EXHIBIT 10.24
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LEASE AGREEMENT
dated as of March 18, 1994
between
▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
not in his individual capacity but solely as the
Individual Owner Trustee of
Equifax Business Trust No. 1994-A,
as Lessor
and
EQUIFAX INC.,
as Lessee
Leveraged Lease of the ▇. ▇. ▇▇▇▇▇ Technology Center
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CERTAIN RIGHTS OF THE LESSOR UNDER THIS LEASE AGREEMENT HAVE BEEN ASSIGNED TO,
AND ARE SUBJECT TO A LIEN AND SECURITY INTEREST IN FAVOR OF, NATIONSBANK OF
GEORGIA, NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE, UNDER THE TRUST INDENTURE
DATED AS OF MARCH 18, 1994, BETWEEN THE LESSOR AND THE INDENTURE TRUSTEE, UNDER
THE DEED TO SECURE DEBT AND SECURITY AGREEMENT DATED AS OF MARCH 18, 1994,
BETWEEN THE LESSOR AND THE INDENTURE TRUSTEE AND UNDER THE ASSIGNMENT OF RENTS
AND LEASES DATED AS OF MARCH 18, 1994 BETWEEN THE LESSOR AND THE INDENTURE
TRUSTEE, AS SUCH TRUST INDENTURE, DEED TO SECURE DEBT AND SECURITY AGREEMENT AND
ASSIGNMENT OF RENTS AND LEASES MAY BE AMENDED, MODIFIED OR SUPPLEMENTED FROM
TIME TO TIME IN ACCORDANCE WITH THE PROVISIONS THEREOF. THIS LEASE AGREEMENT HAS
BEEN EXECUTED IN SEVERAL COUNTERPARTS. TO THE EXTENT 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 HEREOF OTHER THAN THE "ORIGINAL EXECUTED COUNTERPART", WHICH SHALL
BE IDENTIFIED AS THE COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY THE
INDENTURE TRUSTEE ON OR FOLLOWING THE SIGNATURE PAGE THEREOF. SEE SECTION 22(e)
FOR FURTHER INFORMATION CONCERNING THE RESPECTIVE RIGHTS OF THE INDENTURE
TRUSTEE AND THE NOTEHOLDERS.
THIS COUNTERPART [IS NOT] THE SOLE EXECUTED CHATTEL PAPER ORIGINAL.
TABLE OF CONTENTS
Page
SECTION 1. Definitions................................................. -1-
SECTION 2. Lease; Lease Term........................................... -1-
(a) Lease..................................................... -1-
(b) Lease Term................................................ -2-
SECTION 3. Rent; Adjustments to Rent................................... -2-
(a) Interim Term.............................................. -2-
(b) Basic Rent................................................ -2-
(c) Supplemental Rent......................................... -3-
(d) Method of Payment......................................... -4-
(e) Adjustments to Rent....................................... -5-
(f) Computation of Adjustments................................ -6-
(g) Sufficiency of Basic Rent and Supplemental Rent........... -7-
SECTION 4. Net Lease................................................... -7-
SECTION 5. Return...................................................... -9-
SECTION 6. Warranty of the Lessor...................................... -11-
(a) Quiet Enjoyment........................................... -11-
(b) Disclaimer of Other Warranties............................ -12-
(c) Enforcement of Certain Warranties......................... -13-
(d) Title Insurance........................................... -13-
SECTION 7. Liens....................................................... -14-
SECTION 8. Operation and Maintenance; Modifications ................... -15-
(a) Operation and Maintenance................................. -15-
(b) Inspection................................................ -16-
(c) Modifications............................................. -17-
(d) Title to Modifications.................................... -18-
(e) Removal or Replacement of Property........................ -19-
(f) Trade and Other Fixtures.................................. -20-
(g) Contest of Taxes or Requirements of Law................... -21-
(h) Reports................................................... -22-
(i) Environmental Compliance.................................. -22-
SECTION 9. Event of Loss............................................... -24-
(a) Events of Loss; Notice.................................... -24-
(b) Repair.................................................... -25-
(c) Event of Loss During the Interim Term and Basic Term...... -26-
(d) Termination of Lease Term................................. -26-
(e) Event of Loss During any Renewal Term..................... -27-
(f) Application of Payments on an Event of Loss............... -27-
(g) Application of Payments Not Relating to an Event of
Loss ..................................................... -28-
(h) Application During Lease Event of Default ................ -30-
Page
SECTION 10. Insurance.................................................. -31-
(a) Required Insurance........................................ -31-
(b) Other Insurance........................................... -34-
(c) Insurance to be Commercially Available.................... -34-
(d) Self Insurance............................................ -34-
SECTION 11. Rights To Assign or Sublease; Assignment as
Security; Attornment....................................... -35-
(a) Sublease by the Lessee..................................... -35-
(b) Assignment by the Lessee .................................. -36-
(c) Security for Lessor's Obligation to Noteholders............ -37-
(d) Assignments by the Lessor.................................. -37-
SECTION 12. Lease Renewal.............................................. -38-
(a) Option for Fixed-Rate Renewal.............................. -38-
(b) Fair Market Renewal Options................................ -38-
(c) Short-Term Lease Extensions................................ -38-
(d) Notice at Expiration of Lease Term......................... -39-
(e) Elections Irrevocable...................................... -39-
(f) Determination of Fair Market Rental Value.................. -39-
(g) Assistance with Disposition................................ -39-
SECTION 13. Burdensome Buyout Purchase Right........................... -40-
(a) Burdensome Buyout Purchase Right........................... -40-
(b) Notice..................................................... -41-
(c) Determination of Fair Market Sales Value................... -41-
SECTION 14. Early Termination; Obsolescence or Uneconomic
Usefulness Termination..................................... -42-
(a) Obsolescence or Uneconomic Usefulness Termination.......... -42-
(b) Early Termination.......................................... -46-
SECTION 15. Lease Events of Default.................................... -47-
SECTION 16. Remedies................................................... -49-
(a) Remedies................................................... -49-
(b) No Release................................................. -52-
(c) Remedies Cumulative........................................ -53-
SECTION 17. Notices.................................................... -53-
SECTION 18. Successors and Assigns..................................... -53-
SECTION 19. Right of First Offer....................................... -53-
(a) Grant of Right of First Offer.............................. -53-
(b) Savings Clause............................................. -55-
SECTION 20. Right To Perform for Lessee................................ -55-
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Page
SECTION 21. Rejectable Offers.......................................... -56-
(a) Amendments in Writing...................................... -62-
(b) Survival................................................... -62-
(c) Severability of Provisions................................. -63-
(d) True Lease................................................. -63-
(e) Original Lease............................................. -63-
(f) Governing Law.............................................. -63-
(g) Headings................................................... -63-
(h) Estoppel Certificates...................................... -63-
(i) Concerning the Trust....................................... -64-
(j) Counterpart Execution...................................... -65-
(k) Time is of the Essence..................................... -65-
(l) Costs of Transfer.......................................... -65-
Schedule 1............................................................. -68-
Basic Rent Schedule............................................. -68-
Schedule 2............................................................. -69-
Stipulated Loss Value Schedules................................. -69-
2.1 Stipulated Loss Value Schedule During Basic Term . -69-
2.2 Stipulated Loss Value Schedule for Lessor
Designated Event Price and OP Designated
Event Price ...................................... -69-
2.3 Stipulated Loss Value Schedule for Burdensome Buyout
Purchase Price During Renewal Terms .............. -69-
Schedule 3............................................................. -70-
Pricing Assumptions............................................. -70-
Schedule 4............................................................. -71-
Trade Fixtures.................................................. -71-
Exhibit A Description of Project
Exhibit B Form of Lease Supplement
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EXHIBIT 10.24
LEASE AGREEMENT
LEASE AGREEMENT (this "Lease"), dated as of March 18, 1994, between
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his individual capacity, but solely as Individual Owner
Trustee of Equifax Business Trust No. 1994-A, a Delaware business trust (the
"Lessor") and EQUIFAX INC., a Georgia corporation (the "Lessee").
W I T N E S S E T H:
WHEREAS, the Lessor owns the Project; and
WHEREAS, the Lessee desires to lease from the Lessor the Project,
upon the terms and subject to the conditions set forth herein; and
WHEREAS, the Lessor is willing to lease the Project to the Lessee
upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of 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. For purposes of this Lease (including the
foregoing recitals), capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in Appendix A to the
Participation Agreement of even date herewith among Alphafax Properties Limited
Partnership, as a Seller, Equifax Inc., as a Seller and Lessee, Equifax
Properties, Inc., as General Partner, First Chicago Leasing Corporation, as
Owner Participant, Equifax Business Trust No. 1994-A, as the Trust, Wilmington
Trust Company, as Corporate Owner Trustee, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Individual Owner
Trustee, NationsBank of Georgia, National Association, as Indenture Trustee, and
Trust Company Bank, as Lender, as such Appendix may be amended from time to time
in accordance with the terms of the Participation Agreement. Unless otherwise
indicated, references in this Lease to sections, paragraphs, clauses,
appendices, schedules and exhibits are to the same contained in or attached to
this Lease.
SECTION 2. Lease; Lease Term.
(a) Lease. Upon the terms and subject to the conditions of this
Lease and subject to the Permitted Exceptions and to the terms and conditions of
the other Transaction Documents, the Lessor hereby grants and leases to the
Lessee, and the Lessee hereby takes and leases from the Lessor, the Project. The
interest in the Project granted by Lessor to Lessee by this Lease is an estate
for years under Georgia law.
(b) Lease Term. The term of this Lease shall be as follows:
(i) Interim Term. The interim term (the "Interim Term") shall
commence on the Closing Date and shall terminate at the end of
August 31, 1994, unless this Lease is earlier terminated in
accordance with its terms.
(ii) Basic Term. The basic term (the "Basic Term") shall
commence on September 1, 1994, and shall terminate at 11:59 p.m.
(Atlanta time) on March 1, 2012, unless this Lease is earlier
terminated in accordance with its terms.
(iii) Extension of Lease. The Lease Term is subject to further
extension pursuant to Section 12 hereof.
(c) Description. The Project to be leased on the Closing Date is
described on Exhibit A.
(d) Lease Supplement. On the Closing Date, the Lessee shall enter
into a Lease Supplement in the form of Exhibit B with the Lessor, which Lease
Supplement shall (i) state that the Lessee has had an opportunity to inspect and
has inspected the Project, (ii) describe the Project, (iii) set forth the
Purchase Price, and (iv) if appropriate, set out revised Schedules 1 and 2 if
and to the extent rental adjustments have been made on the Closing Date pursuant
to Section 3.
(e) Risk of Loss. Upon the execution and delivery of this Lease and
any Lease Supplement on the Closing Date, all risk of loss with respect to the
Project shall pass to the Lessee.
SECTION 3. Rent; Adjustments to Rent.
(a) Interim Term. No Rent, other than Supplemental Rent, if any,
shall be due and payable by the Lessee to the Lessor during the Interim Term.
(b) Basic Rent. The Lessee shall pay to the Corporate Owner Trustee
for the account of the Lessor, as basic rent (hereinafter referred to as "Basic
Rent"), the following amounts:
(i) on each Basic Rent Payment Date occurring during the Basic
Term, an amount equal to (A) the Purchase Price multiplied by (B)
the percentages set forth opposite such Basic Rent Payment Date on
Schedule 1 to this Lease in advance or arrears as set forth in such
Schedule 1, as such Schedule 1 may (subject always to Section 3(g)
hereof) be amended by any Lease Supplement, plus or minus the Basic
Rent Differential Amount;
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(ii) on each Basic Rent Payment Date occurring during any
Fixed-Rate Renewal Term, an amount determined in accordance with
Section 12(a);
(iii) on each Basic Rent Payment Date occurring during any
Fair Market Renewal Term, an amount determined in accordance with
Section 12(b); and
(iv) on each Basic Rent Payment Date occurring during any
Short-Term Renewal, an amount determined in accordance with Section
12(c).
(c) Supplemental Rent. The Lessee shall pay as supplemental rent
(herein referred to as "Supplemental Rent"), the following amounts:
(i) when due, any amount payable hereunder as Stipulated Loss
Value as herein provided;
(ii) when due, to or for the account of the Lessor (or any
trustee or co-trustee or additional trustee appointed pursuant to
the Trust Agreement) amounts equal to any amounts payable by the
Lessor in respect of the Make Whole Amount and any other amounts
(other than principal and interest) payable on the Notes or under
the Indenture (including without limitation amounts payable under
Section 2.9, 2.10 and 2.11 thereof);
(iii) when due, or if no due date is specified on demand
therefor, any amount (other than those sums described in clauses (i)
and (ii) above) that the Lessee is obliged to pay to, or for the
account of, the Lessor (or any trustee or co-trustee or additional
trustee appointed pursuant to the Trust Agreement), the Owner
Participant, the Indenture Trustee (or any note registrar, paying
agent, co-trustee or additional trustee appointed pursuant to the
Indenture), any Noteholder or any Indemnitee under this Lease or any
other Transaction Document;
(iv) on demand and in any event not later than the Basic Rent
Payment Date next succeeding the date such amounts shall be due and
payable hereunder, to the extent permitted by Applicable Law,
interest (computed on the basis of a 360-day year of twelve-30 day
months) on any Rent not paid when due at a rate per annum equal to
the Overdue Rate from and including the due date thereof to but
excluding the date of payment thereof (unless payment is made after
12:00 noon, Atlanta time, in which event such date of payment shall
be included);
(v) on each applicable Basic Rent Payment Date, such
additional amount as shall, after reducing the sum of the scheduled
amount of Basic Rent plus such additional amount by
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any applicable withholding Taxes, cause the amount remaining after
such reduction to equal the aggregate amount of principal and
accrued interest scheduled to be due and payable on all outstanding
Notes on the applicable Basic Rent Payment Date; and
(vi) contemporaneously with making any other payment of
Supplemental Rent (other than Stipulated Loss Value or payments
denominated as interest payable to the Lessor, the Owner Participant
or any Noteholder), such additional amount to the Owner Participant
as shall be sufficient to cause such other Supplemental Rent payment
to have been made on an After-Tax Basis to the Owner Participant.
(d) Method of Payment. Each payment of Rent shall be made in
immediately available funds no later than noon, Atlanta time, on the date such
payment shall be due and payable hereunder, and shall be paid either (i) in the
case of payments other than Excepted Payments, by wire transfer to the Indenture
Trustee to the account specified in Appendix B to the Participation Agreement
for application in accordance with the Indenture (unless the Lien of the
Security Documents shall have been discharged pursuant to Section 10.1 of the
Indenture, in which case such payment shall be paid to, and applied by, the
Corporate Owner Trustee on behalf of the Lessor) to the account specified in
Appendix B to the Participation Agreement or into such other account as the
Indenture Trustee may specify by notice in writing to the Lessee, or (ii) in the
case of Excepted Payments, to such Person as shall be entitled to receive such
payment at such address as such Person may specify by notice to the Lessee;
provided, however, that with respect to Excepted Payments due to the Owner
Participant, all such payments shall be made by wire transfer to the account
specified in Appendix B to the Participation Agreement or such other account as
the Owner Participant may specify in writing to the Lessee. If the date on which
any payment of Rent is due hereunder is not a Business Day, such payment shall
be made as aforesaid on the next succeeding Business Day, with the same force
and effect as if made on the nominal due date provided for in this Lease. Any
provision to this Lease to the contrary notwithstanding, all Basic Rent, all
Supplemental Rent constituting Stipulated Loss Value, proceeds payable pursuant
to Section 14 hereof, all amounts determined by reference to the Make Whole
Amount or other amounts payable to the Indenture Trustee or the Noteholders,
shall in each such case be paid to the Indenture Trustee on behalf of the Lessor
for application in accordance with the provisions of the Indenture (unless the
Lien of the Security Documents shall have been discharged pursuant to Section
10.1 of the Indenture, in which case each such payment shall be paid to, and
applied by, the Corporate Owner Trustee on behalf of the Lessor).
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(e) Adjustments to Rent.
(i) The percentages for Basic Rent and Stipulated Loss Value,
all as set forth in Schedules 1 and 2 hereto, have been calculated
on the basis of the Pricing Assumptions.
(ii) If (A) the Closing Date is different than ▇▇▇▇▇ ▇▇, ▇▇▇▇,
(▇) on or prior to the Closing Date, the characterization of the
Project by depreciation category as set forth in the Appraisal is
different than that set forth in the Pricing Assumptions, (C) on or
subsequent to the Closing Date, the Debt Rate or the amortization
schedule of the Notes or the amount of Transaction Expenses is other
than as set forth in the Pricing Assumptions including, without
limitation, as a result of any change in the Debt Rate to a fixed or
variable rate of interest on the Reset Date pursuant to Article XIII
of the Participation Agreement and the terms of the Notes, (D) on
the Closing Date, the ratio of the Equity Portion of the Purchase
Price to the Purchase Price is different than as set forth in the
Pricing Assumptions as a result of any adjustments referred to in
clauses (A) through (C) above, in the aggregate, (E) on or prior to
the Closing Date, there is any Change in Tax Law, (F) subsequent to
the Closing Date, any refinancing of the Notes or any Supplemental
Financing is consummated pursuant to Section 9.01 of the
Participation Agreement,(G) subsequent to the Closing Date, the Tax
Indemnity Agreement provides for the readjustment of Stipulated Loss
Value, (H) subsequent to the Closing Date, in the event of a Partial
Taking and the payment of the proceeds thereof to the Indenture
Trustee for application in accordance with the Indenture (unless the
Lien of the Security Documents shall have been discharged in
accordance with Section 10.1 of the Indenture, in which case such
payment shall be paid to, and applied by, the Corporate Owner
Trustee on behalf of the Lessor) as contemplated by Section 9(g)(i)
hereof and Sections 4.5 and 5.1(c) of the Indenture, or (I) on the
Closing Date, any other Pricing Assumption set forth on Schedule 3
proves incorrect then, and in each such case, such percentages for
Basic Rent and Stipulated Loss Value, as applicable, shall (subject
always to Section 3(g) hereof) be adjusted (upward or downward) so
as to preserve the Owner Participant's Net Economic Return. Any such
adjustments shall (subject always to Section 3(g) hereof) be
reflected in a Lease Supplement.
(iii) Any adjustments pursuant to this Section 3(e): (A)
shall, to the extent consistent with preserving the Owner
Participant's Net Economic Return, minimize the net After-Tax
present value cost (utilizing the After-Tax Discount Rate) to the
Lessee (subject to the requirements of Section 3(f)) and minimize
(but not necessarily avoid) the risk that the transactions effected
pursuant to the Participation Agreement and this Lease will be
classified by the Lessee as other than
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an "operating lease," as such term is defined under then-current
GAAP, and (B) shall, in all events, satisfy the provisions of
Revenue Procedures 75-21 and 75-28, and avoid the application of
section 467(b)(2) of the Code to the same extent and in the same
manner as such provisions are satisfied or avoided, respectively,
under the Pricing Assumptions.
(f) Computation of Adjustments.
(i) Upon the occurrence of an event requiring adjustments
pursuant to Section 3(e), the Owner Participant shall make the
necessary computations on a basis consistent with that used by the
Owner Participant in the computation of the percentages for Basic
Rent and Stipulated Loss Value set forth in the Schedules hereto, as
theretofore adjusted, taking into account only the event giving rise
to the adjustments and the provisions of Section 3(e). Such
adjustments shall be effective (A) on the 30th day after the Owner
Participant shall have furnished to the Lessee an Officer's
Certificate confirming that such adjustments have been properly
computed in accordance with the provisions of this Lease (or on such
earlier day as the Lessee agrees in writing as to such adjustments)
or (B) if the Lessee shall have disputed any computation or amount
set forth in such certificate on or before such 30th day, on the
date on which such dispute is resolved in accordance with Section
3(f)(ii), and shall remain effective until changed in consequence
of any event occurring thereafter requiring further adjustment
pursuant to Section 3(e).
(ii) Within 30 days after the Owner Participant shall have
provided the Lessee with a certificate pursuant to Section 3(f)(i),
the Lessee may request that the Owner Participant furnish all
information necessary to permit the confirmation of the accuracy of
the Owner Participant's computation of the adjustments described in
such certificate to the Qualified Firm. Notwithstanding the
foregoing, the Qualified Firm shall only have access to such books
and records of the Owner Participant as may be necessary to verify
the computation of such adjustments and shall not have access to the
income tax returns of the Owner Participant. The Qualified Firm
shall be required to confirm to the Owner Participant in writing
that all information provided to the Qualified Firm shall remain the
property of the Owner Participant, shall be held in strict
confidence, shall not be duplicated or revealed to any other Person
except to the extent disclosure may be required by Applicable Law,
and shall be returned to the Owner Participant upon completion of
the confirmation process. Within 30 days after its receipt of such
information, the Qualified Firm either shall confirm the accuracy of
such computation or shall notify the Owner Participant that such
computation and the resulting
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adjustments proposed by the Owner Participant are inaccurate. In the
latter event, the Owner Participant shall consult with the Lessee
and such Qualified Firm as to the proper computation of the
adjustments, whereupon the Owner Participant shall recompute the
adjustments in such a manner as shall enable such Qualified Firm to
confirm their accuracy. The Lessee and the Owner Participant agree
that the sole responsibility of the Qualified Firm shall be to
verify the amount of an adjustment pursuant to this Section 3(f)
and that matters of interpretation are not within the scope of its
responsibilities. All expenses incurred by the Owner Participant and
the Lessee in connection with the verification procedures described
in this paragraph (ii) (including the fees and expenses of the
Qualified Firm) shall be paid by the Lessee, unless the present
value on an After-Tax Basis of Basic Rent (discounted at the
After-Tax Discount Rate) proposed by the Owner Participant shall
exceed the present value on an After-Tax Basis of Basic Rent
(discounted at the After-Tax Discount Rate), properly computed and
confirmed, by more than 10 basis points, in which case all such
expenses shall be paid by the Owner Participant. Each final or
verified adjustment pursuant to this Section 3(f) shall be evidenced
by the execution and delivery of a Lease Supplement in form and
substance satisfactory to the Lessee and the Owner Participant, and
shall be effective as provided herein without regard to the date, if
any, on which such Lease Supplement is so executed and delivered.
(g) Sufficiency of Basic Rent and Supplemental Rent. Notwithstanding
any other provision of this Lease or of any other Transaction Document, (i) the
amount of the installment of Basic Rent payable on each Basic Rent Payment Date
(or on such other date as any installment of Basic Rent is due and payable)
shall be at least equal to the aggregate amount of principal and accrued
interest scheduled to be due and payable on all outstanding Notes on such Basic
Rent Payment Date (or other such date) in respect of all Notes then outstanding
and (ii) each payment of Stipulated Loss Value (when added to all other amounts
required to be paid by the Lessee under this Lease in respect of any Event of
Loss or termination (in whole or in part) of this Lease (including amounts
determined by reference to the Make Whole Amount, if any) shall be at least
equal to an amount sufficient, as of the date of payment, to pay in full the
principal of and the Make Whole Amount, if any, and interest then due on all
outstanding Notes on and as of such date of payment.
SECTION 4. Net Lease. This Lease is a triple net lease and the
Lessee hereby acknowledges and agrees that the Lessee's obligation to pay all
Rent, and the rights of the Lessor in and to such Rent, shall be absolute,
unconditional and irrevocable and shall not be affected by any circumstance of
any character (except as may be expressly provided in this Section 4),
including, without
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limitation: (i) any set-off, abatement, counterclaim, suspension, recoupment,
reduction, rescission, defense or other right or claim that the Lessee may have
against the Lessor, the Owner Trustees, the Owner Participant, the Indenture
Trustee, any Noteholder, any vendor or manufacturer of or contractor or
subcontractor for the Improvements or any part of any thereof, or any other
Person for any reason whatsoever; (ii) any defect in or failure of the title,
merchantability, condition, design, compliance with specifications, operation or
fitness for use of all or any part of the Project; (iii) any damage to, or
removal, abandonment, dismantling, requisition, taking, condemnation, loss,
theft or destruction of all or any part of the Project or any interference,
interruption or cessation in the use or possession of the Project by the Lessee
or by any other Person for any reason whatsoever or of whatever duration; (iv)
any restriction, prevention or curtailment of or interference with any use of
all or any part of the Project; (v) to the maximum extent permitted by
Applicable Law, any insolvency, bankruptcy, reorganization or similar proceeding
by or against the Lessee, the Lessor, the Owner Trustees, the Owner Participant,
the Indenture Trustee or any other Person; (vi) the invalidity, illegality or
unenforceability of this Lease, any other Transaction Document or any other
instrument referred to herein or therein or any other infirmity herein or
therein or any lack of right, power or authority of the Lessor, the Owner
Trustees, the Lessee, the Owner Participant, the Indenture Trustee, any
Noteholder or any other Person to enter into this Lease, any other Transaction
Document or to perform the obligations hereunder or thereunder or consummate the
transactions contemplated hereby or thereby or any doctrine of force majeure,
impossibility, frustration or failure of consideration; (vii) the breach or
failure of any warranty or representation made in this Lease or any other
Transaction Document by the Lessee, the Lessor, the Owner Trustees, the Owner
Participant, the Indenture Trustee, any Noteholder or any other Person; or
(viii) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing. The Lessee hereby waives, to the maximum extent permitted
by Applicable Law, any and all rights that it may now have or that at any time
hereafter may be conferred upon it, by statute or otherwise, to modify,
terminate, cancel, quit or surrender this Lease or to effect or claim any
diminution or reduction of Rent payable by the Lessee, except in accordance with
the express terms hereof. Except as provided herein, the Lessee agrees that, if
for any reason whatsoever this Lease shall be terminated in whole or in part by
operation of law or otherwise, then, so long as Lessee is in possession and
quiet enjoyment of the Project, the Lessee shall pay, to the maximum extent
permitted by Applicable Law, to the Owner Trustees on behalf of the Lessor or to
the Indenture Trustee, in either such case as expressly provided herein, or to
such other Person as may be entitled thereto, an amount equal to each
installment of Basic Rent and all Supplemental Rent at the time such payment
would have become due and payable in accordance with the terms hereof had this
Lease not been terminated in whole or in
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part. Absent manifest error, each payment of Rent made by the Lessee shall be
final and the Lessee shall not seek or have any right to recover all or any part
of such payment from the Lessor or the Indenture Trustee or such other Person
for any reason whatsoever. All covenants, agreements and undertakings of the
Lessee herein shall be performed at its cost, expense and risk unless expressly
stated otherwise. Nothing in this Section 4 or elsewhere shall be construed as a
guaranty by the Lessee of any residual value in the Project or as a guaranty of
the Notes. The Lessee's absolute and irrevocable covenant to pay Rent, as
provided in this Section 4, shall not affect the Lessee's rights, at law or in
equity, otherwise to enforce the Lessor's obligations under this Lease or any
other Transaction Documents. There shall be no merger of the leasehold estate
created by this Lease with the fee estate in the Project or any portion thereof
by reason of the fact that the same Person may acquire or hold or own, directly
or indirectly (a) the leasehold estate created hereby or any part thereof or
interest therein and (b) the fee estate in the Project or any portion thereof or
interest therein, unless and until all Persons having any interest in the
interests described in (a) and (b) above which are sought to be merged shall
join in a written instrument effecting such merger and shall duly record the
same.
SECTION 5. Return. Unless Lessee has theretofore acquired the
Project as provided herein, on the Lease Termination Date the Lessee shall
vacate and surrender possession of the Project to the Lessor or to a Person
specified by the Lessor to the Lessee in writing not less than 30 days prior to
the Lease Termination Date (unless such Lease Termination Date results from a
termination pursuant to Section 16, in which event no prior notice shall be
required) . At the time of such surrender, the Project shall be free and clear
of all Liens (other than Liens described in clauses (a) (excluding the rights
and interests of the Lessee in the Transaction Documents), (b) (but only Persons
whose interest in the Project do not terminate by reason of nondisturbance
rights, if any, granted by the Lessor), (c), (d) (to the extent such Taxes are
not due and payable), (g) (to the extent such Liens are fully bonded and
discharged of record), and (h) of the definition of "Permitted Liens", provided,
however, that in the event of any Permitted Lien under clause (d) (other than
any Lien for Taxes not yet due and payable), (e) or (f) which is being contested
by the Lessee, the Lessee may satisfy its obligations hereunder by causing the
Title Insurer to provide affirmative insurance to the Lessor in form and
substance reasonably acceptable to the Lessor regarding such Permitted Lien),
broom clean in all areas and in the condition and state of repair required by
Section 8(a)(i) . Simultaneously with such surrender, the Lessee shall deliver
to the Lessor (or to such specified Person) the following items:
(i) to the extent in the possession or control of the Lessee or
any Affiliate thereof (or should be in the
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possession or control of the Lessee or any Affiliate assuming
compliance with the terms hereof, which means that the Lessee
will not transfer any of these materials to a Person outside
of the Lessee's control which would result in a failure of the
Lessee to comply with this Section 5(i)): originals or
complete copies, if the same are required to be left on the
Project, of all transferable operating licenses, other
licenses, certificates of occupancy, other certificates,
permits, authorizations and approvals relating to the use and
occupancy of the Project,
(ii) to the extent in the possession or control of the Lessee or
any Affiliate thereof (or should be in the possession or
control of the Lessee or any such Affiliate assuming
compliance with the terms hereof, which means that the Lessee
will not transfer any of these materials to a Person outside
of the Lessee's control which would result in a failure of the
Lessee to comply with this Section 5(ii)): (x) plans and
specifications for all mechanical, electrical and HVAC Systems
pertaining to the Project, (y) as-built drawings, blueprints,
operating and repair manuals, engineering logs and
preventative maintenance records relating to the Project, and
(z) plans and specifications for any Modifications whether
made by Lessee or made by tenants at the Project and, with
respect to those made by tenants, any consents of the Lessee
related thereto,
(iii) the current rent roll for the Project (listing each tenant
which is not an Affiliate of the Lessee by name, and
specifying with respect to each such tenant, the square
footage of such tenant's space, the rental rate per square
footage, the rental rate per month, any amount owed for
special tenant services, parking charges, prepaid rent, if
any, and security deposit, if any), together with (1) the
amount of any rent paid by any tenant at the Project to the
Lessee or any Affiliate of the Lessee attributable to any
period after the Lease Termination Date and (2) with respect
to security deposits, either (x) all security deposits then
held by the Lessee or any Affiliate of the Lessee with respect
to any such tenants or (y) an assignment of all of Lessee's or
such Affiliate's rights with respect to such security deposits
not theretofore rightfully applied and not so held,
(iv) for all lessees and sublessees which are not Affiliates of the
Lessee, the originals (if available) or complete copies of all
then existing
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leases (other than this Lease) and subleases of the Project
(together with all amendments thereto) to which the Lessee or
any Affiliate of the Lessee is a party or which shall be in
the possession or control of the Lessee or any such Affiliate,
(v) keys to the Buildings and all locks located therein in the
possession or control of the Lessee or any Affiliate of the
Lessee, and
(vi) such other papers and documents which are in the possession or
control of the Lessee or any Affiliate thereof which may be
necessary for the ownership or the proper operation of the
Buildings.
In addition, in connection with such surrender, the Lessee shall also use
commercially reasonable efforts to assign to the Lessor (or such specified
Person) (x) all then existing maintenance and management contracts relating to
the Project with Persons other than Affiliates of the Lessee, (y) all then
existing warranties against dealers, manufacturers, vendors, contractors and
subcontractors relating to the Project or any portion thereof not theretofore
assigned to the Lessor, and (z) all then existing claims against dealers,
manufacturers, vendors, contractors and subcontractors which are not Affiliates
of the Lessee relating to the Project or any portion thereof not theretofore
assigned to the Lessor. The obligations of the Lessee under this Section 5 shall
survive the termination of the Lease.
SECTION 6. Warranty of the Lessor.
(a) Quiet Enjoyment. The Lessor warrants that, unless a Lease Event
of Default shall have occurred and be continuing and (except in the case of a
Lease Event of Default specified in Section 15(e)) this Lease shall have been
declared to be in default pursuant to Section 16(a), the Lessee's peaceful
possession, use and enjoyment of the Project in accordance with this Lease shall
not be interrupted or disturbed by the Lessor or any other Person claiming by,
through or under the Lessor except for those Persons claiming by, through or
under Permitted Liens (except of the type described in clause (c) thereof);
provided that the Lessee waives, to the maximum extent permitted by Applicable
Law, any claim for damages, except for willful misconduct, arising in connection
with any alleged breach by the Owner Trustees, the Lessor or the Indenture
Trustee of such warranty after the occurrence and during the continuation of a
Lease Event of Default. The right of quiet enjoyment under this Lease described
above is independent of, and shall not affect, the Lessor's rights otherwise to
initiate legal actions seeking to enforce the obligations of the Lessee under
this Lease or the Lessor's rights under Section 20. If the Lessor interrupts or
disturbs the Lessee's right of quiet enjoyment under this Lease, or if the
Lessor is otherwise in default under this
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Lease, then the Lessee may bring an action against the Lessor to recover from
the Lessor all damages suffered, incurred or sustained by the Lessee (including,
without limitation, court costs and reasonable attorneys' fees actually
incurred) as a result of, by reason of or in connection with such interruption,
disturbance or other default, and/or to obtain specific performance of the
Lessor's obligations under this Lease, but in no event shall the Lessee have the
right to set off against or make a deduction from Basic Rent, Supplemental Rent
or other amounts due under this Lease, nor shall the Lessee have the right to
terminate this Lease pursuant to a claim of constructive eviction or otherwise.
(b) Disclaimer of Other Warranties.
(i) THE WARRANTY SET FORTH IN SECTION 6(a) IS IN LIEU OF ALL
OTHER WARRANTIES OF THE LESSOR, WHETHER WRITTEN, ORAL OR IMPLIED,
WITH RESPECT TO THIS LEASE OR THE PROJECT. As among the Owner
Trustees, the Owner Participant, the Indenture Trustee, the Lessor
and the Lessee, execution by the Lessee of this Lease shall be
conclusive proof of Lessee's acceptance of the Project as complying
with all requirements of this Lease.
(ii) The Project is leased in its present condition without
representation or warranty by the Lessor and subject to the rights
of the parties in possession, to the existing state of title, to all
Applicable Laws now or hereafter in effect and, without limiting the
generality of the foregoing, to all present and future Liens
(exclusive, however, of Lessor's Liens and Owner Participant's
Liens). The Lessee has examined the Project and title thereto and
has found all of the same satisfactory for all purposes. THE LESSOR
HAS NOT MADE AN INSPECTION OF THE PROJECT OR OF ANY FIXTURE OR OTHER
ITEM CONSTITUTING A PORTION THEREOF, AND, EXCEPT AS PROVIDED IN
SECTION 6(a), THE LESSOR MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED OR OTHERWISE, WITH RESPECT TO THE SAME OR THE
LOCATION, USE, DESCRIPTION, DESIGN, MERCHANTABILITY, FITNESS FOR USE
FOR ANY PARTICULAR PURPOSE, CONDITION, OR DURABILITY THEREOF, OR AS
TO THE TITLE THERETO OR OWNERSHIP THEREOF OR OTHERWISE, IT BEING
AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY THE
LESSEE. IN THE EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE IN
THE PROJECT OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION
THEREOF, WHETHER PATENT OR LATENT, THE LESSOR SHALL HAVE NO
RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO. THE PROVISIONS OF
THIS SECTION 6(b) HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A
COMPLETE EXCLUSION AND NEGATION BY THE LESSOR OF, AND THE LESSOR
DOES HEREBY DISCLAIM, ANY AND ALL WARRANTIES BY THE LESSOR, EXPRESS
OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE OR OF HABITABILITY WITH RESPECT TO THE PROJECT
OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER
ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANOTHER LAW
-12-
Sale for a breach of any warranty of title made by the Lessee or
Alphafax), such total failure of title shall be treated as a
Requisition of Title with respect to which the Lessor shall have
accepted the Lessee's Rejectable Offer under Sections 9(c) and 21
hereof, and the Lessee shall purchase the Project on the first Loss
Determination Date occurring at least forty-five (45) days after the
date the Title Insurer confirms in writing the total failure of
title. In such event, upon (A) payment of all amounts due under and
compliance with all of the provisions of Sections 9(c) and 21, and
(B) receipt by the Lessor, the Corporate Owner Trustee and the
Indenture Trustee of a release, in form and substance satisfactory
to each of them, from the Title Insurer against any claims to the
funds paid by the Lessee pursuant to clause (A) above, the rights to
all such title insurance proceeds shall vest in the Lessee.
(ii) If the proceeds relate to title defects, events or
circumstances which constitute less than a total failure of title,
(A) said proceeds shall be used to cure such title defects, events
or circumstances (or to reimburse any Person who has effected, in
whole or in part, such cure), and shall be held, pending such use,
in accordance with the provisions of Section 9(g)(ii) or 9(h), as
applicable, and (B) the balance, if any, shall be distributed in
accordance with Section 9(g)(iv) or 9(h), as applicable.
SECTION 7. Liens. The Lessee shall not directly or indirectly
create, incur or suffer to exist any Lien on or with respect to the Project, the
Lessor's title thereto or interest therein, as the case may be, except Permitted
Liens. The Lessee, at its own expense and promptly (and in any event within 30
days) after a Responsible Officer of the Lessee has actual knowledge of the
filing thereof (or the existence thereof if filing is not required to give
effect to such Lien), shall take such action as may be necessary to discharge
any such Lien that may arise. WITHOUT LIMITING THE OBLIGATIONS OF THE TRUST
COMPANY, THE OWNER TRUSTEES, THE TRUST, THE LESSOR, THE INDENTURE TRUSTEE AND
THE OWNER PARTICIPANT TO DISCHARGE LESSOR'S LIENS, INDENTURE TRUSTEE'S LIENS AND
OWNER PARTICIPANT'S LIENS, RESPECTIVELY (PROVISION FOR WHICH IS CONTAINED IN AND
GOVERNED BY THE PARTICIPATION AGREEMENT), NOTICE IS HEREBY GIVEN THAT THE 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 THE PROJECT OR ANY PART THEREOF
THROUGH OR UNDER THE LESSEE, AND THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH
LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF THE
LESSOR IN AND TO THE PROJECT OR ANY PART THEREOF.
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SECTION 8. Operation and Maintenance; Modifications.
(a) Operation and Maintenance.
(i) Standard. The Lessee may use the Project solely as an
office building and technology center complex in accordance with
Applicable Law and, in connection therewith, for such other and
additional lawful ancillary purposes as are consistent therewith,
including, but not limited to, executive, administrative, clerical,
drafting, printing, data processing, billing, employment, legal,
accounting, purchasing and sales purposes, and for all activities
normally incidental thereto or related to the conduct of the
Lessee's business, including, but not limited to, vending machines,
food service for employees and incidental retail, commercial,
banking and other service operations. The Lessee shall maintain all
parts of the Project in the same order, condition and repair as of
the Closing Date, ordinary wear and tear excepted, and shall take
all actions and make all Modifications (if any) to the Project as
may be required by Applicable Laws and Insurance Requirements for
the Project and for other similar real estate projects in the
metropolitan Atlanta, Georgia area. The Lessee may install a sign on
the Site or on the exteriors of the Improvements, and from time to
time may change the signs, without the Lessor's approval. The Lessee
shall have the sole right to name the Project prior to the Lease
Termination Date. At the Lessor's request, the Lessee shall remove
any such signs, at the Lessee's sole cost and expense, on or prior
to the Lease Termination Date and shall repair any damage caused
thereby. In addition, the Lessee may install and, once installed,
modify a television, microwave, satellite or other antenna
communications system (individually and collectively called the
"Antennae") on the roofs of the Improvements for use in connection
with the Lessee's and its subtenant's businesses. The Antennae shall
be installed at the Lessee's expense in a good and workmanlike
manner. The Lessee shall be responsible for procuring whatever
licenses or permits may be required from third Persons for the use
or operations of the Antennae. At the Lessor's request, the Lessee
shall remove all Antennae, at the Lessee's sole cost and expense, on
or prior to the Lease Termination Date and shall repair any damage
caused thereby. The Lessor shall have no obligation to operate,
service, maintain, alter, repair, rebuild or replace the Project or
any part thereof, and the Lessee expressly waives (to the maximum
extent permitted by Applicable Law) the right to perform any such
action at the expense of the Lessor pursuant to any Applicable Law.
(ii) Payment of Taxes and Other Impositions. Upon the written
request by the Lessor and the Indenture Trustee, except as otherwise
provided in Section 7.04 of the Participation Agreement, the Lessee
shall, unless it is
-15-
otherwise contesting such matters in compliance with Section 8(g),
provide the Lessor and the Indenture Trustee with evidence of the
payment of any Taxes, utility charges or other impositions, the
failure of which to be paid would cause the imposition of a Lien
(other than a Permitted Lien) upon the Project.
(iii) Encroachments. The Lessee shall undertake no addition to
or improvement of the Project which encroaches onto property not a
part of the Site unless it shall have obtained a license, easement,
encroachment or other agreement in form and substance reasonably
satisfactory to the Owner Participant and the Indenture Trustee from
the Person owning the property onto which the addition or
improvement encroaches.
(b) Inspection. Upon not less than 10 Business Days' notice to the
Lessee (unless a Material Lease Default or Lease Event of Default shall have
occurred and be continuing or an emergency exists with respect to the Project,
and then upon such notice as may be reasonable under the circumstances), any of
the Corporate Owner Trustee, the Lessor, the Owner Participant, the Indenture
Trustee and the Noteholders, accompanied by an individual designated by the
Lessee (if the Lessee so elects, provided that the Lessee's failure to designate
such an individual shall not constitute the basis for prohibiting any such
inspection), shall have the right to inspect the Project, including any
financial and accounting records and contracts, other than Restricted
Information, relating solely to the use, operation and maintenance of the
Project or as is otherwise necessary to determine whether the covenants, terms
and provisions of the Transaction Documents have been complied with by the
Lessee and to make copies and extracts therefrom, and to discuss the affairs,
finances and accounts of the Lessee specifically as the same relate to the
Project or the Lessee's compliance with the provisions of the Transaction
Documents with its officers (subject, in each case, to Applicable Law, the
provisions of Section 12.09 of the Participation Agreement regarding
confidentiality, and any then-existing security protocols or other standard
policies or procedures established by the Lessee with respect to the Project
from time to time) at their sole expense (unless a Material Lease Default or
Lease Event of Default shall have occurred and be continuing, in which case the
reasonable expense of such inspection shall be the Lessee's responsibility) and
risk (unless a Material Lease Default or Lease Event of Default shall have
occurred and be continuing, in which case such risk shall be borne by the
Lessee) and, in any event, any such inspection shall be conducted during normal
business hours and so as not to interfere unreasonably with the Lessee's or any
permitted sublessee's business or the operation and maintenance of the
Improvements; provided, however, that unless such a Material Lease Default or
Lease Event of Default or such an emergency has occurred and is continuing, (i)
the Corporate Owner
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Trustee, the Lessor and the Owner Participant together shall act through no more
than two representatives, (ii) the Indenture Trustee and the Noteholders
together shall act through no more than two representatives, and (iii) the
frequency of inspections made pursuant to this Section 8(b) (which need not be
made concurrently) shall be limited to no more than once in any twelve month
period for (y) the Corporate Owner Trustee, the Lessor and the Owner Participant
representatives, and (z) the Indenture Trustee and the Noteholder
representatives, respectively; provided further, however, however, that such
inspections may be made more frequently than once in any twelve month period, as
necessary, if the Corporate Owner Trustee, the Lessor, the Owner Participant,
the Indenture Trustee or the Noteholders, or any one of them, has reason to
believe that the Project is not being properly used, operated, maintained or
repaired in accordance with the terms and provisions of this Lease. None of the
Corporate Owner Trustee, the Lessor, the Owner Participant, the Indenture
Trustee or the Noteholders shall have any duty whatsoever to make any inspection
referred to in this Section 8(b) or shall incur any liability or obligation by
reason of not making any such inspection.
(c) Modifications.
(i) Subject to Sections 8(g) and 13, the Lessee, at its
expense (except as provided in Section 9.01(b) of the Participation
Agreement), shall make all Modifications required by any Applicable
Law, Governmental Action and Insurance Requirements.
(ii) In addition, the Lessee may, at its expense (except as
provided in Section 9.01(b) of the Participation Agreement) and from
time to time, make any Modification that the Lessee may deem
desirable in the conduct of its business so long as the Project
continues to be used for the permitted purposes set forth in Section
8(a)(i) hereof; provided, however, that such Modifications shall be
completed in a good and workmanlike manner, in compliance with
Applicable Law and Insurance Requirements and in a manner that
maintains or improves the value, character, quality, utility and
remaining useful life of the Improvements and does not cause the
Project to be "limited use" property within the meaning of Rev.
Proc. 76-30, 1976-2, C.B. 647; provided, further, that in the event
any Nonseverable Modification or any related series of Nonseverable
Modifications is reasonably expected to have a cost exceeding
$2,000,000, Indexed, the Lessee shall first obtain the prior written
consent of the Owner Participant and the Required Lenders (which
consent shall not be unreasonably withheld or delayed) to such
Nonseverable Modification or series of Nonseverable Modifications;
and provided, finally, that no such Modification shall be made
without the prior written consent of the Owner Participant and the
Indenture
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Trustee if a Material Default or Lease Event of Default shall have
occurred and be continuing.
(d) Title to Modifications. Title to each Modification shall vest
as follows:
(i) in the case of each Nonseverable Modification whether or
not the Corporate Owner Trustee or the Lessor shall have provided or
arranged financing (in whole or in part) of the cost of such
Modification by a Supplemental Financing, the Lessor (acting through
the Individual Owner Trustee) shall, without further act, effective
on the date such Modification shall have been incorporated into the
Project, acquire title to such Modification and such title shall be
subject to the Lien of the Security Documents at no expense to the
Corporate Owner Trustee, the Lessor or the Indenture Trustee
(without further action by the Lessee);
(ii) in the case of each Severable Modification that is not
required by any Applicable Law, Governmental Action or Insurance
Requirements, the Lessee shall retain title to such Modification and
such title shall not be subject to the Lien of the Security
Documents;
(iii) in the case of each Severable Modification required by
Applicable Law, Governmental Action or Insurance Requirements, title
to such Modification shall immediately vest in the Lessor (acting
through the Individual Owner Trustee) and such title shall be
subject to the Lien of the Security Documents at no cost to the
Corporate Owner Trustee, the Lessor or the Indenture Trustee
(without further action by the Lessee); provided, however, that the
Lessee shall take such actions as may be reasonably required by the
Corporate Owner Trustee, the Lessor or the Indenture Trustee to
evidence the transfer of title and the perfection of such Lien; and
(iv) unless the Lessee has then purchased the Project, title
to (A) all Severable Modifications title to which Modifications were
vested in the Lessee pursuant to this Section 8(d), and (B) trade
fixtures and the like pursuant to Section 8(f) in either case which
remain at the Project on the Lease Termination Date (or, in the
event the Lease is terminated pursuant to Section 16(a), on the 45th
day following the Lease Termination Date) shall vest automatically
in the Lessor (acting through the Individual Owner Trustee) as of
such date without the payment of any sum not otherwise required
under this Section 8(d); provided, however, that the Lessee shall
pay, or reimburse the Corporate Owner Trustee, the Lessor and the
Indenture Trustee for, any reasonable costs incurred in connection
with the removal or disposal of such Severable Modifications or
trade fixtures.
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Immediately upon title to a Modification vesting in the Lessor pursuant to
subparagraphs (i) or (iii) of this Section 8(d), such Modification shall,
without further act, become subject to this Lease and be deemed part of the
Improvements for all purposes hereof. Modifications as to which title remains in
the Lessee pursuant to subparagraph (ii) of this Section 8(d) shall not be
deemed a part of the Project.
On the Lease Termination Date, the Lessor will have the option to
purchase any Severable Modification to which the Lessee has retained title under
Section 8(d)(ii) at the then Fair Market Sales Value for such Severable
Modification (determined by the Appraisal Procedure in the absence of agreement
of the parties), and upon payment by the Lessor to the Lessee of such Fair
Market Sales Value by wire transfer of immediately available funds, the Lessee
shall execute and deliver to the Lessor a ▇▇▇▇ of sale for the Lessee's interest
in such Severable Modification, free of, and with a warranty by the Lessee
against, any Liens arising by, through or under the Lessee. In such case, all
reasonable charges incident to such transfer, including, without limitation, the
Lessee's, the Corporate Owner Trustee's, the Lessor's and the Owner
Participant's reasonable attorneys' fees and (except to the extent required
otherwise by Applicable Law) all applicable sales, use, value-added, transfer,
transaction, and similar taxes required to be paid in connection with such
transfer (but not any taxes imposed on, based on or measured by gross, adjusted
gross or net income, capital gains taxes or any minimum tax or alternative
minimum tax, gross receipts, capital or net worth, franchise, excess profits or
conduct of business (other than Taxes which are, or are in the nature of, sales,
use, transfer, transaction, rental, value added, ad valorem or property Taxes),
payable by the Lessee upon or with respect to the sale or disposition by it of
such Severable Modification) that may be imposed by reason of such transfer and
the delivery of such ▇▇▇▇ of sale shall be apportioned between the Lessor and
the Lessee in accordance with the then-custom in Alpharetta, Georgia. At least
180 days prior to the expiration of the Lease Term (or promptly after a
termination under Section 16), but not before 36 months prior to the Lease
Termination Date, the Lessee shall provide the Lessor and the Indenture Trustee
(so long as the Lien of the Security Documents has not been discharged in
accordance with Section 10.1 of the Indenture) in writing with a list of each
Severable Modification to which the Lessee has retained title and which the
Lessee intends to remove from the Project. The Lessor must give Lessee notice of
its election to exercise its option, if at all, by written notice to the Lessee
within 120 days after receipt of the Lessee's notice specifying such Severable
Modifications (or within thirty (30) days after receipt of such list in
connection with a termination under Section 16).
(e) Removal or Replacement of Property. Subject to compliance with
Applicable Law and Insurance Requirements, and so
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long as no Material Lease Default or Lease Event of Default shall have occurred
and be continuing, the Lessee may remove or replace any Severable Modification,
and any other property to which the Lessee shall have title as provided in
Section 8(d), Section 8(f) or otherwise; provided, that the Lessee, at its
expense and prior to the Lease Termination Date, shall repair any damage to the
Project (or any part thereof) caused by such removal and shall restore any
diminishment in the value, utility or remaining useful life of the Project
caused by such removal. If any Part is removed from the Project (or any part
thereof) for the purpose of replacement thereof with another Part, title to such
removed Part shall remain the property of the Lessor (acting through the
Individual Owner Trustee), no matter where such removed Part is located, until
such time as the Part constituting a replacement thereof (a "Replacement Part")
shall have been incorporated into the Improvements, at which time title to such
Replacement Part shall then and thereupon vest in the Lessor (acting through the
Individual Owner Trustee) and shall be subject to the Lien of the Security
Documents, and at which time, without further act, title to such removed Part
shall vest in the Lessee or in such Person as shall be designated by the Lessee,
free of the Lien of the Security Documents, and such property shall not
thereafter be part of the Project. Each such Replacement Part shall be free and
clear of all Liens (except Permitted Liens), shall upon installation become a
part of the Project (with title thereto vesting in the Lessor (acting through
the Individual Owner Trustee)), and shall be in as good operating condition as,
and shall have a value, utility and remaining useful life at least equal to,
that of the Part removed, it being assumed for purposes of this sentence that
such removed Part was in the condition and state of repair required by Section 8
(a).
(f) Trade and Other Fixtures. All trade and other fixtures, personal
property, machinery, equipment and the like from time to time located at or used
in connection with the Project, including, without limitation, the trade
fixtures and other property described on Schedule 4 to this Lease, but excluding
always all items of Equipment and all fixtures comprising part of the
Improvements, are acknowledged by the Lessor and the Indenture Trustee to be the
Lessee's or another Person's property and do not constitute part of the Project
(or any part thereof) and, without the Lessor's or the Indenture Trustee's prior
written approval, the Lessee or such Person may make such improvements and
alterations thereto as it may desire, at its own expense. Any such trade or
other fixtures (similar to those listed on Schedule 4 to this Lease) hereafter
made or installed by or for the Lessee or any Person subleasing space from the
Lessee (and not financed by the Lessor pursuant to Section 9.01(b) of the
Participation Agreement) shall remain the property of the Lessee or such Person,
as applicable and in case of damage or destruction thereto by fire or other
causes, the Lessee and such Person shall have the right to recover the value
thereof as its own loss from any insurance
-20-
company with which it has insured the same, or to claim an award in the event of
condemnation, notwithstanding that any of such things might be considered a part
of the Project (or any part thereof). The Lessee or any Person subleasing space
from the Lessee may remove all or any of such things, at any time during the
Lease Term or, at their option, the Lessee or such Person may abandon the same,
in whole or in part, to the Lessor at the expiration or earlier termination of
the Lease Term by vacating such property without removing the same, in which
case, title to such property shall vest in the Lessor; provided that in the case
of any such removal by the Lessee or by any Person subleasing space from the
Lessee, the Lessee shall repair any damage to the Project caused by such
removal; and provided, further, that the Lessee shall pay, or reimburse the
Corporate Owner Trustee, the Lessor and the Indenture Trustee for, any
reasonable costs incurred by the Corporate Owner Trustee, the Lessor or the
Indenture Trustee in connection with the removal or disposal by it of the
abandoned property. If an Event of Loss occurs, the Lessee or any Person
subleasing space from the Lessee shall be solely entitled to any condemnation
award or insurance proceeds attributable to its trade or other fixtures as to
which it retains title pursuant to Section 8(d). Notwithstanding the foregoing,
if the insurance policy covering any item subject to this Section 8(f) also
covers the Project or any portion thereof, such insurance shall be obtained so
as not to conflict with or limit the insurance required to be maintained under
Section 10(a) and neither the Lessee nor any other Person shall take any action,
or omit to take any action, so as to impair any recovery in favor of the Lessee
or any Loss Payee or any Additional Insured of any insurance proceeds under
policies required to maintained under Section 10(a).
(g) Contest of Taxes or Requirements of Law. If, with respect to any
Taxes or any requirement of Applicable Law or any Governmental Action (i) the
Lessee is contesting diligently and in good faith by appropriate proceedings (in
accordance with Section 7.04 of the Participation Agreement with respect to
Taxes) such Taxes or requirement of Applicable Law or Governmental Action, or
(ii) compliance with such requirement or Governmental Action shall have been
excused or exempted by a valid nonconforming use permit, waiver, extension or
forbearance exempting the Lessee from such requirement or Governmental Action or
(iii) the Lessee shall be making a good faith effort and shall be diligently
taking appropriate steps to comply with such requirement or Governmental Action,
then the failure by the Lessee to comply with such requirement or Governmental
Action shall not constitute a Lease Default or Lease Event of Default hereunder;
provided that such contest or noncompliance does not involve (A) any danger of
criminal liability being imposed on the Lessor, the Trust, the Corporate Owner
Trustee, the Owner Participant, the Indenture Trustee or any Noteholder or (B)
any risk of (1) the loss or sale of, or the creation of any Lien (other than a
Permitted Lien) on, the Project, or (2) material civil liability being imposed
on the
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Lessor, the Trust, the Corporate Owner Trustee, the Owner Participant, the
Indenture Trustee or any Noteholder. The Lessee shall provide the Corporate
Owner Trustee, the Lessor and the Indenture Trustee with notice of any contest
of the type described in clause (i) above in detail sufficient to enable the
Lessor and the Indenture Trustee to ascertain whether such contest may have any
material adverse effect of the type described in the above proviso.
(h) Reports. To the extent permissible under Applicable Law, the
Lessee shall, at the Lessee's cost and expense, prepare (or cause to be
prepared) and file in a timely fashion, or, if the Lessor shall be required to
file, the Lessee, at the Lessee's cost and expense, shall prepare or cause to be
prepared and delivered to the Lessor within a reasonable time prior to the date
for filing, and the Lessor (or the Corporate Owner Trustee on behalf of the
Lessor) shall file, all reports, applications, permits, requests or other
filings with respect to the Project or the condition or operation thereof that
shall be required by Applicable Law to be filed with any Governmental Authority
and if, in the Lessee's judgment, it is necessary or appropriate for the Lessor
(or the Corporate Owner Trustee on behalf of the Lessor) to sign, approve or
join in any such report, application, permit, request or other filing, neither
the Lessor nor the Corporate Owner Trustee acting on behalf of the Lessor shall
unreasonably refuse to sign, approve or join therein promptly after the receipt
of the Lessee's written request therefor and reasonable opportunity to review
same (with appropriate consultants reasonably acceptable to the Lessee, if
reasonable in the circumstances), and any reasonable out-of-pocket expenses
incurred by the Corporate Owner Trustee, the Lessor or the Owner Participant in
connection therewith shall be promptly paid on an After-Tax Basis by the Lessee
upon receipt of bills therefor.
(i) Environmental Compliance.
(A) The Lessee shall promptly notify the Lessor, the Corporate
Owner Trustee, the Owner Participant and (unless the Lien of the
Security Documents shall have been discharged in accordance with
Section 10.1 of the Indenture) the Indenture Trustee of (i) any
occurrence or release at, on, under or from the Project, or beyond
the Project which affects the Project, that has resulted in or is
substantially likely to result in any material expense relating to
or material noncompliance with any applicable Environmental Law or
that has resulted in or is substantially likely to result in a
material Environmental Claim, such notice to be given no later than
fourteen (14) Business Days after a Responsible Officer of the
Lessee obtains actual knowledge of the occurrence or release and
(ii) any pending or written threatened material Environmental Claim
against the Lessee and related to or affecting the Project, such
notice to be given no later
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than fourteen (14) Business Days after a Responsible Officer of the
Lessee has actual knowledge that such Environmental Claim has been
commenced or threatened in writing. To the extent possible, all such
notices shall describe in reasonable detail the nature of such
Environmental Claim, occurrence or release and the Lessee's response
thereto.
(B) Upon reasonable written request, the Lessee shall promptly
provide the Lessor and (unless the Lien of the Security Documents
shall have been discharged in accordance with Section 10.1 of the
Indenture) the Indenture Trustee with copies of material,
non-privileged written communications and other material,
non-privileged documents relating to the subject of any notice
required under Section 8(i)(A).
(C) If any release or occurrence happens at the Project that
results or is substantially likely to result in material expense
relating to or material noncompliance with any applicable
Environmental Law or a material Environmental Claim related to or
affecting the Project, the Owner Participant, the Lessor, the
Corporate Owner Trustee or (unless the Lien of the Security
Documents shall have been discharged in accordance with Section 10.1
of the Indenture) the Indenture Trustee may require the Lessee to
perform diligently, at the Lessee's sole cost and expense, an
environmental assessment of appropriate scope under the
circumstances, prepared by an environmental consultant selected by
the Lessee and reasonably acceptable to the requesting Person.
Unless otherwise agreed to by the requesting Person, the report
regarding such assessment shall be addressed to and may be relied
upon by the Lessee, the requesting Person, the Participants, the
Lessor, the Owner Trustees and the Indenture Trustee.
(D) The Lessee will not cause or permit the use, release,
generation, treatment, storage, recycling or disposal of any
Hazardous Substances on the Project or the transportation of
Hazardous Substances to or from the Project by the Lessee, its
sublessees and/or its or their respective agents, employees,
contractors or invitees other than in material compliance with all
applicable Environmental Laws. The Lessee shall not operate a
hazardous waste management facility at the Project.
(E) The Lessee shall comply in all material respects with all
applicable Environmental Laws now or thereafter applicable to the
use, modification, operation, construction or maintenance of the
Project and the Lessee shall have sole responsibility for all
expenses (including
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legal and other professional fees and expenses and costs of
investigation) incurred by any Participant, the Lessor, the Owner
Trustees or the Indenture Trustee associated with such compliance,
including compliance with any applicable Environmental Law or
Governmental Action directed to any Participant, the Lessor, any
Owner Trustee or the Indenture Trustee (prior to the time the Lien
of the Security Documents shall have been discharged in accordance
with Section 10.1 of the Indenture) or to which any Participant, the
Lessor, the Owner Trustees or the Indenture Trustee may become
subject, in connection with the Project, unless, as to any such
Person, such expenses are incurred as a result of the actions of
such Person. The Lessee shall not install, and shall not permit the
installation by its sublessees and/or its and their respective
agents, employees, contractors and invitees of, any underground
storage tanks, surface impoundments or asbestos-containing materials
on the Project other than in compliance in all material respects
with applicable Environmental Law and Governmental Action and the
Lessee shall cause any alterations of the Project undertaken by,
through or under the Lessee to be completed in a way so as to
minimize the possibility of exposure of persons working on or
visiting the Project to Hazardous Substances in excess of safety
levels established by any applicable Environmental Law and so as not
to violate in any material respect any applicable Environmental Law.
SECTION 9. Event of Loss.
(a) Events of Loss; Notice.
(i) If an Event of Loss shall occur or if any substantial or
significant part of the Project shall suffer or be subject to
material damage, loss, condemnation, theft or seizure that does not
constitute an Event of Loss, the Lessee shall promptly, and in any
case within 10 days after a Responsible Officer of the Lessee shall
have actual knowledge of such event, so notify the Lessor and
(unless the Lien of the Security Documents has been discharged
pursuant to Section 10.1 of the Indenture) the Indenture Trustee
and, at the Lessee's sole cost and expense, shall diligently pursue
collection of insurance or condemnation proceeds in a manner
reasonably acceptable to the Lessor and (unless the Lien of the
Security Documents shall have been discharged in accordance with
Section 10.1 of the Indenture) the Indenture Trustee.
(ii) If an Event of Loss (other than an Event of Loss due to
Condemnation) occurs during the Interim Term, Basic Term or any
Renewal Term, the Lessee shall, within 180 days of the occurrence of
such Event of Loss, notify the Lessor and
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(unless the Lien of the Security Documents shall have been
discharged in accordance with Section 10.1 of the Indenture) the
Indenture Trustee in writing (the "Event of Loss Notice") of its
election to either (A) reconstruct the Project so as to meet the
standards of Section 9(b) (but only if, in the reasonable opinion of
the Lessee (as evidenced by an Officer's Certificate), it is
reasonably certain that the Project may be reconstructed in a manner
consistent with Section 9(b) prior to the end of the then-current
Lease Term (including any Renewal Term as to which the Lessee has
given notice in accordance with Section 12)) or (B) terminate the
Lease in accordance with Section 9(c) or 9(e), as applicable. If the
Lessee has given notice pursuant to clause (A) of this Section
9(a)(ii) that it has elected to reconstruct the Project, then the
Lessee shall diligently pursue the commencement of construction and,
within 18 months of the occurrence of such Event of Loss (and in no
event later than a date which should reasonably permit completion of
reconstruction of the Project prior to the expiration of the then
current Lease Term (including any Renewal Term as to which the
Lessee has given notice in accordance with Section 12) shall
commence physical reconstruction (meaning physical work on the Site
or the erection or installation of Improvements) of the Project and
shall thereafter diligently pursue the completion of the
reconstruction. If the Lessee has given notice pursuant to clause
(B) of this Section 9(a)(ii) that it has elected to terminate this
Lease (or, if the Lessee fails to give any notice pursuant to clause
(A) or (B) of this Section 9(a)(ii), it shall be deemed to have
given such clause (B) notice as of the 180th day following such
Event of Loss), then the provisions of Section 9(c) or 9(e), as
appropriate, shall apply. Notwithstanding the foregoing, the Lessee
may not, without the Owner Participant's, the Lessor's and the
Indenture Trustee's prior written consent, elect to reconstruct the
Project if such Event of Loss occurs within 2 years of the
then-scheduled Lease Termination Date (taking into account any
Renewal Term referred to in Section 12(h)) and if for any reason
whatsoever such consent is not given, this Lease shall terminate as
of the one hundred eightieth day following such Event of Loss in
accordance with Section 9(c) or 9(e), as applicable. If an Event of
Loss due to Condemnation occurs during the Interim Term, Basic Term
or any Renewal Term, the Lessee shall give the Lessor and the
Indenture Trustee an Event of Loss Notice (or, if the Lessee fails
to give such notice, the Lessee shall be deemed to have given such
Event of Loss Notice as of the 30th day following such Event of
Loss) electing to terminate this Lease in accordance with Section
9(c) or 9(e), as applicable.
(b) Repair. Should damage, loss, condemnation, confiscation or
seizure occur that does not constitute an Event of Loss, (i) the Lessee shall
make or cause to be made such repairs as
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are necessary to ensure that the Project is repaired and restored to the
quality, value, utility and useful life prior to such occurrence (assuming the
Project was in the condition required hereunder), in compliance with Section
8(a); provided, however, that in no event shall the contemplated completion date
for such reconstruction extend past the then-current Lease Termination Date; and
(ii) this Lease shall continue, and each and every obligation of the Lessee
hereunder, including, without limitation, the obligation to pay Rent, and under
each Transaction Document shall remain in full force and effect until completion
of repair of the Project.
(c) Event of Loss During the Interim Term and Basic Term. If an
Event of Loss occurs during the Interim Term or the Basic Term and the Lessee
shall have delivered (or shall be deemed to have delivered) an Event of Loss
Notice electing to terminate this Lease, it shall make (or shall be deemed to
have made), by written notice to the Lessor and the Indenture Trustee
contemporaneously with such Event of Loss Notice, a Rejectable Offer pursuant to
Section 21 hereof to purchase the Project from the Lessor for a cash purchase
price (the "Event of Loss Purchase Price") equal to the sum of the Stipulated
Loss Value (determined as of the Loss Determination Date), plus Basic Rent due
and owing on or prior to such Loss Determination Date (other than Basic Rent
payable in advance on such Loss Determination Date), plus the Make Whole Amount
and all other amounts then due and owing under the Transaction Documents.
(d) Termination of Lease Term. Upon (i) in the event any Rejectable
Offer relating to an Event of Loss is accepted, a Transfer by the Lessor to the
Lessee pursuant to Section 21(d)(i) and the payment on or prior to the date of
such Transfer of the Event of Loss Purchase Price to the Indenture Trustee for
the account of the Lessor for application in accordance with the Indenture
(unless the Lien of the Security Documents shall have been discharged pursuant
to Section 10.1 of the Indenture, in which case such payment shall be paid to
and applied by the Corporate Owner Trustee on behalf of the Lessor), or (ii) in
the event any such Rejectable Offer is rejected, the payment on or prior to the
date on which this Lease is to terminate as herein provided by the Lessor and
the Lessee (for the Lessor's account) of the amounts described in Sections
21(c)(i) and 21(c)(ii), respectively, to the Indenture Trustee for application
in accordance with the Indenture (unless the Lien of the Security Documents
shall have been discharged pursuant to Section 10.1 of the Indenture, in which
case such payment shall be paid to and applied by the Corporate Owner Trustee on
behalf of the Lessor), the Lease Term shall end without further act on the part
of the Lessor or the Lessee and all of the Lessee's obligations hereunder (other
than any obligation expressed herein or in any other Transaction Document as
surviving termination of this Lease) shall cease.
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(e) Event of Loss During any Renewal Term. Subject to the right of
the Lessee to elect to reconstruct the Project as provided in Section
9(a)(ii)(A), if an Event of Loss occurs during any Renewal Term, the Lessee
shall have the option to terminate this Lease on any Basic Rent Payment Date
that is specified by the Lessee (a "Renewal Termination Date") in any Event of
Loss Notice given pursuant to Section 9(a), which proposed Renewal Termination
Date shall not be earlier than 90 days following such notice or later than the
second Basic Rent Payment Date following such notice. On the Renewal Termination
Date, the Lessee shall pay to the Corporate Owner Trustee on behalf of the
Lessor (or, in the case of Supplemental Rent, to the Person or Persons entitled
thereto) the sum of (i) any Basic Rent due on such Renewal Termination Date
(other than Basic Rent, if any, payable in advance on such Renewal Termination
Date), (ii) all Supplemental Rent (provided, however, that it is understood and
agreed that Stipulated Loss Value shall not be due or payable as a result of the
occurrence of an Event of Loss during any Renewal Term) due on such Renewal
Termination Date, (iii) any insurance or condemnation proceeds received by the
Lessee with respect to the Event of Loss (and to the extent the Lessee may be
entitled to such insurance or condemnation proceeds in the future, it shall
assign the rights to such proceeds to the Lessor) and the amount of any payments
which would have been due from any insurer but for the Lessee's self-insurance
and policy deductibles, and (iv) all other amounts then due under the
Transaction Documents, and upon such payment and upon compliance with Section 5,
the Lease Term shall end and all of the Lessee's obligations hereunder (other
than any obligation expressed herein or in any other Transaction Document as
surviving termination of this Lease) shall thereupon cease.
(f) Application of Payments on an Event of Loss. Payments received
by the Owner Trustees or the Lessor (other than proceeds of insurance carried by
the Owner Trustees, the Lessor or the Owner Participant pursuant to Section
10(b)), the Lessee (other than proceeds of insurance carried by or on behalf of
the Lessee pursuant to and within the limitations of Section 8(f) or Section
10(b), as the case may be) or the Indenture Trustee from any Governmental
Authority, insurer or other Person (plus the amount of any payments which would
have been due from an insurer but for the Lessee's self-insurance or policy
deductibles) as a result of an Event of Loss shall be applied (with any proceeds
received prior to the acceptance or rejection of any Rejectable Offer being held
by the Indenture Trustee (or after release of the Lien of the Security Documents
on the Indenture Estate in accordance with Section 10.1 of the Indenture, by the
Lessor), and invested in Permitted Investments at the direction of the Lessee,
until such Rejectable Offer is accepted (or deemed accepted) or rejected) as
follows:
(i) if the Lessor shall, in accordance with the provisions of
Sections 9(c) and 21, accept the Lessee's Rejectable Offer in
connection with an Event of Loss: (x) so much of such
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payments as shall not exceed the amount of Stipulated Loss Value and
the other amounts required to be paid by the Lessee pursuant to
Sections 9(c) and 21 shall be paid to and applied by the Indenture
Trustee in accordance with the Indenture (unless the Lien of the
Security Documents shall have been discharged pursuant to Section
10.1 of the Indenture, in which case such payment shall be paid to
and applied by the Corporate Owner Trustee on behalf of the Lessor)
in reduction of the Lessee's obligation to pay such amounts if not
already paid by the Lessee or, if already paid by the Lessee, shall
be paid to and applied by the Indenture Trustee in accordance with
the Indenture (unless the Lien of the Security Documents shall have
been discharged pursuant to Section 10.1 of the Indenture, in which
case such payment shall be paid to, and applied by, the Corporate
Owner Trustee on behalf of the Lessor) to reimburse the Lessee for
its payment of such amounts, and (y) any such payments that shall
exceed the aggregate of the amounts payable pursuant to clause (x)
above shall, in the case of insurance maintained by the Lessee
pursuant to Section 10(a) or payments received from any other Person
with respect to a Casualty Event, Requisition of Title or
Requisition of Use, be paid to, or retained by, and shall become the
unencumbered property of, the Lessee; or
(ii) if the Lessor shall, in accordance with the provisions of
Sections 9(c) and 21, reject the Lessee's Rejectable Offer in
connection with an Event of Loss: (x) the Indenture Trustee (unless
the Lien of the Security Documents shall have been discharged
pursuant to Section 10.1 of the Indenture, in which case such
payments shall be paid to and applied by the Corporate Owner Trustee
on behalf of the Lessor) shall be entitled to all such insurance
payments with respect to the Project and the Lessee shall pay to the
Indenture Trustee for application in accordance with the Indenture
(unless the Lien of the Security Documents shall have been
discharged pursuant to Section 10.1 of the Indenture, in which case
such payment shall be paid to and applied by the Corporate Owner
Trustee on behalf of the Lessor) any payments which would have been
due from an insurer but for the Lessee's self-insurance and policy
deductibles; and (y) in the case of amounts received with respect to
any Requisition of Title or Requisition of Use, all such amounts
shall, subject to the discharge of the Lien of the Security
Documents, be paid to the Lessee and the Corporate Owner Trustee on
behalf of the Lessor as the respective interests of the Lessee and
the Lessor may appear.
(g) Application of Payments Not Relating to an Event of Loss.
Payments received by the Lessor or by the Owner Trustees on behalf of the Lessor
(other than proceeds of insurance carried by the Owner Trustees, the Lessor or
the Owner Participant pursuant to Section l0(b)), by the Lessee (other than
proceeds of insurance
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carried by or on behalf of the Lessee pursuant to and within the limitations of
Section 8(f) or Section 10(b), as the case may be) or by the Indenture Trustee
from any Governmental Authority, insurer or other Person, plus any amounts
recovered by the Lessee as contemplated by the last sentence of Section 6(c)(ii)
(plus the amount of any payments which would have been due from an insurer but
for the Lessee's self-insurance or policy deductibles) with respect to any
destruction, damage, loss, condemnation, confiscation, theft, seizure of or
requisition of title not constituting an Event of Loss, shall be applied as
follows:
(i) all such payments from Governmental Authorities on account
of a Partial Taking which cannot be repaired, shall be paid over to,
held and applied by the Indenture Trustee in accordance with the
Indenture (unless the Lien of the Security Documents shall have been
discharged in accordance with Section 10.1 of the Indenture, in
which case such payments shall be paid over to, and retained by, the
Corporate Owner Trustee on behalf of the Lessor);
(ii) in all other cases, all such payments from insurers or
from other Persons, including Governmental Authorities, shall be
held by the Corporate Owner Trustee on behalf of the Lessor or (so
long as the Lien of the Security Documents shall not have been
discharged in accordance with Section 10.1 of the Indenture) the
Indenture Trustee as security for the obligations of the Lessee
under this Lease and invested in Permitted Investments at the
direction of the Lessee, but any amounts (including earnings on
Permitted Investments) so held shall be released and paid over to
the Lessee from time to time, in each case upon presentation to the
Corporate Owner Trustee and the Lessor or to the Indenture Trustee,
as the case may be, of a Lessee Request specifying the amount so to
be released, and annexing invoices (not previously used as a basis
for any release of funds pursuant to this Section 9(g))
demonstrating expenditures made or to be made by the Lessee upon
receipt of such funds for repair, rebuilding and restoration of the
Project, and certifying that (x) the funds requested will, to the
extent not applied to reimburse the Lessee for such expenditures
already made, be applied to the payment of such expenditures
incurred, (y) there exist no Liens (other than Permitted Liens) with
respect to such repair, rebuilding or restoration and (z) the
amounts remaining to be disbursed are fully sufficient to complete
such repair, rebuilding and restoration; provided, however, that if
the Lessee's unsecured senior debt rating is lower than the Approved
Rating (A) the Corporate Owner Trustee on behalf of the Lessor or
the Indenture Trustee, as applicable, shall release and pay over
such funds for the Lessor's account directly to the Person
performing such work or providing such services (or shall release
such funds by check payable jointly to the Lessee and such Person)
and (B) to the extent any such
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payments from insurers or from other Persons received by the
Corporate Owner Trustee on behalf of the Lessor or by the Indenture
Trustee, as applicable, shall be insufficient to pay the entire cost
of the repair, rebuilding or restoration as estimated by a qualified
engineer selected by the Person holding such funds (being the
Corporate Owner Trustee or the Indenture Trustee, as the case may
be), the Lessee shall be responsible for the amount of any such
deficiency by depositing such amount with the Person holding such
funds (being the Corporate Owner Trustee or the Indenture Trustee,
as the case may be) prior to the commencement of such repair,
rebuilding or restoration);
(iii) the balance, if any, remaining after completion of such
repair, rebuilding and restoration and payment therefor of such
payments representing proceeds of such insurance shall be paid over
to, or retained by, and shall become the unencumbered property of,
the Lessee; and
(iv) except in the case of clause (i) of this Section 9(g),
the balance, if any, remaining after completion of such repair,
rebuilding and restoration and payment therefor of such payments
representing condemnation proceeds or like proceeds shall be paid to
the Corporate Owner Trustee on behalf of the Lessor and the Lessee
as the respective interests of the Lessor and the Lessee may appear.
(h) Application During Lease Event of Default. Notwithstanding the
provisions of Section 6(d)(ii), the foregoing provisions of this Section 9 or
the provisions of Section 10, if a Material Lease Default or Lease Event of
Default shall have occurred and be continuing, any amount that would otherwise
be payable to or for the account of, or that would otherwise be retained by, the
Lessee pursuant to the last sentence of Section 6(c), Section 6(d)(ii), this
Section 9 or Section 10 shall be held, and invested by the Indenture Trustee (or
after discharge of the Lien of the Security Documents in accordance with Section
10.1 of the Indenture, by the Lessor) in Permitted Investments selected from
time to time by the Lessee, as security for the obligations of the Lessee under
this Lease until such time thereafter as no Material Lease Default or Lease
Event of Default shall be continuing, unless this Lease theretofore shall have
been declared in default pursuant to Section 16, in which event such amount may
be applied in accordance with the provisions of such Section 16 and (unless the
lien of the Security Documents shall have been discharged in accordance with
Section 10.1 of the Indenture) Section 6.10 of the Indenture; provided, however,
that if a Rejectable Offer is made (or deemed made) by the Lessee pursuant to
Sections 9(c) and 21 and such offer is accepted in accordance with the
provisions of Sections 9(c) and 21 and the Transfer in connection therewith is
consummated and the outstanding Notes and other amounts secured by the Lien of
the Security Documents are
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paid in full, then contemporaneously with such Transfer, the Lessee shall be
entitled to receive from the Indenture Trustee (or from the Lessor or the
Corporate Owner Trustee on behalf of the Lessor, as applicable) all such amounts
not previously applied to the Lessee's obligations unencumbered by any interest
of the Lessor.
SECTION 10. Insurance.
(a) Required Insurance.
(i) Subject to the provisions of Section 10(c), the Lessee
shall carry and maintain, or cause to be carried and maintained with
respect to the Project, at least the following insurance coverage,
in each case with insurers of recognized responsibility selected by
Lessee, having at least the Minimum Approved A.M. Best Rating
(except in the case of the Existing Insurers, each of whose ratings
are acknowledged by the Lessor and, by its acceptance of its Note,
the initial Lender to be acceptable to it as of the Closing Date),
subject to the last sentence of this Section 10(a)(i), or otherwise
reasonably acceptable to the Lessor and the Indenture Trustee, in
each case on terms and conditions that are consistent with the
Lessee's then current practices and with prudent practices then in
effect among companies owning property comparable to the Project:
(A) (i) "all risk" (including fire and extended
coverage, flood and earthquake property insurance covering
physical loss with respect to the Improvements for full
replacement value (but in no event less than the applicable
Stipulated Loss Value, exclusive of architectural and
engineering fees, excavation footings and foundations, and
(ii) comprehensive boiler coverage in an amount not less than
$2,000,000, each with such other terms as are in accordance
with general insurance standards prevalent in the ownership of
commercial office buildings of comparable size and quality in
the Atlanta, Georgia, metropolitan area, each endorsed to
provide that (1) losses shall be adjusted as provided in
Section 10(a)(iii), (2) the Corporate Owner Trustee, the
Lessor, the Owner Participant and, so long as any Notes are
outstanding, the Indenture Trustee and the Noteholders
(collectively, the "Loss Payees") are included as the loss
payees, as their interests may appear, but shall not be liable
for the payment of premiums, (3) the insurer thereunder waives
all rights to subrogation against the Loss Payees with respect
to their respective interests in the Improvements, (4) such
insurance shall be primary without right of contribution of
any other insurance carried by or on behalf of any Loss Payee
with respect to its interest in the Improvements, and (5) no
cancellation or material adverse change that would affect the
interests
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of any Loss Payee with respect to the Project shall be
effective as to any Loss Payee until at least 30 days after
receipt by such Loss Payee of written notice thereof (or until
at least 10 days after receipt if such notice states that
cancellation is due to non-payment of any premium);
(B) commercial general liability insurance, including,
but not limited to contractors, independent contractors,
premises/operation and personal injury liability coverage or
endorsements, bodily injury and property damage liability
insurance covering claims arising out of the ownership,
operation, maintenance, condition or use of the Project in
such amounts and having such terms and provisions as are
comparable to the commercial general liability insurance which
is carried by the Lessee with respect to other office
buildings occupied by it (but in no event less than
$15,000,000 per occurrence) and endorsed as provided in
clauses (2), (3), (4) and (5) of Section 10(a)(i)(A), except
that the term "Loss Payees" wherever it appears therein shall
be deemed to refer to such Persons as "Additional Insureds";
(C) workers' compensation insurance covering all
employees of the Lessee in connection with any work done on or
about the Project or any part thereof for which claims for
death, disease or bodily injury may be asserted against the
Lessor, the Lessee, the Project, or any portion thereof, or,
in lieu of such workers' compensation insurance, a program of
self-insurance complying with the rules, regulations and
requirements of the appropriate agency of the State of
Georgia;
(D) during any period in which a Modification at the
Project is being undertaken at a cost of $1,000,000 or more,
the Lessee shall maintain or cause to be maintained builder's
risk insurance covering the total completed value including
any "soft costs" with respect to the Improvements being
altered or repaired, replacement cost of work performed and
equipment, supplies and materials furnished in connection with
such construction or repair of Improvements or Equipment,
including "soft costs" and such other endorsements as the
Lessor may reasonably require and general liability, workers'
compensation and automobile liability insurance with respect
to the Improvements being constructed, altered or repaired;
and
(E) such other insurance relating to the operation and
maintenance of the Project in such amounts and covering such
risks as may be required by Applicable Law.
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Notwithstanding any provision of this Section 10(a)(i) to the
contrary, if (i) the A.M. Best rating of any Existing Insurer
whose rating was less than the Minimum A.M. Best Approved
Rating on the Closing Date declines to and remains at a lower
rating for a period of 30 days or (ii) the A.M. Best rating of
any other insurer declines to and remains at a rating lower
than the Minimum A.M. Best Approved Rating for a period of 30
days, the Lessee in either case shall have the right (without
there having occurred in consequence thereof a Lease Default
or a Lease Event of Default under this Section 10(a)) to
replace such insurer with an insurer having at least the
Minimum A.M. Best Approved Rating by giving written notice to
the Lessor and the Indenture Trustee of such replacement
insurer within 60 days after any such decline in rating
occurred.
(ii) Except with respect to self-insurance, the Lessee
shall provide the Corporate Owner Trustee, the Lessor and the
Indenture Trustee, at least once each applicable policy year
for each of the property insurance and the liability
insurance, with certificates of insurance for the coverage
required to be maintained under this Section 10 substantially
in the forms delivered on the Closing Date. As soon as
practicable after the end of each such policy year of the
Lessee, and in any event within thirty (30) days after the end
of each such policy year of the Lessee, the Lessee shall
deliver to the Corporate Owner Trustee, the Lessor, the Owner
Participant and the Indenture Trustee a certificate of an
independent insurance broker or consultant reasonably
satisfactory to the Lessor and the Indenture Trustee (which
may be the Lessee's regular insurance broker, provided, that
such regular insurance broker is one of the Lessee's regular
insurance brokers existing on the Closing Date or is another
reputable and responsible insurance broker) setting forth the
property or liability insurance (as the case may be) obtained
by the Lessee pursuant to this Section 10 and as then in
effect, stating (i) that such insurance is in full force and
effect and (ii) that all premiums then due thereon have been
paid and (iii) that, in the opinion of such independent
insurance broker or consultant, such insurance policies comply
with the requirements of this Section 10. The Lessee may
provide certificates from different insurance brokers or
consultants for property insurance and liability insurance.
(iii) All losses shall be adjusted with the insurance
companies and all insurance proceeds shall be collected,
including by the filing of appropriate proceedings, by or on
behalf of the Lessee (with the prior written consent of the
Corporate Owner Trustee and (unless the Lien of the Security
Documents shall have been discharged in accordance with
Section 10.1 of the Indenture) the Indenture Trustee if a
Material Lease Default or a Lease Event of Default shall have
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occurred and be continuing), and all insurance proceeds paid
in respect of insurance maintained pursuant to Section 10(a)
shall be paid and be applied as provided in Section 9(f), 9(g)
or 9(h), as the case may be, subject, however, to any priority
allocations of such proceeds as required under Applicable Law.
(iv) Subject to the provisions of Section 10(c), the
Lessee shall obtain endorsements to the insurance policies
carried pursuant to Section 10(a)(i)(A) and Section
10(a)(i)(B) providing that (x) the insurers waive any right of
set-off or counterclaim or any other deduction, whether by
attachment or otherwise, in respect of any liability of the
Lessee or any Loss Payee and (y) the respective interests of
any Loss Payee or Additional Insured shall not be invalidated
by any act or neglect by the Lessee, including breach of any
warranty contained in such policies, foreclosure on the
Project or change in title or ownership thereof.
(b) Other Insurance. Nothing in this Section 10 shall prohibit the
Lessee from maintaining at its expense insurance on or with respect to the
Project, naming the Lessee as insured and/or loss payee for an amount greater
than the insurance required to be maintained under this Section 10, unless such
insurance would conflict with or otherwise limit the availability of insurance
which is required under Section 10(a) or permitted by the next sentence of this
Section 10(b). Nothing in this Section 10 shall prohibit the Corporate Owner
Trustee, the Lessor or the Owner Participant from maintaining at its expense
other insurance on or with respect to the Project or the operation, use and
occupancy of the Project, naming the Lessor or the Owner Participant as insured
and/or loss payee, unless such insurance would conflict with or otherwise limit
the insurance required to be maintained under Section 10(a).
(c) Insurance to be Commercially Available. So long as the Lessee's
senior unsecured debt rating is at least equal to the Approved Rating, in the
event that any insurance required to be maintained by the Lessee pursuant to
this Section 10 is not maintained by owners of buildings of comparable size and
quality in the Atlanta, Georgia metropolitan area and is not available at
commercially reasonable rates, as determined by an Independent Insurance Broker,
then the Lessee shall only be required to maintain such coverages or insurance
at such levels as is maintained by the owners of such buildings, the provisions
of this Section 10 to the contrary notwithstanding.
(d) Self Insurance. So long as the Lessee's unsecured senior debt
rating is at least equal to the Approved Rating, the Lessee may satisfy the
requirements of this Section 10 through self-insurance or deductibles in amounts
not exceeding (i) the first $4,000,000 of insurance required for coverages of
the type described in Sections 10(a)(i)(A) and 10(a)(i)(D) and (ii) the
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first $4,000,000 of insurance required for coverages of the type described in
Sections 10(a)(i)(B), 10(a)(i)(C) and 10(a)(i)(E); provided that such
self-insurance or deductible amounts shall not exceed $1,000,000 in either case
if the Lessee's unsecured senior debt rating is less than the Approved Rating.
SECTION 11. Rights To Assign or Sublease; Assignment as Security;
Attornment.
(a) Sublease by the Lessee. So long as no Material Lease Default or
Lease Event of Default has occurred and is continuing, the Lessee may, without
the prior written consent of the Owner Trustees, the Lessor or the Indenture
Trustee, sublease the Project (or any portion thereof) to any Person, provided,
that (i) such sublease shall be expressly subject and subordinate to this Lease,
(ii) except for the ISSC Lease, any such sublease having a term longer than 12
months shall be assigned (at the Lessee's expense) by the Lessee to the Lessor
as security for the payment and performance of the Lessee's obligations under
this Lease and, if the Lien of the Security Documents has not been discharged in
accordance with Section 10.1 of the Indenture, such sublease shall be further
assigned (at the Lessee's expense) by the Lessor to the Indenture Trustee as
security for the payment and performance of the Lessor's obligations under the
Indenture (provided that rental payments pursuant to any such sublease shall not
be required to be made to or otherwise vest in the Lessor or the Indenture
Trustee, as the case may be, and neither the Lessor nor the Indenture Trustee
shall have any right to exercise any right or remedy under such sublease as
Lessor thereunder (to the exclusion of the Lessee) unless and until, in either
such case, a Material Lease Default or Lease Event of Default shall have
occurred and be continuing); (iii) such sublease shall not release the Lessee
from or impair the liability of the Lessee under any of its obligations as the
Lessee hereunder or in respect of any of its obligations under any of the other
Transaction Documents (and notwithstanding any permitted sublease the liability
and obligations of the Lessee hereunder shall be and remain those of a principal
and not a guarantor or surety); (iv) such Person is not a Tax-Exempt Entity; (v)
the Lessee shall give the Corporate Owner Trustee and the Lessor and (unless the
Security Documents shall have been discharged in accordance with Section 10.1 of
the Indenture) the Indenture Trustee written notice of each such sublease at
least 10 Business Days prior to the execution thereof, together with a copy of
each such sublease and (vi) no such sublease shall be for a period of time
longer than the then-current Lease Term minus one day. The Lessor hereby
irrevocably agrees for the benefit of each subtenant under any sublease made by
the Lessee in accordance with this Section 11, that prior to the Lease
Termination Date, in the case of the ISSC Lease, and (unless otherwise approved
by the Lessor in writing) prior to the earlier of (x) the Lease Termination
Date, and (y) the date on which the Notes are declared to be due and payable
pursuant to the Indenture as a result of an Indenture Event
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of Default which is also a Lease Event of Default, in the case of all other
subleases, the possession and other rights of the subtenant under any such
sublease shall not be disturbed or affected by the Lessor so long as no default
by the subtenant exists under the terms of such sublease (after notice and an
opportunity to cure, if any, as provided in such sublease) as would entitle the
Lessee (as sublandlord) to dispossess the subtenant or terminate such sublease.
Without limiting the foregoing, the Lessor shall deliver to the Lessee for the
benefit of the applicable subtenant under any sublease made by the Lessee in
accordance with this Section 11, within fifteen (15) Business Days after the
Lessee's request therefor, a confirmation of the terms of this Section 11(a) as
applicable to the particular subtenant.
(b) Assignment by the Lessee.
(i) Assignment to an Affiliate. So long as no Material Lease
Default or Lease Event of Default has occurred and is continuing,
the Lessee may, without the prior consent of the Owner Trustees, the
Lessor or the Indenture Trustee, assign all or any of its right,
title and interest in and to this Lease or the Project (or any
portion thereof) to any Affiliate of the Lessee; provided, that such
assignment shall not release the Lessee from any of its obligations
under this Lease or in respect of any of its obligations under any
of the other Transaction Documents (which shall be and remain those
of a principal and not a guarantor or surety).
(ii) Other Assignments. Except as otherwise set forth in
Section 11(b)(i), the Lessee may not, without the prior written
consent of the Corporate Owner Trustee, and Lessor and (unless the
Lien of the Security Documents shall have been discharged in
accordance with Section 10.1 of the Indenture) the Indenture
Trustee, assign any of its right, title and interest in and to this
Lease or the Project (or any portion thereof) to any Person. Any
subsequent transfer of "control" (as defined in the definition of
"Affiliate") of the Affiliate of the Lessee to which the Lessee
previously shall have assigned any interest in the Lease pursuant to
Section 11(b)(i) hereof shall constitute an assignment for purposes
of this Section 11(b)(ii).
(iii) Opinion of Counsel. In connection with any assignment or
subletting pursuant to this Section 11, the instrument of assignment
or the sublease shall be in writing and the Lessee shall, at its
expense, (x) deliver to the Owner Participant an opinion of
nationally recognized tax counsel selected by the Lessee after
consultation with the Owner Participant and reasonably acceptable to
the Owner Participant that the assignment or subleasing entered into
in accordance with this Section 11 does not cause adverse tax
consequences to the Owner Participant (provided that such tax
consequences
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relate to reasonably anticipated federal, state and local leveraged
leasing criteria as currently taken into account in the Pricing
Assumptions and based on the law, regulations and precedents as they
exist at the time of the assignment or subleasing) and (y) deliver to
the Owner Participant, the Corporate Owner Trustee, the Lessor, the
Indenture Trustee and the Noteholders an opinion of nationally
recognized counsel to the effect that the instrument of assignment or
sublease has been duly authorized, executed and delivered and
constitutes the legal, valid and binding obligation of the assignee,
enforceable in accordance with its terms, subject to customary
exceptions for bankruptcy and equitable principles.
(c) Security for Lessor's Obligation to Noteholders. To secure
payment of the indebtedness evidenced by the Notes, together with interest
accrued thereon, the Make Whole Amount, if any, and other sums from time to time
due and owing to the Indenture Trustee and/or the Noteholders pursuant to the
Transaction Documents and to secure performance of the obligations of the Lessor
under the Security Documents, the Lessor, pursuant to the Security Documents,
has on and as of the Closing Date assigned to the Indenture Trustee (i) its
right, title and interest (excluding only any Excepted Rights and Excepted
Payments) in and to this Lease, including the right to receive certain payments
of Rent (excluding only any Excepted Rights and Excepted Payments), upon the
terms and conditions contained in the Security Documents, and (ii) granted a
first mortgage Lien and security interest in and to its right, title and
interest in and to the Indenture Estate. The Lessee hereby (w) consents to such
assignment and grant and to the terms of the Security Documents, (x) agrees to
pay by wire transfer of immediately available funds directly to the Indenture
Trustee at such Indenture Trustee's Office (until the Lien of the Security
Documents shall have been discharged in accordance with Section 10.1 of the
Indenture, and thereafter to the Corporate Owner Trustee on behalf of the
Lessor) on the Lessor's behalf all amounts of Rent (other than Excepted Rights
and Excepted Payments) due or to become due to the Lessor, and (y) agrees that,
except as otherwise expressly restricted in the Security Documents (until the
Lien of the Security Documents shall have been discharged in accordance with
Section 10.1 of the Indenture), the Indenture Trustee shall have or shall share
with the Lessor the rights of the Lessor hereunder (other than Excepted Rights
and the right to receive Excepted Payments).
(d) Assignments by the Lessor. During the Lease Term, the Lessor may
not transfer, sell or convey the Project (or any part thereof) or assign or
delegate its rights and obligations under this Lease, except as contemplated by
Sections 8(e), 9(c), 11(c), 13, 14, 16, 19 and 21 of this Lease and as expressly
permitted pursuant to Sections 11 and (pound)3.9 of the Trust Agreement and
Article VIII of the Participation Agreement. Notwithstanding anything to the
contrary contained herein, this Section 11(d) shall not be
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applicable to the Indenture Trustee or its successor if the Indenture Trustee or
its successor has become the owner of the Project pursuant to Section 6 of the
Indenture.
SECTION 12. Lease Renewal.
(a) Option for Fixed-Rate Renewal. Subject to the notice
requirements set forth in Section 12(d) and to the provisions of Sections 12(e)
and 12(f), so long as no Lease Event of Default shall have occurred and be
continuing Cat the time of the notice referred to in Section 12(d) or at the
time of the exercise of the renewal option hereinafter described), the Lessee
shall have the option to renew the term of this Lease for one period of two
years (the "Fixed-Rate Renewal Term") at the end of the Basic Term. During the
Fixed-Rate Renewal Term, the Lessee shall pay to the Corporate Owner Trustee,
for the account of the Lessor, Basic Rent in semiannual installments in advance
on each Basic Rent Payment Date equal to the Fixed-Rate Renewal Basic Rent.
Except as expressly provided in this Lease, the rights and obligations of the
Lessor and the Lessee hereunder during the Fixed-Rate Renewal Term shall be the
same as for the Basic Term.
(b) Fair Market Renewal Options. Subject to the notice requirements
set forth in Section 12(d) and to the provisions of Sections 12(e) and 12(f), so
long as no Lease Event of Default shall have occurred and be continuing (at the
time of the notice referred to in Section 12(d) or at the time of the exercise
of the renewal option hereinafter described), the Lessee shall have the option
to renew the term of this Lease at the end of the Fixed-Rate Renewal Term or any
Fair Market Renewal Term for an aggregate of five successive periods of five
years each (each such period being herein called a "Fair Market Renewal Term").
During each Fair Market Renewal Term, the Lessee shall pay to the Corporate
Owner Trustee, for the account of the Lessor, Basic Rent in semiannual
installments in advance on each Basic Rent Payment Date during such Renewal Term
equal to forty-two and one-half percent (42.5%) of the annual Fair Market Rental
value of the Project (as determined, with respect to any Fair Market Renewal
Term, pursuant to Section 12(f)). Except as expressly provided in this Lease,
the rights and obligations of the Lessor and the Lessee hereunder during each
Fair Market Renewal Term shall be the same as for the Basic Term.
(c) Short-Term Lease Extensions. Subject to the notice requirements
set forth in Section 12(d) and to the provisions of Sections 12(e) and 12(f), so
long as no Lease Event of Default shall have occurred and be continuing (at the
time of the Notice referred to in Section 12(d) or at the time of the exercise
of the renewal option hereinafter described), the Lessee shall have the option
to renew the term of this Lease at the end of the Basic Term, the Fixed-Rate
Renewal Term or any Fair Market Renewal Term for an aggregate of up to six
successive periods of three months each (each such period being herein called a
"Short-Term Renewal").
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During each Short-Term Renewal, the Lessee shall pay to the Corporate Owner
Trustee, for the account of the Lessor, Basic Rent in quarterly installments in
advance on the first Business Day of each Short-Term Renewal equal to (i) in the
event such Short-Term Renewal immediately follows the Basic Term, one-fourth of
the average of the actual annual Basic Rent paid by Lessee during the Basic
Term, (ii) in the event such Short-Term Renewal immediately follows the
Fixed-Rate Renewal Term, one-fourth of the average of the actual annual Basic
Rent payable during such Fixed-Rate Renewal Term, and (iii) in the event such
Short-Term Renewal immediately follows a Fair Market Renewal Term, one-fourth of
the average of the actual annual Basic Rent payable during such immediately
preceding Fair Market Renewal Term. Except as expressly provided in this Lease,
the rights and obligations of the Lessor and the Lessee hereunder during any
Short-Term Renewal shall be the same as for the Basic Term.
(d) Notice at Expiration off Lease Term. Not later than 365 days
prior to the expiration date of the Basic Term and, if applicable, each Renewal
Term, the Lessee shall notify the Corporate Owner Trustee and the Lessor as to
whether it will renew the term of this Lease pursuant to Section l2(a), 12(b) or
12(c), as applicable, or return the Project to the Lessor pursuant to Section 5
on the Lease Termination Date. Failure of the Lessee to give any such notice
shall mean that the Lessee is deemed to have elected to return the Project. The
Lessee shall not be entitled to give any notice of renewal pursuant to this
Section 12(d) at any time a Lease Event of Default shall have occurred and be
continuing.
(e) Elections Irrevocable. Any election made by the Lessee pursuant
to Section 12(d) shall be irrevocable by the Lessee, and such election shall be
binding on the Lessor unless, on the effective date thereof, a Lease Event of
Default shall have occurred and be continuing.
(f) Determination of Fair Market Rental Value. If the Lessee shall
give to the Corporate Owner Trustee and the Lessor notice of its election to
renew this Lease pursuant to Section 12(b) then, not later than 270 days prior
to the expiration date of the Basic Term or the then-current Renewal Term, as
applicable, the Lessee and the Lessor shall attempt in good faith to agree upon
the Fair Market Rental Value of the Project during such Fair Market Renewal
Term. If the Lessee and the Lessor are unable to agree upon any such amount,
such value shall be determined by the Appraisal Procedure.
(g) Assistance with Disposition. From and after the date of the
Lessee's election to return the Project pursuant to Section 12(d) or the
Lessee's election not to purchase the Project pursuant to Section 19 of this
Lease or the Owner Participant's Interest pursuant to Section 8.02 of the
Participation Agreement or the date
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of the Lessee's irrevocable election to terminate this Lease pursuant to Section
9(d), 9(e), 13(b) or 14(b) of this Lease, the Lessee shall cooperate with the
reasonable requests of the Lessor in its effort to sell or lease the Project to
be returned for a term following the Lease Termination Date including making the
Project available for view upon reasonable advance notice (but not limiting the
right of the Corporate Owner Trustee, the Lessor or the Owner Participant to
show the Project to prospective bona fide buyers) , subject in all events to
reasonable restrictions consistent with Section 8(b) (excluding the proviso
thereto)
(h) Renewal Options After Event of Loss. So long as no Lease Event
of Default has occurred and is continuing, if the Lessee elects to reconstruct
the Project pursuant to clause (A) of Section 9(a)(ii) after any Event of Loss
which occurs within the last two (2) years of the Basic Term or any then-current
Renewal Term, the Lessee shall (as a condition to its right to reconstruct the
Project) also elect to renew the term of this Lease for the next succeeding
Fixed-Rate Renewal Term or Fair Market Renewal Term, as applicable, by giving
irrevocable notice with respect thereto in accordance with Section 12(d)
(whether or not such notice would have been due to have been given by the terms
of Section 12(d) at such time) contemporaneously with the delivery of the Event
of Loss Notice pursuant to clause (A) of Section 9(a)(ii)
SECTION 13. Burdensome Buyout Purchase Right.
(a) Burdensome Buyout Purchase Right. So long as no Material Lease
Default or Lease Event of Default has occurred and is continuing, if the Lessee
determines that a Burdensome Buyout Event has occurred, it shall have the right
to make a Rejectable Offer in accordance with Sections 13(b) and 21 hereof to
purchase the Project for a cash purchase price (the "Burdensome Buyout Purchase
Price") equal to the greater of (i) the sum of (A) the Stipulated Loss Value,
computed in accordance with Schedule 2.1 or 2.3, as applicable, for the
Burdensome Buyout Purchase Date specified in the Lessee's notice delivered
pursuant to Section 13(b), plus (B) Basic Rent due and owing on or prior to the
Burdensome Buyout Purchase Date (other than Basic Rent payable in advance on the
Burdensome Buyout Purchase Date), plus (C) Supplemental Rent in an amount equal
to the Make Whole Amount, if any, then due on the Notes, plus (D) any other
amounts then due and owing under the Transaction Documents, and (ii) the sum of
(A) the Fair Market Sales value of the Project (excluding the value of the
Lease), plus (B) Basic Rent due and owing on or prior to the Burdensome Buyout
Purchase Date (other than Basic Rent payable in advance on the Burdensome Buyout
Purchase Date), plus (C) Supplemental Rent in an amount equal to the Make Whole
Amount, if any, then due on the Notes, plus (D) any other amounts then due and
owing under the Transaction Documents.
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(b) Notice. If the Lessee wishes to exercise its rights set forth in
Section 13(a), it shall give the Lessor, the Corporate Owner Trustee and (unless
the Lien of the Security Documents shall have been discharged in accordance with
Section 10.3. of the Indenture) the Indenture Trustee written notice (which
shall be irrevocable) of such election (the "Burdensome Buyout Notice"), not
later than 180 days prior to any Basic Rent Payment Date that is specified by
the Lessee in such notice (the "Burdensome Buyout Purchase Date"), which notice
shall be accompanied by a true, correct and complete copy of the determination
of the Board of Directors of the Lessee that a Burdensome Buyout Event has
occurred and the certificate of a Responsible Officer of the Lessee certifying
the facts related thereto. Not more than 60 nor less than 30 days prior to such
Burdensome Buyout Purchase Date, the Lessee shall deliver an Officer's
Certificate to the Corporate Owner Trustee and the Lessor and, on behalf of the
Lessor, to the Indenture Trustee and each Noteholder specifying (i) the
Burdensome Buyout Purchase Date, (ii) that the principal amount of the
outstanding Notes will be prepaid by the Lessor on such date, (iii) that a
Make-Whole Amount may be payable by the Lessor, (iv) the date when such
Make-Whole Amount will be calculated, (v) the estimated Make-Whole Amount, (vi)
the estimated accrued interest applicable to such prepayment based upon the Debt
Rate then applicable, and (vii) the sections of this Lease and the Indenture
pursuant to which such prepayment shall be made. Contemporaneously with the
delivery of such Officer's Certificate, the Lessee shall deliver a written
notice to Trust Company Bank (or its successor) requesting that it calculate the
Make Whole Amount so as to permit the Indenture Trustee to give the notice
described in the next sentence. Three Business Days prior to the Burdensome
Buyout Purchase Date, the Indenture Trustee shall provide the Corporate Owner
Trustee and the Lessee written notice of the Make-Whole Amount, if any, payable
by the Lessor in connection with the prepayment of the Notes and the termination
of this Lease and a reasonably detailed computation of the Make-Whole Amount as
of the Burdensome Buyout Purchase Date, determined three Business Days prior to
such date.
(c) Determination of Fair Market Sales Value. If the Lessee makes a
Rejectable Offer pursuant to this Section 13 and Section 21, the Lessee and the
Lessor shall attempt in good faith to agree upon the Fair Market Sales Value. If
the Lessee and the Lessor are unable to agree upon such Fair Market Sales Value
promptly, such value shall be determined by the Appraisal Procedure.
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SECTION 14. Early Termination; Obsolescence or Uneconomic Usefulness
Termination.
(a) Obsolescence or Uneconomic Usefulness Termination.
(i) Obsolescence Termination Notices. If, at any time after the
tenth anniversary of the Closing Date and prior to the Lease Termination
Date, the Board of Directors of the Lessee shall have determined, in good
faith, that the Project has become obsolete, surplus or uneconomic to the
needs of the Lessee, the Lessee shall have the option, so long as no Lease
Event of Default shall have occurred and be continuing at the time of
exercise, to terminate this Lease on any Basic Rent Payment Date that is
specified by the Lessee (an "Obsolescence Termination Date") in a notice
(such notice to be accompanied by an Officer's Certificate confirming the
facts of such obsolescence or such surplus or uneconomic nature and by a
true, correct and complete copy of the determination of the Board of
Directors of the Lessee of such obsolescence or such surplus or uneconomic
nature) to the Corporate Owner Trustee, the Lessor, the Indenture Trustee
and the Noteholders to such effect (an "Obsolescence Termination Notice")
given not later than 180 days prior to the proposed Obsolescence
Termination Date. Not more than 60 nor less 30 days prior to such
Obsolescence Termination Date (if the Obsolescence Termination Notice has
not been revoked), the Lessee shall deliver an Officer's Certificate to
the Corporate Owner Trustee and the Lessor and, on behalf of the Lessor,
to the Indenture Trustee and each Noteholder specifying (i) the
Obsolescence Termination Date, (ii) that the principal amount of the
outstanding Notes will be prepaid by the Lessor on such date, (iii) that a
Make Whole Amount may be payable by the Lessor, (iv) the date when such
Make Whole Amount will be calculated, (v) the estimated Make Whole Amount,
(vi) the estimated accrued interest applicable to such prepayment based
upon the Debt Rate then applicable, and (vii) the sections of this Lease
and the Indenture pursuant to which such prepayment shall be made.
Contemporaneously with the delivery of such Officer's Certificate, the
Lessee shall deliver a written notice to Trust Company Bank (or its
successor) requesting that it calculate the Make Whole Amount so as to
permit the Indenture Trustee to give the notice described in the next
sentence. Three Business Days prior to the Obsolescence Termination Date,
the Indenture Trustee shall provide the Corporate Owner Trustee and the
Lessee written notice of the Make Whole Amount, if any, payable by the
Lessor in connection with the prepayment of the Notes and the termination
of this Lease and a reasonably detailed computation of the Make Whole
Amount as of the Obsolescence Termination Date, determined three Business
Days prior to such date. The Lessee may revoke such Obsolescence
Termination Notice at any time prior to 30 days before the Obsolescence
Termination Date; provided,
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however, that Lessee may not revoke such an Obsolescence Termination
Notice more than two times; and provided, further, that the Lessee shall
pay all reasonable out-of-pocket expenses of the Corporate Owner Trustee,
the Indenture Trustee, the Lessor and the Owner Participant in connection
with such revoked termination option.
(ii) Events Prior to Obsolescence Termination Date.
(A) No later than 90 days after its receipt of an Obsolescence
Termination Notice, the Lessor shall have the right to elect, by
written notice to the Lessee, the Indenture Trustee and the
Noteholders, to retain the Project, in which case it shall (or shall
cause the Corporate Owner Trustee to), as an absolute and
unconditional precondition to its right to retain the Project,
deposit with the Indenture Trustee, (x) no later than the 60th day
prior to the scheduled Obsolescence Termination Date, cash in
Dollars in an amount equal to the aggregate principal amount of the
outstanding Notes, together with estimated accrued and unpaid
interest based upon the Debt Rate then applicable due and owing
through and including the Obsolescence Termination Date (which
deposit shall be returned only if, and promptly after, the Lessee
revokes its Obsolescence Determination Notice) and (y) on the
Obsolescence Termination Date, an amount equal to the excess, if
any, of the actual accrued and unpaid interest due on the
Obsolescence Termination Date on the Notes over the estimated
accrued interest amount previously deposited, and the Lessee shall
deposit, on behalf of the Lessor, not later than the second Business
Day prior to the scheduled Obsolescence Termination Date, with the
Indenture Trustee cash in Dollars in an amount equal to the Make
Whole Amount, if any, due on the Notes as of and on the Obsolescence
Termination Date together with any other sum (exclusive of principal
and interest) payable to the Indenture Trustee or the Noteholders
pursuant to the Transaction Documents; provided that if the Lessor
fails for any reason whatsoever to make (or cause to be made) its
deposit on the date required by this Section 14(a)(ii)(A), the
Lessee shall proceed with the sale of the Project pursuant to
Section 14(a)(ii)(B); and provided further that if the estimated
accrued interest amount previously deposited with the Indenture
Trustee exceeds the accrued interest payable to the Noteholders on
the Obsolescence Termination Date, the Indenture Trustee shall
refund such excess to the Lessor.
(B) Unless Lessor shall have elected to retain ownership
pursuant to Section 14(a)(ii)(A) and shall have complied fully with
such Section, the Lessee, as agent for the Lessor, shall use its
best efforts to obtain cash bids
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for the purchase of the Project. The Lessor also shall have the
right to obtain such cash bids, either directly or through agents
other than the Lessee. The Lessee shall certify to the Corporate
Owner Trustee, the Lessor and the Owner Participant the amount and
terms of each bid received by the Lessee and the name and address of
the Person (who shall not be the Lessee or any Affiliate of the
Lessee) that submitted such bid. The Lessor shall be under no duty
to solicit bids, to inquire into the efforts of the Lessee to obtain
bids or otherwise to take any action in connection with any such
proposed termination of the Lease other than to effect a Transfer to
the Person named in the highest cash bid certified by the Lessee to
the Corporate Owner Trustee and the Lessor or obtained by the Lessor
against receipt on the Obsolescence Termination Date by the Lessor
of an amount equal to at least the greater of the cash purchase
price or the sum of (A) the Stipulated Loss Value calculated as of
the Obsolescence Termination Date, plus (B) an amount equal to the
Make Whole Amount, if any, then due on the Notes, plus (C) Basic
Rent then due and owing (other than Basic Rent payable in advance on
the Obsolescence Termination Date), plus (D) all other amounts then
due and owing by the Lessee under the Transaction Documents. Should
there be no bidder for the Project at least 35 days prior to the
scheduled Obsolescence Termination Date, then, notwithstanding the
first proviso to Section 14(a)(i), the Lessee shall be deemed to
have revoked its Obsolescence Termination Notice (and shall
promptly, and in any event within 5 days, notify the Indenture
Trustee and the Noteholders of such revocation), this Lease shall
continue in full force and effect and the Lessee shall pay on
demand, as Supplemental Rent, all reasonable out-of-pocket expenses
incurred by the Corporate Owner Trustee, the Lessor, the Owner
Participant, the Indenture Trustee and the Noteholders in connection
with such revoked termination option.
(iii) Events on Obsolescence Termination Date.
(A) In the event that the Lessor has elected to retain
ownership of the Project pursuant to, and has otherwise complied
with, Section 14(a)(ii)(A), on the Obsolescence Termination Date,
upon payment by the Lessee to the Indenture Trustee for the account
of the Lessor for application in accordance with the Indenture
(unless the Lien of the Security Documents shall have been
discharged in accordance with Section 10.1 of the Indenture, in
which case such payment shall be paid to, and applied by, the
Corporate Owner Trustee for the account of the Lessor) on the
Obsolescence Termination Date of (l) any Basic Rent due and owing on
the Obsolescence Termination Date (other
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than Basic Rent payable in advance on the Obsolescence Termination
Date), (2) Supplemental Rent in an amount equal to the Make Whole
Amount, if any, then payable on the outstanding Notes and (3) all
other Supplemental Rent (other than Stipulated Loss Value) and other
amounts then due and owing under the Transaction Documents, the
Lease Term shall end on the Obsolescence Termination Date and all of
the Lessee's obligations hereunder (other than any obligation
expressed herein or in any other Transaction Document as surviving
the termination of this Lease) shall thereupon cease.
(B) Unless the Lessor has elected to retain ownership pursuant
to Section 14(a)(ii)(A) and has complied fully with the terms
thereof, the Lessor shall, on the Obsolescence Termination Date (but
only upon receipt of the sale price and all additional payments
specified in the next sentence) effect a Transfer for cash to the
Person that submitted the highest bid prior to such date (should
such a Person exist). The Sale Proceeds shall be paid to the
Indenture Trustee for application in accordance with the Indenture
(unless the Lien of the Security Documents shall have been
discharged in accordance with Section 10.1 of the Indenture, in
which case such payment shall be paid to, and applied by, the
Corporate Owner Trustee for the account of the Lessor) and, in
addition, on such Obsolescence Termination Date the Lessee shall pay
to the Indenture Trustee for application in accordance with the
Indenture (unless the Lien of the Security Documents shall have been
discharged in accordance with Section 10.1 of the Indenture, in
which case such payment shall be paid to, and applied by, the
Corporate Owner Trustee for the account of the Lessor) the sum of
(l) Supplemental Rent in an amount equal to the excess, if any, of
the Stipulated Loss Value determined as of such Obsolescence
Termination Date, over the Sale Proceeds, plus (2) any Basic Rent
due and owing on the Obsolescence Termination Date (other than Basic
Rent payable in advance on the Obsolescence Termination Date), plus
(3) Supplemental Rent in an amount equal to the Make Whole Amount,
if any, payable on the outstanding Notes, plus (4) all other amounts
then due and owing under the Transaction Documents on the
Obsolescence Termination Date. If for any reason no sale of the
Project shall occur on or as of the Obsolescence Termination Date,
then, notwithstanding the first proviso to Section 14(a)(i), the
Lessee shall be deemed to have revoked its Obsolescence Termination
Notice (and shall promptly, and in any event within 5 days, notify
the Indenture Trustee and the Noteholders of such revocation), this
Lease shall continue in full force and effect and the Lessee shall
pay on demand all reasonable costs and expenses of the Corporate
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Owner Trustee, the Lessor, the Owner Participant, the Indenture
Trustee and any Noteholders in connection with such revoked
termination option. Upon payment by the Lessee of all amounts
payable by it under this Section 14(a)(iii) and Transfer of the
Project, the Lease Term shall end and all the Lessee's obligations
hereunder (other than any obligation expressed herein or in any
other Transaction Document as surviving the termination of this
Lease) shall cease.
(iv) Events Following the Obsolescence Termination Date. The
Lessee hereby represents, warrants and covenants that, if the Lease
Term shall end pursuant to the provisions of this Section 14(a),
neither the Lessee nor any Affiliate of the Lessee shall, for a
period of three years thereafter, acquire (by lease or purchase) the
Project or any portion thereof.
(b) Early Termination. The Lessee shall have the right, so long as
no Lease Event of Default shall have occurred and be continuing at the time of
exercise, to terminate this Lease on any Early Termination Date that is
specified by the Lessee in a notice to the Corporate Owner Trustee and the
Lessor (an "Early Termination Notice") given not later than one year prior to
the proposed Early Termination Date by making a Rejectable Offer in accordance
with Section 2l(a)(iii) to purchase the Project for a cash purchase price (the
"Early Termination Purchase Price"), equal to the sum of (A) Stipulated Loss
Value and if the Early Termination Notice is given less than two years prior to
the proposed Early Termination Date, the greater of Fair Market Sales Value and
Stipulated Loss Value, as of the Early Termination Date specified in the
Lessee's Early Termination Notice, plus (B) Basic Rent due and owing on or prior
to such Early Termination Date (other than Basic Rent payable in advance on the
Early Termination Date), plus (C) Supplemental Rent in an amount equal to the
Make Whole Amount, if any, payable on the outstanding Notes, plus (D) all other
amounts then due and owing under the Transaction Documents on the Early
Termination Date; provided, however, that the Lessee may revoke such Early
Termination Notice (and such Rejectable Offer) at any time prior to 35 days
before the Early Termination Date; provided, further, however, that (x) the
Lessee may not revoke such an Early Termination Notice (and such Rejectable
Offer) more than two times, and (y) if the Lessee so revokes, the Lessee shall
promptly, and in any event within 5 days, notify the Indenture Trustee and the
Noteholders of such revocation and shall reimburse the Owner Participant, the
Corporate Owner Trustee, the Lessor, the Indenture Trustee and the Noteholders
for all reasonable costs and expenses incurred by them in connection with such
proposed early termination, including in determining the Fair Market Sales Value
and marketing the Project. Not more than 60 nor less than 30 days prior to such
Early Termination Date, the Lessee shall deliver an Officer's Certificate to the
Corporate Owner Trustee, the Lessor and, on behalf of the Lessor, to the
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Indenture Trustee and each Noteholder specifying (i) the Early Termination Date,
(ii) that the principal amount of the outstanding Notes will be prepaid by the
Lessor on such date, (iii) that a Make Whole Amount may be payable by the
Lessor, (iv) the date when such Make Whole Amount will be calculated, (v) the
estimated Make Whole Amount, (vi) the estimated accrued interest applicable to
such prepayment based upon the Debt Rate then applicable, and (vii) the sections
of this Lease and the Indenture pursuant to which such prepayment shall be made.
Contemporaneously with the delivery of such Officer's Certificate, the Lessee
shall deliver a written notice to Trust Company Bank (or its successor)
requesting that it calculate the Make Whole Amount so as to permit the Indenture
Trustee to give the notice described in the next sentence. Three Business Days
prior to the Early Termination Date, the Indenture Trustee shall provide to the
Corporate Owner Trustee and the Lessee written notice of the Make Whole Amount,
if any, payable by the Lessor in connection with the prepayment of the Notes and
the termination of this Lease and a reasonably detailed computation of the Make
Whole Amount as of the Early Termination Date, determined three Business Days
prior to such date.
SECTION 15. Lease Events of Default. The term "Lease Event of
Default", wherever used herein, shall mean any of the following events (whatever
the reason for such Lease Event of Default and whether it shall be voluntary or
involuntary, or come about or be effected by operation of law, or be pursuant to
or in compliance with any judgement, decree or order of any court or any
Applicable Law or Governmental Action) and any such event shall continue to be a
Lease Event of Default if and for so long as it shall not have been remedied:
(a) the Lessee shall fail to make, or cause to be made, (i) any
payment of Basic Rent, Stipulated Loss Value or Supplemental Rent determined by
reference to the Make Whole Amount, if any, within five days after the same
shall become due, or (ii) any other payment of Supplemental Rent when due and
such default shall continue for five Business Days after written notice therefor
shall have been given to Lessee; or
(b) the Lessee shall fail to carry or maintain any insurance
required under (x) clauses (A), (B), (D) or (E) of Section 10(a)(i) or (y)
clause (C) of Section 10(a)(i) if, in the case of this clause (y), such
failure shall continue for 5 Business Days; or
(c) the Lessee shall fail to perform or observe in any material
respect any covenant or agreement (other than those referred to in clauses (a)
and (b) above or clause (f) below) to be performed or observed by it under this
Lease or any other Transaction Document (other than the Tax Indemnity Agreement)
to which Lessee is a party, and such failure shall continue, after the Lessee
shall have been given a notice specifying such failure and
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requiring it to be remedied, for a period of 30 days; provided, that if such
failure is capable of cure and if the Lessee is diligently proceeding to remedy
such failure, such period shall (except with respect to Sections 6.0l(b),
6.01(c), 6.0l(f), 6.06(a), 7.01, 7.02, 7.03, 7.04, 7.05, 7.06, 9.0l(b) and 9.02
(as it relates to Supplemental Financings) of the Participation Agreement and
Sections 3(g), 7, 8(b), 11(a) and 11(b) of this Lease) be extended for an
additional period of 150 days; or
(d) any representation or warranty made by the Lessee in this Lease
or by Lessee in any other Transaction Document (other than the Tax Indemnity
Agreement) or in any written certificate furnished by the Lessee or any Seller
pursuant to the Transaction Documents (other than the Tax Indemnity Agreement)
shall prove to have been incorrect in any material respect when such
representation or warranty was made and shall remain material and materially
incorrect at the time of discovery, and shall not have been cured within 30 days
after written notice thereof shall have been given by Lessor to Lessee; or
(e)(i) the Lessee shall (l) admit in writing its inability to pay
its debts generally as they become due, (2) commence, file, or consent by answer
or otherwise to the filing against it of a proceeding or a petition for relief
or reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy or insolvency law of any
jurisdiction, (3) make a general assignment for the benefit of its creditors,
(4) consent to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to itself or with respect to any
substantial part of its property, or (5) take corporate or comparable action for
the purpose of any of the foregoing; or (ii) a court or Governmental Authority
of competent jurisdiction shall enter an order appointing, without consent of
the Lessee, a custodian, receiver, trustee or other officer with similar powers
with respect to the Project or with respect to any substantial part of the
Lessee's property, or constituting an order for relief or approving a petition
for relief or reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation of the
Project or the Lessee; or (iii) any petition, case or proceeding for any relief
specified in the foregoing clause (ii) hereof shall be filed against the Project
or the Lessee with respect thereto and such petition shall not be dismissed
within 90 days; or
(f) the Lessee shall fail to perform or abide its covenants set
forth in Section 6.01(d) or 6.01(g) of the Participation Agreement.
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SECTION 16. Remedies.
(a) Remedies. Upon the occurrence of any Lease Event of Default and
at any time thereafter so long as the same shall be continuing, the Lessor (or,
if the Lien of the Security Documents has not been discharged in accordance with
Section 10.1 of the Indenture, the Indenture Trustee, it being agreed that,
except with respect to Excepted Rights and Excepted Payments, all references to
the Lessor in this Section 16 shall be deemed to mean the Indenture Trustee so
long as the Lien of the Security Documents has not been so discharged) at its
option may, by written notice to the Lessee (with, in the case of the Lessor's
action, a copy to the Indenture Trustee), declare this Lease to be in default
(provided, however, that this Lease shall automatically be deemed to have been
declared in default to the extent permitted by Applicable Law if there shall
exist a Lease Event of Default of the type described in Section 15(e)) and at
any time thereafter (unless all Lease Events of Default shall have been
remedied), the Lessor may exercise one or more of the following remedies, except
as hereinbelow expressly otherwise set forth, as the Lessor in its sole
discretion shall elect:
(i) the Lessor may (x) demand that the Lessee, and thereupon the
Lessee shall, at the Lessee's expense, return possession of the Project
promptly to the Lessor in the manner and condition required by, and
otherwise in accordance with the provisions of, Section 5, and (y) without
prejudice to any other remedy which the Lessor may have for possession of
the Project or arrearages in rent take all action required to enable the
Lessor to, and thereafter, enter upon the Site and take possession (to the
exclusion of the Lessee) of the Project and expel or remove the Lessee and
any other Person who may be occupying the Project or any part thereof, all
without liability to the Lessee or any other Person for or by reason of
such entry or taking of possession, whether for the restoration of damage
to property caused by such taking or otherwise;
(ii) the Lessor may sell the Project or any part thereof, together
with any interest of the Lessor under the Bills of Sale and the Equifax
Deed, at public or private sale, conducted in accordance with Applicable
Law, as the Lessor may determine, free and clear of any rights of the
Lessee therein and without any duty to account to the Lessee with respect
to such sale or for the proceeds thereof (except to the extent required by
clause (iv) or (v) below if the Lessor shall elect to exercise its rights
thereunder), in which event the Lessee's obligation to pay Basic Rent, for
periods commencing after the date of such sale shall terminate (except to
the extent that Basic Rent is to be included in computations under clause
(iv) or (v) below if the Lessor shall elect to exercise its rights
thereunder);
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(iii) the Lessor may elect to retake possession of the Project and,
if the Lessor desires, relet the same (or any part thereof) for the
benefit of the Lessee without terminating this Lease, in which case the
Lessee will be liable for and will pay to the Lessor all amounts required
to be paid by the Lessee during the remainder of the Lease Term as said
amounts accrue hereunder until the expiration of the Lease Term diminished
by any net sums received by the Lessor through reletting the Project
during said period (after deducting expenses incurred by the Lessor in
connection with such reletting); and in no event shall the Lessee be
entitled to any excess of rent or other amounts obtained by reletting over
and above the amount for which the Lessee would otherwise be liable
hereunder (it being understood and agreed that actions to collect amounts
due by the Lessee as provided in this clause (iii) may be brought from
time to time on one or more occasions, without the necessity of the Lessor
waiting until expiration of the Lease Term);
(iv) the Lessor may elect to retake possession of the Project, in
which case the Lessee will be liable for and will pay to the Lessor
damages in an amount equal to the amount specified in clause (C) of
Section 16(a)(v) below;
(v) the Lessor may, whether or not the Lessor shall have exercised
or shall thereafter at any time exercise its rights under clause (i),
(ii), (iii) or (iv) above (unless this clause (v) provides otherwise), by
notice to the Lessee specifying a payment date, demand that the Lessee pay
to the Corporate Owner Trustee for the account of the Lessor, and the
Lessee shall pay to the Corporate Owner Trustee for the account of the
Lessor, on the date specified in such notice, as damages for loss of a
bargain and not as a penalty (in lieu of the Basic Rent due after the date
specified in such notice), any unpaid Rent due or to become due and/or
accrued or to become accrued as of the Basic Rent Payment Date next
succeeding the date specified in such notice (calculated based upon the
Debt Rate then applicable) plus Supplemental Rent in an amount equal to
the Make Whole Amount if the Security Documents shall not have been
discharged in accordance with Section 10.1 of the Indenture, plus
whichever of the following amounts the Lessor, in its sole discretion,
shall specify in such notice (together with interest on such amount at the
Overdue Rate from the date specified in such notice to the date of actual
payment)
(A) an amount equal to the excess, if any, of (l) Stipulated
Loss Value, computed as of the Basic Rent Payment Date next
succeeding the date specified in such notice, over (2) the Fair
Market Rental Value (determined by the Lessor in its discretion on
the basis of the then actual condition of the Project) for the
remainder of the
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Lease Term after discounting such Fair Market Rental Value
semiannually to present value as of the date specified in such
notice at the Discount Rate; or
(B) an amount equal to the excess, if any, of (l) such
Stipulated Loss Value, computed as of the Basic Rent Payment Date
next succeeding the date specified in such notice over (2) the Fair
Market Sales Value (determined by the Lessor in its discretion on
the basis of the then actual condition of the Project) as of the
date specified in such notice; or
(C) an amount equal to the excess, if any, of (l) the present
value as of the date specified in such notice of all installments of
Basic Rent (calculated based upon the Debt Rate then applicable)
until the end of the Basic Term or the then current Renewal Term, as
the case may be, discounted semiannually at the Discount Rate, over
(2) the present value as of such date of the Fair Market Rental
Value (determined by the Lessor in its discretion on the basis of
the then actual condition of the Project) until the end of the Basic
Term or such Renewal Term, as the case may be, discounted
semiannually at the Discount Rate;
(D) provided that Lessor shall not have sold the Project
pursuant to this Section 16, an amount equal to the higher of such
Stipulated Loss Value or the Fair Market Sales Value of the Project
(determined by the Lessor in its discretion on the basis of the then
actual condition of the Project) as of the date specified in such
notice; and, in this event, upon payment by the Lessee of all
amounts payable by it under this clause (v)(D) and all other amounts
due under the Transaction Documents, the Lessor shall effect a
Transfer to the Lessee (or its designee) and the Lease Term shall
end and all the Lessee's obligations hereunder (other than any
obligation expressed herein or in any other Transaction Document as
surviving the termination of this Lease) shall cease;
(vi) if the Lessor shall have sold the Project pursuant to clause
(ii) above, the Lessor, if it shall so elect (in lieu of exercising its
rights under clause (v) above) by notice to the Lessee, may demand that
the Lessee pay to the Corporate Owner Trustee for the account of the
Lessor, and the Lessee shall pay to the Corporate Owner Trustee for the
account of the Lessor, on the date of such sale, as damages for loss of a
bargain and not as a penalty (in lieu of Basic Rent due for periods
commencing after the next Basic Rent Payment Date following the date of
such sale), any unpaid Rent due or to become due and/or accrued or to
become accrued as of the next Basic Rent Payment Date following the date
of such sale (calculated based upon the Debt Rate then applicable),
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plus Supplemental Rent in an amount equal to the Make Whole Amount if the
Security Documents shall not have been discharged in accordance with
Section 10.1 of the Indenture, plus the amount of any deficiency between
the Sale Proceeds and Stipulated Loss Value, computed as of such Basic
Rent Payment Date, together with interest at the Overdue Rate on the
amount of such Rent and such deficiency from the date of such sale until
the date of actual payment;
(vii) the Lessor may rescind or terminate this Lease; however, (A)
no reentry or taking of possession of the Project by the Lessor will be
construed as an election on the Lessor's part to terminate this Lease
unless a written notice of such intention is given to the Lessee, (B)
notwithstanding any reletting, reentry or taking of possession, the Lessor
may at any time thereafter elect to terminate this Lease for a continuing
Lease Event of Default and (C) no act or thing done by the Lessor or any
of its agents, representatives or employees shall be deemed an acceptance
of a surrender of the Project, and no agreement accepting a surrender of
the Project, shall be valid unless the same be made in writing and
executed by the Lessor;
(viii) in the event that this Lease is terminated, the Lessor shall
be entitled to collect all Rent which is due and owing as of the date of
the termination of the Lease;
(ix) in the event that this Lease is terminated or in the event that
the Lessor elects to exercise its remedies pursuant to clause (iii) or
(iv) above, the Lessor shall not have any obligation to relet or attempt
to relet the Project or any portion thereof, or to collect rent after
reletting; and in the event of relating the Lessor may relet the whole or
any portion of the Project for any period, to any Person, and for any use
and purpose; or
(x) the Lessor may proceed by appropriate court action to enforce
the terms hereof or to recover damages for the breach hereof; or
(xi) the Lessor may exercise any other right or remedy that may be
available to it under Applicable Law.
(b) No Release. No rescission or termination of this Lease, in whole
or in part, or repossession of the Project or exercise of any remedy under
Section 16(a) shall relieve the Lessee of any of its obligations under this
Lease. In addition, except as aforesaid, the Lessee shall be liable for any and
all unpaid Rent due hereunder before, after or during the exercise of any of the
foregoing remedies, including all reasonable legal fees and other reasonable
costs and expenses incurred by the Owner Trustees, the Lessor, the Owner
Participant, the Indenture Trustee or any
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Noteholder by reason of the occurrence of any Lease Event of Default or the
exercise of the Lessor's remedies with respect thereto. At any sale of the
Project or any part thereof pursuant to this Section 16, the Corporate Owner
Trustee, the Individual Owner Trustee, the Lessor, the Owner Participant, the
Lessee, the Indenture Trustee or any Noteholder may bid for and purchase such
property.
(c) Remedies Cumulative. Except as expressly set forth in Section
16(a)(v), no remedy under Section 16(a) is intended to be exclusive, but each
shall be cumulative and in addition to any other remedy provided thereunder or
otherwise available to the Lessor at law or in equity. No express or implied
waiver by the Lessor of any Lease Default or Lease Event of Default hereunder
shall in any way be, or be construed to be, a waiver of any future or subsequent
Lease Default or Lease Event of Default. The failure or delay of the Lessor in
exercising any right granted it hereunder upon any occurrence of any of the
contingencies set forth herein shall not constitute a waiver of any such right
upon the continuation or recurrence of any such contingency or similar
contingencies and any single or partial exercise of any particular right by the
Lessor shall not exhaust the same or constitute a waiver of any other right
provided herein. To the extent permitted by Applicable Law, the Lessee hereby
waives any rights now or hereafter conferred by statute or otherwise that may
require the Lessor to sell, lease or otherwise use the Project in mitigation of
the Lessor's damages as set forth in Section 16(a) or that may otherwise limit
or modify any of the Lessor's rights and remedies provided in this Section 16.
SECTION 17. Notices. All communications, declarations, demands and
notices provided for in this Lease shall be in writing and shall be given in
person or by means of telecopy, or other wire transmission, or mailed by
registered or certified mail, or sent by courier, addressed as provided in the
Participation Agreement. All such communications, declarations, demands and
notices given in such manner shall be effective on the date of receipt.
SECTION 18. Successors and Assigns. This Lease, including all
agreements, covenants, indemnities, representations and warranties contained
herein, shall be binding upon and inure to the benefit of the Lessor and the
Lessee and their respective permitted successors and assigns under the
Transaction Documents.
SECTION 19. Right of First Offer.
(a) Grant of Right of First Offer.
(i) At any time during the Lease Term (so long as no Lease
Event of Default has occurred and is then continuing), before the
Lessor may sell or offer to sell the Project to any Person (except
pursuant to a Portfolio Sale or a sale to an Affiliate of the Owner
Participant) the Lessor shall offer the Project to the Lessee for
purchase at a cash price determined
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by the Lessor (the "Determined Price"). Such offer may be accepted
at any time within 90 days after the date of receipt by the Lessee
of the notice of the offer and the Determined Price by irrevocable
written notice of the acceptance of such offer, and the closing date
for such purchase shall not be more than 180 days after the date of
such written notice.
(ii) If the Lessee shall not give notice of exercise or
rejection of such first offer within the 90-day period for
acceptance described in clause (i) above, the right shall be deemed
waived in respect of such offer and, except as further provided
herein, this right of first offer shall thereupon be terminated and
have no further force and effect.
(iii) The Lessee shall, upon written request, furnish within
the 90-day period for acceptance described in clause (i) above (or
at any time thereafter upon the request of the Corporate Owner
Trustee or the Lessor), a recordable statement certifying any waiver
or rejection of such first offer. Any such statement shall be
binding on the Lessee.
(iv) In the event the Lessee does not elect to purchase the
Project for the Determined Price, the Project may be sold by the
Lessor to any Person (other than a Person who, directly or through
any of such Person's Affiliates, is a Competitor of the Lessee or
any of the Lessee's Affiliates) at a cash price not less than
ninety-five percent (95%) of the Determined Price, provided a letter
of intent is executed by the Lessor and prospective buyer within 180
days following the giving by the Lessee of a notice that it waives
or rejects its first offer right (or following the deemed waiver of
such right) without the need to re-offer the Project to the Lessee.
If such a letter of intent has been executed within the required
time period, the Project shall not be sold at any price lower than
95% of the Determined Price or on terms other than cash or at a time
more than 360 days following the giving by the Lessee of a notice
that it waives or rejects its first offer right (or following the
deemed waiver of such right) without the Lessor again complying with
the requirements of this Section 19.
(v) if the Lessee shall elect to purchase the Project as
herein contemplated, the Lessee shall, at its sole expense and as a
condition to such purchase, on such date of purchase, execute and
deliver such documentation, as shall be reasonably satisfactory to
the Owner Participant, the Indenture Trustee and the Noteholders to
cause the indebtedness represented and evidenced by the Notes and
the Security Documents or such other notes and security documents as
are executed and delivered in connection with such purchase to be a
direct and full recourse obligation of the Lessee secured by a first
priority deed to secure debt and security interest in the Indenture
Estate (as modified by such documentation) and the Lessee shall
deliver,
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or shall cause to be delivered, such certificates, legal opinions,
title insurance policies, and other documentary evidence as shall be
reasonably requested by the Owner Participant, the Indenture Trustee
and the Noteholders as necessary to effect such documentation. The
Lessee shall pay all reasonable costs and expenses in connection
with the transactions contemplated with this Section 19(a)(v).
(b) Savings Clause. Unless terminated sooner by the agreement
of the parties, the right of first offer granted pursuant to this Section 19 and
any other future unvested interest in real property created under the terms of
this Lease shall terminate no later than twenty-one (21) years less one day
after the death of the last survivor of the descendants of the late King ▇▇▇▇▇▇
V of the United Kingdom of Great Britain and Northern Ireland who were living on
the date hereof.
Notwithstanding anything to the contrary contained herein, this
Section 19 shall not be applicable to the Indenture Trustee or its successor if
the Indenture Trustee or its successor has become the owner of the Project
pursuant to Section 6 of the Indenture.
SECTION 20. Right To Perform for Lessee. Subject to the provisions
of the Indenture, if the Lessee shall fail to make any payment to be made by it
hereunder or shall fail to perform or comply with any of its other agreements
contained herein, and such failure constitutes a Lease Default hereunder and the
Lessee shall not be diligently attempting to cure such Lease Default, then
(subject to the requirements of this Section 20) unless and until the Lessee
shall make such payment or perform or comply with such Agreement, the Owner
Participant, the Corporate Owner Trustee, the Lessor, the Indenture Trustee or
any Noteholder may, but shall not be obligated to, to the extent not prohibited
by Applicable Law, itself make any such payment or perform or comply with any
such agreement as the Lessee shall be obligated to pay, perform or comply with
under this Lease, and the amount of such payment and the amount of the
reasonable expenses of the Owner Participant, the Corporate Owner Trustee, the
Lessor or the Indenture Trustee or any Noteholder, as the case may be, incurred
in connection with such payment or the performance or compliance with such
agreement, as the case may be, together with interest thereon at the Overdue
Rate, shall be deemed Supplemental Rent, payable by the Lessee upon demand on an
After-Tax Basis. The Owner Participant, the Corporate Owner Trustee, the Lessor,
the Indenture Trustee or any Noteholder, as the case may be, shall give the
Lessee at least 2 Business Days' notice before taking any action in accordance
with the preceding sentence, provided that the failure to give such notice shall
have no effect upon any of the rights of the Owner Participant, the Corporate
Owner Trustee, the Lessor, the Indenture Trustee or any Noteholder, as the case
may be, thereunder.
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SECTION 21. Rejectable Offers. The following provisions shall apply
in the event the Lessee wishes to make a rejectable offer pursuant to Sections
9(c), 13(b) or l4(b) of the Lease or is required to make a rejectable offer
pursuant to Section 6.01(g) of the Participation Agreement (herein, in each
case, a "Rejectable Offer"):
(a) Rejectable Offer Notices.
(i) Event of Loss. If the Lessee shall have delivered an Event
of Loss Notice electing to terminate this Lease pursuant to Section
9(a)(ii) with respect to an Event of Loss occurring during the
Interim Term or the Basic Term, such Event of Loss Notice shall, as
provided in Section 9(c), be deemed to be a Rejectable Offer Notice
for purposes of this Section 21.
(ii) Burdensome Buyout. If a Burdensome Buyout Event shall
have occurred and the Lessee shall have elected to exercise its
rights with respect thereto pursuant to Section 13(a), the
Burdensome Buyout Notice given pursuant to Section l3(b) shall be
deemed to be a Rejectable Offer Notice for purposes of this Section
21.
(iii) Early Termination. If the Lessee shall have exercised
its option to terminate this Lease pursuant to Section 14(b), the
Early Termination Notice given thereunder shall be deemed to be a
Rejectable Offer notice for purposes of this Section 21.
(iv) Designated Event and Approved Rating Decline. If the
Lessee is required to make separate Rejectable Offers pursuant to
Section 6.01(g) of the Participation Agreement, the Lessee shall:
(A) make, by written notice to the Corporate Owner Trustee, the
Lessor and the Indenture Trustee, with a copy to the Owner
Participant and the Noteholders, a Rejectable Offer to purchase the
Project from the Lessor on a date specified in Schedule 2.2 to this
Lease which is not less than 45 nor more than 75 days after the date
on which the Approved Rating declined in connection with a
Designated Event (the "Lessor Designated Event Purchase Date"); and
(B) make, by written notice to the Owner Participant with copies to
the Corporate Owner Trustee, the Lessor, the Indenture Trustee and
the Noteholders, a separate Rejectable Offer to purchase the Owner
Participant Interest on the same such date (the "OP Designated Event
Purchase Date") in the event the Lessor rejects such offer, which
notice shall be delivered simultaneously with the Rejectable Offer
Notice referred to in clause (A) above.
(b) Notices of Acceptance or Rejection of Rejectable Offers.
(i) By Lessor. The Lessor, at its option, may (subject always
to compliance by the Lessor and the Lessee, as
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applicable with the requirements of Sections 9(c), 13(b) or 14(b) of
this Lease or Section 6.01(g)(A) of the Participation Agreement, as
applicable) accept or (until such time as the Lien of the Security
Documents shall have been discharged in accordance with Section 10.1
of the Indenture, with the prior written consent of the Indenture
Trustee in accordance with the provisions of Section 2.6(b) of the
Indenture) reject any Rejectable Offer made by the Lessee pursuant
to Sections 9(c), 13(b) or 14(b) of this Lease or Section 6.01(g)(A)
of the Participation Agreement and this Section 21 by delivering a
notice to the Lessee, the Owner Participant, the Indenture Trustee
and each Noteholder to such effect not later than (A) 35 days prior
to the Loss Determination Date or the Lessor Designated Event
Purchase Date, as applicable, or (B) 60 days prior to the Burdensome
Buyout Purchase Date or Early Termination Date, as applicable. If
the Lessor fails to give timely notice to the Lessee of its
acceptance or rejection of any Rejectable Offer made pursuant to
Sections 9(c), 13(b) or 14(b) of the Lease or Section 6.01(g)(A) of
the Participation Agreement or if the Lessor, prior to or
simultaneously with the rejection of any such Rejectable Offer,
fails for any reason whatsoever to deposit the amount described in
Section 21(c)(i) below with the Indenture Trustee and to deliver to
the Lessee the written consent to such rejection executed by the
Indenture Trustee (in accordance with Section 21 (b) (iii) hereof),
the Lessor shall automatically and irrevocably be deemed to have
accepted such Rejectable Offer.
(ii) By Owner Participant. If (but only if) the Lessor (acting
with the written consent of the Indenture Trustee in accordance with
Section 2.6(b) of the Indenture) rejects any Rejectable Offer made
to it by the Lessee pursuant to Section 6.01(g)(A) of the
Participation Agreement and Section 21(a)(iv)(A) above, the Owner
Participant may elect to accept or reject the separate Rejectable
Offer made to it under Section 6.01(g)(B) of the Participation
Agreement and Section 21(a)(iv)(B) above by delivering a notice to
the Lessee, with copies to the Corporate Owner Trustee, the Lessor,
the Indenture Trustee and each Noteholder to such effect not later
than 20 days prior to the proposed OP Designated Event Purchase
Date. If the Owner Participant fails to give notice to the Lessee of
its acceptance or rejection of any such Rejectable Offer, it shall
automatically and irrevocably be deemed to have rejected such
Rejectable Offer.
(iii) Consent of Indenture Trustee Required. Notwithstanding
anything in the Transaction Documents to the contrary, the Lessee
and the Lessor acknowledge and agree that, until such time as the
Lien of the Security Documents shall have been discharged in
accordance with Section 10.1 of the Indenture, the Lessor shall not
be authorized or empowered to reject any Rejectable Offer without
the prior written consent
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of the Indenture Trustee (given in accordance with the provisions of
Section 2.6(b) of the Indenture).
(c) Events Upon Rejection of Rejectable Offers.
(i) Lessor Obligations Relating to Event of Loss, Burdensome
Buyout and Early Termination. If the Lessor (in full compliance with
the provisions of Sections 9(c), l3(b), 14(b) and/or 21 of this
Lease, as the case may be), rejects any Rejectable Offer made by the
Lessee pursuant to such Sections 9(c), 13(b) or 14(b), it shall
deposit with the Indenture Trustee for application in accordance
with the provisions of the Indenture, on or prior to the same
Business Day on which it rejects the Rejectable Offer, cash in
Dollars in an amount sufficient to pay the aggregate principal
amount of the outstanding Notes, together with estimated accrued and
unpaid interest thereon (calculated based upon the Debt Rate then
applicable), through and including the Loss Determination Date, the
Burdensome Buyout Purchase Date or the Early Termination Purchase
Date, as applicable. In addition, the Lessor shall deposit with the
Indenture Trustee for application in accordance with the provisions
of the Indenture, two Business Days prior to the Loss Determination
Date, Burdensome Buyout Purchase Date or Early Termination Date, as
applicable, from funds derived from a Supplemental Rent payment by
the Lessee (which the Lessee agrees to pay to the Corporate Owner
Trustee for the account of the Lessor two Business Days prior to
such Loss Determination Date, Burdensome Buyout Purchase Date or
Early Termination Date, as applicable), an amount sufficient to pay
the Make Whole Amount, if any, due on the Notes on such Loss
Determination Date, Burdensome Buyout Purchase Date or Early
Termination Purchase Date together with all other amounts (other
than amounts referred to in the next following sentence) then due
and owing to the Indenture Trustee and/or the Noteholders under the
Transaction Documents as of the applicable date. In addition, the
Lessor shall make an additional payment on the Loss Determination
Date, Burdensome Buyout Date or Early Termination Date, as
applicable, in an amount equal to the excess, if any, of the actual
accrued interest due on such date on the Notes over the estimated
accrued interest amount previously deposited by the Lessor and, to
the extent, if any, such deposited amount exceeds the actual accrued
interest due on such date, the Indenture Trustee shall refund such
excess to the Lessor. If the Lessor fails for any reason whatsoever
to make the deposits described in this Section 21(c)(i) in a timely
manner, it shall automatically and irrevocably be deemed to have
accepted the Rejectable Offer.
(ii) Lessee Obligations Relating to Event of Loss, Burdensome
Buyout and Early Termination. If the Lessor (subject always to
compliance with the requirements of Sections 9(c), l3(b), 14(b)
and/or 21 of the Lease, as applicable),
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rejects any Rejectable Offer made by the Lessee pursuant to such
Sections 9(c), 13(b) or 14(b), the Lessee shall pay to the Indenture
Trustee for the account of the Lessor and for application in
accordance with the provisions of the Indenture (or to the Corporate
Owner Trustee for the account of the Lessor if the Lien of the
Security Documents shall have been discharged in accordance with
Section 10.1 of the Indenture) on the Loss Determination Date, the
Burdensome Buyout Purchase Date or the Early Termination Date, as
applicable, the sum of (A) any and all Rent (other than Stipulated
Loss Value and Basic Rent payable in advance on such date), plus (B)
Supplemental Rent in an amount equal to the Make Whole Amount, if
any, due on any Loss Determination Date, Burdensome Buyout Purchase
Date or Early Termination Date, as applicable, plus (C) all other
amounts due and owing under the Transaction Documents on such date,
whereupon this Lease and the other Transaction Documents (other than
any obligations expressed herein or therein as surviving the
termination of this Lease) shall terminate.
(iii) Lessor and Owner Participant Obligations Relating to
Designated Event and Decline in Approved Rating.
(A) If the Lessor (acting with the written consent of
the Indenture Trustee in accordance with Section 2.6(b) of the
Indenture) rejects any Rejectable Offer made to it pursuant to
Section 6.01(g)(A) of the Participation Agreement and Section
2l(a)(iv)(A), the Lessor shall, upon written request, furnish
a written statement to the Lessee, with copies to the
Indenture Trustee and the Noteholders, confirming the waiver
by the Lessor of all rights against the Lessee under such
Section 6.01(g)(A) and otherwise with respect to such
Designated Event and decline in Approved Rating (without
prejudice to the rights of the Lessor under such Section
6.01(g)(A) upon the occurrence of any subsequent Designated
Event and decline in Approved Rating).
(B) If the Owner Participant rejects (or is deemed to
have rejected) any Rejectable Offer made to it pursuant to
Section 6.01(g)(B) of the Participation Agreement and Section
21(a)(iv)(B), the Owner Participant shall, upon written
request, furnish a written statement to the Lessee, with
copies to the Indenture Trustee and the Noteholders,
confirming the waiver by the Owner Participant of all rights
against the Lessee under such Section 6.01(g)(B) and otherwise
with respect to such Designated Event and decline in Approved
Rating (without prejudice to the rights of the Owner
Participant under such Section 6.01(g)(B) upon the occurrence
of any subsequent Designated Event and decline in Approved
Rating).
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(iv) Lessee Obligations Relating to Designated Event and
Decline in Approved Rating. If both the Lessor (acting with the
written consent of the Indenture Trustee in accordance with Section
2.6(b) of the Indenture) and the Owner Participant shall have
rejected (or be deemed to have rejected) any Rejectable Offers made
to them by the Lessee pursuant to Section 6.01(g) of the
Participation Agreement and Section 2l(a)(iv) above, the obligations
of the Lessee with respect to the related Designated Event and
decline in Approved Rating shall terminate (without prejudice to the
rights of the Lessor and the Owner Participant under Section 6.01(g)
of the Participation Agreement and Section 21(a)(iv) above upon the
occurrence of any subsequent Designated Event and decline in
Approved Rating) and the Lease and all other Transaction Documents
shall remain in effect. If the Lessor (acting with the written
consent of the Indenture Trustee) shall have rejected (or be deemed
to have rejected) any Rejectable Offer made to it by the Lessee
pursuant to Section 6.01(g)(A) of the Participation Agreement and
the Owner Participant shall have accepted the related Rejectable
Offer made to it by the Lessee pursuant to such Section 6.01(g)(B),
then and in such event on or prior to the date on which the Lessee
shall pay to the Owner Participant the OP Designated Purchase Price,
the Lessee shall, at its sole expense and as a condition to such
purchase, execute and deliver such documentation as shall be
reasonably satisfactory to the Owner Participant, the Indenture
Trustee and the Noteholders to cause the indebtedness represented
and evidenced by the Notes and the Security Documents or such other
notes and security documents as are executed and delivered in
connection with such purchase to be a direct and full recourse
obligation of the Lessee secured by a first priority deed to secure
debt and security interest in the Indenture Estate (as modified by
such documentation) and the Lessee shall deliver, or shall cause to
be delivered, such certificates, legal opinions, title insurance
policies, and other documentary evidence as shall be reasonably
required by the Owner Participant, the Indenture Trustee and the
Noteholders as necessary to effect such documentation. The Lessee
shall pay all reasonable costs and expenses in connection with the
transactions contemplated with this Section 21(c)(iv).
(d) Events Upon Acceptance of Rejectable Offers.
(i) Lessor Obligations Relating to Event of Loss, Burdensome
Buyout, Early Termination and Designated Event and Decline in
Approved Rating. In the event the Lessor (subject always to
compliance with the requirements of Sections 9(c), 13(b), 14(b)
and/or 21 of this Lease and/or Section 6.01(g)(A) of the
Participation Agreement, as applicable) shall have accepted (or
shall be deemed to have accepted) a Rejectable Offer made to it by
the Lessee pursuant to Sections 9(c), 13(b) or 14(b) of this Lease
or Section 6.01(g)(A) of the
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Participation Agreement and this Section 21, and the Lessee shall
have paid all amounts payable by it with respect thereto in
accordance with Section 21(e)(i), 21(e)(ii), 21(e)(iii) or
21(e)(iv)(A) below, as applicable, the Lessor shall effect a
Transfer of the Project to the Lessee or its designee on the Loss
Determination Date, the Burdensome Buyout Purchase Date, the Early
Termination Date or the Lessor Designated Event Purchase Date, as
applicable. Upon such Transfer, all of the Lessee's obligations
under this Lease and the other Transaction Documents (other than any
obligations expressed herein or therein as surviving the termination
of the Lease) shall terminate.
(ii) Owner Participant Obligations Relating to Designated
Event and Decline in Approved Rating. In the event the Owner
Participant accepts a Rejectable Offer made to it by the Lessee
pursuant to Section 6.01(g)(B) of the Participation Agreement and
this Section 21 and the Lessee shall have paid all amounts payable
by it with respect thereto in accordance with Section 21(e)(iv)(B)
below, the Owner Participant shall effect a Transfer of the Owner
Participant Interest to the Lessee or its designee on the OP
Designated Event Purchase Date.
(e) Lessee's Payment Obligations.
(i) Event of Loss. If the Lessor accepts (or is deemed to have
accepted) a Rejectable Offer made pursuant to Section 9(c) and this
Section 21, the Lessee shall pay to the Indenture Trustee for the
account of the Lessor on the Loss Determination Date for application
in accordance with the provisions of the Indenture (or to the
Corporate Owner Trustee for the account of the Lessor if the Lien of
the Security Documents shall have been discharged in accordance with
Section 10.1 of the Indenture) an amount equal to the Event of Loss
Purchase Price.
(ii) Burdensome Buyout Event. If the Lessor accepts (or is
deemed to have accepted) a Rejectable Offer pursuant to Section
13(b) and this Section 21, the Lessee shall pay to the Indenture
Trustee for the account of the Lessor on the Burdensome Buyout
Purchase Date for application in accordance with the provisions of
the Indenture (or to the Corporate Owner Trustee for the account of
the Lessor if the Lien of the Security Documents shall have been
discharged in accordance with Section 10.1 of the Indenture), an
amount equal to the Burdensome Buyout Purchase Price.
(iii) Early Termination. If the Lessor accepts (or is deemed
to have accepted) a Rejectable Offer made by the Lessee pursuant to
Section 14(b) and this Section 21, the Lessee shall pay to the
Indenture Trustee for the account of the Lessor on the Early
Termination Date for application in accordance with the provisions
of the Indenture (or to the Corporate Owner
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Trustee on behalf of the Lessor if the Lien of the Security
Documents shall have been discharged in accordance with Section 10.1
of the Indenture), an amount equal to the Early Termination Purchase
Price.
(iv) Designated Event and Approved Rating Decline.
(A) If the Lessor accepts a Rejectable Offer made to it
by the Lessee pursuant to Section 6.01(g)(A) of the
Participation Agreement and Section 21(a)(iv)(A) above, the
Lessee shall pay to the Indenture Trustee for the account of
the Lessor on the Lessor Designated Event Purchase Date for
application in accordance with the provisions of the Indenture
(or to the Corporate Owner Trustee on behalf of the Lessor if
the Lien of the Security Documents shall have been discharged
in accordance with Section 10.1 of the Indenture) an amount
equal to the Lessor Designated Event Price.
(B) If the Owner Participant accepts a Rejectable Offer
made to it by the Lessee pursuant to Section 6.01(g)(B) of
the Participation Agreement and Section 2l(a)(iv)(B) above,
the Lessee shall pay to the Owner Participant on the OP
Designated Event Purchase Date an amount equal to the OP
Designated Event Price.
SECTION 22. Amendments and Miscellaneous.
(a) Amendments in Writing. The provisions of this Lease may not be
waived, altered, modified, amended, supplemented or terminated in any manner
whatsoever except by written instrument signed by the Lessor and the Lessee. It
is understood and agreed by the parties hereto that, until the Lien of the
Security Documents shall have been discharged in accordance with Section 10.1 of
the Indenture, no waiver, alteration, modification, amendment, supplement or
termination of this Lease (other than as to Excepted Payments and Excepted
Rights) shall be effective unless and until the consent of the Indenture Trustee
or the Noteholders shall have been obtained in accordance with the provisions of
the Indenture.
(b) Survival.
(i) All indemnities, representations and warranties contained
or incorporated by reference in this Lease shall survive, and shall
continue in effect following, the execution and delivery of this
Lease and the expiration or termination of this Lease.
(ii) The obligations of the Lessee to pay Supplemental Rent
and the obligations of the Lessee under Sections 5, 16 and 20 of
this Lease (as well as the obligations of the Lessee under Sections
7.01 and 7.02 of the Participation Agreement) shall survive the
expiration or termination of this Lease;
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provided, however, that, after the expiration or termination of this
Lease, the Lessor shall not have any right or be entitled to any
remedy in respect of the Lessee's failure to perform its obligations
under Section 20 except the right to institute an action seeking
recovery of actual damage with respect to claims or events arising
thereunder on or prior to the expiration or termination of the
Lease.
(c) Severability of Provisions. Any provision of this Lease that may
be determined by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction only, be ineffective to the extent
of such invalidity, prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such invalidity, prohibition or
unenforceability in any jurisdiction shall not invalidate, prohibit or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by Applicable Law, the Lessee hereby waives any provision of law that renders
any provision hereof prohibited or unenforceable in any respect.
(d) True Lease. This Lease is intended as, and shall constitute, an
agreement of lease, and nothing herein shall be construed as conveying to the
Lessee any right, title or interest in or to the Project except as a lessee.
(e) Original Lease. The single executed original of this Lease
marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on the front
cover and containing the receipt of the Indenture Trustee therefor on or
following the signature page thereof shall be the "Original Executed
Counterpart" of this Lease. To the extent that this Lease 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 may be created
through the transfer or possession of any counterpart other than the "Original
Executed Counterpart".
(f) Governing Law. THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE CONFLICTS LAW) OF THE STATE OF
GEORGIA.
(g) Headings. The division of this Lease into sections, the
provision of a table of contents and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Lease.
(h) Estoppel Certificates.
(i) The Lessee agrees, at any time and from time to time, upon
not less than thirty (30) days' prior written notice from the
Lessor, to execute, acknowledge and deliver to the Lessor a
statement in writing (v) certifying that this Lease is unmodified
and in full force and effect (or if there have, been
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modifications, that this Lease is in full force and effect as
modified and stating the modifications hereto); (w) stating the
dates to which the Basic Rent and other specified charges hereunder
have been paid by the Lessee; (x) stating whether or not the Lessee
has knowledge that the Lessor is in default in the performance of
any covenant, agreement or condition contained in this Lease, and,
if the Lessee has knowledge of such a default, specifying each such
default; (y) stating the address to which notices to the Lessee
shall be sent; and (z) stating such other matters as the Lessor may
reasonably request.
(ii) The Lessor agrees, at any time and from time to time,
upon not less than thirty (30) days' prior written notice from the
Lessee, to execute, acknowledge and deliver to the Lessee, with a
copy to the Indenture Trustee, a statement in writing (v) certifying
that this Lease is unmodified and in full force and effect (or if
there have been modifications, that this Lease is in full force and
effect as modified and stating the modifications hereto) ; (w)
stating the dates to which the Basic Rent and other specified
charges hereunder have been paid by the Lessee; (x) stating whether
or not the Lessor has knowledge that the Lessee is in default in the
performance of any covenant, agreement or condition contained in
this Lease, and, if the Lessor has knowledge of such a default,
specifying each such default; (y) stating the address to which
notices to the Lessor shall be sent; and (z) stating such other
matters as the Lessee may reasonably request.
(i) Concerning the Trust. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ is entering into this
Lease solely as the Individual Owner Trustee under the Trust Agreement and not
in his individual capacity. Accordingly, except as otherwise expressly set forth
herein or in the other Transaction Documents, each of the representations,
warranties, undertakings and agreements herein made on the part of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ as Lessor is made and intended not as a personal representation, warranty,
undertaking or agreement by or for the purpose or with the intention of binding
▇▇▇▇▇▇▇ ▇.▇▇▇▇ or the Trust Company personally, but is made and intended for
the purpose of binding only the Trust and the Trust Estate; this Lease is
executed and delivered by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ solely in the exercise of the powers
expressly conferred upon him as the Individual Owner Trustee under the Trust
Agreement; and no personal liability or responsibility is assumed hereunder by
or shall at any time be enforceable against ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or the Trust
Company, or any successor in trust on account of any action taken or omitted to
be taken or any representation, warranty, undertaking or agreement hereunder of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Lessor, either expressed or implied, all such personal
liability, if any, being expressly waived by the Lessee, except that the Lessee
or any Person acting by, through or under it, making a claim hereunder, may look
to the Trust Estate for satisfaction of the same and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or his
successors in trust, and the Trust Company or its
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successors in trust, shall be personally liable for his or its own gross
negligence or willful misconduct (or negligence, in the case of the handling,
holding and transfer of funds) in the performance of its or his or its duties as
trustees of the Trust or otherwise. If any successor trustee is appointed for
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or the Trust Company in accordance with the terms of the Trust
Agreement, such successor trustee, without any further act, shall succeed to all
the rights, duties, immunities and obligations of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or the Trust
Company, as applicable, hereunder and the predecessor trustee shall be released
from all further duties and obligations hereunder.
(j) Counterpart Execution. This Lease may be executed in any number
of counterparts and by each of the parties hereto in separate counterparts, all
such counterparts together constituting but one and the same instrument.
Although this Lease is dated as of the date first above written for convenience,
the actual date of execution hereof by the parties hereto is the Closing Date,
and this Lease shall be effective on, and shall not be binding on any party
hereto until, the Closing Date.
(k) Time is of the Essence. Time is of the essence in this Lease.
(l) Costs of Transfer. All costs and expenses in connection with any
transfer of the Project (or any portion thereof) to the Lessee by the Lessor
(including, without limitation, taxes, escrow fees, title insurance premiums,
recording charges and reasonable attorneys' fees) pursuant to the provisions of
any Transaction Document other than Section 19 of this Lease (excluding Section
19(a)(v)) shall be paid for by the Lessee.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
to be duly executed by a representative or officer thereunto duly authorized as
of the date and year first above written.
Lessor:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his individual
capacity but solely as the Individual
Owner Trustee of Equifax Business Trust
No. 1994-A, a Delaware business trust
Lessee:
EQUIFAX INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Treasurer
----------------------------------
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