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EXHIBIT 10.27
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LEASE AGREEMENT
Dated as of October 21, 1999
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually,
but solely as the Owner Trustee
under the Dolphin Realty Trust 1999-1,
as Lessor
and
CATALINA MARKETING SALES CORPORATION,
as Lessee
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This Lease Agreement is subject to a security interest in favor of First Union
National Bank, as the agent for the Lenders and respecting the Security
Documents, as the agent for the Lenders and the Holders, to the extent of their
interests (the "Agent") under a Security Agreement dated as of October 21,
1999, between First Security Bank, National Association, not individually, but
solely as the Owner Trustee under the Dolphin Realty Trust 1999-1 and the
Agent, as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof. This
Lease Agreement has been executed in several counterparts. To the extent, if
any, that this Lease Agreement constitutes chattel paper (as such term is
defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction), no security interest in this Lease Agreement may be created
through the transfer or possession of any counterpart other than the original
counterpart containing the receipt therefor executed by the Agent on the
signature page hereof.
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TABLE OF CONTENTS
ARTICLE I........................................................................................1
1.1 Definitions....................................................................1
1.2 Interpretation.................................................................2
ARTICLE II.......................................................................................2
2.1 Property.......................................................................2
2.2 Lease Term.....................................................................2
2.3 Title..........................................................................2
2.4 Lease Supplements..............................................................2
ARTICLE III......................................................................................3
3.1 Rent...........................................................................3
3.2 Payment of Basic Rent..........................................................3
3.3 Supplemental Rent..............................................................3
3.4 Performance on a Non-Business Day..............................................4
3.5 Rent Payment Provisions........................................................4
ARTICLE IV.......................................................................................4
4.1 Taxes; Utility Charges.........................................................4
ARTICLE V........................................................................................5
5.1 Quiet Enjoyment................................................................5
ARTICLE VI.......................................................................................5
6.1 Net Lease......................................................................5
6.2 No Termination or Abatement....................................................6
ARTICLE VII..................................................................................... 6
7.1 Ownership of the Property......................................................6
ARTICLE VIII.....................................................................................7
8.1 Condition of the Property......................................................7
8.2 Possession and Use of the Property.............................................8
8.3 Integrated Property............................................................9
ARTICLE IX.......................................................................................9
9.1 Compliance With Legal Requirements, Insurance Requirements
and Manufacturer's Specifications and Standards................................9
ARTICLE X........................................................................................9
10.1 Maintenance and Repair; Return.................................................9
10.2 Environmental Inspection......................................................11
ARTICLE XI......................................................................................11
11.1 Modifications.................................................................11
ARTICLE XII.....................................................................................12
12.1 Warranty of Title.............................................................12
ARTICLE XIII....................................................................................13
13.1 Permitted Contests Other Than in Respect of Indemnities.......................13
13.2 Impositions, Utility Charges, Other Matters; Compliance with Legal
Requirements..................................................................14
ARTICLE XIV.....................................................................................14
14.1 Public Liability and Workers' Compensation Insurance..........................14
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14.2 Permanent Hazard and Other Insurance..........................................14
14.3 Coverage......................................................................15
14.4 Additional Insurance Requirements.............................................16
ARTICLE XV......................................................................................16
15.1 Casualty and Condemnation.....................................................16
15.2 Environmental Matters.........................................................18
15.3 Notice of Environmental Matters...............................................19
ARTICLE XVI.....................................................................................19
16.1 Termination Upon Certain Events...............................................19
16.2 Procedures....................................................................19
ARTICLE XVII....................................................................................20
17.1 Lease Events of Default.......................................................20
17.2 Surrender of Possession.......................................................23
17.3 Reletting.....................................................................23
17.4 Damages.......................................................................24
17.5 Power of Sale.................................................................24
17.6 Final Liquidated Damages......................................................25
17.7 Environmental Costs...........................................................25
17.8 Waiver of Certain Rights......................................................26
17.9 Assignment of Rights Under Contracts..........................................26
17.10 Remedies Cumulative...........................................................26
ARTICLE XVIII...................................................................................26
18.1 Lessor's Right to Cure Lessee's Lease Defaults................................26
ARTICLE XIX.....................................................................................27
19.1 Provisions Relating to Lessee's Exercise of its Purchase Option...............27
19.2 No Purchase or Termination With Respect to Less than All of the Property......27
ARTICLE XX......................................................................................27
20.1 Purchase Option or Sale Option-General Provisions.............................27
20.2 Lessee Purchase Option........................................................28
20.3 Third Party Sale Option.......................................................28
ARTICLE XXI.....................................................................................29
21.1 [Intentionally Reserved]......................................................29
ARTICLE XXII....................................................................................29
22.1 Sale Procedure................................................................29
22.2 Application of Proceeds of Sale...............................................32
22.3 Indemnity for Excessive Wear..................................................32
22.4 Appraisal Procedure...........................................................32
22.5 Certain Obligations Continue..................................................33
ARTICLE XXIII...................................................................................33
23.1 Holding Over..................................................................33
ARTICLE XXIV....................................................................................34
24.1 Risk of Loss..................................................................34
ARTICLE XXV.....................................................................................34
25.1 Assignment....................................................................34
25.2 Subleases.....................................................................34
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ARTICLE XXVI....................................................................................35
26.1 No Waiver.....................................................................35
ARTICLE XXVII...................................................................................35
27.1 Acceptance of Surrender.......................................................35
27.2 No Merger of Title............................................................36
ARTICLE XXVIII..................................................................................36
28.1 Incorporation of Covenants....................................................36
ARTICLE XXIX....................................................................................37
29.1 Notices.......................................................................37
ARTICLE XXX.....................................................................................37
30.1 Miscellaneous.................................................................37
30.2 Amendments and Modifications..................................................38
30.3 Successors and Assigns........................................................38
30.4 Headings and Table of Contents................................................38
30.5 Counterparts..................................................................38
30.6 Governing Law.................................................................38
30.7 Calculation of Rent...........................................................38
30.8 Memoranda of Lease and Lease Supplements......................................38
30.9 Allocations between the Lenders and the Holders...............................39
30.10 Limitations on Recourse.......................................................39
30.11 Waivers of Jury Trial.........................................................39
30.12 Exercise of Lessor Rights.....................................................39
30.13 Submission to Jurisdiction; Venue.............................................39
30.14 Usury Savings Provision.......................................................40
EXHIBITS
EXHIBIT A - Lease Supplement No. ____
EXHIBIT B - Memorandum of Lease and Lease Supplement No. ____
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LEASE AGREEMENT
THIS LEASE AGREEMENT dated as of October 21, 1999 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Lease") is among FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, having its principal office at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, not individually, but solely as the Owner
Trustee under the Dolphin Realty Trust 1999-1, as lessor (the "Lessor"), and
CATALINA MARKETING SALES CORPORATION, a Delaware corporation, having its
principal place of business at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, as lessee (the "Lessee").
W I T N E S S E T H:
A. WHEREAS, effective on the date of the Lease Supplement (the
"Supplement Date"), Lessor will be the owner of the Property (as such term is
Appendix A to the Participation Agreement described below); and
B. WHEREAS, Lessor desires to lease to Lessee, and Lessee desires
to lease from Lessor, the Property;
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1 DEFINITIONS.
For purposes of this Lease, capitalized terms used in this Lease
and not otherwise defined herein shall have the meanings assigned to them in
Appendix A to that certain Participation Agreement dated as of October 21, 1999
(as amended, modified, extended, supplemented, restated and/or replaced from
time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among the Lessee, Catalina Marketing Corporation, as
the Guarantor, Lessor, the various banks and other lending institutions which
are parties thereto from time to time, as the Holders, the various banks and
other lending institutions which are parties thereto from time to time, as the
Lenders, and First Union National Bank, as agent for the Lenders and respecting
the Security Documents, as the agent for the Lenders and the Holders, to the
extent of their interests. Unless otherwise indicated, references in this Lease
to articles, sections, paragraphs, clauses, appendices, schedules and exhibits
are to the same contained in this Lease.
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1.2 INTERPRETATION.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Lease.
ARTICLE II
2.1 PROPERTY.
Effective on the Supplement Date and subject to the terms and
conditions hereinafter set forth and contained in the Lease Supplement relating
to the Property, Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor, the Property.
2.2 LEASE TERM.
This Lease shall be effective as of the Closing Date;
notwithstanding the foregoing, the basic term of this Lease with respect to the
Property (the "Basic Term") shall begin on the Property Closing Date (the
"Basic Term Commencement Date") and shall end on the sixth annual anniversary
of the Closing Date (the "Basic Term Expiration Date"), unless the Basic Term
is earlier terminated.
To the extent no Default or Event of Default has occurred and is
continuing, and provided the Lessor, the Agent, every Lender and every Holder
consents (which such consent may be withheld for any reason), the Lessee shall
have the option to extend the term of this Lease for up to three (3) additional
terms (each, a "Renewal Term") each of five (5) years' duration from the later
of (i) the Basic Term Expiration Date or (ii) the last day of the immediately
prior Renewal Term; provided that the Expiration Date shall not be later than
the twenty-first annual anniversary of the Closing Date, unless such later
expiration date has been expressly agreed to, at the request of Lessee, in
writing by each of Lessor, the Agent, the Lenders and the Holders in their sole
and absolute discretion.
2.3 TITLE.
The Property is leased to Lessee without any representation or
warranty, express or implied, by Lessor and subject to the rights of parties in
possession (if any), the existing state of title (including without limitation
the Permitted Liens) and all applicable Legal Requirements. Lessee shall in no
event have any recourse against Lessor for any defect in Lessor's title to the
Property or any interest of Lessee therein other than for Lessor Liens.
2.4 LEASE SUPPLEMENTS.
On or before the Property Closing Date, Lessee and Lessor shall
execute and deliver a Lease Supplement for the Property substantially the form
of Exhibit A hereto.
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ARTICLE III
3.1 RENT.
(a) Basic Rent shall be due and payable in arrears on each
Payment Date, and on any date on which this Lease shall terminate with
respect to the Property during the Term.
(b) Basic Rent shall be due and payable in lawful money of the
United States and shall be paid by immediately available funds on the
due date therefor (or within the applicable grace period) to such
account or accounts at such bank or banks as Lessor shall from time to
time direct.
(c) Lessee's inability or failure to take possession of all or
any portion of the Property when delivered by Lessor, whether or not
attributable to any act or omission of Lessor, Lessee or any other
Person or for any other reason whatsoever, shall not delay or
otherwise affect Lessee's obligation to pay Rent for such Property in
accordance with the terms of this Lease.
(d) Lessee shall make all payments of Rent prior to 12:00 Noon,
Charlotte, North Carolina time, on the applicable date for payment of
such amount.
3.2 PAYMENT OF BASIC RENT.
Basic Rent shall be paid absolutely net to Lessor or its
designee, so that this Lease shall yield to Lessor the full amount thereof,
without setoff, deduction or reduction.
3.3 SUPPLEMENTAL RENT.
Lessee shall pay to the Person entitled thereto any and all
Supplemental Rent when and as the same shall become due and payable, and if
Lessee fails to pay any Supplemental Rent within three (3) days after the same
is due, Lessor shall have all rights, powers and remedies provided for herein
or by law or equity or otherwise in the case of nonpayment of Basic Rent. All
such payments of Supplemental Rent shall be in the full amount thereof, without
setoff, deduction or reduction. Lessee shall pay to the appropriate Person, as
Supplemental Rent due and owing to such Person, among other things, on demand,
(a) any and all payment obligations (except for amounts payable as Basic Rent)
owing from time to time under the Operative Agreements by any Person to the
Agent, any Lender, any Holder or any other Person, (b) interest at the
applicable Overdue Rate on any installment of Basic Rent not paid when due
(subject to the applicable grace period) for the period for which the same
shall be overdue and on any payment of Supplemental Rent not paid when due or
demanded by the appropriate Person (subject to any applicable grace period) for
the period from the due date or the date of any such demand, as the case may
be, until the same shall be paid and (c) amounts referenced as Supplemental
Rent obligations pursuant to Section 8.3 of the Participation Agreement. The
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expiration or other termination of Lessee's obligations to pay Basic Rent
hereunder shall not limit or modify the obligations of Lessee with respect to
Supplemental Rent. Unless expressly provided otherwise in this Lease, in the
event of any failure on the part of Lessee to pay and discharge any
Supplemental Rent as and when due, Lessee shall also promptly pay and discharge
any fine, penalty, interest or cost which may be assessed or added for
nonpayment or late payment of such Supplemental Rent, all of which shall also
constitute Supplemental Rent.
3.4 PERFORMANCE ON A NON-BUSINESS DAY.
If any Basic Rent is required hereunder on a day that is not a
Business Day, then such Basic Rent shall be due on the corresponding Scheduled
Interest Payment Date. If any Supplemental Rent is required hereunder on a day
that is not a Business Day, then such Supplemental Rent shall be due on the
next succeeding Business Day.
3.5 RENT PAYMENT PROVISIONS.
All Basic Rent and Supplemental Rent shall be paid when due
(subject to the applicable grace periods) regardless of whether any of the
Operative Agreements pursuant to which same is calculated and is owing shall
have been rejected, avoided or disavowed in any bankruptcy or insolvency
proceeding involving any of the parties to any of the Operative Agreements.
Such provisions of such Operative Agreements and their related definitions are
incorporated herein by reference and shall survive any termination, amendment
or rejection of any such Operative Agreements.
ARTICLE IV
4.1 TAXES; UTILITY CHARGES.
Lessee shall pay or cause to be paid all Impositions with
respect to the Property and/or the use, occupancy, operation, repair, access,
maintenance or operation thereof and all charges for electricity, power, gas,
oil, water, telephone, sanitary sewer service and all other rents, utilities
and operating expenses of any kind or type used in or on the Property and
related real property during the Term. Upon Lessor's request, Lessee shall
provide from time to time Lessor with evidence of all such payments referenced
in the foregoing sentence. Lessee shall be entitled to receive any credit or
refund with respect to any Imposition or utility charge paid by Lessee. Unless
an Event of Default shall have occurred and be continuing, the amount of any
credit or refund received by Lessor on account of any Imposition or utility
charge paid by Lessee, net of the costs and expenses incurred by Lessor in
obtaining such credit or refund, shall be promptly paid over to Lessee. All
charges for Impositions or utilities imposed with respect to the Property for a
period during which this Lease expires or terminates shall be adjusted and
prorated on a daily basis between Lessor and Lessee, and each party shall pay
or reimburse the other for such party's pro rata share thereof.
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ARTICLE V
5.1 QUIET ENJOYMENT.
Subject to the rights of Lessor contained in Sections 17.2, 17.3
and 20.3 and the other terms of this Lease and the other Operative Agreements
and so long as no Event of Default shall have occurred and be continuing,
Lessee shall peaceably and quietly have, hold and enjoy the Property for the
applicable Term, free of any claim or other action by Lessor or anyone
rightfully claiming by, through or under Lessor (other than Lessee) with
respect to any matters arising from and after the Basic Term Commencement Date.
ARTICLE VI
6.1 NET LEASE.
This Lease shall constitute a net lease, and the obligations of
Lessee hereunder are absolute and unconditional. Lessee shall pay all operating
expenses arising out of the use, operation and/or occupancy of the Property.
Any present or future law to the contrary notwithstanding, this Lease shall not
terminate, nor shall Lessee be entitled to any abatement, suspension,
deferment, reduction, setoff, counterclaim, or defense with respect to the
Rent, nor shall the obligations of Lessee hereunder be affected (except as
expressly herein permitted and by performance of the obligations in connection
therewith) for any reason whatsoever, including without limitation by reason
of: (a) any damage to or destruction of the Property or any part thereof; (b)
any taking of the Property or any part thereof or interest therein by
Condemnation or otherwise; (c) any prohibition, limitation, restriction or
prevention of Lessee's use, occupancy or enjoyment of the Property or any part
thereof, or any interference with such use, occupancy or enjoyment by any
Person or for any other reason; (d) any title defect, Lien or any matter
affecting title to the Property; (e) any eviction by paramount title or
otherwise; (f) any default by Lessor hereunder; (g) any action for bankruptcy,
insolvency, reorganization, liquidation, dissolution or other proceeding
relating to or affecting the Agent, any Lender, Lessor, Lessee, any Holder or
any Governmental Authority; (h) the impossibility or illegality of performance
by Lessor, Lessee or both; (i) any action of any Governmental Authority or any
other Person; (j) Lessee's acquisition of ownership of all or part of the
Property; (k) breach of any warranty or representation with respect to the
Property or any Operative Agreement; (l) any defect in the condition, quality
or fitness for use of the Property or any part thereof; or (m) any other cause
or circumstance whether similar or dissimilar to the foregoing and whether or
not Lessee shall have notice or knowledge of any of the foregoing. The parties
intend that the obligations of Lessee hereunder shall be covenants, agreements
and obligations that are separate and independent from any obligations of
Lessor hereunder and shall continue unaffected unless such covenants,
agreements and obligations shall have been modified or terminated in accordance
with an express provision of this Lease. Lessor and Lessee acknowledge and
agree that the provisions of this Section 6.1 have been specifically reviewed
and subjected to negotiation.
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6.2 NO TERMINATION OR ABATEMENT.
Lessee shall remain obligated under this Lease in accordance
with its terms and shall not take any action to terminate, rescind or avoid
this Lease, notwithstanding any action for bankruptcy, insolvency,
reorganization, liquidation, dissolution, or other proceeding affecting any
Person or any Governmental Authority, or any action with respect to this Lease
or any Operative Agreement which may be taken by any trustee, receiver or
liquidator of any Person or any Governmental Authority or by any court with
respect to any Person, or any Governmental Authority. Lessee hereby waives all
right (a) to terminate or surrender this Lease (except as permitted under the
terms of the Operative Agreements) or (b) to avail itself of any abatement,
suspension, deferment, reduction, setoff, counterclaim or defense with respect
to any Rent. Lessee shall remain obligated under this Lease in accordance with
its terms and Lessee hereby waives any and all rights now or hereafter
conferred by statute or otherwise to modify or to avoid strict compliance with
its obligations under this Lease. Notwithstanding any such statute or
otherwise, Lessee shall be bound by all of the terms and conditions contained
in this Lease.
ARTICLE VII
7.1 OWNERSHIP OF THE PROPERTY.
(a) Lessor and Lessee intend that for federal and all state and
local income tax purposes, bankruptcy purposes, regulatory purposes,
commercial law and real estate purposes and all other purposes (other
than for accounting purposes) (A) this Lease will be treated as a
financing arrangement and (B) Lessee will be treated as the owner of
the Property and will be entitled to all tax benefits ordinarily
available to owners of property similar to the Property for such tax
purposes. Notwithstanding the foregoing, neither party hereto has
made, or shall be deemed to have made, any representation or warranty
as to the availability of any of the foregoing treatments under
applicable accounting rules, tax, bankruptcy, regulatory, commercial
or real estate law or under any other set of rules. Lessee shall claim
the cost recovery deductions associated with the Property, and Lessor
shall not, to the extent not prohibited by Law, take on its tax return
a position inconsistent with Lessee's claim of such deductions.
(b) For all purposes described in Section 7.1(a), Lessor and
Lessee intend this Lease to constitute a finance lease and not a true
lease. In order to secure the obligations of Lessee now existing or
hereafter arising under any and all Operative Agreements, Lessee
hereby conveys, grants, assigns, transfers, hypothecates, mortgages
and sets over to Lessor, for the benefit of all Financing Parties, a
first priority security interest (but subject to the security interest
in the assets granted by Lessee in favor of the Agent in accordance
with the Security Agreement) in and lien on all right, title and
interest of Lessee (now owned or hereafter acquired) in and to the
Property to the extent such is personal property and irrevocably
grants and conveys a lien, deed of trust and mortgage on all right,
title and interest of Lessee (now owned or hereafter acquired) in and
to the Property to the extent such is a real property. Lessor and
Lessee further intend and agree
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that, for the purpose of securing the obligations of Lessee now
existing or hereafter arising under the Operative Agreements, (i) this
Lease shall be a security agreement and financing statement within the
meaning of Article 9 of the Uniform Commercial Code respecting the
Property and all proceeds (including without limitation insurance
proceeds thereof) to the extent such is personal property and an
irrevocable grant and conveyance of a lien, deed of trust and mortgage
on the Property and all proceeds (including without limitation
insurance proceeds thereof) to the extent such is real property; (ii)
the acquisition of title by Lessor in the Property referenced in
Article II constitutes a grant by Lessee to Lessor of a security
interest, lien, deed of trust and mortgage in all of Lessee's right,
title and interest in and to the Property and all proceeds (including
without limitation insurance proceeds thereof) of the conversion,
voluntary or involuntary, of the foregoing into cash, investments,
securities or other property, whether in the form of cash,
investments, securities or other property, and an assignment of all
rents, profits and income produced by the Property; and (iii)
notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from financial intermediaries, bankers or
agents (as applicable) of Lessee shall be deemed to have been given
for the purpose of perfecting such lien, security interest, mortgage
lien and deed of trust under applicable law. Lessee shall promptly
take such actions as Lessor may reasonably request (including without
limitation the filing of Uniform Commercial Code Financing Statements,
Uniform Commercial Code Fixture Filings and memoranda (or short forms)
of this Lease and the various Lease Supplements) to ensure that the
lien, security interest, mortgage lien and deed of trust in the
Property and the other items referenced above will be deemed to be a
perfected lien, security interest, mortgage lien and deed of trust of
first priority under applicable law and will be maintained as such
throughout the Term.
ARTICLE VIII
8.1 CONDITION OF THE PROPERTY.
LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING THE PROPERTY
"AS-IS WHERE-IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) BY LESSOR (EXCEPT THAT LESSOR SHALL KEEP THE PROPERTY FREE AND CLEAR
OF LESSOR LIENS) AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF TITLE,
(B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF (IF ANY), (C) ANY STATE OF
FACTS REGARDING ITS PHYSICAL CONDITION OR WHICH AN ACCURATE SURVEY MIGHT SHOW,
(D) ALL APPLICABLE LEGAL REQUIREMENTS AND (E) VIOLATIONS OF LEGAL REQUIREMENTS
WHICH MAY EXIST ON THE DATE HEREOF AND/OR THE DATE OF THE APPLICABLE LEASE
SUPPLEMENT. NEITHER LESSOR NOR THE AGENT NOR ANY LENDER NOR ANY HOLDER HAS MADE
OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) (EXCEPT THAT LESSOR SHALL KEEP THE PROPERTY FREE AND CLEAR
OF LESSOR LIENS) OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE
TITLE, VALUE, HABITABILITY, USE, CONDITION,
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DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE PROPERTY (OR ANY
PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY (OR ANY PART THEREOF), AND
NEITHER LESSOR NOR THE AGENT NOR ANY LENDER NOR ANY HOLDER SHALL BE LIABLE FOR
ANY LATENT, HIDDEN, OR PATENT DEFECT THEREON OR THE FAILURE OF THE PROPERTY, OR
ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT. LESSEE HAS OR PRIOR TO
THE BASIC TERM COMMENCEMENT DATE WILL HAVE BEEN AFFORDED FULL OPPORTUNITY TO
INSPECT THE PROPERTY AND THE IMPROVEMENTS THEREON (IF ANY), IS OR WILL BE
(INSOFAR AS LESSOR, THE AGENT, EACH LENDER AND EACH HOLDER ARE CONCERNED)
SATISFIED WITH THE RESULTS OF ITS INSPECTIONS AND IS ENTERING INTO THIS LEASE
SOLELY ON THE BASIS OF THE RESULTS OF ITS OWN INSPECTIONS, AND ALL RISKS
INCIDENT TO THE MATTERS DESCRIBED IN THE PRECEDING SENTENCE, AS BETWEEN LESSOR,
THE AGENT, THE LENDERS AND THE HOLDERS, ON THE ONE HAND, AND LESSEE, ON THE
OTHER HAND, ARE TO BE BORNE BY LESSEE.
8.2 POSSESSION AND USE OF THE PROPERTY.
(a) At all times during the Term with respect to the Property,
such Property shall be a Permitted Facility and shall be used by
Lessee in the ordinary course of its business. Lessee shall pay, or
cause to be paid, all charges and costs required in connection with
the use of the Property as contemplated by this Lease. Lessee shall
not commit or permit any waste of the Property or any part thereof.
(b) The address stated in Section 29.1 of this Lease is the
principal place of business and chief executive office of Lessee (as
such terms are used in Section 9-103(3) of the Uniform Commercial Code
of any applicable jurisdiction), and Lessee will provide Lessor with
prior written notice of any change of location of its principal place
of business or chief executive office. Regarding the Property, the
Lease Supplement correctly identifies the initial location of the
related Equipment (if any) and Improvements (if any) and contains an
accurate legal description for the related parcel of Land. The
Equipment and Improvements respecting the Property will be located
only at the location identified in the applicable Lease Supplement.
(c) Lessee will not attach or incorporate any item of Equipment
to or in any other item of equipment or personal property or to or in
any real property in a manner that could give rise to the assertion of
any Lien on such item of Equipment by reason of such attachment or the
assertion of a claim that such item of Equipment has become a fixture
and is subject to a Lien in favor of a third party that is prior to
the Liens thereon created by the Operative Agreements.
(d) At all times during the Term with respect to the Property,
Lessee will comply with all obligations under and (to the extent no
Event of Default exists and
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provided that such exercise will not impair the value, utility or
remaining useful life of such Property) shall be permitted to exercise
all rights and remedies under, all operation and easement agreements
and related or similar agreements applicable to such Property.
8.3 INTEGRATED PROPERTY.
At all times during the Term, Lessee shall, at its sole cost and
expense, cause the Property to constitute all of the equipment, facilities,
rights, other personal property and other real property necessary or
appropriate to operate, utilize, maintain and control a Permitted Facility in a
commercially reasonable manner.
ARTICLE IX
9.1 COMPLIANCE WITH LEGAL REQUIREMENTS, INSURANCE REQUIREMENTS AND
MANUFACTURER'S SPECIFICATIONS AND STANDARDS.
Subject to the terms of Article XIII relating to permitted
contests, Lessee, at its sole cost and expense, shall (a) comply with all
applicable Legal Requirements (including without limitation all Environmental
Laws) and all Insurance Requirements relating to the Property, (b) procure,
maintain and comply with all licenses, permits, orders, approvals, consents and
other authorizations required for the acquisition, installation, testing, use,
development, construction, operation, maintenance, repair, refurbishment and
restoration of the Property and (c) comply with all manufacturer's
specifications and standards, including without limitation the acquisition,
installation, testing, use, development, construction, operation, maintenance,
repair, refurbishment and restoration of the Property, whether or not
compliance therewith shall require structural or extraordinary changes in the
Property or interfere with the use and enjoyment of the Property, unless the
failure to procure, maintain and comply with such items identified in
subparagraphs (b) and (c), individually or in the aggregate, shall not have and
could not reasonably be expected to have a Material Adverse Effect. Lessor
agrees to take such actions as may be reasonably requested by Lessee in
connection with the compliance by Lessee of its obligations under this Section
9.1.
ARTICLE X
10.1 MAINTENANCE AND REPAIR; RETURN.
(a) Lessee, at its sole cost and expense, shall maintain the
Property in good condition, repair and working order (ordinary wear
and tear excepted) and in the repair and condition as when originally
delivered to Lessor and make all necessary repairs thereto and
replacements thereof, of every kind and nature whatsoever, whether
interior or exterior, ordinary or extraordinary, structural or
nonstructural or foreseen or unforeseen, in each case as required by
Section 9.1 and on a basis consistent with the operation and
maintenance of properties or equipment comparable in type and function
to
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the applicable Property, such that such Property is capable of
being immediately utilized by a third party and in compliance with
standard industry practice subject, however, to the provisions of
Article XV with respect to Casualty and Condemnation.
(b) Lessee shall not move or relocate any component of the
Property beyond the boundaries of the Land (comprising part of such
Property) described in the applicable Lease Supplement, except for the
temporary removal of Equipment and other personal property for repair
or replacement.
(c) If any component of the Property becomes worn out, lost,
destroyed, damaged beyond repair or otherwise permanently rendered
unfit for use, Lessee, at its own expense, will within a reasonable
time replace such component with a replacement component which is free
and clear of all Liens (other than Permitted Liens and Lessor Liens)
and has a value, utility and useful life at least equal to the
component replaced (assuming the component replaced had been
maintained and repaired in accordance with the requirements of this
Lease). All components which are added to the Property shall
immediately become the property of (and title thereto shall vest in)
Lessor and shall be deemed incorporated in such Property and subject
to the terms of this Lease as if originally leased hereunder.
(d) Upon reasonable advance notice, Lessor and its agents shall
have the right to inspect the Property and all maintenance records
with respect thereto at any reasonable time during normal business
hours but shall not, in the absence of an Event of Default, materially
disrupt the business of Lessee.
(e) Lessee shall cause to be delivered to Lessor (at Lessee's
sole expense) one or more additional Appraisals (or reappraisals of
Property) as Lessor may request if any one of Lessor, the Agent, the
Trust Company, any Lender or any Holder is required pursuant to any
applicable Legal Requirement to obtain such Appraisals (or
reappraisals) and upon the occurrence of any Event of Default.
(f) Lessor shall under no circumstances be required to build
any improvements or install any equipment on the Property, make any
repairs, replacements, alterations or renewals of any nature or
description to the Property, make any expenditure whatsoever in
connection with this Lease or maintain the Property in any way. Lessor
shall not be required to maintain, repair or rebuild all or any part
of the Property, and Lessee waives the right to (i) require Lessor to
maintain, repair, or rebuild all or any part of the Property, or (ii)
make repairs at the expense of Lessor pursuant to any Legal
Requirement, Insurance Requirement, contract, agreement, covenant,
condition or restriction at any time in effect.
(g) Lessee shall, upon the expiration or earlier termination of
this Lease with respect to the Property, if Lessee shall not have
exercised its Purchase Option with respect to such Property and
purchased such Property, surrender such Property (i) pursuant to the
exercise of the applicable remedies upon the occurrence of a Lease
Event
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of Default, to Lessor or (ii) pursuant to the second paragraph of
Section 22.1(a) hereof, to Lessor or the third party purchaser, as the
case may be, subject to Lessee's obligations under this Lease
(including without limitation the obligations of Lessee at the time of
such surrender under Sections 9.1, 10.1(a) through (f), 10.2, 11.1,
12.1, 22.1 and 23.1).
10.2 ENVIRONMENTAL INSPECTION.
If Lessee has not given notice of exercise of its Purchase
Option on the Expiration Date pursuant to Section 20.1 or for whatever
reason Lessee does not purchase the Property in accordance with the
terms of this Lease, then not more than one hundred twenty (120) days
nor less than sixty (60) days prior to the Expiration Date, Lessee
shall cause to be delivered to Lessor a Phase I environmental site
assessment recently prepared (no more than thirty (30) days prior to
the date of delivery) by an independent recognized professional
reasonably acceptable to Lessor, and in form, scope and content
reasonably satisfactory to Lessor. The cost incurred respecting such
Phase I environmental site assessment shall be paid for in accordance
with the provisions set forth in Section 20.3(b).
ARTICLE XI
11.1 MODIFICATIONS.
(a) Lessee at its sole cost and expense, at any time and from
time to time without the consent of Lessor may make modifications,
alterations, renovations, improvements and additions to the Property
or any part thereof and substitutions and replacements therefor
(collectively, "Modifications"), and Lessee shall make any and all
Modifications required to be made pursuant to all Legal Requirements,
Insurance Requirements and manufacturer's specifications and
standards; provided, that: (i) no Modification shall materially impair
the value, utility or useful life of the Property from that which
existed immediately prior to such Modification; (ii) each Modification
shall be done expeditiously and in a good and workmanlike manner;
(iii) no Modification shall adversely affect the structural integrity
of the Property; (iv) to the extent required by Section 14.2(a),
Lessee shall maintain builders' risk insurance at all times when a
Modification is in progress; (v) subject to the terms of Article XIII
relating to permitted contests, Lessee shall pay all costs and
expenses and discharge any Liens arising with respect to any
Modification; (vi) each Modification shall comply with the
requirements of this Lease (including without limitation Sections 8.2
and 10.1); and (vii) no Improvement shall be demolished or otherwise
rendered unfit for use unless Lessee shall finance the proposed
replacement Modification outside of this lease facility; provided,
further, Lessee shall not make any Modification (unless required by
any Legal Requirement) to the extent any such Modification,
individually or in the aggregate, shall have or could reasonably be
expected to have a Material Adverse Effect. Title to each Modification
shall vest in Lessee to the extent such Modification (a) is not
financed pursuant to the Operative Agreements, (b) is not a fixture or
other real estate interest, (c) is readily removable without causing
material damage to any Property, (d) is not required in order
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for the applicable Property to comply with any Legal Requirement, any
Insurance Requirement or any requirement of Section 8.3 of this Lease
and (e) is not necessary to conform to any applicable manufacturer's
specification and/or standard respecting any Property or any
Modification which is the property of the Lessor. All other
Modifications shall immediately and without further action upon their
incorporation into the applicable Property (1) become property of
Lessor, (2) be subject to this Lease and (3) be titled in the name of
Lessor. Lessee may freely remove or replace any equipment, trade
fixtures and other personal property located on the Property and not
financed pursuant to the Operative Agreements and any Modifications
titled in the name of Lessee; provided Lessee at its sole cost and
expense shall repair in a good and workmanlike manner any and all
damage done to any Property due to the removal, detachment, attempted
removal or attempted detachment of any Modification from a Property
and all such repairs shall be completed by the earlier of (a) thirty
(30) days after such removal, detachment, attempted removal or
attempted detachment of the applicable Modification from the
applicable Property and (b) the Expiration Date. Lessee shall not
remove or attempt to remove any Modification from the Property except
in accordance with the provisions of this Section 11.1. Lessee, at its
own cost and expense, will pay for the repairs of any damage to the
Property caused by the removal or attempted removal of any
Modification.
ARTICLE XII
12.1 WARRANTY OF TITLE.
(a) Lessee hereby acknowledges and shall cause title in the
Property (including without limitation all Equipment, all
Improvements, all replacement components to the Property and all
Modifications) immediately and without further action to vest in and
become the property of Lessor and to be subject to the terms of this
Lease from and after the date hereof or such date of incorporation
into the Property. Lessee agrees that, subject to the terms of Article
XIII relating to permitted contests, Lessee shall not directly or
indirectly create or allow to remain, and shall promptly discharge at
its sole cost and expense, any Lien, defect, attachment, levy, title
retention agreement or claim upon the Property, any component thereof
or any Modifications or any Lien, attachment, levy or claim with
respect to the Rent or with respect to any amounts held by Lessor, the
Agent, any Lender or any Holder pursuant to any Operative Agreement,
other than Permitted Liens and Lessor Liens. Lessee shall promptly
notify Lessor in the event it receives actual knowledge that a Lien
other than a Permitted Lien or Lessor Lien has occurred with respect
to the Property, the Rent or any other such amounts, and Lessee
represents and warrants to, and covenants with, Lessor that the Liens
in favor of Lessor and/or the Agent created by the Operative
Agreements are (and until the Financing Parties under the Operative
Agreements have been paid in full shall remain) first priority
perfected Liens subject only to Permitted Liens and Lessor Liens. At
all times during the Term, Lessee shall (i) cause a valid, perfected,
first priority Lien on the Property to be in place in favor of the
Agent (for the benefit of the Lenders and the
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Holders) and (ii) file, or cause to be filed, all necessary documents
under the applicable real property law and Article 9 of the Uniform
Commercial Code to perfect such title and Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, expressed or implied,
to or for the performance by any contractor, mechanic, laborer,
materialman, supplier or vendor of any labor or services or for the
furnishing of any materials for any construction, alteration,
addition, repair or demolition of or to the Property or any part
thereof. NOTICE IS HEREBY GIVEN THAT LESSOR IS NOT AND SHALL NOT BE
LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE
FURNISHED TO LESSEE, OR TO ANYONE HOLDING A PROPERTY OR ANY PART
THEREOF THROUGH OR UNDER LESSEE, AND THAT NO MECHANIC'S OR OTHER LIENS
FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT
THE INTEREST OF LESSOR IN AND TO THE PROPERTY.
ARTICLE XIII
13.1 PERMITTED CONTESTS OTHER THAN IN RESPECT OF INDEMNITIES.
Except to the extent otherwise provided for in Section 11 of the
Participation Agreement, Lessee, on its own or on Lessor's behalf but at
Lessee's sole cost and expense, may contest, by appropriate administrative or
judicial proceedings conducted in good faith and with due diligence, the
amount, validity or application, in whole or in part, of any Legal Requirement,
Imposition or utility charge payable pursuant to Section 4.1 or any Lien,
attachment, levy, encumbrance or encroachment, and Lessor agrees not to pay,
settle or otherwise compromise any such item, provided, that (a) the
commencement and continuation of such proceedings shall suspend the collection
of any such contested amount from, and suspend the enforcement thereof against,
the applicable Property, Lessor, each Holder, the Agent and each Lender; (b)
there shall not be imposed a Lien (other than Permitted Liens and Lessor Liens)
on the Property and no part of the Property nor any Rent would be in any danger
of being sold, forfeited, lost or deferred; (c) at no time during the permitted
contest shall there be a risk of the imposition of criminal liability or
material civil liability on Lessor, any Holder, the Agent or any Lender for
failure to comply therewith; and (d) in the event that, at any time, there
shall be a material risk of extending the application of such item beyond the
end of the Term, then Lessee shall deliver to Lessor an Officer's Certificate
certifying as to the matters set forth in clauses (a), (b) and (c) of this
Section 13.1. Lessor, at Lessee's sole cost and expense, shall execute and
deliver to Lessee such authorizations and other documents as may reasonably be
required in connection with any such contest and, if reasonably requested by
Lessee, shall join as a party therein at Lessee's sole cost and expense.
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13.2 IMPOSITIONS, UTILITY CHARGES, OTHER MATTERS; COMPLIANCE WITH
LEGAL REQUIREMENTS.
Except with respect to Impositions, Legal Requirements, utility
charges and such other matters referenced in Section 13.1 which are the subject
of ongoing proceedings contesting the same in a manner consistent with the
requirements of Section 13.1, Lessee shall cause (a) all Impositions, utility
charges and such other matters to be timely paid, settled or compromised, as
appropriate, with respect to the Property and (b) the Property to comply with
all applicable Legal Requirements.
ARTICLE XIV
14.1 PUBLIC LIABILITY AND WORKERS' COMPENSATION INSURANCE.
During the Term for the Property, Lessee shall procure and
carry, at Lessee's sole cost and expense, commercial general liability and
umbrella liability insurance for claims for injuries or death sustained by
persons or damage to property while on such Property or respecting the
Equipment and such other public liability coverages as are then customarily
carried by similarly situated companies conducting business similar to that
conducted by Lessee. Such insurance shall be on terms and in amounts that are
no less favorable than insurance maintained by Lessee with respect to similar
properties and equipment that it owns and are then carried by similarly
situated companies conducting business similar to that conducted by Lessee, and
in, but in no event shall such coverage have a minimum combined single limit
per occurrence coverage (i) for commercial general liability of less than
$1,000,000 and (ii) for umbrella liability of less than $10,000,000. The
policies shall name Lessee as the insured and shall be endorsed to name Lessor,
the Holders, the Agent and the Lenders as additional insureds. The policies
shall also specifically provide that such policies shall be considered primary
insurance which shall apply to any loss or claim before any contribution by any
insurance which Lessor, any Holder, the Agent or any Lender may have in force.
In the operation of the Property, Lessee shall comply with applicable workers'
compensation laws and protect Lessor, each Holder, the Agent and each Lender
against any liability under such laws.
14.2 PERMANENT HAZARD AND OTHER INSURANCE.
(a) During the Term for the Property, Lessee shall keep the
Property insured against all risk of physical loss or damage by fire
and other risks and shall maintain builders' risk insurance during
construction of any Improvements or Modifications in each case in
amounts no less than the then current replacement value of such
Property (assuming that such Property was in the condition required by
the terms of this Lease immediately prior to such loss) and on terms
that (i) are no less favorable than insurance covering other similar
properties owned by Lessee and (ii) are then carried by similarly
situated companies conducting business similar to that conducted by
Lessee. The policies shall name Lessee as the insured and shall be
endorsed to name Lessor and the Agent (on behalf of the Lenders and
the Holders) as a named additional insured and loss payee, to
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the extent of their respective interests; provided, so long as no
Event of Default exists, any loss payable under the insurance policies
required by this Section for losses up to $1,000,000 will be paid to
Lessee.
(b) If, during the Term, the area in which the Property is
located is designated a "flood-prone" area pursuant to the Flood
Disaster Protection Act of 1973, or any amendments or supplements
thereto or is in a zone designated A or V, then Lessee shall comply
with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973. In addition, Lessee will fully comply
with the requirements of the National Flood Insurance Act of 1968 and
the Flood Disaster Protection Act of 1973, as each may be amended from
time to time, and with any other Legal Requirement, concerning flood
insurance to the extent that it applies to any such Property. During
the Term, Lessee shall, in the operation and use of the Property,
maintain workers' compensation insurance consistent with that carried
by similarly situated companies conducting business similar to that
conducted by Lessee and containing minimum liability limits of no less
than $100,000. In the operation of the Property, Lessee shall comply
with workers' compensation laws applicable to Lessee, and protect
Lessor, each Holder, the Agent and each Lender against any liability
under such laws.
14.3 COVERAGE.
(a) As of the date of this Lease and annually thereafter during
the Term, Lessee shall furnish the Agent (on behalf of Lessor and the
other beneficiaries of such insurance coverage) with certificates
prepared by the insurers or insurance broker of Lessee showing the
insurance required under Sections 14.1 and 14.2 to be in effect,
naming (to the extent of their respective interests) Lessor, the
Holders, the Agent and the Lenders as additional insureds and loss
payees and evidencing the other requirements of this Article XIV. All
such insurance shall be at the cost and expense of Lessee and provided
by nationally recognized, financially sound insurance companies having
an A+ or better rating by A.M. Best's Key Rating Guide. Lessee shall
cause such certificates to include a provision for thirty (30) days'
advance written notice by the insurer to the Agent (on behalf of
Lessor and the other beneficiaries of such insurance coverage) in the
event of cancellation or material alteration of such insurance. If an
Event of Default has occurred and is continuing and the Agent (on
behalf of Lessor and the other beneficiaries of such insurance
coverage) so requests, Lessee shall deliver to the Agent (on behalf of
Lessor and the other beneficiaries of such insurance coverage) copies
of all insurance policies required by Sections 14.1 and 14.2.
(b) Lessee agrees that the insurance policy or policies
required by Sections 14.1, 14.2(a) and 14.2(b) shall include an
appropriate clause pursuant to which any such policy shall provide
that it will not be invalidated should Lessee waive, at any time, any
or all rights of recovery against any party for losses covered by such
policy or due to any breach of warranty, fraud, action, inaction or
misrepresentation by Lessee or any Person acting on behalf of Lessee.
Lessee hereby waives any and all such rights against Lessor,
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the Holders, the Agent and the Lenders to the extent of payments made
to any such Person under any such policy.
(c) Neither Lessor nor Lessee shall carry separate insurance
concurrent in kind or form or contributing in the event of loss with
any insurance required under this Article XIV, except that Lessor may
carry separate liability insurance at Lessor's sole cost so long as
(i) Lessee's insurance is designated as primary and in no event excess
or contributory to any insurance Lessor may have in force which would
apply to a loss covered under Lessee's policy and (ii) each such
insurance policy will not cause Lessee's insurance required under this
Article XIV to be subject to a coinsurance exception of any kind.
(d) Lessee shall pay as they become due all premiums for the
insurance required by Section 14.1 and Section 14.2, shall renew or
replace each policy prior to the expiration date thereof or otherwise
maintain the coverage required by such Sections without any lapse in
coverage.
14.4 ADDITIONAL INSURANCE REQUIREMENTS.
Not in limitation of any provision of the Operative Agreements
but in addition thereto, Lessee shall obtain any and all additional insurance
policies (including without limitation with respect to Condemnation) with
regard to the Property or otherwise with respect to the transactions
contemplated by the Operative Agreements as requested from time to time by
Lessor.
ARTICLE XV
15.1 CASUALTY AND CONDEMNATION.
(a) Subject to the provisions of this Article XV and Article
XVI (in the event Lessee delivers, or is obligated to deliver or is
deemed to have delivered, a Termination Notice), and prior to the
occurrence and continuation of a Default or an Event of Default,
Lessee shall be entitled to receive (and Lessor hereby irrevocably
assigns to Lessee all of Lessor's right, title and interest in) any
condemnation proceeds, award, compensation or insurance proceeds under
Sections 14.2(a) or 14.2(b) hereof to which Lessee or Lessor may
become entitled by reason of their respective interests in the
Property (i) if all or a portion of such Property is damaged or
destroyed in whole or in part by a Casualty or (ii) if the use,
access, occupancy, easement rights or title to such Property or any
part thereof is the subject of a Condemnation; provided, however, if a
Default or an Event of Default shall have occurred and be continuing
or if such award, compensation or insurance proceeds shall exceed
$1,000,000, then such award, compensation or insurance proceeds shall
be paid directly to Lessor or, if received by Lessee, shall be held in
trust for Lessor, and shall be paid over by Lessee to Lessor and held
in accordance with the terms of this Article XV. All amounts held by
Lessor hereunder on account of any award,
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compensation or insurance proceeds either paid directly to Lessor or
turned over to Lessor shall be held as security for the performance of
Lessee's obligations hereunder and under the other Operative
Agreements and when all such obligations of Lessee with respect to
such matters (and all other obligations of Lessee which should have
been satisfied pursuant to the Operative Agreements as of such date)
have been satisfied, all amounts so held by Lessor shall be paid over
to Lessee.
(b) Lessee may appear in any proceeding or action to negotiate,
prosecute, adjust or appeal any claim for any award, compensation or
insurance payment on account of any such Casualty or Condemnation and
shall pay all expenses thereof. At Lessee's reasonable request, and at
Lessee's sole cost and expense, Lessor and the Agent shall participate
in any such proceeding, action, negotiation, prosecution or
adjustment. Lessor and Lessee agree that this Lease shall control the
rights of Lessor and Lessee in and to any such award, compensation or
insurance payment.
(c) If Lessee shall receive notice of a Casualty or a
Condemnation of the Property or any interest therein where damage to
the affected Property is estimated to equal or exceed twenty-five
percent (25%) of the Property Cost of such Property, Lessee shall give
notice thereof to Lessor promptly after Lessee's receipt of such
notice. In the event such a Casualty or Condemnation occurs
(regardless of whether Lessee gives notice thereof), then Lessee shall
be deemed to have delivered a Termination Notice to Lessor and the
provisions of Sections 16.1 and 16.2 shall apply.
(d) In the event of a Casualty or a Condemnation (regardless of
whether notice thereof must be given pursuant to paragraph (c)), this
Lease shall terminate with respect to the applicable Property in
accordance with Section 16.1 if Lessee, within thirty (30) days after
such occurrence, delivers to Lessor a notice to such effect.
(e) If pursuant to this Section 15.1 this Lease shall continue
in full force and effect following a Casualty or Condemnation with
respect to the affected Property, Lessee shall, at its sole cost and
expense (subject to reimbursement in accordance with Section 15.1(a))
promptly and diligently repair any damage to the applicable Property
caused by such Casualty or Condemnation in conformity with the
requirements of Sections 10.1 and 11.1, using the as-built Plans and
Specifications or manufacturer's specifications for the applicable
Improvements, Equipment or other components of the applicable Property
(as modified to give effect to any subsequent Modifications, any
Condemnation affecting the applicable Property and all applicable
Legal Requirements), so as to restore the applicable Property to the
same or a greater remaining economic value, useful life, utility,
condition, operation and function as existed immediately prior to such
Casualty or Condemnation (assuming all maintenance and repair
standards have been satisfied). In such event, title to the applicable
Property shall remain with Lessor.
(f) In no event shall a Casualty or Condemnation affect
Lessee's obligations to pay Rent pursuant to Article III.
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(g) Notwithstanding anything to the contrary set forth in
Section 15.1(a) or Section 15.1(e), if during the Term a Casualty
occurs with respect to such Property or Lessee receives notice of a
Condemnation with respect to such Property, and following such
Casualty or Condemnation, the applicable Property cannot reasonably be
restored, repaired or replaced on or before the day one hundred eighty
(180) days prior to the Expiration Date or the date nine (9) months
after the occurrence of such Casualty or Condemnation (if such
Casualty or Condemnation occurs during the Term) to the same or a
greater remaining economic value, useful life, utility, condition,
operation and function as existed immediately prior to such Casualty
or Condemnation (assuming all maintenance and repair standards have
been satisfied) or on or before such day such Property is not in fact
so restored, repaired or replaced, then Lessee shall be required to
exercise its Purchase Option for such Property on the next Payment
Date (notwithstanding the limits on such exercise contained in Section
20.2) and pay Lessor the Termination Value for such Property;
provided, if any Default or Event of Default has occurred and is
continuing, Lessee shall also promptly (and in any event within three
(3) Business Days) pay Lessor any award, compensation or insurance
proceeds received on account of any Casualty or Condemnation with
respect to the Property; provided, further, that if no Default or
Event of Default has occurred and is continuing, any Excess Proceeds
shall be paid to Lessee. If a Default or an Event of Default has
occurred and is continuing and any Loans, Holder Advances or other
amounts are owing with respect thereto, then any Excess Proceeds (to
the extent of any such Loans, Holder Advances or other amounts owing
with respect thereto) shall be paid to Lessor, held as security for
the performance of Lessee's obligations hereunder and under the other
Operative Agreements and applied to such obligations upon the exercise
of remedies in connection with the occurrence of an Event of Default,
with the remainder of such Excess Proceeds in excess of such Loans,
Holder Advances and other amounts owing with respect thereto being
distributed to the Lessee.
15.2 ENVIRONMENTAL MATTERS.
Promptly upon Lessee's actual knowledge of the presence of
Hazardous Substances in any portion of the Property in concentrations and
conditions that constitute an Environmental Violation and which, in the
reasonable opinion of Lessee, the cost to undertake any legally required
response, clean up, remedial or other action will or might result in a cost to
Lessee of more than $15,000, Lessee shall notify Lessor in writing of such
condition. In the event of any Environmental Violation (regardless of whether
notice thereof must be given), Lessee shall, not later than thirty (30) days
after Lessee has actual knowledge of such Environmental Violation, either
deliver to Lessor a Termination Notice with respect to the applicable Property
pursuant to Section 16.1, if applicable, or, at Lessee's sole cost and expense,
promptly and diligently undertake and diligently complete any response, clean
up, remedial or other action (including without limitation the pursuit by
Lessee of appropriate action against any off-site or third party source for
contamination) necessary to remove, cleanup or remediate the Environmental
Violation in accordance with all Environmental Laws. Any such undertaking shall
be timely completed in accordance with prudent industry standards. If Lessee
does not deliver a Termination Notice with respect to such Property pursuant to
Section 16.1, Lessee
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shall, upon completion of remedial action by Lessee, cause to be prepared by a
reputable environmental consultant acceptable to Lessor a report describing the
Environmental Violation and the actions taken by Lessee (or its agents) in
response to such Environmental Violation, and a statement by the consultant
that the Environmental Violation has been remedied in full compliance with
applicable Environmental Law. Not less than sixty (60) days prior to any time
that Lessee elects to cease operations with respect to the Property or to
remarket the Property pursuant to Section 20.1 hereof or any other provision of
any Operative Agreement, Lessee at its expense shall cause to be delivered to
Lessor a Phase I environmental site assessment respecting such Property
recently prepared (no more than thirty (30) days prior to the date of delivery)
by an independent recognized professional acceptable to Lessor in its
reasonable discretion and in form, scope and content satisfactory to Lessor in
its reasonable discretion. Notwithstanding any other provision of any Operative
Agreement, if Lessee fails to comply with the foregoing obligation regarding
the Phase I environmental site assessment, Lessee shall be obligated to
purchase such Property for its Termination Value and shall not be permitted to
exercise (and Lessor shall have no obligation to honor any such exercise) any
rights under any Operative Agreement regarding a sale of such Property to a
Person other than Lessee.
15.3 NOTICE OF ENVIRONMENTAL MATTERS.
Promptly, but in any event within five (5) Business Days from
the date Lessee has actual knowledge thereof, Lessee shall provide to Lessor
written notice of any pending or threatened claim, action or proceeding
involving any Environmental Law or any Release on or in connection with the
Property. All such notices shall describe in reasonable detail the nature of
the claim, action or proceeding and Lessee's proposed response thereto. In
addition, Lessee shall provide to Lessor, within five (5) Business Days of
receipt, copies of all material written communications with any Governmental
Authority relating to any Environmental Law in connection with the Property.
Lessee shall also promptly provide such detailed reports of any such material
environmental claims as may reasonably be requested by Lessor.
ARTICLE XVI
16.1 TERMINATION UPON CERTAIN EVENTS.
If Lessee has delivered, or is deemed to have delivered, written
notice of a termination of this Lease with respect to the applicable Property
to Lessor in the form described in Section 16.2(a) (a "Termination Notice")
pursuant to the provisions of this Lease, then following the applicable
Casualty, Condemnation or Environmental Violation, this Lease shall terminate
with respect to the affected Property on the applicable Termination Date.
16.2 PROCEDURES.
(a) A Termination Notice shall contain: (i) notice of
termination of this Lease with respect to the affected Property on a
Payment Date not more than sixty (60) days after Lessor's receipt of
such Termination Notice (the "Termination Date"); and (ii) a
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binding and irrevocable agreement of Lessee to pay the Termination
Value for the applicable Property and purchase such Property on such
Termination Date.
(b) On the Termination Date, Lessee shall pay to Lessor the
Termination Value for the applicable Property, and Lessor shall convey
such Property or the remaining portion thereof, if any, to Lessee (or
Lessee's designee), all in accordance with Section 20.2.
ARTICLE XVII
17.1 LEASE EVENTS OF DEFAULT.
If any one (1) or more of the following events (each a "Lease
Event of Default") shall occur:
(a) Failure of the Lessor to receive payment of (i) any Basic
Rent on the date the same has become due and payable or (ii) any
Termination Value, on the date any such payment is due and payable, or
any payment of Basic Rent or Supplemental Rent due on the due date of
any such payment of Termination Value, or (iii) any amount due on the
Expiration Date on such date;
(b) Lessee shall fail to make payment of any Supplemental Rent
(other than Supplemental Rent referred to in Section 17.1(a)(ii)) or
any other Credit Party shall fail to make any payment of any amount
under any Operative Agreement which has become due and payable within
five (5) Business Days after receipt of notice that such payment is
due;
(c) Lessee shall fail to maintain insurance as required by
Article XIV of this Lease or to deliver any requisite annual
certificate with respect thereto within ten (10) days of the date such
certificate is due under the terms hereof;
(d) (i) Lessee shall fail to observe or perform any term,
covenant or obligation of Lessee under this Lease (including without
limitation the Incorporated Covenants) or any other Operative
Agreement to which Lessee is a party other than those set forth in
Sections 17.1(a), (b) or (c) hereof, or any other Credit Party shall
fail to observe or perform any term, covenant or obligation of such
Credit Party under any Operative Agreement other than those set forth
in Section 17.1(b) hereof and such failure shall continue for thirty
(30) days (or with respect to the Incorporated Covenants, the grace
period, if any, applicable thereto) after notice thereof to the
Lessee, or such Credit Party, or (ii) any representation or warranty
made by Lessee or any other Credit Party set forth in this Lease
(including without limitation the Incorporated Representations and
Warranties) or in any other Operative Agreement or in any document
entered into in connection herewith or therewith or in any document,
certificate or financial or other
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statement delivered in connection herewith or therewith shall be false
or inaccurate in any material way when made;
(e) [Intentionally Reserved].
(f) Any Credit Party or any Subsidiary of any Credit Party shall
default (beyond applicable periods of grace and/or notice and cure) in
the payment when due of any principal of or interest on any
Indebtedness having an outstanding principal amount of at least
$10,000,000; or any other event or condition shall occur which results
in a default of any such Indebtedness or enables the holder of any
such Indebtedness or any Person acting on such holder's behalf to
accelerate the maturity thereof;
(g) The liquidation or dissolution of any Credit Party, or the
suspension of the business of any Credit Party, or the filing by any
Credit Party of a voluntary petition or an answer seeking
reorganization, arrangement, readjustment of its debts or for any
other relief under the United States Bankruptcy Code, as amended, or
under any other insolvency act or law, state or federal, now or
hereafter existing, or any other action of any Credit Party indicating
its consent to, approval of or acquiescence in, any such petition or
proceeding; the application by any Credit Party for, or the
appointment by consent or acquiescence of any Credit Party of a
receiver, a trustee or a custodian of any Credit Party for all or a
substantial part of its property; the making by any Credit Party of
any assignment for the benefit of creditors; the inability of any
Credit Party or the admission by any Credit Party in writing of its
inability to pay its debts as they mature or any Credit Party taking
any corporate action to authorize any of the foregoing;
(h) The filing of an involuntary petition against any Credit
Party in bankruptcy or seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the United
States Bankruptcy Code, as amended, or under any other insolvency act
or law, state or federal, now or hereafter existing; or the
involuntary appointment of a receiver, a trustee or a custodian of any
Credit Party for all or a substantial part of its property; or the
issuance of a warrant of attachment, execution or similar process
against any substantial part of the property of any Credit Party, and
the continuance of any of such events for ninety (90) days undismissed
or undischarged;
(i) The adjudication of any Credit Party as bankrupt or
insolvent;
(j) The entering of any order in any proceedings against any
Credit Party or any Subsidiary, if any, decreeing the dissolution,
divestiture or split-up of any Credit Party or any Subsidiary of any
Credit Party, if any, and such order remains in effect for more than
sixty (60) days;
(k) Any report, certificate, financial statement or other
instrument delivered to Lessor by or on behalf of any Credit Party
pursuant to the terms of this Lease or any other Operative Agreement
is false or misleading in any material respect when made or delivered;
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(l) Any Lessee Credit Agreement Event of Default shall have
occurred and be continuing and shall not have been waived;
(m) A final judgment or judgments for the payment of money shall
be rendered by a court or courts against any Credit Party or any
subsidiary of any Credit Party where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is
in excess of $2,000,000 in the aggregate, and (i) the same shall not
be discharged (or provision shall not be made for such discharge), or
a stay of execution thereof shall not be procured, within forty-five
(45) days from the date of entry thereof, or (ii) any Credit Party or
any such Subsidiary, if any, shall not, within said period of
forty-five (45) days, or such longer period during which execution of
the same shall have been stayed, appeal therefrom and cause the
execution thereof to be stayed during such appeal, or (iii) such
judgment or judgments shall not be discharged (or provisions shall not
be made for such discharge) within forty-five (45) days after a
decision has been reached with respect to such appeal and the related
stay has been lifted;
(n) Any Credit Party or any member of the Controlled Group shall
fail to pay when due an amount or amounts aggregating in excess of
$2,000,000 which it shall have become liable to pay to the PBGC or to
a Pension Plan under Title IV of ERISA; or notice of intent to
terminate a Pension Plan or Pension Plans having aggregate Unfunded
Liabilities in excess of $2,000,000 shall be filed under Title IV of
ERISA by any Credit Party or any member of the Controlled Group, any
plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any such Pension Plan or
Pension Plans or a proceeding shall be instituted by a fiduciary of
any such Pension Plan or Pension Plans against any Credit Party or any
member of the Controlled Group to enforce Section 515 or 4219(c)(5) of
ERISA; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Pension Plan or
Pension Plans must be terminated;
(o) (i) As a result of one (1) or more transactions after the
date of this Lease, any "person" or "group" of persons (other than
Persons owning thirty percent (30%) or more of the outstanding common
stock of Lessee on the Closing Date shall have "beneficial ownership"
(within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended, and the applicable rules and
regulations thereunder) of thirty percent (30%) or more of the
outstanding common stock of Lessee; or (ii) without limiting the
generality of the foregoing, during any period of twelve (12)
consecutive months, commencing after the date of this Lease,
individuals who at the beginning of such period of twelve (12) months
were directors of Lessee shall cease for any reason (other than death,
disability or retirement of an officer of Lessee that is serving as a
director at such time so long as another officer of Lessee replaces
such Person as a director) to constitute a majority of the board of
directors of Lessee, provided, that the relationships among the
respective shareholders of Lessee on the Closing Date
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shall not be deemed to constitute all or any combination of them as a
"group" for purposes of clause (o)(i);
(p) Any Operative Agreement shall cease to be in full force and
effect and such cessation is caused by or is a result of Lessee's own
actions or failure to act; or
(q) The guaranty given by the Guarantor under the Participation
Agreement or any material provision thereof shall cease to be in full
force and effect, or the Guarantor or any Person acting by or on
behalf of the Guarantor shall deny or disaffirm the Guarantor's
obligations under such guaranty, or the Guarantor shall default in the
due performance or observance of any term, covenant or agreement on
its part to be performed or observed pursuant to any guaranty.
then, in any such event, Lessor may, in addition to the other rights and
remedies provided for in this Article XVII and in Section 18.1, terminate this
Lease by giving Lessee five (5) days notice of such termination (provided,
notwithstanding the foregoing, this Lease shall be deemed to be automatically
terminated without the giving of notice upon the occurrence of a Lease Event of
Default under Sections 17.1(g), (h) or (i), and this Lease shall terminate, and
all rights of Lessee under this Lease shall cease. Lessee shall, to the fullest
extent permitted by law, pay as Supplemental Rent all costs and expenses
incurred by or on behalf of Lessor or any other Financing Party, including
without limitation reasonable fees and expenses of counsel, as a result of any
Lease Event of Default hereunder.
A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A POWER OF SALE
MAY ALLOW LESSOR TO TAKE THE PROPERTY AND SELL THE PROPERTY WITHOUT GOING TO
COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE OF A LEASE EVENT OF DEFAULT.
17.2 SURRENDER OF POSSESSION.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated pursuant
to Section 17.1, Lessee shall, upon thirty (30) days written notice, surrender
to Lessor possession of the Property. Lessor may enter upon and repossess the
Property by such means as are available at law or in equity, and may remove
Lessee and all other Persons and any and all personal property and Lessee's
equipment and personalty and severable Modifications from the Property. Lessor
shall have no liability by reason of any such entry, repossession or removal
performed in accordance with applicable law. Upon the written demand of Lessor,
Lessee shall return the Property promptly to Lessor, in the manner and
condition required by, and otherwise in accordance with the provisions of,
Section 22.1(c) hereof.
17.3 RELETTING.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated pursuant
to Section 17.1, Lessor may, but shall be
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under no obligation to, relet any or all of the Property, for the account of
Lessee or otherwise, for such term or terms (which may be greater or less than
the period which would otherwise have constituted the balance of the Term) and
on such conditions (which may include concessions or free rent) and for such
purposes as Lessor may determine, and Lessor may collect, receive and retain
the rents resulting from such reletting. Lessor shall not be liable to Lessee
for any failure to relet the Property or for any failure to collect any rent
due upon such reletting.
17.4 DAMAGES.
Neither (a) the termination of this Lease as to the Property
pursuant to Section 17.1; (b) the repossession of the Property; nor (c) the
failure of Lessor to relet the Property, the reletting of all or any portion
thereof, nor the failure of Lessor to collect or receive any rentals due upon
any such reletting, shall relieve Lessee of its liabilities and obligations
hereunder, all of which shall survive any such termination, repossession or
reletting. If any Lease Event of Default shall have occurred and be continuing
and notwithstanding any termination of this Lease pursuant to Section 17.1,
Lessee shall forthwith pay to Lessor all Rent and other sums due and payable
hereunder to and including without limitation the date of such termination.
Thereafter, on the days on which the Basic Rent or Supplemental Rent, as
applicable, are payable under this Lease or would have been payable under this
Lease if the same had not been terminated pursuant to Section 17.1 and until
the end of the Term hereof or what would have been the Term in the absence of
such termination, Lessee shall pay Lessor, as current liquidated damages (it
being agreed that it would be impossible accurately to determine actual
damages) an amount equal to the Basic Rent and Supplemental Rent that are
payable under this Lease or would have been payable by Lessee hereunder if this
Lease had not been terminated pursuant to Section 17.1, less the net proceeds,
if any, which are actually received by Lessor with respect to the period in
question of any reletting of the Property or any portion thereof; provided,
that Lessee's obligation to make payments of Basic Rent and Supplemental Rent
under this Section 17.4 shall continue only so long as Lessor shall not have
received the amounts specified in Section 17.6. In calculating the amount of
such net proceeds from reletting, there shall be deducted all of Lessor's, any
Holder's, the Agent's and any Lender's reasonable expenses in connection
therewith, including without limitation repossession costs, brokerage or sales
commissions, fees and expenses for counsel and any necessary repair or
alteration costs and expenses incurred in preparation for such reletting. To
the extent Lessor receives any damages pursuant to this Section 17.4, such
amounts shall be regarded as amounts paid on account of Rent. Lessee
specifically acknowledges and agrees that its obligations under this Section
17.4 shall be absolute and unconditional under any and all circumstances and
shall be paid and/or performed, as the case may be, without notice or demand
and without any abatement, reduction, diminution, setoff, defense, counterclaim
or recoupment whatsoever.
17.5 POWER OF SALE.
Without limiting any other remedies set forth in this Lease,
Lessor and Lessee agree that Lessee has granted, pursuant to Section 7.1(b)
hereof and the Lease Supplement, a Lien against the Property WITH POWER OF
SALE, and that, upon the occurrence and during the continuance of any Lease
Event of Default, Lessor shall have the power and authority, to the
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extent provided by law, after prior notice and lapse of such time as may be
required by law, to foreclose its interest (or cause such interest to be
foreclosed) in all or any part of the Property.
17.6 FINAL LIQUIDATED DAMAGES.
If a Lease Event of Default shall have occurred and be
continuing, whether or not this Lease shall have been terminated pursuant to
Section 17.1 and whether or not Lessor shall have collected any current
liquidated damages pursuant to Section 17.4, Lessor shall have the right to
recover, by demand to Lessee and at Lessor's election, and Lessee shall pay to
Lessor, as and for final liquidated damages, but exclusive of the indemnities
payable under Section 11 of the Participation Agreement (which, if requested,
shall be paid concurrently), and in lieu of all current liquidated damages
beyond the date of such demand (it being agreed that it would be impossible
accurately to determine actual damages) the Termination Value. Upon payment of
the amount specified pursuant to the first sentence of this Section 17.6,
Lessee shall be entitled to receive from Lessor, either at Lessee's request or
upon Lessor's election, in either case at Lessee's cost, an assignment of
Lessor's entire right, title and interest in and to the Property, Improvements,
Fixtures, Modifications, Equipment and all components thereof, in each case in
recordable form and otherwise in conformity with local custom and free and
clear of the Lien of this Lease (including without limitation the release of
any memoranda of Lease and/or the Lease Supplement recorded in connection
therewith) and any Lessor Liens. The Property shall be conveyed to Lessee
"AS-IS, WHERE-IS" and in their then present physical condition. If any statute
or rule of law shall limit the amount of such final liquidated damages to less
than the amount agreed upon, Lessor shall be entitled to the maximum amount
allowable under such statute or rule of law; provided, however, Lessee shall
not be entitled to receive an assignment of Lessor's interest in the Property,
the Improvements, Fixtures, Modifications, Equipment or the components thereof
unless Lessee shall have paid in full the Termination Value. Lessee
specifically acknowledges and agrees that its obligations under this Section
17.6 shall be absolute and unconditional under any and all circumstances and
shall be paid and/or performed, as the case may be, without notice or demand
and without any abatement, reduction, diminution, setoff, defense, counterclaim
or recoupment whatsoever.
17.7 ENVIRONMENTAL COSTS.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated pursuant
to Section 17.1, Lessee shall pay directly to any third party (or at Lessor's
election, reimburse Lessor for) the cost of any environmental testing and/or
remediation work undertaken respecting the Property, as such testing or work is
deemed appropriate in the reasonable judgment of Lessor, and shall indemnify
and hold harmless Lessor and each other Indemnified Person therefrom. Lessee
shall pay all amounts referenced in the immediately preceding sentence within
ten (10) days of any request by Lessor for such payment. The provisions of this
Section 17.7 shall not limit the obligations of Lessee under any Operative
Agreement regarding indemnification obligations, environmental testing,
remediation and/or work.
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17.8 WAIVER OF CERTAIN RIGHTS.
If this Lease shall be terminated pursuant to Section 17.1,
Lessee waives, to the fullest extent permitted by Law, (a) any notice of
re-entry or the institution of legal proceedings to obtain re-entry or
possession; (b) any right of redemption, re-entry or possession; (c) the
benefit of any laws now or hereafter in force exempting property from liability
for rent or for debt; and (d) any other rights which might otherwise limit or
modify any of Lessor's rights or remedies under this Article XVII.
17.9 ASSIGNMENT OF RIGHTS UNDER CONTRACTS.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated pursuant
to Section 17.1, Lessee shall upon Lessor's demand immediately assign, transfer
and set over to Lessor all of Lessee's right, title and interest in and to each
agreement executed by Lessee in connection with the acquisition, installation,
testing, use, development, construction, operation, maintenance, repair,
refurbishment and restoration of the Property (including without limitation all
right, title and interest of Lessee with respect to all warranty, performance,
service and indemnity provisions), as and to the extent that the same relate to
the acquisition, installation, testing, use, development, construction,
operation, maintenance, repair, refurbishment and restoration of the Property
or any of them.
17.10 REMEDIES CUMULATIVE.
The remedies herein provided shall be cumulative and in addition
to (and not in limitation of) any other remedies available at law, equity or
otherwise, including without limitation any mortgage foreclosure remedies.
ARTICLE XVIII
18.1 LESSOR'S RIGHT TO CURE LESSEE'S LEASE DEFAULTS.
Lessor, without waiving or releasing any obligation or Lease
Event of Default, may (but shall be under no obligation to) remedy any Lease
Event of Default for the account and at the sole cost and expense of Lessee,
including without limitation the failure by Lessee to maintain the insurance
required by Article XIV, and may, to the fullest extent permitted by law, and
notwithstanding any right of quiet enjoyment in favor of Lessee, enter upon the
Property, and take all such action thereon as may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of any lessee. All
out-of-pocket costs and expenses so incurred (including without limitation fees
and expenses of counsel), together with interest thereon at the Overdue Rate
from the date on which such sums or expenses are paid by Lessor, shall be paid
by Lessee to Lessor on demand.
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ARTICLE XIX
19.1 PROVISIONS RELATING TO LESSEE'S EXERCISE OF ITS PURCHASE OPTION.
Subject to Section 19.2, in connection with any termination of
this Lease with respect to the Property pursuant to the terms of Section 16.2,
or in connection with Lessee's exercise of its Purchase Option, upon the date
on which this Lease is to terminate with respect to the Property, and upon
tender by Lessee of the amounts set forth in Sections 16.2(b) or 20.2, as
applicable, Lessor shall execute and deliver to Lessee (or to Lessee's
designee) at Lessee's cost and expense an assignment (by deed or other
appropriate instrument) of Lessor's entire interest in such Property, in each
case in recordable form and otherwise in conformity with local custom and free
and clear of any Lessor Liens attributable to Lessor but without any other
warranties (of title or otherwise) from Lessor. Such Property shall be conveyed
to Lessee "AS-IS, "WHERE-IS" and in then present physical condition.
19.2 NO PURCHASE OR TERMINATION WITH RESPECT TO LESS THAN ALL OF THE
PROPERTY.
Lessee shall not be entitled to exercise its Purchase Option or
the Sale Option separately with respect to a portion of the Property consisting
of Land, Equipment, Improvements but shall be required to exercise its Purchase
Option or the Sale Option with respect to the entire Property.
ARTICLE XX
20.1 PURCHASE OPTION OR SALE OPTION-GENERAL PROVISIONS.
Not less than sixty (60) days and no more than one hundred
eighty (180) days prior to the Expiration Date or (respecting the Purchase
Option only) any Payment Date, Lessee may give Lessor irrevocable written
notice (the "Election Notice") that Lessee (or its designee) is electing to
exercise either (a) the option to purchase all, but not less than all, the
Property on the Expiration Date or on the Payment Date specified in the
Election Notice (the "Purchase Option") or (b) with respect to an Election
Notice given in connection with the Expiration Date only, the option to
remarket all, but not less than all, the Property to a Person other than Lessee
or any Affiliate of Lessee and cause a sale of such Property to occur on the
Expiration Date pursuant to the terms of Section 22.1 (the "Sale Option"). If
Lessee does not give an Election Notice indicating the Purchase Option or the
Sale Option at least sixty (60) days and not more than one hundred eighty (180)
days prior to the Expiration Date, then, Lessee shall be deemed to have elected
the Purchase Option. If Lessee shall either (i) elect (or be deemed to have
elected) to exercise the Purchase Option or (ii) elect the Sale Option and fail
to cause all, but not less than all, the Property to be sold in accordance with
the terms of Section 22.1 on the Expiration Date, then in either case Lessee
shall pay to Lessor on the date on which such purchase or sale is scheduled to
occur an amount equal to the Termination Value for all, but not less than all,
the Property (which the parties do not intend to be a "bargain" purchase price)
and, upon receipt of such amounts and satisfaction of such obligations, Lessor
shall transfer to Lessee (or its
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designee) all of Lessor's right, title and interest in and to all, but not less
than all, the Property in accordance with Section 20.2.
20.2 LESSEE PURCHASE OPTION.
Provided, no Default or Event of Default shall have occurred and
be continuing (other than those that will be cured by the payment of the
Termination Value for all the Property) and provided, that the Election Notice
has been appropriately given specifying the Purchase Option, Lessee (or its
designee) shall purchase all the Property on the Expiration Date or Payment
Date at a price equal to the Termination Value for the Property (which the
parties do not intend to be a "bargain" purchase price).
Subject to Section 19.2, in connection with any termination of
this Lease with respect to the Property pursuant to the terms of Section 16.2,
or in connection with Lessee's exercise of its Purchase Option, upon the date
on which this Lease is to terminate with respect to the Property or all of the
Property, and upon tender by Lessee (or its designee) of the amounts set forth
in Section 16.2(b) or this Section 20.2, as applicable, Lessor shall execute,
acknowledge (where required) and deliver to Lessee (or its designee), at
Lessee's cost and expense, each of the following: (a) a termination or
assignment (as requested by the Lessee) of any applicable and special or
limited warranty Deeds conveying the Property to Lessee (or its designee) free
and clear of the Lien of this Lease, the Lien of the Credit Documents and any
Lessor Liens; (b) a ▇▇▇▇ of Sale conveying the Property (to the extent it is
personal property) to Lessee (or its designee) free and clear of the Lien of
this Lease, the Lien of the Credit Documents and any Lessor Liens; (c) any real
estate tax affidavit or other document required by law to be executed and filed
in order to record the applicable Deed; and (d) FIRPTA affidavits. All of the
foregoing documentation must be in form and substance reasonably satisfactory
to Lessor. The applicable Property shall be conveyed to Lessee (or its
designee) "AS-IS, WHERE-IS" and in then present physical condition.
If the Property is the subject of remediation efforts respecting
Hazardous Substances at the Expiration Date which could materially and
adversely impact the Fair Market Sales Value of such Property (with materiality
determined in Lessor's discretion), then Lessee shall be obligated to purchase
the Property pursuant to Section 20.2.
On the Expiration Date and/or any Payment Date on which Lessee
has elected to exercise its Purchase Option, Lessee shall pay (or cause to be
paid) to Lessor, the Agent and all other parties, as appropriate, the sum of
all costs and expenses incurred by any such party in connection with the
election by Lessee to exercise its Purchase Option and all Rent and all other
amounts then due and payable or accrued under this Lease and/or any other
Operative Agreement.
20.3 THIRD PARTY SALE OPTION.
(a) Provided, that (i) no Default or Event of Default shall have
occurred and be continuing and (ii) the Election Notice has been
appropriately given specifying the
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Sale Option, Lessee shall undertake to cause a sale of the Property on
the Expiration Date (all as specified in the Election Notice) in
accordance with the provisions of Section 22.1 hereof. Such Election
Date on which a Sale is required may be hereafter referred to as the
"Sale Date".
(b) In the event Lessee exercises the Sale Option then, as soon
as practicable and in all events not less than sixty (60) days prior
to the Expiration Date, Lessee shall cause to be delivered to Lessor a
Phase I environmental site assessment for the Property recently
prepared (no more than thirty (30) days old prior to the Sale Date) by
an independent recognized professional reasonably acceptable to Lessor
and in form, scope and content reasonably satisfactory to Lessor. In
the event that Lessor shall not have received such environmental site
assessment by the date sixty (60) days prior to the Expiration Date or
in the event that such environmental assessment shall reveal the
existence of any material violation of Environmental Laws, other
material Environmental Violation or potential material Environmental
Violation (with materiality determined in each case by Lessor in its
reasonable discretion), then Lessee on the Expiration Date shall pay
to Lessor an amount equal to the Termination Value for the Property
and any and all other amounts due and owing hereunder. Upon receipt of
such payment and all other amounts due under the Operative Agreements,
Lessor shall transfer to Lessee all of Lessor's right, title and
interest in and to the Property in accordance with Section 19.1.
ARTICLE XXI
21.1 [INTENTIONALLY RESERVED].
ARTICLE XXII
22.1 SALE PROCEDURE.
(a) During the Marketing Period, Lessee, on behalf of Lessor,
shall obtain bids for the cash purchase of the Property in connection
with a sale to one (1) or more third party purchasers to be
consummated on the Sale Date for the highest price available, shall
notify Lessor promptly of the name and address of each prospective
purchaser and the cash price which each prospective purchaser shall
have offered to pay for each such Property and shall provide Lessor
with such additional information about the bids and the bid
solicitation procedure as Lessor may reasonably request from time to
time. All such prospective purchasers must be Persons other than
Lessee or any Affiliate of Lessee. On the Sale Date, Lessee shall pay
(or cause to be paid) to Lessor and all other parties, as appropriate,
all Rent and all other amounts then due and payable or accrued under
this Lease and/or any other Operative Agreement.
Lessor may reject any and all bids and may solicit and obtain
bids by giving Lessee written notice to that effect; provided,
however, that notwithstanding the
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foregoing, Lessor may not reject the bids submitted by Lessee if such
bids, in the aggregate, are greater than or equal to the sum of the
Limited Recourse Amount for all the Property, and represent bona fide
offers from one (1) or more third party purchasers. If the highest
price which a prospective purchaser or the prospective purchasers
shall have offered to pay for all the Property on the Sale Date is
less than the sum of the Limited Recourse Amount for all the Property
or if such bids do not represent bona fide offers from one (1) or more
third parties or if there are no bids, Lessor may elect to retain the
Property by giving Lessee prior written notice of Lessor's election to
retain the same, and promptly upon receipt of such notice, Lessee
shall surrender, or cause to be surrendered, the Property specified in
such notice in accordance with the terms and conditions of Section
10.1. Upon acceptance of any bid, Lessor agrees, at Lessee's request
and expense, to execute a contract of sale with respect to such sale,
so long as the same is consistent with the terms of this Article 22
and provides by its terms that it is nonrecourse to Lessor.
Unless Lessor shall have elected to retain the Property pursuant
to the provisions of the preceding paragraph, Lessee shall arrange for
Lessor to sell the Property free and clear of the Lien of this Lease
and any Lessor Liens attributable to Lessor, without recourse or
warranty (of title or otherwise), for cash on the Sale Date to the
purchaser or purchasers offering the highest cash sales price, as
identified by Lessee or Lessor, as the case may be; provided, however,
solely as to Lessor or the Trust Company, in its individual capacity,
any Lessor Lien shall not constitute a Lessor Lien so long as Lessor
or the Trust Company, in its individual capacity, is diligently and in
good faith contesting, at the cost and expense of Lessor or the Trust
Company, in its individual capacity, such Lessor Lien by appropriate
proceedings in which event the applicable Sale Date, all without
penalty or cost to Lessee, shall be delayed for the period of such
contest. To effect such transfer and assignment, Lessor shall execute,
acknowledge (where required) and deliver to the appropriate purchaser
each of the following: (a) special or limited warranty Deeds conveying
the Property (to the extent it is real property titled to Lessor) to
the appropriate purchaser free and clear of the Lien of this Lease,
the Lien of the Credit Documents and any Lessor Liens; (b) a ▇▇▇▇ of
Sale conveying the Property (to the extent it is personal property)
titled to Lessor to the appropriate purchaser free and clear of the
Lien of this Lease, the Lien of the Credit Documents and any Lessor
Liens; (c) any real estate tax affidavit or other document required by
law to be executed and filed in order to record the Deed; and (d)
FIRPTA affidavits, as appropriate. All of the foregoing documentation
must be in form and substance reasonably satisfactory to Lessor.
Lessee shall surrender the Property so sold or subject to such
documents to each purchaser in the condition specified in Section
10.1, or in such other condition as may be agreed between Lessee and
such purchaser. Lessee shall not take or fail to take any action which
would have the effect of unreasonably discouraging bona fide third
party bids for the Property. If the Property is not either (i) sold on
the Sale Date in accordance with the terms of this Section 22.1, or
(ii) retained by Lessor pursuant to an affirmative election made by
Lessor pursuant to the second sentence of the second paragraph of this
Section 22.1(a), then (x) Lessee shall be obligated to pay Lessor on
the Sale Date an amount equal to the aggregate Termination Value for
the Property less any sales proceeds
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received by the Lessor, and (y) Lessor shall transfer the Property to
Lessee in accordance with Section 20.2.
(b) If the Property is sold on a Sale Date to one (1) or more
third party purchasers in accordance with the terms of Section 22.1(a)
and the aggregate purchase price paid for the Property is less than
the sum of the aggregate Property Cost for the Property (hereinafter
such difference shall be referred to as the "Deficiency Balance"),
then Lessee hereby unconditionally promises to pay to Lessor on the
Sale Date all Rent and all other amounts then due and owing pursuant
to the Operative Agreements and the lesser of (i) the Deficiency
Balance, or (ii) the Maximum Residual Guarantee Amount for the
Property. On a Sale Date if (x) Lessor receives the aggregate
Termination Value for the Property from one (1) or more third party
purchasers, (y) Lessor and such other parties receive all other
amounts specified in the last sentence of the first paragraph of
Section 22.1(a) and (z) the aggregate purchase price paid for all the
Property on such date exceeds the sum of the aggregate Property Cost
for all the Property, then Lessee may retain such excess. If the
Property are retained by Lessor pursuant to an affirmative election
made by Lessor pursuant to the provisions of Section 22.1(a), then
Lessee hereby unconditionally promises to pay to Lessor on the Sale
Date all Rent and all other amounts then due and owing pursuant to the
Operative Agreements and an amount equal to the Maximum Residual
Guarantee Amount for the Property so retained. Any payment of the
foregoing amounts described in this Section 22.1(b) shall be made
together with a payment of all other amounts referenced in the last
sentence of the first paragraph of Section 22.1(a).
(c) In the event that all the Property is either sold to one (1)
or more third party purchasers on the Sale Date or retained by Lessor
in connection with an affirmative election made by Lessor pursuant to
the provisions of Section 22.1(a), then in either case on the
applicable Sale Date Lessee shall provide Lessor or such third party
purchaser (unless otherwise agreed by such third party purchaser) with
(i) all permits, certificates of occupancy, governmental licenses and
authorizations necessary to use, operate, repair, access and maintain
the Property for the purpose it is being used by Lessee, and (ii) such
manuals, permits, easements, licenses, intellectual property,
know-how, rights-of-way and other rights and privileges in the nature
of an easement as are reasonably necessary or desirable in connection
with the use, operation, repair, access to or maintenance of the
Property for its intended purpose or otherwise as Lessor or such third
party purchaser(s) shall reasonably request (and a royalty-free
license or similar agreement to effectuate the foregoing on terms
reasonably agreeable to Lessor or such third party purchaser(s), as
applicable). All assignments, licenses, easements, agreements and
other deliveries required by clauses (i) and (ii) of this paragraph
(c) shall be in form reasonably satisfactory to Lessor or such third
party purchaser(s), as applicable, and shall be fully assignable
(including without limitation both primary assignments and assignments
given in the nature of security) without payment of any fee, cost or
other charge.
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22.2 APPLICATION OF PROCEEDS OF SALE.
In the event Lessee receives any proceeds of sale of the
Property, such proceeds shall be deemed to have been received in trust on
behalf of Lessor and Lessee shall promptly remit such proceeds to Lessor.
Lessor shall apply the proceeds of sale of the Property in the following order
of priority:
(a) FIRST, to pay or to reimburse Lessor (and/or the Agent, as
the case may be) for the payment of all reasonable costs and expenses
incurred by Lessor (and/or the Agent, as the case may be) in
connection with the sale (to the extent Lessee has not satisfied its
obligation to pay such costs and expenses);
(b) SECOND, so long as the Credit Agreement is in effect and any
Loans or Holder Advances or any amount is owing to the Financing
Parties under any Operative Agreement, to the Agent to be applied
pursuant to intercreditor provisions among Lessor, the Lenders and the
Holders contained in the Operative Agreements; and
(c) THIRD, to Lessee.
22.3 INDEMNITY FOR EXCESSIVE WEAR.
If the proceeds of the sale described in Section 22.1 with
respect to the Property shall be less than the Limited Recourse Amount with
respect to the Property, and at the time of such sale it shall have been
reasonably determined (pursuant to the Appraisal Procedure) that the Fair
Market Sales Value of the Property shall have been impaired by greater than
expected wear and tear during the term of the Lease, Lessee shall pay to Lessor
within ten (10) days after receipt of Lessor's written statement (i) the amount
of such excess wear and tear determined by the Appraisal Procedure or (ii) the
amount of the Sale Proceeds Shortfall, whichever amount is less.
22.4 APPRAISAL PROCEDURE.
For determining the Fair Market Sales Value of the Property or
any other amount which may, pursuant to any provision of any Operative
Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use
the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall
endeavor to reach a mutual agreement as to such amount for a period of ten (10)
days from commencement of the Appraisal Procedure under the applicable section
of the Lease, and if they cannot agree within ten (10) days, then two (2)
qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor,
shall mutually agree thereupon, but if either party shall fail to choose an
appraiser within twenty (20) days after notice from the other party of the
selection of its appraiser, then the appraisal by such appointed appraiser
shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree
within twenty (20) days after both shall have been appointed, then a third
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appraiser shall be selected by the two (2) appraisers or, failing agreement as
to such third appraiser within thirty (30) days after both shall have been
appointed, by the American Arbitration Association. The decisions of the three
(3) appraisers shall be given within twenty (20) days of the appointment of the
third appraiser and the decision of the appraiser most different from the
average of the other two (2) shall be discarded and such average shall be
binding on Lessor and Lessee; provided, that if the highest appraisal and the
lowest appraisal are equidistant from the third appraisal, the third appraisal
shall be binding on Lessor and Lessee. The fees and expenses of the appraiser
appointed by Lessee shall be paid by Lessee; the fees and expenses of the
appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses
not being indemnified pursuant to Section 11 of the Participation Agreement);
and the fees and expenses of the third appraiser shall be divided equally
between Lessee and Lessor.
22.5 CERTAIN OBLIGATIONS CONTINUE.
During the Marketing Period, the obligation of Lessee to pay
Rent with respect to the Property (including without limitation the installment
of Basic Rent due on the Expiration Date) shall continue undiminished until
payment in full to Lessor of the sale proceeds, if any, the Maximum Residual
Guarantee Amount, the amount due under Section 22.3, if any, and all other
amounts due to Lessor or any other Person with respect to all Property or any
Operative Agreement. Lessor shall have the right, but shall be under no duty,
to solicit bids, to inquire into the efforts of Lessee to obtain bids or
otherwise to take action in connection with any such sale, other than as
expressly provided in this Article XXII.
ARTICLE XXIII
23.1 HOLDING OVER.
If Lessee shall for any reason remain in possession of the
Property after the expiration or earlier termination of this Lease as to such
Property (unless such Property is conveyed to Lessee), such possession shall be
as a tenancy at sufferance during which time Lessee shall continue to pay
Supplemental Rent that would be payable by Lessee hereunder were the Lease then
in full force and effect with respect to such Property and Lessee shall
continue to pay Basic Rent at the lesser of the highest lawful rate and one
hundred ten percent (110%) of the last payment of Basic Rent due with respect
to such Property prior to such expiration or earlier termination of this Lease.
Such Basic Rent shall be payable from time to time upon demand by Lessor and
such additional amount of Basic Rent shall be applied by Lessor ratably to the
Lenders and the Holders based on their relative amounts of the then outstanding
aggregate Property Cost for the Property. During any period of tenancy at
sufferance, Lessee shall, subject to the second preceding sentence, be
obligated to perform and observe all of the terms, covenants and conditions of
this Lease, but shall have no rights hereunder other than the right, to the
extent given by law to tenants at sufferance, to continue their occupancy and
use of such Property. Nothing contained in this Article XXIII shall constitute
the consent, express or implied, of Lessor to the holding over of Lessee after
the expiration or earlier termination of this Lease as to the Property (unless
such Property is conveyed to Lessee) and nothing contained herein shall be read
or construed as preventing Lessor from maintaining a suit for possession of
such Property or exercising any other remedy available to Lessor at law or in
equity.
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ARTICLE XXIV
24.1 RISK OF LOSS.
During the Term, unless Lessee shall not be in actual possession
of the Property in question solely by reason of Lessor's exercise of its
remedies of dispossession under Article XVII, the risk of loss or decrease in
the enjoyment and beneficial use of such Property as a result of the damage or
destruction thereof by fire, the elements, casualties, thefts, riots, wars or
otherwise is assumed by Lessee, and Lessor shall in no event be answerable or
accountable therefor.
ARTICLE XXV
25.1 ASSIGNMENT.
(a) Lessee may not assign this Lease or any of its rights or
obligations hereunder or with respect to the Property in whole or in
part to any Person without the prior written consent of the Agent, the
Lenders, the Holders and Lessor, which consent shall be in such
parties' absolute discretion. Notwithstanding anything in this Lease
to the contrary, Lessee shall have the right, without obtaining
Lessor's consent, but with prior written notice to the Lessor, to
assign this Lease to an Affiliate, Subsidiary or successor by merger
or transfer of substantially all of Lessee's assets; provided, after
the effective date of such assignment, Lessee shall remain in
compliance with all of its covenants, agreements and obligations under
the Operative Agreements, including without limitation compliance with
the Incorporated Representations and Warranties and the Incorporated
Covenants.
(b) No assignment by Lessee (referenced in this Section 25.1 or
otherwise) or other relinquishment of possession to the Property shall
in any way discharge or diminish any of the obligations of Lessee to
Lessor hereunder and Lessee shall remain directly and primarily liable
under the Operative Agreements as to any rights or obligations
assigned by Lessee or regarding the Property in which rights or
obligations have been assigned or otherwise transferred. In connection
with any such assignment, Guarantor shall reaffirm the guaranties set
forth in Section 6B of the Participation Agreement.
25.2 SUBLEASES.
(a) Promptly, but in any event within five (5) Business Days,
following the execution and delivery of any sublease permitted by this
Article XXV, Lessee shall notify Lessor of the execution of such
sublease. As of the Closing Date, Lessee shall lease the respective
Property described in such Lease Supplement from Lessor, and any
existing tenant respecting such Property shall automatically be deemed
to be a subtenant of Lessee and not a tenant of Lessor.
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(b) Without the prior written consent of the Agent, any Lender,
any Holder or Lessor and subject to the other provisions of this
Section 25.2, Lessee may sublet the Property or portion thereof to any
wholly-owned Subsidiary of Lessee or any other Person reasonably
acceptable to the Agent; provided, (i) all subleasing shall be done on
market terms and shall in no way diminish the fair market value or
useful life of any applicable Property, (ii) no sublease (referenced
in this Section 25.2 or otherwise) or other relinquishment of
possession of the Property shall in any way discharge or diminish any
of Lessee's obligations to Lessor hereunder and Lessee shall remain
directly and primarily liable under this Lease as to the Property, or
portion thereof, so sublet, (iii) the term of any such sublease shall
not extend beyond the Term, and (iv) each sublease shall be expressly
subject and subordinate to this Lease. Except as referenced in the
immediately preceding sentence, no other sublease shall be permitted
unless consented to in writing by Lessor which consent shall not be
unnecessarily withheld, delayed or conditioned. All sublessees shall
be in all respects subject and subordinate to the Lease and shall in
no way diminish the fair market value or useful life of the Property.
(c) No sublease (referenced in this Section 25.2 or otherwise)
or other relinquishment of possession to the Property shall in any way
discharge or diminish any of Lessee's obligations to Lessor hereunder
and Lessee shall remain directly and primarily liable under this Lease
as to such Property, or portion thereof, so sublet.
ARTICLE XXVI
26.1 NO WAIVER.
No failure by Lessor or Lessee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy upon a
default hereunder, and no acceptance of full or partial payment of Rent during
the continuance of any such default, shall constitute a waiver of any such
default or of any such term. To the fullest extent permitted by law, no waiver
of any default shall affect or alter this Lease, and this Lease shall continue
in full force and effect with respect to any other then existing or subsequent
default.
ARTICLE XXVII
27.1 ACCEPTANCE OF SURRENDER.
No surrender to Lessor of this Lease or of all or any portion of
the Property or of any part of any thereof or of any interest therein shall be
valid or effective unless agreed to and accepted in writing by Lessor and no
act by Lessor or the Agent or any representative or agent of Lessor or the
Agent, other than a written acceptance, shall constitute an acceptance of any
such surrender.
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27.2 NO MERGER OF TITLE.
There shall be no merger of this Lease or of the leasehold
estate created hereby by reason of the fact that the same Person may acquire,
own or hold, directly or indirectly, in whole or in part, (a) this Lease or the
leasehold estate created hereby or any interest in this Lease or such leasehold
estate, (b) any right, title or interest in the Property, (c) any Notes, or (d)
a beneficial interest in Lessor.
ARTICLE XXVIII
28.1 INCORPORATION OF COVENANTS.
Reference is made to the Lessee Credit Agreement and the
representations and warranties contained in Article VII of the Lessee Credit
Agreement and the covenants contained in Articles VIII and IX of the Lessee
Credit Agreement. Such representations and warranties and such covenants, other
than (a) those solely relating to an earlier point in time, (b) those
concerning only the Lessee Credit Agreement facility or related loan documents
and which could not, under any reasonable interpretation, be deemed applicable
in connection with the transactions contemplated under the Operative
Agreements, and (c) those the subject matter of which is already covered by a
provision contained in Section 6.2 of the Participation Agreement (in the case
of representations and warranties) or Section 8.3 of the Participation
Agreement (in the case of such covenants), shall hereinafter be referred to as
the "Incorporated Representations and Warranties" and the "Incorporated
Covenants," respectively. Lessee agrees with Lessor that the Incorporated
Representations and Warranties and the Incorporated Covenants (and all other
relevant provisions of the Lessee Credit Agreement related thereto, including
without limitation the defined terms contained in Article I thereof which are
used in the Incorporated Representations and Warranties and the Incorporated
Covenants, hereinafter referred to as the "Additional Incorporated Terms") are
hereby incorporated by reference into this Lease to the same extent and with
the same effect as if set forth fully herein and shall inure to the benefit of
Lessor, without giving effect to any waiver, amendment, modification or
replacement of the Lessee Credit Agreement or any term or provision of the
Incorporated Representations and Warranties or the Incorporated Covenants
occurring subsequent to the date of this Lease, except to the extent otherwise
specifically provided in the following provisions of this paragraph. Lessee
shall be deemed to make each of the Incorporated Representations and Warranties
as to the parties and the matters specified therein and agrees to cause
Guarantor, and to the extent applicable, its Subsidiaries, to comply with the
Incorporated Covenants as to the matters specified therein, except that the
term "Material Adverse Effect" as used therein shall mean Material Adverse
Effect as defined in Appendix A to the Participation Agreement, the terms
"Agent," "Required Lenders," and "Lenders" as used therein (except as used in
Sections 9.3(a), 9.4(b), and 9.16 thereof), shall mean the Lessor, the terms
"Default" or "Event of Default" shall mean Default or Event of Default as
defined in Appendix A to the Participation Agreement, and the term "Loan
Documents" as used in Section 9.7 shall mean the Operative Agreements, unless,
in any case, such interpretation is inappropriate under any reasonable
interpretation. In the event a waiver is granted under the Lessee Credit
Agreement or an amendment or modification is
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executed with respect to the Lessee Credit Agreement, and such waiver,
amendment and/or modification affects the Incorporated Representations and
Warranties, the Incorporated Covenants or the Additional Incorporated Terms,
then such waiver, amendment or modification shall be effective with respect to
the Incorporated Representations and Warranties, the Incorporated Covenants and
the Additional Incorporated Terms as incorporated by reference into this Lease
only if consented to in writing by the Agent (acting upon the direction of the
Majority Secured Parties). In the event of any replacement of the Lessee Credit
Agreement with a similar credit facility (the "New Facility") the
representations and warranties, covenants and additional terms contained in the
New Facility which correspond to the representations and warranties, covenants
contained in Article VII and Articles VIII and IX, respectively, and such
additional terms (each of the foregoing contained in the Lessee Credit
Agreement) shall become the Incorporated Representations and Warranties, the
Incorporated Covenants and the Additional Incorporated Terms only if consented
to in writing by the Agent (acting upon the direction of the Majority Secured
Parties) and, if such consent is not granted or if the Lessee Credit Agreement
is terminated and not replaced, then the representations and warranties and
covenants contained in Article VII and Articles VIII and IX, respectively, and
such additional terms (each of the foregoing contained in the Lessee Credit
Agreement (together with any modifications or amendments approved in accordance
with this paragraph)) shall continue to be the Incorporated Representations and
Warranties, the Incorporated Covenants and the Additional Incorporated Terms
hereunder.
ARTICLE XXIX
29.1 NOTICES.
All notices required or permitted to be given under this Lease
shall be in writing and delivered as provided in the Participation Agreement.
ARTICLE XXX
30.1 MISCELLANEOUS.
Anything contained in this Lease to the contrary
notwithstanding, all claims against and liabilities of Lessee or Lessor arising
from events commencing prior to the expiration or earlier termination of this
Lease shall survive such expiration or earlier termination. If any provision of
this Lease shall be held to be unenforceable in any jurisdiction, such
unenforceability shall not affect the enforceability of any other provision of
this Lease and such jurisdiction or of such provision or of any other provision
hereof in any other jurisdiction.
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30.2 AMENDMENTS AND MODIFICATIONS.
Neither this Lease nor any Lease Supplement may be amended,
waived, discharged or terminated except in accordance with the provisions of
Section 12.4 of the Participation Agreement.
30.3 SUCCESSORS AND ASSIGNS.
All the terms and provisions of this Lease shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
30.4 HEADINGS AND TABLE OF CONTENTS.
The headings and table of contents in this Lease are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
30.5 COUNTERPARTS.
This Lease may be executed in any number of counterparts, each
of which shall be an original, but all of which shall together constitute one
(1) and the same instrument.
30.6 GOVERNING LAW.
THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, EXCEPT TO
THE EXTENT THE LAWS OF THE STATE WHERE A PARTICULAR PROPERTY IS LOCATED ARE
REQUIRED TO APPLY.
30.7 CALCULATION OF RENT.
All calculation of Rent payable hereunder shall be computed
based on the actual number of days elapsed over a year of three hundred sixty
(360) days or, to the extent such Rent is based on the Prime Lending Rate,
three hundred sixty-five (365) (or three hundred sixty-six (366), as
applicable) days.
30.8 MEMORANDA OF LEASE AND LEASE SUPPLEMENTS.
This Lease shall not be recorded; provided, Lessor and Lessee
shall promptly record (a) a memorandum of this Lease and the applicable Lease
Supplement (in substantially the form of Exhibit B attached hereto) or a short
form lease (in form and substance reasonably satisfactory to Lessor) regarding
the Property promptly after the acquisition thereof in the local filing office
with respect thereto and as required under applicable law to sufficiently
evidence this Lease and any such Lease Supplement in the applicable real estate
filing records.
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30.9 ALLOCATIONS BETWEEN THE LENDERS AND THE HOLDERS.
Notwithstanding any other term or provision of this Lease to the
contrary, the allocations of the proceeds of the Property and any and all other
Rent and other amounts received hereunder shall be subject to the
inter-creditor provisions between the Lenders and the Holders contained in the
Operative Agreements (or as otherwise agreed among the Lenders and the Holders
from time to time).
30.10 LIMITATIONS ON RECOURSE.
Notwithstanding anything contained in this Lease to the
contrary, Lessee agrees to look solely to Lessor's estate and interest in the
Property (and in no circumstance to the Agent, the Lenders, the Holders, the
Owner Trustee, the Trust Company or otherwise to Lessor) for the collection of
any judgment requiring the payment of money by Lessor in the event of liability
by Lessor, and no other property or assets of Lessor or any shareholder, owner
or partner (direct or indirect) in or of Lessor, or any director, officer,
employee, beneficiary, Affiliate of any of the foregoing shall be subject to
levy, execution or other enforcement procedure for the satisfaction of the
remedies of Lessee under or with respect to this Lease, the relationship of
Lessor and Lessee hereunder or Lessee's use of the Property or any other
liability of Lessor to Lessee. Nothing in this Section shall be interpreted so
as to limit the terms of Sections 6.1 or 6.2 or the provisions of Section 12.9
of the Participation Agreement.
30.11 WAIVERS OF JURY TRIAL.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY, TO
THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE AND FOR ANY
COUNTERCLAIM THEREIN.
30.12 EXERCISE OF LESSOR RIGHTS.
Lessee hereby acknowledges and agrees that the rights and powers
of Lessor under this Lease have been assigned to the Agent pursuant to the
terms of the Security Agreement and the other Operative Agreements. Lessor and
Lessee hereby acknowledge and agree that (a) the Agent shall, in its
discretion, direct and/or act on behalf of Lessor pursuant to the provisions of
Sections 8.2(h) and 8.6 of the Participation Agreement, (b) all notices to be
given to Lessor shall be given to the Agent and (c) all notices to be given by
Lessor may be given by the Agent, at its election.
30.13 SUBMISSION TO JURISDICTION; VENUE.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO
SUBMISSION TO JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE
HEREIN, MUTATIS MUTANDIS.
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30.14 USURY SAVINGS PROVISION.
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND
CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN
EFFECT. TO THE EXTENT ANY RENT OR PAYMENTS HEREUNDER ARE HEREINAFTER
CHARACTERIZED BY ANY COURT OF COMPETENT JURISDICTION AS THE REPAYMENT OF
PRINCIPAL AND INTEREST THEREON, THIS SECTION 30.14 SHALL APPLY. ANY SUCH RENT
OR PAYMENTS SO CHARACTERIZED AS INTEREST MAY BE REFERRED TO HEREIN AS
"INTEREST." ALL AGREEMENTS AMONG THE PARTIES HERETO ARE HEREBY LIMITED BY THE
PROVISIONS OF THIS PARAGRAPH WHICH SHALL OVERRIDE AND CONTROL ALL SUCH
AGREEMENTS, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER WRITTEN OR
ORAL. IN NO WAY, NOR IN ANY EVENT OR CONTINGENCY (INCLUDING WITHOUT LIMITATION
PREPAYMENT OR ACCELERATION OF THE MATURITY OF ANY OBLIGATION), SHALL ANY
INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR RECEIVED UNDER THIS LEASE
OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER
APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF ANY OF THE OPERATIVE
AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST WOULD OTHERWISE BE
PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY SUCH CONSTRUCTION
SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH AMOUNTS UNDER
SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED TO THE MAXIMUM
NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW, WITHOUT THE NECESSITY OF
EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT. IF LESSOR SHALL EVER
RECEIVE ANYTHING OF VALUE WHICH IS CHARACTERIZED AS INTEREST WITH RESPECT TO
THE OBLIGATIONS OWED HEREUNDER OR UNDER APPLICABLE LAW AND WHICH WOULD, APART
FROM THIS PROVISION, BE IN EXCESS OF THE MAXIMUM LAWFUL AMOUNT, AN AMOUNT EQUAL
TO THE AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE INTEREST SHALL, WITHOUT PENALTY,
BE APPLIED TO THE REDUCTION OF THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL
AND NOT TO THE PAYMENT OF INTEREST, OR REFUNDED TO LESSEE OR ANY OTHER PAYOR
THEREOF, IF AND TO THE EXTENT SUCH AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE
EXCEEDS THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL. THE RIGHT TO DEMAND
PAYMENT OF ANY AMOUNTS EVIDENCED BY ANY OF THE OPERATIVE AGREEMENTS DOES NOT
INCLUDE THE RIGHT TO RECEIVE ANY INTEREST WHICH HAS NOT OTHERWISE ACCRUED ON
THE DATE OF SUCH DEMAND, AND LESSOR DOES NOT INTEND TO CHARGE OR RECEIVE ANY
UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND. ALL INTEREST PAID OR AGREED TO
BE PAID TO LESSOR SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE
AMORTIZED, PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED TERM
(INCLUDING WITHOUT LIMITATION ANY RENEWAL OR EXTENSION) OF THIS LEASE SO THAT
THE AMOUNT OF INTEREST ON ACCOUNT
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OF SUCH PAYMENTS DOES NOT EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED BY
APPLICABLE LAW.
[signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Lease to be
duly executed and delivered as of the date first above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as the Owner Trustee under the
Dolphin Realty Trust 1999-1, as Lessor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CATALINA MARKETING SALES CORPORATION,
as Lessee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Receipt of this original
counterpart of the foregoing
Lease is hereby acknowledged
as the date hereof
FIRST UNION NATIONAL BANK,
as the Agent
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
47
EXHIBIT A TO THE LEASE
LEASE SUPPLEMENT NO. ___
THIS LEASE SUPPLEMENT NO. ___ (this "Lease Supplement") dated as of
________, between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not individually, but solely as the Owner Trustee under the
Dolphin Realty Trust 1999-1, as lessor (the "Lessor") and Catalina Marketing
SALES Corporation, a Delaware corporation, as lessee (the "Lessee").
WHEREAS, Lessor is the owner or will be the owner of the Property
described on Schedule 1 hereto (the "Leased Property") and wishes to lease the
same to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS; RULES OF USAGE. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in Appendix A to the Participation
Agreement, dated as of October 21, 1999, among Lessee, Catalina Marketing
Corporation, as Guarantor, Lessor, not individually, except as expressly stated
therein, but solely as the Owner Trustee under the Dolphin Realty Trust 1999-1,
the various banks and other lending institutions which are parties thereto from
time to time, as the Holders, the various banks and other lending institutions
which are parties thereto from time to time, as the Lenders, and First Union
National Bank, as the Agent for the Lenders and respecting the Security
Documents, as the Agent for the Lenders and Holders, to the extent of their
interests, as such may be amended, modified, extended, supplemented, restated
and/or replaced from time to time.
SECTION 2. THE PROPERTY. Attached hereto as Schedule 1 is the
description of the Leased Property, with an Equipment Schedule attached hereto
as Schedule 1-A, an Improvement Schedule attached hereto as Schedule 1-B and a
legal description of the Land attached hereto as Schedule 1-C. Effective upon
the execution and delivery of this Lease Supplement by Lessor and Lessee, the
Leased Property shall be subject to the terms and provisions of the Lease.
Without further action, any and all additional Equipment funded under the
Operative Agreements and any and all additional Improvements made to the Land
shall be deemed to be titled to the Lessor and subject to the terms and
conditions of the Lease and this Lease Supplement.
This Lease Supplement shall constitute a mortgage, deed of trust,
security agreement and financing statement under the laws of the state in which
the Leased Property is situated. The maturity date of the obligations secured
hereby shall be the Basic Term Expiration Date.
For purposes of provisions of the Lease and this Lease Supplement
related to the creation and enforcement of the Lease and this Lease Supplement
as a security agreement and a fixture
A-1
48
filing, Lessee is the debtor and Lessor is the secured party. The mailing
addresses of the debtor (Lessee herein) and of the secured party (Lessor
herein) from which information concerning security interests hereunder may be
obtained are set forth on the signature pages hereto. A carbon, photographic or
other reproduction of the Lease and this Lease Supplement or of any financing
statement related to the Lease and this Lease Supplement shall be sufficient as
a financing statement for any of the purposes referenced herein.
SECTION 3. USE OF PROPERTY. At all times during the Term with respect
to the Property, Lessee will comply with all obligations under and (to the
extent no Event of Default exists and provided, that such exercise will not
impair the value of such Property) shall be permitted to exercise all rights
and remedies under, all operation and easement agreements and related or
similar agreements applicable to such Property.
SECTION 4. RATIFICATION; INCORPORATION BY REFERENCE. Except as
specifically modified hereby, the terms and provisions of the Lease and the
Operative Agreements are hereby ratified and confirmed and remain in full force
and effect. The Lease is hereby incorporated herein by reference as though
restated herein in its entirety.
SECTION 5. ORIGINAL LEASE SUPPLEMENT. The single executed original of
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the original
executed counterpart of this Lease Supplement (the "Original Executed
Counterpart"). To the extent that this Lease Supplement constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY
AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE
OF North Carolina, EXCEPT TO THE EXTENT THE LAWS OF THE STATE WHERE A
PARTICULAR PROPERTY IS LOCATED ARE REQUIRED TO APPLY.
SECTION 7. MORTGAGE; POWER OF SALE. Without limiting any other
remedies set forth in the Lease, in the event that a court of competent
jurisdiction rules that the Lease constitutes a mortgage, deed of trust or
other secured financing as is the intent of the parties, then Lessor and Lessee
agree that Lessee hereby grants a Lien against the Leased Property WITH POWER
OF SALE, and that, upon the occurrence of any Lease Event of Default, Lessor
shall have the power and authority, to the extent provided by law, after prior
notice and lapse of such time as may be required by law, to foreclose its
interest (or cause such interest to be foreclosed) in all or any part of the
Leased Property.
SECTION 8. COUNTERPART EXECUTION. This Lease Supplement may be
executed in any number of counterparts and by each of the parties hereto in
separate counterparts, all such counterparts together constituting but one (1)
and the same instrument.
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49
For purposes of the provisions of this Lease Supplement concerning
this Lease Supplement constituting a security agreement and fixture filing, the
addresses of the debtor (Lessee herein) and the secured party (Lessor herein),
from whom information may be obtained about this Lease Supplement, are as set
forth on the signature pages hereto.
[The remainder of this page has been intentionally left blank.]
A-3
50
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of
the date and year first above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as the Owner Trustee under the
Dolphin Realty Trust 1999-1, as Lessor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
First Security Bank,
National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇
Vice President
CATALINA MARKETING SALES CORPORATION,
as Lessee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Catalina Marketing Sales Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
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51
Receipt of this original
counterpart of the foregoing Lease
Supplement is hereby acknowledged
as the date hereof.
FIRST UNION NATIONAL BANK, as the Agent
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
First Union National Bank
c/o First Union Capital Markets Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
A-5
52
[CONFORM TO STATE LAW REQUIREMENTS]
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of FIRST SECURITY
BANK, NATIONAL ASSOCIATION, a national banking association, not individually,
but solely as the Owner Trustee under the Dolphin Realty Trust 1999-1, on
behalf of the Owner Trustee.
[Notarial Seal]
----------------------------------------
Notary Public
My commission expires:
---------------
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of CATALINA
MARKETING SALES CORPORATION, a Delaware corporation, on behalf of the
corporation.
[Notarial Seal]
----------------------------------------
Notary Public
My commission expires:
---------------
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the
undersigned Notary Public, in the County of ________________ this ____ day of
___________, by _____________, as __________________ of FIRST UNION NATIONAL
BANK, a national banking association, as the Agent.
[Notarial Seal]
----------------------------------------
Notary Public
My commission expires:____________
A-6
53
SCHEDULE 1
TO LEASE SUPPLEMENT NO. ____
(Description of the Leased Property)
A-7
54
SCHEDULE 1-A
TO LEASE SUPPLEMENT NO. ____
(Equipment)
A-8
55
SCHEDULE 1-B
TO LEASE SUPPLEMENT NO. ____
(Improvements)
A-9
56
SCHEDULE 1-C
TO LEASE SUPPLEMENT NO. ____
[(LAND)]
A-10
57
EXHIBIT B TO THE LEASE
Prepared by and after
recordation return to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Space above this line for Recorder's use
-------------------------------------------------------------------------------
MEMORANDUM OF LEASE AGREEMENT
AND
LEASE SUPPLEMENT NO. 1
THIS MEMORANDUM OF LEASE AGREEMENT AND LEASE SUPPLEMENT NO. 1
("Memorandum"), dated as of _____________, _____, is by and between FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not
individually, but solely as the Owner Trustee under the Dolphin Realty Trust
1999-1, with an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Lessor") and CATALINA MARKETING SALES CORPORATION,
a Delaware corporation, with an office at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Lessee").
WITNESSETH:
That for value received, Lessor and Lessee do hereby covenant, promise
and agree as follows:
1. DEMISED PREMISES AND DATE OF LEASE. Lessor has leased to Lessee,
and Lessee has leased from Lessor, for the Term (as hereinafter defined),
certain real property and other property located in ________________ County,
Florida which is described in the attached Schedule 1 (the "Property"),
pursuant to the terms of a Lease Agreement between Lessor and Lessee dated as
of October 21, 1999 (as such may be amended, modified, extended, supplemented,
restated and/or replaced from time to time, "Lease") and a Lease Supplement No.
_____ between Lessor and Lessee dated as of ______________ (the "Lease
Supplement").
2. TERM AND PURCHASE OPTION. The term of the Lease for the Property
("Term") commenced as of __________, 19__ and shall end as of _________, 19__,
unless the Term is extended or earlier terminated in accordance with the
provisions of the Lease. The tenant has a purchase option under the Lease.
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58
3. TAX PAYER NUMBERS.
Lessor's tax payer number: __________________.
Lessee's tax payer number: __________________.
4. EFFECT OF MEMORANDUM. The purpose of this instrument is to give
notice of the Lease and the Lease Supplement and their respective terms,
covenants and conditions. This Memorandum shall not modify in any manner the
terms, conditions or intent of the Lease or the Lease Supplement and the
parties agree that this Memorandum is not intended nor shall it be used to
interpret the Lease or the Lease Supplement or determine the intent of the
parties under the Lease or the Lease Supplement.
[The remainder of this page has been intentionally left blank.]
B-2
59
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LESSOR:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as the Owner Trustee under the
Dolphin Realty Trust 1999-1
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
First Security Bank,
National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇
Vice President
LESSEE:
CATALINA MARKETING SALES CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Catalina Marketing Sales Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
60
STATE OF ____________ ss.
ss.
COUNTY OF ___________ ss.
The foregoing instrument was acknowledged before me this _____ day of
____________, _____ by __________ as ________ of First Security Bank, National
Association, a national banking association, not individually but solely as
Owner Trustee under the Dolphin Realty Trust 1999-1, on behalf of the national
banking association. He/she personally appeared before me and is/are personally
known to me or produced _________________ as identification.
Notary:
---------------------------------
[NOTARIAL SEAL] Printed Name:
---------------------------
Notary Public, State of
-----------------
61
STATE OF ____________ ss.
ss.
COUNTY OF ___________ ss.
The foregoing instrument was acknowledged before me this _____ day of
____________, ____ by __________ as ________ of Catalina Marketing Sales
Corporation, a ____________ corporation, on behalf of the corporation. He/she
personally appeared before me and is/are personally known to me or produced
_________________ as identification.
Notary:
---------------------------------
[NOTARIAL SEAL] Printed Name:
---------------------------
Notary Public, State of
-----------------
62
SCHEDULE 1
(Description of Property)