Exhibit 10(j)
-------------------------------------------------------------------------------
LEASE AND DEVELOPMENT AGREEMENT
Dated as of November 28, 1994
between
ASSET HOLDINGS III, L.P., as Lessor
and
A.D.E. of Knoxville, Inc., as Lessee
-------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT........................................................1
ARTICLE I
DEFINITIONS; INTERPRETATION.........................................2
ARTICLE II...................................................................2
LEASE OF LEASED PROPERTY
SECTION 2.1 Lease of Land................................2
SECTION 2.2 Lease of Improvement.........................2
SECTION 2.3 Other Property...............................3
ARTICLE III
CONSTRUCTION AND EQUIPPING OF THE IMPROVEMENT.......................3
SECTION 3.1 Construction Fund............................3
SECTION 3.2 Commencement of Construction.................3
SECTION 3.3 Completion of Construction...................3
SECTION 3.4 Permits; Approvals; Storage..................3
SECTION 3.5 Inspection...................................4
ARTICLE IV
RENT................................................................4
SECTION 4.1 Basic Rent...................................4
SECTION 4.2 Additional Rent..............................4
SECTION 4.3 Supplemental Rent............................4
SECTION 4.4 Payments Under Unconditional Guaranty........5
SECTION 4.5 Method of Payment............................5
SECTION 4.6 Late Payment.................................6
SECTION 4.7 Net Lease; No Setoff, Etc....................6
ARTICLE V
CONDITION AND USE OF LEASED PROPERTY................................7
ARTICLE VI
LIENS; EASEMENTS; PARTIAL CONVEYANCES...............................8
ARTICLE VII
MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS............................9
SECTION 7.1 Maintenance and Repair; Compliance With Law..9
i
SECTION 7.2 Alterations..................................10
ARTICLE VIII
USE.................................................................10
ARTICLE IX
INSURANCE...........................................................10
ARTICLE X
ASSIGNMENT AND SUBLEASING...........................................11
ARTICLE XI
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE...........................12
SECTION 11.1 Available Proceeds...........................12
SECTION 11.2 Repairs and Restoration......................12
SECTION 11.3 Complete Taking..............................13
SECTION 11.4 Application of Available Proceeds............13
SECTION 11.5 Prosecution of Awards........................14
SECTION 11.6 Application of Certain Payments Not Relating to
an Event of Complete Taking..................14
SECTION 11.7 Other Dispositions...........................15
SECTION 11.8 No Rent Abatement............................15
SECTION 11.9 Purchase Option and Remarketing Option.......15
ARTICLE XII
INTEREST CONVEYED TO LESSEE.........................................16
ARTICLE XIII
EVENTS OF DEFAULT...................................................16
ARTICLE XIV ENFORCEMENT......................................................18
SECTION 14.1 Remedies.....................................18
SECTION 14.2 Remedies Cumulative; No Waiver; Consents.....19
ARTICLE XV
RIGHT TO PERFORM FOR LESSEE.........................................20
ARTICLE XVI
GENERAL TAX INDEMNITY
...................................................................20
SECTION 16.1 Tax Indemnification..........................20
SECTION 16.2 Exceptions...................................21
SECTION 16.3 Procedures...................................23
ii
SECTION 16.4 Credits and Refunds..........................24
SECTION 16.5 Payments.....................................24
SECTION 16.6 Reports, Returns and Statements..............25
ARTICLE XVII
MISCELLANEOUS.......................................................25
SECTION 17.1 Reports......................................25
SECTION 17.2 Binding Effect; Successors and Assigns;
Survival.....................................25
SECTION 17.3 Quiet Enjoyment..............................25
SECTION 17.4 Notices......................................26
SECTION 17.5 Severability.................................26
SECTION 17.6 Amendment; Complete Agreements...............26
SECTION 17.7 Construction.................................26
SECTION 17.8 Headings.....................................26
SECTION 17.9 Counterparts.................................26
SECTION 17.10 GOVERNING LAW................................27
SECTION 17.11 Discharge of Lessee's Obligations by its
Affiliates...................................27
SECTION 17.12 Liability of Lessor Limited..................27
SECTION 17.13 Estoppel Certificates........................27
SECTION 17.14 No Joint Venture.............................28
SECTION 17.15 No Accord and Satisfaction...................28
SECTION 17.16 No Merger....................................28
SECTION 17.17 Survival.....................................28
SECTION 17.18 Prior Mortgages..............................28
SECTION 17.19 Time of Essence..............................28
SECTION 17.20 Recordation of Lease.........................29
iii
LEASE AND DEVELOPMENT AGREEMENT
THIS LEASE AND DEVELOPMENT AGREEMENT ("Lease"), dated as of November
28, 1994, is between Asset Holdings III, L.P. ("Lessor"), an Ohio limited
partnership, as Lessor, and A.D.E, of Knoxville, Inc., ("Lessee") a Tennessee
corporation, as Lessee.
ADESA Corporation ("ADESA"), an Indiana corporation, has guaranteed the
payment and performance of certain obligations under this Lease pursuant to a
Guaranty and Purchase Option Agreement dated as of the date hereof ("Guaranty
Agreement") and ADESA is acknowledging this Agreement. The Lessee is a
wholly-owned subsidiary of ADESA.
PRELIMINARY STATEMENT
In accordance with the terms and provisions of this Lease, the
Note Purchase Agreement dated as of November 22, 1994 ("Note Purchase
Agreement") by and among the Lessor, ADESA and Principal Mutual Life Insurance
Company ("Note Purchaser"), the Collateral Trust Indenture dated as of November
22, 1994 ("Indenture") by and between the Lessor and PNC Bank, Kentucky, Inc.
("Trustee") and the Mortgage with respect to the Property (as defined in
ss.17.18 hereof):
(i) the Lessor will acquire the real property described in
Schedule 1 hereto, excluding any buildings or other
improvements now or hereafter contained thereon
("Land") for a purchase price of $796,000.00, upon the
terms and subject to the conditions of the Purchase
Agreement dated as of November 22, 1994 by and between
Lessor and A.D.E. of Knoxville, Inc. ("Purchase
Agreement");
(ii) the Lessor will lease the Land and the Improvement
(collectively, the "Leased Property") to the Lessee
pursuant to this Lease;
(iii) the Lessee shall make certain improvements or additions
to the Improvement as provided for herein;
(iv) the Lessor will fund the payment of 97% of the purchase
price for the Land (the "Land Funded Purchase Price")
out of the proceeds of Notes issued pursuant to the
Note Purchase Agreement, and the Lessor will fund the
payment of 3% of the purchase price for the Land out of
its contributed equity capital;
(v) the Lessor will fund 97% of the Construction Fund and
payment of 97% of the purchase price for the
Improvement (the "Improvement Funded Purchase Price")
out of the proceeds of Notes issued pursuant to the
Note Purchase Agreement, and the Lessor will fund 3% of
the Construction Fund and the payment of 3% of the
purchase price for the Improvement out of its
contributed equity capital;
(vi) the First Mortgage Notes due April 1, 2000 to be issued
pursuant to the Note Purchase Agreement ("Notes") and
other obligations under the Note Purchase Agreement are
secured pursuant to the Mortgage;
(vii) the Lessor shall advance to ADESA and Lessee an amount
equal to $3,500,000.00 ("Construction Fund") to be
applied by the Lessee to the construction
("Construction") of certain improvements on the Land
("Improvement"), as provided for herein, which
Construction Fund shall be funded 3% out of the
contributed equity capital of the Lessor and 97% out of
the proceeds of the Notes issued with respect to the
purchase price for the Improvement; and
(viii) the Mortgage, the Lease and certain other rights and
property of the Lessor related thereto have been
assigned to the Trustee pursuant to the Indenture as
security for the Notes and other obligations under the
Note Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Lease and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
ARTICLE I
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in the Indenture.
The Note Purchase Agreement, the Indenture, the Guaranty Agreement and the
Financing Documents (as defined in the Indenture) are referred to herein as the
"Operative Documents."
ARTICLE II
LEASE OF LEASED PROPERTY
SECTION 2.1 Lease of Land. Lessor hereby demises and leases Lessor's
interest in the Land to Lessee, and Lessee hereby rents and leases Lessor's
interest in the Land from Lessor, for a term commencing on the date hereof and
continuing through and including April 1, 2000, ("Lease Term").
SECTION 2.2 Lease of Improvement. Lessor hereby demises and leases
Lessor's interest in the Improvement (whether or not the Construction (as
defined herein) has been completed) to Lessee, and Lessee hereby rents and
leases Lessor's interest in the Improvement (whether or not the Construction (as
defined herein) has been completed) from Lessor, for the Lease Term. The demise
and lease of the Improvement pursuant to this Section shall include any
additional right, title
2
or interest in the Improvement which may at any time be acquired by Lessor, the
intent being that all right, title and interest of Lessor in and to the
Improvement shall at all times be demised and leased hereunder.
SECTION 2.3 Other Property. Lessee may from time to time own or hold
under lease from Persons other than Lessor furniture, trade fixtures and
equipment located on or about the Leased Property that is not subject to this
Lease.
ARTICLE III
CONSTRUCTION AND EQUIPPING OF THE IMPROVEMENT
SECTION 3.1 Construction Fund. The Lessor shall advance the
Construction Fund to ADESA and Lessee upon delivery by ADESA and Lessee to
Lessor a detailed cost breakdown of the proposed Construction expenditures. Upon
completion of the Construction, ADESA and Lessee shall furnish to Lessor a
detailed accounting of all expenditures in connection with the Construction,
including all disbursements of the Construction Fund. Nothing in this Section
shall be construed to required ADESA or Lessee to deposit the Construction Fund
in any designated or segregated account or not to commingle the Construction
Fund with other corporate funds. Lessee and ADESA shall apply to the
Construction Fund exclusively to the payment of all costs related to the
Construction. Lessee's obligations under this Section shall not be diminished or
affected by any insufficiency of the Construction Fund or by the costs of
Construction exceeding amounts received from the Construction Fund. In the event
that the costs of Construction exceed the Construction Fund, such excess shall
be paid by Lessee and ADESA from their own funds.
SECTION 3.2 Commencement of Construction. Lessee and ADESA shall, for
the benefit of lessor, cause the Construction to be commenced, performed and
completed in accordance with plans and specifications delivered by ADESA to the
Lessor prior to the scheduled commencement of the construction, subject to any
amendments thereto consistent with the original scope of the project. Until the
Construction is completed, the portions of the Improvement under construction
shall, and upon completion of Construction the completed Improvement shall, be a
part of the Leased Property.
SECTION 3.3 Completion of Construction. Lessee and ADESA shall endeavor
to cause the completion of Construction to occur prior to September 30, 1995.
SECTION 3.4 Permits; Approvals; Storage. Lessee and ADESA shall be
responsible for obtaining all zoning, wetlands, subdivision, building and other
permits for the Construction, and shall also be responsible for obtaining all
other approvals from authorities having jurisdiction over the Construction or
the Leased Property. ADESA or Lessee shall monitor the progress of the
Construction. Lessee shall arrange for the delivery and storage, protection and
security of materials systems and equipment which are to be incorporated into
the Improvement until such items are incorporated into the Improvement.
3
SECTION 3.5 Inspection. At any time during the Construction, upon three
(3) Business Days prior notice to Lessee and ADESA, Lessor or its authorized
representatives may inspect the Leased Property and the books and records of
Lessee relating to the Leased Property and make copies and abstracts therefrom.
All reasonable and documented out-of-pocket costs of such inspections incurred
by Lessor shall be paid by Lessee promptly after written request. No inspection
shall unreasonably interfere with Lessee's operations or the operations of any
other occupant of the Leased Property. None of the inspecting parties shall have
any duty to make any such inspection or inquiry and none of the inspecting
parties shall incur any liability or obligation by reason of not making any such
inspection or inquiry. None of the inspecting parties shall incur any liability
or obligation by reason of making any such inspection or inquiry unless and to
the extent such inspecting party causes damage to the Property or any property
of Lessee or any other Person during the course of such inspection.
ARTICLE IV
RENT
SECTION 4.1 Basic Rent. Beginning on August 1, 1995, Lessee shall pay
to Lessor in installments payable in arrears on the first day of each month
during the Lease Term ("Rental Payment Date"), "Basic Rent" in an amount equal
to $34,077.12 per month, or, if such amount is less, an amount equal to 9.82%
per annum of the Funded Purchase Price Balance.
As used herein, the term "Funded Purchase Price Balance" means an
amount equal to the combined amount of the Land Funded Purchase Price and the
Improvement Funded Purchase Price, reduced by (i) the cumulative amount of all
Guaranty Credits, if any, applied to the Land and the Improvement, respectively,
as provided for in Section 4.4 hereof, and (ii) the cumulative amount of all
Casualty and Condemnation Credits applied to the Land and the Improvement,
respectively, as provided for in Article XI hereof.
SECTION 4.2 Additional Rent. Beginning on August 1, 1995, Lessee shall
pay to the Lessor in installments payable in arrears on each Rental Payment Date
during the lease term, "Additional Rent" in an amount equal to $2,039.18 per
month with respect to such Rental Payment Date.
SECTION 4.3 Supplemental Rent. Lessee shall pay to Lessor, or to
whomever shall be entitled thereto as expressly provided herein or in any other
Operative Document, any and all Supplemental Rent promptly as the same shall
become due and payable. In the event of any failure on the part of Lessee to pay
any Supplemental Rent, Lessor shall have all rights, powers and remedies
provided for herein or by law or in equity or otherwise in the case of
nonpayment of Basic Rent or Additional Rent.
As used herein, the term "Supplemental Rent" means any and all amounts,
liabilities and obligations other than Basic Rent and Additional Rent which the
Lessee or ADESA assumes or agrees or is otherwise obligated to pay under the
Lease or any other Operative Document (whether
4
or not designated as Supplemental Rent) to the Lessor, the Trustee or any other
party, including, without limitation, the Make Whole Amount (as defined and
provided for in the Note Purchase Agreement) and payments and indemnities and
damages for breach of any covenants, representations, warranties or agreements.
SECTION 4.4 Payments Under Unconditional Guaranty. Notwithstanding any
other provision of this Lease, payments made by ADESA under the guaranty
provided for in Section 5 of the Note Purchase Agreement shall be deemed to have
been paid and applied, as follows; provided, however, that in all such events
all such amounts shall be allocated and applied by the Lessor among amounts due
under this Lease and other Leases referred to in the Indenture as it shall
determine in the sole exercise of its discretion.
(i) Any such payment made with respect to interest on the
Notes shall be deemed to have been paid on behalf of
the Lessee to the Lessor as payment or prepayment of
Basic Rent allocated between Basic Rent with respect to
the Land and the Improvement, respectively, pro rata in
proportion to the Funded Purchase Price Balance with
respect to the Land and the Improvement, respectively;
(ii) Any such payment made with respect to the Make Whole
Amount shall be deemed to have been paid to the Lessor
as Supplemental Rent;
(iii) Any such payment made with respect to the principal
amount of the Notes shall not be deemed to have been
paid by the Lessee to the Lessor as Basic Rent,
Additional Rent or Supplemental Rent, but shall, for
the purposes of this Lease and the Guaranty Agreement,
be applied as a "Guaranty Credit"; and
(iv) Any such payment made with respect to any of the
Guaranteed Obligations (as defined in the Note Purchase
Agreement), other than payments made with respect to
the principal amount of and interest and Make Whole
Amount, if any, on the Notes shall be deemed to have
been paid by the Lessee to the Lessor as Supplemental
Rent.
SECTION 4.5 Method of Payment. Basic Rent and Supplemental Rent shall
be paid by the Lessee directly to the Trustee as provided for in the Assignments
of Lease and the Indenture. So long as no event of default has occurred and is
continuing under the Mortgage, Additional Rent shall be paid by the Lessee
directly to the Lessor or to such Person or Persons as the Lessor shall specify
in writing to Lessee, and at such place or places as the Lessor or such Person
or Persons as the Lessor shall specify in writing to Lessee.
5
All payments of Basic Rent, Additional Rent and Supplemental Rent
(collectively, "Rent") shall be made by Lessee prior to 10:00 a.m., Columbus,
Ohio 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 4.6 Late Payment. If any Basic Rent or Additional Rent shall
not be paid when due, Lessee shall pay to Lessor, 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 a rate equal to 11.82% per annum compounded monthly and computed on
the basis of the actual number of days elapsed over a year consisting of twelve
(12) months or thirty (30) days each.
SECTION 4.7 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, Additional Rent and Supplemental Rent, and all costs, charges, taxes,
assessments and other expenses (foreseen or unforeseen) for which Lessee or any
indemnitee is or shall become liable by reason of Lessee's or such Indemnitee's
estate, right, title or interest in the Leased Property, or that are connected
with or arise out of the acquisition, installation, possession, use, occupancy,
maintenance, ownership, leasing, repairs and rebuilding of, or addition to, the
Leased Property or any portion thereof, including, without limitation, the
Construction or the financing of the Construction and any other amounts payable
hereunder without counterclaim, setoff, deduction or defense and without
abatement, suspension, deferment, diminution or reduction, and Lessee's
obligation to pay all such amounts throughout the Lease Term is absolute and
unconditional. The obligations and liabilities of Lessee hereunder shall in no
way be released, discharged or otherwise affected for any reason, including
without limitation (i) any defect in the condition, merchantability, design,
quality or fitness for use of the Leased Property or any part thereof, or the
failure of the Leased Property to comply with any applicable law, including any
inability to occupy or use the Leased Property by reason of such noncompliance,
(ii) any damage to, removal, abandonment, salvage, loss, contamination of or
release from, scrapping or destruction of or any requisition or taking of the
Leased Property or any part thereof, (iii) any restriction, prevention or
curtailment of or interference with any use of the Leased Property or any part
thereof including eviction, (iv) any defect in title to or rights to the Leased
Property or any Lien on such title or rights or on the Leased property, (v) any
change, waiver, extension, indulgence or other action or omission or breach in
respect of any obligation or liability of or by Lessor or the Trustee, (vi) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceedings relating to Lessee, Lessor, the Trustee or
any other Person, or any action taken with respect to this Lease by any trustee
or receiver of Lessee, Lessor, the Trustee or any other Person, or by any court,
in any such proceeding, (vii) any claim that Lessee has or might have against
any Person, including without limitation Lessor, any vendor, manufacturer,
contractor of or for the Improvement or the Trustee, (viii) 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 (provided, nothing in this
clause (viii) shall limit any available defense or setoff that the Lessee might
have with respect to its obligation to pay Additional Rent
6
based upon any failure by Lessor to perform or comply with any of the terms of
this Lease or any other Operative Document, (ix) 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 Operative Documents, (x)
the impossibility or illegality of performance by Lessee, Lessor or both, (xi)
any action by any court, administrative agency or other governmental authority,
(xii) any restriction, prevention or curtailment of or interference with the
Construction or any use of the Leased Property or any part thereof or (xiii) 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 XI of this Lease, this
Lease shall be noncancellable by Lessee for any reason 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 Trustee or any party to any agreements related thereto for any
reason whatsoever. Lessee assumes the sole responsibility for the condition,
use, operation, maintenance, and management of the Leased Property and Lessor
shall have no responsibility in respect thereof and shall have no liability for
damage to the property of either Lessee or any subtenant of Lessee on any
account or for any reason whatsoever other than by reason of Lessor's willful
misconduct or gross negligence or breach of any of its express obligations under
any Operative Document.
ARTICLE V
CONDITION AND USE OF LEASED PROPERTY
During the Lease Term, Lessor's interest in the Improvement (whether or
not completed) and the Land is demised and let by Lessor "AS IS" subject to (i)
the rights of any parties in possession thereof, (ii) the state of the title
thereto existing at the time Lessor acquired its interest in the Leased
Property, (iii) any state of facts which an accurate survey or physical
inspection might show (including the survey delivered on the Closing Date), (iv)
all applicable law and (v) any violations of applicable law which may exist upon
or subsequent to the commencement of the Lease Term. LESSEE ACKNOWLEDGES THAT,
ALTHOUGH LESSOR WILL OWN AND HOLD TITLE TO THE LEASED PROPERTY, LESSEE IS SOLELY
RESPONSIBLE FOR THE DESIGN, DEVELOPMENT, BUDGETING AND CONSTRUCTION OF THE
IMPROVEMENT [IMPROVEMENTS AND MODIFICATIONS] AND ANY ALTERATIONS. NEITHER LESSOR
NOR THE TRUSTEE HAVE MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO HAVE ANY LIABILITY
WHATSOEVER AS TO THE VALUE, MERCHANTABILITY, TITLE, HABITABILITY CONDITION,
DESIGN, OPERATION, OR FITNESS FOR USE OF THE LEASED PROPERTY (OR ANY PART
THEREOF), OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER EXPRESS OR IMPLIED,
WITH RESPECT TO THE LEASED PROPERTY (OR ANY PART THEREOF), ALL SUCH WARRANTIES
BEING HEREBY
7
DISCLAIMED, AND NEITHER LESSOR NOR THE LENDER SHALL BE LIABLE FOR ANY LATENT,
HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE LEASED PROPERTY, OR ANY
PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAW. As between Lessor and Lessee,
Lessee has been afforded full opportunity to inspect the Land, is satisfied with
the results of its inspections of the Land 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 or
the Trustee, on the one hand, and Lessee, on the other, are to be borne by
Lessee. The provisions of this Article 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
or the Trustee, express or implied, with respect to the Leased Property that may
arise pursuant to any law now or hereafter in effect or otherwise.
ARTICLE VI
LIENS; EASEMENTS; PARTIAL CONVEYANCES
Commencing on the date that Construction in completed and thereafter,
Lessee shall not directly or indirectly create, incur or assume, any lien,
encumbrance or security interest on or with respect to the Leased Property, the
Construction, title thereto, or any interest therein ("Lien") including any
Liens which arise out of the possession, use, occupancy, construction, repair or
rebuilding of the Leased Property or by reason of labor or materials furnished
or claimed to have been furnished to Lessee, or any of its contractors or agents
or by reason of the financing of any personalty or equipment purchased or leased
by Lessee or Alterations constructed by Lessee, except in all cases Permitted
Exceptions.
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 Property, (ii) release or termination of
easements, licenses, rights of way or other rights in the nature of easements
which are for the benefit of the Land or the Improvement 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 Improvement or any portion thereof and
(v) request to any governmental authority for platting or subdivision or
replotting or resubdivision approval with respect to the Land or any portion
thereof or any parcel of land of which the Land or any portion thereof forms a
part or a request for any variance from zoning or other governmental
requirements. Lessor's obligations pursuant to the preceding sentence shall be
subject to the requirements that:
(i) any such action shall be at the sole cost and expense
of Lessee and Lessee shall pay all reasonable and
documented out-of-pocket costs
8
of Lessor in connection therewith (including, without
limitation, the reasonable and documented fees of
attorneys, architects, engineers, planners, appraisers
and other professionals reasonably retained by Lessor
in connection with any such action);
(ii) Lessee shall have delivered to Lessor a certificate of
the Chief Financial Officer of Lessee stating that (1)
such action will not cause the Land or the Improvement
or any portion thereof to fail to comply in any respect
with the provisions of the Lease or any other Operative
Documents or in any respect with applicable law and (2)
such action will not materially reduce the fair market
sales value, utility or useful life of the Land or the
Improvement nor Lessor's interest therein;
(iii) any consideration received in connection with any such
action shall be paid as provided for in the Indenture;
and
(iv) in the case of any release or conveyance, if Lessor so
requests, Lessee will cause to be issued and delivered
to Lessor by the Title Insurance Company an endorsement
to the Title Policy pursuant to which the Title
Insurance Company agrees that its liability for the
payment of any loss or damage under the terms and
provisions of the Title Policy will not be affected by
reason of the fact that a portion of the real property
referred to in Schedule A of the Title Policy has been
released or conveyed by Lessor.
ARTICLE VII
MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS
SECTION 7.1 Maintenance and Repair; Compliance With Law. Lessee, at its
own expense, shall at all times (i) maintain the 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
automobile auction facilities owned or leased by ADESA, Lessee or ADESA's other
subsidiaries, (ii) make all alterations in accordance with, and maintain
(whether or not such maintenance requires structural modifications or
alterations) and operate and otherwise keep the Leased Property in compliance
with, all applicable laws and (iii) make all material repairs, replacements and
renewals of the Leased Property or any part thereof which may be required to
keep the Leased Property in the condition required by the preceding clauses (i)
and (ii). Lessee shall perform the foregoing maintenance obligations regardless
of whether the Leased Property is occupied or unoccupied. Lessee waives any
right that it may now have or hereafter acquire to (i) require Lessor to
maintain, repair, replace, alter, remove or rebuild all or any part of the
Leased Property or (ii) make repairs at the expense of Lessor pursuant to any
applicable law or other agreements or otherwise. Lessor shall not be liable to
Lessee or to any contractors, subcontractors, laborers,
9
materialmen, suppliers or vendors for services performed or material provided on
or in connection with the Leased Property or any part thereof. Lessor shall not
be required to maintain, alter, repair, rebuild or replace the Leased Property
in any way.
SECTION 7.2 Alterations. Lessee may, without the consent of Lessor, at
Lessee's own cost and expense, make alterations which, in the reasonable opinion
of the chief executive officer of Lessee, do not diminish the value of the
Leased Property.
ARTICLE VIII
USE
Lessee shall use the Leased Property or any part thereof only for the
purpose of used automobile auction business capable of operating not less than
the number of simultaneous auction lines anticipated in the Plans and
Specifications, together with related or ancillary businesses including, without
limitation, automobile storage, repair and preparation, transportation, direct
sales or other businesses related to used automobile auctions.
ARTICLE IX
INSURANCE
(a) During the Construction and at any time during which any part
of the Improvement or any Alteration is under construction and as to any part of
the Improvement or any Alteration under construction, Lessee shall maintain, at
its sole cost and expense, as a part of its blanket policies or otherwise, "all
risks" nonreporting completed value form of builder's risk insurance, which
insurance and policies shall, in each case, be in the amounts and otherwise be
consistent with any applicable requirements set forth in the Note Purchase
Agreement, Indenture or Mortgage.
(b) Following the Completion of the Construction and at all times
thereafter 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 the Improvement 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 by the Lessee and that are in
accordance with normal industry practice, but in no event less than the coverage
in place on the date hereof, which insurance and policies shall, in each case,
be in the amounts and otherwise be consistent with any applicable requirements
set forth in the Note Purchase Agreement, Indenture or Mortgage.
(c) During the Lease Term, Lessee shall maintain, at its sole cost
and expense, commercial general liability insurance, as is ordinarily procured
by Persons who own or operate similar properties in the same market, which
insurance and policies shall, in each case, be in the amounts and otherwise be
consistent with any applicable requirements set forth in the Note Purchase
Agreement, Indenture or Mortgage. Such insurance shall be on terms and in
amounts that are no less
10
favorable than insurance maintained by Lessee with respect to similar properties
that it owns and that are in accordance with normal industry practice, but in no
event less than the coverage (including types and amounts) in place on the date
hereof. Such insurance policies shall also provide that Lessee's insurance shall
be considered primary insurance. Nothing in this Article shall prohibit Lessor
from carrying at its own expense other insurance on or with respect to the
Leased Property; provided, however, that any insurance carried by Lessor shall
not prevent Lessee from carrying the insurance required hereby.
(d) Each policy of insurance maintained by Lessee pursuant to
clauses (a) and (b) of this Article shall provide that all Casualty Proceeds (as
defined and provided for in the Indenture) shall be payable to the Trustee for
deposit and disbursement as provided for in Section 6.3 of the Indenture.
(e) Within thirty (30) days after the date hereof and within thirty
(30) days after the date upon which the Construction is completed, Lessee shall
furnish Lessor and the Trustee with certificates showing the insurance required
under this Article to be in effect and naming Lessor and the Trustee as
additional insureds. Such certificates shall include a provision for thirty (30)
days' advance written notice by the insurer to Lessor and the Trustee 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.
(f) Each policy of insurance maintained by Lessee pursuant to this
Article shall (i) contain the waiver of any right of subrogation of the insurer
against Lessor and the Trustee and (ii) provide that in respect of the interests
of Lessor and the Trustee, such policies shall not be invalidated by any fraud
or misrepresentation of Lessee or any other Person acting on behalf of
Lessee.
(g) On and after January 1, 1996, all insurance policies carried in
accordance with this Article shall be maintained with insurers rated at the
inception of such policies at least "A" by A.M. Best & Company, and in all cases
the insurer shall be qualified to insure risks in the State of Tennessee.
ARTICLE X
ASSIGNMENT AND SUBLEASING
Lessee may not assign any of its right, title or interest in, to or
under this Lease. Lessee may sublease all or any portion of the Leased Property;
provided, however, that (i) 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, (ii) such sublease shall be expressly subject and
subordinate to this Lease, the Indenture, the Mortgage and the other Operative
Documents and (iii) each such sublease shall terminate on or before the last day
of the Lease Term. Except as provided for in the Indenture, this Lease shall not
be mortgaged or pledged by Lessee, nor shall Lessee mortgage or
11
pledge any interest in the Leased Property or any portion thereof. Any such
mortgage or pledge shall be void.
ARTICLE XI
LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE
SECTION 11.1 Available Proceeds. All Casualty Proceeds and Condemnation
Awards (both as defined in the Indenture, and which are collectively defined in
the Indenture as "Available Proceeds") shall be remitted and paid to the Trustee
by the Lessee, the Lessor or ADESA, as applicable, for deposit in the Casualty
Account (as defined and established under the Indenture) for disbursement, all
as provided for in Section 6.3 of the Indenture. Until such time as the Lessee,
the Lessor, ADESA or any of their respective agents or representatives have
remitted and paid any Available Proceeds to the Trustee, such Person shall hold
such proceeds in trust for the benefit of the Trustee. In the event that at any
time during the Lease Term, the Indenture has been terminated, the Lessor shall,
for purposes of this Article, be treated as the Trustee, and shall deposit and
disburse any Available Proceeds in substantially the manner provided for in
Section 6.3 of the Indenture as if it were the Trustee.
SECTION 11.2 Repairs and Restoration. In the event of any Total Loss or
Partial Loss (collectively, "Loss"), other than a Total Loss which, in the good
faith judgment of the chief executive officer of Lessee renders the repair and
restoration of the Leased Property impractical or uneconomical including,
without limitation, any condemnation of the Leased Property resulting in the
taking of all or substantially all of the Leased Property (collectively, a
"Complete Taking"), then:
(i) the Lessee and ADESA shall repair and restore the
Leased Property such that the Leased Property as so
repaired and restored is, in the good faith judgment of
the chief executive officer of Lessee adequate and
appropriate for the conduct of an automobile auction
and ancillary business of at least the same type,
quality and scale as that conducted by the Lessee on
the Leased Property immediately prior to such Loss;
(ii) the Available Proceeds, if any, with respect to such
Loss, if any, shall be disbursed by the Trustee as
provided for in Section 6.3 of the Indenture;
(iii) the inadequacy of the Available Proceeds to fund the
cost of any such repairs or restoration shall not
diminish the obligation of the Lessee and ADESA to make
such repairs or restoration, which obligation is
unconditional and absolute; and
(iv) upon completion of such repairs and restoration and at
all times during the conduct of such repairs and
restoration, the Lessor and its representatives may,
upon three (3) business days' notice to Lessee,
12
inspect the Leased Property and the progress of the
restoration and rebuilding of the Improvement and the
Land. All reasonable and documented out-of-pocket costs
of such inspections incurred by Lessor and the Lender
will be paid by Lessee promptly after written request.
No such inspection shall unreasonably interfere with
Lessee's operations or the operations of any other
occupant of the Leased Property. None of the inspecting
parties shall have any duty to make any such inspection
or inquiry and none of the inspecting parties shall
incur any liability or obligation by reason of not
making any such inspection or inquiry. None of the
inspecting parties shall incur any liability or
obligation by reason of making any such inspection or
inquiry unless and to the extent such inspecting party
causes damage to the Leased Property or any property of
Lessee or any other Person during the course of such
inspection.
SECTION 11.3 Complete Taking. In the event of any Complete Taking with
respect to the Leased Property.
(i) the Lessee shall provide to the Lessor a certification
stating that the chief executive officer of Lessee has
determined in good faith that such Loss constitutes a
Complete Taking with respect to the Leased Property as
defined in this Lease;
(ii) the Lessee and ADESA shall not be obligated or required
to make any repairs to or restoration of the Leased
Property, other than those repairs, if any, required by
applicable law or necessary to adequately secure the
Leased Property or comply with the requirements of any
applicable insurance policy or any applicable safety,
health or environmental regulations;
(iii) any Available Proceeds with respect to such Loss shall
be disbursed as provided for in Section 6.3(b)(iii) of
the Indenture; and
(iv) except as otherwise provided for in Section 11.9
hereof, this Lease shall remain in full force and
effect.
SECTION 11.4 Application of Available Proceeds. In the event of any
Partial Loss or Total Loss (whether or not such Loss constitutes a Complete
Taking), Available Proceeds, if any, with respect to such Loss shall be
disbursed only as provided for in Section 6.3(b) of the Indenture; and:
(i) Any Available Proceeds disbursed as provided for in
Section 6.3(b)(iii) of the Indenture to the holders of
Outstanding Notes with
13
respect to the prepayment of the principal amount
thereof or disbursed to the Lessor as provided for in
Section 6.3(b) of the Indenture shall be deemed to be
and shall be treated as Casualty and Condemnation
Credits for purposes of this Lease and the Guaranty
Agreement;
(ii) Any Available Proceeds disbursed as provided for
Section 6.3(b)(iii) of the Indenture to the holders of
Outstanding Notes with respect to the payment of
accrued but unpaid interest shall be deemed to have
been paid to the Lessor as Basic Rent; and
(iii) Any Available Proceeds disbursed as provided for
Section 6.3(b)(iii) of the Indenture to the holders of
Outstanding Notes with respect to the payment of Make
Whole Amount (as defined in the Indenture) shall be
deemed to have been paid to the Lessor as Supplemental
Rent.
SECTION 11.5 Prosecution of Awards.
(a) With respect to any condemnation with respect to any Leased
Property, Lessee shall control the negotiations with the relevant governmental
authority; provided, however, that if an Event of Default shall have occurred
and be continuing Lessor or its assigns shall control such negotiations. 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 condemnation and, if there will not be separate awards to the
Lessor and the Lessee on account of such condemnation, irrevocably authorizes
and empowers Lessor 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), to file and prosecute what would
otherwise be Lessee's claim for any such Award and, in the case of Lessor, to
collect, receipt for and retain the same in accordance with Section 6.3 of the
Indenture; provided, however, that in any event Lessor may participate in any
such negotiations, and no settlement will be made without Lessor's prior
consent, 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 and Lessee's relocation expenses.
SECTION 11.6 Application of Certain Payments Not Relating to an Event
of Complete Taking. In case of a requisition for temporary use of all or a
portion of the Leased Property which is not an event of Complete Taking, this
Lease shall remain in full force and effect, without any abatement or reduction
of Basic Rent or Additional Rent, and the Awards for the Leased Property shall,
unless an Event of Default has occurred and is continuing, be paid to Lessee.
14
SECTION 11.7 Other Dispositions. Notwithstanding the foregoing
provisions of this Article, 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 shall be paid to Lessor 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 in accordance with the terms of this Lease or the
other Operative Documents.
SECTION 11.8 No Rent Abatement. Basic Rent, Additional Rent and
Supplement Rent shall not ▇▇▇▇▇ hereunder by reason of any Loss (regardless of
whether such Loss constitutes a Total Loss, a Partial Loss or a Complete Taking)
with respect to the Leased Property, and Lessee shall continue to perform and
fulfill all of Lessee's obligations, covenants and agreements hereunder
notwithstanding such Loss until the end of the Lease Term.
SECTION 11.9 Purchase Option and Remarketing Option.
(a) In the event of any Complete Taking with respect to the Leased
Property, the Lessee and ADESA mayl, in the exercise of their discretion, elect
at any time within thirty (30) days after the date of the determination by the
board of directors of ADESA that such Loss constituted a Complete Taking by
giving written notice to the Lessor and the Trustee to either:
(i) exercise the Purchase Option provided for in Section
2.1 of the Guaranty Agreement upon the terms and
subject to the conditions provided for therein, except
that for purposes of this Section 11.9 the Option
Period shall be deemed to be the sixty (60) day period
commencing on the date of such determination and the
purchase shall be closed on the last day of such Option
Period; and, provided, that the Purchase Price for the
Leased Property shall be increased by an amount equal
to the applicable Make Whole Amount, if any, (as
defined in the Indenture) that will, be incurred in
connection with the prepayment or Notes as a result of
such purchase as provided for in the Indenture; or
(ii) exercise of the Remarketing Option provided for in
Section 2.8 of the Guaranty Agreement upon the terms
and subject to the conditions provided for therein,
except that for purposes of this Section 11.9, the
Option Period shall be deemed to be the sixty (60) day
period commencing on the date of such determination
period and the one year period for remarketing of the
Leased Property shall be deemed to commence upon the
date of the notice or exercise provided for herein.;
and, provided, that the Purchase Price for the Leased
Property shall be increased by an amount equal to the
applicable Make Whole Amount (as defined in the
Indenture) that will, if any be incurred in
15
connection with the prepayment or Notes as a result of
such purchase as provided for in the Indenture.
(b) In the event of any Change in Control resulting in prepayment
of the Notes pursuant to Section 7.2 of the Indenture, the Lessee and ADESA may,
the in the exercise of their discretion, elect at any time within thirty (30)
days after the Control Prepayment Date, to exercise either the Purchase Option
as provided in subsection (a)(i) above or Remarketing Option as provided in
subsection (a)(ii) above.
(c) In the event a holder of the Notes exercises the Optional Put
Right resulting in prepayment of the Notes pursuant to Section 7.6 of the
Indenture, the Lessee and ADESA may in the exercise of their discretion, elect
at any time within thirty (30) days after the Optional Put Payment Date, to
exercise either the Purchase Option as provided in subsection (a)(i) above or
the Remarketing Option as provided in subsection (a)(ii) above.
(d) The proceeds of any sale of the Leased Property resulting from
Lessee's or ADESA's exercise of the Purchase Option or Remarketing Option under
this Section 11.9, shall be remitted to the Trustee and applied as provided for
in the Indenture, and this Lease shall be terminated.
ARTICLE XII
INTEREST CONVEYED TO LESSEE
[THIS ARTICLE INTENTIONALLY OMITTED]
ARTICLE XIII
EVENTS OF DEFAULT
The following events shall constitute Events of Default (whether any
such event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) Lessee shall fail to make any payment of Basic Rent or
Additional Rent when due and such failure shall continue for a period of three
(3) Business Days;
(b) Lessee shall fail to make any payment of Supplemental Rent or
any other amount payable hereunder or under any of the other Operative Documents
(other than Basic Rent), and such failure shall continue for a period of three
(3) Business Days after Lessee's receipt of written notice of such failure from
Lessor;
(c) Lessee or ADESA shall fail to pay the Available Proceeds to the
Trustee when due pursuant to Sections 11.1 or 11.2;
16
(d) ADESA shall fail to pay any amount due under the Unconditional
Guaranty (as defined and provided for in the Note Purchase Agreement);
(e) ADESA shall fail to make payment of any Guaranty Payment (as
defined and provided for in the Guaranty Agreement) when due thereunder;
(f) Lessee shall fail to maintain insurance as required by Article
IX hereof, and such failure shall continue until the earlier of 45 days after
written notice thereof from Lessor and the day immediately preceding the date on
which any applicable insurance coverage would otherwise lapse or terminate;
(g) The occurrence of any Event of Default (as defined and provided
for in the Guaranty Agreement);
(h) The occurrence of any Event of Default (as defined and provided
for in the Note Purchase Agreement or Collateral Trust Agreement) other than an
event resulting exclusively from an act or failure to act by the Lessor;
(i) the filing by Lessee of any petition for dissolution or
liquidation of Lessee, or the commencement by Lessee of a voluntary case under
any applicable bankruptcy, insolvency or other similar law for the relief of
debtors, foreign or domestic, now or hereafter in effect, or Lessee shall have
consented to the entry of an order for relief in an involuntary case under any
such law, or the appointment of or taking possession by a receiver, custodian or
trustee (or other similar official) for Lessee or any substantial part of its
property, or a general assignment by Lessee for the benefit of its creditors, or
Lessee shall have taken any corporate action in furtherance of any of the
foregoing; or the filing against Lessee of an involuntary petition in bankruptcy
which results in an order for relief being entered or, notwithstanding that an
order for relief has not been entered, the petition is not dismissed within 60
days of the date of the filing of the petition, or the filing under any law
relating to bankruptcy, insolvency or relief of debtors of any petition against
Lessee which either (i) results in a finding or adjudication of insolvency of
Lessee or (ii) is not dismissed within sixty (60) days of the date of the filing
of such petition;
(j) Any representation or warranty by Lessee or ADESA in the Note
Purchase Agreement or Guaranty Agreement or in any certificate or document
delivered to Lessor pursuant to any Operative Document shall have been incorrect
in any material respect when made; and
(k) Lessee shall fail in any material respect to timely perform or
observe any covenant, condition or agreement (not included in any other clause
of this Article) to be performed or observed by it hereunder or under the other
Operative Documents and such failure shall continue for a period of 45 days
after Lessee's receipt of written notice thereof from Lessor.
ARTICLE XIV
17
ENFORCEMENT
SECTION 14.1 Remedies. Upon the occurrence of any Event of Default,
Lessor may, so long as such Event of Default is continuing, 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.
(a) Lessor may, by notice to Lessee, rescind or terminate this
Lease as of the date specified in such notice; provided, however, that (i) no
reletting, reentry or taking of possession of the Leased Property by Lessor will
be construed as an election on Lessor's part to terminate this Lease unless a
written notice of such intention is given to Lessee, (ii) 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 (iii) no act
or thing done by Lessor or any of its agents, representatives or employees and
no agreement accepting a surrender of the Leased Property shall be valid unless
the same be made in writing and executed by Lessor.
(b) Lessor may (i) demand that Lessee, and Lessee shall upon the
written demand of Lessor, return the Leased Property promptly to Lessor in the
manner and condition required by, and otherwise in accordance with all of the
provisions of, this Lease hereof as if the Leased Property were being returned
at the end of the Lease Term, and Lessor shall not be liable for the
reimbursement of Lessee for any costs and expenses incurred by Lessee in
connection therewith and (ii) without prejudice to any other remedy which Lessor
may have for possession of the Leased Property, and to the extent and in the
manner permitted by Applicable law, enter upon the Leased Property and take
immediate possession of (to the exclusion of Lessee) the Leased Property or any
part thereof and expel or remove Lessee and any other Person who may be
occupying the Leased Property, by summary proceedings or otherwise, all without
liability to Lessee for or by reason of such entry or taking of possession,
whether for the restoration of damage to property caused by such taking or
otherwise and, in addition to Lessor's other damages, Lessee shall be
responsible for the reasonable and documented costs and expenses of reletting,
including brokers fees and the reasonable and documented costs of any
alterations or repairs made by Lessor.
(c) Lessor may sell all or any part of the Leased Property at
public or private sale, as Lessor may determine, free and clear of any rights of
Lessee and without any duty to account to Lessee with respect to such action in
inaction or any proceeds with respect thereto 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.
(d) Lessor may, at its option, elect not to terminate the Lease,
and continue to collect all Basic Rent, Additional Rent, Supplemental Rent and
all other amounts due Lessor (together with all costs of collection) and enforce
Lessee's obligations under this Lease as and when the same become due, or are to
be performed, and at the option of Lessor, upon any abandonment of the Leased
Property by Lessee or re-entry of same by Lessee, Lessor may, in its sole and
absolute discretion, elect not to terminate this Lease and may make such
reasonable alterations and necessary
18
repairs in order to relet the Leased Property, and relet the Leased Property or
any part thereof for such term or terms (which may be for a long 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.
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 and if such rentals received
from such reletting during any Rent Period be less than the Rent to be paid
during that Rent Period by Lessee hereunder, Lessee shall pay any deficiency to
Lessor on the Rent Payment Date in such Rent Period.
(e) 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 with
respect to any Rent Payment Date, and such suits shall not in any manner
prejudice Lessor's right to collect any such damages for any subsequent Rent
Payment Date, 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.
(f) Lessor may retain and apply against Lessor's damages all sums
which Lessor would, absent such Event of Default, be required to pay, or turn
over, to Lessee pursuant to the terms of this Lease.
SECTION 14.2 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 wavier 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 wavier of any future or subsequent
Potential Event of Default or Event of Default. To the extent permitted by
applicable law, Lessee hereby waives any rights now or hereafter conferred by
statute or otherwise that may require Lessor to sell, lease or otherwise use the
Leased Property or part thereof in mitigation of Lessor's damages upon the
occurrence of an Event of Default or that may otherwise limit or modify any of
Lessor's rights or remedies under this Article.
19
ARTICLE XV
RIGHT TO PERFORM FOR LESSEE
If Lessee shall fail to perform or comply with any of its agreements
contained herein, Lessor may, on thirty (30) days prior notice (or such lesser
period afforded by Applicable laws or any third party) to Lessee, 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 reasonable attorney's 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 ten (10) days after written demand
therefor.
ARTICLE XVI
GENERAL TAX INDEMNITY
SECTION 16.1 Tax Indemnification. Except as otherwise provided in this
Article XVI, the Lessee shall pay and on written demand shall indemnify and hold
each of the Lessor, the Trustee, any trustee under the Mortgages and their
respective successors and assigns (collectively, the "Tax Indemnitees," and
individually, a "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 being referred to herein as "Taxes" and
individually as a "Tax" (for the purposes of this Section, 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)) or imposed
on or with respect to any Tax Indemnitee, the Lessee, the Leased Property or any
portion thereof or the 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 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 the 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 the
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 Document, (iv) the Leased Property, the Land or any
part thereof or any interest therein, (v) all or any of the Operative Documents,
any other documents contemplated thereby and any amendments and supplements
thereto and (vi) otherwise with respect to or in connection with the
transactions contemplated by the Operative Documents.
20
SECTION 16.2 Exceptions. The indemnification provided for in Section
16.1 shall not apply to:
(i) Taxes on, based on, or measured by or with respect to,
receipts or income of the Lessor and the Trustee
(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, (B)
withholding Taxes imposed by the United States or the
State of Tennessee (1) on payments with respect to the
Note, to the extent imposed by reason of a change in
Applicable law occurring after the Closing Date or (2)
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 Note and
(C) any increase in any franchise taxes based on or
otherwise measured by net income, estate, inheritance,
transfer, income tax or gross income or gross receipts
tax in lieu of net income over the term of the Lease,
net of any decrease in such taxes realized by such Tax
Indemnitee, to the extent that such tax increase or
decrease would not have occurred if on the Closing Date
the Lessor had advanced funds to the Lessee in the form
of a loan secured by the Leased Property in an amount
equal to the Loan, with debt service for such loan
equal to the Basic Rent payable on each Rent Payment
Date and a principal balance at the maturity of such
loan in an amount equal to the Loan at the end of the
Lease Term;
(ii) Taxes on, based on, or in the nature of or measured by,
Taxes on doing business, business privilege, 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 the State of
Tennessee, net of any decrease in any such taxes
realized by such Tax Indemnitee, to the extent that
such tax increase or decrease would not have occurred
if on the Closing Date the Lessor had advanced funds to
the Lessee in the form of a loan secured by the Leased
Property in an amount equal to the Loan, with debt
service for such loan equal to the Basic Rent payable
on each Rent Payment Date and a principal balance at
the maturity of such loan in an amount equal to the
Loan 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;
(iii) Taxes that result from any act, event or omission, or
are attributable to any period of time, that occurs
after the earliest of (A) the expiration of the Lease
Term with respect to the Leased Property and,
21
if the 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 Lessee's
obligations to pay the Funded Purchase Price Balance,
or any amount determined by reference thereto, with
respect to the Leased Property and all other amounts
due under the Lease, unless such Taxes relate to acts,
events or matters occurring prior to the earliest of
such times or are imposed on or with respect to any
payments due under the Operative Documents after such
expiration or discharge;
(iv) Taxes imposed on a Tax Indemnitee that result from any
voluntary sale, assignment, transfer or other
disposition by such Tax Indemnitee or any related Tax
Indemnitee of any interest in the 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 property by the
Lessee shall not be treated as a voluntary action of
any Tax Indemnitee, (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;
(v) any Tax which is being contested in good faith by the
Lessee or ADESA during the pendency of such contest;
(vi) 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 the Lessor or the Lender solely
by reason of their respective interests in the Leased
Property);
(vii) any Tax that results from a Tax Indemnitee engaging,
with respect to the Leased Property, in transactions
other than those permitted by the Operative Documents;
or
(viii) 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
22
notice to Lessor (and the Lessor 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 such return that was not in the possession of
the Lessor.
SECTION 16.3 Procedures. 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 this Section, or if any Tax
Indemnitee shall determine that any Taxes as to which the Lessee may have an
indemnity obligation pursuant to this Section 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 if the contest is unsuccessful its obligation to
fully indemnify such Tax Indemnitee in respect of such action, suit or
proceeding; 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) if and to the extent that (A) in the reasonable opinion
of such Tax Indemnitee, such action, suit or proceeding involves any meaningful
risk of imposition of criminal liability or any material risk of material civil
liability on such Tax Indemnitee or will involve a material risk of the sale,
forfeiture or loss, or the creation, of any Lien (other than a Permitted Lien)
on the Leased Property or any part thereof unless the Lessee shall have posted a
bond or other security satisfactory to the relevant Tax Indemnities 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 transactions contemplated by the Operative
Documents 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 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, documents and testimony reasonably requested by the
Lessee as are necessary or advisable for the Lessee to participate in any
action, suit or proceeding to the extent permitted by this Section. Unless an
Event of Default shall have occurred and be continuing, no Tax Indemnitee shall
enter into any settlement or other compromise with
23
respect to any Claim which is entitled to be indemnified under this Section
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 with respect to such Claim. Notwithstanding
anything contained herein to the contrary, (i) 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 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 (ii) 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 the Lessee'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.
SECTION 16.4 Credits and Refunds. If (i) a Tax Indemnitee shall obtain
a credit or refund of any Taxes paid by the Lessee pursuant to this Section or
(ii) 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, 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, 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 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 an amount equal to such reduction in Taxes, as the case
may be; provided, however, that no such payment shall be made so long as an
Event of Default shall have occurred and be continuing; and provided, further,
that the amount payable to the Lessee by any Tax Indemnitee pursuant to this
subsection shall not at any time exceed the aggregate amount of all indemnity
payments made by the Lessee under this Section to such Tax Indemnitee and all
related Tax Indemnities with respect to the Taxes which gave rise to a credit or
refund or with respect to the Tax which gave rise to a reduction in Taxes less
the amount of all prior payments made to the Lessee by such Tax Indemnitee and
related Tax Indemnities under this Section. 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 and to maximize the amount of any Tax savings available
to it. 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 subsection shall be treated as a Tax for which the Lessee is obligated to
indemnify such Tax Indemnitee hereunder.
SECTION 16.5 Payments. Any Tax indemnifiable under this Section 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 this Section 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
24
are due. Any payments made pursuant to this Section shall be made directly to
the Tax Indemnitee entitled thereto or the Lessor, 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 Agreement. Upon the
request of any Tax Indemnitee with respect to a Tax that the Lessee is required
to pay, the Lessee shall furnish to such Tax Indemnitee the original or a
certified copy of a receipt for Lessee's payment of such Tax or such other
evidence of payment as is reasonably acceptable to such Tax Indemnitee.
SECTION 16.6 Reports, Returns and Statements. 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, 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 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, Lessee shall, upon written request of such Tax Indemnitee, provide
such Tax Indemnitee with such information as is reasonably available to the
Lessee.
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 Lender)
within a reasonable time prior to the date for filing and Lessor shall file, any
material reports with respect to the condition or operation of the Leased
Property that shall be required to be filed with any governmental authority.
SECTION 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 the Leased Property or any interest
therein in accordance with the provisions of the Operative Documents), and inure
to the benefit of their respective permitted successors and assigns, and the
rights hereunder of the Trustee shall inure (subject to such conditions as are
contained herein) to the benefit of the Trustee's permitted successors and
assigns.
SECTION 17.3 Quiet Enjoyment. Lessor covenants that, so long as no
Event of Default has occurred and is continuing, it will not interfere in
Lessee's or any of its sublessees' quiet enjoyment of the Leased Property in
accordance with this Lease during the Lease Term. Such right
25
of quiet 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 Notices. Unless otherwise specified herein, all notices,
offers, acceptances, rejections, consents, requests, demands or other
communications to or upon the respective parties hereto shall be given in the
manner provided for in the Note Purchase Agreement.
SECTION 17.5 Severability. Any provision of this Lease that shall be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, and Lessee shall remain
liable to perform its obligations hereunder except to the extent of such
unenforceability. To the extent permitted by applicable law, Lessee hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
SECTION 17.6 Amendment; Complete Agreements. Neither this Lease nor any
of the terms hereof may be terminated, amended, supplemented, waived or modified
orally, except by an instrument in writing signed by Lessor and Lessee and
approved by ADESA and by the Trustee as provided for in the Indenture. This
Lease, together with the other Operative Documents, is intended by the parties
as a final expression of their lease agreement and as a complete and exclusive
statement of the terms thereof, all negotiations, considerations and
representations between the parties having been incorporated herein and therein.
No course of prior dealings between the parties or their officers, employees,
agents or Affiliates shall be relevant or admissible to supplement, explain, or
vary any of the terms of this Lease or any other Operative Document. Acceptance
of, or acquiescence in, a course of performance rendered under this or any prior
agreement between the parties or their Affiliates shall not be relevant or
admissible to determine the meaning of any of the terms of this Lease or any
other Operative Document. No representations, undertakings or agreements have
been made or relied upon in the making of this Lease other than those
specifically set forth in the Operative Documents.
SECTION 17.7 Construction. This Lease shall not be construed more
strictly against any one party, it being recognized that both of the Parties
hereto have contributed substantially and materially to the preparation and
negotiation of this Lease.
SECTION 17.8 Headings. The Table of Contents and headings of the
various Articles and Sections of this Lease are for convenience of reference
only and shall not modify, define or limit any of the terms or provisions
hereof.
SECTION 17.9 Counterparts. This Lease may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
26
SECTION 17.10 GOVERNING LAW. THIS LEASE SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TENNESSEE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY, PERFORMANCE, THE
CREATION OF THE LEASEHOLD ESTATE HEREUNDER AND THE EXERCISE OF RIGHTS AND
REMEDIES WITH RESPECT TO SUCH ESTATE.
SECTION 17.11 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 Property or any part thereof shall constitute performance by Lessee of
such obligations to the same extent and with the same effect hereunder as if
such obligations were performed by Lessee, but no such performance shall excuse
Lessee from any obligation not performed by it or on its behalf under the
Operative Documents.
SECTION 17.12 Liability of Lessor Limited. Except as otherwise
expressly provided below in this Section, it is expressly understood and agreed
by and between Lessee, Lessor and their respective successors and assigns that
nothing herein contained shall be construed as creating any liability of Lessor
or any of its Affiliates or any of their respective officers, directors,
employees or agents, individually or personally, to perform any covenant, either
express or implied, contained herein, all such liability, if any, being
expressly waived by Lessee and by each and every Person now or hereafter
claiming by, through or under Lessee and that, so far as Lessor or any of its
Affiliates or any of their respective officers, directors, employees or agents,
individually or personally, is concerned, Lessee and any Person claiming by,
through or under Lessee shall look solely to the right, title and interest of
Lessor in the Leased Property and any proceeds from Lessor's sale or encumbrance
thereof or the Additional Rent (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 17.13 Estoppel Certificates. Each party hereto agrees that 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 the Lender, any
prospective purchaser (if such prospective purchaser has signed a commitment or
letter of intent to purchase the Leased Property or any part thereof), assignee
or mortgagee or third party designated by such other party, a certificate
stating (i) 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), (ii) the date to which Basic Rent and
Additional Rent has been paid, (iii) whether or not there is any existing
default by Lessee in the payment of Basic Rent and Additional 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, (iv)
whether or not, to the knowledge of the signer after due inquiry and
investigation, there are any setoffs, defenses or counterclaims
27
against enforcement of the obligations to be performed hereunder existing in
favor of the party executing such certificate and (v) other items that may be
reasonably requested; provided, however, that no such certificate may be
requested unless the requesting party has a good faith reason for such request.
SECTION 17.14 No Joint Venture. Any intention to create a joint
venture or partnership relation between Lessor and Lessee is hereby
expressly disclaimed.
SECTION 17.15 No Accord and Satisfaction. The acceptance by Lessor of
any sums from Lessee (whether as Basic Rent or otherwise) in amounts which are
less than the amounts due and payable by Lessee hereunder is not intended, nor
shall any such acceptance 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 17.16 No Merger. In no event shall the leasehold interest,
estates or rights of Lessee hereunder merge with any interests, estates or
rights of Lessor in or to the Leased Property, it being understood that such
leasehold interests, estates and rights of Lessee hereunder shall be deemed to
be separate and distinct from Lessor's interests, estates and rights in or to
the Leased Property, notwithstanding that any such interests, estates or rights
shall at any time or times be held by or vested in the same person, corporation
or other entity.
SECTION 17.17 Survival. The obligations of Lessee to be performed
under this Lease prior to the Lease Termination Date shall survive the
expiration or termination of this Lease. The extension of any applicable statute
of limitations by Lessor, Lessee or any Indemnitee shall not affect such
survival.
SECTION 17.18 Prior Mortgages. This Lease is and shall be subject and
subordinate to that certain Deed of Trust and Security Agreement, dated as of
November 22, 1994, by Lessor in favor of ▇▇▇▇ ▇. ▇▇▇▇▇▇, III, as trustee (the
"Local Trustee"), for the benefit of the Trustee and encumbering the Leased
Property, and to all rights of the Local Trustee and the Trustee thereunder, and
to all renewals, modifications, consolidations, amendments, increases,
replacements and extensions thereof ("Mortgage").
Lessee agrees to perform all of the obligations of Lessor (in its
capacity as grantor) set forth in the Mortgage, insofar as such obligations
relate, directly or indirectly, to the Leased Property, whether or not such
obligations are more onerous than the obligations imposed upon Lessee by this
Lease.
Whenever any provision of this Lease requires any consent, approval or
agreement of the Lessor, such requirement shall be deemed to include the
consent, approval or agreement of the Trustee, so long as the Mortgage shall not
have been discharged.
SECTION 17.19 Time of Essence. Time is of the essence of this Lease.
28
SECTION 17.20 Recordation of Lease. Lessee will, at its expense, cause
a Memorandum of this Lease and the Purchase Option to be recorded in the proper
office or offices in the State of Tennessee and the municipality in which the
Land is located.
[The remainder of this page intentionally left blank.]
29
IN WITNESS WHEREOF, the parties hereto have caused this Lease and
Development Agreement to be executed by their respective duly authorized
officers as of the day and year first above written.
ASSET HOLDINGS III, L.P.,
Witnessed: as Lessor
By: Asset Holdings Corporation III
By: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ as General Partner
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇▇▇▇
---------------------------- --------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Vice President
A.D.E. OF KNOXVILLE, INC.
Witnessed: as Lessee
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------- --------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary
STATE OF CONNECTICUT )
) ss:
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me this 28th day of
November, 1994, by ▇▇▇▇▇▇ ▇▇▇▇ the Vice President of Asset Holdings Corporation
III, as general partner of Asset Holdings III, L.P., an Ohio limited
partnership, on behalf of the partnership, as such person's and its free act and
deed.
▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Notary Public
My Commission Expires: My Commission Exp.
April 30, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ )
) ss:
COUNTY OF ▇▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this 23th day of
November, 1994, by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary of A.D.E. of Knoxville, Inc. a
Tenn. corporation, on behalf of the corporation, as such person's and its free
act and deed.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Notary Public ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
My Commission Expires: April 9, 1997
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
NOTARY PUBLIC STATE OF INDIANA
▇▇▇▇▇▇ COUNTY
MY COMMISSION EXP. APR. 9, 1997
ACKNOWLEDGED
The undersigned, ADESA Corporation hereby acknowledges the foregoing
Lease and Development Agreement and hereby agrees to perform and observe the
covenants with respect to it set forth in Article III of such foregoing
Agreement.
ADESA CORPORATION
Date 11/28/94 By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------- --------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Assistant Secretary
SCHEDULE I
DESCRIPTION OF LEASED PROPERTY
I. Land:
All that certain piece or parcel of land, together with any
improvements located thereon, situated at _______________________ in the
________________, _________ containing _____ acres, more or less, and being more
particularly bounded and described as follows:
II. Improvement:
An office building containing approximately __________ square feet, or
any and all other buildings, structures or improvements now or hereafter located
on the Land.