will use the
proceeds of all Fundings to finance the acquisition and construction of the
Leased Properties. No part of the proceeds of any Fundings will be used, whether
directly or indirectly, for any purpose that would violate any rule or
regulation of the Board of Governors of the Federal Reserve System, including
Regulations T, U or X.
SECTION 5.10 Total Debt to EBITDA Ratio. The Lessee and its Subsidiaries
shall maintain, as of the last day of each fiscal quarter of the Lessee,
commencing with the fiscal quarter ending March 31, 2001, a Total Debt to EBITDA
Ratio of not greater than 3.00:1.00.
SECTION 5.11 Total Adjusted Debt to Total Adjusted Capital Ratio. The
Lessee and its Subsidiaries shall maintain, as of the last day of each fiscal
quarter of the Lessee, commencing with the fiscal quarter ending March 31, 2001,
a Total Adjusted Debt to Total Adjusted Capital Ratio of not greater than
0.60:1.00.
SECTION 5.12 Fixed Charge Coverage Ratio. The Lessee and its Subsidiaries
shall maintain, as of the last day of each fiscal quarter of the Lessee,
commencing with the fiscal quarter ending March 31, 2001, a Fixed Charge
Coverage Ratio of not less than 2:00 to 1:00.
SECTION 5.13 Minimum Consolidated Net Worth. The Lessee and its
Subsidiaries shall maintain a Consolidated Net Worth of an amount equal to the
sum of (i) $187,675,200.00, plus (ii) 50% of cumulative positive Consolidated
Net Income accrued during each fiscal quarter ending thereafter, since the end
of such fiscal quarter of the Lessee, commencing with the fiscal quarter ending
March 31, 2001, plus (iii) 100% of the net proceeds from any public or private
offering of common stock of the Lessee after the Closing Date, calculated
quarterly on the last day of each fiscal quarter; provided, that if Consolidated
Net Income is negative in any fiscal quarter the amount added for
28
such fiscal quarter shall be zero and such negative Consolidated Net Income
shall not reduce the amount of Consolidated Net Income added from any previous
fiscal quarter. Promptly upon the consummation of any offering of common stock
of the Lessee, the Lessee shall notify the Agent in writing of the amount of the
proceeds thereof.
SECTION 5.14 Indebtedness. The Lessee will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness created pursuant to the Operative Documents;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 5.14 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof (immediately prior
to giving effect to such extension, renewal or replacement) or shorten the
maturity or the weighted average life thereof;
(c) Indebtedness of the Lessee or any Subsidiary incurred after the
Initial Closing Date to finance the acquisition, construction or improvement of
any fixed or capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof; provided,
that such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvements or
extensions, renewals, and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof; provided further, that the aggregate principal
amount of such Indebtedness does not exceed $5,000,000 at any time outstanding;
(d) Indebtedness of the Lessee owing to any Loan Party and of any
Loan Party owing to the Lessee or any other Loan Party;
(e) Guarantees by the Lessee of Indebtedness of any Loan Party and
by any Loan Party of Indebtedness of the Lessee or any other Loan Party;
(f) [Reserved]
(g) Guarantees by the Lessee of Indebtedness of certain franchise
operators of the Lessee, provided such guarantees are given by the Lessee in
connection with (1) loans made pursuant to the terms of the Loan Facility
Agreement, (2) loans made pursuant to the South Trust Loan Facility Agreement
29
in an aggregate principal amount not to exceed $5,000,000 and (3) loans made by
Sun Trust Bank to finance the purchase of equity interests in certain franchises
of the Lessee in an aggregate principal amount not to exceed $5,000,000;
(h) endorsed negotiable instruments for collection in the ordinary
course of business;
(i) Guarantees by Lessee of Indebtedness of Foreign Subsidiaries,
provided that the amount of such Guaranteed Indebtedness, together with the
principal amount any loans to Foreign Subsidiaries permitted to be made under
clause (j) below, does not exceed $10,000,000 at any time;
(j) Loans by Lessee to its Foreign Subsidiaries, provided that the
amount of such loans, together with the amount of Guaranteed Indebtedness
permitted to be incurred under clause (i) above, does not exceed $10,000,000 at
any time; and
(k) other unsecured Indebtedness in an aggregate principal amount
not to exceed $10,000,000 at any time outstanding.
SECTION 5.15 Negative Pledge. The Lessee will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any
of its assets or property now owned or hereafter acquired (other than any shares
of stock of the Lessee that are repurchased by the Lessee and retired or held by
the Lessee), except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Lessee or any
Subsidiary existing on the Closing Date set forth on Schedule 5.15; provided,
that such Lien shall not apply to any other property or asset of the Lessee or
any Subsidiary;
(c) purchase money Liens upon or in any fixed or capital assets to
secure the purchase price or the cost of construction or improvement of such
fixed or capital assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition, construction or improvement of such fixed
or capital assets (including Liens securing any Capital Lease Obligations);
provided, that (i) such Lien secures Indebtedness permitted by Section 5.14(c),
(ii) such Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof; (iii) such
Lien does not extend to any other asset; and (iv) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving such
fixed or capital
30
assets together with all interest, fees and costs incurred in connection
therewith;
(d) any Lien (i) existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Lessee, (ii) existing on any asset of
any Person at the time such Person is merged with or into the Lessee or any
Subsidiary of the Lessee or (iii) existing on any asset prior to the acquisition
thereof by the Lessee or any Subsidiary of the Lessee; provided, that any such
Lien was not created in the contemplation of any of the foregoing and any such
Lien secures only those obligations which it secures on the date that such
Person becomes a Subsidiary or the date of such merger or the date of such
acquisition; and
(e) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (d) of this Section; provided, that the principal amount
of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered
thereby;
(f) Liens granted under the Synthetic Lease Documents in the real or
personal property financed thereunder and in certain related rights of the
Lessee to secure the Lessee's indebtedness and liabilities under the Synthetic
Lease Documents to the extent permitted under Section 5.14;
(g) Liens securing the Obligations; and
(h) Liens on shares of stock of any Foreign Subsidiary to the extent
that the Obligations are secured pari passu with any other Indebtedness or
obligations secured thereby.
SECTION 5.16 Fundamental Changes.
(a) The Lessee will not, and will not permit any Subsidiary to,
merge into or consolidate into any other Person, or permit any other Person to
merge into or consolidate with it, or sell, lease, transfer or otherwise dispose
of (in a single transaction or a series of transactions) all or substantially
all of its assets (in each case, whether now owned or hereafter acquired) or all
or substantially all of the stock of any of its Subsidiaries (in each case,
whether now owned or hereafter acquired) or liquidate or dissolve; provided,
that if at the time thereof and immediately after giving effect thereto, no
Potential Event of Default or Event of Default shall have occurred and be
continuing (i) the Lessee or any Subsidiary may merge with a Person if the
Lessee (or such Subsidiary if the Lessee is not a party to such merger) is the
surviving Person, (ii) any Subsidiary may merge into another Subsidiary or the
Lessee; provided, however, that if the Lessee is a party to such merger, the
Lessee shall be the
31
surviving Person, provided, further, that if any Subsidiary to such merger is a
Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person,
(iii) any Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Lessee or to a Subsidiary Loan Party,
(iv) any other Subsidiary may liquidate or dissolve if the Lessee determines in
good faith that such liquidation or dissolution is in the best interests of the
Lessee, is not materially disadvantageous to the Lenders, and such Subsidiary
dissolves into another Subsidiary Loan Party or the Lessee; provided, that any
such merger involving a Person that is not a wholly-owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
5.17.
(b) The Lessee will not, and will not permit any of its Subsidiaries
to, engage in any business other than businesses of the type conducted by the
Lessee and its Subsidiaries on the date hereof and businesses reasonably related
thereto.
SECTION 5.17 Investments, Loans, Etc. The Lessee will not, and will not
permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant
to any merger with any Person that was not a wholly-owned Subsidiary prior to
such merger), any common stock, evidence of indebtedness or other securities
(including any option, warrant, or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, any obligations of, or
make or permit to exist any investment or any other interest in, any other
Person (all of the foregoing being collectively called "Investments"), or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person that constitute a business unit, or create or
form any Subsidiary, except:
(a) Investments (other than Permitted Investments) existing on the
date hereof and set forth on Schedule 5.17 (including Investments in
Subsidiaries);
(b) Permitted Investments;
(c) Permitted Acquisitions;
(d) Investments made by the Lessee in or to any other Loan Party and
by any other Loan Party to the Lessee or in or to another Loan Party;
(e) loans or advances to employees, officers, stockholders or
directors of the Lessee or any Subsidiary in the ordinary course of business;
provided, however, that the aggregate amount of all such loans and advances does
not exceed $350,000 at any time;
32
(f) loans to franchise operators and owners of franchises acquired
or funded pursuant to the Loan Facility Agreement;
(g) acquire and own stock, obligations or securities received in
settlement of debts (created in the ordinary course of business) owing to any
Subsidiary Loan Party or any of their Subsidiaries;
(h) loans to Foreign Subsidiaries to the extent permitted under
Section 5.14;
(i) loans to franchise operators to extent permitted under Section
5.14; and
(j) other Investments not to exceed $500,000 at any time.
SECTION 5.18 Restricted Payments. The Lessee will not, and will not permit
its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any dividend on any class of its stock, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, retirement, defeasance or other acquisition of, any shares
of common stock or Indebtedness subordinated to the Obligations of the Lessee or
any options, warrants, or other rights to purchase such common stock or such
subordinated Indebtedness, whether now or hereafter outstanding (each, a
"Restricted Payment"), except for (i) dividends payable by the Lessee solely in
shares of any class of its common stock, (ii) Restricted Payments made by any
Subsidiary to the Lessee or to another Subsidiary Loan Party and (iii) so long
as no Potential Event of Default or Event of Default has occurred and is
continuing at the time such dividend is paid or redemption or stock repurchase
is made, dividends, distributions, redemptions and stock repurchases paid in
cash which do not exceed fifty percent (50%) of Consolidated Net Income of
Lessee (if greater that $0) for the immediately preceding Fiscal Year; provided,
that if the aggregate amount of all such dividends and distributions paid in
cash in any Fiscal Year are less than the amount permitted by clause (iii)
above, the excess permitted amount for such year may be carried forward once to
the next succeeding Fiscal Year.
SECTION 5.19 Sale of Assets. The Lessee will not, and will not permit any
of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of, any of its assets, business or property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary's common stock to any Person other than the Lessee or a
Subsidiary Loan Party (or to qualify directors if required by applicable law),
except (a) the sale or other disposition for fair market value of obsolete or
worn out property or other property not necessary for operations disposed of in
33
the ordinary course of business; (b) the sale of inventory and Permitted
Investments in the ordinary course of business, (c) sales and dispositions
permitted under Section 5.16(a) and (d) other sales of assets not to exceed
$5,000,000 in book value in the aggregate.
SECTION 5.20 Transactions with Affiliates. The Lessee will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Lessee or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among the Lessee and its wholly-owned Subsidiaries not involving any
other Affiliates, (c) any Restricted Payment permitted by Section 5.18 and (d)
transactions permitted under Section 5.17(e).
SECTION 5.21 Restrictive Agreements. The Lessee will not, and will not
permit any Subsidiary to, directly or indirectly, enter into, incur or permit to
exist any agreement that prohibits, restricts or imposes any condition upon (a)
the ability of the Lessee or any Subsidiary to create, incur or permit any Lien
upon any of its assets or properties, whether now owned or hereafter acquired,
or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to its common stock, to make or repay loans or advances to the
Lessee or any other Subsidiary, to Guarantee Indebtedness of the Lessee or any
other Subsidiary or to transfer any of its property or assets to the Lessee or
any Subsidiary of the Lessee; provided, that (i) the foregoing shall not apply
to restrictions or conditions imposed by law or by this Agreement, any other
Transaction Document or the SouthTrust Loan Facility Agreement, (ii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is sold and such
sale is permitted hereunder, (iii) clause (a) shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions and conditions apply only to the property
or assets securing such Indebtedness, and (iv) clause (a) shall not apply to
customary provisions in leases restricting the assignment thereof.
SECTION 5.22 Sale and Leaseback Transactions. The Lessee will not, and
will not permit any of the Subsidiaries to, enter into any arrangement, directly
or indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred; provided, however, the Lessee may engage in such sale and
34
leaseback transactions so long as the aggregate fair market value of all assets
sold and leased back does not exceed $30,000,000 during the term of this
Agreement.
SECTION 5.23 Amendment to Material Documents. The Lessee will not, and
will not permit any Subsidiary to, amend, modify or waive any of its rights in a
manner materially adverse to the Funding Parties under its certificate of
incorporation, bylaws or other organizational documents.
SECTION 5.24 Accounting Changes. The Lessee will not, and will not permit
any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Lessee or of any Subsidiary, except to change the fiscal year of a
Subsidiary to conform its fiscal year to that of the Lessee.
SECTION 5.25 Further Assurances. Upon the written request of the Lessor or
the Agent, the Lessee, at its own cost and expense, will cause all financing
statements (including precautionary financing statements), fixture filings and
other similar documents, to be recorded or filed at such places and times in
such manner, as may be necessary to preserve, protect and perfect the interest
of the Lessor, the Agent, the Lease Participant and the Lenders in the related
Leased Property as contemplated by the Operative Documents.
SECTION 5.26 Additional Required Appraisals. If, as a result of any change
in Applicable Law after the date hereof, an appraisal of all or any of the
Leased Properties is required during the Lease Term under Applicable Law with
respect to any Funding Party's interest therein, such Funding Party's Funded
Amount with respect thereto or the Operative Documents, then the Lessee shall
pay the reasonable cost of such appraisal.
SECTION 6
TRANSFERS BY LESSOR AND LENDERS
SECTION 6.1 Lessor Transfers. The Lessor shall not assign, convey or
otherwise transfer all or any portion of its right, title or interest in, to or
under any Leased Property (except pursuant to the Lease Participation Agreement
and Article V of the Lease) or any of the Operative Documents without the prior
written consent of the Lenders and the Lessee, which consent shall not be
unreasonably withheld, provided that the Lessor may make any such assignment,
conveyance or transfer to any other Funding Party or any Affiliate of any
Funding Party, without such consent. Any proposed transferee of the Lessor shall
make the representation set forth in Section 4.2(b) to the other parties hereto.
35
SECTION 6.2 Lender Transfers. No Lender may grant participations in its
Commitment or sell Loans or participations in its Loan and Commitment to any
Person (other than an Affiliate) without the prior written consent of the
Lessee, which consent shall not be unreasonably withheld. Any approved
participation buyer shall not receive voting or waiver rights except with
respect to postponing maturities, decreasing interest rates, releasing all or
substantially all of the collateral or increasing principal amounts. Assignments
will be permitted only with the prior written consent of the Lessee and the
Agent, which consent shall not be unreasonably withheld, obtained at least 14
days prior to any proposed assignment, and the payment of a processing fee of
$2,500 by the assignor or assignee Lender (as agreed between such Persons) to
the Agent. Assignments shall be evidenced by an assignment and assumption
agreement in substantially the form set forth as Exhibit J.
SECTION 6.3 Distribution and Application of Rent Payments.
(a) Basic Rent. Each payment of Basic Rent (and any payment of
interest on overdue installments of Basic Rent) received by the Agent shall be
distributed pro rata to the Funding Parties to be applied to the amounts of
accrued and unpaid interest (including overdue interest) on the Loans and
accrued and unpaid Yield (including overdue Yield).
(b) Supplemental Rent. Each payment of Supplemental Rent received by
the Agent shall be paid to or upon the order of the Person owed the same in
accordance with the Operative Documents.
SECTION 6.4 Distribution and Application of Purchase Payment. With respect
to any Leased Property, the payment by the Lessee of:
(a) the purchase price for a consummated sale of such Leased
Property received by the Agent in connection with the Lessee's exercise of the
Purchase Option or Partial Purchase Option under Section 14.1 of the Lease or
the Lessee's or the Construction Agent's exercise of its option to purchase such
Leased Property under Section 5.3 of the Construction Agency Agreement, or
(b) the payment payable in connection with the Lessee's compliance
with its obligation to purchase the Leased Property in accordance with Section
14.2 or 14.3 of the Lease, or
(c) the Leased Property Balance therefor in accordance with Section
10.1 or Section 10.2 of the Lease;
shall be distributed by Agent as promptly as possible, to the Funding Parties
pro rata in accordance with, and for application to, their respective Funding
Party
36
Balances in respect of such Leased Property or Properties (including both that
portion of the A Loans and that portion of the B Loans allocated to such Leased
Property or Properties).
SECTION 6.5 Distribution and Application to Funding Party Balances of
Lessee Payment of Recourse Deficiency Amount Upon Exercise of Remarketing
Option. With respect to any Leased Property, the payment by the Lessee of the
Recourse Deficiency Amount to the Agent on the Lease Termination Date in
accordance with Section 14.6 or Section 14.7 of the Lease following the Lessee's
exercise of the Remarketing Option, shall be applied by the Agent to the accrued
and unpaid interest on, and the outstanding principal of, the A Loans and the A
Percentage of the Lessor Invested Amounts in respect of such Leased Property.
With respect to any Leased Property, the payment by the Lessee or the
Construction Agent of the Construction Failure Payment with respect thereto
pursuant to the Construction Agency Agreement shall be applied by the Agent,
first to the accrued and unpaid interest on, and the outstanding principal of,
the A Loans and the A Percentage of the Lessor Invested Amounts in respect of
such Leased Property, second to the accrued and unpaid interest on, and
outstanding principal of, the B Loans and the B Percentage of the Lessor
Invested Amounts related to such Leased Property and third to the accrued and
unpaid Yield on, and outstanding Lessor Invested Amount related to such Leased
Property.
SECTION 6.6 Distribution and Application to Funding Party Balances of
Remarketing Proceeds of Leased Property. (a) Any payments received by the Lessor
as proceeds from the sale of any Leased Property sold pursuant to the Lessee's
exercise of the Remarketing Option pursuant to Section 14.6 or 14.7 of the
Lease, shall be distributed (or applied, in the case of clause third below) by
the Lessor as promptly as possible (it being understood that any such payment
received by the Lessor on a timely basis and in accordance with the provisions
of the Lease shall be distributed on the date received in the funds so received)
in the following order of priority:
first, to the extent not previously deducted from such proceeds, to
the Agent and the Funding Parties as reimbursement for any and all
reasonable remarketing, sale, closing or other transfer costs, prorations
or commissions (including broker fees, appraisal costs, legal fees and
expenses and transfer taxes), paid or incurred by the Agent or any Funding
Party and not reimbursed by the Lessee, pro rata according to the amount
of such costs and fees;
second, to the Lease Participant and the Lenders pro rata for
application to their B Loans and the B Percentage of the Lessor Invested
Amounts in respect of all of the Leased Properties, an amount equal to
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their B Loans and the B Percentage of the Lessor Invested Amounts in
respect of all of the Leased Properties;
third, to the Lessor for application to the Lessor's Invested
Amounts in respect of all of the Leased Properties, an amount equal to the
Lessor's Invested Amounts in respect of all of the Leased Properties;
fourth, to the Funding Parties pro rata for application to any other
amount owing to the Funding Parties under the Operative Documents
(including accrued and unpaid interest on the Loans, accrued and unpaid
Yield and any outstanding principal of the A Loans and the A Percentage of
the Lessor Invested Amounts), an amount equal to such other amounts; and
fifth, (i) if sold by the Lessee pursuant to Section 14.6 of the
Lease, the excess, if any, to the Lessee, and (ii) otherwise, the excess,
if any, to the Lessor.
(b) Any payments received by the Lessor as proceeds from the sale of
any Leased Property sold following the payment of the Construction Failure
Payment shall be distributed (or applied, as appropriate) by the Lessor as
promptly as possible (it being understood that any such payment received
by the Lessor on a timely basis and in accordance with the provisions of
the Construction Agency Agreement shall be distributed on the date
received in the funds so received) in the following order of priority:
first, to the Funding Parties or the Agent, as the case may be, in
reimbursement of all reasonable costs, expenses and taxes, if any,
incurred by any of them to complete the construction of such Leased
Property, maintain and insure such Leased Property, remarket such Leased
Property and sell such Leased Property, pro rata according to the amount
of such costs, expenses and taxes;
second, to the Funding Parties pro rata for application to their
Funding Party Balances in respect to such Leased Property (including both
that portion of the A Loans and the A Percentage of the Lessor Invested
Amounts and that portion of the B Loans and the B Percentage of the Lessor
Invested Amounts allocated to such Leased Property), an amount equal to
such Funding Party Balances in respect of such Leased Property; and
third, to the Lessor.
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SECTION 6.7 Distribution and Application of Payments Received When an
Event of Default Exists or Has Ceased to Exist Following Rejection of the Lease.
(a) Proceeds of Leased Property. Any payments received by the Lessor
or the Agent when an Event of Default exists (or has ceased to exist by reason
of a rejection of the Lease in a proceeding with respect to the Lessee described
in Article XII (i), (j) or (k) of the Lease), as
(i) proceeds from the sale of any or all of the Leased
Property sold pursuant to the exercise of the Lessor's remedies pursuant
to Article XIII of the Lease, or
(ii) proceeds of any amounts from any insurer or any
Governmental Authority in connection with an Event of Loss or Event of
Taking
shall if received by the Lessor be paid to the Agent as promptly as possible,
and shall be distributed or applied in the following order of priority prior to
the Release Date:
first, to the Agent for any amounts reasonably expended by it
in connection with such Leased Property or the Operative Documents and not
previously reimbursed to it;
second, to the Funding Parties pro rata for application to
their Funding Party Balances in respect of all of the Leased Properties,
an amount equal to such Funding Party Balances; and
third, to the Lessee or the Person or Persons otherwise
legally entitled thereto, the excess, if any.
(b) Proceeds of Recoveries from Lessee. Any payments received by any
Funding Party when an Event of Default exists (or has ceased to exist by reason
of a rejection of the Lease in a proceeding with respect to the Lessee described
in Article XII (i), (j) or (k) of the Lease), from the Lessee as a payment in
accordance with the Lease shall be paid to the Agent as promptly as possible,
and shall then be distributed or applied by the Agent as promptly as possible in
the order of priority set forth in paragraph (a) above.
SECTION 6.8 Distribution of Other Payments. All payments under Section 7.6
of this Master Agreement shall be made first, to the Funding Parties, pro rata,
until their Funding Party Balances have been paid in full, and second, to the
Lessor who shall be entitled to retain all such remaining amounts.
39
Except as otherwise provided in this Section 6, any payment received by the
Lessor which is to be paid to Agent pursuant hereto or for which provision as to
the application thereof is made in an Operative Document but not elsewhere in
this Section 6 shall, if received by the Lessor, be paid forthwith to the Agent
and when received shall be distributed forthwith by the Agent to the Person and
for the purpose for which such payment was made in accordance with the terms of
such Operative Document.
SECTION 6.9 Timing of Agent Distributions. Payments received by the Agent
in immediately available funds before 12:00 p.m. (noon), Atlanta, Georgia time,
on any Business Day shall be distributed to the Funding Parties in accordance
with and to the extent provided in this Section 6 on such Business Day. Payments
received by the Agent in immediately available funds after 12:00 p.m. (noon),
Atlanta, Georgia time shall be distributed to the Funding Parties in accordance
with and to the extent provided in this Section 6 on the next Business Day.
SECTION 6.10 Release of Leased Properties. (a) If the Lessee shall at any
time purchase any or all of the Leased Properties pursuant to Section 13.3 or
Article 14 of the Lease, or if any or all of the Leased Properties shall be sold
in accordance with, and the Lessee otherwise satisfy each of the obligations and
conditions set forth in, Section 14.6 of the Lease in respect thereof, then,
upon application of such amounts to prepay the related Loans pursuant to this
Master Agreement and the Loan Agreement and the Agent's and the Lenders' receipt
of all accrued interest and any other payments due and owing from the Lessee
and/or the Lessor to the Agent and the Lenders on such date in respect thereof,
such Leased Property or Properties, as the case may be, shall be released from
the applicable Mortgage and the Assignment of Lease and Rents, to the extent
relating to such Leased Property or Properties.
(b) Upon the termination of the Lenders' Commitments and the payment
in full of all of the Loans and all other amounts owing by the Lessee and/or the
Lessor hereunder or under any other Operative Document to the Lessor, the Agent
and the Lenders (other than unasserted indemnities), the Leased Properties shall
be released from the Mortgages and Assignments of Lease and Rents.
(c) Upon request of the Lessor or the Lessee following a release of
any Leased Property described in clause (a) or (b) above, the Agent shall, at
the sole cost and expense of the Lessee, execute and deliver to the Lessor or
the requesting Lessee such documents as the Lessor or the Lessee shall
reasonably request to evidence such release, including, if requested, a release
of the Assignments of Lease and Rents to the extent relating to such Leased
Property.
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SECTION 7
INDEMNIFICATION
SECTION 7.1 General Indemnification. The Lessee agrees, whether or not any
of the transactions contemplated hereby shall be consummated, to assume
liability for, and to indemnify, protect, defend, save and hold harmless each
Indemnitee, on an After-Tax Basis, from and against, any and all Claims that may
be imposed on, incurred by or asserted, or threatened to be asserted, against
such Indemnitee (whether because of action or omission by such Indemnitee or
otherwise), whether or not such Indemnitee shall also be indemnified as to any
such Claim by any other Person and whether or not such Claim arises or accrues
prior to any Closing Date or after the Lease Termination Date, in any way
relating to or arising out of:
(a) any of the Operative Documents or any of the transactions
contemplated thereby, and any amendment, modification or waiver in respect
thereof; or
(b) any Land, any Building or any part thereof or interest therein;
(c) the purchase, design, construction, preparation, installation,
inspection, delivery, non-delivery, acceptance, rejection, ownership,
management, possession, operation, rental, lease, sublease, repossession,
maintenance, repair, alteration, modification, addition, substitution,
storage, transfer of title, redelivery, use, financing, refinancing,
disposition, operation, condition, sale (including, without limitation,
any sale pursuant to the Lease), return or other disposition of all or any
part of any interest in any Leased Property or the imposition of any Lien
(or incurring of any liability to refund or pay over any amount as a
result of any Lien) thereon, including, without limitation: (1) Claims or
penalties arising from any violation or alleged violation of law or in
tort (strict liability or otherwise), (2) latent or other defects, whether
or not discoverable, (3) any Claim based upon a violation or alleged
violation of the terms of any restriction, easement, condition or covenant
or other matter affecting title to any Leased Property or any part
thereof, (4) the making of any Alterations in violation of any standards
imposed by any insurance policies required to be maintained by the Lessee
pursuant to the Lease which are in effect at any time with respect to any
Leased Property or any part thereof, (5) any Claim for patent, trademark
or copyright infringement, (6) Claims arising from any public improvements
with respect to any Leased Property resulting in any charge or special
assessments being levied against any Leased Property or any Claim for
utility "tap-in" fees, and (7) Claims for personal injury or real or
personal property damage occurring, or allegedly occurring, on any Land,
Building
41
or Leased Property;
(d) the offer, issuance, sale or delivery of the Notes by the
Lessee;
(e) the breach or alleged breach by the Lessee of any representation
or warranty made by it or deemed made by it in any Operative Document or
any certificate required to be delivered by any Operative Document;
(f) the retaining or employment of any broker, finder or financial
advisor by the Lessee to act on its behalf in connection with this Master
Agreement, or the incurring of any fees or commissions to which the
Lessor, the Agent, the Lease Participant or any Lender might be subjected
by virtue of their entering into the transactions contemplated by this
Master Agreement;
(g) the existence of any Lien on or with respect to any Leased
Property, the Construction, any Basic Rent or Supplemental Rent, title
thereto, or any interest therein, including any Liens which arise out of
the possession, use, occupancy, construction, repair or rebuilding of any
Leased Property or by reason of labor or materials furnished or claimed to
have been furnished to the Construction Agent, the Lessee, or any of its
contractors or agents or by reason of the financing of any personalty or
equipment purchased or leased by the Lessee or Alterations constructed by
the Lessee, except in all cases the Liens listed as item (ii) in the
definition of Permitted Encumbrances;
(h) the transactions contemplated hereby or by any other Operative
Document, in respect of the application of Parts 4 and 5 of Subtitle B of
Title I of ERISA and any prohibited transaction described in Section
4975(c) of the Code; or
(i) any act or omission by the Lessee under any Purchase Agreement
or any other Operative Document, and any breach of any requirement,
condition, restriction or limitation in any Deed or Purchase Agreement;
provided, however, the Lessee shall not be required to indemnify any Indemnitee
under this Section 7.1 for any of the following: (1) any Claim to the extent
that such Claim results from the willful misconduct or gross negligence of such
Indemnitee (other than gross negligence or willful misconduct imputed to such
Indemnitee solely by reason of its interest in any Leased Property), or (2) any
Claim resulting from Lessor Liens which the Lessor Indemnitee Group is
responsible for discharging under the Operative Documents; and, provided,
further, that with respect to each Construction Land Interest, the Lessee's
indemnity obligations with respect to such Leased Property shall be
governed
42
solely by Section 3.4 of the Construction Agency Agreement during the
Construction Term therefor. It is expressly understood and agreed that the
indemnity provided for herein shall survive the expiration or termination of,
and shall be separate and independent from any other remedy under this Master
Agreement, the Lease or any other Operative Document.
SECTION 7.2 Environmental Indemnity. In addition to and without limitation
of Section 7.1 or Section 3.3 of the Construction Agency Agreement, the Lessee
agrees to indemnify, hold harmless and defend each Indemnitee, on an After-Tax
Basis, from and against any and all claims (including without limitation third
party claims for personal injury or real or personal property damage), losses
(including but not limited to any loss of value of any Leased Property),
damages, liabilities, fines, penalties, charges, suits, settlements, demands,
administrative and judicial proceedings (including informal proceedings and
investigations) and orders, judgments, remedial action, requirements,
enforcement actions of any kind, and all reasonable costs and expenses actually
incurred in connection therewith (including, but not limited to, reasonable
attorneys' and/or paralegals' fees and expenses), including, but not limited to,
all costs incurred in connection with any investigation or monitoring of site
conditions or any clean-up, remedial, removal or restoration work by any
federal, state or local government agency, arising directly or indirectly, in
whole or in part, out of
(i) the presence on or under any Land of any Hazardous Materials, or
any releases or discharges of any Hazardous Materials on, under, from or
onto any Land,
(ii) any activity, including, without limitation, construction,
carried on or undertaken on or off any Land, and whether by the Lessee or
any predecessor in title or any employees, agents, contractors or
subcontractors of the Lessee or any predecessor in title, or any other
Person, in connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous
Materials that at any time are located or present on or under or that at
any time migrate, flow, percolate, diffuse or in any way move onto or
under any Land,
(iii) loss of or damage to any property or the environment
(including, without limitation, clean-up costs, response costs,
remediation and removal costs, cost of corrective action, costs of
financial assurance, fines and penalties and natural resource damages), or
death or injury to any Person, and all expenses associated with the
protection of wildlife, aquatic species, vegetation, flora and fauna, and
any mitigative action required by or under Environmental Laws, in each
case to the extent
43
related to any Leased Property,
(iv) any claim concerning any Leased Property's lack of compliance
with Environmental Laws, or any act or omission causing an environmental
condition on or with respect to any Leased Property that requires
remediation or would allow any governmental agency to record a lien or
encumbrance on the land records, or
(v) any residual contamination on or under any Land, or affecting
any natural resources on any Land, and to any contamination of any
property or natural resources arising in connection with the generation,
use, handling, storage, transport or disposal of any such Hazardous
Materials on or from any Leased Property; in each case irrespective of
whether any of such activities were or will be undertaken in accordance
with applicable laws, regulations, codes and ordinances;
in any case with respect to the matters described in the foregoing clauses (i)
through (v) that arise or occur
(w) prior to or during the Lease Term,
(x) at any time during which the Lessee or any Affiliate thereof
owns any interest in or otherwise occupies or possesses any Leased
Property or any portion thereof,
(y) during any period after and during the continuance of any Event
of Default or
(z) during any period of three years following the date an
Indemnitee takes possession of any Leased Property;
provided, however, the Lessee shall not be required to indemnify any Indemnitee
under this Section 7.2 for any Claim to the extent that such Claim results from
the willful misconduct or gross negligence of such Indemnitee (other than gross
negligence or willful misconduct imputed to such Indemnitee solely by reason of
its interest in any Leased Property). It is expressly understood and agreed that
the indemnity provided for herein shall survive the expiration or termination of
and shall be separate and independent from any other remedy under this Master
Agreement, the Lease or any other Operative Document.
SECTION 7.3 Proceedings in Respect of Claims. With respect to any amount
that the Lessee is requested by an Indemnitee to pay by reason of Section 7.1 or
7.2, such Indemnitee shall, if so requested by the Lessee and prior to any
payment, submit such additional information to the Lessee as the
44
Lessee may reasonably request and which is in the possession of such Indemnitee
to substantiate properly the requested payment. In case any action, suit or
proceeding shall be brought against any Indemnitee, such Indemnitee shall notify
the Lessee of the commencement thereof (provided that the failure of such
Indemnitee to promptly notify the Lessee shall not affect the Lessee's
obligation to indemnify hereunder except to the extent that the Lessee's ability
to contest is materially prejudiced by such failure), and the Lessee shall be
entitled, at its expense, to participate in, and, to the extent that the Lessee
desires to, assume and control the defense thereof with counsel reasonably
satisfactory to such Indemnitee; provided, however, that such Indemnitee may
pursue a motion to dismiss such Indemnitee from such action, suit or proceeding
with counsel of such Indemnitee's choice at the Lessee's expense; and provided
further that the Lessee may assume and control the defense of such proceeding
only if the Lessee shall have acknowledged in writing its obligations to fully
indemnify such Indemnitee in respect of such action, suit or proceeding, the
Lessee shall pay all reasonable costs and expenses related to such action, suit
or proceeding as and when incurred and the Lessee shall keep such Indemnitee
fully apprised of the status of such action suit or proceeding and shall provide
such Indemnitee with all information with respect to such action suit or
proceeding as such Indemnitee shall reasonably request; and, provided further,
that the Lessee shall not be entitled to assume and control the defense of any
such action, suit or proceeding if and to the extent that, (A) in the reasonable
opinion of such Indemnitee, (x) such action, suit or proceeding involves any
possibility of imposition of criminal liability or any material risk of civil
liability in excess of $5,000,000 on such Indemnitee or (y) such action, suit or
proceeding will involve a material risk of the sale, forfeiture or loss of, or
the creation of any Lien (other than a Permitted Encumbrance) on any Leased
Property or any part thereof unless the Lessee shall have posted a bond or other
security satisfactory to the relevant Indemnitees in respect to such risk or (z)
the control of such action, suit or proceeding would involve an actual or
potential conflict of interest, (B) such proceeding involves Claims not fully
indemnified by the Lessee which the Lessee and the Indemnitee have been unable
to sever from the indemnified claim(s), or (C) an Event of Default has occurred
and is continuing. The Indemnitee may participate in a reasonable manner at its
own expense and with its own counsel in any proceeding conducted by the Lessee
in accordance with the foregoing.
If the Lessee fails to fulfill the conditions to the Lessee's assuming the
defense of any claim on or prior to the date that is 15 days prior to the date
that an answer or response is required, the Indemnitee may undertake such
defense, at the Lessee's expense. The Lessee shall not enter into any settlement
or other compromise with respect to any Claim which is entitled to be
indemnified under Section 7.1 or 7.2 without the prior written consent of the
related Indemnitee, which consent shall not be unreasonably withheld. Unless an
Event of Default shall have occurred and be continuing, no Indemnitee shall
45
enter into any settlement or other compromise with respect to any claim which is
entitled to be indemnified under Section 7.1 or 7.2 without the prior written
consent of the Lessee, which consent shall not be unreasonably withheld, unless
such Indemnitee waives its right to be indemnified under Section 7.1 or 7.2 with
respect to such Claim.
Upon payment in full of any Claim by the Lessee pursuant to Section 7.1 or
7.2 to or on behalf of an Indemnitee, the Lessee, without any further action,
shall be subrogated to any and all claims that such Indemnitee may have relating
thereto (other than claims in respect of insurance policies maintained by such
Indemnitee at its own expense), and such Indemnitee shall execute such
instruments of assignment and conveyance, evidence of claims and payment and
such other documents, instruments and agreements as may be reasonably necessary
to preserve any such claims and otherwise cooperate with the Lessee and give
such further assurances as are reasonably necessary or advisable to enable the
Lessee vigorously to pursue such claims.
Any amount payable to an Indemnitee pursuant to Section 7.1 or 7.2 shall
be paid to such Indemnitee promptly upon, but in no event later than 30 days
after, receipt of a written demand therefor from such Indemnitee, accompanied by
a written statement describing in reasonable detail the basis for such indemnity
and the computation of the amount so payable.
If for any reason the indemnification provided for in Section 7.1 or 7.2
is unavailable to an Indemnitee or is insufficient to hold an Indemnitee
harmless, then the Lessee agrees to contribute to the amount paid or payable by
such Indemnitee as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by such Indemnitee on the one hand and by the Lessee on the other hand but also
the relative fault of such Indemnitee as well as any other relevant equitable
considerations. It is expressly understood and agreed that the right to
contribution provided for herein shall survive the expiration or termination of
and shall be separate and independent from any other remedy under this Master
Agreement, the Lease or any other Operative Document.
SECTION 7.4 General Tax Indemnity. (a) Tax Indemnity. Except as otherwise
provided in this Section 7.4, the Lessee shall pay on an After-Tax Basis, and on
written demand shall indemnify and hold each Tax Indemnitee harmless from and
against, any and all fees (including, without limitation, documentation,
recording, license and registration fees), taxes (including, without limitation,
income, gross receipts, sales, rental, use, turnover, value-added, property,
excise and stamp taxes), levies, imposts, duties, charges, assessments or
withholdings of any nature whatsoever, together with any penalties, fines or
interest thereon or additions thereto (any of the foregoing
46
being referred to herein as "Taxes" and individually as a "Tax" (for the
purposes of this Section 7.4, the definition of "Taxes" includes amounts imposed
on, incurred by, or asserted against each Tax Indemnitee as the result of any
prohibited transaction, within the meaning of Section 406 or 407 of ERISA or
Section 4975(c) of the Code, arising out of the transactions contemplated hereby
or by any other Operative Document)) imposed on or with respect to any Tax
Indemnitee, the Lessee, any Leased Property or any portion thereof or any Land,
or any sublessee or user thereof, by the United States or by any state or local
government or other taxing authority in the United States in connection with or
in any way relating to (i) the acquisition, financing, mortgaging, construction,
preparation, installation, inspection, delivery, non-delivery, acceptance,
rejection, purchase, ownership, possession, rental, lease, sublease,
maintenance, repair, storage, transfer of title, redelivery, use, operation,
condition, sale, return or other application or disposition of all or any part
of any Leased Property or the imposition of any Lien (or incurrence of any
liability to refund or pay over any amount as a result of any Lien) thereon,
(ii) Basic Rent or Supplemental Rent or the receipts or earnings arising from or
received with respect to any Leased Property or any part thereof, or any
interest therein or any applications or dispositions thereof, (iii) any other
amount paid or payable pursuant to the Notes, or any other Operative Documents,
(iv) any Leased Property, any Land or any part thereof or any interest therein
(including, without limitation, all assessments payable in respect thereof,
including, without limitation, all assessments noted on the related Title
Policy), (v) all or any of the Operative Documents, any other documents
contemplated thereby, any amendments and supplements thereto, and (vi) otherwise
with respect to or in connection with the transactions contemplated by the
Operative Documents. Notwithstanding the foregoing, during the Construction Term
for any Construction Land Interest, (i) the Lessee shall only be obligated to
indemnify the Lessor and its Affiliates, successors, permitted assigns,
permitted transferees, employees, officers, directors and agents, with respect
to Taxes related to such Construction Land Interest and (ii) Lessor hereby
indemnifies the other Tax Indemnitees (as defined in clause (ii) of the
definition thereof) for such Taxes, to the extent that Lessor receives payment
therefor from the Lessee.
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(b) Exclusions from General Tax Indemnity. Section 7.4(a) shall not
apply to:
(i) Taxes on, based on, or measured by or with respect to net
income of the Lessor, the Lease Participant and the Lenders (including,
without limitation, minimum Taxes, capital gains Taxes, Taxes on or
measured by items of tax preference or alternative minimum Taxes) other
than (A) any such Taxes that are, or are in the nature of, sales, use,
license, rental or property Taxes, and (B) withholding Taxes imposed by
the United States or any state in which Leased Property is located (i) on
payments with respect to the Notes, to the extent imposed by reason of a
change in Applicable Law occurring after the date on which the holder of
such Note became the holder of such Note or (ii) on Rent, to the extent
the net payment of Rent after deduction of such withholding Taxes would be
less than amounts currently payable with respect to the Funded Amounts;
(ii) Taxes on, based on, or in the nature of or measured by
Taxes on doing business, business privilege, franchise, capital, capital
stock, net worth, or mercantile license or similar taxes other than (A)
any increase in such Taxes imposed on such Tax Indemnitee by any state in
which Leased Property is located, net of any decrease in such taxes
realized by such Tax Indemnitee, to the extent that such tax increase
would not have occurred if on each Funding Date the Lessor, the Lease
Participant and the Lenders had advanced funds to the Lessee or the
Construction Agent in the form of loans secured by the Leased Property in
an amount equal to the Funded Amounts funded on such Funding Date, with
debt service for such loans equal to the Basic Rent payable on each
Payment Date and a principal balance at the maturity of such loans in a
total amount equal to the Funded Amounts at the end of the Lease Term, or
(B) any Taxes that are or are in the nature of sales, use, rental, license
or property Taxes relating to any Leased Property;
(iii) Taxes that are based on, or measured by, the fees or
other compensation received by a Person acting as Agent (in its individual
capacities) or any Affiliate of any thereof for acting as trustee under
the Loan Agreement or the Lease Participation Agreement;
(iv) Taxes that result from any act, event or omission, or are
attributable to any period of time, that occurs after the earlier of (A)
the expiration of the Lease Term with respect to any Leased Property and,
if such Leased Property is required to be returned to the Lessor in
accordance with the Lease, such return and (B) the discharge in full of
the
48
Lessee's obligations to pay the Lease Balance, or any amount determined by
reference thereto, with respect to any Leased Property and all other
amounts due under the Lease, unless such Taxes relate to acts, events or
matters occurring prior to the earlier of such times or are imposed on or
with respect to any payments due under the Operative Documents after such
expiration or discharge;
(v) Taxes imposed on a Tax Indemnitee that result from any
voluntary sale, assignment, transfer or other disposition or bankruptcy by
such Tax Indemnitee or any related Tax Indemnitee of any interest in any
Leased Property or any part thereof, or any interest therein or any
interest or obligation arising under the Operative Documents, or from any
sale, assignment, transfer or other disposition of any interest in such
Tax Indemnitee or any related Tax Indemnitee, it being understood that
each of the following shall not be considered a voluntary sale: (A) any
substitution, replacement or removal of any of the Leased Property by the
Lessee, (B) any sale or transfer resulting from the exercise by the Lessee
of any termination option, any purchase option or sale option, (C) any
sale or transfer while an Event of Default shall have occurred and be
continuing under the Lease, and (D) any sale or transfer resulting from
the Lessor's exercise of remedies under the Lease;
(vi) any Tax which is being contested in accordance with the
provisions of Section 7.4(c), during the pendency of such contest;
(vii) any Tax that is imposed on a Tax Indemnitee as a result
of such Tax Indemnitee's gross negligence or willful misconduct (other
than gross negligence or willful misconduct imputed to such Tax Indemnitee
solely by reason of its interest in any Leased Property);
(viii) any Tax that results from a Tax Indemnitee engaging,
with respect to any Leased Property, in transactions unrelated to the
Leased Properties or the transactions contemplated by the Operative
Documents;
(ix) to the extent any interest, penalties or additions to tax
result in whole or in part from the failure of a Tax Indemnitee to file a
return that it is required to file in a proper and timely manner, unless
such failure (A) results from the transactions contemplated by the
Operative Documents in circumstances where the Lessee did not give timely
notice to such Tax Indemnitee (and such Tax Indemnitee otherwise had no
actual knowledge) of such filing requirement that would have permitted a
proper and timely filing of such return, or (B) results from the failure
of the Lessee to supply information necessary for the proper and timely
filing of
49
such return that was not in the possession of such Tax Indemnitee; and
(x) any Tax that results from the breach by the Lessor of its
representation and warranty made in Section 4.3(b) or the breach of any
Lender of its representation and warranty made in Section 4.4(b).
(c) Contests. If any claim shall be made against any Tax Indemnitee
or if any proceeding shall be commenced against any Tax Indemnitee (including a
written notice of such proceeding) for any Taxes as to which the Lessee may have
an indemnity obligation pursuant to Section 7.4, or if any Tax Indemnitee shall
determine that any Taxes as to which the Lessee may have an indemnity obligation
pursuant to Section 7.4 may be payable, such Tax Indemnitee shall promptly
notify the Lessee. The Lessee shall be entitled, at its expense, to participate
in, and, to the extent that the Lessee desires to, assume and control the
defense thereof; provided, however, that the Lessee shall have acknowledged in
writing its obligation to fully indemnify such Tax Indemnitee in respect of such
action, suit or proceeding if the contest is unsuccessful; and, provided
further, that the Lessee shall not be entitled to assume and control the defense
of any such action, suit or proceeding (but the Tax Indemnitee shall then
contest, at the sole cost and expense of the Lessee, on behalf of the Lessee
with representatives reasonably satisfactory to the Lessee) if and to the extent
that, (A) in the reasonable opinion of such Tax Indemnitee, such action, suit or
proceeding (x) involves any meaningful risk of imposition of criminal liability
or any material risk of civil liability in excess of $1,000,000 on such Tax
Indemnitee or (y) will involve a material risk of the sale, forfeiture or loss
of, or the creation of any Lien (other than a Permitted Encumbrance) on any
Leased Property or any part thereof unless the Lessee shall have posted a bond
or other security satisfactory to the relevant Tax Indemnitees in respect to
such risk, (B) such proceeding involves Claims not fully indemnified by the
Lessee which the Lessee and the Tax Indemnitee have been unable to sever from
the indemnified claim(s), (C) an Event of Default has occurred and is
continuing, (D) such action, suit or proceeding involves matters which extend
beyond or are unrelated to the Transaction and if determined adversely could be
materially detrimental to the interests of such Tax Indemnitee notwithstanding
indemnification by the Lessee or (E) such action, suit or proceeding involves
the federal or any state income tax liability of the Tax Indemnitee. With
respect to any contests controlled by a Tax Indemnitee, (i) if such contest
relates to the federal or any state income tax liability of such Tax Indemnitee,
such Tax Indemnitee shall be required to conduct such contest only if the Lessee
shall have provided to such Tax Indemnitee an opinion of independent tax
counsel selected by the Tax Indemnitee and reasonably satisfactory to the Lessee
stating that a reasonable basis exists to contest such claim or (ii) in the case
of an appeal of an adverse determination of any contest relating to any Taxes,
an opinion of such counsel to the effect that such appeal is more likely than
not to
50
be successful, provided, however, such Tax Indemnitee shall in no event be
required to appeal an adverse determination to the United States Supreme Court.
The Tax Indemnitee may participate in a reasonable manner at its own expense and
with its own counsel in any proceeding conducted by the Lessee in accordance
with the foregoing.
Each Tax Indemnitee shall at the Lessee's expense supply the Lessee with
such information and documents in such Tax Indemnitee's possession as are
reasonably requested by the Lessee and are necessary or advisable for the Lessee
to participate in any action, suit or proceeding to the extent permitted by this
Section 7.4. Unless an Event of Default shall have occurred and be continuing,
no Tax Indemnitee shall enter into any settlement or other compromise with
respect to any Claim which is entitled to be indemnified under this Section 7.4
without the prior written consent of the Lessee, which consent shall not be
unreasonably withheld, unless such Tax Indemnitee waives its right to be
indemnified under this Section 7.4 with respect to such Claim.
Notwithstanding anything contained herein to the contrary, (a) a Tax
Indemnitee will not be required to contest (and the Lessee shall not be
permitted to contest) a claim with respect to the imposition of any Tax if such
Tax Indemnitee shall waive its right to indemnification under this Section 7.4
with respect to such claim (and any related claim with respect to other taxable
years the contest of which is precluded as a result of such waiver) and (b) no
Tax Indemnitee shall be required to contest any claim if the subject matter
thereof shall be of a continuing nature and shall have previously been decided
adversely, unless there has been a change in law which in the opinion of Tax
Indemnitee's counsel creates substantial authority for the success of such
contest. Each Tax Indemnitee and the Lessee shall consult in good faith with
each other regarding the conduct of such contest controlled by either.
(d) Reimbursement for Tax Savings. If (x) a Tax Indemnitee shall
obtain a credit or refund of any Taxes paid by the Lessee pursuant to this
Section 7.4 or (y) by reason of the incurrence or imposition of any Tax for
which a Tax Indemnitee is indemnified hereunder or any payment made to or for
the account of such Tax Indemnitee by the Lessee pursuant to this Section 7.4,
such Tax Indemnitee at any time realizes a reduction in any Taxes for which the
Lessee is not required to indemnify such Tax Indemnitee pursuant to this Section
7.4, which reduction in Taxes was not taken into account in computing such
payment by the Lessee to or for the account of such Tax Indemnitee, then such
Tax Indemnitee shall promptly pay to the Lessee (xx) the amount of such credit
or refund, together with the amount of any interest received by such Tax
Indemnitee on account of such credit or refund or (yy) an amount equal to such
reduction in Taxes, as the case may be; provided that no such payment shall be
made so long as an Event of Default shall have occurred and be continuing and,
51
provided, further, that the amount payable to the Lessee by any Tax Indemnitee
pursuant to this Section 7.4(d) shall not at any time exceed the aggregate
amount of all indemnity payments made by the Lessee under this Section 7.4 to
such Tax Indemnitee with respect to the Taxes which gave rise to the credit or
refund or with respect to the Tax which gave rise to the reduction in Taxes less
the amount of all prior payments made to the Lessee by such Tax Indemnitee under
this Section 7.4(d). Each Tax Indemnitee agrees to act in good faith to claim
such refunds and other available Tax benefits, and take such other actions as
may be reasonable to minimize any payment due from the Lessee pursuant to this
Section 7.4. The disallowance or reduction of any credit, refund or other tax
savings with respect to which a Tax Indemnitee has made a payment to the Lessee
under this Section 7.4(d) shall be treated as a Tax for which the Lessee is
obligated to indemnify such Tax Indemnitee hereunder without regard to Section
7.4(b) hereof.
(e) Payments. Any Tax indemnifiable under this Section 7.4 shall be
paid directly when due to the applicable taxing authority if direct payment is
practicable and permitted. If direct payment to the applicable taxing authority
is not permitted or is otherwise not made, any amount payable to a Tax
Indemnitee pursuant to Section 7.4 shall be paid within thirty (30) days after
receipt of a written demand therefor from such Tax Indemnitee accompanied by a
written statement describing in reasonable detail the amount so payable, but not
before the date that the relevant Taxes are due. Any payments made pursuant to
Section 7.4 shall be made to the Tax Indemnitee entitled thereto or the Lessee,
as the case may be, in immediately available funds at such bank or to such
account as specified by the payee in written directions to the payor, or, if no
such direction shall have been given, by check of the payor payable to the order
of the payee by certified mail, postage prepaid at its address as set forth in
this Master Agreement. Upon the request of any Tax Indemnitee with respect to a
Tax that the Lessee are required to pay, the Lessee shall furnish to such Tax
Indemnitee the original or a certified copy of a receipt for the Lessee's
payment of such Tax or such other evidence of payment as is reasonably
acceptable to such Tax Indemnitee.
(f) Reports. If the Lessee knows of any report, return or statement
required to be filed with respect to any Taxes that are subject to
indemnification under this Section 7.4, the Lessee shall, if the Lessee is
permitted by Applicable Law, timely file such report, return or statement (and,
to the extent permitted by law, show ownership of the applicable Leased Property
in the Lessee); provided, however, that if the Lessee is not permitted by
Applicable Law or does not have access to the information required to file any
such report, return or statement, the Lessee will promptly so notify the
appropriate Tax Indemnitee, in which case Tax Indemnitee will file such report.
In any case in which the Tax Indemnitee will file any such report, return or
statement, the Lessee shall, upon written request of such Tax Indemnitee,
prepare such report, return or
52
statement for filing by such Tax Indemnitee or, if such Tax Indemnitee so
requests, provide such Tax Indemnitee with such information as is reasonably
available to the Lessee.
(g) Verification. At the Lessee's request, the amount of any
indemnity payment by the Lessee or any payment by a Tax Indemnitee to the Lessee
pursuant to this Section 7.4 shall be verified and certified by an independent
public accounting firm selected by the Lessee and reasonably acceptable to the
Tax Indemnitee. Unless such verification shall disclose an error in the Lessee's
favor of 5% or more of the related indemnity payment, the costs of such
verification shall be borne by the Lessee, otherwise, such costs shall be borne
by the related Tax Indemnitee. In no event shall the Lessee have the right to
review the Tax Indemnitee's tax returns or receive any other confidential
information from the Tax Indemnitee in connection with such verification. The
Tax Indemnitee agrees to cooperate with the independent public accounting firm
performing the verification and to supply such firm with all information
reasonably necessary to permit it to accomplish such verification, provided that
the information provided to such firm by such Tax Indemnitee shall be for its
confidential use. The parties agree that the sole responsibility of the
independent public accounting firm shall be to verify the amount of a payment
pursuant to this Master Agreement and that matters of interpretation of this
Master Agreement are not within the scope of the independent accounting firm's
responsibilities.
SECTION 7.5 Increased Costs, etc.
(a) Illegality. Notwithstanding any other provision herein, if any
change in any Requirement of Law or in the interpretation or application thereof
shall make it unlawful for any Funding Party to make or maintain LIBOR Advances
as contemplated by this Master Agreement, (a) the commitment of such Funding
Party hereunder to continue LIBOR Advance as such and convert Funded Amounts to
LIBOR Advances shall forthwith be cancelled and (b) such Funding Party's Funded
Amounts then outstanding as LIBOR Advance, if any, shall be converted
automatically to Base Rate Advances on the respective last days of the then
current Rent Periods with respect to such Funded Amounts or within such earlier
period as required by law. If any such conversion of a LIBOR Advance occurs on a
day which is not the last day of the then current Rent Period with respect
thereto, the Lessee, shall pay to such Funding Party such amounts, if any, as
may be required pursuant to Section 7.5(f).
(b) Requirements of Law. In the event that Eurocurrency Reserve
Requirements or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Funding Party with any request or
53
directive (whether or not having the force of law) from any central bank or
other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Funding Party to any tax of any kind
whatsoever with respect to this Master Agreement, any Note or any LIBOR
Advance made by it, or change the basis of taxation of payments to such
Funding Party in respect thereof (except for taxes covered by Section
7.5(d) and changes in franchise taxes or the rate of tax on the overall
net income of such Funding Party);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of such Funding Party which is not otherwise included in
the determination of the Adjusted LIBO Rate; or
(iii) shall impose on such Funding Party any other condition;
and the result of any of the foregoing is to increase the cost to such Funding
Party, by an amount which such Funding Party deems to be material, of making,
converting into, continuing or maintaining LIBOR Advances or to reduce any
amount receivable hereunder in respect thereof then, in any such case, each
Lessee shall promptly pay such Funding Party, upon its demand, any additional
amounts necessary to compensate such Funding Party for such increased cost or
reduced amount receivable. If any Funding Party becomes entitled to claim any
additional amounts pursuant to this subsection in relation to such outstanding
LIBOR Advances, it shall promptly notify the Lessee, through the Agent, of the
event by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to this subsection submitted by such Funding
Party, through the Agent, to the Lessee in good faith and setting forth in
reasonable detail the calculation of such amounts shall be conclusive in the
absence of manifest error. The provisions of this paragraph (b) shall survive
the termination of this Master Agreement and the Lease and the payment of the
Notes and all other amounts payable under the Operative Documents.
(c) Capital Adequacy. In the event that any Funding Party or
corporation controlling such Funding Party shall have determined that any change
in any Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Funding Party or such corporation with
any request or directive regarding capital adequacy (whether or not having the
force of law) from any Governmental Authority made subsequent to the date hereof
does or shall have the effect of reducing the rate of return on such Funding
Party's capital as a consequence of its obligations
54
hereunder to a level below that which such Funding Party could have achieved but
for such change or compliance (taking into consideration such Funding Party's
policies with respect to capital adequacy) by an amount deemed by such Funding
Party to be material, then from time to time, after submission by such Funding
Party in good faith to the Lessee (with a copy to the Agent) of a written
request therefor setting forth in reasonable detail the calculation of such
amount (which request shall be conclusive in the absence of manifest error), the
Lessee, shall pay to such Funding Party such additional amount or amounts as
will compensate such Funding Party for such reduction to the extent imposed
generally on other lessees or borrowers with whom such Funding Party has similar
lease or credit arrangements (but in the case of outstanding Base Rate Advances,
without duplication of any amounts already covered by such Funding Party by
reason of an adjustment in the applicable Base Rate). The provisions of this
paragraph (c) shall survive the termination of this Master Agreement and the
Lease and the payment of the Notes and all other amounts payable under the
Operative Documents.
(d) Taxes. Subject to Section 7.5(e), all payments made by the
Lessee under the Lease and the other Operative Documents shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding, in the case of
the Agent and each Funding Party, net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Agent or such Funding Party, as the
case may be, as a result of a present or former connection between the
jurisdiction of the government or taxing authority imposing such tax and the
Agent or such Funding Party (excluding a connection arising solely from the
Agent or such Funding Party having executed, delivered or performed its
obligations or received a payment under, or enforced, this Master Agreement or
any other Operative Document) or any political subdivision or taxing authority
thereof or therein (all such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions and withholdings being hereinafter called "Withholding
Taxes"). If any Withholding Taxes are required to be withheld from any amounts
payable to the Agent or any Funding Party hereunder or under any other Operative
Document, the amounts so payable to the Agent or such Funding Party (so long as
such Funding Party is in compliance with Section 7.5(e), as appropriate) shall
be increased to the extent necessary to yield to the Agent or such Funding Party
(after payment of all Withholding Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in the Operative
Documents. Whenever any Withholding Taxes are payable by the Lessee, as promptly
as possible thereafter the Lessee shall send to the Agent for its own account or
for the account of such Funding Party, as the case may be, a certified copy of
an original official receipt received by the Lessee showing payment
55
thereof. If the Lessee fails to pay any Withholding Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Lessee shall indemnify the
Agent and the Funding Parties for any incremental taxes, interest or penalties
that may become payable by the Agent or any Funding Party as a result of any
such failure. The agreements in this subsection shall survive the termination of
this Master Agreement and the Lease and the payment of the Notes and all other
amounts payable under the Operative Documents.
(e) Tax Forms. Each Lender to this Master Agreement on the Initial
Closing Date that is not incorporated under the laws of the United States of
America or a state thereof agrees that, on or prior to the Initial Closing Date,
it will deliver to the Lessee and the Agent two duly completed copies of (i)
United States Internal Revenue Service Form 1001 or 4224 or successor applicable
form, as the case may be, and (ii) an Internal Revenue Service Form W-8 or W-9
or successor applicable form. Each such Lender also agrees to deliver to the
Lessee and the Agent two further copies of the said Form 1001 or 4224 and Form
W-8 or W-9, or successor applicable forms or other manner of certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Lessee, and such extensions or
renewals thereof as may reasonably be requested by the Lessee or the Agent,
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Funding Party from duly completing and delivering
any such form with respect to it and such Funding Party so advises the Lessee
and the Agent. Such Lender shall certify (i) in the case of a Form 1001 or 4224,
that it is entitled to receive payments under the Operative Documents without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax.
(f) Breakage Costs. The Lessee agrees to indemnify each Funding
Party and to hold each Funding Party harmless from any loss or expense which
such Funding Party may sustain or incur as a consequence of (a) default by the
Lessee in payment when due of the principal amount of or interest on any LIBOR
Advance, (b) default by the Lessee in making a borrowing or conversion after the
Lessee or the Construction Agent has given (or is deemed to have given) a notice
in accordance with this Master Agreement, (c) default by the Lessee in making
any prepayment of LIBOR Advances after the Lessee has given a notice thereof in
accordance with the provisions of the Operative Documents or (d) the making of a
prepayment, payment or conversion, of LIBOR Advances on a day which is not the
last day of a Rent Period with respect thereto,
56
including, without limitation, in each case, any such loss (other than
non-receipt of the Applicable Margin or, without duplication, anticipated
profits) or expense arising from the reemployment of funds obtained by it or
from fees payable to terminate the deposits from which such funds were obtained
(it being understood that any such calculation will be made on notional amounts
as the Funding Parties are not required to show that they matched deposits
specifically). A certificate as to any additional amounts payable pursuant to
this subsection submitted by such Funding Party, through the Agent, to the
Lessee in good faith shall be conclusive in the absence of manifest error. The
provisions of this paragraph (f) shall survive the termination of this Master
Agreement and the Lease and the payment of the Notes and all other amounts
payable under the Operative Documents.
(g) Action of Affected Funding Parties. Each Funding Party agrees to
use reasonable efforts (including reasonable efforts to change the booking
office for its Loans) to avoid or minimize any illegality pursuant to Section
7.5(a) or any amounts which might otherwise be payable pursuant to Section
7.5(c) or (d); provided, however, that such efforts shall not cause the
imposition on such Funding Party of any additional costs or legal or regulatory
burdens reasonably deemed by such Funding Party to be material and shall not be
deemed by such Funding Party to be otherwise contrary to its policies. In the
event that such reasonable efforts are insufficient to avoid all such illegality
or all amounts that might be payable pursuant to Section 7.5(c) or (d), then
such Funding Party (the "Affected Funding Party") shall use its reasonable
efforts to transfer to any other Funding Party (which itself is not then an
Affected Funding Party) its Loans and Commitment, subject to the provisions of
Section 6.2; provided, however, that such transfer shall not be deemed by such
Affected Funding Party, in its sole discretion, to be disadvantageous to it or
contrary to its policies. In the event that the Affected Funding Party is
unable, or otherwise is unwilling, so to transfer its Loans and Commitment, the
Lessee may designate an alternate lender (reasonably acceptable to the Agent) to
purchase the Affected Funding Party's Loans and Commitment, at par and including
accrued interest, and, subject to the provisions of Section 6.2, the Affected
Funding Party shall transfer its Commitment to such alternate lender and such
alternate lender shall become a Funding Party hereunder.
(h) Construction Land Interests. Any amounts payable by the Lessee
pursuant to this Section 7.5 with respect to Construction Land Interests during
the Construction Term therefor shall be paid with the proceeds of Advances.
SECTION 7.6 End of Term Indemnity. In the event that at the end of the
Lease Term for a Leased Property: (i) the Lessee elects the option set forth in
Section 14.6 of the Lease, and (ii) after the Lessor receives the sales proceeds
57
from such Leased Property under Section 14.6 or 14.7 of the Lease, together with
the Lessee's payment of the Recourse Deficiency Amount, the Lessor shall not
have received the entire Lease Balance, then, within 90 days after the end of
the Lease Term, the Lessor or the Agent may obtain, at the Lessee's sole cost
and expense, a report from the Appraiser (or, if the Appraiser is not available,
another appraiser reasonably satisfactory to the Lessor or the Agent, as the
case may be, and approved by the Lessee, such approval not to be unreasonably
withheld) in form and substance satisfactory to the Lessor and the Agent (the
"Report") to establish the reason for any decline in value of such Leased
Property from the Lease Balance. The Lessee shall promptly reimburse the Lessor
for the amount equal to such decline in value to the extent that the Report
indicates that such decline was due to
(w) extraordinary use, failure to maintain, to repair, to restore,
to rebuild or to replace, failure to comply with all Applicable Laws,
failure to use good workmanship, method of installation or removal or
maintenance, repair, rebuilding or replacement, or any other cause or
condition within the power of the Lessee to control or effect resulting in
the Building failing to be an office, store or warehouse of the type and
quality contemplated by the Appraisal (excepting in each case ordinary
wear and tear), or
(x) any Alteration made to, or any rebuilding of, the Leased
Property or any part thereof by the Lessee, or
(y) any restoration or rebuilding carried out by the Lessee or any
condemnation of any portion of the Leased Property pursuant to Article X
of the Lease, or
(z) any use of such Leased Property or any part thereof by the
Lessee other than as permitted by the Lease, or any act or omission
constituting a breach of any requirement, condition, restriction or
limitation set forth in the related Deed or the related Purchase
Agreement.
58
SECTION 8
MISCELLANEOUS
SECTION 8.1 Survival of Agreements. The representations, warranties,
covenants, indemnities and agreements of the parties provided for in the
Operative Documents, and the parties' obligations under any and all thereof,
shall survive the execution and delivery and the termination or expiration of
this Master Agreement and any of the Operative Documents, the transfer of any
Land to the Lessor as provided herein (and shall not be merged into any Deed),
any disposition of any interest of the Lessor in any Leased Property, the
purchase and sale of the Notes, payment therefor and any disposition thereof and
shall be and continue in effect notwithstanding any investigation made by any
party hereto or to any of the other Operative Documents and the fact that any
such party may waive compliance with any of the other terms, provisions or
conditions of any of the Operative Documents.
SECTION 8.2 Documentary Conventions. The Documentary Conventions shall
apply to this Master Agreement.
SECTION 8.3 Expenses. Whether or not the transactions herein contemplated
are consummated, the Lessee agrees to pay, as Supplemental Rent, all actual,
reasonable and documented out-of- pocket costs and expenses of the Lessor, the
Lease Participant, the Agent and the Lenders in connection with the preparation,
execution and delivery of the Operative Documents and the documents and
instruments referred to therein and any amendment, waiver or consent relating
thereto (including, without limitation, the fees and disbursements of ▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇) and of the Lessor, the Agent, the Lease Participant and the
Lenders in connection with the enforcement of the Operative Documents and the
documents and instruments referred to therein (including, without limitation,
the reasonable fees and disbursements of counsel for the Lessor, the Agent, the
Lease Participant and the Lenders). Notwithstanding the foregoing, all such
costs and expenses related to any Construction Land Interest shall be paid with
the proceeds of Advances (subject to the conditions set forth in this Master
Agreement).
SECTION 8.4 Liabilities of the Funding Parties; Sharing of Payments. (a)
No Funding Party shall have any obligation to any other Funding Party or to the
Lessee with respect to the transactions contemplated by the Operative Documents
except those obligations of such Funding Party expressly set forth in the
Operative Documents or except as set forth in the instruments delivered in
connection therewith, and no Funding Party shall be liable for performance by
any other party hereto of such other party's obligations under the Operative
Documents except as otherwise so set forth. No Lease Participant
59
or Lender shall have any obligation or duty to the Lessee, any other Funding
Parties or any other Person with respect to the transactions contemplated hereby
except to the extent of the obligations and duties expressly set forth in this
Master Agreement or the Loan Agreement.
(b) If any Funding Party shall obtain any payment (whether voluntary
or involuntary, or through the exercise of any right of set-off or otherwise) on
account of the Advances made by it in excess of its ratable share of payments on
account of the Advances obtained by all the Funding Parties, such Funding
Parties shall forthwith purchase from the other Funding Parties such
participations in the Advances owed to them as shall be necessary to cause such
purchasing Funding Party to share the excess payment ratably with each of them,
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Funding Party, such purchase from each
Funding Party shall be rescinded and such Funding Party shall repay to the
purchasing Funding Party the purchase price to the extent of such Funding
Party's ratable share (according to the proportion of (i) the amount of the
participation purchased from such Funding Party as a result of such excess
payment to (ii) the total amount of such excess payment) of such recovery
together with an amount equal to such Funding Party's ratable share (according
to the proportion of (i) the amount of such Funding Party's required repayment
to (ii) the total amount so recovered from the purchasing Funding Party) of any
interest or other amount paid or payable by the purchasing Funding Party in
respect of the total amount so recovered. Each Funding Party agrees that any
Funding Party so purchasing a participation from another Funding Party pursuant
to this Section 8.4 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Funding Party were the direct creditor of such
Funding Party in the amount of such participation.
SECTION 8.5 Liabilities of the Agent. The Agent shall have no duty,
liability or obligation to any party to this Master Agreement with respect to
the transactions contemplated hereby except those duties, liabilities or
obligations expressly set forth in this Master Agreement, the Lease
Participation Agreement or the Loan Agreement, and any such duty, liability or
obligations of the Agent shall be as expressly limited by this Master Agreement,
the Lease Participation Agreement or the Loan Agreement, as the case may be. All
parties to this Master Agreement acknowledge that the Agent is not, and will not
be, performing any due diligence with respect to documents and information
received pursuant to this Master Agreement or any other Operative Agreement
including, without limitation, any Environmental Audit, Title Policy or survey.
The acceptance by the Agent of any such document or information shall not
constitute a waiver by any Funding Party of any representation or warranty of
any Guarantor or the Lessee even if such document or information indicates that
60
any such representation or warranty is untrue.
SECTION 8.6 Effect of Amendment and Restatement. Upon the effectiveness of
this Master Agreement from and after date hereof: (a) the terms and conditions
of the Existing Master Agreement shall be amended as set forth herein and as so
amended, shall be restated in their entirety; (b) neither this Master Agreement
nor any of the other Operative Documents shall in any way release or impair the
obligations or Liens created pursuant to the Existing Master Agreement or any
other Operative Document (as defined therein) or affect the relative priorities
thereof, in each case to the extent in force and effect thereunder as of the
dater hereof and except as modified hereby or by documents, instruments and
agreements executed and delivered in connection and all of such obligations and
Liens are assumed, ratified and affirmed by the Lessee and the Guarantor; (c)
the Obligations incurred under the Existing Master Agreement and the other
Operative Documents (as such term is defined in the Existing Master Agreement
(the "Existing Operative Documents")) shall, to the extent outstanding on the
date hereof, continue outstanding under this Master Agreement and the other
Operative Documents and shall not be deemed to be paid, released, discharged or
otherwise satisfied by the execution of this Master Agreement and the other
Operative Documents, and this Master Agreement and the other Operative Documents
shall not constitute a refinancing, substitution or novation of such obligations
or any of the other rights, duties and obligations of the parties hereunder or
under the other Operative Documents; (d) the execution, delivery and
effectiveness of this Master Agreement and the other Operative Documents shall
not operate as a waiver of any right, power or remedy of the Funding Parties or
the Agent under the Existing Master Agreement and the other Existing Operative
Documents, nor constitute a waiver of any covenant, agreement or obligation
under the Existing Master Agreement or the other Existing Operative Documents,
except to the extent that any such covenant, agreement or obligation is no
longer set forth herein or is modified hereby; and (e) any and all references to
the Existing Master Agreement or any other Existing Operative Document in each
and every Existing Operative Document shall, without further action of the
parties, be deemed a reference to this Master Agreement or the corresponding
Operative Document, and as this Master Agreement or such Operative Documents
shall be further amended, restated, supplemented or otherwise modified from time
to time.
61
IN WITNESS WHEREOF, the parties hereto have caused this Master Agreement
to be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
▇▇▇▇▇ RENTS, INC., as the Lessee
By:
----------------------------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
MASTER
AGREEMENT
S-1
SUNTRUST BANKS, INC., as Lessor
By:
----------------------------------------------------------------------
Name:
--------------------------------------------------------------------
Title:
-------------------------------------------------------------------
MASTER
AGREEMENT
S-2
SOUTHTRUST BANK, N.A., as Lender
By:
----------------------------------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title:
-------------------------------------------------------------------
MASTER
AGREEMENT
S-3
SUNTRUST BANK, as Agent
By:
----------------------------------------------------------------------
Name:
--------------------------------------------------------------------
Title:
-------------------------------------------------------------------
MASTER
AGREEMENT
S-4
SCHEDULE 2.2
PAYMENT INSTRUCTIONS AND
AMOUNT OF EACH FUNDING PARTY'S COMMITMENT
Lessor Commitment Percentage: 60%
Lender Commitment Percentage: 40%
Lessor Commitment: $15,000,000
Lender Commitment: $10,000,000
MASTER
AGREEMENT
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of October 31, 2001
among
SUNTRUST BANKS, INC.,
as Lessor and Borrower,
the financial institutions party hereto,
as Lenders
and
SUNTRUST BANK,
as Agent
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS; INTERPRETATION......................................................... 1
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND
PREPAYMENT OF LOANS................................................................. 2
SECTION 2.1 Commitment.......................................................................... 2
SECTION 2.2 Notes............................................................................... 2
SECTION 2.3 Scheduled Principal Repayment....................................................... 3
SECTION 2.4 Interest............................................................................ 3
SECTION 2.5 Allocation of Loans to Leased Properties............................................ 3
SECTION 2.6 Prepayment.......................................................................... 4
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN
PAYMENTS IN RESPECT OF LEASE AND LEASED PROPERTY.................................... 4
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE AND
GUARANTY............................................................................ 4
SECTION 4.1 Covenant of Lessor.................................................................. 4
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from
Certain Lease and Guaranty Obligations and
Certain Proceeds of Leased Property Only............................................ 5
SECTION 4.3 Exercise of Remedies Under Lease and Guaranty....................................... 6
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES.................................................... 7
SECTION 5.1 Loan Events of Default.............................................................. 7
SECTION 5.2 Loan Event of Default; Remedies..................................................... 8
SECTION 6 THE AGENT........................................................................... 10
SECTION 6.1 Appointment......................................................................... 10
SECTION 6.2 Delegation of Duties................................................................ 10
SECTION 6.3 Exculpatory Provisions.............................................................. 10
SECTION 6.4 Reliance by Agent................................................................... 11
SECTION 6.5 Notice of Default................................................................... 11
SECTION 6.6 Non-Reliance on Agent and Other Lenders............................................. 12
SECTION 6.7 Indemnification..................................................................... 12
SECTION 6.8 Agent in Its Individual Capacity.................................................... 13
SECTION 6.9 Successor Agent..................................................................... 13
SECTION 7 MISCELLANEOUS....................................................................... 14
SECTION 7.1 Documentary Convention.............................................................. 14
SECTION 7.2 No Waiver; Cumulative Remedies...................................................... 14
SECTION 7.3 Successors and Assigns.............................................................. 14
SECTION 7.4 Survival and Termination of Agreement............................................... 14
APPENDIX A Definitions and Interpretation
EXHIBITS
EXHIBIT A-1 Form of A Note
EXHIBIT A-2 Form of B Note
THIS AMENDED AND RESTATED LOAN AGREEMENT (as it may be amended or
modified from time to time in accordance with the provisions hereof, this "Loan
Agreement") dated as of October 31, 2001 is between SUNTRUST BANKS, INC., a
Georgia corporation, as Lessor and Borrower (the "Lessor"); SOUTHTRUST BANK,
N.A. (as successor to SouthTrust Bank of Georgia, N.A.), and the other financial
institutions which may from time to time become party hereto as lenders (the
"Lenders") and SUNTRUST BANK (as successor to SunTrust Bank, Atlanta), a Georgia
banking corporation as agent for the Lenders (the "Agent").
PRELIMINARY STATEMENT
The parties have entered into the Loan Agreement, dated as of September
20, 1996 (the "Existing Loan Agreement"), and wish to amend and restate the
Existing Loan Agreement.
In accordance with the terms and provisions of the Master Agreement,
the Lease, the Lease Participation Agreement, this Loan Agreement and the other
Operative Documents, (i) the Lessor has acquired the Existing Leased Properties
and contemplates acquiring additional Leased Properties and has leased the
Existing Leased Properties and contemplates leasing additional Leased Properties
to the Lessee, (ii) the Lessee wishes to construct Buildings on the Land for the
Lessor and, when completed, to lease the Buildings from the Lessor as part of
the Leased Property under the Lease, (iii) the Lessee wishes to obtain, and the
Lessor is willing to provide, funding for the acquisition of the Land and the
construction of the Buildings, (iv) the Lessor wishes to obtain, and the Lenders
are willing to provide, financing of a portion of the funding of the acquisition
of the Land and the construction of the Buildings, and (v) the Lessee is willing
to provide its Guaranty to the Agent and the Funding Parties.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1 DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A to the
Amended and Restated Master Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Master Agreement"),
among ▇▇▇▇▇ Rents, Inc., as Lessee and Guarantor, Sun Trust Banks, Inc., as
Lessor, the financial institutions party thereto, as Lenders, and Sun Trust
Bank, as Agent; and the rules of interpretation set forth in Appendix A to the
Master Agreement shall apply to this Loan Agreement.
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND
PREPAYMENT OF LOANS
SECTION 2.1 Commitment. (a) Subject to the terms and conditions hereof
and of the Master Agreement, each Lender agrees to make term loans to the Lessor
("Loans") from time to time during the period from and including the Initial
Closing Date through the Funding Termination Date, on each Closing Date and on
each subsequent Funding Date, in the amounts required under Section 2.2 of the
Master Agreement. Each such Loan shall consist of an A Loan in the amount of the
A Percentage of such Lender's Commitment Percentage of the amount to be funded
on such date and a B Loan in the amount of the B Percentage of such Lender's
Commitment Percentage of the amount to be funded on such date.
SECTION 2.2 Notes. The A Loans made by the Lenders to the Lessor shall
be evidenced by a note of the Lessor (an "A Note"), substantially in the form of
Exhibit A-1 with appropriate insertions, and the B Loans made by each Lender to
the Lessor shall be evidenced by a note of the Lessor (a "B Note") substantially
in the form of Exhibit A-2 with appropriate insertions, each duly executed by
the Lessor and payable to the order of such Lender and in a principal amount
equal to the A Percentage of such Lender's Commitment and the B Percentage of
such Lender's Commitment, respectively (or, if less, the aggregate unpaid
principal amount of all A Loans or B Loans, as the case may be, made by such
Lender to the Lessor). The Notes shall be dated the Initial Closing Date and
delivered to the Agent in accordance with Section 3.2 of the Master Agreement.
Each Lender is hereby authorized to record the date and amount of each Loan made
by such Lender to the Lessor on the Notes, but the failure by such Lender to so
record such Loan shall not affect or impair any obligations with respect
thereto. Each Note shall (i) be stated to mature on the final Lease Termination
Date and (ii) bear interest on the unpaid principal amount thereof from time to
time outstanding at the applicable interest rate per annum determined as
provided in, and payable as specified in, Section 2.4. Upon the occurrence of an
Event of Default under paragraph (i), (j) or (k) of Article XII of the Lease, or
upon Acceleration as described in Section hereof, each Note shall automatically
become due and payable in full.
SECTION 2.3 Scheduled Principal Repayment. On the Lease Termination
Date, the Lessor shall pay the aggregate unpaid principal amount of all Loans
with respect to the related Leased Property as of such date.
SECTION 2.4 Interest. (a) Each Loan related to a LIBOR Advance shall
bear interest at a rate equal to the sum of (i) the Adjusted LIBO Rate, computed
using the actual number of days elapsed and a 360 day year, plus (ii) the
Applicable Margin per annum; each Loan related to a Base Rate Advance
2
shall bear interest at a rate equal to the sum of (i) the Base Rate, computed
using the actual number of days elapsed and a 360 day year, plus (ii) the
Applicable Margin per annum.
(b) If all or a portion of the principal amount of or interest on the
Loans shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall, without limiting the
rights of the Lenders under Section 5, bear interest at the Overdue Rate, in
each case from the date of nonpayment until paid in full (as well after as
before judgment).
(c) Interest accruing on each Loan with respect to any Leased Property
during the Construction Term of such Leased Property shall be added to the
principal amount of such Loan (or paid) from time to time subject to the
limitations set forth in Section 2.3(c) of the Master Agreement. Following the
date each Loan is made (or in the case of Loans with respect to a Construction
Land Interest, the Construction Term Expiration Date), interest on such Loan
shall be payable in arrears on each Payment Date with respect thereto.
(d) Any change in the interest rate on the Loans resulting from a
change in the Base Rate shall become effective as of the opening of business on
the day on which such Base Rate changes as provided in the definition thereof.
SECTION 2.5 Allocation of Loans to Leased Properties. Pursuant to each
Funding Request, each Loan shall be allocated to the Leased Property, the cost
of acquisition or construction of which the proceeds of such Loan are used to
pay. For purposes of the Operative Documents, the "related Loans" with respect
to any Leased Property or Loans "related to" any Leased Property shall mean
those Loans allocated to such Leased Property as set forth in the foregoing
sentence.
SECTION 2.6 Prepayment. Except in conjunction with a payment by the
Lessee or the Construction Agent of the Lease Balance, a Construction Failure
Payment or a Leased Property Balance pursuant to the terms of the Lease or the
Construction Agency Agreement, the Lessor shall have no right to prepay the
Loans.
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN
PAYMENTS IN RESPECT OF LEASE AND LEASED PROPERTY
Payments of Rent, other payments made pursuant to the Operative
Documents and proceeds of the Leased Properties shall be distributed as set
forth in Article VI of the Master Agreement.
3
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE AND
GUARANTY
SECTION 4.1 Covenant of Lessor. So long as any Lender's Commitment
remains in effect, any Loan remains outstanding and unpaid or any other amount
is owing to any Lender with respect to its Funding Party Balances, subject to
Section 4.2, the Lessor will promptly pay all amounts payable by it under this
Loan Agreement and the Notes issued by it in accordance with the terms hereof
and thereof and shall duly perform each of its obligations under this Loan
Agreement and the Notes. The Lessor agrees to provide to the Agent a copy of
each estoppel certificate that the Lessor proposes to deliver pursuant to
Section 17.7 of the Lease at least five (5) days prior to such delivery and to
make any corrections thereto reasonably requested by the Agent prior to such
delivery. The Lessor shall keep each Leased Property owned by it free and clear
of all Lessor Liens. The Lessor shall not reject any sale of any Leased Property
pursuant to Section 14.7 of the Lease unless all of the related Loans have been
paid in full or the Lenders consent to such rejection. In the event that the
Lenders reject any sale of any Leased Property pursuant to Section 14.7 of the
Lease, the Lessor agrees to take such action as the Lenders reasonably request
to effect a sale or other disposition of such Leased Property, provided that the
Lessor shall not be required to expend its own funds in connection with such
sale or disposition.
In the event that the Construction Agent returns any Leased Property to
the Lessor pursuant to Section 5.3(a) of the Construction Agency Agreement,
unless all of the related Loans are paid in full, the Lessor agrees to take such
action as the Lenders reasonably request to complete the Construction, or to
effect a sale or other disposition, of such Leased Property, provided that the
Lessor shall not be required to expend its own funds in connection therewith.
During the Construction Term for each Leased Property, the Lessor agrees to
assume liability for, and to indemnify, protect, defend, save and hold harmless
the Agent, each Lender and each of their respective Affiliates, successors,
assigns, employees, officers and directors, on an After-Tax Basis, from and
against, any and all Claims that may be imposed on, incurred by or asserted or
threatened to be asserted against the Agent or any Lender, in any way relating
to or arising out of the circumstances described in Section 7.1 or 7.4 of the
Master Agreement, provided that the Lessor shall only be obligated to make a
payment pursuant to this sentence to the extent that the Lessor receives payment
from the Construction Agent or any other Person with respect to such Claim.
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain Lease
and Guaranty Obligations and Certain Proceeds of Leased Property Only. All
payments to be made by the Lessor in respect of the Loans, the Notes and
4
this Loan Agreement shall be made only from certain payments received under the
Lease, the Construction Agency Agreement and the Guaranty and certain proceeds
of the Leased Properties and only to the extent that the Lessor or the Agent
shall have received sufficient payments from such sources to make payments in
respect of the Loans in accordance with Section 3. Each Lender agrees that it
will look solely to such sources of payments to the extent available for
distribution to such Lender as herein provided and that neither the Lessor nor
the Agent is or shall be personally liable to any Lender for any amount payable
hereunder or under any Note. Nothing in this Loan Agreement, the Notes or any
other Operative Document shall be construed as creating any liability (other
than for willful misconduct, gross negligence, misrepresentation or breach of
contract (other than the failure to make payments in respect of the Loans)) of
the Lessor individually to pay any sum or to perform any covenant, either
express or implied, in this Loan Agreement, the Notes or any other Operative
Documents (all such liability, if any, being expressly waived by each Lender)
and that each Lender, on behalf of itself and its successors and assigns, agrees
in the case of any liability of the Lessor hereunder or thereunder (except for
such liability attributable to its willful misconduct, gross negligence,
misrepresentation or breach of contract (other than the failure to make payments
in respect of the Loans)) that it will look solely to those certain payments
received under the Lease, the Construction Agency Agreement and the Guaranty and
those certain proceeds of the Leased Properties, provided, however, that the
Lessor in its individual capacity shall in any event be liable with respect to
(i) the removal of Lessor's Liens or involving its gross negligence, willful
misconduct, misrepresentation or breach of contract (other than the failure to
make payments in respect of the Loans) or (ii) failure to turn over payments the
Lessor has received in accordance with Article VI of the Master Agreement; and
provided further that the foregoing exculpation of the Lessor shall not be
deemed to be exculpations of the Lessee, the Guarantor or any other Person.
SECTION 4.3 Exercise of Remedies Under Lease and Guaranty.
(a) Event of Default. With respect to any Potential Event of Default as
to which notice thereof by the Lessor to the Lessee is a requirement to cause
such Potential Event of Default to become an Event of Default, the Lessor may at
any time in its discretion give such notice, provided that the Lessor agrees to
give such notice to such Lessee promptly upon receipt of a written request by
any Lender or the Agent.
(b) Acceleration of Lease Balance. When an Event of Default exists, the
Lessor, upon the direction of the Required Funding Parties, shall exercise
remedies under Article XIII of the Lease, under Section 5 of the Construction
Agency Agreement and the Guaranty, as the case may be, to demand payment in
5
full of the Lease Balance by the Lessee or the Guarantor (the "Acceleration").
Following the Acceleration, the Lessor shall consult with the Lenders regarding
actions to be taken in response to such Event of Default or Construction Agency
Event of Default. The Lessor (1) shall not, without the prior written consent of
Required Funding Parties and (2) shall (subject to the provisions of this
Section), if so directed by Required Funding Parties, do any of the following:
commence eviction or foreclosure proceedings, or make a demand under the
Guaranty, or file a lawsuit against the Lessee under the Lease, or file a
lawsuit against the Guarantor under the Guaranty, or sell the Leased Property,
or exercise other remedies against the related Lessee or the Guarantor under the
Operative Documents in respect of such Event of Default or Construction Agency
Event of Default; provided, however, that any payments received by the Lessor
shall be distributed in accordance with Article VI of the Master Agreement.
Notwithstanding any such consent, direction or approval by the Required Funding
Parties of any such action or omission, the Lessor shall not have any obligation
to follow such direction if the same would, in the Lessor's reasonable judgment,
require the Lessor to expend its own funds or expose the Lessor to liability,
expense, loss or damages unless and until the Lenders advance to the Lessor an
amount which is sufficient, in the Lessor's reasonable judgment, to cover such
liability, expense, loss or damage (excluding the Lessor's pro rata share
thereof, if any). Notwithstanding the foregoing, on and after the related
Release Date (and any application otherwise required under Article VI of the
Master Agreement has been made): the Lenders shall have no rights to the related
Leased Property or any proceeds thereof; the Lenders shall have no rights to
direct or give consent to any actions with respect to such Leased Property and
the proceeds thereof; the Lessor shall have absolute discretion (but in all
events subject to the terms of the Operative Documents) with respect to such
exercise of remedies with respect to such Leased Property, and the proceeds
thereof, including any foreclosure or sale of such Leased Property; and the
Lessor shall have no liability to the Lenders with respect to the Lessor's
actions or failure to take any action with respect to such Leased Property.
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES
SECTION 5.1 Loan Events of Default. Each of the following events shall
constitute a Loan Event of Default (whether any such event shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any order, rule
or regulation of any Governmental Authority) and each such Loan Event of Default
shall continue so long as, but only as long as, it shall not have been remedied:
(a) Lessor shall fail to distribute in accordance with the
provisions of Article VI of the Master Agreement any amount received by
the Lessor
6
pursuant to the Lease or the Master Agreement within three (3) Business
Days of receipt thereof if and to the extent that the Agent or the
Lenders are entitled to such amount or a portion thereof; or
(b) the Lessor shall fail to pay to the Agent, within two (2)
Business Days of the Lessor's receipt thereof, any amount which the
Lessee or the Guarantor is required, pursuant to the Operative
Documents, to pay to the Agent but erroneously pays to the Lessor; or
(c) failure by the Lessor to perform in any material respect
any other covenant or condition herein or in any other Operative
Document to which the Lessor is a party, which failure shall continue
unremedied for thirty (30) days after receipt by the Lessor of written
notice thereof from the Agent or any Lender; or
(d) any representation or warranty of the Lessor contained in
any Operative Document or in any certificate required to be delivered
thereunder shall prove to have been incorrect in a material respect
when made and shall not have been cured within thirty (30) days of
receipt by the Lessor of written notice thereof from the Agent or any
Lender; or
(e) the Lessor shall become bankrupt or make an assignment for
the benefit of creditors or consent to the appointment of a trustee or
receiver; or a trustee or a receiver shall be appointed for the Lessor
or for substantially all of its property without its consent and shall
not be dismissed or stayed within a period of ninety (90) days; or
bankruptcy, reorganization or insolvency proceedings shall be
instituted by or against the Lessor and, if instituted against the
Lessor, shall not be dismissed or stayed for a period of ninety (90)
days; or
(f) any Event of Default shall occur and be continuing.
7
SECTION 5.2 Loan Event of Default; Remedies.
(a) Upon the occurrence of a Loan Event of Default hereunder, (i) if
such event is a Loan Event of Default specified in clause (e) of Section 5.1
with respect to the Lessor, automatically the Lenders' Commitments shall
terminate and the outstanding principal of, and accrued interest on, the Loans
shall be immediately due and payable, and (ii) if such event is any other Loan
Event of Default, upon written request of the Required Lenders, the Agent shall,
by notice of default to the Lessors, declare the Commitments of the Lenders to
be terminated forthwith and the outstanding principal of, and accrued interest
on, the Loans to be immediately due and payable, whereupon the Commitments of
the Lenders shall immediately terminate and the outstanding principal of, and
accrued interest on, the Loans shall become immediately due and payable.
(b) When a Loan Event of Default exists, the Agent may, and upon the
written instructions of the Required Funding Parties shall, exercise any or all
of the rights and powers and pursue any and all of the remedies available to it
hereunder, under the Notes, the Mortgages, and the Assignments of Lease and
Rents and shall have and may exercise any and all rights and remedies available
under the Uniform Commercial Code or any provision of law. When a Loan Event of
Default exists, the Agent may, and upon the written instructions of the Required
Funding Parties shall, have the right to exercise all rights of the Lessor under
the related Lease pursuant to the terms and in the manner provided for in the
Mortgages and the Assignments of Lease and Rents.
(c) Except as expressly provided above, no remedy under this Section
5.2 is intended to be exclusive, but each shall be cumulative and in addition to
any other remedy provided under this Section 5.2 or under the other Operative
Documents or otherwise available at law or in equity. The exercise by the Agent
or any Lender of any one or more of such remedies shall not preclude the
simultaneous or later exercise of any other remedy or remedies. No express or
implied waiver by the Agent or any Lender of any Loan Event of Default shall in
any way be, or be construed to be, a waiver of any future or subsequent Loan
Event of Default. The failure or delay of the Agent or any Lender in exercising
any rights granted it hereunder upon any occurrence of any of the contingencies
set forth herein shall not constitute a waiver of any such right upon the
continuation or recurrence of any such contingencies or similar contingencies
and any single or partial exercise of any particular right by the Agent or any
Lender shall not exhaust the same or constitute a waiver of any other right
provided herein.
8
SECTION 6 THE AGENT
SECTION 6.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agent as the agent of such Lender under this Loan Agreement and the
other Operative Documents, and each such Lender irrevocably authorizes the
Agent, in such capacity, to take such action on its behalf under the provisions
of this Loan Agreement and the other Operative Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of this Loan Agreement and the other Operative Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Loan Agreement, the Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Loan Agreement or any other Operative Document or otherwise exist against the
Agent.
SECTION 6.2 Delegation of Duties. The Agent may execute any of its
duties under this Loan Agreement and the other Operative Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
SECTION 6.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Loan Agreement or any other Operative
Document (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Lessor, the
Guarantor or the Lessee or any officer thereof contained in this Loan Agreement
or any other Operative Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agent under or
in connection with, this Loan Agreement or any other Operative Document or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Loan Agreement or any other Operative Document or for any failure of the
Lessor, the Guarantor or the Lessee to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Loan Agreement or any other
Operative Document, or to inspect the properties, books or records of the
Lessor, the Guarantor or the Lessee.
9
SECTION 6.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Lessor, the Guarantor or the Lessee), independent
accountants and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Agent. The Agent shall be fully justified in failing or refusing
to take any action under this Loan Agreement or any other Operative Document
unless it shall first receive such advice or concurrence of the Required Funding
Parties as it deems appropriate or it shall first be indemnified to its
satisfaction by the Funding Parties against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. Subject to the Operative Documents, the Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Loan
Agreement and the other Operative Documents in accordance with a request of the
Required Funding Parties, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes.
SECTION 6.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Loan Potential Event of Default or
Loan Event of Default hereunder unless the Agent has received notice from a
Lender referring to this Loan Agreement, describing such Loan Potential Event of
Default or Loan Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
give notice thereof to the Lenders. The Agent shall take such action with
respect to such Loan Potential Event of Default or Loan Event of Default as
shall be reasonably directed by the Required Lenders; provided that unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Loan Potential Event of Default or Loan Event of Default as it
shall deem advisable in the best interests of the Lenders.
SECTION 6.6 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Lessor, the Guarantor or the
Lessee, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent, the Lease Participant or any
10
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Lessor, the Guarantor and the Lessee and made its own decision to make its Loans
hereunder and enter into this Loan Agreement. Each Lender also represents that
it will, independently and without reliance upon the Agent, the Lease
Participant or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Loan
Agreement and the other Operative Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Lessor, the Guarantor
and the Lessee. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Lessor, the
Guarantor or the Lessee which may come into the possession of the Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
SECTION 6.7 Indemnification. The Lenders agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Lessee or Guarantor
and without limiting the obligation of the Lessee or Guarantor to do so),
ratably according to the percentage each Lender's Commitment bears to the total
commitments of all of the Lenders and the Lease Participants on the date on
which indemnification is sought under this Section 6.7 (or, if indemnification
is sought after the date upon which the Lenders Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with the percentage that each Lender's Commitment bears to the Commitments of
all of the Lenders and the Lease Participants immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of, the Commitments,
this Loan Agreement, any of the other Operative Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct.
The agreements in this Section 6.7 shall survive the payment of the Notes and
all other amounts
11
payable hereunder.
SECTION 6.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Lessor, the Guarantor or the Lessee as though the
Agent were not the Agent hereunder and under the other Operative Documents. With
respect to Loans made or renewed by it and any Note issued to it, the Agent
shall have the same rights and powers under this Loan Agreement and the other
Operative Documents as any Lender and may exercise the same as though it were
not the Agent, and the terms "Lender" and "Lenders" shall include the Agent in
its individual capacity. Each Lender acknowledges that the Agent in its
individual capacity has had and continues to have other business relations and
transactions with the Lessee its Affiliates and the Lessor.
SECTION 6.9 Successor Agent. The Agent may resign as Agent upon 20
days' notice to the Lenders. If the Agent shall resign as Agent under this Loan
Agreement and the other Operative Documents, then the Required Funding Parties
shall appoint a successor agent for the Lenders, which successor agent shall be
a commercial bank organized under the laws of the United States of America or
any State thereof or under the laws of another country which is doing business
in the United States of America and having a combined capital, surplus and
undivided profits of at least $100,000,000, whereupon such successor agent shall
succeed to the rights, powers and duties of the Agent, and the term "Agent"
shall mean such successor agent effective upon such appointment and approval,
and the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Loan Agreement or any holders of the Notes. After any
retiring Agent's resignation as Agent, all of the provisions of this Section 6
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Loan Agreement and the other Operative Documents.
SECTION 7 MISCELLANEOUS
SECTION 7.1 Documentary Conventions. The Documentary Conventions shall
apply to this Loan Agreement.
SECTION 7.2 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
12
remedies, powers and privileges provided by law.
SECTION 7.3 Successors and Assigns. This Loan Agreement shall be
binding upon and inure to the benefit of the Lessor, the Agent, the Lenders, all
future holders of the Notes and their respective successors and permitted
assigns.
SECTION 7.4 Survival and Termination of Agreement. All covenants,
agreements, representations and warranties made herein and in any certificate,
document or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Loan Agreement, and the Notes and
shall continue in full force and effect so long as any Note or any amount
payable to any Lender under or in connection with this Loan Agreement or the
Notes is unpaid, at which time this Loan Agreement shall terminate.
13
IN WITNESS THEREOF, the parties hereto have caused this Loan Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
SUNTRUST BANK, as Agent
By: ____________________________
Title:
LOAN AGREEMENT
S-1
SUNTRUST BANKS, INC., as Lessor
and Borrower
By: ____________________________
Title
LOAN AGREEMENT
S-2
SOUTHTRUST BANK, N.A.,
as a Lender
By: ____________________________
Title:
LOAN AGREEMENT
S-3
AMENDED AND RESTATED LEASE PARTICIPATION AGREEMENT
Dated as of October 31, 2001
among
SUNTRUST BANKS, INC.,
as Lessor,
and
SUNTRUST BANK,
as Lease Participant
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS; INTERPRETATION...................................................................... 1
SECTION 2 LEASE PARTICIPATION.............................................................................. 2
SECTION 2.1 Participation............................................................................... 2
SECTION 2.2 Purchase Price.............................................................................. 2
SECTION 3 APPLICATION OF PAYMENTS IN RESPECT OF LEASE...................................................... 2
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE AND
GUARANTY......................................................................................... 4
SECTION 4.1 Covenant of Lessor.......................................................................... 4
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain Lease and Guaranty Obligations and
Certain Proceeds of Property Only........................................................... 4
SECTION 4.3 Exercise of Remedies Under Lease and Guaranty............................................... 5
SECTION 5 MISCELLANEOUS.................................................................................... 6
SECTION 5.1 The Documentary Conventions shall apply to
this Lease Participation Agreement.......................................................... 6
SECTION 5.2 No Waiver; Cumulative Remedies.............................................................. 6
SECTION 5.3 Successors and Assigns...................................................................... 6
SECTION 5.4 Survival and Termination of Agreement....................................................... 6
APPENDIX A Definitions and Interpretation
THIS AMENDED AND RESTATED LEASE PARTICIPATION AGREEMENT (as it may be
amended or modified from time to time in accordance with the provisions hereof,
this "Lease Participation Agreement") dated as of October 31, 2001 is between
SUNTRUST BANKS, INC., a Georgia corporation, as Lessor (the "Lessor"), and
SUNTRUST BANK (as successor to SunTrust Bank, Atlanta), a Georgia banking
corporation, as Lease Participant (the "Lease Participant").
PRELIMINARY STATEMENT
The parties hereto have entered into the Lease Participation Agreement,
dated as of September 20, 1996 (the "Existing Lease Participation Agreement"),
and wish to amend and restate the Existing Lease Participation Agreement.
In accordance with the terms and provisions of the Master Agreement,
the Lease, the Loan Agreement, this Lease Participation Agreement and the other
Operative Documents, (i) the Lessor has acquired the Existing Leased Properties
and contemplates acquiring additional Leased Properties and has leased the
Existing Leased Properties and contemplates leasing additional Leased Properties
to the Lessee, (ii) the Lessee wishes to construct Buildings on such Land for
the Lessor and, when completed, to lease the Buildings from the Lessor as part
of the Leased Property under the Lease, (iii) the Lessee wishes to obtain, and
the Lessor is willing to provide, funding for the acquisition of the Leased
Properties and the construction of the Buildings, (iv) the Lessor wishes to
sell, and the Lease Participant is willing to purchase, a participation interest
in the Lessor's interest in the Lease and (v) the Guarantor is willing to
provide its Guaranty to the Funding Parties.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1 DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A to the
Amended and Restated Master Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the Master Agreement),
among ▇▇▇▇▇ Rents, Inc., as Lessee and Guarantor, the Lessor, the financial
institutions party thereto, as Lenders, and SunTrust Bank, as Agent; and the
rules of interpretation set forth in Appendix A to the Master Agreement shall
apply to this Lease Participation Agreement.
SECTION 2 LEASE PARTICIPATION
SECTION 2.1 Participation. Subject to the terms and conditions set
forth herein, the Lessor agrees to sell, and the Lease Participant agrees to
purchase, an undivided participation interest in 50% (the "Participation
Percentage") of the Lessor's rights to payment under the Lease and the Guaranty
(the "Lease Participation").
SECTION 2.2 Purchase Price. The Lease Participant agrees to pay as
purchase price for the Lease Participation to the Lessor amounts on the Closing
Date and on each subsequent Funding Date, an amount equal to the Lessor's
Invested Amount to be funded on each such date, but in any event in the
aggregate not in excess of $15,000,000 (the "Lease Participant Commitment").
SECTION 3 APPLICATION OF PAYMENTS IN RESPECT OF LEASES
(a) Shared Payments. The Participation Percentage of each payment
received by the Lessor pursuant to the Lease or the Guaranty of
(i) Basic Rent (and any payment of interest on overdue
installments of Basic Rent),
(ii) the purchase price for a consummated sale of the related
Leased Property in connection with the Lessee's exercise of the
Purchase Option or Partial Purchase Option, or compliance with its
obligation to purchase the related Leased Property, under Section 14.1,
14.2 or 14.3 of the Lease, and
(iii) the payment by the Lessee of the Leased Property
Balance in accordance with Section 10.1 or 10.2 of the
Lease, and
(iv) the payment by the Lessee of the Recourse Deficiency
Amount on the Lease Termination Date in accordance with Section 14.6 or
14.7 of the Lease upon such Lessee's exercise of the Remarketing
Option, and
(v) proceeds from the sale of the Leased Property sold
pursuant to the Lessee's exercise of the Remarketing Option pursuant to
Section 14.6 or 14.7 of the Lease, and
(vi) proceeds from the sale of any or all of the Leased
Properties sold pursuant to the exercise of the Lessor's remedies
pursuant to Article XIII of the Lease, and
(vii) proceeds of any amounts from any insurer or any
Governmental Authority in connection with an Event of Loss
or payments
2
pursuant to Section 7.6 of the Master Agreement, and
(viii) proceeds of any amounts from the Construction
Agent under Section 5.3 of the Construction Agency
Agreement, and
(ix) payments by the Guarantor as a payment in
accordance with the Guaranty,
shall be turned over to the Lease Participant in accordance with, and for
application to, the Lease Participation. The Lease Participant hereby
acknowledges that the Lessor has assigned, and granted a security interest in,
the Lease to the Agent for the benefit of the Lenders, and that payments under
the Lease and the Guaranty will be made directly to the Agent.
(b) Supplemental Rent. Each payment of Supplemental Rent shall be paid
to or upon the order of the Person owed the same.
(c) Timing of Distributions. Payments received by the Lessor or the
Agent in immediately available funds before 12:00 p.m. (noon), Atlanta, Georgia
time, on any Business Day shall be distributed to the Lease Participant in
accordance with and to the extent provided in this Section 3 on such Business
Day. Payments received by the Lessor or the Agent in immediately available funds
after 12:00 p.m. (noon), Atlanta, Georgia time shall be distributed to the Lease
Participant in accordance with and to the extent provided in this Section 3 on
the next Business Day.
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE AND
GUARANTY
SECTION 4.1 Covenant of Lessor. So long as the Lease Participant
Commitment remains in effect, any Lessor's Invested Amount remains outstanding
and unpaid or any other amount is owing to the Lease Participant hereunder,
subject to Section 4.2, the Lessor will promptly pay all amounts payable by it
under this Lease Participation Agreement in accordance with the terms hereof and
shall duly perform each of its obligations under this Lease Participation
Agreement. In the event that the Lease Participant rejects any sale of a Leased
Property pursuant to Section 14.6 of the Lease, the Lessor agrees to take such
action as the Lease Participant reasonably requests to effect a sale or other
disposition of such Leased Property.
3
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain Lease
and Guaranty Obligations and Certain Proceeds of Property Only. All payments to
be made by the Lessor in respect of this Lease Participation Agreement shall be
made only from the Participation Percentage of certain payments received under
the Lease, the Construction Agency Agreement and the Guaranty and certain
proceeds of the Leased Properties and only to the extent that the Lessor shall
have received sufficient payments from such sources to make payments in respect
of the Lessor's Invested Amounts in accordance with Section 3. The Lease
Participant agrees that it will look solely to such sources of payments to the
extent available for distribution to the Lease Participant as herein provided
and that the Lessor is not and shall not be personally liable to the Lease
Participant for any amount payable hereunder. Nothing in this Lease
Participation Agreement or any other Operative Document shall be construed as
creating any liability (other than for willful misconduct, gross negligence,
misrepresentation or breach of contract (other than the failure to make payments
in respect of the Lease Participant Amounts)) of the Lessor individually to pay
any sum or to perform any covenant, either express or implied, in this Lease
Participation Agreement or any other Operative Documents (all such liability, if
any, being expressly waived by the Lease Participant) and that the Lease
Participant, on behalf of itself and its successors and assigns, agrees in the
case of any liability of the Lessor hereunder or thereunder (except for such
liability attributable to its willful misconduct, gross negligence,
misrepresentation or breach of contract (other than the failure to make payments
in respect of the Lease Participant Amounts)) that it will look solely to the
Participation Percentage of those certain payments received under the Lease, the
Construction Agency Agreement and the Guaranty and those certain proceeds of the
Leased Properties, provided, however, that the Lessor in its individual capacity
shall in any event be liable with respect to (i) the removal of Lessor's Liens
or involving its gross negligence or willful misconduct, misrepresentation or
breach of contract (other than the failure to make payments in respect of the
Lessor's Invested Amounts) or (ii) failure to turn over payments the Lessor has
received in accordance with Section 3; and provided further that the foregoing
exculpation of the Lessor shall not be deemed to be exculpations of the Lessee,
the Guarantor or any other Person.
SECTION 4.3 Exercise of Remedies Under Lease and Guaranty.
(a) Event of Default. With respect to any Potential Event of Default as
to which notice thereof by the Lessor to the Lessee is a requirement to cause
such Potential Event of Default to become an Event of Default, the Lessor may at
any time in its discretion give such notice, provided that the Lessor agrees to
give such notice to the Lessee promptly upon receipt of a written request by the
Lease Participant.
4
(b) Acceleration of Lease Balance. When an Event of Default exists, the
Lessor, upon the direction of the Lease Participant, shall exercise remedies
under Article XIII of the Lease and the Guaranty to demand payment in full of
the Lease Balance by the Lessee or the Guarantor (the "Acceleration"). Following
the Acceleration, the Lessor shall consult with the Lease Participant regarding
actions to be taken in response to such Event of Default. Lessor (1) shall not,
without the prior written consent of the Lease Participant and (2) shall
(subject to the provisions of this Section), if so directed by the Lease
Participant, do any of the following: commence eviction or foreclosure
proceedings, or make a demand under the Guaranty, or file a lawsuit against the
Lessee under the Lease, or file a lawsuit against the Guarantor under the
Guaranty, or sell the related Leased Property or Leased Properties, or exercise
other remedies against the Lessee under the Operative Documents in respect of
such Event of Default; provided, however, that any payments received by the
Lessor shall be distributed in accordance with Section 3. Notwithstanding any
such consent, direction or approval by the Lease Participant of any such action
or omission, the Lessor shall have no obligation to follow such direction if the
same would, in the Lessor's reasonable judgment, require the Lessor to expend
its own funds or expose the Lessor to liability, expense, loss or damages unless
and until the Lease Participant advances to the Lessor an amount which is
sufficient, in Lessor's reasonable judgment, to cover such liability, expense,
loss or damage.
SECTION 5 MISCELLANEOUS
SECTION 5.1 The Documentary Conventions shall apply to this Lease
Participation Agreement.
SECTION 5.2 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Lease Participant, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
SECTION 5.3 Successors and Assigns. This Lease Participation Agreement
shall be binding upon and inure to the benefit of the Lessor, the Lease
Participant and their respective successors and permitted assigns. Neither party
may assign its rights or obligations hereunder without the prior written consent
of the other party.
SECTION 5.4 Survival and Termination of Agreement. All covenants,
agreements, representations and warranties made herein and in any certificate,
5
document or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Lease Participation Agreement and
shall continue in full force and effect so long as any amount payable to Lease
Participant under or in connection with this Lease Participation Agreement is
unpaid, at which time this Lease Participation Agreement shall terminate.
6
IN WITNESS THEREOF, the parties hereto have caused this Lease
Participation Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
SUNTRUST BANK, as Lease Participant
By: ____________________________
Title:
SUNTRUST BANKS, INC., as Lessor
By: ____________________________
Title
LEASE PARTICIPATION AGREEMENT
S-1
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AMENDED AND RESTATED LEASE AGREEMENT
Dated as of October 31, 2001
between
SUNTRUST BANKS, INC., as Lessor,
and
▇▇▇▇▇ RENTS, INC., as Lessee
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
(Lease Agreement)
Page
ARTICLE I. DEFINITIONS........................................................................... 1
ARTICLE II. LEASE OF LEASED PROPERTY.............................................................. 2
Section 2.1 Acceptance and Lease of Property.............................................. 2
Section 2.2 Acceptance Procedure.......................................................... 2
ARTICLE III. RENT.................................................................................. 3
Section 3.1 Basic Rent.................................................................... 3
Section 3.2 Supplemental Rent............................................................. 3
Section 3.3 Method of Payment............................................................. 3
Section 3.4 Late Payment.................................................................. 4
Section 3.5 Net Lease; No Setoff, Etc..................................................... 4
Section 3.6 Certain Taxes................................................................. 6
Section 3.7 Utility Charges............................................................... 7
ARTICLE IV. WAIVERS............................................................................... 7
ARTICLE V. LIENS; EASEMENTS; PARTIAL CONVEYANCES................................................. 8
ARTICLE VI. MAINTENANCE AND REPAIR; ALTERATIONS, MODIFICATIONS AND ADDITIONS..................... 10
Section 6.1 Maintenance and Repair; Compliance With Law.................................. 10
Section 6.2 Alterations.................................................................. 11
Section 6.3 Title to Alterations......................................................... 11
ARTICLE VII. USE.................................................................................. 11
ARTICLE VIII. INSURANCE............................................................................ 12
ARTICLE IX. ASSIGNMENT AND SUBLEASING............................................................ 15
ARTICLE X. LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE............................................ 16
Section 10.1 Event of Loss................................................................ 16
Section 10.2 Event of Taking.............................................................. 16
Section 10.3 Casualty..................................................................... 18
Section 10.4 Condemnation................................................................. 18
Section 10.5 Verification of Restoration and Rebuilding................................... 18
Section 10.6 Application of Payments...................................................... 18
Section 10.7 Prosecution of Awards........................................................ 20
Page
Section 10.8 Application of Certain Payments Not Relating
to an Event of Taking........................................................ 20
Section 10.9 Other Dispositions........................................................... 21
Section 10.10 No Rent Abatement............................................................ 21
ARTICLE XI. INTEREST CONVEYED TO LESSEE.......................................................... 21
ARTICLE XII. EVENTS OF DEFAULT.................................................................... 22
ARTICLE XIII. ENFORCEMENT.......................................................................... 25
Section 13.1 Remedies..................................................................... 25
Section 13.2 Remedies Cumulative; No Waiver; Consents..................................... 28
Section 13.3 Purchase Upon an Event of Default............................................ 29
ARTICLE XIV. SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL ................................ 29
Section 14.1 Lessee's Option to Purchase.................................................. 29
Section 14.2 Conveyance to Lessee......................................................... 30
Section 14.3 Acceleration of Purchase Obligation.......................................... 31
Section 14.4 Determination of Purchase Price.............................................. 31
Section 14.5 Purchase Procedure........................................................... 31
Section 14.6 Option to Remarket........................................................... 32
Section 14.7 Rejection of Sale............................................................ 35
Section 14.8 Return of Leased Property.................................................... 36
Section 14.9 Renewal...................................................................... 37
ARTICLE XV. LESSEE'S EQUIPMENT................................................................... 37
ARTICLE XVI. RIGHT TO PERFORM FOR LESSEE.......................................................... 38
ARTICLE XVII. MISCELLANEOUS........................................................................ 39
Section 17.1 Reports...................................................................... 39
Section 17.2 Binding Effect; Successors and Assigns; Survival............................. 39
Section 17.3 Quiet Enjoyment.............................................................. 39
Section 17.4 Documentary Conventions...................................................... 39
Section 17.5 Discharge of Lessee's Obligations by its Affiliates.......................... 40
Section 17.6 Liability of Lessor Limited.................................................. 40
Section 17.7 Estoppel Certificates........................................................ 40
Section 17.8 No Joint Venture............................................................. 41
Section 17.9 No Accord and Satisfaction................................................... 41
Section 17.10 No Merger.................................................................... 41
Section 17.11 Survival..................................................................... 41
Section 17.12 Chattel Paper................................................................ 42
(ii)
Page
Section 17.13 Time of Essence.............................................................. 42
Section 17.14 Recordation of Lease......................................................... 42
Section 17.15 Investment of Security Funds................................................. 42
Section 17.16 Land and Building............................................................ 43
(iii)
EXHIBITS
--------
EXHIBIT A Lease Supplement
(iv)
THIS AMENDED AND RESTATED LEASE AGREEMENT (as from time to time amended
or supplemented, this "Lease"), dated as of October 31, 2001, is between
SUNTRUST BANKS, INC., a Georgia corporation (together with its successors and
assigns hereunder, the "Lessor"), as Lessor, and ▇▇▇▇▇ RENTS, INC., a Georgia
corporation (together with its successors and permitted assigns hereunder, the
"Lessee"), as Lessee.
PRELIMINARY STATEMENT
A. The Lessee and the Lessor are party to the Lease, dated as of
September 20, 1996 (the "Existing Lease") and wish to amend and restate the
Existing Lease.
▇. ▇▇▇▇▇▇ has purchased the Existing Leased Properties and will
purchase from one or more third parties designated by the Construction Agent, on
each Closing Date, certain parcels of real property to be specified by the
Construction Agent, together with any improvements thereon.
▇. ▇▇▇▇▇▇ has leased and desires to continue to lease to Lessee, and
Lessee desires to continue to lease from Lessor, the Existing Leased Properties,
Lessor desires to lease to Lessee, and Lessee desires to lease from Lessor, each
additional property.
D. If applicable, the Construction Agent will, on behalf of Lessor,
cause to be constructed, certain improvements on each additional parcel of real
property which as constructed will be the property of Lessor and will become
part of such property subject to the terms of this Lease.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, Lessor
and Lessee hereby agree as follows:
ARTICLE I.
DEFINITIONS
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in Appendix A to the Amended and Restated Master Agreement,
dated as of the date hereof (as amended, supplemented or otherwise modified from
time to time, the "Master Agreement"), among the Lessee, the Lessor, SouthTrust
Bank, N.A., as Lender, and SunTrust Bank, as Agent for all purposes hereof.
ARTICLE II.
LEASE OF LEASED PROPERTY
Section 2.1 Acceptance and Lease of Property. On each Closing Date for
Land, Lessor, subject to the satisfaction or waiver of the conditions set forth
in Section 3 of the Master Agreement, hereby agrees to accept delivery on such
Closing Date of the Land designated by Lessee to be delivered on such Closing
Date pursuant to the terms of the Master Agreement, together with any Building
and other improvements thereon and simultaneously to lease to Lessee hereunder
for the Lease Term, Lessor's interest in such Land and in such Building and
other improvements, together with any Building which thereafter may be
constructed thereon pursuant to the Construction Agency Agreement, and Lessee
hereby agrees, expressly for the direct benefit of Lessor, commencing on such
Closing Date for the Lease Term, to lease from Lessor Lessor's interest in such
Land to be delivered on such Closing Date together with, in the case of Land,
Lessor's interest in any Building and other improvements thereon or which
thereafter may be constructed thereon pursuant to the Construction Agency
Agreement.
Section 2.2 Acceptance Procedure. Lessor hereby authorizes one or more
employees of Lessee, to be designated by Lessee, as the authorized
representative or representatives of Lessor to accept delivery on behalf of
Lessor of that Leased Property identified on the applicable Funding Request.
Lessee hereby agrees that such acceptance of delivery by such authorized
representative or representatives and the execution and delivery by Lessee on
each Closing Date of a Lease Supplement in substantially the form of Exhibit A
hereto (each, a "Lease Supplement") (appropriately completed) shall, without
further act, constitute the irrevocable acceptance by Lessee of that Leased
Property which is the subject thereof for all purposes of this Lease and the
other Operative Documents on the terms set forth therein and herein, and that
such Leased Property, together with, in the case of Land, any and all Buildings
and any improvements thereon and/or to be constructed thereon pursuant to the
Construction Agency Agreement, shall be deemed to be included in the leasehold
estate of this Lease and shall be subject to the terms and conditions of this
Lease as of such Closing Date. The demise and lease of each parcel of Land and
each such Building pursuant to this Section 2.2 shall include any additional
right, title or interest in such Building which may at any time be acquired by
Lessor, the intent being that all right, title and interest of Lessor in and to
each such parcel of Land and each such Building shall at all times be demised
and leased to Lessee hereunder.
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ARTICLE 3.
RENT
Section 3.1 Basic Rent. Beginning with and including the first
Payment Date occurring after the initial Closing Date, Lessee shall pay to the
Agent the Basic Rent for the Leased Properties, in installments, payable in
arrears on each Payment Date during the Lease Term, subject to Section 2.3(c) of
the Master Agreement.
Section 3.2 Supplemental Rent. Lessee shall pay to the Agent, or to
whomever shall be entitled thereto as expressly provided herein or in any other
Operative Document, any and all Supplemental Rent within five (5) Business Days
of the date the same shall become due and payable and in the event of any
failure on the part of Lessee to pay any Supplemental Rent, the Agent shall have
all rights, powers and remedies provided for herein or by law or in equity or
otherwise in the case of nonpayment of Basic Rent. All Supplemental Rent to be
paid pursuant to this Section 3.2 shall be payable in the type of funds and in
the manner set forth in Section 3.3.
Section 3.3 Method of Payment. Basic Rent shall be paid to the Agent,
and Supplemental Rent (including amounts due under Article XIV hereof) shall be
paid to the Agent (or to such Person as may be entitled thereto) or, in each
case, to such Person as the Agent (or such other Person) shall specify in
writing to Lessee, and at such place as the Agent (or such other Person) shall
specify in writing to Lessee, which specifications by the Agent shall be given
by the Agent at least five (5) Business Days prior to the due date therefor.
Each payment of Rent (including payments under Article XIV hereof) shall be made
by Lessee prior to 12:00 p.m. (noon) Atlanta, Georgia time at the place of
payment in funds consisting of lawful currency of the United States of America
which shall be immediately available on the scheduled date when such payment
shall be due, unless such scheduled date shall not be a Business Day, in which
case such payment shall be made on the next succeeding Business Day.
Section 3.4 Late Payment. If any Basic Rent shall not be paid on the
date when due, Lessee shall pay to the Agent, as Supplemental Rent, interest (to
the maximum extent permitted by law) on such overdue amount from and including
the due date thereof to but excluding the Business Day of payment thereof at the
Overdue Rate.
Section 3.5 Net Lease; No Setoff, Etc. This Lease is a net lease and
notwithstanding any other provision of this Lease, Lessee shall pay all Basic
Rent and Supplemental Rent, and all costs, charges, taxes (other than taxes
covered by the exclusion described in Section 7.4(b) of the Master Agreement),
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assessments and other expenses foreseen or unforeseen, for which Lessee or any
Indemnitee is or shall become liable by reason of Lessee's or such Indemnitee's
estate, right, title or interest in the Leased Properties, or that are connected
with or arise out of the acquisition (except the initial costs of purchase by
Lessor of its interest in any Leased Property, which costs, subject to the terms
of the Master Agreement, shall be funded by the Funding Parties pursuant to the
Master Agreement), construction (except Construction Costs to be funded under
the Master Agreement), installation, possession, use, occupancy, maintenance,
ownership, leasing, repairs and rebuilding of, or addition to, the Leased
Properties or any portion thereof, and any other amounts payable hereunder and
under the other Operative Documents without counterclaim, setoff, deduction or
defense and without abatement, suspension, deferment, diminution or reduction,
and Lessee's obligation to pay all such amounts throughout the Lease Term,
including the Construction Term, is absolute and unconditional. The obligations
and liabilities of Lessee hereunder shall in no way be released, discharged or
otherwise affected for any reason, including without limitation: (a) any defect
in the condition, merchantability, design, quality or fitness for use of any
Leased Property or any part thereof, or the failure of any Leased Property to
comply with all Applicable Law, including any inability to occupy or use any
Leased Property by reason of such non-compliance; (b) any damage to, removal,
abandonment, salvage, loss, contamination of or Release from, scrapping or
destruction of or any requisition or taking of any Leased Property or any part
thereof; (c) any restriction, prevention or curtailment of or interference with
any use of any Leased Property or any part thereof including eviction; (d) any
defect in title to or rights to any Leased Property or any Lien on such title or
rights or on any Leased Property; (e) any change, waiver, extension, indulgence
or other action or omission or breach in respect of any obligation or liability
of or by Lessor, the Agent, any Lease Participant or any Lender; (f) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceedings relating to Lessee, Lessor, any Lease
Participant, any Lender, the Agent or any other Person, or any action taken with
respect to this Lease by any trustee or receiver of Lessee, Lessor, any Lease
Participant, any Lender, the Agent or any other Person, or by any court, in any
such proceeding; (g) any claim that Lessee has or might have against any Person,
including without limitation, Lessor, any vendor, manufacturer, contractor of or
for any Building or any part thereof, the Agent, any Lease Participant, any
Lender or any Governmental Authority; (h) any failure on the part of Lessor to
perform or comply with any of the terms of this Lease, any other Operative
Document or of any other agreement; (i) any invalidity or unenforceability or
illegality or disaffirmance of this Lease against or by Lessee or any provision
hereof or any of the other Operative Documents or any provision of any thereof
whether or not related to the Transaction; (j) the impossibility or illegality
of performance by Lessee, Lessor or both; (k) any
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action by any court, administrative agency or other Governmental Authority; (l)
any restriction, prevention or curtailment of or interference with the
Construction or any use of any Leased Property or any part thereof; or (m) any
other occurrence whatsoever, whether similar or dissimilar to the foregoing,
whether or not Lessee shall have notice or knowledge of any of the foregoing.
Except as specifically set forth in Article XIV or X of this Lease, this Lease
shall be noncancellable by Lessee in any circumstance whatsoever and Lessee, to
the extent permitted by Applicable Law, waives all rights now or hereafter
conferred by statute or otherwise to quit, terminate or surrender this Lease, or
to any diminution, abatement or reduction of Rent payable by Lessee hereunder.
Each payment of Rent made by Lessee hereunder shall be final and Lessee shall
not seek or have any right to recover all or any part of such payment from
Lessor, the Agent, any Lease Participant, any Lender or any party to any
agreements related thereto for any reason whatsoever. Lessee assumes the sole
responsibility for the condition, use, operation, maintenance, and management of
the Leased Properties and Lessor shall have no responsibility in respect thereof
and shall have no liability for damage to the property of either Lessee or any
subtenant of Lessee on any account or for any reason whatsoever, other than
solely by reason of Lessor's willful misconduct or gross negligence (except for
willful misconduct and gross negligence imputed to Lessor solely as a result of
its interest in any Leased Property).
Section 3.6 Certain Taxes. Without limiting the generality of Section
3.5, Lessee agrees to pay when due all real estate taxes, personal property
taxes, gross sales taxes, including any sales or lease tax imposed upon the
rental payments hereunder or under a sublease, occupational license taxes, water
charges, sewer charges, assessments of any nature and all other governmental
impositions and charges of every kind and nature whatsoever (the "tax(es)"),
when the same shall be due and payable without penalty or interest; provided,
however, that this Section shall not apply to any of the taxes covered by the
exclusion described in Section 7.4(b) of the Master Agreement. It is the
intention of the parties hereto that, insofar as the same may lawfully be done,
Lessor shall be, except as specifically provided for herein, free from all
expenses in any way related to the Leased Properties and the use and occupancy
thereof. Any tax relating to a fiscal period of any taxing authority falling
partially within and partially outside the Lease Term, shall be apportioned and
adjusted between Lessor and Lessee. Lessee covenants to furnish Lessor and the
Agent, upon the Agent's request, within forty-five (45) days after the last date
when any tax must be paid by Lessee as provided in this Section 3.6, official
receipts of the appropriate taxing, authority or other proof satisfactory to
Lessor, evidencing the payment thereof.
So long as no Event of Default has occurred and is continuing, Lessee
may
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defer payment of a tax so long as the validity or the amount thereof is
contested by Lessee with diligence and in good faith; provided, however, that
Lessee shall furnish to Lessor and the Agent a bond in an amount and on terms
satisfactory to Lessor and the Agent and shall pay the tax in sufficient time to
prevent delivery of a tax deed. Such contest shall be at Lessee's sole cost and
expense. Lessee covenants to indemnify and save harmless Lessor, the Agent, each
Lease Participant and each Lender from any actual and reasonable costs or
expenses incurred by Lessor, the Agent, any Lease Participant or any Lender as a
result of such contest , which indemnification shall survive the termination of
this Lease; provided that neither the Agent nor any Lender shall be entitled to
claim any indemnity against Lessee pursuant to this sentence with respect to any
Construction Land Interest during the Construction Term therefor.
Section 3.7 Utility Charges. Lessee agrees to pay or cause to be paid
as and when the same are due and payable all charges for gas, water, sewer,
electricity, lights, heat, power, telephone or other communication service and
all other utility services used, rendered or supplied to, upon or in connection
with the Leased Properties.
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ARTICLE IV.
WAIVERS
During the Lease Term, Lessor's interest in the Leased Properties, the
Building(s) (whether or not completed) and the Land is demised and let by Lessor
"AS IS" subject to (a) the rights of any parties in possession thereof, (b) the
state of the title thereto existing at the time Lessor acquired its interest in
the Leased Properties, (c) any state of facts which an accurate survey or
physical inspection might show (including the survey delivered on the related
Closing Date), (d) all Applicable Law, and (e) any violations of Applicable Law
which may exist upon or subsequent to the commencement of the Lease Term. LESSEE
ACKNOWLEDGES THAT, ALTHOUGH LESSOR WILL OWN AND HOLD TITLE TO THE LEASED
PROPERTIES, LESSOR IS NOT A MANUFACTURER OF, OR DEALER IN ANY LEASED PROPERTY,
AND IS NOT RESPONSIBLE FOR THE DESIGN, DEVELOPMENT, BUDGETING AND CONSTRUCTION
OF THE BUILDING(S) OR ANY ALTERATIONS. NEITHER LESSOR, THE AGENT, ANY LEASE
PARTICIPANT NOR ANY LENDER HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO HAVE ANY
LIABILITY WHATSOEVER AS TO THE VALUE, MERCHANTABILITY, TITLE, HABITABILITY,
CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE LEASED PROPERTIES (OR
ANY PART THEREOF), OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS
OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTIES (OR ANY PART THEREOF), ALL
SUCH WARRANTIES BEING HEREBY DISCLAIMED, AND NEITHER LESSOR, THE AGENT, ANY
LEASE PARTICIPANT NOR ANY LENDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR
PATENT DEFECT THEREIN OR THE FAILURE OF ANY LEASED PROPERTY, OR ANY PART
THEREOF, TO COMPLY WITH ANY APPLICABLE LAW, except that Lessor hereby represents
and warrants that each Leased Property is and shall be free of Lessor Liens. As
between Lessor and Lessee, Lessee has been afforded full opportunity to inspect
each Leased Property, is satisfied with the results of its inspections of such
Leased Property and is entering into this Lease solely on the basis of the
results of its own inspections and all risks incident to the matters discussed
in the two preceding sentences, as between Lessor, the Agent, the Lease
Participants or the Lenders on the one hand, and Lessee, on the other, are to be
borne by Lessee. The provisions of this Article IV have been negotiated, and,
except to the extent otherwise expressly stated, the foregoing provisions are
intended to be a complete exclusion and negation of any representations or
warranties by Lessor, the Agent, the Lease Participants or the Lenders, express
or implied, with respect to the Leased Properties, that may arise pursuant to
any law now or hereafter in effect, or otherwise.
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ARTICLE V.
LIENS; EASEMENTS; PARTIAL CONVEYANCES
Lessee shall not directly or indirectly create, incur or assume, and
Lessee shall promptly discharge, any Lien on or with respect to any Leased
Property, the title thereto, or any interest therein, including any Liens which
arise out of the possession, use, occupancy, construction, repair or rebuilding
of any Leased Property or by reason of labor or materials furnished or claimed
to have been furnished to Lessee, or any of its contractors or agents or by
reason of the financing of any personalty or equipment purchased or leased by
Lessee from third parties and not financed by Lessor or Alterations constructed
by Lessee, except, in all cases, Permitted Liens.
Notwithstanding the foregoing paragraph, at the request of Lessee,
Lessor shall, from time to time during the Lease Term and upon reasonable
advance written notice from Lessee, and receipt of the materials specified in
the next succeeding sentence, consent to and join in any (i) grant of easements,
licenses, rights of way and other rights in the nature of easements, including,
without limitation, utility easements to facilitate Lessee's use, development
and construction of the Leased Properties, (ii) release or termination of
easements, licenses, rights of way or other rights in the nature of easements
which are for the benefit of the Land or the Building(s) or any portion thereof,
(iii) dedication or transfer of portions of the Land, not improved with a
building, for road, highway or other public purposes, (iv) execution of
agreements for ingress and egress and amendments to any covenants and
restrictions affecting the Land or the Building(s) or any portion thereof and
(v) request to any Governmental Authority for platting or subdivision or
replatting or resubdivision approval with respect to the Land or any portion
thereof or any parcel of land of which the Land or any portion thereof forms a
part or a request for rezoning or any variance from zoning or other governmental
requirements. Lessor's obligations pursuant to the preceding sentence shall be
subject to the requirements that:
(a) any such action shall be at the sole cost and expense of
Lessee and Lessee shall pay all actual and reasonable out-of-pocket costs of
Lessor, the Agent, any Lease Participant and any Lender in connection therewith
(including, without limitation, the reasonable fees of attorneys, architects,
engineers, planners, appraisers and other professionals reasonably retained by
Lessor, the Agent, any Lease Participant or any Lender in connection with any
such action),
(b) Lessee shall have delivered to Lessor and Agent a
certificate of a Responsible Officer of Lessee stating that
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(1) such action will not cause any Leased Property,
the Land or any Building or any portion thereof to fail to
comply in any material respect with the provisions of the
Lease or any other Operative Documents, or in any material
respect with Applicable Law; and
(2) such action will not materially reduce the Fair
Market Sales Value, utility or useful life of any Leased
Property, the Land or any Building nor Lessor's interest
therein; and
(c) in the case of any release or conveyance, if Lessor, the
Agent, any Lease Participant or any Lender so reasonably requests, Lessee will
cause to be issued and delivered to Lessor and the Agent by the Title Insurance
Company an endorsement to the Title Policy pursuant to which the Title Insurance
Company agrees that its liability for the payment of any loss or damage under
the terms and provisions of the Title Policy will not be affected by reason of
the fact that a portion of the real property referred to in Schedule A of the
Title Policy has been released or conveyed by Lessor.
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ARTICLE VI.
MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS
Section 6.1 Maintenance and Repair; Compliance With Law. Lessee, at its
own expense, shall at all times (a) maintain each Leased Property in good repair
and condition (subject to ordinary wear and tear), in accordance with prudent
industry standards and, in any event, in no less a manner as other similar
office, warehouse and distribution centers, as the case may be, owned or leased
by Lessee or its Affiliates, (b) make all Alterations in accordance with, and
maintain (whether or not such maintenance requires structural modifications or
Alterations) and operate and otherwise keep each Leased Property in compliance
in all material respects with, all Applicable Laws and insurance requirements,
and (c) make all material repairs, replacements and renewals of each Leased
Property or any part thereof which may be required to keep such Leased Property
in the condition required by the preceding clauses (a) and (b). Lessee shall
perform the foregoing maintenance obligations regardless of whether any Leased
Property is occupied or unoccupied. Lessee waives any right that it may now have
or hereafter acquire to (i) require Lessor, the Agent, any Lease Participant or
any Lender to maintain, repair, replace, alter, remove or rebuild all or any
part of any Leased Property or (ii) make repairs at the expense of Lessor, the
Agent, any Lease Participant or any Lender pursuant to any Applicable Law or
other agreements or otherwise. NEITHER LESSOR, THE AGENT, ANY LEASE PARTICIPANT
NOR ANY LENDER SHALL BE PERSONALLY LIABLE TO LESSEE OR TO ANY CONTRACTORS,
SUBCONTRACTORS, LABORERS, MATERIALMEN, SUPPLIERS OR VENDORS FOR SERVICES
PERFORMED OR MATERIAL PROVIDED ON OR IN CONNECTION WITH ANY LEASED PROPERTY OR
ANY PART THEREOF. Neither Lessor, the Agent, any Lease Participant nor any
Lender shall be required to maintain, alter, repair, rebuild or replace any
Leased Property in any way.
Section 6.2 Alterations. Lessee may, without the consent of Lessor, at
Lessee's own cost and expense, make Alterations which do not materially diminish
the value, utility or useful life of any Leased Property.
Section 6.3 Title to Alterations. Title to all Alterations shall
without further act vest in Lessor (subject to Lessee's right to remove trade
fixtures, personal property and equipment which were not acquired with funds
advanced by Lessor, any Lease Participant or any Lender at a time when no Event
of Default has occurred and is continuing) and shall be deemed to constitute a
part of the Leased Properties and be subject to this Lease.
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ARTICLE VII.
USE
Lessee may use each Leased Property or any part thereof for any lawful
purpose, and in a manner consistent with the standards applicable to properties
of a similar nature in the geographic area in which such Leased Property is
located, provided that such use does not materially adversely affect the Fair
Market Sales Value, utility, remaining useful life or residual value of such
Leased Property, and does not materially violate or conflict with, or constitute
or result in a material default under, any Applicable Law or any insurance
policy required hereunder. In the event that any use of any Leased Property
substantially changes the character or original intended use of such Leased
Property, as such character and intended use existed on the Closing Date
therefor, or Completion Date therefor in a manner or to an extent that, in
Lessor's, the Lease Participants' or the Lenders' reasonable opinion, adversely
affects the Fair Market Sales Value and/or marketability of such Building,
Lessee shall, upon the termination or expiration of this Lease, at Lessor's
request, restore such Leased Property to its general character and intended use
on the Closing Date or the Completion Date (ordinary wear and tear excepted).
Lessee shall not commit or permit any waste of any Leased Property or any
material part thereof.
ARTICLE VIII.
INSURANCE
(a) At any time during which any part of any Building or any
Alteration is under construction and as to any part of any Building or any
Alteration under construction, Lessee shall maintain, or cause to be maintained,
at its sole cost and expense, as a part of its blanket policies or otherwise,
"all risks" non-reporting completed value form of builder's risk insurance.
(b) During the Lease Term, Lessee shall maintain, at its sole
cost and expense, as a part of its blanket policies or otherwise, insurance
against loss or damage to any Building by fire and other risks, including
comprehensive boiler and machinery coverage, on terms and in amounts no less
favorable than insurance covering other similar properties owned or leased by
Lessee and that are in accordance with normal industry practice, but in no event
less than the replacement cost of such Building from time to time. If at any
time during the Lease Term with respect to a Leased Property subject hereto the
area in which such Leased Property is located is designated a "flood- prone"
area pursuant to the Flood Disaster Protection Act of 1973, or any amendments or
supplements thereto, then Lessee shall comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973. In addition,
Lessee will
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fully comply with the requirements of the National Flood Insurance Act of 1968
and the Flood Disaster Protection Act of 1973, as each may be amended from time
to time, and with any other Applicable Law, concerning flood insurance to the
extent that it may apply to any such Leased Property.
(c) During the Lease Term, Lessee shall maintain, at its sole
cost and expense, commercial general liability insurance with respect to the
Leased Properties, as is ordinarily procured by Persons who own or operate
similar properties in the same geographic area. Such insurance shall be on terms
and in amounts that are no less favorable than insurance maintained by Lessee or
its Affiliates with respect to similar properties that it owns or leases and
that are in accordance with normal industry practice, but in no event less than
$1,000,000 per occurrence. Such insurance policies shall also provide that
Lessee's insurance shall be considered primary insurance. Nothing in this
Article VIII shall prohibit Lessor, the Agent, any Lease Participant or any
Lender from carrying at its own expense other insurance on or with respect to
the Leased Properties, provided that any insurance carried by Lessor, the Agent,
any Lease Participant or any Lender shall not prevent Lessee from carrying the
insurance required hereby.
(d) Each policy of insurance required to be maintained by
Lessee pursuant to clauses (a) and (b) of this Article VIII shall provide that
all insurance proceeds in respect of any loss or occurrence shall be adjusted by
Lessee, except (a) that with respect to any loss, the estimated cost of
restoration of which is in excess of 50% of the Funded Amounts with respect to
the related Leased Property, the adjustment thereof shall be subject to the
prior written approval of the Agent (or of Lessor if the Funded Amounts have
been fully paid) and the insurance proceeds therefor shall be paid to the Agent
(or to Lessor if the Funded Amounts have been fully paid) for application in
accordance with this Lease, and (b) if, and for so long as an Event of Default
exists, all losses shall be adjusted solely by, and all insurance proceeds shall
be paid solely to, the Agent (or Lessor if the Funded Amounts have been fully
paid) for application pursuant to this Lease.
(e) On the Closing Date for each Leased Property, on the
Completion Date and on each anniversary of the Initial Closing Date, Lessee
shall furnish Lessor with certificates showing the insurance required under this
Article VIII to be in effect and naming Lessor, the Agent, the Lease
Participants and the Lenders as additional insureds. Such certificates shall
include a provision for thirty (30) days' advance written notice by the insurer
to Lessor and the Agent in the event of cancellation or expiration or nonpayment
of premium with respect to such insurance, and shall include a customary breach
of warranty clause.
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(f) Each policy of insurance maintained by Lessee pursuant to
this Article VIII shall (i) provide that such insurance shall be primary,
without right of contribution from any other insurance that is covered by any
Additional Insured, (ii) provide that all of the provisions thereof, except the
limits of liability, shall operate in the same manner as if there were a
separate policy covering each Additional Insured, (iii) provide that the related
insurer waives any right of set-off or counterclaim against each Additional
Insured, (iv) provide that no Additional Insured shall have any obligation or
liability for premiums, commissions, assessments or calls in connection with
such insurance, (v) contain the waiver of any right of subrogation of the
insurer against each Additional Insured, (vi) provide that in respect of the
interests of each Additional Insured, such policies shall not be invalidated by
any fraud, action, inaction or misrepresentation of Lessee or any other Person
and shall insure each Additional Insured regardless of any breach of any terms,
conditions or warranty contained in such policy by Lessee or any other Person
and (vii) provide that if the related insurer cancels such insurance for any
reason whatsoever, or such insurance is allowed to lapse for nonpayment of
premium or the scope of coverage thereof is changed in any material way, such
cancellation, lapse or change in scope shall not be effective as to any
Additional Insured until thirty (30) days after written notice is given by such
insurer to such Additional Insured.
(g) All insurance policies carried in accordance with this
Article VIII shall be maintained with insurers rated at least A by A.M. Best &
Company, and in all cases the insurer shall be qualified to insure risks in the
State where such Leased Property is located.
ARTICLE IX.
ASSIGNMENT AND SUBLEASING
Lessee may not assign any of its right, title or interest in, to or
under this Lease, except as set forth in the following sentence. Lessee may
sublease all or any portion of any Leased Property to any Subsidiary of the
Guarantor, provided that (a) all obligations of Lessee shall continue in full
effect as obligations of a principal and not of a guarantor or surety, as though
no sublease had been made; (b) such sublease shall be expressly subject and
subordinate to this Lease, the Lease Participation Agreement, the Loan Agreement
and the other Operative Documents; (c) each such sublease shall terminate on or
before the Lease Termination Date, and (d) the Guarantor shall remain liable for
performance of all obligations of Lessee under this Lease and the other
Operative Documents.
Except pursuant to an Operative Document, this Lease shall not be
mortgaged or pledged by Lessee, nor shall Lessee mortgage or pledge any
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interest in any Leased Property or any portion thereof. Any such mortgage or
pledge shall be void.
ARTICLE X.
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
Section 10.1 Event of Loss. Any event (i) which would otherwise
constitute a Casualty during the Base Term, and (ii) which, in the good-faith
judgment of Lessee, renders repair and restoration of a Leased Property
impossible, impractical or uneconomical, or requires repairs to the related
Leased Property that, with the exercise of reasonable diligence, are impossible
to complete by the Lease Termination Date, and (iii) as to which Lessee, within
sixty (60) days after the occurrence of such event, delivers to Lessor an
Officer's Certificate notifying Lessor of such event and of such judgment, shall
constitute an "Event of Loss". In the case of any other event which constitutes
a Casualty, Lessee shall restore such Leased Property pursuant to Section 10.3.
If an Event of Loss other than an Event of Taking shall occur, Lessee shall pay
to Lessor on the earlier of (i) the Lease Termination Date and (ii) the next
Payment Date occurring not less than thirty (30) days after the delivery of the
Officer's Certificate pursuant to clause (iii) above an amount equal to the
related Leased Property Balance. Upon Lessor's receipt of such Leased Property
Balance on such date, Lessor shall cause Lessor's interest in such Leased
Property to be conveyed to Lessee in accordance with and subject to the
provisions of Section 14.5 hereof; upon completion of such purchase, but not
prior thereto, this Lease and all obligations hereunder with respect to such
Leased Property shall terminate, except with respect to obligations and
liabilities hereunder, actual or contingent, that have arisen or relate to
events occurring on or prior to such date of purchase, or which are expressly
stated herein to survive termination of this Lease.
Upon the consummation of the purchase of any Leased Property pursuant
to this Section 10.1, any proceeds derived from insurance required to be
maintained by Lessee pursuant to this Lease for any Leased Property remaining
after payment of such purchase price shall be paid over to, or retained by,
Lessee or as it may direct, and Lessor shall assign to Lessee, without warranty,
all of Lessor's rights to and interest in such insurance required to be
maintained by Lessee pursuant to this Lease.
Section 10.2 Event of Taking. Any event (i) which constitutes a
Condemnation of all of, or substantially all of, a Leased Property, or (ii) (A)
which would otherwise constitute a Condemnation, (B) which, in the good-faith
judgment of Lessee, renders restoration and rebuilding of a Leased Property
14
impossible, impractical or uneconomical, or requires repairs to the related
Leased Property that, with the exercise of reasonable diligence, are impossible
to complete by the Lease Termination Date, and (C) as to which Lessee, within
sixty (60) days after the occurrence of such event, delivers to Lessor an
Officer's Certificate notifying Lessor of such event and of such judgment, shall
constitute an "Event of Taking". In the case of any other event which
constitutes a Condemnation, Lessee shall restore and rebuild such Leased
Property pursuant to Section 10.4. If an Event of Taking shall occur, Lessee
shall pay to Lessor (1) on the earlier of (i) the Lease Termination Date and
(ii) the next Payment Date occurring not less than thirty (30) days after the
occurrence of such Event of Taking, in the case of an Event of Taking described
in clause (i) above, or (2) on the next Payment Date occurring not less than
thirty (30) days after the delivery of the Officer's Certificate pursuant to
clause (ii) above, in the case of an Event of Taking described in clause (ii)
above, an amount equal to the related Leased Property Balance. Upon Lessor's
receipt of such Leased Property Balance on such date, Lessor shall cause
Lessor's interest in such Leased Property, and in all condemnation proceeds
related thereto, to be conveyed to Lessee in accordance with and subject to the
provisions of Section 14.5 hereof (provided that such conveyance shall be
subject to all rights of the condemning authority); upon completion of such
purchase, but not prior thereto, this Lease and all obligations hereunder with
respect to such Leased Property shall terminate, except with respect to
obligations and liabilities hereunder, actual or contingent, that have arisen or
relate to events occurring on or prior to such date of purchase, or which are
expressly stated herein to survive termination of this Lease.
Upon the consummation of the purchase of such Leased Property pursuant
to this Section 10.2, all Awards received by Lessor, after deducting any
reasonable costs incurred by Lessor in collecting such Awards, received or
payable on account of an Event of Taking with respect to such Leased Property
during the related Lease Term shall be paid to Lessee, and all rights of Lessor
in Awards not then received shall be assigned to Lessee by Lessor.
Section 10.3 Casualty. If a Casualty shall occur which is not an Event
of Loss, Lessee shall rebuild and restore the affected Leased Property, will
complete the same prior to the Lease Termination Date, and will cause the
condition set forth in Section 3.5 (c) of the Master Agreement to be fulfilled
with respect to such restoration and rebuilding prior to the Lease Termination
Date, regardless of whether insurance proceeds received as a result of such
Casualty are sufficient for such purpose.
Section 10.4 Condemnation. If a Condemnation shall occur which is not
an Event of Loss, Lessee shall rebuild and restore the affected Leased Property,
15
will complete the same prior to the Lease Termination Date, and will cause the
condition set forth in Section 3.5(c) of the Master Agreement to be fulfilled
with respect to such restoration and rebuilding prior to the Lease Termination
Date.
Section 10.5 Verification of Restoration and Rebuilding. In the event
of Casualty or Condemnation, to verify Lessee's compliance with the foregoing
Section 10.3 or 10.4, as appropriate, Lessor, the Agent, the Lease Participants,
the Lenders and their respective authorized representatives may, upon five (5)
Business Days' notice to Lessee, make inspections of the affected Leased
Property with respect to (i) the extent of the Casualty or Condemnation and (ii)
the restoration and rebuilding of the related Building and the Land. All actual
and reasonable out-of-pocket costs of such inspections incurred by Lessor, the
Agent, any Lease Participant or any Lender will be paid by Lessee promptly after
written request. No such inspection shall unreasonably interfere with Lessee's
operations or the operations of any other occupant of such Leased Property. None
of the inspecting parties shall have any duty to make any such inspection or
inquiry and none of the inspecting parties shall incur any liability or
obligation by reason of making or not making any such inspection or inquiry.
Section 10.6 Application of Payments. All proceeds (except for payments
under insurance policies maintained other than pursuant to Article VIII of this
Lease) received at any time by Lessor, Lessee or the Agent from any insurer,
Governmental Authority or other Person with respect to any Condemnation or
Casualty to any Leased Property or any part thereof or with respect to an Event
of Loss or an Event of Taking, plus the amount of any payment that would have
been due from an insurer but for Lessee's self-insurance or deductibles ("Loss
Proceeds"), shall (except to the extent Section 10.9 applies) be applied as
follows:
(a) In the event Lessee purchases such Leased Property
pursuant to Section 10.1 or Section 10.2, such Loss Proceeds shall be
applied as set forth in Section 10.1 or Section 10.2, as the case may
be;
(b) In the event of a Casualty at such time when no Event of
Default has occurred and is continuing and Lessee is obligated to
repair and rebuild such Leased Property pursuant to Section 10.3,
Lessee may, in good faith and subsequent to the date of such Casualty,
certify to Lessor and to the applicable insurer that no Event of
Default has occurred and is continuing, in which event the applicable
insurer shall pay the Loss Proceeds to Lessee, unless the estimated
cost of restoration exceeds 50% of the original cost of such Leased
Property, in which case the Loss
16
Proceeds shall be paid to the Agent (or Lessor if the Funded Amounts
have been paid in full), and shall be promptly released to Lessee upon
certification by Lessee to Lessor and the Agent that Lessee has
incurred costs in the amount requested to be released for the repair
and rebuilding of such Leased Property;
(c) In the event of a Condemnation at such time when no Event
of Default has occurred and is continuing and Lessee is obligated to
repair and rebuild such Leased Property pursuant to Section 10.4,
Lessor shall upon Lessee's request assign to Lessee Lessor's interest
in any applicable Awards; and
(d) As provided in Section 10.8, if such section is
applicable.
During any period of repair or rebuilding pursuant to this Article X,
this Lease will remain in full force and effect and Basic Rent shall continue to
accrue and be payable without abatement or reduction. Lessee shall maintain
records setting forth information relating to the receipt and application of
payments in accordance with this Section 10.6. Such records shall be kept on
file by Lessee at its offices and shall be made available to Lessor, the Lease
Participants, the Lenders and the Agent upon request.
Section 10.7 Prosecution of Awards. (a) If, during the continuance of
any Event of Default, any Condemnation shall occur, Lessee shall give to Lessor
and the Agent promptly, but in any event within thirty (30) days after the
occurrence thereof, written notice of such occurrence and the date thereof,
generally describing the nature and extent of such Condemnation. With respect to
any Event of Taking or any Condemnation, Lessee shall control the negotiations
with the relevant Governmental Authority as to any proceeding in respect of
which Awards are required, under Section 10.6, to be assigned or released to
Lessee, unless an Event of Default shall have occurred and be continuing, in
which case (1) the Agent (or Lessor if the Funded Amounts have been fully paid)
shall control such negotiations; and (2) Lessee hereby irrevocably assigns,
transfers and sets over to Lessor all rights of Lessee to any Award made during
the continuance of an Event of Default on account of any Event of Taking or any
Condemnation and, if there will not be separate Awards to Lessor and Lessee on
account of such Event of Taking or Condemnation, irrevocably authorizes and
empowers the Agent (or Lessor if the Funded Amounts have been fully paid) during
the continuance of an Event of Default, with full power of substitution, in the
name of Lessee or otherwise (but without limiting the obligations of Lessee
under this Article X), to file and prosecute what would otherwise be Lessee's
claim for any such Award and to collect, receipt for and retain the same;
provided, however, that in any event Lessor and
17
the Agent may participate in such negotiations, and no settlement will be made
without the prior consent of the Agent (or Lessor if the Funded Amounts have
been fully paid), not to be unreasonably withheld.
(b) Notwithstanding the foregoing, Lessee may prosecute, and Lessor
shall have no interest in, any claim with respect to Lessee's personal property
and equipment not financed by Lessor and Lessee's relocation expenses.
Section 10.8 Application of Certain Payments Not Relating to an Event
of Taking. In case of a requisition for temporary use of all or a portion of any
Leased Property which is not an Event of Taking, this Lease shall remain in full
force and effect with respect to such Leased Property, without any abatement or
reduction of Basic Rent, and the Awards for such Leased Property shall, unless
an Event of Default has occurred and is continuing, be paid to Lessee.
Section 10.9 Other Dispositions. Notwithstanding the foregoing
provisions of this Article X, so long as an Event of Default shall have occurred
and be continuing, any amount that would otherwise be payable to or for the
account of, or that would otherwise be retained by, Lessee pursuant to this
Article X shall be paid to the Agent (or Lessor if the Funded Amounts have been
fully paid) as security for the obligations of Lessee under this Lease and, at
such time thereafter as no Event of Default shall be continuing, such amount
shall be paid promptly to Lessee to the extent not previously applied by Lessor
or the Agent in accordance with the terms of this Lease or the other Operative
Documents.
Section 10.10 No Rent Abatement. Rent shall not ▇▇▇▇▇ hereunder by
reason of any Casualty, any Event of Loss, any Event of Taking or any
Condemnation of any Leased Property, and Lessee shall continue to perform and
fulfill all of Lessee's obligations, covenants and agreements hereunder
notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation
until the Lease Termination Date.
18
ARTICLE XI.
INTEREST CONVEYED TO LESSEE
Lessor and Lessee intend that this Lease be treated, for accounting
purposes, as an operating lease. For all other purposes, Lessee and Lessor
intend that the transaction represented by this Lease be treated as a financing
transaction; for such purposes, it is the intention of the parties hereto (i)
that this Lease be treated as a mortgage or deed of trust (whichever is
applicable in the jurisdictions in which the Leased Properties are located) and
security agreement, encumbering the Leased Properties, and that Lessee, as
grantor, hereby grants to Lessor, as mortgagee or beneficiary and secured party,
or any successor thereto, a first and paramount Lien on each Leased Property,
(ii) that Lessor shall have, as a result of such determination, all of the
rights, powers and remedies of a mortgagee, deed of trust beneficiary or secured
party available under Applicable Law to take possession of and sell (whether by
foreclosure or otherwise) any Leased Property, (iii) that the effective date of
such mortgage, security deed or deed of trust shall be the effective date of or
the related Lease Supplement, (iv) that the recording of this Lease or a Lease
Supplement shall be deemed to be the recording of such mortgage or deed of
trust, (v) that the obligations secured by such mortgage, security deed or deed
of trust shall include the Funded Amounts and all Basic Rent and Supplemental
Rent hereunder and all other obligations of and amounts due from Lessee
hereunder and under the Operative Documents and (vi) that Lessee will be treated
as the owner of the Leased Properties leased by Lessee for tax purposes.
ARTICLE XII.
EVENTS OF DEFAULT
The following events shall constitute Events of Default (whether any
such event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) Lessee shall fail to make any payment of Basic Rent when due, and
such failure shall continue for three or more Business Days;
(b) Lessee shall fail to make any payment of Rent (other than Basic
Rent) or any other amount payable hereunder or under any of the other Operative
Documents (other than Basic Rent and other than as set forth in clause (c)), and
such failure shall continue for a period of ten (10) days;
19
(c) Lessee shall fail to pay the Funded Amount or Lease Balance when
due pursuant to Sections 10.1, 10.2, 14.1 or 14.2, or Lessee shall fail to pay
the Recourse Deficiency Amount when required pursuant to Article XIV or the
Construction Agent shall fail to make any payment when due under the
Construction Agency Agreement;
(d) Lessee shall fail to maintain insurance as required by Article VIII
hereof, and such failure shall continue until the earlier of (i) 15 days after
written notice thereof from Lessor and (ii) the day immediately preceding the
date on which any applicable insurance coverage would otherwise lapse or
terminate;
(e) any representation or warranty by Lessee in any Operative Document
or in any certificate or document delivered to Lessor, the Agent, any Lease
Participant or any Lender pursuant to any Operative Document shall have been
incorrect in any material respect when made;
(f) Guarantor shall repudiate or terminate the Guaranty, or the
Guaranty shall at any time cease to be in full force and effect or cease to be
the legal, valid and binding obligation of Guarantor;
(g) any event of default (after giving effect to any grace period)
shall have occurred and be continuing under the Loan Facility Documents or the
SouthTrust Loan Facility Agreement, or all or any part of the obligations due
and owing under the Loan Facility Agreement or the obligations due and owing
under the SouthTrust Loan Facility Agreement are accelerated, is declared to be
due and payable is required to be prepaid or redeemed, in each case prior to the
stated maturity thereof;
(h) the Lessee or any Subsidiary (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of or premium or
interest on any Material Indebtedness that is outstanding, when and as the same
shall become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument evidencing such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable;
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer to
20
prepay, redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof;
(i) the Lessee or any Subsidiary shall (i) commence a voluntary case or
other proceeding or file any petition seeking liquidation, reorganization or
other relief under any federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (i) of this paragraph, (iii) apply for or consent to the appointment
of a custodian, trustee, receiver, liquidator or other similar official for the
Lessee or any such Subsidiary or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of creditors,
or (vi) take any action for the purpose of effecting any of the foregoing;
(j) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Lessee or any Subsidiary or its debts, or any substantial part
of its assets, under any federal, state or foreign bankruptcy, insolvency or
other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the
Lessee or any Subsidiary or for a substantial part of its assets, and in any
such case, such proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the foregoing shall
be entered;
(k) the Lessee or any Subsidiary shall become unable to pay, shall
admit in writing its inability to pay, or shall fail to pay, its debts as they
become due;
(l) an ERISA Event shall have occurred that when taken together with
other ERISA Events that have occurred, could reasonably be expected to result in
liability to the Lessee and the Subsidiaries in an aggregate amount exceeding
$1,000,000 or otherwise having a Material Adverse Effect;
(m) any judgment or order for the payment of money in excess of
$1,000,000 in the aggregate shall be rendered against the Lessee or any
Subsidiary, and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect;
(n) any non-monetary judgment or order shall be rendered against the
21
Lessee or any Subsidiary that could reasonably be expected to have a Material
Adverse Effect, and there shall be a period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect;
(o) the Lessee shall fail to observe or perform any covenant or
agreement contained in Section 5.1, 5.2 or 5.3 (solely with respect to the
Lessee's existence) or any of Sections 5.10 through 5.24 of the Master
Agreement;
(p) Lessee shall fail in any material respect to timely, perform or
observe any covenant, condition or agreement (not included in clause (a), (b),
(c), (d), (e), (f), (g), (h), (i), (j), (k), (m), (n) or (o) of this Article
XII) to be performed or observed by it hereunder or under any other Operative
Document and such failure shall continue for a period of 30 days after Lessee's
receipt of written notice thereof from Lessor, the Agent, any Lease Participant
or any Lender; and
(q) a Change in Control shall occur.
ARTICLE XIII.
ENFORCEMENT
Section 13.1 Remedies. Upon the occurrence and during the continuance
of any Event of Default, Lessor may do one or more of the following as Lessor in
its sole discretion shall determine, without limiting any other right or remedy
Lessor may have on account of such Event of Default (including, without
limitation, the obligation of Lessee to purchase the Leased Properties as set
forth in Section 14.3):
(a) Lessor may, by notice to Lessee, rescind or terminate this Lease as
of the date specified in such notice; however, (A) no reletting, reentry or
taking of possession of any Leased Property by Lessor will be construed as an
election on Lessor's part to terminate this Lease unless a written notice of
such intention is given to Lessee, (B) notwithstanding any reletting, reentry or
taking of possession, Lessor may at any time thereafter elect to terminate this
Lease for a continuing Event of Default, and (C) no act or thing done by Lessor
or any of its agents, representatives or employees and no agreement accepting a
surrender of any Leased Property shall be valid unless the same be made in
writing and executed by Lessor;
(b) Lessor may (i) demand that Lessee, and Lessee shall upon the
written demand of Lessor, return the Leased Properties promptly to Lessor in
22
the manner and condition required by, and otherwise in accordance with all of
the provisions of, Articles VI and XIV hereof as if the Leased Properties were
being returned at the end of the Lease Term, and Lessor shall not be liable for
the reimbursement of Lessee for any costs and expenses incurred by Lessee in
connection therewith and (ii) without prejudice to any other remedy which Lessor
may have for possession of the Leased Properties, and to the extent and in the
manner permitted by Applicable Law, enter upon any Leased Property and take
immediate possession of (to the exclusion of Lessee) any Leased Property or any
part thereof and expel or remove Lessee and any other person who may be
occupying such Leased Property, by summary proceedings or otherwise, all without
liability to Lessee for or by reason of such entry or taking of possession,
whether for the restoration of damage to property caused by such taking or
otherwise and, in addition to Lessor's other damages, Lessee shall be
responsible for the actual and reasonable costs and expenses of reletting,
including brokers' fees and the reasonable costs of any alterations or repairs
made by Lessor;
(c) Lessor may (i) sell all or any part of any Leased Property at
public or private sale, as Lessor may determine, free and clear of any rights of
Lessee and without any duty to account to Lessee with respect to such action or
inaction or any proceeds with respect thereto (except to the extent required by
clause (ii) below if Lessor shall elect to exercise its rights thereunder) in
which event Lessee's obligation to pay Basic Rent hereunder for periods
commencing after the date of such sale shall be terminated or proportionately
reduced, as the case may be; and (ii) if Lessor shall so elect, demand that
Lessee pay to Lessor, and Lessee shall pay to Lessor, on the date of such sale,
as liquidated damages for loss of a bargain and not as a penalty (the parties
agreeing that Lessor's actual damages would be difficult to predict, but the
aforementioned liquidated damages represent a reasonable approximation of such
amount) (in lieu of Basic Rent due for periods commencing on or after the
Payment Date coinciding with such date of sale (or, if the sale date is not a
Payment Date, the Payment Date next preceding the date of such sale)), an amount
equal to (a) the excess, if any, of (1) the sum of (A) all Rent due and unpaid
to and including such Payment Date and (B) the Lease Balance, computed as of
such date, over (2) the net proceeds of such sale (that is, after deducting all
costs and expenses incurred by Lessor, the Agent, any Lease Participant or any
Lender incident to such conveyance (including, without limitation, all costs,
expenses, fees, premiums and taxes described in Section 14.5(b))); plus (b)
interest at the Overdue Rate on the foregoing amount from such Payment Date
until the date of payment;
(d) Lessor may, at its option, not terminate this Lease, and continue
to collect all Basic Rent, Supplemental Rent, and all other amounts (including,
without limitation, the Funded Amount) due Lessor (together with all costs of
23
collection) and enforce Lessee's obligations under this Lease as and when the
same become due, or are to be performed, and at the option of Lessor, upon any
abandonment of any Leased Property by Lessee or re-entry of same by Lessor,
Lessor may, in its sole and absolute discretion, elect not to terminate this
Lease with respect thereto and may make such reasonable alterations and
necessary repairs in order to relet such Leased Property, and relet such Leased
Property or any part thereof for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Lessor in its reasonable discretion may deem
advisable; and upon each such reletting all rentals actually received by Lessor
from such reletting shall be applied to Lessee's obligations hereunder in such
order, proportion and priority as Lessor may elect in Lessor's sole and absolute
discretion; it being agreed that under no circumstances shall Lessee benefit
from its default from any increase in market rents. If such rentals received
from such reletting during any Rent Period are less than the Rent to be paid
during that Rent Period by Lessee hereunder, Lessee shall pay any deficiency, as
calculated by Lessor, to Lessor on the Payment Date for such Rent Period;
(e) Lessor may, whether or not Lessor shall have exercised or shall
thereafter at any time exercise any of its rights under paragraph (b), (c) or
(d) of this Article XIII with respect to such Leased Property, demand, by
written notice to Lessee specifying a date (the "Final Rent Payment Date") not
earlier than 30 days after the date of such notice, that Lessee purchase, on the
Final Rent Payment Date, all of the remaining Leased Properties in accordance
with the provisions of Sections 14.2, 14.4 and 14.5; provided, however, that (1)
such purchase shall occur on the date set forth in such notice, notwithstanding
the provision in Section 14.2 calling for such purchase to occur on the Lease
Termination Date; and (2) Lessor's obligations under Section 14.5(a) shall be
limited to delivery of a special warranty deed and quit claim ▇▇▇▇ of sale of
such Leased Properties, without recourse or warranty, but free and clear of
Lessor Liens;
(f) Lessor may exercise any other right or remedy that may be available
to it under Applicable Law, or proceed by appropriate court action (legal or
equitable) to enforce the terms hereof or to recover damages for the breach
hereof. Separate suits may be brought to collect any such damages for any Rent
Period(s), and such suits shall not in any manner prejudice Lessor's right to
collect any such damages for any subsequent Rent Period(s), or Lessor may defer
any such suit until after the expiration of the Lease Term, in which event such
suit shall be deemed not to have accrued until the expiration of the Lease Term;
or
(g) Lessor may retain and apply against Lessor's damages all sums which
24
Lessor would, absent such Event of Default, be required to pay to, or turn over
to, Lessee pursuant to the terms of this Lease.
Section 13.2 Remedies Cumulative; No Waiver; Consents. To the extent
permitted by, and subject to the mandatory requirements of, Applicable Law, each
and every right, power and remedy herein specifically given to Lessor or
otherwise in this Lease shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute, and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
Lessor, and the exercise or the beginning of the exercise of any power or remedy
shall not be construed to be a waiver of the right to exercise at the same time
or thereafter any right, power or remedy. No delay or omission by Lessor in the
exercise of any right, power or remedy or in the pursuit of any remedy shall
impair any such right, power or remedy or be construed to be a waiver of any
default on the part of Lessee or to be an acquiescence therein. Lessor's consent
to any request made by Lessee shall not be deemed to constitute or preclude the
necessity for obtaining Lessor's consent, in the future, to all similar
requests. No express or implied waiver by Lessor of any Event of Default shall
in any way be, or be construed to be, a waiver of any future or subsequent
Potential Event of Default or Event of Default. To the extent permitted by
Applicable Law, Lessee hereby waives any rights now or hereafter conferred by
statute or otherwise that may require Lessor to sell, lease or otherwise use any
Leased Property or part thereof in mitigation of Lessor's damages upon the
occurrence of an Event of Default or that may otherwise limit or modify any of
Lessor's rights or remedies under this Article XIII.
Section 13.3 Purchase Upon an Event of Default. Upon the occurrence
of an Event of Default, until such time as Lessor commences material
preparations for the sale or re-lease of the Leased Properties, Lessee may
purchase all, but not less than all, of the Leased Properties for the Lease
Balance, including any amounts due pursuant to Section 7.5 of the Master
Agreement. Such purchase shall be made in accordance with Section 14.5, upon not
less than five (5) Business Days' written notice (which shall be irrevocable) to
Lessor, which notice shall set forth the date of purchase (which shall be a date
no later than 30 days from the date of such notice).
25
ARTICLE XIV.
SALE, RETURN OR PURCHASE OF LEASED PROPERTY; RENEWAL
Section 14.1 Lessee's Option to Purchase. (a) Subject to the terms,
conditions and provisions set forth in this Article XIV, Lessee shall have the
option (the "Purchase Option"), to be exercised as set forth below, to purchase
from Lessor, Lessor's interest in all of the Leased Properties; provided that,
except as set forth in paragraph (b) below, such option must be exercised with
respect to all, but not less than all, of the Leased Properties. Such option
must be exercised by written notice to Lessor not later than twelve months prior
to the Lease Termination Date which notice shall be irrevocable; such notice
shall specify the date that such purchase shall take place, which date shall be
a date occurring not less than thirty (30) days after such notice or the Lease
Termination Date (whichever is earlier). If the Purchase Option is exercised
pursuant to the foregoing, then, subject to the provisions set forth in this
Article XIV, on the applicable purchase date or the Lease Termination Date, as
the case may be, Lessor shall convey to Lessee, by special warranty deed and
▇▇▇▇ of sale without recourse or warranty (other than as to the absence of
Lessor Liens) and Lessee shall purchase from Lessor, Lessor's interest in the
Leased Properties.
(b) Subject to the terms, conditions and provisions set forth in this
Article XIV, Lessee shall have the option (the "Partial Purchase Option"), to be
exercised as set forth below, to purchase Lessor's interest in any Leased
Property; provided that such option may not be exercised unless at least ten
Leased Properties shall remain subject to the Lease after giving effect to such
Partial Purchase Option, unless it is exercised with respect to all Leased
Properties as set forth in paragraph (a) above. Such option must be exercised by
written notice to Lessor not later than twelve months prior to the Lease
Termination Date, which notice shall be irrevocable; such notice shall specify
the Leased Property to be purchased and the date that such purchase shall take
place, which date shall be a date occurring not less than thirty (30) days after
such notice or the Lease Termination Date (whichever is earlier). If a Partial
Purchase Option is exercised pursuant to the foregoing, subject to the
provisions set forth in this Article XIV, on the applicable purchase date or the
Lease Termination Date, as the case may be, Lessor shall convey to Lessee,
without recourse or warranty (other than as to the absence of Lessor Liens) and
Lessee shall purchase from Lessor, Lessor's interest in the Leased Property that
is the subject of such Partial Purchase Option.
Section 14.2 Conveyance to Lessee. Unless (a) Lessee shall have
properly exercised the Purchase Option and purchased the Leased Properties
pursuant to Section 14.1(a) hereof, or (b) Lessee shall have properly exercised
26
the Remarketing Option and shall have fulfilled all of the conditions of Section
14.6 hereof, then, subject to the terms, conditions and provisions set forth in
this Article XIV, Lessee shall purchase from Lessor, and Lessor shall convey to
Lessee, on the Lease Termination Date all of Lessor's interest in the Leased
Properties. Lessee may designate, in a notice given to Lessor not less than ten
(10) Business Days prior to the closing of such purchase (time being of the
essence), the transferee to whom the conveyance shall be made (if other than to
Lessee), in which case such conveyance shall (subject to the terms and
conditions set forth herein) be made to such designee; provided, however, that
such designation of a transferee shall not cause Lessee to be released, fully or
partially, from any of its obligations under this Lease.
Section 14.3 Acceleration of Purchase Obligation. Lessee shall be
obligated to purchase Lessor's interest in the Leased Properties immediately,
automatically and without notice upon the occurrence of any Event of Default
specified in paragraph (i), (j) or (k) of Article XII, for the purchase price
set forth in Section 14.4. Upon the occurrence and during the continuance of any
other Event of Default, Lessee shall be obligated to purchase Lessor's interest
in the Leased Properties for the purchase price set forth in Section 14.4 upon
notice of such obligation from Lessor.
Section 14.4 Determination of Purchase Price. Upon the purchase by
Lessee of Lessor's interest in the Leased Properties upon the exercise of the
Purchase Option or pursuant to Section 14.2 or 14.3, the aggregate purchase
price for all of the Leased Properties shall be an amount equal to the Lease
Balance as of the closing date for such purchase, plus any amount due pursuant
to Section 7.5(f) of the Master Agreement as a result of such purchase. Upon the
purchase by Lessee of Lessor's interest in a Leased Property upon the exercise
of a Partial Purchase Option, the purchase price for such Leased Property shall
be an amount equal to the Leased Property Balance for such Leased Property as of
the closing date for such purchase, plus any amount due pursuant to Section
7.5(f) of the Master Agreement as a result of such purchase.
Section 14.5 Purchase Procedure. (a) If Lessee shall purchase Lessor's
interest in a Leased Property pursuant to any provision of this Lease, (i)
Lessee shall accept from Lessor and Lessor shall convey such Leased Property by
a duly executed and acknowledged special warranty deed and quit claim ▇▇▇▇ of
sale of such Leased Property in recordable form, (ii) upon the date fixed for
any purchase of Lessor's interest in Leased Property hereunder, Lessee shall pay
to the order of the Agent (or Lessor if the Lease Participant Amounts and the
Loans have been paid in full) the Lease Balance or Leased Property Balance, as
applicable, plus any amount due pursuant to Section 7.5(f) of the Master
Agreement as a result of such purchase by wire transfer of immediately available
27
funds, and (iii) Lessor will execute and deliver to Lessee such other documents,
including releases, termination agreements and termination statements, as may be
legally required or as may be reasonably requested by Lessee in order to effect
such conveyance, free and clear of Lessor Liens and the Liens of the Operative
Documents.
(b) Lessee shall, at Lessee's sole cost and expense, obtain all
required governmental and regulatory approval and consents and shall make such
filings as required by Applicable Law; in the event that Lessor is required by
Applicable Law to take any action in connection with such purchase and sale,
Lessee shall pay prior to transfer all costs incurred by Lessor in connection
therewith. In addition, all charges incident to such conveyance, including,
without limitation, Lessee's attorneys' fees, Lessor's attorneys' fees,
commissions, Lessee's and Lessor's escrow fees, recording fees, title insurance
premiums and all applicable documentary transfer or other transfer taxes and
other taxes required to be paid in order to record the transfer documents that
might be imposed by reason of such conveyance and the delivery of such deed
shall be borne entirely and paid by Lessee.
(c) Upon expiration or termination of this Lease resulting in
conveyance of Lessor's interest in the title to the Leased Properties to Lessee,
there shall be no apportionment of rents (including, without limitation, water
rents and sewer rents), taxes, insurance, utility charges or other charges
payable with respect to the Leased Properties, all of such rents, taxes,
insurance, utility or other charges due and payable with respect to the Leased
Properties prior to termination being payable by Lessee hereunder and all due
after such time being payable by Lessee as the then owner of the Leased
Properties.
Section 14.6 Option to Remarket. Subject to the fulfillment of each of
the conditions set forth in this Section 14.6, Lessee shall have the option to
market all of, but not less than all of, the Leased Properties for Lessor (the
"Remarketing Option").
Lessee's effective exercise and consummation of the Remarketing Option
shall be subject to the due and timely fulfillment of each of the following
provisions, the failure of any of which shall render the Remarketing Option and
Lessee's exercise thereof null and void, in which event, Lessee shall be
obligated to perform its obligations under Section 14.2.
(a) Not later than twelve months prior to the Lease
Termination Date, Lessee shall give to Lessor and the Agent written
notice of Lessee's exercise of the Remarketing Option, which exercise
shall be irrevocable and shall state whether Lessee has exercised the
Remarketing Option.
28
(b) Not later than ten (10) Business Days prior to the Lease
Termination Date, Lessee shall deliver to Lessor and the Agent an
environmental assessment of each Leased Property dated not later than
forty-five (45) days prior to the Lease Termination Date. Such
environmental assessment shall be prepared by an environmental
consultant selected by the Required Funding Parties, shall be in form,
detail and substance reasonably satisfactory to the Required Funding
Parties, and shall otherwise indicate no degradation in environmental
conditions beyond those described in the related Environmental Audit
and shall not include a recommendation for further investigation to
make such determination.
(c) On the date of Lessee's notice to Lessor and the Agent of
Lessee's exercise of the Remarketing Option, each of the Construction
Conditions shall have been timely satisfied and no Event of Default or
Potential Event of Default shall exist, and thereafter, no Event of
Default or Potential Event of Default shall exist under this Lease.
(d) Lessee shall have completed all Alterations, restoration
and rebuilding of the Leased Properties pursuant to Sections 6.1, 6.2,
10.3 and 10.4 (as the case may be) and shall have fulfilled all of the
conditions and requirements in connection therewith pursuant to said
Sections, in each case by the date on which Lessor and the Agent
receive Lessee's notice of Lessee's exercise of the Remarketing Option
(time being of the essence), regardless of whether the same shall be
within Lessee's control.
(e) Lessee shall promptly provide any maintenance records
relating to each Leased Property to Lessor, the Agent and any potential
purchaser upon request, and shall otherwise do all things necessary to
deliver possession of such Leased Property to the potential purchaser.
Lessee shall allow Lessor, the Agent and any potential purchaser access
to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, Lessee shall surrender the
Leased Properties in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties,
Lessee will provide to the purchaser all customary "seller's"
indemnities, representations and warranties regarding title, absence of
Liens (except Lessor Liens) and the condition of the Leased Properties,
including, without limitation, an environmental indemnity. Lessee shall
fulfill all of the requirements set forth in clause (b) of Section
14.5, and such
29
requirements are incorporated herein by reference. As to Lessor, any
such sale shall be made on an "as is, with all faults" basis without
representation or warranty by Lessor, other than the absence of Lessor
Liens.
(h) In connection with any such sale of Leased Properties,
Lessee shall pay directly, and not from the sale proceeds, all
prorations, credits, costs and expenses of the sale of the Leased
Properties, whether incurred by Lessor, any Lease Participant, any
Lender, the Agent or Lessee, including without limitation, the cost of
all title insurance, surveys, environmental reports, appraisals,
transfer taxes, Lessor's and the Agent's attorneys' fees, Lessee's
attorneys' fees, commissions, escrow fees, recording fees, and all
applicable documentary and other transfer taxes.
(i) Lessee shall pay to the Agent on the Lease Termination
Date (or to such other Person as Agent shall notify Lessee in writing,
or in the case of Supplemental Rent, to the Person entitled thereto) an
amount equal to the Recourse Deficiency Amount, plus all accrued and
unpaid Basic Rent and Supplemental Rent, and all other amounts
hereunder which have accrued prior to or as of such date, in the type
of funds specified in Section 3.3 hereof.
If Lessee has exercised the Remarketing Option, the following additional
provisions shall apply: During the period commencing on the date twelve months
prior to the scheduled expiration of the Lease Term, Lessee shall, as
nonexclusive agent for Lessor, use commercially reasonable efforts to sell
Lessor's interest in the Leased Properties and will attempt to obtain the
highest purchase price therefor. All such marketing of the Leased Properties
shall be at Lessee's sole expense. Lessee shall promptly submit all bids to
Lessor and the Agent and Lessor and the Agent will have the right to review the
same and the right to submit any one or more bids. All bids shall be on an
all-cash basis. In no event shall such bidder be Lessee or any Subsidiary or
Affiliate of Lessee. The written offer must specify the Lease Termination Date
as the closing date. If, and only if, the aggregate selling price (net of
closing costs and prorations, as reasonably estimated by the Agent) is less than
the difference between the Lease Balance at such time minus the Recourse
Deficiency Amount, then Lessor or the Agent may, in its sole and absolute
discretion, by notice to Lessee, reject such offer to purchase, in which event
the parties will proceed according to the provisions of Section 14.7 hereof. If
neither Lessor nor the Agent rejects such purchase offer as provided above, the
closing of such purchase of the Leased Properties by such purchaser shall occur
on the Lease Termination Date, contemporaneously with Lessee's surrender of the
Leased Properties in accordance with Section 14.8 hereof, and the gross proceeds
of the sale (i.e.,
30
without deduction for any marketing, closing or other costs, prorations or
commissions) shall be paid directly to the Agent (or Lessor if the Funded
Amounts have been fully paid); provided, however, that if the sum of the gross
proceeds from such sale plus the Recourse Deficiency Amount paid by Lessee on
the Lease Termination Date pursuant to Section 14.6(i), minus any and all costs
and expenses (including broker fees, appraisal costs, legal fees and transfer
taxes) incurred by the Agent or Lessor in connection with the marketing of the
Leased Properties or the sale thereof exceeds the Lease Balance as of such date,
then the excess shall be paid to Lessee on the Lease Termination Date. Lessee
shall have no right, power or authority to bind Lessor in connection with any
proposed sale of the Leased Properties.
Section 14.7 Rejection of Sale. Notwithstanding anything contained
herein to the contrary, if Lessor or the Agent rejects the purchase offer for
the Leased Properties as provided in (and subject to the conditions set forth
in) Section 14.6, then (a) Lessee shall pay to the Agent the Recourse Deficiency
Amount on the Lease Termination Date pursuant to Section 14.6(i), (b) Lessor
shall retain title to the Leased Properties, and (c) in addition to Lessee's
other obligations hereunder, Lessee will reimburse Lessor and the Agent, within
ten (10) Business Days after written request, for all reasonable costs and
expenses incurred by Lessor or Agent during the period ending on the first
anniversary of the Lease Termination Date in connection with the marketing,
sale, closing or transfer of the Leased Properties, which obligation shall
survive the Lease Termination Date and the termination or expiration of this
Lease.
Section 14.8 Return of Leased Property. If Lessor retains title to any
Leased Property pursuant to Section 14.7 hereof, then Lessee shall, on the Lease
Termination Date, and at its own expense, return possession of such Leased
Property to Lessor for retention by Lessor or, if Lessee properly exercises the
Remarketing Option and fulfills all of the conditions of Section 14.6 hereof and
neither Lessor nor the Agent rejects such purchase offer pursuant to Section
14.6, then Lessee shall, on such Lease Termination Date, and at its own cost,
transfer possession of the Leased Property to the independent purchaser thereof,
in each case by surrendering the same into the possession of Lessor or such
purchaser, as the case may be, free and clear of all Liens other than Lessor
Liens, in as good condition as it was on the Completion Date therefor in the
case of new Construction or the Closing Date (as modified by Alterations
permitted by this Lease), ordinary wear and tear excepted, and in compliance in
all material respects with Applicable Law. Lessee shall, on and within a
reasonable time before and after the Lease Termination Date, cooperate with
Lessor and the independent purchaser of such Leased Property in order to
facilitate the ownership and operation by such purchaser of such Leased Property
after the Lease Termination Date, which cooperation shall include the following,
all of
31
which Lessee shall do on or before the Lease Termination Date or as soon
thereafter as is reasonably practicable: providing all books and records
regarding the maintenance and ownership of such Leased Property and all
know-how, data and technical information relating thereto, providing a copy of
the Plans and Specifications, granting or assigning all licenses (to the extent
assignable) necessary for the operation and maintenance of such Leased Property,
and cooperating in seeking and obtaining all necessary Governmental Action.
Lessee shall have also paid the cost of all Alterations commenced prior to the
Lease Termination Date. The obligations of Lessee under this Article XIV shall
survive the expiration or termination of this Lease.
Section 14.9 Renewal. Subject to the conditions set forth herein,
Lessee may, by written notice to Lessor and the Agent given not later than
twelve months and not earlier than sixteen months, prior to the Lease
Termination Date then in effect, renew this Lease, for up to five years
commencing on the date following the Lease Termination Date then in effect,
provided that Lessee may only exercise such renewal option twice. No later than
the date that is 45 days after the date the request to renew has been delivered
to each of Lessor and the Agent, the Agent will notify Lessee whether or not
Lessor, the Lease Participants and the Lenders consent to such renewal request
(which consent, in the case of Lessor, the Lease Participants and the Lenders,
may be granted or denied in their sole discretion, and may be conditioned on
such conditions precedent as may be specified by Lessor, the Lease Participants
and the Lenders). If the Agent fails to respond within such time frame, such
failure shall be deemed to be a rejection of such request. If the Agent notifies
Lessee of Lessor's, the Lease Participants' and the Lenders' consent to such
renewal, such renewal shall be effective. Any renewal of this Lease shall be on
the same terms and conditions as are set forth herein for the original Lease
Term, except that the amount of Basic Rent to be paid by Lessee shall be as
mutually agreed upon among Lessee, Lessor, the Lease Participants and the
Lenders prior to such renewal.
32
ARTICLE XV.
LESSEE'S EQUIPMENT
After any repossession of any Leased Property (whether or not this
Lease has been terminated), Lessee, at its expense and so long as such removal
of such Alteration shall not result in a violation of Applicable Law, shall,
within a reasonable time after such repossession or within sixty (60) days after
Lessee's receipt of Lessor's written request (whichever shall first occur),
remove all of Lessee's trade fixtures, personal property and equipment from such
Leased Property (to the extent that the same can be readily removed from such
Leased Property without causing material damage to such Leased Property);
provided, however, that Lessee shall not remove any such trade fixtures,
personal property or equipment that (i) has been financed by Lessor under the
Operative Documents or otherwise constituting Leased Property (or that
constitutes a replacement of such property) or (ii) with respect to which Lessor
notifies Lessee that it is exercising its purchase option (in which case, Lessor
shall pay to Lessee the fair market value of such trade fixture, personal
property or equipment on such date of repossession and Lessee shall execute and
deliver a ▇▇▇▇ of sale therefor to Lessor), provided that the purchase option
set forth in this clause (ii) shall not apply to Lessee's inventory. Any of
Lessee's trade fixtures, personal property and equipment not so removed by
Lessee within such period shall be considered abandoned by Lessee, and title
thereto shall without further act vest in Lessor, and may be appropriated, sold,
destroyed or otherwise disposed of by Lessor without notice to Lessee and
without obligation to account therefor and Lessee will pay Lessor, upon written
demand, all reasonable costs and expenses incurred by Lessor in removing,
storing or disposing of the same and all costs and expenses incurred by Lessor
to repair any damage to such Leased Property caused by such removal. Lessee will
immediately repair at its expense all damage to such Leased Property caused by
any such removal (unless such removal is effected by Lessor, in which event
Lessee shall pay all reasonable costs and expenses incurred by Lessor for such
repairs). Lessor shall have no liability in exercising Lessor's rights under
this Article XV except as set forth in clause (ii) of the first sentence hereof,
nor shall Lessor be responsible for any loss of or damage to Lessee's personal
property and equipment.
33
ARTICLE XVI.
RIGHT TO PERFORM FOR LESSEE
If Lessee shall fail to perform or comply with any of its agreements
contained herein, Lessor may perform or comply with such agreement, and Lessor
shall not thereby be deemed to have waived any default caused by such failure,
and the amount of such payment and the amount of the expenses of Lessor
(including actual and reasonable attorneys' fees and expenses) incurred in
connection with such payment or the performance of or compliance with such
agreement, as the case may be, shall be deemed Supplemental Rent, payable by
Lessee to Lessor within thirty (30) days after written demand therefor.
ARTICLE XVII.
MISCELLANEOUS
Section 17.1 Reports. To the extent required under Applicable Law and
to the extent it is reasonably practical for Lessee to do so, Lessee shall
prepare and file in timely fashion, or, where such filing is required to be made
by Lessor or it is otherwise not reasonably practical for Lessee to make such
filing, Lessee shall prepare and deliver to Lessor (with a copy to the Agent)
within a reasonable time prior to the date for filing and Lessor shall file, any
material reports with respect to the condition or operation of such Leased
Property that shall be required to be filed with any Governmental Authority.
Section 17.2 Binding Effect; Successors and Assigns; Survival. The
terms and provisions of this Lease, and the respective rights and obligations
hereunder of Lessor and Lessee, shall be binding upon their respective
successors, legal representatives and assigns (including, in the case of Lessor,
any Person to whom Lessor may transfer any Leased Property or any interest
therein in accordance with the provisions of the Operative Documents), and inure
to the benefit of their respective permitted successors and assigns, and the
rights granted hereunder to the Agent, the Lease Participants and the Lenders
shall inure (subject to such conditions as are contained herein) to the benefit
of their respective permitted successors and assigns. Lessee hereby acknowledges
that Lessor has assigned all of its right, title and interest to, in and under
this Lease to the Agent, the Lease Participants and the Lenders, and that all of
Lessor's rights hereunder may be exercised by the Agent.
Section 17.3 Quiet Enjoyment. Lessor covenants that it will not
interfere in Lessee's or any of its permitted sublessees' quiet enjoyment of the
Leased Properties in accordance with this Lease during the Lease Term, so long
as no Event of Default has occurred and is continuing. Such right of quiet
34
enjoyment is independent of, and shall not affect, Lessor's rights otherwise to
initiate legal action to enforce the obligations of Lessee under this Lease.
Section 17.4 Documentary Conventions. The Documentary Conventions shall
apply to this Lease.
Section 17.5 Discharge of Lessee's Obligations by its Affiliates.
Lessor agrees that performance of any of Lessee's obligations hereunder by one
or more of Lessee's Affiliates or one or more of Lessee's sublessees of the
Leased Properties or any part thereof shall constitute performance by Lessee of
such obligations to the same extent and with the same effect hereunder as if
such obligations were performed by Lessee, but no such performance shall excuse
Lessee from any obligation not performed by it or on its behalf under the
Operative Documents.
Section 17.6 Liability of Lessor Limited. Except as otherwise expressly
provided below in this Section 17.6, it is expressly understood and agreed by
and between Lessee, Lessor and their respective successors and assigns that
nothing herein contained shall be construed as creating any liability of Lessor
or any of its Affiliates or any of their respective officers, directors,
employees or agents, individually or personally, to perform any covenant, either
express or implied, contained herein, all such liability, if any, being
expressly waived by Lessee and by each and every Person now or hereafter
claiming by, through or under Lessee, and that, so far as Lessor or any of its
Affiliates or any of their respective officers, directors, employees or agents,
individually or personally, is concerned, Lessee and any Person claiming by,
through or under Lessee shall look solely to the right, title and interest of
Lessor in the Leased Properties and any proceeds from Lessor's sale or
encumbrance thereof (provided, however, that Lessee shall not be entitled to any
double recovery) for the performance of any obligation under this Lease and
under the Operative Documents and the satisfaction of any liability arising
therefrom.
Section 17.7 Estoppel Certificates. Each party hereto agrees that at
any time and from time to time during the Lease Term, it will promptly, but in
no event later than thirty (30) days after request by the other party hereto,
execute, acknowledge and deliver to such other party or to any prospective
purchaser (if such prospective purchaser has signed a commitment or letter of
intent to purchase any Leased Property or any part thereof or any Note or Lease
Participation), assignee or mortgagee or third party designated by such other
party, a certificate stating (a) that this Lease is unmodified and in force and
effect (or if there have been modifications, that this Lease is in force and
effect as modified, and identifying the modification agreements); (b) the date
to which Basic Rent has been paid; (c) whether or not there is any existing
default by
35
Lessee in the payment of Basic Rent or any other sum of money hereunder, and
whether or not there is any other existing default by either party with respect
to which a notice of default has been served, and, if there is any such default,
specifying the nature and extent thereof; (d) whether or not, to the knowledge
of the signer after due inquiry and investigation, there are any setoffs,
defenses or counterclaims against enforcement of the obligations to be performed
hereunder existing in favor of the party executing such certificate and (e)
other items that may be reasonably requested; provided that no such certificate
may be requested unless the requesting party has a good faith reason for such
request.
Section 17.8 No Joint Venture. Any intention to create a joint venture,
partnership or other fiduciary relationship between Lessor and Lessee is hereby
expressly disclaimed.
Section 17.9 No Accord and Satisfaction. The acceptance by Lessor of
any sums from Lessee (whether as Basic Rent or otherwise) in amounts which are
less than the amounts due and payable by Lessee hereunder is not intended, nor
shall be construed, to constitute an accord and satisfaction of any dispute
between Lessor and Lessee regarding sums due and payable by Lessee hereunder,
unless Lessor specifically deems it as such in writing.
Section 17.10 No Merger. In no event shall the leasehold interests,
estates or rights of Lessee hereunder, or of the holder of any Notes secured by
a security interest in this Lease, or of any Lease Participant, merge with any
interests, estates or rights of Lessor in or to the Leased Properties, it being
understood that such leasehold interests, estates and rights of Lessee
hereunder, and of the holder of any Notes secured by a security interest in this
Lease, and of the Lease Participants, shall be deemed to be separate and
distinct from Lessor's interests, estates and rights in or to the Leased
Properties, notwithstanding that any such interests, estates or rights shall at
any time or times be held by or vested in the same person, corporation or other
entity.
Section 17.11 Survival. The obligations of Lessee to be performed under
this Lease prior to the Lease Termination Date and the obligations of Lessee
pursuant to Article III, Articles X, XI, XIII, Sections 14.2, 14.3, 14.4, 14.5,
14.8, Articles XIV, XV, and XVI, and Section 17.6 shall survive the expiration
or termination of this Lease. The extension of any applicable statute of
limitations by Lessor, Lessee, the Agent or any Indemnitee shall not affect such
survival.
Section 17.12 Chattel Paper. To the extent that this Lease constitutes
chattel paper (as such term is defined in the Uniform Commercial Code in any
36
applicable jurisdiction), no security interest in this Lease may be created
through the transfer or possession of any counterpart other than the sole
original counterpart, which shall be identified as the original counterpart by
the receipt of the Agent.
Section 17.13 Time of Essence. Time is of the essence of this Lease.
Section 17.14 Recordation of Lease. Lessee will, at its expense, cause
each Lease Supplement, this Lease or memorandum of lease in form and in
substance reasonably satisfactory to Lessor (if permitted by Applicable Law) to
be recorded in the proper office or offices in the States and the municipalities
in which the Land is located.
Section 17.15 Investment of Security Funds. Any amounts not payable to
Lessee pursuant to any provision of Article VIII, X or XIV or this Section 17.15
solely because an Event of Default shall have occurred and be continuing shall
be held by the Agent (or Lessor if the Funded Amounts have been fully paid) as
security for the obligations of Lessee under this Lease and the Master Agreement
and of Lessor under the Loan Agreement. At such time as no Event of Default
shall be continuing, such amounts, net of any amounts previously applied to
Lessee's obligations hereunder or under the Master Agreement, shall be paid to
Lessee. Any such amounts which are held by the Agent (or Lessor if the Funded
Amounts have been fully paid) pending payment to Lessee shall until paid to
Lessee, as provided hereunder or, as long as the Lease Participation Agreement
or the Loan Agreement is in effect, until applied against Lessee's obligations
herein and under the Master Agreement and distributed as provided in the Lease
Participation Agreement and the Loan Agreement or herein (after the Lease
Participation Agreement and the Loan Agreement are no longer in effect) in
connection with any exercise of remedies hereunder, be invested by the Agent or
Lessor, as the case may be as directed from time to time in writing by Lessee
(provided, however, if an Event of Default has occurred and is continuing it
will be directed by the Agent or, if the Funded Amounts have been fully paid,
Lessor) and at the expense and risk of Lessee, in Permitted Investments. Any
gain (including interest received) realized as the result of any such investment
(net of any fees, commissions and other expenses, if any, incurred in connection
with such investment) shall be applied in the same manner as the principal
invested. Lessee upon demand shall pay to the Agent or Lessor, as appropriate,
the amount of any loss of principle incurred in connection with all such
investments and the liquidation thereof.
Section 17.16 Land and Building. If any Building and the Land on which
such Building is located are subject to separate Lease Supplements, at any time
that Lessee exercises an option to purchase such Building or such Land, or
37
to renew this Lease with respect to such Building or such Land, or is obligated
to purchase such Building or such Land as a result of an Event of Loss, an Event
of Taking or an Event of Default, such purchase or renewal shall be made
simultaneously with respect to all of such Building and such Land.
[Signature page follows]
38
IN WITNESS WHEREOF, the undersigned have each caused this Lease
Agreement to be duly executed and delivered and attested by their respective
officers thereunto duly authorized as of the day and year first above written.
Witnessed: ▇▇▇▇▇ RENTS, INC.
as Lessee
By By
----------------------------- --------------------------------------
Name: Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
By
-----------------------------
Name:
LEASE
AGREEMENT
S-1
SUNTRUST BANKS, INC., as Lessor
Witnessed:
By By
----------------------------- --------------------------------------
Name: Name:
Title:
By
-----------------------------
Name:
LEASE
AGREEMENT
S-2
Recording requested by EXHIBIT A TO
and when recorded mail to: THE LEASE
------------
-------------------------
-------------------------
-------------------------
-------------------------
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
LEASE SUPPLEMENT NO. __ AND MEMORANDUM OF LEASE
THIS LEASE SUPPLEMENT NO. __ (this "Lease Supplement") dated as of [ ],
between SUNTRUST BANKS, INC., as the lessor (the "Lessor"), and ▇▇▇▇▇ RENTS,
INC., a Georgia corporation, as lessee (the "Lessee").
WHEREAS Lessor is the owner of the Land described on Schedule I hereto
and wishes to lease the Land together with any Building and other improvements
thereon or which thereafter may be constructed thereon pursuant to the Lease 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; Interpretation. 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 Amended and Restated
Master Agreement, dated as of October 31, 2001 (the "Master Agreement"), between
Lessee, Lessor, the financial institutions party thereto, as Lenders, and
SunTrust Bank, as Agent; and the rules of interpretation set forth in Appendix A
to the Master Agreement shall apply to this Lease Supplement.
SECTION 2. The Properties. Attached hereto as Schedule I is the
description of certain Land (the "Subject Property"). Effective upon the
execution and delivery of this Lease Supplement by Lessor and Lessee, such Land,
together with any Building and other improvements thereon or which thereafter
may be constructed thereon shall be subject to the terms and provisions of the
Lease and Lessor hereby grants, conveys, transfers and assigns to Lessee those
interests, rights, titles, estates, powers and privileges provided for in the
Lease with respect to the Subject Property.
A-1
SECTION 3. Amendments to Lease with Respect to Subject Property.
Effective upon the execution and delivery of this Lease Supplement by Lessor and
Lessee, the following terms and provisions shall apply to the Lease with respect
to the Subject Property:
[Insert Applicable Sections per Local Law]
SECTION 4. Ratification; Incorporation. Except as specifically modified
hereby, the terms and provisions of the Lease are hereby ratified and confirmed
and remain in full force and effect. The terms of the Lease (as amended by this
Lease Supplement) are by this reference incorporated herein and made a part
hereof.
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. Documentary Conventions. The Documentary Conventions shall
apply to this Lease Supplement.
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.
SUNTRUST BANKS, INC., as the Lessor
By
---------------------------------
Name:
Title:
▇▇▇▇▇ RENTS, INC., as the Lessee
By
---------------------------------
Name:
Title:
LEASE
AGREEMENT
A-2
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 SunTrust Banks, Inc., on behalf of such 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 ▇▇▇▇▇ Rents,
Inc., a Georgia corporation, on behalf of the corporation.
[Notarial Seal] ______________________________
Notary Public
My commission expires: ______________
LEASE
AGREEMENT
S-3
Receipt of this original counterpart of the foregoing Lease Supplement is hereby
acknowledged as of the date hereof.
SUNTRUST BANK, as the Agent
By
------------------------------
Name:
Title:
LEASE
AGREEMENT
S-4
AMENDED AND RESTATED CONSTRUCTION AGENCY AGREEMENT
dated as of October 31, 2001
among
SUNTRUST BANKS, INC.
and
▇▇▇▇▇ RENTS, INC.
as Construction Agent
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS .................................................. 2
1.1 Defined Terms ................................................ 2
ARTICLE II APPOINTMENT OF CONSTRUCTION AGENT ............................ 2
2.1 Appointment .................................................. 2
2.2 Acceptance; Construction ..................................... 2
2.3 Commencement of Construction ................................. 2
2.4 Supplements to this Agreement ................................ 3
2.5 Term ......................................................... 3
2.6 Identification of Properties; Construction Documents ......... 4
2.7 Scope of Authority ........................................... 4
2.8 Covenants of the Construction Agent .......................... 6
ARTICLE III THE BUILDINGS ................................................ 7
3.1 Construction ................................................. 7
3.2 Amendments; Modifications .................................... 7
3.3 Casualty and Condemnation .................................... 8
3.4 Indemnity .................................................... 8
ARTICLE IV PAYMENT OF FUNDS ............................................. 9
4.1 Funding of Property Acquisition Costs and Property
Buildings Costs .............................................. 9
ARTICLE V CONSTRUCTION AGENCY EVENTS OF DEFAULT ........................ 10
5.1 Construction Agency Events of Default ........................ 10
5.2 Damages ...................................................... 11
5.3 Remedies; Remedies Cumulative ................................ 11
ARTICLE VI NO CONSTRUCTION AGENCY FEE ................................... 13
6.1 Lease as Fulfillment of Lessor's Obligations ................. 13
ARTICLE VII LESSOR'S RIGHTS; CONSTRUCTION AGENT'S RIGHTS ................. 13
7.1 Exercise of the Lessor's Rights .............................. 13
7.2 Lessor's Right to Cure Construction Agent's Defaults ......... 13
ARTICLE VIII MISCELLANEOUS ................................................ 13
8.1 Documentary Conventions ...................................... 13
8.2 Successors and Assigns ....................................... 13
i
AMENDED AND RESTATED CONSTRUCTION AGENCY AGREEMENT
AMENDED AND RESTATED CONSTRUCTION AGENCY AGREEMENT, dated as of October
31, 2001 (as amended, supplemented or otherwise modified from time to time, this
"Agreement"), between SUNTRUST BANKS, INC., a Georgia corporation, (the
"Lessor"), and ▇▇▇▇▇ RENTS, INC., a Georgia corporation (the "Company" and, in
its capacity as construction agent, the "Construction Agent").
PRELIMINARY STATEMENT
A. The Lessor and the Construction Agent are party to the Construction
Agency Agreement, dated as of September 20, 1996 (the "Existing Construction
Agency Agreement"), and wish to amend and restate the Existing Construction
Agency Agreement.
B. Aaron Rents, Inc., as lessee (the "Lessee"), and Lessor, as lessor, are
parties to that certain Amended and Restated Lease (as amended, supplemented or
otherwise modified from time to time pursuant thereto, the "Lease"), pursuant to
which the Lessee has agreed to lease from Lessor, and Lessor have agreed to
lease to Lessee, Lessor's interests in certain Leased Properties.
▇. ▇▇▇▇▇▇, the Lessee, the Lenders signatory thereto and SunTrust Bank, as
agent for such Lenders (in such capacity, the "Agent") are parties to that
certain Amended and Restated Master Agreement, dated as of even date herewith
(as amended, supplemented or otherwise modified from time to time pursuant
thereto, the "Master Agreement").
D. Subject to the terms and conditions hereof, (i) the Lessor desires to
appoint the Company as the Construction Agent to act as its sole and exclusive
Agent for the identification and acquisition of the Land pursuant to the Master
Agreement and, in certain cases, construction of the Buildings in accordance
with the Plans and Specifications and pursuant to the Master Agreement, and (ii)
the Construction Agent desires, for the benefit of the Lessor, to cause the
Buildings to be constructed on each Construction Land Interest in accordance
with the Plans and Specifications and pursuant to the Master Agreement and this
Agreement, in each case in accordance with the terms herein set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
AI
DEFINITIONS
AI.1 Defined Terms. Capitalized terms used but not otherwise defined in
this Agreement shall have the meanings set forth in Appendix A to the Master
Agreement.
AII
APPOINTMENT OF CONSTRUCTION AGENT
AII.1 Appointment. Pursuant to and subject to the terms and conditions set
forth herein and in the Master Agreement and the other Operative Documents, the
Lessor hereby irrevocably designates and appoints the Company as the
Construction Agent to act as its exclusive agent for (i) the identification and
acquisition from time to time of Land to be acquired by the Lessor and leased to
the Company and (ii) with respect to those Leased Properties that are
Construction Land Interests, construction of the Buildings in accordance with
the Plans and Specifications on the related Land.
AII.2 Acceptance; Construction. The Company hereby unconditionally accepts
the designation and appointment as Construction Agent. The Construction Agent
will cause the Buildings to be constructed on the Land substantially in
accordance with the Plans and Specifications and equipped in substantial
compliance in all material respects with all Requirements of Law and insurance
requirements.
AII.3 Commencement of Construction. Subject to Construction Force Majeure
Events which prevent the Construction Agent from commencing Construction, the
Construction Agent hereby agrees, unconditionally and for the benefit of the
Lessor, to cause Construction of a Building to commence on each parcel of Land
as soon as is practicable after the Closing Date in respect of such Land. For
purposes hereof, Construction of a Building shall be deemed to commence on the
date (the "Construction Commencement Date") on which excavation for the
foundation for such Building commences, as certified by the Construction Agent
to the Lessor and the Agent in writing. Without limiting the foregoing, no phase
of such Construction shall be undertaken until all permits required for such
phase have been issued therefor.
2
AII.4 Supplements to this Agreement. On the Closing Date of each parcel of
Land that is a Construction Land Interest, the Lessor and the Construction Agent
shall each execute and deliver to the Agent a supplement to this Agreement in
the form of Exhibit A to this Agreement, appropriately completed, pursuant to
which the Lessor and the Construction Agent shall, among other things, each
acknowledge and agree that the development of such parcel of Land and the
Construction of a Building thereon will be governed by the terms of this
Agreement. Following the execution and delivery of a supplement to this
Agreement as provided above, such supplement and all supplements previously
delivered under this Agreement shall constitute a part of this Agreement. On or
prior to the Closing Date of each parcel of Land that is a Construction Land
Interest, the Construction Agent shall prepare and deliver to the Lessor and the
Agent a construction budget (the "Construction Budget") for the related Leased
Property, setting forth in reasonable detail the budget for the Construction of
the proposed Building on such Land in accordance with the Plans and
Specifications therefor, and all related costs, including the capitalized
interest and Yield expected to accrue during the related Construction Term; such
Construction Budget shall include a line item for the amount of self-insurance
or deductibles applicable to such Leased Property.
AII.5 Term. This Agreement shall commence on the date hereof and shall
terminate with respect to any given Leased Property upon the first to occur of:
(a) payment by the Lessee of the Leased Property Balance and termination
of the Lease with respect to such Leased Property in accordance with the Lease;
(b) the expiration or earlier termination of the Lease;
(c) termination of this Agreement pursuant to Article V hereof;
(d) the Completion Date for such Leased Property; and
(e) the payment by the Construction Agent of the Leased Property Balance
or the Construction Failure Payment with respect to such Leased Property
pursuant to this Agreement;
provided that the Construction Agent's obligations pursuant to Section 2.8(d)
shall survive the termination hereof.
AII.6 Identification of Properties; Construction Documents. The
Construction Agent may execute any of its duties and obligations under this
3
Agreement by or through agents, developers, Affiliates, contractors, employees
or attorneys-in- fact, and the Construction Agent shall enter into such
agreements with architects and contractors as the Construction Agent deems
necessary or desirable for the construction of the Buildings pursuant hereto
(the "Construction Documents"); provided, however, that no such delegation shall
limit or reduce in any way the Construction Agent's duties and obligations under
this Agreement; provided, further, that contemporaneously with the execution and
delivery of a Construction Document, the Construction Agent will execute and
deliver to the Lessor the Assignment of Construction Documents in the form of
Exhibit B attached hereto, pursuant to which the Construction Agent assigns to
the Lessor, among other things, all of the Construction Agent's rights under and
interests in such Construction Documents. Each construction contract shall be
with a reputable general contractor with experience in constructing projects
that are similar in scope and type to the proposed Building, and shall provide
for a guaranteed maximum project cost and at least 10% retainage.
AII.7 Scope of Authority. Subject to the terms, conditions, restrictions
and limitations set forth in the Operative Documents, the Lessor hereby
expressly authorizes the Construction Agent, or any agent or contractor of the
Construction Agent, and the Construction Agent unconditionally agrees, for the
benefit of the Lessor, to take all action necessary or desirable for the
performance and satisfaction of all of the Construction Agent's obligations
hereunder with respect to the Leased Properties acquired by the Lessor,
including, without limitation:
(i) the identification and assistance with the acquisition of Land in
accordance with the terms and conditions of the Master Agreement;
(ii) all design and supervisory functions relating to the construction of
the Buildings and performing all engineering work related to the construction of
the Buildings;
(iii) negotiating and entering into all contracts or arrangements to
procure the equipment and services necessary to construct the Buildings on such
terms and conditions as are customary and reasonable in light of local standards
and practices;
(iv) obtaining all necessary permits, licenses, consents, approvals and
other authorizations, including those required under Applicable Law (including
Environmental Laws), from all Governmental Authorities in connection with the
Construction of the Buildings on the Land in accordance with the Plans and
Specifications;
4
(v) maintaining all books and records with respect to the construction,
operation and management of the Leased Properties; and
(vi) performing any other acts necessary or appropriate in connection with
the identification and acquisition and development of the Land and Construction
of the Buildings in accordance with the Plans and Specifications.
(a) Neither the Construction Agent nor any of its Affiliates or agents
shall enter into any contract which would, directly or indirectly, impose any
liability or obligation on the Lessor unless such contract expressly contains an
acknowledgment by the other party or parties thereto that the obligations of the
Lessor are non-recourse, and that the Lessor shall have no personal liability
with respect to such obligations. Any contract entered into by the Construction
Agent or any of its Affiliates or agents not meeting the requirements of the
foregoing sentence shall be ineffective. Subject to the foregoing, the Lessor
shall execute such documents and take such other actions as the Construction
Agent shall reasonably request, at the Construction Agent's expense, to permit
the Construction Agent to perform its duties hereunder.
(b) Subject to the terms and conditions of this Agreement and the other
Operative Documents, the Construction Agent shall have sole management and
control over the construction means, methods, sequences and procedures with
respect to the Construction.
AII.8 Covenants of the Construction Agent. The Construction Agent hereby
covenants and agrees that it will:
(a) following the Construction Commencement Date for each parcel of Land
that is a Construction Land Interest, cause construction of a Building on such
Land to be prosecuted diligently and without undue interruption substantially in
accordance with the Plans and Specifications for such Land, in accordance with
the Construction Budget for such Leased Property and in compliance in all
material respects with all Requirements of Law and insurance requirements;
(b) notify the Lessor and the Agent in writing not less than five (5)
Business Days after the occurrence of each Construction Force Majeure Event;
(c) take all reasonable and practical steps to minimize the disruption of
the construction process arising from Construction Force Majeure Events;
(d) take all reasonable and practical steps to cause the Completion Date
5
for such Leased Property to occur on or prior to the Scheduled Construction
Termination Date for such Leased Property, and cause all Liens (including,
without limitation, Liens or claims for materials supplied or labor or services
performed in connection with the construction of the Buildings), other than
Permitted Liens and Lessor Liens, to be discharged;
(e) following the Completion Date for each Leased Property, cause all
outstanding punch list items with respect to the Buildings on such Leased
Property to be completed within sixty (60) days after said Completion Date;
(f) at all times during Construction, cause all title to all personalty
financed by the Lessor on or within such Leased Property to be and remain vested
in the Lessor and cause to be on file with the applicable filing office all
necessary documents under Article 9 of the Uniform Commercial Code to perfect
such title free of all Liens other than Permitted Liens, it being understood and
acknowledged that such Lessor's rights, title and interest in and to said
personalty have been assigned to the Agent pursuant to the Operative Documents;
and
(g) not enter into any agreements or arrangements with any Person (other
than the Funding Parties pursuant to the Operative Documents) that would result
in any claim against, or liability of, the Agent or any Funding Party resulting
from the fact that any Leased Property is not completed on or prior to the
Scheduled Construction Termination Date therefor.
AIII
THE BUILDINGS
AIII.1 Construction. The Construction Agent shall cause each Construction
Land Interest to be insured pursuant to Article VIII of the Lease, provided that
during the Construction Term for any Leased Property, (i) all costs of such
insurance shall be funded with the proceeds of Advances (subject to the terms
and conditions of the Master Agreement), (ii) the deductibles for such insurance
shall not be greater than $25,000, and (iii) the Agent shall be the loss payee
of any insurance policy maintained under paragraph (a) or (b) of Article VIII of
the Lease.
AIII.2 Amendments; Modifications. The Construction Agent may, subject to
the conditions, restrictions and limitations set forth herein and in the
Operative Documents (but not otherwise), at any time during the term hereof
revise, amend or modify the Plans and Specifications and the related
Construction Documents without the consent of the Lessor; provided, however,
6
that the Lessor's prior written consent will be required in the following
instances: (x) such revision, amendment or modification by its terms would
result in the Completion Date of the Buildings occurring after the Scheduled
Construction Termination Date, or (y) such revision, amendment or modification
would result in the cost for such Leased Property, plus the unfunded portion of
the Construction Budgets for all other Construction Land Interests, exceeding
the then remaining Commitments or increase the Construction Budget therefor by
more than 10%, or (z) the aggregate effect of such revision, amendment or
modification, when taken together with any previous or contemporaneous revision,
amendment or modification to the Plans and Specifications for such Leased
Property, would be to reduce the Fair Market Sales Value of such Leased Property
in a material respect when completed.
AIII.3 Casualty and Condemnation. If at any time prior to the Completion
Date with respect to any Building there occurs a Casualty or the Lessor or the
Construction Agent receives notice of a Condemnation, then, in each case the
Construction Agent shall promptly and diligently take all reasonable and
practical steps to cause the Construction of the related Building to be
completed substantially in accordance with the Plans and Specifications and with
the terms hereof, and cause the Completion Date to occur on or prior to the
Scheduled Construction Termination Date. The Construction Agent shall use all
insurance proceeds or Awards received by it with respect to such Casualty or
Condemnation, as the case may be, to pay the construction costs incurred in
connection with such rebuilding or restoration. The Lessor shall make all
insurance proceeds or Awards received by it with respect to such Casualty or
Condemnation available to the Construction Agent to reimburse the Construction
Agent for, or to pay, all construction costs incurred in connection with such
rebuilding or restoration. To the extent that such insurance proceeds are
insufficient to pay such construction costs, such construction costs shall be
paid with the proceeds of Advances made pursuant to the Master Agreement. In the
event that Lessor does not make such insurance proceeds or Advances available,
then the provisions of Section 5.3 shall apply to the related Leased Property.
AIII.4 Indemnity. During the Construction Term for each Leased Property,
the Construction Agent agrees to assume liability for, and to indemnify,
protect, defend, save and hold harmless the Lessor on an After-Tax Basis, from
and against, any and all Claims that may be imposed on, incurred by or asserted
or threatened to be asserted, against the Lessor, whether or not the Lessor
shall also be indemnified as to any such Claim by any other Person, in any way
relating to or arising out of (i) any event, condition or circumstance within
the Construction Agent's control (including, without limitation, personal injury
to, or damage to property of, any third-party, including employees of the
7
Construction Agent, any general contractor or any subcontractor), (ii) fraud,
misapplication of funds, illegal acts or willful misconduct on the part of the
Construction Agent, or (iii) any event described in paragraph (i), (j) or (k)
Article XII of the Lease with respect to the Construction Agent. As used in
clause (i) of the foregoing sentence, the term "within the Construction Agent's
control" shall mean caused by or arising from any failure by ▇▇▇▇▇ Rents to
comply with any of its obligations under the Operative Documents (including its
insurance obligations), any representation by ▇▇▇▇▇ Rents in any of the
Operative Documents not being true, any negligence or wilful misconduct of any
▇▇▇▇▇ Rents, or any Claim by any third party against the Lessor based upon the
action or inaction of or by ▇▇▇▇▇ Rents; provided, however, that if such Claim
is related to an inability or the failure to complete the construction of a
Leased Property on or prior to Scheduled Construction Termination Date therefor
and such Claim does not arise out of or result from events or circumstances
described in the foregoing clause (ii) or (iii), the Construction Agent's
liability shall be limited to an amount equal to the Construction Failure
Payment. Any Claims that are incurred by any Indemnified Party for which the
Construction Agent is not obligated to indemnify pursuant to this Section 3.4 or
the Master Agreement shall, if requested by the Agent by written notice to
Lessor be capitalized, and result in an increase to the Funded Amounts related
to the relevant Leased Property. The foregoing indemnities are in addition to,
and not in limitation of, the indemnities with respect to environmental claims
set forth in Section 7.2 of the Master Agreement. The provisions of Section 7.3
of the Master Agreement shall apply to any amounts that the Construction Agent
is requested to pay pursuant to this Section 3.4.
AIV
PAYMENT OF FUNDS
AIV.1 Funding of Property Acquisition Costs and Property Buildings Costs.
In connection with the acquisition of any Land and during the course of the
construction of the Buildings on any Land, the Construction Agent may request
that the Lessor advance funds for the payment of acquisition, transaction and
closing costs or property improvement costs, and the Lessor will comply with
such request to the extent provided for under, and subject to the conditions,
restrictions and limitations contained in, the Master Agreement and the other
Operative Documents.
(a) The proceeds of any funds made available to the Lessor to pay
acquisition, transaction and closing costs or improvement costs shall be made
available to the Construction Agent in accordance with the Funding Request
relating thereto and the terms of the Master Agreement. The Construction
8
Agent will use such proceeds only to pay the acquisition, transaction and
closing costs or improvement costs for the Leased Properties set forth in the
Funding Request relating to such funds.
AV
CONSTRUCTION AGENCY EVENTS OF DEFAULT
AV.1 Construction Agency Events of Default. If any one or more of the
following events (each a "Construction Agency Event of Default") shall occur and
be continuing:
(a) the Construction Agent fails to apply any funds paid by, or on behalf
of, the Lessor to the Construction Agent for the acquisition of the Land and the
construction of the Buildings to the payment of acquisition, transaction and
closing costs or improvements costs for such Leased Property;
(b) subject to Construction Force Majeure Events, the Construction
Commencement Date with respect to any Leased Property shall fail to occur for
any reason on or prior to the date that is 15 months after the Closing Date with
respect to such Leased Property;
(c) the Completion Date with respect to any Leased Property shall fail to
occur for any reason on or prior to earlier of the Funding Termination Date and
the Scheduled Construction Termination Date for such Leased Property;
(d) any Lease Event of Default shall have occurred and be continuing; or
(e) the Construction Agent shall fail to observe or perform any term,
covenant or condition of this Agreement (except those specified in clauses (a)
through (d) above), and such failure shall remain uncured for a period of thirty
(30) days after notice thereof to the Construction Agent; provided, however, no
Construction Agency Event of Default shall be deemed to occur if such failure or
breach cannot reasonably be cured within such period, so long as the
Construction Agent shall have promptly commenced the cure thereof and continues
to act with diligence to cure such failure or breach and such failure or breach
is cured within 180 days after notice thereof to the Construction Agent;
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Article, immediately terminate this Agreement as
to any Leased Property or Properties or all of the Leased Properties,
separately, successively or concurrently (all in Lessor's sole discretion) by
giving the Construction Agent written notice of such termination, and upon the
giving of
9
such notice, this Agreement shall terminate as to such Leased Property or
Properties or all of the Leased Properties (as the case may be) and all rights
of the Construction Agent and, subject to the terms of the Operative Documents,
all obligations of the Lessor under this Agreement with respect to such Leased
Property or Properties or all of the Leased Properties (as the case may be)
shall cease. The Construction Agent shall pay upon demand all reasonable costs,
expenses, losses, expenditures and damages (including, without limitation,
attorneys' fees and disbursements) actually incurred by or on behalf of the
Lessor in connection with any Construction Agency Event of Default.
AV.2 Damages. The termination of this Agreement pursuant to Section 5.1
shall in no event relieve the Construction Agent of its liability and
obligations hereunder, all of which shall survive any such termination.
AV.3 Remedies; Remedies Cumulative. If a Construction Agency Event of
Default shall have occurred and be continuing under Section 5.1(b), 5.1(c),
5.1(d) (other than an Event of Default under paragraph (i), (j) or (k) of
Article XII of the Lease) or 5.1(e) other than as a result of the Construction
Agent's fraudulent or illegal acts, misapplication of funds or willful
misconduct, then, in each case, the Lessor shall have all rights and remedies
available under the Operative Documents or available at law, equity or
otherwise. In the event that the Construction Agent does not exercise its option
to purchase such Leased Property or Properties under Section 5.3(c), the
Construction Agent shall pay to the Lessor the Construction Failure Payment(s)
therefor within five (5) Business Days of the demand therefor by the Lessor, and
shall surrender and return such Leased Property or Properties to the Lessor or
its designee in accordance with the terms of Section 14.8 of the Lease (provided
that the obligation to surrender the Leased Property in as good condition as it
was on the Completion Date, ordinary wear and tear excepted, shall not apply).
In the event that the Construction Agent returns any Leased Property to the
Lessor pursuant to the previous or the next sentence, the Construction Agent
shall take such action as the Lessor may reasonably request in order to transfer
to the Lessor (or its designee) all of the Construction Agent's rights and
claims in, to and under the related Construction Contract(s), Architect's
Agreement(s), Engineer's Agreement(s), all other Construction Documents, all
agreements, security deposits, guaranties and surety bonds related thereto and
all licenses and governmental permits related to such Construction, and the
Construction Agent shall provide to the Lessor copies of all books, records and
documentation with respect to the foregoing. In addition, the Construction Agent
shall provide such assistance as the Lessor may request in order to remarket the
Leased Property.
(a) If a Construction Agency Event of Default shall have occurred and be
continuing as the result of the Construction Agent's fraudulent or illegal acts,
10
misapplication of funds or willful misconduct or under Section 5.1(a) or 5.1(d)
(as the result of an Event of Default under paragraph (i), (j) or (k) of Article
XII of the Lease), Lessor shall have all rights and remedies available under the
Operative Documents (including Section 13.1 of the Lease) or available at law,
equity or otherwise.
(b) Notwithstanding the foregoing, if a Construction Agency Event of
Default hereunder relates only to a specific Leased Property or specific Leased
Properties but not all Leased Properties (but in any event excluding any Event
of Default), the Construction Agent shall have the right to cure such
Construction Agency Event of Default by purchasing such Leased Property or
Properties for the Leased Property Balance(s) therefor from the Lessor in
accordance with the terms and subject to the conditions, restriction and
limitation of Section 14.5 of the Lease.
(c) No failure to exercise and no delay in exercising, on the part of the
Lessor, any right, remedy, power or privilege under this Agreement or under the
other Operative Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided in this Agreement are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
AVI
NO CONSTRUCTION AGENCY FEE
AVI.1 Lease as Fulfillment of Lessor's Obligations. The Construction Agent
will not be entitled to, and the Lessor shall not have any obligation to pay,
any agency fee or other fee or compensation, and the Construction Agent shall
not be entitled to, and the Lessor shall not have any obligation to make or pay,
any reimbursement therefor, it being understood that this Agreement is being
entered into as consideration for and as an inducement to the Lessor entering
into the Lease and the other Operative Documents.
▇▇▇▇
▇▇▇▇▇▇'▇ RIGHTS; CONSTRUCTION AGENT'S RIGHTS
AVII.1 Exercise of the Lessor's Rights. The Construction Agent hereby
acknowledges and agrees that the rights and powers of the Lessor under this
Agreement have been assigned to and may be exercised by the Agent.
11
AVII.2 Lessor's Right to Cure Construction Agent's Defaults. The Lessor,
without waiving or releasing any obligation or Construction Agency Event of
Default, may (but shall be under no obligation to) remedy any Construction
Agency Event of Default for the account of and at the sole cost and expense of
the Construction Agent. All reasonable out of pocket costs and expenses so
incurred (including actual and reasonable fees and expenses of counsel),
together with interest thereon at the Overdue Rate from the date on which such
sums or expenses are paid by the Lessor, shall be paid by the Construction Agent
to the Lessor on demand.
AVIII
MISCELLANEOUS
AVIII. Documentary Conventions. The Documentary Conventions shall apply to
this Agreement.
AVIII.2 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lessor, the Construction Agent and their respective
legal representatives, successors and permitted assigns. The Construction Agent
shall not assign its rights or obligations hereunder without the prior written
consent of the Lessor and the Agent.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
▇▇▇▇▇ RENTS, INC.
By:
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
SUNTRUST BANKS, INC.
By:
--------------------------------
Name:
Title:
S-1
EXHIBIT A
Supplement to Construction Agency Agreement
SUPPLEMENT to Construction Agency Agreement, dated as of ______________,
200_, between SUNTRUST BANKS, INC., (the "Lessor"), and ▇▇▇▇▇ RENTS, INC., a
Georgia corporation (in its capacity as construction agent, the "Construction
Agent"). Capitalized terms used but not otherwise defined herein shall have the
meanings given them in the Construction Agency Agreement.
The Lessor and the Construction Agent are parties to that certain Amended
and Restated Construction Agency Agreement, dated as of October 31, 2001 (as
amended, supplemented or otherwise modified, the "Construction Agency
Agreement"), pursuant to which (i) the Lessor has appointed the Construction
Agent as its sole and exclusive agent in connection with the identification and
acquisition of Land and construction of the Buildings in accordance with the
Plans and Specifications, and (ii) the Construction Agent has agreed, for the
benefit of the Lessor, to cause the construction of the Buildings to be
completed in accordance with the Plans and Specifications.
Subject to the terms and conditions of the Construction Agency Agreement,
the Lessor and the Construction Agent desire that the terms of the Construction
Agency Agreement apply to the Land described in Schedule 1 and wish to execute
this Supplement to provide therefor.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
1. The Construction Agent agrees to act as Construction Agent and to
perform its obligations under the Construction Agency Agreement in connection
with the completion of construction of the Building on the Land described in
Schedule 1 in accordance with the Plans and Specifications for such Land. The
Construction Agent hereby represents and warrants to Lessor that the
Construction Agent has heretofore delivered to Lessor a true, correct and
complete copy of the Plans and Specifications for the Building on the Land
described in Schedule 1 or, if not available on the date hereof, will deliver
such Plans and Specifications as soon as available.
2. Each of the Lessor and the Construction Agent acknowledges, and
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agrees, that the development of the Land and the Construction of the Buildings
thereon described in Schedule 1 shall be governed by the terms of the
Construction Agency Agreement.
3. The anticipated construction budget relating to the construction and
development of the Building on the Land described in Schedule 1 is $__________.
The acquisition cost of the Land described in Schedule 1 is $___________.
4. This Supplement shall, upon its execution and delivery, constitute a
part of the Construction Agency Agreement.
A-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
▇▇▇▇▇ RENTS, INC.
By:
---------------------------------
Name:
Title:
SUNTRUST BANKS, INC.
By:
---------------------------------
Name:
Title:
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Schedule 1 to Supplement
Description of Land Interest
A-4
APPENDIX A
to
Master Agreement
DEFINITIONS, INTERPRETATION AND DOCUMENTARY CONVENTION
A. Interpretation. In each Operative Document, unless a clear contrary
intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by the Operative Documents;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative Document),
document or instrument means such agreement, document or instrument as
amended, supplemented, waived, restated or modified and in effect from
time to time in accordance with the terms thereof and, if applicable, the
terms of the other Operative Documents and reference to any promissory
note includes any promissory note which is an extension or renewal thereof
or a substitute or replacement therefor;
(v) reference to any Applicable Law means such Applicable Law as
amended, waived, restated, modified, codified, replaced or reenacted, in
whole or in part, and in effect from time to time, including rules and
regulations promulgated thereunder and reference to any section or other
provision of any Applicable Law means that provision of such Applicable
Law from time to time in effect and constituting the substantive
amendment, modification, codification, replacement or reenactment of such
section or other provision;
(vi) reference in any Operative Document to any Article, Section,
Appendix, Schedule or Exhibit means such Article or Section thereof or
Appendix, Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar import
shall be deemed references to an Operative Document as a whole and not to
any particular Article, Section, paragraph or other provision of such
Operative Document;
(viii) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding
such term;
(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time, "from"
means "from and including" and "to" means "to but excluding".
B. Accounting Terms. Unless otherwise defined or specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP as in effect from time to
time, applied on a basis consistent with the most recent audited consolidated
financial statement of the Lessee delivered pursuant to Section 5.1(a) to the
Master Agreement; provided, that if the Lessee notifies the Agent that the
Lessee wishes to amend any covenant in Sections 5.10 through 5.14 of the Master
Agreement to eliminate the effect of any change in GAAP on the operation of such
covenant (or if the Agent notifies the Lessee that the Required Funding Parties
wish to amend Sections 5.10 through 5.14 of the Master Agreement for such
purpose), then the Lessee's compliance with such covenant shall be determined on
the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Lessee and the Required Lenders.
C. Conflict in Operative Documents. If there is any conflict between any
Operative Documents, such Operative Document shall be interpreted and construed,
if possible, so as to avoid or minimize such conflict but, to the extent (and
only to the extent) of such conflict, the Master Agreement shall prevail and
control.
D. Legal Representation of the Parties. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring the Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
E. Defined Terms. Unless a clear contrary intention appears, terms defined
herein have the respective indicated meanings when used in each Operative
Document.
"A Loan" means the A Percentage of Loans made by Lenders pursuant to the
Loan Agreement and the Master Agreement.
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"A Note" is defined in Section 2.2 of the Loan Agreement.
"A Percentage" means 85%.
"▇▇▇▇▇ Rents" means ▇▇▇▇▇ Rents, Inc., a Georgia corporation.
"Acquisition" means any transaction in which the Lessee or any of its
Subsidiaries directly or indirectly (i) acquires any ongoing business, (ii)
acquires all or substantially all of the assets of any Person or division
thereof, whether through a purchase of assets, merger or otherwise, (iii)
acquires (in one transaction or as the most recent transaction in a series of
transactions) control of at least a majority of the voting stock of a
corporation, other than the acquisition of voting stock of a wholly-owned
Subsidiary solely in connection with the organization and capitalization of that
Subsidiary by the Lessee or another Subsidiary Loan Party, or (iv) acquires
control of more than 50% ownership interest in any partnership, joint venture or
limited liability company.
"Address" means with respect to any Person, its address set forth in
Schedule I hereto or such other address as it shall have identified to the
parties to the Master Agreement in writing in the manner for the giving of
notices thereunder.
"Adjusted LIBO Rate" shall mean, with respect to each Rent Period for a
LIBOR Advance, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined pursuant to the following formula:
Adjusted LIBO Rate = LIBOR
-------------------------------
1.00 - LIBOR Reserve Percentage
As used herein, LIBOR Reserve Percentage shall mean, for any Rent Period for a
LIBOR Advance, the reserve percentage (expressed as a decimal) equal to the then
stated maximum rate of all reserves requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or against any successor category of
liabilities as defined in Regulation D).
"Advance" means a LIBOR Advance or a Base Rate Advance.
"Affected Funding Party" is defined in Section 7.5 of the Master
Agreement.
"Affiliate" shall mean, as to any Person, any other Person that directly,
or indirectly through one or more intermediaries, Controls, is Controlled by, or
is
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under common Control with, such Person. For purposes of this definition
"Control" shall mean the power, directly or indirectly, either to (i) vote 10%
or more of securities having ordinary voting power for the election of directors
(or persons performing similar functions) of a Person or (ii) direct or cause
the direction of the management and policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. The terms
"Controlling", "Controlled by", and "under common Control with" have meanings
correlative thereto.
"After-Tax Basis" means (a) with respect to any payment to be received by
an Indemnitee (which, for purposes of this definition, shall include any Tax
Indemnitee), the amount of such payment supplemented by a further payment or
payments so that, after deducting from such payments the amount of all Taxes
(net of any current credits, deductions or other Tax benefits arising from the
payment by the Indemnitee of any amount, including Taxes, for which the payment
to be received is made) imposed currently on the Indemnitee by any Governmental
Authority or taxing authority with respect to such payments, the balance of such
payments shall be equal to the original payment to be received and (b) with
respect to any payment to be made by any Indemnitee, the amount of such payment
supplemented by a further payment or payments so that, after increasing such
payment by the amount of any current credits or other Tax benefits realized by
the Indemnitee under the laws of any Governmental Authority or taxing authority
resulting from the making of such payments, the sum of such payments (net of
such credits or benefits) shall be equal to the original payment to be made;
provided, however, for the purposes of this definition, and for purposes of any
payment to be made to either the Lessee or an Indemnitee on an after-tax basis,
it shall be assumed that (i) federal, state and local taxes are payable at the
highest combined marginal federal and state statutory income tax rate (taking
into account the deductibility of state income taxes for federal income tax
purposes) applicable to corporations from time to time and (ii) such Indemnitee
or the Lessee has sufficient income to utilize any deductions, credits (other
than foreign tax credits, the use of which shall be determined on an actual
basis) and other Tax benefits arising from any payments described in clause (b)
of this definition.
"Agent" means SunTrust Bank, a Georgia banking corporation, in its
capacity as agent under the Master Agreement, the Lease Participation Agreement
and the Loan Agreement.
"Aggregate Funded Amount" with respect to any Leased Property means the
aggregate amount funded by the Lessor with respect to such Leased Property
pursuant to Section 2.2 of the Master Agreement, including the amount funded by
the Lease Participant and by the Lenders for the Loans with respect to such
Leased Property.
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"Alterations" means, with respect to any Leased Property, fixtures,
alterations, improvements, modifications and additions to such Leased Property.
"Applicable Law" means all existing and future applicable laws (including
Environmental Laws), rules, regulations (including proposed, temporary and final
income tax regulations), statutes, treaties, codes, ordinances, permits,
certificates, orders and licenses of and interpretations by, any Governmental
Authority, and applicable judgments, decrees, injunctions, writs, orders or like
action of any court, arbitrator or other administrative, judicial or
quasi-judicial tribunal or agency of competent jurisdiction (including those
pertaining to health, safety or the environment (including, without limitation,
wetlands) and those pertaining to the construction, use or occupancy of any
Leased Property) and any restrictive covenant or deed restriction or easement of
record affecting any Leased Property.
"Applicable Margin" shall mean with respect to all LIBOR Advances and Base
Rate Advances outstanding on any date as the case may be, a percentage per annum
determined by reference to the applicable Total Debt to EBITDA Ratio in effect
on such date as set forth on the Pricing Schedule attached hereto; provided,
that a change in the Applicable Margin resulting from a change in the Total Debt
to EBITDA Ratio shall be effective on the second day after which the Lessee has
delivered the financial statements required by Section 5.1(a) or (b) of the
Master Agreement and the compliance certificate required by Section 5.1(c) of
the Master Agreement; provided further, that if at any time the Lessee shall
have failed to deliver such financial statements and such certificate, the
Applicable Margin shall be at Level IV until such time as such financial
statements and certificate are delivered, at which time the Applicable Margin
shall be determined as provided above. Notwithstanding the foregoing, the
Applicable Margin from the Initial Closing Date until the financial statement
and compliance certificate for the fiscal quarter ending on September 30, 2001
are delivered shall be at Level III.
"Applicable Percentage" shall mean, with respect to the Unused Fee, as of
any date, the percentage per annum determined by reference to the applicable
Total Debt to EBITDA Ratio in effect on such date as set forth on the Pricing
Schedule attached hereto; provided, that a change in the Applicable Percentage
resulting from a change in the Total Debt to EBITDA Ratio shall be effective on
the second day after which the Lessee has delivered the financial statements
required by Section 5.1(a) or (b) of the Master Agreement and the compliance
certificate required by Section 5.1(c) of the Master Agreement; provided,
further, that if at any time the Lessee shall have failed to deliver such
financial statements and such certificate, the Applicable Percentage shall be at
Level IV until such time as such financial statements and certificate are
delivered, at
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which time the Applicable Percentage shall be determined as provided above.
Notwithstanding the foregoing, the Applicable Percentage for the commitment fee
from the Initial Closing Date until the financial statement and compliance
certificate for the fiscal quarter ending on September 30, 2001 are delivered
shall be at Level III.
"Appraisal" is defined in Section 3.1 of the Master Agreement.
"Appraiser" means an MAI appraiser satisfactory to the Agent and the
Lessor.
"Architect" means with respect to any Leased Property the architect
engaged in connection with the construction of the related Building, who may be
an employee of the General Contractor for such Leased Property.
"Architect's Agreement" means, with respect to any Leased Property, the
architectural services agreement, if any, between the Lessee and the related
Architect.
"Assignment of Lease and Rents" means, with respect to any Leased
Property, the Assignment of Lease and Rents, dated as of the related Closing
Date, from the Lessor to the Agent, substantially in the form of Exhibit B to
the Master Agreement.
"Awards" means any award or payment received by or payable to the Lessor
or the Lessee on account of any Condemnation or Event of Taking (less the actual
costs, fees and expenses incurred in the collection thereof, for which the
Person incurring the same shall be reimbursed from such award or payment).
"B Loan" means the B Percentage of Loans made by a Lender pursuant to the
Loan Agreement and the Master Agreement.
"B Note" is defined in Section 2.2 of the Loan Agreement.
"B Percentage" means 15%.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended.
"Base Rate" means (with any change in the Base Rate to be effective as of
the date of change of either of the following rates) the higher of (i) the rate
which the Agent publicly announces from time to time as its prime lending rate,
as in effect from time to time, and (ii) the Federal Funds Rate, as in effect
from time to time, plus one-half of one percent (0.50%) per annum. The Agent's
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prime lending rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to customers; the Agent may make commercial
loans or other loans at rates of interest at, above or below the Agent's prime
lending rate. The Base Rate is determined daily.
"Base Rate Advance" means that portion of the Funded Amount bearing
interest based on the Base Rate.
"Base Term" means, (a)(i)with respect to any Existing Leased Property, the
period commencing on October 31, 2001 for the first parcel of Land acquired by
the Lessor and ending on October 30, 2006 and (ii) with respect to any other
Leased Property, the period commencing on the Completion Date for such Leased
Property (or the related Closing Date, if such Leased Property is not a
Construction Land Interest) and ending on October 30, 2006 or (b) such shorter
period as may result from earlier termination of the Lease as provided therein.
"Basic Rent" means, for any Lease Term, the rent payable pursuant to
Section 3.1 of the Lease, determined in accordance with the following: each
installment of Basic Rent payable on any Payment Date shall be in an amount
equal to the sum of (A) the aggregate amount of Lender Basic Rent payable on
such Payment Date, plus (B) the aggregate amount of Lessor Basic Rent payable on
such Payment Date, in each case for the Leased Property or Properties that are
then subject to the Lease.
"Board of Directors", with respect to a corporation, means either the
Board of Directors or any duly authorized committee of that Board which pursuant
to the by-laws of such corporation has the same authority as that Board as to
the matter at issue.
"Building" means, with respect to any Leased Property, (i) the buildings,
structures and improvements located or to be located on the related Land, along
with all fixtures used or useful in connection with the operation of such Leased
Property, including all furnaces, boilers, compressors, elevators, fittings,
pipings, connectives, conduits, ducts, partitions, equipment and apparatus of
every kind and description now or hereafter affixed or attached or used or
useful in connection with the Building, (ii) all equipment and other personal
property financed by the Lessor and/or the Lenders and the Lease Participants
and (iii) all Alterations (including all restorations, repairs, replacements and
rebuilding of such buildings, improvements and structures) thereto (but in each
case excluding trade fixtures financed other than by the Lessor, the Lease
Participant or the Lenders).
"Business Day" means any day other than a Saturday, Sunday or other day
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on which banks are required or authorized to be closed for business in Atlanta,
Georgia and, if the applicable Business Day relates to a LIBOR Advance, on which
trading is not carried on by and between banks in the London interbank market.
"Capital Lease Obligations" of any Person shall mean all obligations of
such Person to pay rent or other amounts under any lease (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Casualty" means an event of damage or casualty relating to all or part of
any Leased Property that does not constitute an Event of Loss.
"Change in Control" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Lessee to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) other than the ▇▇▇▇▇▇▇▇▇▇ Family of 33 1/3% or more of the total voting
power of shares of stock entitled to vote in the election of directors of the
Lessee; or (c) occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Lessee by Persons who were neither (i)
nominated by the current board of directors or (ii) appointed by directors so
nominated.
"Claims" means liabilities, obligations, damages, losses, demands,
penalties, fines, claims, actions, suits, judgments, proceedings, settlements,
utility charges, costs, expenses and disbursements (including, without
limitation, reasonable legal fees and expenses) of any kind and nature
whatsoever.
"Closing Date" means, with respect to each parcel of Land, the date on
which such Land is acquired by the Lessor and the initial Funding occurs with
respect to such Land under the Master Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means as to each Funding Party, its obligation to make
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Fundings as investments in each Leased Property, or to make Loans to the Lessor,
or to fund a Lease Participation as the case may be, in an aggregate amount not
to exceed at any one time outstanding the amount set forth for such Funding
Party on Schedule 2.2 to the Master Agreement (as it may be adjusted from time
to time pursuant to Section 6 of the Master Agreement).
"Commitment Percentage" means as to any Funding Party, at a particular
time, the percentage of the aggregate Commitments in effect at such time
constituted by such Funding Party's Commitment, as such percentage is shown for
such Funding Party on Schedule 2.2 to the Master Agreement (as it may be
adjusted from time to time pursuant to Section 6 of the Master Agreement).
"Completion Date" with respect to any Leased Property means the Business
Day on which the conditions specified in Section 3.5 of the Master Agreement
have been satisfied or waived with respect to such property.
"Completion Date Appraisal" with respect to any Leased Property means that
appraisal, dated as of the Completion Date, delivered by the Appraiser pursuant
to Section 3.5 of the Master Agreement with respect to such Leased Property.
"Condemnation" means any condemnation, requisition, confiscation, seizure,
permanent use or other taking or sale of the use, occupancy or title to any
Leased Property or any part thereof in, by or on account of any actual eminent
domain proceeding or other action by any Governmental Authority or other Person
under the power of eminent domain or any transfer in lieu of or in anticipation
thereof, which in any case does not constitute an Event of Taking. A
Condemnation shall be deemed to have "occurred" on the earliest of the dates
that use is prevented or occupancy or title is taken.
"Consolidated EBITDA" shall mean, for the Lessee and its Subsidiaries for
any period, an amount equal to the sum of (a) Consolidated Net Income for such
period plus (b) to the extent deducted in determining Consolidated Net Income
for such period, (i) Consolidated Interest Expense, (ii) income tax expense,
(iii) depreciation (excluding depreciation of rental merchandise) and
amortization and (iv) all other non-cash charges, determined on a consolidated
basis in accordance with GAAP in each case for such period.
"Consolidated EBITDAR" shall mean, for the Lessee and its Subsidiaries for
any period, an amount equal to the sum of (a) Consolidated EBITDA and (b)
Consolidated Lease Expense.
"Consolidated Fixed Charges" shall mean, for the Lessee and its
Subsidiaries for any period, the sum (without duplication) of (a) Consolidated
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Interest Expense for such period and (b) Consolidated Lease Expense for such
period.
"Consolidated Interest Expense" shall mean, for the Lessee and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, total cash interest expense, including without limitation the
interest component of any payments in respect of Capital Leases Obligations
capitalized or expensed during such period (whether or not actually paid during
such period).
"Consolidated Lease Expense" shall mean, for any period, the aggregate
amount of fixed and contingent rentals payable by the Lessee and its
Subsidiaries with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined on a consolidated basis in accordance with
GAAP for such period.
"Consolidated Net Income" shall mean, for any period, the net income (or
loss) of the Lessee and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses, (ii)
any gains attributable to write-ups of assets and (iii) any equity interest of
the Lessee or any Subsidiary of the Lessee in the unremitted earnings of any
Person that is not a Subsidiary and (iv) any income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Lessee or any Subsidiary on the date that such Person's
assets are acquired by the Lessee or any Subsidiary.
"Consolidated Net Worth" shall mean, as of any date of determination, the
Lessee's total shareholders' equity, determined in accordance with GAAP.
"Consolidated Total Adjusted Capital" shall mean, as of any date of
determination with respect to the Lessee, the sum of (i) Consolidated Total
Adjusted Debt as of such date and (ii) Consolidated Net Worth as of such date.
"Consolidated Total Adjusted Debt" shall mean, as of any date of
determination, (i) Consolidated Total Debt, plus (ii) to the extent not included
in clause (i), all operating lease obligations of Lessee and its Subsidiaries
measured at the present value of such obligations (using a 10% discount rate).
"Consolidated Total Debt" shall mean, at any time, all then currently
outstanding obligations, liabilities and indebtedness of the Lessee and its
subsidiaries on a consolidated basis of the types described in the definition of
Indebtedness (other than as described in subsection (xi) thereof), but
including, but not limited to all loans under the Credit Agreement and LC
Exposure.
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Notwithstanding anything contained herein to the contrary, for purposes of
calculating Consolidated Total Debt as of any date, the obligations, liabilities
and indebtedness of the Lessee under the Loan Facility Agreement shall be
limited to fifty percent (50%) of the aggregate outstanding principal amount of
the Loans (as such term is defined in the Loan Facility Agreement) on such date.
"Construction" means, with respect to any Leased Property, the
construction of the related Building pursuant to the related Plans and
Specifications.
"Construction Agency Agreement" means the Amended and Restated
Construction Agency Agreement, dated as of October 31, 2001, between the Lessee
and the Lessor.
"Construction Agency Event of Default" is defined in Section 5.1 of the
Construction Agency Agreement.
"Construction Agent" means the Lessee in its capacity as construction
agent pursuant to the Construction Agency Agreement.
"Construction Budget" is defined in Section 2.4 of the Construction Agency
Agreement.
"Construction Conditions" means the conditions set forth in Section 3.5 of
the Master Agreement.
"Construction Contract" means, with respect to any Leased Property, that
certain construction contract, if any, between the Construction Agent and a
General Contractor for the Construction of the related Building, which contract
shall be assigned to the Lessor, and such assignment shall be consented to by
such General Contractor, pursuant to an assignment of such construction contract
substantially in the form of the Security Agreement and Assignment set forth as
Exhibit D to the Master Agreement.
"Construction Costs" means, with respect to any Leased Property, all costs
of acquisition of the related Land, all closing, development and transaction
costs related thereto, including fees, costs and expenses of attorneys,
architects, surveyors, engineers, title and other insurance companies,
appraisers and environmental firms, all costs of Construction and all interest
and Yield accrued on the Funded Amounts related to such Leased Property during
the Construction Term therefor.
"Construction Failure Payment" with respect to any Leased Property means
an amount equal to the sum of (i) 100% of the acquisition cost of
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the related Land, plus (ii) 89.9% of the Construction Costs (including
development and transaction costs, but excluding any upfront structuring fees)
related to such Leased Property that have been funded by Advances through the
date of payment.
"Construction Force Majeure Event" means, with respect to any Leased
Property:
(a) an act of God arising after the related Closing Date, or
(b) any change in any state or local law, regulation or other legal
requirement arising after such Closing Date and relating to the use
of the Land or the construction of a building on the Land, or
(c) strikes, lockouts, labor troubles, unavailability of materials,
riots, insurrections or other causes beyond the Lessee's control
which prevents the Construction Agent from completing the Construction prior to
the Scheduled Construction Termination Date and which could not have been
avoided or which cannot be remedied by the Construction Agent through the
exercise of all commercially reasonable efforts or the expenditure of funds and,
in the case of (b) above, the existence or potentiality of which was not known
to and could not have been discovered prior to such Closing Date through the
exercise of due diligence by the Construction Agent.
"Construction Land Interest" means each parcel of Land for which the
Completion Date has not yet occurred.
"Construction Term" means, with respect to any Leased Property, the period
commencing on the related Closing Date and ending on the related Construction
Term Expiration Date, or such shorter period as may result from earlier
termination of the Lease as provided therein.
"Construction Term Expiration Date" means, with respect to any Leased
Property, the earliest of the following:
(a) the related Completion Date,
(b) the date on which the aggregate Funded Amounts equal the
Commitments, and
(c) the related Scheduled Construction Termination Date.
"Contractual Obligation", as applied to any Person, means any provision
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of any Securities issued by that Person or any indenture, mortgage, deed of
trust, contract, undertaking, agreement, instrument or other document to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject (including, without limitation, any
restrictive covenant affecting any of the properties of such Person).
"Credit Agreement" means, the Revolving Credit Agreement, dated as of
March 30, 2001, among the Lessee, as borrower, ▇▇▇▇▇ Rents, Inc. Puerto Rico, as
co-borrower, the lenders from time to time party hereto, SunTrust Bank, as
administrative agent, and FirstUnion National Bank, as syndication agent.
"Deed" means, with respect to any Land, a General Warranty Deed, dated the
applicable Closing Date, from the applicable Seller to the Lessor, conveying
such Land.
"Disbursement Agreement" means the Disbursement/Transfer Agreement, dated
as of October 31, 2001, between the Lessee and SunTrust Bank.
"Domestic Subsidiary" means any Subsidiary which is incorporated or
organized under the laws of any State of the United States, the District of
Columbia or Puerto Rico.
"Documentary Conventions" means the provisions set forth in Paragraph F of
this Appendix A.
"Engineer" means, with respect to any Leased Property, the engineer
engaged in connection with the construction of the related Building, if any, who
may be an employee of the General Contractor for such Leased Property.
"Engineer's Agreement" means, with respect to any Leased Property the
engineering services agreement, if any, between the Construction Agent, in its
capacity as agent for Lessor, and the related Engineer.
"Environmental Audit" means, with respect to each parcel of Land, a Phase
I Environmental Assessment and, if recommended in such Phase I Environmental
Assessment, a Phase II Environmental Assessment, dated no more than 60 days
prior to the related Closing Date, by an environmental services firm
satisfactory to the Funding Parties.
"Environmental Laws" means and include the Resource Conservation and
Recovery Act of 1976, (RCRA) 42 U.S.C. Sections 6901-6987, as amended by
the Hazardous and Solid Waste Amendments of 1984, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended by the
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Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Sections
9601-9657, (CERCLA), the Hazardous Materials Transportation Act of 1975, 49
U.S.C. Sections 1801-1812, the Toxic Substances Control Act, 15 U.S.C.
Sections 2601-2671, the Clean Air Act, 42 U.S.C. Sections 7401 et
seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
Sections 136 et seq., and all similar federal, state and local
environmental laws, ordinances, rules, orders, statutes, decrees, judgments,
injunctions, codes and regulations, and any other federal, state or local laws,
ordinances, rules, codes and regulations, and any other federal, state or local
laws, ordinances, rules, codes and regulations relating to the environment,
human health or natural resources or the regulation or control of or imposing
liability or standards of conduct concerning human health, the environment,
Hazardous Materials or the clean-up or other remediation of any Leased Property,
or any part thereof, as any of the foregoing may have been from time to time
amended, supplemented or supplanted.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Lessee or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Environmental Permits" means all permits, licenses, authorizations,
certificates and approvals of Governmental Authorities required by Environmental
Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time or any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Lessee, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for the purposes of Section
302 of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as
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defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Lessee or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Lessee or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Lessee or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Lessee or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Lessee or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"ERISA Group" means the Lessee and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
the control of the Lessee which, together with the Lessee, are treated as a
single employer under Section 414 of the Code.
"Event of Default" means any event or condition designated as an "Event of
Default" in Article XII of the Lease.
"Event of Loss" is defined in Section 10.1 of the Lease.
"Event of Taking" is defined in Section 10.2 of the Lease.
"Existing Construction Agency Agreement" is defined in the preliminary
statements to the Construction Agency Agreement.
"Existing Lease" is defined in the preliminary statements to the Lease.
"Existing Leased Properties" means each Leased Property that was leased
under the Existing Lease.
"Existing Master Agreement" is defined in the preliminary statements to
the Master Agreement.
"Existing Operative Documents" means the "Operative Documents" as defined
in Appendix A to the Existing Master Agreement.
"Fair Market Rental Value" means, with respect to any Leased Property, the
fair market rental value as determined by an independent appraiser chosen
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by the Lessor that would be obtained in an arm's-length lease between an
informed and willing lessee and an informed and willing lessor, in either case
under no compulsion to lease, and neither of which is related to the Lessor or
Lessee for the lease of such Leased Property on the terms set forth, or referred
to, in the Lease. Such fair market rental value shall be calculated as the value
for the use of such Leased Property to be leased in place at the Land, assuming,
in the determination of such fair market rental value, that such Leased Property
is in the condition and repair required to be maintained by the terms of the
related Lease (unless such fair market rental value is being determined for the
purposes of Section 13.1 of the Lease and except as otherwise specifically
provided in the Lease, in which case this assumption shall not be made).
"Fair Market Sales Value" means, with respect to any Leased Property or
any portion thereof, the fair market sales value as determined by an independent
appraiser chosen by the Lessor or, so long as the Funded Amounts are
outstanding, the Agent that would be obtained in an arm's-length transaction
between an informed and willing buyer (other than a lessee currently in
possession) and an informed and willing seller, under no compulsion,
respectively, to buy or sell and neither of which is related to the Lessor or
Lessee, for the purchase of such Leased Property. Such fair market sales value
shall be calculated as the value for the use of such Leased Property, assuming,
in the determination of such fair market sales value, that such Leased Property
is in the condition and repair required to be maintained by the terms of the
Lease (unless such fair market sales value is being determined for purposes of
Section 13.1 of the Lease and except as otherwise specifically provided in the
Lease or the Master Agreement, in which case this assumption shall not be made).
"Federal Funds Rate" means for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with member banks of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of Atlanta, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Final Rent Payment Date" with respect to any Leased Property is defined
in Section 13.1(e) of the Lease.
"Fiscal Year" shall mean a fiscal year of the Lessee; references to a
Fiscal
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Year with a number corresponding to any calendar year (e.g., the "Fiscal Year
2000") refers to the Fiscal Year ending during such calendar year.
"Fixed Charge Coverage Ratio" shall mean, at any date, the ratio of (a)
Consolidated EBITDAR for the four consecutive fiscal quarters of the Lessee
ending on such date to (b) Consolidated Fixed Charges for the four consecutive
fiscal quarters of the Lessee ending on such date.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"Funded Amount" means, as to the Lessor, the Lessor's Invested Amounts,
and, as to each Lender, the outstanding principal of such Lender's Loans.
"Funding" means any funding by the Funding Parties pursuant to Section 2.2
of the Master Agreement.
"Funding Date" means collectively, each Closing Date and each other date
during the Construction Term on which a Funding occurs under Section 2 of the
Master Agreement.
"Funding Parties" means the Lessor, the Agent, the Lease Participant and
the Lenders, collectively.
"Funding Party Balance" means, with respect to any Leased Property, (i)
for the Lessor as of any date of determination, an amount equal to the sum of
the outstanding related Lessor's Invested Amount (less the related Lease
Participant Amount), all accrued and unpaid Yield on such outstanding related
Lessor's Invested Amount (less the related Lease Participant Amount), all unpaid
related fees owing to the Lessor under the Operative Documents, and all other
related amounts owing to the Lessor by the Lessee under the Operative Documents,
(ii) for the Lease Participant as of any date of determination, an amount equal
to the sum of the outstanding related Lease Participant Amount, all accrued and
unpaid Yield thereon, all unpaid related fees owing to the Lease Participant
under the Operative Documents, and all other related amounts owing to the Lease
Participant by the Lessee under the Operative Documents, and (iii) for any
Lender as of any date of determination, an amount equal to the sum of the
outstanding related Loans of such Lender, all accrued and unpaid interest
thereon, all unpaid related fees owing to such Lender under the Operative
Documents, and all other related amounts owing to such Lender by the Lessee
under the Operative Documents.
"Funding Request" is defined in Section 2.2 of the Master Agreement.
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"Funding Termination Date" means October 31, 2003.
"GAAP" shall mean generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section B
hereof.
"General Contractor" means with respect to any Leased Property the general
contractor under the related Construction Contract as may be selected by the
Construction Agent.
"Governmental Action" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, decrees,
licenses, exemptions, publications, filings, notices to and declarations of or
with, or required by, any Governmental Authority, or required by any Applicable
Law and shall include, without limitation, all citations, environmental and
operating permits and licenses that are required for the use, occupancy, zoning
and operation of any Leased Property.
"Governmental Authority" means any foreign or domestic federal, state,
county, municipal or other governmental or regulatory authority, agency, board,
body, commission, instrumentality, court or any political subdivision thereof.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
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"Guarantor" means the Lessee, in its capacity as guarantor under the
Guaranty.
"Guaranty" means the Amended and Restated Guaranty, dated as of October
31, 2001 by the Guarantor in favor of the Funding Parties.
"Hazardous Material" means any substance, waste or material which is
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous, including petroleum, crude oil or any fraction
thereof, petroleum derivatives, by products and other hydrocarbons, or which is
or becomes regulated under any Environmental Law by any Governmental Authority,
including any agency, department, commission, board or instrumentality of the
United States, any jurisdiction in which a Leased Property is located or any
political subdivision thereof and also including, without limitation, asbestos,
urea formaldehyde foam insulation, polychlorinated biphenyls ("PCBs") and radon
gas.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 12.1(h) of the Lease, trade
payables overdue by more than 120 days shall be included in this definition
except to the extent that any of such trade payables are being disputed in good
faith and by appropriate measures), (iv) all obligations of such Person under
any conditional sale or other title retention agreement(s) relating to property
acquired by such Person, (v) all Capital Lease Obligations of such Person, (vi)
all obligations, contingent or otherwise, of such Person in respect of letters
of credit, acceptances or similar extensions of credit, (vii) all Guarantees of
such Person of the type of Indebtedness described in clauses (i) through (v)
above, (viii) all Indebtedness of a third party secured by any Lien on property
owned by such Person, whether or not such Indebtedness has been assumed by such
Person, (ix) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any common stock of such
Person, and (x) Off- Balance Sheet Liabilities. The Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, except to the extent that the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnitee" means the Agent (in its individual capacity and in its
capacity as Agent), the Lease Participant, each Lender, and the Lessor, and
their
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respective Affiliates, successors, permitted assigns, permitted transferees,
employees, officers, directors and agents; provided, however, that in no event
shall the Lessee be an Indemnitee.
"Indemnitee Group" means the respective Affiliates, employees, officers,
directors and agents of the Agent (in its individual capacity), the Lease
Participant, each Lender or the Lessor, as applicable; provided, however, that
in no event shall the Lessee be a member of the Indemnitee Group.
"Initial Closing Date" means the Closing Date for the first Leased
Property acquired by the Lessor.
"Land" means the land described in Appendix B to the related Lease
Supplement.
"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs, treaties or decrees of any governmental or political
subdivision or agency thereof, or of any court or similar entity established by
any thereof.
"LC Exposure" is defined in the Credit Agreement.
"Lease" means the Amended and Restated Lease Agreement, dated as of
October 31, 2001, together with each Lease Supplement thereto, between the
Lessee and the Lessor, with such modifications as are satisfactory to the Lessor
and the Agent in conformity with Applicable Law to assure customary remedies in
favor of the Funding Parties in the jurisdiction where the Leased Property is
located.
"Lease Balance" means, with respect to the Leased Properties, as of any
date of determination, an amount equal to the aggregate sum of the outstanding
Funded Amounts of all Funding Parties, all accrued and unpaid interest on the
Loans, all accrued and unpaid Yield on the Lessor's Invested Amounts, all unpaid
fees owing to the Funding Parties under the Operative Documents, including all
other amounts owing to the Funding Parties by the Lessee under the Operative
Documents.
"Lease Participant" means SunTrust Bank and such other Persons, if any,
who may become parties to the Lease Participation Agreement as Lease
Participants, provided that, unless such other Person is an Affiliate of
SunTrust Bank, Lessee consents to such other Person, which consent shall not be
unreasonably withheld.
"Lease Participation Agreement" means the Amended and Restated Lease
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Participation Agreement dated as of October 31, 2001, among the Lessor, the
Lease Participant and the Agent.
"Lease Participant Amount" means the amounts funded by the Lease
Participant pursuant to Section 2.2 of the Lease Participation Agreement (as
increased during the related Construction Term by a amount equal to the Lease
Participant's Percentage of the increase in the related Lessor's Invested Amount
pursuant to Section 2.3(c) of the Master Agreement), as the purchase price for
the Lease Participation.
"Lease Participant Commitment" is defined in Section 2.2 of the Lease
Participation Agreement.
"Lease Participation" is defined in Section 2.1 of the Lease Participation
Agreement.
"Lease Supplement" is defined in Section 2.1 of the Lease.
"Lease Term" with respect to the Lease means (a) the Base Term, as it may
be renewed pursuant to Section 14.9 of the Lease or (b) such shorter period as
may result from earlier termination of the Lease as provided therein.
"Lease Termination Date" means the last day of the Lease Term, as the same
may be accelerated pursuant to the Lease.
"Leased Property" means Land and the related Building(s), including each
Existing Leased Property. For purpose of the Lease, "Leased Property" means the
property subject to a Lease Supplement, unless the context provides otherwise.
"Leased Property Balance" means, with respect to any Leased Property, as
of any date of determination, an amount equal to the aggregate sum of the
outstanding related Funded Amounts of all Funding Parties, all accrued and
unpaid interest on the related Loans, all accrued and unpaid Yield on the
related Lease Participant Amounts, all related unpaid fees owing to the Funding
Parties under the Operative Documents, including all other amounts owing to the
Funding Parties by the Lessee under the Operative Documents.
"Lender Basic Rent" means, for any Rent Period under the Lease, the
aggregate amount of interest accrued on the Loans subject to the Lease pursuant
to Section 2.5 of the Loan Agreement during such Rent Period.
"Lenders" means such financial institutions as are, or who may hereafter
become, parties to the Loan Agreement as Lenders to the Lessor.
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"Lending Office" for each Lender or Lease Participant means the office
such Lender or Lease Participant designates in writing from time to time to the
Lessee and the Agent.
"Lessee" is defined in the preamble to the Master Agreement.
"Lessor" is defined in the preamble to the Master Agreement.
"Lessor Basic Rent" means, for any Rent Period under any Lease, the
aggregate amount of Yield accrued on the Lessor's Invested Amounts under the
Lease under Section 2.3(a) of the Master Agreement during such Rent Period.
"Lessor Liens" means Liens on or against any Leased Property, the Lease,
any other Operative Document or any payment of Rent (a) which result from any
act or omission of, or any Claim against, the Lessor unrelated to the
transactions contemplated by the Operative Documents or (b) which result from
any Tax owed by the Lessor, except any Tax for which the Lessee is obligated to
indemnify (including, without limitation, in the foregoing exception, any
assessments with respect to any Leased Property noted on the related Title
Policy or assessed in connection with any construction or development by the
Lessee or the Construction Agent).
"Lessor's Invested Amount" means the amounts funded by the Lessor pursuant
to Section 2 of the Master Agreement that are not proceeds of Loans by a Lender,
as such amount may be increased during the related Construction Term pursuant to
Section 2.3(c) of the Master Agreement.
"LIBOR" means, for any Rent Period, with respect to LIBOR Advances the
offered rate for deposits in U.S. Dollars, for a period comparable to the Rent
Period and in an amount comparable to such Advances, appearing on the Telerate
Screen Page 3750 as of 11:00 A.M. (London, England time) on the day that is two
London Business Days prior to the first day of the Rent Period. If two or more
of such rates appear on the Telerate Screen Page 3750, the rate for that Rent
Period shall be the arithmetic mean of such rates. If the foregoing rate is
unavailable from the Telerate Screen for any reason, then such rate shall be
determined by the Agent from the Reuters Screen LIBO Page or, if such rate is
also unavailable on such service, then on any other interest rate reporting
service of recognized standing designated in writing by the Agent to the Lessee,
the Lease Participant and the Lenders; in any such case rounded, if necessary,
to the next higher 1/100 of 1.0%, if the rate is not such a multiple.
"LIBOR Advance" means that portion of the Funded Amount bearing interest
based on the LIBOR Rate.
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"Lien" shall mean any mortgage, pledge, security interest, lien (statutory
or otherwise), charge, encumbrance, hypothecation, assignment, deposit
arrangement, or other arrangement having the practical effect of the foregoing
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having the same economic
effect as any of the foregoing). A covenant not to ▇▇▇▇▇ ▇ ▇▇▇▇ or a "negative
pledge" shall not be determined a Lien for purposes of this Agreement.
"Loan" shall have the meaning specified in Section 2.1 of the Loan
Agreement.
"Loan Agreement" means the Amended and Restated Loan Agreement, dated as
of October 31, 2001, among the Lessor, the Agent and the Lenders.
"Loan Documents" means the Loan Agreement, the Notes, the Assignments of
Lease and Rents, the Mortgages and all documents and instruments executed and
delivered in connection with each of the foregoing.
"Loan Event of Default" means any of the events specified in Section 5.1
of the Loan Agreement, provided that any requirement for the giving of notice,
the lapse of time, or both, or any other condition, event or act has been
satisfied.
"Loan Facility Agreement" shall mean that certain Loan Facility Agreement
and Guaranty dated as of March 30, 2001 by and among the Lessee, SunTrust Bank,
as servicer and the financial institutions from time to time a party thereto, as
Participants, as amended, restated, supplemented or otherwise modified from time
to time.
"Loan Parties" shall mean the Lessee, the Co-Borrower (as defined in the
Credit Agreement) and the Subsidiary Loan Parties.
"Loan Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become a Loan Event of
Default.
"Loss Proceeds" is defined in Section 10.6 of the Lease.
"▇▇▇▇▇▇▇▇▇▇ Family" shall mean, collectively, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇., his spouse, his children, his grandchildren and any trust which may be now
or hereafter established for the sole benefit of any of the foregoing persons.
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"Master Agreement" means the Amended and Restated Master Agreement, dated
as of October 31, 2001, among the Lessee, the Lessor, the Agent and the Lenders.
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not related,
a material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets, liabilities or prospects of
the Lessee and its Subsidiaries taken as a whole, (ii) the ability of the Lessee
or the Guarantor to perform any of their respective obligations under the
Operative Documents, (iii) the rights and remedies of the Agent, the Lessor Bank
and the Funding Party under any of the Operative Documents, (iv) the legality,
validity or enforceability of any of the Loan Documents, (v) or the value,
utility or useful life of any Leased Property, or (vi) the priority, perfection
or status of any Funding Party's interest in any Leased Property.
"Material Indebtedness" shall mean Indebtedness of any one or more of the
Lessee and the Subsidiaries in an aggregate principal amount exceeding $500,000.
"Mortgage" means, with respect to any Leased Property, that certain
mortgage, deed of trust or security deed, dated as of the related Closing Date,
by the Lessor to the Agent, substantially in the form of Exhibit D attached to
the Master Agreement, with such modifications as are satisfactory to the Lessor
and the Agent in conformity with Applicable Law to assure customary remedies in
favor of the Agent in the jurisdiction where the Leased Property is located.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Notes" means the A Note and the B Note issued by the Lessor under the
Loan Agreement, and any and all notes issued in replacement or exchange therefor
in accordance with the provisions thereof.
"Obligations" means all amounts owed by, and obligations of, the Lessor to
the Lenders or the Agent under the Loan Agreement, Notes and other Operative
Documents.
"Officer's Certificate" of a Person means a certificate signed by the
Chairman of the Board or the President or any Executive Vice President or any
Senior Vice President or any other Vice President of such Person signing with
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the Treasurer or any Assistant Treasurer or the Controller or any Assistant
Controller or the Secretary or any Assistant Secretary of the such Person, or by
any Vice President who is also Controller or Treasurer signing alone.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, other than indemnity obligations for any
breach of any representation or warranty which are customary in nonrecourse
sales of such assets, (ii) any liability of such Person under any sale and
leaseback transactions which do not create a liability on the balance sheet of
such Person, (iii) any liability of such Person under any so-called "synthetic"
lease transaction or (iv) any obligation arising with respect to any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the balance sheet of such
Person.
"Operative Documents" means the Master Agreement, the Guaranty, the
Purchase Agreements, the Deeds, the Lease, the Lease Participation Agreement,
the Security Agreement and Assignment, the Notes, the Loan Agreement, the
Assignments of Lease and Rents, the Mortgages, the Construction Agency
Agreement, the Disbursement Agreement and the other documents delivered in
connection with the transactions contemplated by the Master Agreement.
"Overdue Rate" means the lesser of (a) the highest interest rate permitted
by Applicable Law and (b) an interest rate per annum (calculated on the basis of
a 365-day (or 366-day, if appropriate) year equal to 2.0% above the Base Rate in
effect from time to time.
"Partial Purchase Option" is defined in Section 14.1(b) of the Lease.
"Payment Date" means the last day of each Rent Period (and if such Rent
Period is longer than 90 days or three months, the day that is 90 days after the
first day of such Rent Period) or, if such day is not a Business Day, the next
Business Day.
"Payment Date Notice" is defined in Section 2.3(e) of the Master
Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA, and any successor entity performing similar functions.
"Permitted Acquisition" shall mean any Acquisition so long as (a) at the
time of such Acquisition, no Potential Event of Default or Event of Default is
in existence, (b) after giving effect to such Acquisition, no Potential Event of
Default or Event of Default is in existence, (c) such Acquisition has been
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approved by the board of directors of the Person being acquired prior to any
public announcement thereof, (d) the total consideration (including all cash,
debt, stock and other property, and assumption of obligations for borrowed
money) of any single Acquisition or series of related Acquisitions does not
exceed $10,000,000, and (e) the total consideration (including all cash, debt,
stock and other property, and assumption of obligations for borrowed money) of
all Acquisitions during any fiscal year does not exceed $20,000,000. As used
herein, Acquisitions will be considered related Acquisitions if the sellers
under such Acquisitions are the same Person or any Affiliate thereof.
"Permitted Encumbrances" shall mean
(i) Liens imposed by law for taxes not yet due or which are being
contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in
accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by
law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance
and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or
legal proceeding that are currently being contested in good
faith by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with GAAP;
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or materially interfere with the ordinary
conduct
-26-
of business of the Lessee and its Subsidiaries taken as a whole;
(vii) other Liens incidental to the conduct of its business or the
ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate materially
detract from the value of its property or assets or materially
impair the use thereof in the operation of its business; and
(viii) Liens on insurance policies owned by the Lessee on the lives of
its officers securing policy loans obtained from the insurers
under such policies, provided that (A) the aggregate amount
borrowed on each policy shall not exceed the loan value thereof,
and (B) the Lessee shall not incur any liability to repay any
such loan;
provided, that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States (or by any agency thereof to the extent such obligations
are backed by the full faith and credit of the United States),
in each case maturing within one year from the date of
acquisition thereof;
(ii) commercial paper having an A or better rating, at the time of
acquisition thereof, of S&P or ▇▇▇▇▇'▇ and in either case
maturing within one year from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time deposits
maturing within one year of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States or
any state thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above
and entered into with a financial institution satisfying the
criteria described in clause (iii) above; and
-27-
(v) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv)
above.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, joint- stock company, trust,
nonincorporated organization or government or any agency or political
subdivision thereof.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Lessee or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Plans and Specifications" means with respect to any Building the final
plans and specifications for such Building prepared by the Architect, and
referred to by the Appraiser in the Appraisal, as such Plans and Specifications
may be hereafter amended, supplemented or otherwise modified from time to time.
"Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become an Event of Default.
"Purchase Agreement" means with respect to any Land, the purchase
agreement or option agreement, as the case may be, with the Seller for the
conveyance of such Land to the Lessor.
"Purchase Option" is defined in Section 14.1(a) of the Lease.
"Quarterly Payment Date" means the last Business Day of each March,
June, September and December of each year.
"Recourse Deficiency Amount" means, as of any date of determination
thereof, the sum of (i) the aggregate principal amount of the A Loans then
outstanding, plus the A Percentage of the Lessor's Invested Amounts then
outstanding, plus (ii) all accrued and unpaid Yield on the A Percentage of the
Lessor's Invested Amounts and all accrued and unpaid interest on the A Loans.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be amended or
supplemented from time to time.
"Regulations" means the income tax regulations promulgated from time to
time under and pursuant to the Code.
-28-
"Release" means the release, deposit, disposal or leak of any Hazardous
Material into or upon or under any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal,
discharge, emission, injection, spillage, leakage, seepage, leaching, dumping,
pumping, pouring, escaping, emptying, placement and the like.
"Release Date" means, with respect to any Leased Property, the earlier of
(i) the date that the related Leased Property Balance has been paid in full, and
(ii) the date on which the Agent gives notice to the Lessor that the Lease
Participant and the Lenders release any and all interest they may have in such
Leased Property, and all proceeds thereof, and any rights to direct, consent or
deny consent to any action by the Lessor with respect to such Leased Property.
"Remarketing Option" is defined in Section 14.6 of the Lease.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Rental Income" shall mean the gross revenues of the Lessee and its
Subsidiaries from rentals to the public from the Lessee's furniture inventory
and rental equipment (excluding customer deposits, advance rent payments and
proceeds from the sale of inventory).
"Rent Period" means (x) in the case of Base Rate Advances, the period
from, and including, a Quarterly Payment Date to, but excluding, the next
succeeding Quarterly Payment Date, and (y) in the case of LIBOR Advances either
a 1, 2, 3 or 6 month period as determined pursuant to Section 2.3 of the Master
Agreement; provided that:
(a) The initial Rent Period for any Funding shall commence on the
Funding Date of such Funding and each Rent Period occurring thereafter in
respect of such Funding shall commence on the day on which the next
preceding Rent Period expires;
(b) If any Rent Period would otherwise expire on a day which is not
a Business Day, such Rent Period shall expire on the next succeeding
Business Day, provided that if any Rent Period in respect of LIBOR
Advances would otherwise expire on a day that is not a Business Day but is
a day of the month after which no further Business Day occurs in such
month, such Rent Period shall expire on the next preceding Business Day;
(c) Any Rent Period in respect of LIBOR Advances which begins on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Rent Period shall, subject to paragraph
-29-
(d) below, expire on the last Business Day of such calendar month;
(d) No Rent Period shall extend beyond the Lease Termination Date;
and
(e) At any one time, there shall be no more than six (6) Rent
Periods.
"Report" is defined in Section 7.6 of the Master Agreement.
"Required Funding Parties" means, at any time, Funding Parties holding an
aggregate outstanding principal amount of Funded Amounts equal to at least
66-2/3% of the aggregate outstanding principal amount of all Funded Amounts.
"Required Lenders" means, at any time, Lenders holding an aggregate
outstanding principal amount of Loans equal to at least 66-2/3% of the aggregate
outstanding principal amount of all Loans.
"Requirements of Law" means, as to any Person, the charter and by-laws or
other organizational or governing documents of such Person, and any law, rule or
regulation, permit, approval, authorization, license or variance, order or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject, including, without
limitation, the Securities Act, the Securities Exchange Act, Regulations T, U
and X of the Board of Governors of the Federal Reserve System, and any building,
environmental or land use requirement or permit or occupational safety or health
law, rule or regulation.
"Responsible Financial Officer" is defined in Section 5.1(c) of the Master
Agreement.
"Responsible Officer" means the Chairman or Vice Chairman of the Board of
Directors, the Chairman or Vice Chairman of the Executive Committee of the Board
of Directors, the President, any Senior Vice President or Executive Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer.
"Scheduled Construction Termination Date" means the earlier of (i) the
Funding Termination Date and (ii) the Completion Date.
"SEC" means the United States Securities and Exchange Commission.
"Securities" means any stock, shares, voting trust certificates, bonds,
debentures, notes or other evidences of indebtedness, secured or unsecured,
-30-
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities", or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Agreement and Assignment" means, with respect to any Leased
Property, the Security Agreement and Assignment (Construction Contract,
Architect's Agreement, Permits, Licenses and Governmental Approvals, and Plans,
Specifications and Drawings) from the Construction Agent to the Lessor,
substantially in the form of Exhibit C to the Master Agreement.
"Seller" means as to any Leased Property, the seller thereof to the Lessor
on the related Closing Date.
"SouthTrust Loan Facility Agreement" means that certain Loan Facility
Agreement and Guaranty dated as of August 31, 2000, by and between the Lessee
and SouthTrust Bank, as amended, restated, supplemented or otherwise modified
from time to time.
"Subsidiary" shall mean, with respect to any Person (the "parent"), any
corporation, partnership, joint venture, limited liability company, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, partnership, joint venture, limited liability company,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power, or in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent. Unless otherwise indicated, all references to "Subsidiary"
hereunder shall mean a Subsidiary of the Lessee.
"Subsidiary Loan Party" shall mean any Subsidiary that is not a Foreign
Subsidiary.
"SunTrust" means SunTrust Banks, Inc., a Georgia corporation.
"SunTrust Bank" is defined in the preamble to the Master Agreement.
-31-
"Supplemental Rent" means any and all amounts, liabilities and obligations
other than Basic Rent which the Lessee assumes or agrees or is otherwise
obligated to pay under the Lease or any other Operative Document (whether or not
designated as Supplemental Rent) to the Lessor, the Agent, the Lease
Participant, any Lender or any other party, including amounts under Article XVI
of the Lease, and indemnities and damages for breach of any covenants,
representations, warranties or agreements, and all overdue or late payment
charges in respect of any Funded Amount.
"Tax" or "Taxes" is defined in Section 7.4 of the Master Agreement.
"Tax Indemnitee" means the Lessor, the Lease Participant, the Agent, any
Lender and their respective Affiliates, successors, permitted assigns, permitted
transferees, employees, officers, directors and agents thereof, provided,
however, that in no event shall the Lessee be a Tax Indemnitee.
"Telerate" means, when used in connection with any designated page and
LIBOR, the display page so designated on the Dow ▇▇▇▇▇ Telerate Service (or such
other page as may replace that page on that service for the purpose of
displaying rates comparable to LIBOR).
"Title Insurance Company" means the company that has or will issue the
title policies with respect to a Leased Property, which company shall be
reasonably acceptable to the Funding Parties.
"Title Policy" is defined in Section 3.1 of the Master Agreement.
"Total Adjusted Debt to Total Adjusted Capital Ratio" shall mean, at any
date of determination, the ratio of (a) Consolidated Total Adjusted Debt as of
such date to (b) Consolidated Total Adjusted Capital as of such date.
"Total Debt to EBITDA Ratio" shall mean, at any date of determination, the
ratio of (a) Consolidated Total Debt as of such date to (b) Consolidated EBITDA
for the four consecutive fiscal quarters of the Lessee ending on such date.
"Transaction" means all the transactions and activities referred to in or
contemplated by the Operative Documents.
"UCC" means the Uniform Commercial Code of Georgia, as in effect from time
to time.
"Unused Fee" is defined in Section 2.3(e) of the Master Agreement.
-32-
"Voting Stock" shall mean the securities of any class or classes of the
Lessee the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the corporate directors of the Lessee (or
persons performing similar functions).
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Yield" is defined in Section 2.3 of the Master Agreement.
-33-
A. Documentary Conventions. The following provisions shall be applicable
to each Operative Document.
SECTION 1 Notices. All notices, requests, demands or other communications
to or upon the respective parties to each agreement to which the Documentary
Conventions apply shall be addressed to such parties at the addresses therefor
as set forth in Schedule I hereto, or such other address as any such party shall
specify to the other parties hereto, and shall be deemed to have been given (i)
the Business Day after being sent, if sent by overnight courier service; (ii)
the Business Day received, if sent by messenger; (iii) the day sent, if sent by
facsimile and confirmed electronically or otherwise during business hours of a
Business Day (or on the next Business Day if otherwise sent by facsimile and
confirmed electronically or otherwise); or (iv) three Business Days after being
sent, if sent by registered or certified mail, postage prepaid.
SECTION 2 Counterparts. Each agreement to which the Documentary
Conventions apply may be executed by the parties thereto in separate
counterparts (including by facsimile), each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 3 Amendments. No Operative Document nor any of the terms thereof
may be terminated, amended, supplemented, waived or modified with respect to the
Lessee or any Funding Party, except (a) in the case of a termination, amendment,
supplement, waiver or modification to be binding on the Lessee, with the written
agreement or consent of the Lessee, and (b) in the case of a termination,
amendment, supplement, waiver or modification to be binding on the Funding
Parties, with the written agreement or consent of the Required Funding Parties;
provided, however, that
(x) notwithstanding the foregoing provisions of this Section 3, the
consent of each Funding Party affected thereby shall be required for any
amendment, modification or waiver:
(i) amending, modifying, waiving or supplementing any of the
provisions of Section 6.4 of the Master Agreement or the
representations of such Funding Party in Section 4.2 or 4.3 of the
Master Agreement or the covenants of such Funding Party in Section 6
of the Master Agreement or this Section 3 or changing the definition
of "Required Funding Parties" or "Required Lenders";
(ii) increasing the Commitment of such Funding Party or
reducing any amount payable to such Funding Party under the
Operative Documents or extending the time for payment of any
-34-
such amount, including, without limitation, any Rent, any Funded
Amount, any fees, any indemnity, the Leased Property Balance, the
Lease Balance, any Funding Party Balance, Recourse Deficiency
Amount, interest or Yield; or
(iii) consenting to any assignment of the Lease or the
extension of the Lease Term, releasing any of the collateral
assigned to the Agent pursuant to any Mortgage and any Assignment of
Lease and Rents (but excluding a release of any rights that the
Agent may have in any Leased Property, or the proceeds thereof as
contemplated in the definition of "Release Date"), releasing any
Lessee from its obligations in respect of the payments of Rent and
the Lease Balance, releasing any Guarantor from its obligations
under the Guaranty Agreement or the other Operative Documents or
changing the absolute and unconditional character of any such
obligation;
(y) no such termination, amendment, supplement, waiver or
modification shall, without the written agreement or consent of the
Lessor, the Agent and the Required Lenders, be made to the Lease or the
Construction Agency Agreement; and
(z) subject to the foregoing clauses (w), (x) and (y), so long as no
Event of Default has occurred and is continuing, the Lessor, the Agent and
the Lenders may not amend, supplement, waive or modify any terms of the
Loan Agreement, the Mortgages and the Assignments of Lease and Rents
without the consent of the Lessee (such consent not to be unreasonably
withheld or delayed); provided that in no event may the Loan Agreement be
amended so as to increase the amount of Basic Rent payable by the Lessee
without the consent of the Lessee.
SECTION 4 Headings, etc. The Table of Contents and headings of the various
Articles and Sections of each agreement to which the Documentary Conventions
apply are for convenience of reference only and shall not modify, define, expand
or limit any of the terms or provisions hereof.
SECTION 5 Parties in Interest. Except as expressly provided therein, none
of the provisions of any agreement to which the Documentary Conventions apply is
intended for the benefit of any Person except the parties thereto and their
respective successors and permitted assigns.
SECTION 6 GOVERNING LAW. EACH AGREEMENT TO WHICH THE DOCUMENTARY
CONVENTIONS APPLY HAS BEEN DELIVERED IN, AND SHALL IN ALL RESPECTS BE GOVERNED
BY, AND CONSTRUED IN
-35-
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES; PROVIDED THAT, AS TO MATTERS RELATING TO THE CREATION OF THE
LEASEHOLD OR MORTGAGE ESTATES UNDER THE LEASE AND THE MORTGAGES, AND THE
EXERCISE OF RIGHTS AND REMEDIES WITH RESPECT THERETO, AND SUCH OTHER MATTERS AS
MAY BE REQUIRED TO BE GOVERNED BY THE LAWS OF THE STATES IN WHICH LEASED
PROPERTIES ARE LOCATED, ALL OF WHICH SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATES IN WHICH THE LEASED PROPERTIES ARE
LOCATED.
SECTION 7 Severability. Any provision of each agreement to which the
Documentary Conventions apply that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 8 Submission to Jurisdiction; Waivers. Each party to an agreement
to which the Documentary Conventions apply hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to the Master Agreement or any other Operative
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
State of Georgia sitting in ▇▇▇▇▇▇ County, Georgia, the courts of the
United States of America for the Northern District of Georgia, and
appellate courts from any thereof; provided that this provision shall not
limit a party's right to remove such legal action or proceeding from a
Georgia state court to a Federal court sitting in the Northern District of
Georgia.
(ii) consents that any such action or proceedings may be brought to
such courts, and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address set forth in Schedule I hereto or at
such other address of which the other parties hereto shall have been
notified pursuant to
-36-
Section 1; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law.
EACH PARTY TO EACH AGREEMENT TO WHICH THE DOCUMENTARY CONVENTIONS APPLY
HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO
SUCH AGREEMENT, ANY OTHER OPERATIVE DOCUMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREBY.
SECTION 9 NO ORAL AGREEMENTS. THE OPERATIVE DOCUMENTS EMBODY THE ENTIRE
AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ALL OTHER
AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT
MATTER THEREOF. THE OPERATIVE DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES OR ANY COURSE OF PRIOR DEALINGS. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 10 Construction. No agreement to which the Documentary Conventions
apply shall be construed more strictly against any one party, it being
recognized that all parties have contributed substantially and materially to the
preparation and negotiations of the Operative Documents.
-37-
PRICING SCHEDULE
Facility
Pricing
(Basis
Points per
annum) Total Debt to EBITDA Ratio
-------------------------------------------------------------------
Level I Level II Level III Level IV
-------------------------------------------------------------------
<1.50 >=1.50 and >=2.00 and >=2.50
<200 <2.50
--------------------------------------------------------------------------------
Applicable 97.5 110.0 135.00 160.0
Margin
--------------------------------------------------------------------------------
Applicable 15.0 20.0 25.0 30.0
Percentage
--------------------------------------------------------------------------------
-38-
SCHEDULE I
ADDRESSES FOR NOTICES
Lessee: ▇▇▇▇▇ Rents, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Lessor: SunTrust Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 2400
MC 3951
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Agent: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 400
MC 1922
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Fax No.: 404/▇▇▇-▇▇▇▇
with a copy to:
SunTrust Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 2400
MC 3951
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Lender: SouthTrust Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
AMENDED AND RESTATED GUARANTY
from
▇▇▇▇▇ RENTS, INC.
Dated as of October 31, 2001
AMENDED AND RESTATED GUARANTY
THIS GUARANTY, dated as of October 31, 2001, is made by ▇▇▇▇▇ Rents,
Inc., a Georgia corporation ("▇▇▇▇▇" or the "Guarantor").
WITNESSETH:
WHEREAS, ▇▇▇▇▇, SunTrust Banks, Inc. as Lessor, the financial
institutions from time to time party thereto, as Lenders, and SunTrust Bank, (as
successor to SunTrust Bank, Atlanta) as Agent, have entered into that certain
Master Agreement, dated as of September 20, 1996, and such parties have entered
into the Amended and Restated Master Agreement, dated as of the date hereof (as
it may be modified, amended or restated from time to time as and to the extent
permitted thereby, the "Master Agreement"; and, unless otherwise defined herein,
terms which are defined or defined by reference in the Master Agreement
(including Appendix A thereto) shall have the same meanings when used herein as
such terms have therein); and
WHEREAS, the Guarantor wishes to amend and restate its Guaranty, dated
as of September 20, 1996;
WHEREAS, it is a condition precedent to the Funding Parties
consummating the transactions to be consummated on each Closing Date that the
Guarantor execute and deliver this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor that the
transactions contemplated by the Master Agreement be consummated on each Closing
Date; and
WHEREAS, this Guaranty, and the execution, delivery and performance
hereof, have been duly authorized by all necessary corporate action of the
Guarantor; and
WHEREAS, this Guaranty is offered by the Guarantor as an inducement to
the Funding Parties to consummate the transactions contemplated in the Master
Agreement, which transactions, if consummated, will be of benefit to the
Guarantor;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Guarantor, the Guarantor hereby agrees as follows:
SECTION 1. Guaranty. The Guarantor hereby unconditionally guarantees
the full and prompt payment when due, whether by acceleration or otherwise, and
at all times thereafter, and the full and prompt performance, of all of the
Liabilities (as hereinafter defined), including interest and earnings on any
such Liabilities whether accruing before or after any bankruptcy or insolvency
case or proceeding involving Guarantor, or any other Person and, if interest or
earnings on any portion of such obligations ceases to accrue by operation of law
by reason of the commencement of such case or proceeding, including such
interest and yield as would have accrued on any such portion of such obligations
if such case or proceeding had not commenced, and further agrees to pay all
reasonable expenses (including reasonable attorneys' fees and legal expenses)
actually paid or incurred by each of the Funding Parties in endeavoring to
collect the Liabilities, or any part thereof, and in enforcing this Guaranty.
The term "Liabilities", as used
herein, shall mean all of the following, in each case howsoever created, arising
or evidenced, whether direct or indirect, joint or several, absolute or
contingent, or now or hereafter existing, or due or to become due: (i) all
amounts payable by the Lessee under the Lease (including, without limitation,
Basic Rent, Supplemental Rent and Recourse Deficiency Amounts), the Master
Agreement (including the Commitment Fee) or any other Operative Document, and
(ii) all principal of the Notes and interest accrued thereon, Lease Participant
Amounts, accrued Yield and all additional amounts and other sums at any time due
and owing, and required to be paid, to the Funding Parties under the terms of
the Master Agreement, the Lease Participation Agreement, the Loan Agreement, the
Assignment of Lease and Rent, the Mortgages, the Notes or any other Operative
Document; provided, however, that the Guarantor will not be obligated to pay
under this Guaranty any amounts greater than the Lessee would have had to pay,
under the Lease, the Master Agreement and the other Operative Documents assuming
that such documents were enforced in accordance with their terms (and without
giving effect to any discharge or limitation thereon resulting or arising by
reason of the bankruptcy or insolvency of the Lessee), plus all actual and
reasonable costs of enforcing this Guaranty.
By way of extension but not in limitation of any of its other
obligations hereunder, the Guarantor stipulates and agrees that in the event any
foreclosure proceedings are commenced and result in the entering of a
foreclosure judgment, any such foreclosure judgment, to the extent related to
the Liabilities, shall be treated as part of the Liabilities, and the Guarantor
unconditionally guarantees the full and prompt payment of such judgment.
SECTION 2. Bankruptcy. The Guarantor agrees that, in the event of the
dissolution, bankruptcy or insolvency of the Guarantor, or the inability or
failure of the Guarantor generally to pay debts as they become due, or an
assignment by the Guarantor for the benefit of creditors, or the commencement of
any case or proceeding in respect of the Guarantor under any bankruptcy,
insolvency or similar laws, and if such event shall occur at a time when any of
the Liabilities may not then be due and payable, the Guarantor will pay to the
Funding Parties forthwith the full amount which would be payable hereunder by
the Guarantor if all Liabilities were then due and payable.
SECTION 3. Right of Set-Off. To secure all obligations of the Guarantor
hereunder, each Funding Party shall have a right to set-off, without demand or
notice of any kind, at any time and from time to time when any amount shall be
due and payable by the Guarantor hereunder against any and all balances,
credits, deposits, accounts or moneys of or in the Guarantor's name now or
hereafter, for any reason or purpose whatsoever, in the possession or control
of, or in transit to, any Funding Party or any agent or bailee for any Funding
Party, and apply any such amounts toward the payment of the Liabilities then due
in such order as the Agent may elect in accordance with the Operative Documents.
SECTION 4. Continuing Guaranty. This Guaranty shall in all respects be
a continuing, absolute and unconditional guaranty of prompt and complete payment
and performance (and not merely of collection), and shall remain in full force
and effect (notwith-standing, without limitation, the dissolution of the
Guarantor) until the termination of the Commitments and the full and final
payment of all of the Liabilities.
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SECTION 5. Reinstatement. The Guarantor further agrees that, if at any
time all or any part of any payment theretofore applied to any of the
Liabilities is or must be rescinded or returned for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or reorganization of
the Guarantor), such Liabilities shall, for the purposes of this Guaranty, to
the extent that such payment is or must be rescinded or returned, be deemed to
have continued in existence, notwithstanding such application, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application had not been made.
SECTION 6. Certain Actions. The Funding Parties may, from time to time
at their discretion and without notice to the Guarantor, take any or all of the
following actions: (a) retain or obtain (i) a security interest in the Lessee's
interests in the Lease and (ii) a lien or a security interest hereafter granted
by any Person upon or in any property, in each case to secure any of the
Liabilities or any obligation hereunder; (b) retain or obtain the primary or
secondary obligation of any obligor or obligors, in addition to the Guarantor,
with respect to any of the Liabilities; (c) extend or renew for one or more
periods (regardless of whether longer than the original period), or release or
compromise any obligation of the Guarantor hereunder or any obligation of any
nature of any other obligor (including, without limitation, the Lessor) with
respect to any of the Liabilities; (d) release or fail to perfect its Lien upon
or security interest in, or impair, surrender, release or permit any
substitution or exchange for, all or any part of any property securing any of
the Liabilities or any obligation hereunder, or extend or renew for one or more
periods (regardless of whether longer than the original period) or release or
compromise any obligations of any nature of any obligor with respect to any such
property; and (e) resort to the Guarantor for payment of any of the Liabilities,
regardless of whether the Agent or any other Person shall have resorted to any
property securing any of the Liabilities or any obligation hereunder or shall
have proceeded against any other obligor primarily or secondarily obligated with
respect to any of the Liabilities (all of the actions referred to in this clause
(e) being hereby expressly waived by the Guarantor).
SECTION 7. Application. Any amounts received by any Funding Party from
whatever source on account of the Liabilities shall be applied by it toward the
payment of such of the Liabilities, and in such order of application, as is set
forth in the Operative Documents.
SECTION 8. Waiver. The Guarantor hereby expressly waives: (a) notice of
the acceptance of this Guaranty; (b) notice of the existence or creation or
non-payment of all or any of the Liabilities; (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever; and (d) all diligence in
collection or protection of or realization upon the Liabilities or any thereof,
any obligation hereunder, or any security for or guaranty of any of the
foregoing.
SECTION 9. Assignment. Subject to Section 6 of the Master Agreement,
each Funding Party may, from time to time, whether before or after any
discontinuance of this Guaranty, at its sole discretion and without notice to
the Guarantor, assign or transfer any or all of its portion of the Liabilities
or any interest therein; and, notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, such Liabilities shall be and
remain Liabilities for the purposes of this Guaranty, and each and every such
immediate and successive assignee or transferee of any of the Liabilities or of
any interest therein shall, to the extent of such assignee's
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or transferee's interest in the Liabilities, be entitled to the benefits of this
Guaranty to the same extent as if such assignee or transferee were such Funding
Party.
SECTION 10. Miscellaneous. No delay in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise of
any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any modification or waiver of
any of the provisions of this Guaranty be binding upon any Funding Party except
as expressly set forth in a writing duly signed and delivered on its behalf. No
action permitted hereunder shall in any way affect or impair any Funding Party's
rights or the Guarantor's obligations under this Guaranty. For the purposes of
this Guaranty, Liabilities shall include all of the obligations described in the
definition thereof, notwithstanding any right or power of the Lessee or the
Lessor or anyone else to assert any claim or defense (other than final payment)
as to the invalidity or unenforceability of any such obligation, and no such
claim or defense shall affect or impair the obligations of the Guarantor
hereunder. The Guarantor's obligations under this Guaranty shall be absolute and
unconditional irrespective of any circumstance whatsoever which might constitute
a legal or equitable discharge or defense of the Guarantor. The Guarantor hereby
acknowledges that there are no conditions to the effectiveness of this Guaranty.
This Guaranty shall be binding upon the Guarantor and upon the
Guarantor's successors and permitted assigns; and all references herein to the
Guarantor shall be deemed to include any successor or successors, whether
immediate or remote, to such Person; provided that the Guarantor shall not
assign its obligations hereunder without the prior written consent of the
Funding Parties.
Wherever possible each provision of this Guaranty shall be interpreted
in such manner as to be effective and valid under Applicable Law, but if any
provision of this Guaranty shall be prohibited by or invalid thereunder, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
The Guarantor: (a) submits for itself and its property in any legal
action or proceeding relating to this Guaranty, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of Georgia sitting in ▇▇▇▇▇▇ County,
Georgia, the courts of the United States of America for the Northern District of
Georgia, and appellate courts from any thereof; (b) consents that any such
action or proceedings may be brought to such courts, and waives any objection
that it may now or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same; (c) agrees that
service of process in any such action or proceeding may be effected by
delivering a copy thereof to it at its address set forth below or at such other
address of which the other parties to the Master Agreement shall have been
notified in accordance with the Documentary Conventions; and (d) agrees that
nothing herein shall affect the right to effect service of process in any other
manner permitted by law or shall limit the right of the Funding Parties to ▇▇▇
in any other jurisdiction.
All notices, demands, declarations, consents, directions, approvals,
instructions, requests and other communications required or permitted by this
Guaranty shall be in writing and shall be
4
deemed to have been duly given when addressed to the appropriate Person and
delivered in the manner specified in the Documentary Conventions. The initial
address for notices to each Guarantor is set forth below.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
▇▇▇▇▇ RENTS, INC.
By:
--------------------------------------
Name Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Table of Contents
Page
SECTION 1. Guaranty...................................................................................1
SECTION 2. Bankruptcy.................................................................................2
SECTION 3. Right of Set-Off...........................................................................2
SECTION 4. Continuing Guaranty........................................................................2
SECTION 5. Reinstatement..............................................................................3
SECTION 6. Certain Actions............................................................................3
SECTION 7. Application................................................................................3
SECTION 8. Waiver.....................................................................................3
SECTION 9. Assignment.................................................................................3
SECTION 10. Miscellaneous..............................................................................4
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