Exhibit No. 10.19
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MASTER AGREEMENT
Dated as of December 22, 1999
among
▇▇▇▇▇▇▇▇-▇▇▇▇, INC. as Lessee
and
FIRST CHICAGO LEASING CORPORATION, as Lessor
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Parking Facility
Chicago, Illinois
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TABLE OF CONTENTS
PAGE
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SECTION 1
DEFINITIONS; INTERPRETATION ....................................... 5
SECTION 2
ACQUISITION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION.......................................... 5
SECTION 2.1 Agreement to Acquire, Fund and Lease............................................ 5
SECTION 2.2 Fundings of Purchase Price, Development Costs and Construction Costs............ 6
SECTION 2.3 Lessor's Invested Amount and Yield Thereon; Commitment Fee...................... 7
SECTION 2.4 Lessee Owner for Tax Purposes................................................... 8
SECTION 2.5 Amounts Due Under Lease......................................................... 8
SECTION 3
CONDITIONS PRECEDENT; DOCUMENTS..................................... 8
SECTION 3.1 Conditions to the Obligations of the Lessor on the Closing Date................. 8
SECTION 3.2 Conditions to the Obligations of the Lessor on each Funding Date................ 11
SECTION 3.3 Completion Date Conditions...................................................... 12
SECTION 4
REPRESENTATIONS............................................. 13
SECTION 4.1 Representations of the Lessee................................................... 13
SECTION 4.2 Representations of the Lessor................................................... 18
SECTION 5
COVENANTS OF THE LESSEE......................................... 19
SECTION 5.1 Qualification to do Business in Illinois........................................ 19
SECTION 5.2 Further Assurances.............................................................. 19
SECTION 5.3 Reporting....................................................................... 19
SECTION 5.4 Financial Covenants............................................................. 19
SECTION 5.5 Additional Required Appraisals.................................................. 20
SECTION 6
TRANSFERS BY LESSOR........................................... 22
SECTION 6.1 Lessor Transfers................................................................ 22
Master Agreement 2
PAGE
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SECTION 7
INDEMNIFICATION............................................. 23
SECTION 7.1 General Indemnification......................................................... 23
SECTION 7.2 Environmental Indemnity......................................................... 25
SECTION 7.3 Proceedings in Respect of Claims................................................ 26
SECTION 7.4 Increased Costs................................................................. 27
SECTION 7.5 Change in Law; Unavailability of Deposits....................................... 28
SECTION 7.6 Capital Adequacy................................................................ 29
SECTION 7.7 End of Term Indemnity........................................................... 30
SECTION 8
MISCELLANEOUS.............................................. 31
SECTION 8.1 Survival of Agreements.......................................................... 31
SECTION 8.2 Notices......................................................................... 31
SECTION 8.3 Counterparts.................................................................... 31
SECTION 8.4 Amendments...................................................................... 31
SECTION 8.5 Headings, etc................................................................... 31
SECTION 8.6 Parties in Interest............................................................. 32
SECTION 8.7 GOVERNING LAW................................................................... 32
SECTION 8.8 Expenses........................................................................ 32
SECTION 8.9 Severability.................................................................... 32
SECTION 8.10 Liabilities of the Lessor...................................................... 32
SECTION 8.11 Submission to Jurisdiction; Waivers............................................ 32
APPENDIX A Definitions and Interpretation
SCHEDULES
SCHEDULE 2.2 Commitments
SCHEDULE 4.1(n) Subsidiaries
SCHEDULE 3.1(l) Construction Milestones
SCHEDULE 8.2 Notice Information
EXHIBITS
EXHIBIT A Form of Funding Request
EXHIBIT B Form of Completion Date Certificate
EXHIBIT C Form of Environmental Audit Reliance Letter
EXHIBIT D Form of Lessee's Counsel Opinion
Master Agreement 3
Master Agreement 4
MASTER AGREEMENT
THIS MASTER AGREEMENT, dated as of December 22, 1999 (as it may be
amended or modified from time to time in accordance with the provisions hereof,
this "MASTER AGREEMENT"), is between ▇▇▇▇▇▇▇▇-▇▇▇▇, INC., a Delaware
corporation, as Lessee, and FIRST CHICAGO LEASING CORPORATION, a Delaware
corporation, as Lessor.
PRELIMINARY STATEMENT
In accordance with the terms and provisions of this Master Agreement,
the Lease, the Lease Participation Agreement and the other Operative Documents,
(i) the Lessee contemplates creating a Leasehold Estate in the Land in favor of
the Lessor pursuant to the Ground Lease and the Lessor contemplates acquiring
the Leasehold Estate in the Land from Lessee pursuant to the Ground Lease and
subleasing the Land to the Lessee, (ii) the Lessee contemplates constructing a
Building on the Land for the Lessor and, when completed, leasing the Building
from the Lessor as part of the Property under the Lease, (iii) Lessee wishes to
obtain, and the Lessor is willing to provide, funding for the construction of
the Building, and (iv) the Lessor wishes to sell, and the Lease Participant
wishes to purchase, a participation interest in the Lessor's rights under the
Lease and the other Operative Documents.
In consideration of the mutual agreements contained in this Master
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in APPENDIX A hereto
for all purposes hereof; and the rules of interpretation set forth in APPENDIX A
hereto shall apply to this Master Agreement.
SECTION 2
ACQUISITION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION
SECTION 2.1 AGREEMENT TO ACQUIRE, FUND AND LEASE.
(a) LEASEHOLD ESTATE. Subject to the terms and conditions of
this Master Agreement, on the Closing Date (i) the Lessee agrees to create a
Leasehold Estate in the Land in
Master Agreement 5
favor of the Lessor pursuant to the Ground Lease and the Lessor agrees to
acquire the Leasehold Estate in the Land from the Lessee pursuant to the Ground
Lease, (ii) the Lessor hereby agrees to sublease the Land as part of the
Property to the Lessee pursuant to the Lease, and (iii) the Lessee hereby agrees
to sublease the Land as part of the Property from the Lessor pursuant to the
Lease.
(b) BUILDING. Subject to the terms and conditions of this
Master Agreement, from and after the Closing Date (i) the Lessee agrees,
pursuant to the terms of the Construction Agency Agreement, to construct and
install the Building on the Land for the Lessor prior to the Scheduled
Construction Termination Date, (ii) the Lessor agrees to fund the costs of such
construction and installment (and yield thereon), such fundings not to exceed in
the aggregate the remaining amount of the Commitment during the period from the
Closing Date to the Construction Termination Date, (iii) the Lessor hereby
agrees to lease the Building as part of the Property to the Lessee pursuant to
the Lease, and (iv) the Lessee hereby agrees to lease the Building from the
Lessor pursuant to the Lease.
SECTION 2.2 FUNDINGS OF PURCHASE PRICE, DEVELOPMENT COSTS AND
CONSTRUCTION COSTS.
(a) INITIAL FUNDING AND PAYMENT OF PURCHASE PRICE AND
TRANSACTION EXPENSES FOR THE PROPERTY ON CLOSING DATE. Subject to the terms and
conditions of this Master Agreement, on the Closing Date, Lessor shall make its
initial funding of the Lessor's Invested Amount in the amounts and for the
purposes set forth in the Funding Request to be delivered to the Lessor on the
Closing Date.
(b) SUBSEQUENT FUNDINGS AND PAYMENTS OF CONSTRUCTION COSTS
DURING CONSTRUCTION TERM. Subject to the terms and conditions of this Master
Agreement, on each Funding Date following the Closing Date until the
Construction Term Expiration Date, the Lessor shall pay over to the Lessee funds
(which shall constitute a part of and an increase in the Lessor's Invested
Amount) in an amount equal to the amount of Funding requested by the Lessee for
such Funding Date.
(c) AGGREGATE LIMITS ON LESSOR'S INVESTED AMOUNTS. The
aggregate amount that the Lessor shall be committed to provide as Lessor's
Invested Amounts under this Master Agreement shall not exceed the lesser of (i)
$23,000,000 and (ii) the estimated value in use shown on the Appraisal.
(d) NOTICE, TIME AND PLACE OF FUNDINGS. With respect to each
Funding, the Lessee shall give the Lessor an irrevocable prior written notice
not later than 12:00 noon, Chicago, Illinois time, three Business Days prior to
the proposed Funding Date pursuant, in each case, to a Funding Request in the
form of EXHIBIT A (a "FUNDING REQUEST"), specifying the Business Day to be the
Closing Date or subsequent Funding Date, as the case may be, and the amount of
Funding requested. All documents and instruments required to be delivered on the
Closing Date pursuant to this Master Agreement shall be delivered at the offices
of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
at such other location as may be determined by the Lessor and the Lessee. Each
Funding shall be in an amount equal to
Master Agreement 6
$200,000 or an integral multiple of $100,000 in excess thereof. All remittances
made by the Lessor for the Funding shall be made in immediately available funds
by wire transfer to, or as directed by, the Lessee with receipt by the Lessee
not later than 1:00 p.m., Chicago, Illinois time, on the applicable Funding
Date, upon satisfaction or waiver of the conditions precedent to the Funding set
forth in SECTION 3.
(e) LESSEE'S DEEMED REPRESENTATION FOR EACH FUNDING. Each
Funding Request by the Lessee shall be deemed a representation by the Lessee to
the Lessor that on the proposed Closing Date or Funding Date, as the case may
be, (i) the amount of Funding requested represents Transaction Expenses, costs
of Construction (soft costs and hard costs), Commitment Fees or Yield or a
combination thereof (as set forth in the applicable Funding Request), in each
case not to exceed the amounts allocated therefor in the Construction Budget,
(ii) no Event of Default or, to Lessee's knowledge, Potential Event of Default
exists, and (iii) the representations of the Lessee set forth in SECTION 4.1 are
true and correct in all material respects as though made on and as of such
Funding Date except to the extent such representations or warranties relate
solely to an earlier date, in which case such representations and warranties
shall have been true and correct in all material respects on and as of such
earlier date.
SECTION 2.3 LESSOR'S INVESTED AMOUNT AND YIELD THEREON; COMMITMENT FEE.
(a) During the period from and including the Closing Date to
but excluding the date on which Lessor's Invested Amount is repaid in full,
Lessor's Invested Amount shall accrue yield ("YIELD") at a rate PER ANNUM equal
to (i) the sum of (A) the Adjusted LIBOR Rate plus (B) the Applicable Margin PER
ANNUM, computed using the actual number of days elapsed and a 360-day year. If
all or a portion of the principal amount of or yield on the Lessor's Invested
Amount shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall, without limiting the
rights of the Lessor under the Lease, accrue yield at the Overdue Rate, in each
case from the date of nonpayment until paid in full (as well after as before
judgment).
(b) During the Construction Term, in lieu of paying Basic Rent
on each Payment Date, Lessee may submit a Funding Request which includes the
amount of the Basic Rent due on each Payment Date during the Construction Term,
and on the Payment Date, provided all conditions under this Master Agreement to
such Funding have been satisfied, the Lessor's Invested Amount shall be
increased by the amount of the Basic Rent then due. Such increases in the
Lessor's Invested Amount shall occur without any disbursement of funds by the
Lessor.
(c) During the Construction Term on each Payment Date, Lessee
shall pay Lessor a commitment fee (the "COMMITMENT FEE") for each day equal to
(A) the Commitment Fee Rate then in effect TIMES (B) the difference between
$23,000,000 and the Lessor's Invested Amount on such day TIMES (C) 1/360. During
the Construction Term, in lieu of paying such Commitment Fee, Lessee may submit
a Funding Request which includes the amount of the Commitment Fee due on each
Payment Date during the Construction Term, and on the Payment
Master Agreement 7
Date, provided all conditions under this Master Agreement to such Funding have
been satisfied, the Lessor's Invested Amount shall be increased by the amount of
the Commitment Fee then due. Such increases in the Lessor's Invested Amount
shall occur without any disbursement of funds by the Lessor.
SECTION 2.4 LESSEE OWNER FOR TAX PURPOSES. It is the intent of the
Lessee and the Lessor that for federal, state and local tax purposes (A) the
Lessee owns the Property and will be entitled to all tax benefits ordinarily
available to an owner of property similar to the Property, (B) the Lease will be
treated as a financing arrangement, and (C) the Lessor will be treated as a
lender making loans to the Lessee. Consistent with such characterization (i) the
Basic Rent shall be treated as interest, (ii) the Lessor's Invested Amounts
shall be treated as principal of a loan, and (iii) the other Supplemental Rent
shall be treated as additional charges under a loan, for federal income tax
purposes. The Lessor shall not take any actions inconsistent with, or otherwise
interfere with, the tax position described in the foregoing sentence, except as
required by Applicable Law or by any Governmental Authority. Nevertheless, the
Lessee acknowledges and agrees that no Person (including the Lessor) has made
any representation or warranty to it concerning the tax, financial, accounting
or legal characteristics or treatment of the Operative Documents and that the
Lessee has obtained and relied solely upon the advice of its own tax, accounting
and legal advisors concerning the Operative Documents and the accounting, tax,
financial and legal consequences of the transactions contemplated therein.
SECTION 2.5 AMOUNTS DUE UNDER LEASE. Anything else herein or elsewhere
to the contrary notwithstanding, it is the intention of the Lessee and the
Lessor that: (i) the amount and timing of installments of Basic Rent due and
payable from time to time from the Lessee under the Lease shall be equal to the
aggregate payments due and payable with respect to Yield on the Lessor's
Invested Amount on each Payment Date; (ii) if the Lessee elects the Purchase
Option or becomes obligated to purchase the Property under the Lease, the
Lessor's Invested Amounts, all Yield thereon and all other obligations of the
Lessee owing to the Lessor shall be paid in full by the Lessee, (iii) if the
Lessee properly elects the Remarketing Option, the Lessee shall pay the amounts
due pursuant to Section 14.6 of the Lease; and (iv) upon an Event of Default
resulting in an acceleration of the Lessee's obligation to purchase the Property
under the Lease, the amounts then due and payable by the Lessee under the Lease
shall include all amounts necessary to pay in full the Lessor's Invested Amount
and accrued Yield thereon and all other obligations of the Lessee owing to the
Lessor.
SECTION 3
CONDITIONS PRECEDENT; DOCUMENTS
SECTION 3.1 CONDITIONS TO THE OBLIGATIONS OF THE LESSOR ON THE CLOSING
DATE. The obligations of Lessor to carry out its obligations under SECTIONS 2.1
and 2.2 of this Master Agreement to be performed on the Closing Date shall be
subject to the fulfillment to the satisfaction of, or waiver by, Lessor on or
prior to the Closing Date of the following conditions precedent.
Master Agreement 8
(a) FUNDING REQUEST. The Lessor shall have received from the Lessee the
Funding Request therefor pursuant to SECTION 2.2.
(b) OPERATIVE DOCUMENTS. Each of the Operative Documents shall have
been duly executed and delivered by each of the parties thereto.
(c) SURVEY. The Lessee shall have delivered, or shall have caused to be
delivered, to the Lessor, at the Lessee's expense, an accurate ALTA survey of
the Land, certified as requested by Lessor and showing no state of facts
unsatisfactory to the Lessor in its reasonable judgment and prepared within
ninety (90) days of the Closing Date by a Person reasonably satisfactory to the
Lessor. Such survey shall be sufficient to allow the Title Insurance Company to
issue the Title Policy described below.
(d) TITLE AND TITLE INSURANCE. On the Closing Date, the Lessor shall
receive from the Title Insurance Company an ALTA Owner's Policy of Title
Insurance issued by the Title Insurance Company in an amount equal to
$23,000,000, reasonably acceptable in form and substance to the Lessor and
showing no state of facts unsatisfactory to the Lessor in its reasonable
judgment (collectively, the "TITLE POLICY"). The Title Policy shall be dated as
of the Closing Date, shall include a pending disbursements clause reasonably
satisfactory to the Lessor, shall be without an exception for creditors' rights
and shall include coverage over the general exceptions to such policy and shall
contain such affirmative endorsements as to mechanic's liens, easements and
rights-of-way, encroachments, the non-violation of covenants and restrictions,
survey matters, zoning, recharacterization and other commercially available
endorsements as the Lessor shall reasonably request.
(e) APPRAISAl. The Lessor shall have received a report of ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ (the "APPRAISAL"), paid for by the Lessee. Such Appraisal must show
that the estimated value in use (determined as if the Building had already been
completed in accordance with the related Plans and Specifications and by
excluding from such value the amount of assessments on the Property) at the
commencement of the Lease Term is equal to at least the expected final Lessor's
Invested Amount.
(f) ENVIRONMENTAL AUDIT; RELIANCE LETTER REGARDING ENVIRONMENTAL AUDIT.
Lessor is satisfied in all respects with the Environmental Audit and KO
Environmental Services shall have delivered to the Lessor a letter
(substantially in the form of EXHIBIT C) stating that the Lessor and the Lease
Participant may rely upon such firm's Environmental Audit of the Property, a
copy of which has previously been delivered to the Lessor.
(g) EVIDENCE OF INSURANCE. The Lessor shall have received from the
Lessee certificates of insurance evidencing compliance with the provisions of
Article VIII of the Lease (including the naming of the Lessor and the Lease
Participant as additional insureds and the Lessor as loss payee as its interest
may appear with respect to such insurance), in form and substance reasonably
satisfactory to the Lessor.
Master Agreement 9
(h) LESSEE'S OFFICER'S CERTIFICATE. The Lessor shall have received an
Officer's Certificate of the Lessee stating that, to the best of such officer's
knowledge, (A) each and every representation and warranty of the Lessee
contained in the Operative Documents is true and correct in all material
respects on and as of the Closing Date as though made on and as of the Closing
Date, except to the extent such representations or warranties relate solely to
an earlier date, in which case such representations and warranties shall have
been true and correct in all material respects on and as of such earlier date;
(B) no Event of Default or Potential Event of Default has occurred and is
continuing; (C) each Operative Document to which the Lessee is a party is in
full force and effect with respect to it; and (D) no event that would reasonably
be expected to have a Material Adverse Effect has occurred since September 30,
1999.
(i) LESSEE'S RESOLUTIONS AND INCUMBENCY CERTIFICATE, ETC. The Lessor
shall have received (x) a certificate of the Secretary or an Assistant Secretary
of the Lessee, attaching and certifying as to (i) the Board of Directors'
resolution duly authorizing the execution, delivery and performance by it of
each Operative Document to which it is or will be a party, (ii) the incumbency
and specimen signatures of persons authorized to execute and deliver such
documents on its behalf, (iii) its certificate of incorporation, certified as of
a recent date by the Secretary of State of the state of its incorporation, (iv)
its by-laws, and (y) good standing certificates from the appropriate office of
the States of Delaware and Illinois for the Lessee.
(j) UCC STATEMENT; RECORDING FEES; TRANSFER TAXES. The Lessor shall
have received satisfactory evidence of (i) the filing (or arrangements
satisfactory to them for filing) of such Uniform Commercial Code financing
statements as it deems reasonably necessary or reasonably appropriate in order
to protect its interests, including the UCC Statements, (ii) the payment of all
recording and filing fees and taxes with respect to any recordings or filings
made of the Memorandum of Ground Lease, the Memorandum of Lease and such UCC
financing statements, and (iii) payment of the reasonable legal fees and
expenses of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel to Lessor and Lease Participant.
(k) OPINION OF COUNSEL. The opinion of Altheimer & ▇▇▇▇, counsel to the
Lessee, dated the Closing Date, substantially in the form set forth in EXHIBIT
D-1 and the opinion of the General Counsel of Lessee, substantially in the form
set forth in EXHIBIT D-2.
(l) CONSTRUCTION DOCUMENTS. The Lessee shall have delivered to Lessor
an Officer's Certificate of the Lessee, to which all of the following are
attached: (i) the Plans and Specifications, (ii) Construction Contract, (iii)
Construction Milestones, (iv) Construction Budget and (v) the Architect's
Agreement, which Officer's Certificate and attachments shall be subject to the
approval of the Lessor and Lease Participant.
(m) LITIGATION. No action or proceeding shall have been instituted or
threatened nor shall any governmental action, suit, proceeding or investigation
be instituted or threatened before any Governmental Authority, nor shall any
order, judgment or decree have been issued or proposed to be issued by any
Governmental Authority, to set aside, restrain, enjoin or prevent the
Master Agreement 10
performance of this Master Agreement or any transaction contemplated hereby or
by any other Operative Document or which is reasonably likely to materially
adversely affect the Property or any transaction contemplated by the Operative
Documents or which could reasonably be expected to result in a Material Adverse
Effect.
(n) LEGALITY. In the opinion of the Lessee, the Lessor and the Lease
Participant or their respective counsel, the transactions contemplated by the
Operative Documents shall not violate any Applicable Law, and no change shall
have occurred or been proposed in Applicable Law that would make it illegal for
such party to participate in any of the transactions contemplated by the
Operative Documents.
(o) NO EVENTS. (i) No Event of Default, Potential Event of Default,
Event of Loss or Event of Taking shall have occurred and be continuing, (ii) no
action shall be pending or threatened by a Governmental Authority to initiate a
Condemnation or an Event of Taking, and (iii) there shall not have occurred any
event that would reasonably be expected to have a Material Adverse Effect since
September 30, 1999.
(p) REPRESENTATIONS. Each representation and warranty of the Lessee
contained herein or in any other Operative Document shall be true and correct in
all material respects as though made on and as of the Closing Date.
(q) TRANSACTION EXPENSES. The Lessee shall pay the Lessor the
Transaction Expenses then accrued.
(r) PERFECTION. Lessor is satisfied that it has a first prior perfected
security interest in the Property and all other collateral securing Lessee's
obligations under the Operative Documents.
SECTION 3.2 CONDITIONS TO THE OBLIGATIONS OF THE LESSOR ON EACH
SUBSEQUENT FUNDING DATE. The obligations of the Lessor to carry out its
obligations under SECTION 2 of this Master Agreement to be performed on each
Funding Date after the Closing Date shall be subject to the fulfillment to the
satisfaction of, or waiver by, the Lessor on or prior to each such Funding Date
of the following conditions precedent:
(a) FUNDING REQUEST. The Lessor shall have received from the Lessee the
Funding Request therefor pursuant to SECTION 2.2.
(b) LESSEE'S OFFICER'S CERTIFICATE. The Lessor shall have received an
Officer's Certificate of the Lessee stating that: (A) each and every
representation and warranty of the Lessee contained in the Operative Documents
is true and correct in all material respects on and as of the Funding Date as
though made on and as of the Funding Date, except to the extent such
representations or warranties relate solely to an earlier date, in which case
such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date; (B) no Event of Default or, to
Lessee's knowledge, Potential Event of Default has occurred
Master Agreement 11
and is continuing; (C) each Operative Document to which the Lessee is a party is
in full force and effect with respect to it; (D) no event that would reasonably
be expected to have a Material Adverse Effect has occurred since September 30,
1999; and (E) the Construction is proceeding in a manner satisfying the
Construction Milestones set forth on SCHEDULE 3.2(b).
(c) LITIGATION. No action or proceeding shall have been instituted or
threatened nor shall any governmental action, suit, proceeding or investigation
be instituted or threatened before any Governmental Authority, nor shall any
order, judgment or decree have been issued or proposed to be issued by any
Governmental Authority, to set aside, restrain, enjoin or prevent the
performance of this Master Agreement or any transaction contemplated hereby or
by any other Operative Document or which is reasonably likely to materially
adversely affect the Property or any transaction contemplated by the Operative
Documents or which could reasonably be expected to result in a Material Adverse
Effect.
(d) LEGALITY. In the opinion of the Lessee, the Lessor and the Lease
Participant or their respective counsel, the transactions contemplated by the
Operative Documents shall not violate any Applicable Law, and no change shall
have occurred or been proposed in Applicable Law that would make it illegal for
such party to participate in any of the transactions contemplated by the
Operative Documents.
(e) NO EVENTS. (i) No Event of Default, Potential Event of Default,
Event of Loss or Event of Taking shall have occurred and be continuing, (ii) no
action shall be pending or threatened by a Governmental Authority to initiate a
Condemnation or an Event of Taking, and (iii) there shall not have occurred any
event that would reasonably be expected to have a Material Adverse Effect since
September 30, 1999.
(f) REPRESENTATIONS. Each representation and warranty of the Lessee
contained herein or in any other Operative Document shall be true and correct in
all material respects as though made on and as of the Funding Date, except to
the extent such representations or warranties relate solely to an earlier date,
in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date.
(g) TRANSACTION EXPENSES. The Lessee shall pay the Lessor the
Transaction Expenses then accrued.
SECTION 3.3 COMPLETION DATE CONDITIONS. The occurrence of the
Completion Date shall be subject to the fulfillment to the satisfaction of, or
waiver by, Lessor of the following conditions precedent:
(a) TITLE POLICY ENDORSEMENTS; ARCHITECT'S CERTIFICATE. The
Lessee shall have furnished to the Lessor
(1) the a date-down endorsement (redating and confirming the
coverage provided under the Title Policy and each endorsement thereto)
and a ALTA 3.1 Zoning
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Endorsement, in each case effective as of a date not earlier than the
date of completion of the Construction subject to no further
exceptions not approved by Lessor (other than the Development
Agreements approved by Lessor in accordance with SECTION 5.9 of this
Master Agreement or ARTICLE V of the Lease);
(2) a certificate of the Architect dated at or about the
Completion Date and stating that (i) the Building has been completed
substantially in accordance with the Plans and Specifications, and the
Property is ready for occupancy, (ii) the Plans and Specifications
comply in all material respects with all Applicable Laws in effect at
such time, and (iii) to the best of the Architect's knowledge, the
Property, as so completed, complies in all material respects with all
Applicable Laws in effect at such time;
(3) an "as built" or "record" set of the Plans and
Specifications;
(4) a plat of survey of the Property "as built" showing all
easements, paving, driveways, fences and exterior improvements. Such
survey shall be certified as requested by Lessor and (i) be sufficient
to allow the Title Company to issue the endorsements referred to in
SECTION 3.3(a)(1) above and (ii) show no state of facts unsatisfactory
to the Lessor in its reasonable judgment; and
(5) copies of a certificate or certificates of occupancy for
the Property or other legally equivalent permission to occupy the
Property.
(b) CONSTRUCTION COMPLETION. The Construction shall have been completed
substantially in accordance with the Plans and Specifications and all Applicable
Laws, and the Property shall be ready for occupancy and operation. All fixtures
and other property contemplated under the Plans and Specifications or included
in the Appraisal delivered pursuant to Section 3.1 to be incorporated into or
installed in the Property shall have been incorporated or installed, free and
clear of all Liens except for Permitted Liens.
(c) LESSEE CERTIFICATION. The Lessee shall have furnished the Lessor
with a certification of the Lessee in the form of Exhibit B attached hereto.
SECTION 4
REPRESENTATIONS
SECTION 4.1 REPRESENTATIONS OF THE LESSEE. The Lessee represents and
warrants to Lessor as follows:
(a) ORGANIZATION; CORPORATE POWERS. The Lessee (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) is duly qualified as a foreign
corporation and in good standing (A) in Illinois and (B) under the laws of each
jurisdiction where such qualification is required and where the
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failure to be duly qualified and in good standing would have a Material Adverse
Effect and (iii) has all requisite corporate power and authority to own, operate
and encumber its property and assets and to conduct its business as presently
conducted and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by the Operative Documents.
Lessee's principal place of business is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) AUTHORITY. The Lessee has the requisite corporate power and
authority to execute, deliver and perform the Operative Documents executed by
it, or to be executed by it, and the execution, delivery and performance (or
recording or filing, as the case may be) of the Operative Documents, and the
consummation of the transactions contemplated thereby, have been duly approved
by the Board of Directors of the Lessee and no other corporate proceedings on
the part of the Lessee are necessary to consummate the transactions so
contemplated.
(c) ENFORCEABLE. The Operative Documents executed by the Lessee have
been duly executed and delivered (and recorded or filed, as the case may be) by
the Lessee, and constitute its legal, valid and binding obligation, enforceable
against it in accordance with their respective terms, except as enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or limiting creditors' rights generally or by equitable principles
generally.
(d) NO CONFLICT. The execution, delivery and performance by the Lessee
of each Operative Document to which it is a party and each of the transactions
contemplated thereby do not and will not (i) violate any Applicable Law or
Contractual Obligation of the Lessee the consequences of which violation, singly
or in the aggregate, would have a Material Adverse Effect, (ii) result in or
require the creation or imposition of any Lien whatsoever on the Property or
upon any of the properties or assets of the Lessee or any of its Subsidiaries
(other than Permitted Liens), or (iii) require any approval of stockholders or
others which has not been obtained and is in full force and effect.
(e) GOVERNMENTAL CONSENTS. Except as have been made, obtained or given,
and are in full force and effect, no filing or registration with, consent or
approval of, notice to, with or by any Governmental Authority, is required to
authorize, or is required in connection with, the execution, delivery and
performance by the Lessee of the Operative Documents, the use of the proceeds of
the Funding made to effect the purchase of the Property, or the legality,
validity, binding effect or enforceability of any Operative Document.
(f) APPLICABLE LAW. The Lessee and each Subsidiary of the Lessee, each
of their businesses and each Person acting on behalf of any of them is in
compliance with all Applicable Laws, in each case where the failure to so comply
would have a Material Adverse Effect, either individually or together with other
such cases.
Master Agreement 14
(g) RIGHTS IN RESPECT OF THE PROPERTY. The Lessee is not a party to any
contract or agreement to sell any interest in the Property or any part thereof,
other than pursuant to this Master Agreement and the Lease.
(h) HAZARDOUS MATERIALS.
(i) To the best knowledge of the Lessee, on the Closing Date,
there are no Hazardous Materials present at, upon, under or within the Property
or released or transported to or from the Property, except, in each case, in
full compliance with all Applicable Laws.
(ii) On or before the Closing Date, no written notices of any
Governmental Action have been received by the Lessee or any
Affiliate which could reasonably be expected to either (A) subject the Lessor or
Lease Participant to any Claims or Liens under any Environmental Law, or (B)
subject the Lessee or the Property to any Claims or Liens under any
Environmental Law which would have a Material Adverse Effect.
(iii) The Lessee has, or will have when required by Applicable
Law, all Environmental Permits necessary to operate the Property in accordance
with Environmental Laws and is complying with and has at all times complied with
all such Environmental Permits, except to the extent the failure to so comply
would not have a Material Adverse Effect.
(iv) No written notice, notification, demand, request for
information, citations, summons, complaint or order has been received by the
Lessee, no penalty has been assessed on the Lessee and no investigation or
review is pending or, to its best knowledge, threatened by any Governmental
Authority or other Person in each case relating to the Property with respect to
any alleged violation or liability of the Lessee under any Environmental Law. No
material notice, notification, demand, request for information, citations,
summons, complaint or order has been received by the Lessee with respect to any
other Person, no material penalty has been assessed on any other Person and no
investigation or review is pending or, to its best knowledge, threatened by any
Governmental Authority or other Person relating to the Property with respect to
any alleged material violation or liability under any Environmental Law by any
other Person.
(v) The Property and each portion thereof are presently in
compliance in all material respects with all Environmental Laws, and there are
no present or past facts, circumstances, activities, events, conditions or
occurrences regarding the Property (including without limitation the release or
presence of Hazardous Materials) that could reasonably be anticipated to (A)
form the basis of a material Claim against the Property, the Lessor, the Lease
Participant or the Lessee, (B) cause the Property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law, (C) require the filing or recording of any notice or
restriction relating to the presence of Hazardous Materials in the real estate
records in the county or other appropriate municipality in which the Property is
located, or (D) prevent or interfere with the continued operation and
maintenance of the Property as contemplated by the Operative Documents.
Master Agreement 15
(i) PROPERTY. The present condition and use of the Property conforms in
all material respects with all conditions or requirements of all existing
permits and approvals issued with respect to the Property, and the present use
of the Property and the Lessee's future intended use of the Property under the
Lease does not, in any material respect, violate any Applicable Law. No material
written notices, complaints of orders or violation or non-compliance have been
received or, to the Lessee's best knowledge, issued, threatened or contemplated
by any Governmental Authority with respect to the Property or any present or
intended future use thereof. All agreements, easements and other rights, public
or private, which are necessary to permit the lawful use and operation of the
Property as the Lessee intends to use the Property under the Lease and which are
necessary to permit the lawful intended use and operation of all presently
intended utilities, driveways, roads and other means of egress and ingress to
and from the same have been, or to the Lessee's best knowledge will be, obtained
and are, or will be, in full force and effect, and the Lessee has no knowledge
of any pending modification or cancellation of any of the same (other than any
modification pursuant to the Development Agreements).
(j) FINANCIAL STATEMENTS. The September 30, 1999 consolidated financial
statements of the Lessee and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Lessee and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
(k) MATERIAL ADVERSE CHANGE. Since the period ending September 30,
1999, there has been no change in the business, property, condition (financial
or otherwise) or results of operations of the Lessee and its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.
(l) TAXES. The Lessee and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Lessee or any of its Subsidiaries, except such taxes, if any, as
are being contested in good faith and as to which adequate reserves have been
provided in accordance with Agreement Accounting Principles and as to which no
Lien exists. The United States income tax returns of the Lessee and its
Subsidiaries have been audited by the Internal Revenue Service through the
fiscal year ended December 31, 1996. No tax liens have been filed and no claims
are being asserted with respect to any such taxes as of the Closing Date except
as set forth in SCHEDULE 4.1(l). The charges, accruals and reserves on the books
of the Lessee and its Subsidiaries in respect of any taxes or other governmental
charges are adequate.
(m) LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Lessee or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or
Master Agreement 16
delay the making of any Funding hereunder. Other than any liability incident to
any litigation, arbitration or proceeding which could not reasonably be expected
to have a Material Adverse Effect, the Lessee has no material contingent
obligations not provided for or disclosed in the financial statements referred
to in SECTION 4.1(j).
(n) SUBSIDIARIES. SCHEDULE 4.1(n) contains an accurate list of all
Subsidiaries of the Lessee as of the date of this Agreement, setting forth their
respective jurisdictions of organization and the percentage of their respective
capital stock or other ownership interests owned by the Lessee or other
Subsidiaries. All of the issued and outstanding shares of capital stock or other
ownership interests of such Subsidiaries have been (to the extent such concepts
are relevant with respect to such ownership interests) duly authorized and
issued and are fully paid and nonassessable.
(o) ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $5,000,000. Each Plan complies in all material respects
with all Applicable Law, no Reportable Event has occurred with respect to any
Plan, neither the Lessee nor any other member of the Controlled Group has
withdrawn from any Plan or initiated steps to do so, and no steps have been
taken to reorganize or terminate any Plan.
(p) PLAN ASSETS; PROHIBITED TRANSACTIONS. The Lessee is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. Section 2510.3-101
of an employee benefit plan (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA or any plan (within the meaning of Section 4975 of
the Code), and neither the execution of this Agreement nor the making of Loans
hereunder gives rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.
(q) ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Lessee or any of its Subsidiaries to the Agent or Lease
Participant in connection with the negotiation of, or compliance with, the
Operative Documents contained any material misstatement of fact or omitted to
state a material fact or any fact necessary to make the statements contained
therein not misleading.
(r) REGULATION U. Margin stock (as defined in Regulation U) constitutes
less than 25% of the value of those assets of the Lessee and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
(s) INVESTMENT COMPANY ACT. Neither the Lessee nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
(t) PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Lessee nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
Master Agreement 17
(u) YEAR 2000. The Lessee has made a full and complete assessment of
the Year 2000 Issues and has a realistic and achievable program for remediating
the Year 2000 Issues on a timely basis (the "Year 2000 Program"). Based on such
assessment and on the Year 2000 Program the Lessee does not reasonably
anticipate that Year 2000 Issues will have a Material Adverse Effect.
SECTION 4.2 REPRESENTATIONS OF THE LESSOR. The Lessor represents and
warrants to the Lessee as follows:
(a) ORGANIZATION; CORPORATE POWERS. The Lessor (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, and (ii) has all requisite corporate power and
authority to own, operate and encumber its property and assets and to conduct
its business as presently conducted and as proposed to be conducted in
connection with and following the consummation of the transactions contemplated
by the Operative Documents.
(b) AUTHORITY. (i) The Lessor has the requisite corporate power and
authority to execute, deliver and perform the Operative Documents executed by
it, or to be executed by it, and (ii) the execution, delivery and performance
(and recording or filing, as the case may be) of the Operative Documents, and
the consummation of the transactions contemplated thereby, have been duly
approved by all necessary corporate action of the Lessor and no other corporate
proceedings on the part of the Lessor are necessary to consummate the
transactions so contemplated.
(c) ENFORCEABLE. The Operative Documents executed by the Lessor have
been duly executed and delivered by the Lessor, and constitute its legal, valid
and binding obligation, enforceable against it in accordance with their
respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or limiting
creditors' rights generally or by equitable principles generally.
(d) SECURITIES ACT. Except as set forth in the Lease Participation
Agreement, the interest being acquired or to be acquired by the Lessor in the
Property is being acquired for its own account, without any view to the
distribution thereof or any interest therein.
(e) EMPLOYEE BENEFIT PLANS. The Lessor is not and will not be making
its investment hereunder or performing its obligations under the Operative
Documents, with the assets of an "employee benefit plan" (as defined in Section
3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as defined in
Section 4975(e)(1)) of the Code.
Master Agreement 18
SECTION 5
COVENANTS OF THE LESSEE
SECTION 5.1 QUALIFICATION TO DO BUSINESS IN ILLINOIS. The Lessee shall
remain qualified to do business and in good standing in the State of Illinois.
SECTION 5.2 FURTHER ASSURANCES. Upon the written request of the Lessor,
the Lessee, at its own cost and expense, will cause all financing statements
(including precautionary financing statements), fixture filings and other
similar documents, to be recorded or filed at such places and times specified by
the Lessor to the extent reasonably necessary to preserve, protect and perfect
the interest of the Lessor in the Property as contemplated by the Operative
Documents.
SECTION 5.3 REPORTING. The Lessee shall deliver or cause to be
delivered to the Lessor the following (to the extent not previously obtained by
the Lessor):
(a) as soon as they are available but not more than 120 days
after the end of each fiscal year of the Lessee, the Lessee's
consolidated balance sheets and the related statements of income and
cash flows, showing the Lessee's financial condition as of the close of
such fiscal year, on a consolidated basis, certified by KPMG Peat
Marwick or other independent auditors of recognized national standing
and accompanied by an opinion of such auditors to the effect that such
consolidated financial statements fairly present the Lessee's financial
condition and results of operations on a consolidated basis in
accordance with GAAP consistently applied;
(b) as soon as they are available but not later than 45 days
after the end of each fiscal quarter of each year, the Lessee's
consolidated and consolidating balance sheets and related statements of
income and cash flows, showing the Lessee's financial condition, on a
consolidated and consolidating basis, as of the close of such fiscal
quarter and during the then elapsed portion of the related fiscal year,
all certified by one of the Lessee's chief financial officers,
principal accounting officer, Treasurer or Assistant Treasurer (each, a
"FINANCIAL OFFICER") as fairly presenting its financial condition and
results of operations on a consolidated and consolidating basis and,
with respect to the consolidated statements, in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(c) together with the financial statements delivered pursuant
to PARAGRAPHS (a) and (b) above, a certificate from the Lessee's
Financial Officer showing a calculation of the financial covenants set
forth in SECTION 5.4; and
(d) upon request by the Lessor, such other information
relating to the business, affairs and financial condition of the Lessee
and its Subsidiaries or the Property as the Lessor may from time to
time reasonably request.
SECTION 5.4 FINANCIAL COVENANTS.
Master Agreement 19
5.4.1 FIXED CHARGE COVERAGE RATIO. Lessee will not permit the
ratio, determined as of the end of each of its fiscal quarters, of (i)
Consolidated EBITDA PLUS Consolidated Rentals to (ii) the sum of (x)
Consolidated Interest Expense PLUS (y) Consolidated Rentals, all
calculated for the Lessee and its Subsidiaries on a consolidated basis,
to be less than 3.0 to 1.0.
5.4.2 LEVERAGE RATIO. The Lessee will not permit the ratio,
determined as of the end of each of its fiscal quarters, of (i)
Consolidated Funded Indebtedness to (ii) Consolidated EBITDA PLUS
Consolidated Rentals for the then most-recently ended four fiscal
quarters to be greater than 3.0 to 1.0.
5.4.3 MINIMUM TANGIBLE NET WORTH. The Lessee will at all times
maintain Consolidated Tangible Net Worth of not less than the sum of
(i) $208,500,000 plus (ii) 50% of Consolidated Net Income earned in
each fiscal quarter beginning with the quarter ending December 31, 1999
(without deduction for losses).
SECTION 5.5 ADDITIONAL REQUIRED APPRAISALS. If, as a result of any
change in Applicable Law after the date hereof, an appraisal of the Property is
required during the Lease Term under Applicable Law with respect to the Lessor's
interest therein, the Lessor's Invested Amount with respect thereto or the
Operative Documents, then the Lessee shall pay the cost of such appraisal.
SECTION 5.6 COLLATERAL. Upon the Closing Date and until each of the
obligations of the Lessee under the Operative Agreements have been satisfied in
full, (i) Lessee shall pledge to Lessor Eligible Collateral as security for
Lessee's obligations under the Operative Documents, and (ii) such Eligible
Collateral shall be subject to the Pledge Agreement and held by ANB pursuant to
the Control Agreement. Upon not less than seven (7) Business Day's notice to
Lessor, so long as no Event of Default or Potential Event of Default has
occurred and is continuing, and no Event of Loss, Event of Taking, Casualty or
Condemnation has occurred, Lessee may elect to change the composition of the
Eligible Collateral and cause substitute Eligible Collateral to become subject
to the Pledge Agreement and held by ANB pursuant to the Control Agreement. So
long as the minimum Eligible Collateral remains on deposit in the securities
account established under the Control Agreement, and so long as no Event of
Default or Potential Event of Default has occurred and is continuing, and no
Event of Loss, Event of Taking, Casualty or Condemnation has occurred, Lessor
shall permit Lessee to withdraw from such securities account any accretions
(including interest and dividends) to the property held therein.
SECTION 5.7 REAL PROPERTY TAXES. The Lessee shall, within one hundred
eighty (180) days after the date hereof, take such action as may be necessary to
cause the ▇▇▇▇ County Assessor to issue a permanent tax identification number
which affects only the Property, all of the Property and no other real property,
including, without limitation, a petition for division of property. Lessor
shall, upon the request of Lessee, join in any such action subject to each of
the
Master Agreement 20
requirements set forth in Article V of the Lease. Lessee shall pay, prior to
the date the same becomes due and payable, all Taxes assessed, billed or imposed
with respect to the Property and all additional real property which may be
assessed, billed or taxed together with any portion of the Property. The payment
of such Taxes is hereby acknowledged and agreed to be included within the scope
and intent of the General Indemnity set forth in Section 7.1 of the Master
Agreement.
SECTION 5.8. CHANGE IN CONTROL. Without the prior written consent of
the Lessor (which consent shall not be unreasonably withheld):
5.8.1 Lessee will not permit or suffer to occur any Change
In Control.
5.8.2 The Lessee will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any
other Person, except that a Subsidiary may merge into
the Lessee or a WhollyOwned Subsidiary.
5.8.2 The Lessee will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of
its property to any other Person, including any
right, title or interest in any of the Operative
Documents, except:
(i) Sales of inventory in the ordinary course of
business; or
(ii) Leases, sales or other dispositions of its
property that, together with all other
Property of the Lessee and its Subsidiaries
previously leased, sold or disposed of
(other than inventory in the ordinary course
of business) as permitted by this Section
during the twelve month period ending with
the month in which any such lease, sale or
other disposition occurs, do not constitute
a Substantial Portion of the property of the
Lessee and its Subsidiaries; or
(iii) Lessee may transfer the Land and Lessee's
interests under the Operative Documents to a
WhollyOwned Subsidiary of Lessee so long as
(A) such WhollyOwned Subsidiary is solvent
and (B) ▇▇▇▇▇▇▇▇-▇▇▇▇, Inc. remains liable
for all obligations of the Lessee under the
Operative Documents.
5.8.4 The Lessee will not, nor will it permit any
Subsidiary to, make or suffer to exist any
Investments (including without limitation, loans and
advances to, and other Investments in, Subsidiaries),
or commitments therefor, or to create any Subsidiary
or to become or remain a partner in any partnership
or joint venture, or to make any Acquisition of any
Person, except:
(i) Permitted Investments; or
Master Agreement 21
(ii) Existing Investments in Subsidiaries and
other Investments in existence on the date
hereof and described in SCHEDULE 5.8.4; or
(iii) New cash Investments in any Person in an
aggregate amount (tested as of the date
such Investment is made) not to exceed
$100,000,000; or
(iv) Acquisitions through the issuance or
delivery of the stock (or other equity or
debt instrument) of Lessee or any Affiliate
of Lessee in the aggregate amount (tested at
the time of an Acquisition) for all such
Acquisitions of not more than $500,000,000.
Subject to limitations of Applicable Law, Lessee agrees to give Lessor
reasonable advance notice of (i) any proposed event which would require the
consent of Lessor under this Section 5.8, (ii) the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 30% or more of the outstanding shares of
voting stock of the Lessee or (iii) Acquisitions through the issuance or
delivery of the stock (or other equity or debt instrument) of Lessee or any
Affiliate of Lessee in the amount (tested at the time of an Acquisition) of
$300,000,000 or more.
SECTION 5.9. DEVELOPMENT COVENANTS.
(a) Lessee covenants and agrees that it shall not (unless Lessee's
needs for parking cannot be fully satisfied by the Property and
the Property is otherwise fully occupied by Lessee) directly or
indirectly purchase, use, provide, lease, rent, construct,
subsidize or in any other manner make use of, any parking
facilities or services for or in connection with or in any way
related to the ▇▇▇▇▇▇▇▇-▇▇▇▇ Campus and the parking needs of its
employees, guests, visitors and invitees, other than the
Property. This covenant shall be placed of recorded in a document
duly recorded with the ▇▇▇▇ County Recorder of Deeds as a
covenant running with the land, burdening the ▇▇▇▇▇▇▇▇-▇▇▇▇
Campus and benefiting the Property.
(b) The TIF Documents shall be subject to the prior approval of
Lessor, such approval not to be unreasonably withheld.
SECTION 6
TRANSFERS BY LESSOR/LEASE PARTICIPANT
SECTION 6.1 LESSOR TRANSFERS. Except as set forth in this Section 6.1
or Section 6.2 of this Master Agreement or Article V of the Lease, the Lessor
shall not assign, convey, pledge,
Master Agreement 22
mortgage, hypothecate or otherwise transfer all or any portion of its right,
title or interest in, to or under the Property or any of the Operative
Documents. Notwithstanding the foregoing:
(a) prior to the Completion Date, the Lessor may transfer all or any
part of its interest in the Property and/or the Operative
Documents to (i) Bank One Corporation or (ii) any Affiliate of
Bank One Corporation which either (x) has a net worth of
$50,000,000 or (y) has its obligations under the Operative
Documents guaranteed by Bank One Corporation or an Affiliate of
Bank One Corporation which has a net worth of $50,000,000,
provided that prior to the Completion Date Lessor shall not be
released from its obligations under the Operative Documents as a
result of such transfer;
(b) on or after the Completion Date, Lessor may transfer all or any
part of its interest in the Property and/or the Operative
Documents to any Person which (x) has a net worth of $50,000,000
or (y) has its obligations under the Operative Documents
guaranteed by any Person which has a net worth of $50,000,000;
provided that from and after any transfer in accordance with this
clause (b) of Section 6.1 and the written assumption by the
transferee of Lessor's obligations under the Operative Documents
(or the portion thereof so transferred), Lessor shall be released
from its obligations under the Operative Documents to the extent
of, and with respect to, the obligations so assumed;
(c) Lessor may enter into the Lease Participation Agreement with
Lease Participant; and
(d) If an Event of Default has occurred and is continuing, the Lessor
may transfer its interests to any Person without the Lessee's
consent.
Within ten (10)Business Days following any transfer referred to in clauses (a)
or (b) above, Lessor shall notify Lessee of such transfer.
SECTION 6.2 LEASE PARTICIPANT. Lease Participant may transfer its
interests under the Lease Participation Agreement to any Person at any time.
SECTION 7
INDEMNIFICATION
SECTION 7.1 GENERAL INDEMNIFICATION. The Lessee agrees to assume
liability for, and to indemnify, protect, defend, save and keep harmless each
Indemnitee, on an After-Tax Basis, from and against, any and all Claims that may
be imposed on, incurred by or asserted against such Indemnitee (whether because
of action or omission by such Indemnitee or otherwise), whether or not such
Indemnitee shall also be indemnified as to any such Claim by any other Person
and whether or not such Claim arises or accrues prior to the Closing Date or
after the Lease Termination Date, in any way relating to or arising out of:
Master Agreement 23
(a) any of the Operative Documents or any of the transactions
contemplated thereby, and any amendment, modification or waiver in respect
thereof; or
(b) the Property or any part thereof or interest therein;
(c) Development Agreements;
(d) the purchase, design, construction, preparation, installation,
inspection, delivery, non-delivery, acceptance, rejection, ownership,
management, possession, operation, rental, lease, sublease, repossession,
maintenance, repair, alteration, modification, addition, substitution, storage,
transfer of title, redelivery, use, financing, refinancing, disposition,
operation, condition, sale (including, without limitation, any sale pursuant to
the Lease), return or other disposition of all or any part of any interest in
the Property or the imposition of any Lien (or incurring of any liability to
refund or pay over any amount as a result of any Lien) thereon, including,
without limitation: (1) Claims or penalties arising from any violation of law or
in tort (strict liability or otherwise), (2) latent or other defects, whether or
not discoverable, (3) any Claim based upon a violation or alleged violation of
the terms of any restriction, easement, condition or covenant or other matter
affecting title to the Property or any part thereof, including any Development
Agreements, (4) the making of any Alterations in violation of any standards
imposed by any insurance policies required to be maintained by Lessee pursuant
to the Lease which are in effect at any time with respect to the Property or any
part thereof, and (5) Claims arising from any public improvements with respect
to the Property resulting in any change or special assessments being levied
against the Property or any Claim for utility "tap-in" fees;
(e) the breach or alleged breach by the Lessee of any representation or
warranty made by it or deemed made by it in any Operative Document or any
certificate required to be delivered by any Operative Document;
(f) the retaining or employment of any broker, finder or financial
advisor by the Lessee to act on its behalf in connection with this Master
Agreement;
(g) the existence of any Lien on or with respect to the Property, any
Basic Rent or Supplemental Rent, title thereto, or any interest therein,
including any Liens which arise out of the possession, use, occupancy,
construction, repair or rebuilding of the Property or by reason of labor or
materials furnished or claimed to have been furnished to the Lessee, or any of
its contractors or agents or by reason of the financing of any personalty or
equipment purchased or leased by the Lessee or Alterations constructed by the
Lessee; or
Master Agreement 24
(h) the transactions contemplated by the Lessee hereby or by any other
Operative Document, in respect of the application of Parts 4 and 5 of Subtitle B
of Title I of ERISA and any prohibited transaction described in Section 4975(c)
of the Code;
PROVIDED, HOWEVER, the Lessee shall not be required to indemnify any Indemnitee
under this SECTION 7.1 for any of the following Claims (other than a Claim
arising from or in connection with the Development Agreements): (1) any Claim to
the extent a court of competent jurisdiction shall have determined that such
claim results from the willful misconduct or gross negligence of such
Indemnitee, (2) any Claim resulting from Lessor Liens which the Lessor is
responsible for discharging under the Operative Documents, and (3) any Claim
related to the Property that arises after the Lease Termination Date when
neither the Lessee nor any Affiliate thereof nor any sublessee thereof has
possession of the Property. It is expressly understood and agreed that the
indemnity provided for herein shall survive the expiration or termination of and
shall be separate and independent from any remedy under the Lease or any other
Operative Document.
SECTION 7.2 ENVIRONMENTAL INDEMNITY. Without limitation of SECTION 7.1,
the Lessee agrees to indemnify, hold harmless and defend each Indemnitee from
and against any and all claims (including without limitation third party claims
for personal injury or real or personal property damage), losses (including but
not limited to any loss of value of the Property), damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings (including informal
proceedings) and orders, judgments, remedial action, requirements, enforcement
actions of any kind, and all reasonable costs and expenses incurred in
connection therewith (including, but not limited to, reasonable attorneys'
and/or paralegals' fees and expenses), including, but not limited to, all costs
incurred in connection with any investigation or monitoring of site conditions
or any clean-up, remedial, removal or restoration work by any federal, state or
local government agency, arising directly or indirectly, in whole or in part,
out of
(a) the presence on or under the Property of any Hazardous Materials,
or any releases or discharges of any Hazardous Materials on,
under, from or onto the Property,
(b) any activity, including, without limitation, construction,
carried on or undertaken on or off the Land, and whether by the
Lessee, or any predecessor in title or any employees, agents,
contractors or subcontractors of the Lessee, or any predecessor
in title, or any other Persons (including such Indemnitee), in
connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous
Materials that at any time are located or present on or under or
that at any time migrate, flow, percolate, diffuse or in any way
move onto or under the Property,
(c) loss of or damage to any property or the environment (including,
without limitation, clean-up costs, response costs, remediation
and removal costs, cost of corrective action, costs of financial
assurance, fines and penalties and natural resource damages), or
death or injury to any Person, and all expenses associated
Master Agreement 25
with the protection of wildlife, aquatic species, vegetation,
flora and fauna, and any mitigative action required by or under
Environmental Laws,
(d) any claim concerning lack of compliance with Environmental Laws,
or any act or omission causing an environmental condition that
requires remediation or would allow any governmental agency to
record a lien or encumbrance on the land records, or
(e) any residual contamination on or under the Property, or affecting
any natural resources, and to any contamination of any property
or natural resources arising in connection with the generation,
use, handling, storage, transport or disposal of any such
Hazardous Materials, and irrespective of whether any of such
activities were or will be undertaken in accordance with
applicable laws, regulations, codes and ordinances;
in any case arising or occurring or resulting from events
(f) prior to or during the Lease Term, or
(g) at any time during which the Lessee or any Affiliate owns,
occupies or possesses the Property or any portion thereof, or
(h) during any period after and during the continuance of any Event
of Default;
PROVIDED, HOWEVER, the Lessee shall not be required to indemnify any Indemnitee
under this SECTION 7.2 for any of the following: (i) any Claim to the extent a
court of competent jurisdiction shall have determined that such Claim results
from the willful misconduct or gross negligence of such Indemnitee or (ii) any
Claim to the extent a court of competent jurisdiction shall have determined that
such Claim results from the negligence of any Indemnitee who, after an Event of
Default shall have occurred, is operating the business conducted at the
Building, . It is expressly understood and agreed that the indemnity provided
for herein shall survive the expiration or termination of and shall be separate
and independent from any remedy under the Lease or any other Operative Document.
SECTION 7.3 PROCEEDINGS IN RESPECT OF CLAIMS. Any Indemnitee requesting
the Lessee to pay any amount under SECTION 7.1 or 7.2 in respect of any Claim
shall immediately notify the Lessee upon such Indemnitee receiving written
notice of such Claim. With respect to any amount that the Lessee is requested by
an Indemnitee to pay by reason of SECTION 7.1 or 7.2, such Indemnitee shall, if
so requested by the Lessee and prior to any payment, submit such additional
information to the Lessee as the Lessee may reasonably request and which is in
the possession of or reasonably available to such Indemnitee to substantiate
properly the requested payment. In case any action, suit or proceeding shall be
brought against any Indemnitee, such Indemnitee shall promptly notify the Lessee
of the commencement thereof or any notice thereof received by such Indemnitee,
and the Lessee shall be entitled, at its expense, to participate in, and, to the
Master Agreement 26
extent that the Lessee desires to, assume and control the defense thereof;
PROVIDED, HOWEVER, that the Lessee shall have acknowledged in writing its
obligation to fully indemnify such Indemnitee in respect of such action, suit or
proceeding, and, the Lessee shall provide such Indemnitee with all information
with respect to such action, suit or proceeding as such Indemnitee shall
reasonably request, and, PROVIDED FURTHER, that the Lessee shall not be entitled
to assume and control the defense of any such action, suit or proceeding if and
to the extent that, (A) in the reasonable opinion of such Indemnitee, such
action, suit or proceeding involves any possibility of imposition of criminal
liability on such Indemnitee, (B) such proceeding involves Claims not fully
indemnified by the Lessee which the Lessee and the Indemnitee have been unable
to sever from the indemnified claim(s) or (C) an Event of Default shall have
occurred and be continuing. The Indemnitee may participate in a reasonable
manner at its own expense and with its own counsel in any proceeding conducted
by the Lessee in accordance with the foregoing. Such Indemnitee shall cooperate
in any such proceeding as reasonably requested by the Lessee and shall provide
all information and assistance reasonably requested by the Lessee and in the
possession of or reasonably available to such Indemnitee.
Unless an Event of Default shall have occurred and be continuing, no
Indemnitee shall enter into any settlement or other compromise with respect to
any Claim which is entitled to be indemnified under SECTION 7.1 or 7.2 without
the prior written consent of the Lessee, which consent shall not be unreasonably
withheld, unless such Indemnitee waives its right to be indemnified under
SECTION 7.1 or 7.2 with respect to such Claim.
Upon payment in full of any Claim by the Lessee pursuant to SECTION 7.1
or 7.2 to or on behalf of an Indemnitee, the Lessee, without any further action,
shall be subrogated to any and all claims that such Indemnitee may have relating
thereto, and such Indemnitee shall execute such instruments of assignment and
conveyance, evidence of claims and payment and such other documents, instruments
and agreements as may be reasonably necessary to preserve any such claims and
otherwise cooperate with the Lessee and give such further assurances as are
reasonably necessary or advisable to enable the Lessee vigorously to pursue such
claims.
Any amount payable to an Indemnitee pursuant to SECTION 7.1 or 7.2
shall be paid to such Indemnitee promptly upon receipt of a written demand
therefor from such Indemnitee, accompanied by a written statement describing in
reasonable detail the basis for such indemnity and the computation of the amount
so payable.
SECTION 7.4 INCREASED COSTS. If the Lessor or the Lease Participant
shall determine in good faith that any change in any applicable law, treaty,
regulation or guideline (including, without limitation, Regulation D of the
Board of Governors of the Federal Reserve System) or any new law, treaty,
regulation or guideline, or any interpretation of any of the foregoing by any
governmental authority charged with the administration thereof or any central
bank or other fiscal, monetary or other authority having jurisdiction over the
Lessor or the Lease Participant or its lending branch or the Fundings
contemplated by this Agreement (whether or not having the force of law) shall:
Master Agreement 27
(i) impose, increase, or deem applicable any reserve, special
deposit or similar requirement against assets held by, or deposits in
or for the account of, or loans by, or any other acquisition of funds
or disbursements by, the Lessor or the Lease Participant which is not
in any instance already accounted for in computing the Adjusted LIBOR
Rate;
(ii) impose on the Lessor or the Lease Participant any penalty
with respect to the foregoing or any other condition regarding this
Agreement, any other Operative Document, its disbursements or the
Lessor's Invested Amount;
and the Lessor or the Lease Participant, as the case may be, shall determine
that the result of any of the foregoing is to increase the cost (whether by
incurring a cost or adding to a cost) to the Lessor or the Lease Participant, as
the case may be, of creating or maintaining any LIBOR portion of the Lessor's
Invested Amount or to reduce the amount of Basic Rent received or receivable by
the Lessor or the Lease Participant, as the case may be, then the Lessee shall
pay on demand to the Lessor or the Lease Participant, as the case may be, for
the account of the Lessor or the Lease Participant, as the case may be, from
time to time as specified by the Lessor or the Lease Participant, as the case
may be, such additional amounts as the Lessor or the Lease Participant, as the
case may be, shall reasonably determine are sufficient to compensate and
indemnify it for such increased cost or reduced amount. If the Lessor or the
Lease Participant makes such a claim for compensation, (i) it shall provide to
the Lessee a certificate setting forth in reasonable detail the computation of
the increased cost or reduced amount as a result of any event mentioned herein
and such certificate shall be deemed prima facie correct and (ii) from and after
the last day of the then current Yield Period (upon at least two (2) Business
Days notice to Lessor and Lease Participant from Lessee), the Yield shall
thereafter accrue at the Alternative Rate.
SECTION 7.5 CHANGE IN LAW; UNAVAILABILITY OF DEPOSITS.
(a) Notwithstanding any other provision herein, if at any time the
Lessor or the Lease Participant shall determine in good faith that any change in
applicable laws or regulations or in the interpretation thereof shall make it
unlawful for the Lessor or the Lease Participant to make or maintain any portion
of the Lessor's Invested Amount based on the Adjusted LIBOR Rate or to give
effect to its obligations as contemplated by the Operative Documents with
respect to any portion of the Lessor's Invested Amount based on the Adjusted
LIBOR Rate, it shall promptly notify the Lessee, and the obligation of the
Lessor to maintain any portion of the Lessor's Invested Amount at the Adjusted
LIBOR Rate shall terminate until it is no longer unlawful for the Lessor or the
Lease Participant, as the case may be, to maintain the Lessor's Invested Amount
at the Adjusted LIBOR Rate. If the continued maintenance of any portion of the
Lessor's Invested Amount at the Adjusted LIBOR Rate is unlawful, the Lessor's
Invested Amount shall be converted to accrue Yield based on the Alternative Rate
on the last day of the then current Yield Period, or on such earlier date as may
be required by applicable law.
(b) Notwithstanding any other provision of this Agreement, if prior to
the commencement of any Yield Period, the Lessor or Lease Participant shall
either (A) inform the
Master Agreement 28
Lessee that it has determined that United States dollar deposits in the amount
of the Lessor's Invested Amount scheduled to be outstanding during such Yield
Period are not readily available to the Lessor or the Lease Participant, as the
case may be, in the offshore interbank market or (B) advise the Lessee that the
Adjusted LIBOR Rate will not adequately and fairly reflect the cost to the
Lessor or the Lease Participant, as the case may be, of funding the Lessor's
Invested Amount for such Yield Period, the Lessor shall promptly give notice
thereof to the Lessee, and the Lessor's Invested Amount shall be converted to
accrue Yield based on the Alternative Rate until United States dollar deposits
in such amount and for the applicable Yield Period shall again be readily
available in the offshore interbank market or the Adjusted LIBOR Rate shall
adequately and fairly reflect the cost to the Lessor and the Lease Participant,
as the case may be.
(c) In the event the Lessor or the Lease Participant shall incur any
loss, cost or expense (including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired or contracted to be acquired by the Lessor or the Lease Participant to
fund or maintain the Lessor's Invested Amount or the re-lending or reinvestment
of such deposits or other funds or amounts paid or prepaid to the Lessor or the
Lease Participant, but not including a loss of profit), as a result of:
(i) any payment of the Lessor's Invested Amount on a date
other than a Payment Date for any reason, whether before or after
default, and whether or not such payment is required by any provision
of any Operative Document; or
(ii) any failure by the Lessee to complete any Funding after
the Funding Notice therefor has been given, unless such failure results
from the Lessor's or the Lease Participant's inability pursuant to this
SECTION 7.5 to continue to maintain the Lessor's Invested Amount at the
Adjusted LIBOR Rate;
then, upon the demand of the Lessor or the Lease Participant, as the case may
be, the Lessee shall pay on demand to the Lessor or the Lease Participant such
amount as will reimburse the Lessor or the Lease Participant, as the case may
be, for such loss, cost or expense. If the Lessor or the Lease Participant
requests such a reimbursement, it shall provide the Lessee with a certificate
setting forth in reasonable detail the computation of the loss, cost or expense
giving rise to the request for reimbursement, and such certificate such be
deemed prima facie correct.
SECTION 7.6 CAPITAL ADEQUACY. If the Lessor or the Lease Participant
shall determine that any applicable law, rule or regulation regarding capital
adequacy instituted after the date hereof, or any change in the interpretation
or administration of any applicable, law, rule or regulation regarding capital
adequacy by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof or compliance by the
Lessor or the Lease Participant (or its lending office) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the Lessor's or the Lease Participant's
capital as a consequence of its obligations hereunder or under the other
Operative Documents, or credit extended by it hereunder or the Operative
Documents to a level
Master Agreement 29
below that which the Lessor or the Lease Participant, as the case may be, could
have achieved but for such law, rule, regulation, change or compliance, taking
into consideration the Lessor's or the Lease Participant's, as the case may be,
policies with respect to capital adequacy, by an amount deemed by the Lessor or
the Lease Participant to be material, then from time to time as specified by the
Lessor or the Lease Participant, as the case may be, the Lessee shall pay on
demand such additional amount or amounts as will compensate the Lessor or the
Lease Participant for such reduction. A certificate of the Lessor or the Lease
Participant claiming compensation under this SECTION 7.6 and setting forth the
additional amount or amounts to be paid to it hereunder in reasonable detail
shall be prima facie evidence thereof. In determining such amount, the Lessor or
the Lease Participant, as the case may be, may use any reasonable averaging and
attribution methods.
SECTION 7.7 END OF TERM INDEMNITY.
(a) SALE. In the event that at the end of the Lease Term the Lessee
elects the Remarketing Option and the amount of sales proceeds applied to the
Lease Balance, together with the Lessee's payment of the Recourse Deficiency
Amount, does not result in Lessor receiving the entire Lease Balance, then the
Lessor may obtain, at the Lessee's sole cost and expense, a report from the
Appraiser (or, if the Appraiser is not available, another appraiser reasonably
satisfactory to the Lessor) in form and substance satisfactory to Lessor
("REPORT") to establish the reason for any decline in value of the Property from
that anticipated for such date in the Appraisal delivered on the Closing Date.
The Lessee shall promptly reimburse the Lessor for the amount equal to such
decline in value (but not in excess of the remaining Lease Balance after
application of such sales proceeds and the Recourse Deficiency Amount) to the
extent that the Report indicates that such decline was due to (collectively, the
"DECLINE CAUSES"):
(i) extraordinary use, failure to maintain, to repair, to
restore, to rebuild or to replace, failure to comply with all
Applicable Laws, failure to use, workmanship, method of installation
or removal or maintenance, repair, rebuilding or replacement, or any
other cause or condition within the power of the Lessee to control or
effect resulting in the Building failing to be a parking garage
(excepting in each case ordinary wear and tear), or
(ii) any Alteration made to, or any rebuilding of, the Property
or any part thereof by the Lessee, or
(iii) any restoration or rebuilding carried out by the Lessee or
any condemnation of any portion of the Property pursuant to
Article XI of the Lease,
(iv) any use of the Property or any part thereof by the Lessee
other than as permitted by the Lease and the Ground Lease;
or
(v) any Development Agreements.
Master Agreement 30
(b) REJECTION. In the event that at the end of the Lease Term the
Lessee elects the Remarketing Option and Lessor rejects the sale pursuant to
Section 14.6 of the Lease, then the Lessor may obtain, at the Lessee's sole cost
and expense, a Report to establish the reason for any decline in value of the
Property from that anticipated for such date in the Appraisal delivered on the
Closing Date. The Lessee shall promptly reimburse the Lessor for the amount
equal to such decline in value (but not in excess of the remaining Lease Balance
after application of the Recourse Deficiency Amount) to the extent that the
Report indicates that such decline was due to one or more of the Decline Causes.
SECTION 8
MISCELLANEOUS
SECTION 8.1 SURVIVAL OF AGREEMENTS. The representations, warranties and
indemnities of the parties provided for in the Operative Documents, and the
parties' obligations under any and all thereof, shall survive the execution and
delivery and the termination or expiration of this Master Agreement and any of
the Operative Documents, the transfer of the Property to the Lessor as provided
herein, any disposition of any interest of the Lessor in the Property, and shall
be and continue in effect notwithstanding any investigation made by any party
hereto or to any of the other Operative Documents and the fact that any such
party may waive compliance with any of the other terms, provisions or conditions
of any of the Operative Documents.
SECTION 8.2 NOTICES. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be addressed to such parties at the addresses therefor as set forth
in SCHEDULE 8.2, as such other address as any such party shall specify to the
other parties hereto, and shall be deemed to have been given when received.
SECTION 8.3 COUNTERPARTS. This Master Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 8.4 AMENDMENTS. No Operative Document nor any of the terms
thereof may be terminated, amended, supplemented, waived or modified with
respect to the Lessee or the Lessor, except (a) in the case of a termination,
amendment, supplement, waiver or modification to be binding on the Lessee, with
the written agreement or consent of the Lessee, and (b) in the case of a
termination, amendment, supplement, waiver or modification to be binding on the
Lessor or the Lease Participant, with the written agreement or consent of the
Lessor.
SECTION 8.5 HEADINGS, ETC. The Table of Contents and headings of the
various Articles and Sections of this Master Agreement are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
Master Agreement 31
SECTION 8.6 PARTIES IN INTEREST. Except as expressly provided herein,
none of the provisions of this Master Agreement is intended for the benefit of
any Person except the parties hereto, the Lease Participant and their permitted
successors and assigns.
SECTION 8.7 GOVERNING LAW. THIS MASTER AGREEMENT HAS BEEN DELIVERED IN,
AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
SECTION 8.8 EXPENSES. The Lessee agrees to pay, as Supplemental Rent,
all reasonable and documented out-of-pocket costs and expenses (i) of the Lessor
and the Lease Participant in connection with the preparation, execution,
delivery and perfection of the Operative Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and disbursements of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇) and any amendment, waiver or
consent relating thereto and (ii) of the Lessor and the Lease Participant in
connection with the enforcement of the Operative Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Lessor and the Lease Participant) and
(iii) of the Lessor and the Lease Participant in connection with any request by
Lessee for Lessor's consent to or review of any matter, including, without
limitation, the Development Agreements (including, without limitation, the
reasonable fees and disbursements of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇).
SECTION 8.9 SEVERABILITY. Any provision of this Master Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 8.10 LIABILITIES OF THE LESSOR. The Lessor shall have no
obligation to the Lessee with respect to the transactions contemplated by the
Operative Documents except those obligations expressly set forth in the
Operative Documents or except as set forth in the instruments delivered in
connection therewith.
SECTION 8.11 SUBMISSION TO JURISDICTION; WAIVERS. Each party hereto
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Master Agreement or any other Operative
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
State of Illinois, the courts of the United States of America for the
Northern District of Illinois and appellate courts from any thereof;
Master Agreement 32
(ii) consents that any such action or proceedings may be
brought to such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by a national
overnight courier service, with a written receipt therefor, to such
party at its address set forth in SCHEDULE 8.2 or at such other address
of which the other parties hereto shall have been notified pursuant to
SECTION 8.2; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law.
[END OF TEXT. SIGNATURE PAGES TO FOLLOW]
Master Agreement 33
IN WITNESS WHEREOF, the parties hereto have caused this Master
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
▇▇▇▇▇▇▇▇-▇▇▇▇, INC.
By:
-----------------------------------------
Name Printed:
-------------------------------
Title:
--------------------------------------
FIRST CHICAGO LEASING CORPORATION, as Lessor
By:
-----------------------------------------
Name Printed:
-------------------------------
Title:
--------------------------------------
Master Agreement 34
SCHEDULE 2.2
PAYMENT INSTRUCTIONS AND
AMOUNT OF COMMITMENT
Lessee: Wire Transfer to:
As directed by Lessee from time to time.
Lessor: Wire Transfer to:
[TO BE PROVIDED BY LESSOR]
Master Agreement 35
SCHEDULE 3.2(b)
CONSTRUCTION MILESTONES
Master Agreement 36
SCHEDULE 4.1(l)
TAXES
Taxes for 1999 not yet delinquent
Master Agreement 37
SCHEDULE 5.8.4
EXISTING INVESTMENTS
Master Agreement 38
SCHEDULE 8.2
ADDRESSES FOR NOTICES
If to Lessor: First Chicago Leasing Corporation
Mail Suite 0502
Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
If to Lessee: ▇▇▇▇▇▇▇▇-▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
With a copy to: ▇▇▇▇▇▇▇▇-▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Master Agreement 39
EXHIBIT A
TO MASTER AGREEMENT
FORM OF FUNDING REQUEST
TO: First Chicago Leasing Corporation,
as Lessor under the Master Agreement referred to below
American National Bank and Trust Company of Chicago,
as Lease Participant
Reference is hereby made to the Master Agreement dated as of
December 22, 1999 (as heretofore amended, the "MASTER AGREEMENT") between
▇▇▇▇▇▇▇▇-▇▇▇▇, Inc., as Lessee, and First Chicago Leasing Corporation, as
Lessor. Capitalized terms not otherwise defined herein are used herein as
defined in the Master Agreement.
▇▇▇▇▇▇▇▇-▇▇▇▇, Inc., as Lessee (the "LESSEE") hereby notifies you that
Lessee requests a Funding in the amount of $____________ on [INSERT REQUESTED
FUNDING DATE] in respect of [DESCRIBE CONSTRUCTION COSTS (INCLUDING SOFT COSTS),
TRANSACTION EXPENSES, YIELD].
In connection with such requested Funding, the Lessee hereby represents
and warrants to you as follows:
(A) on the requested Funding Date the representations and
warranties of the Lessee contained in each of the Operative Documents
shall be true and correct in all material respects as though made on
and as of such Funding Date, except to the extent such representations
or warranties relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct in all
material respects on and as of such earlier date;
(B) there shall not have occurred and be continuing any Event
of Default or , to our knowledge, Potential Event of Default;
(C) The amount of the requested funding falls within the
Construction Budget, and in the case of hard costs or soft costs of the
Construction represents funds needed to reimburse Lessee or pay third
parties for amounts paid or due and owing
(D) all of the conditions precedent to such Funding set forth
in Section 3 of the Master Agreement have been satisfied.
Please wire transfer the proceeds of the Funding to __________________.
Master Agreement 40
The Lessee has caused this Funding Request to be executed and delivered
by its duly authorized officer this _______________ [TO BE DELIVERED NOT LATER
THAN 12:00 NOON, THREE BUSINESS DAYS PRIOR TO THE REQUESTED FUNDING DATE].
▇▇▇▇▇▇▇▇-▇▇▇▇, INC.
By:
--------------------------------
Name Printed:
----------------------
Title:
-----------------------------
Master Agreement 41
Schedule 1 to Funding Request
Transaction Expenses $_____________________
Commitment Fee $_____________________
Yield $_____________________
Soft Costs $______________________
Hard Costs $______________________
TOTAL $______________________
Master Agreement 42
EXHIBIT B
TO MASTER AGREEMENT
FORM OF COMPLETION DATE CERTIFICATE
TO: First Chicago Leasing Corporation, as Lessor under the Master Agreement
referred to below
Reference is hereby made to the Master Agreement dated as of December
22, 1999 (as heretofore amended, the "MASTER AGREEMENT") between ▇▇▇▇▇▇▇▇-▇▇▇▇,
Inc., as Lessee, and First Chicago Leasing Corporation, as Lessor. Capitalized
terms not otherwise defined herein are used herein as defined in the Master
Agreement. This Certificate is being delivered pursuant to Section 3.3(c) of the
Master Agreement.
The undersigned Lessee hereby certifies to you that as of ____________,
2000 (the "COMPLETION DATE") with respect to the Property:
(i) all amounts owing to third parties for the Construction
have been paid in full (other than contingent obligations for which the
Lessee has made adequate reserves), and no litigation or proceedings
are pending, or to the best of Lessee's knowledge, are threatened,
against the Property or the Lessee which could reasonably be expected
to have a Material Adverse Effect;
(ii) all consents, licenses and permits and other governmental
authorizations or approvals required for the Construction and operation
of the Property (except for those the absence of which would not have a
Material Adverse Effect) have been obtained and are in full force and
effect, or will be obtained when required by Applicable Law;
(iii) the Property has available all services of public
facilities and other utilities necessary for use and operation of the
Property for its intended purposes, including, without limitation,
adequate water, gas and electrical supply, storm and sanitary sewerage
facilities, telephone, other required public utilities and means of
access between the Building and public highways for pedestrians and
motor vehicles;
(iv) all material agreements, easements and other rights,
public or private, which are necessary to permit the lawful use and
operation of the Property as the Lessee intends to use the Property
under the Lease and which are necessary to permit the lawful intended
Master Agreement 43
use and operation of all then intended utilities, driveways, roads and
other means of egress and ingress to and from the same have been
obtained and are in full force and effect and the Lessee has no
knowledge of any pending modification or cancellation of any of the
same; and the use of the Property does not depend on any variance,
special exception or other municipal approval, permit or consent that
has not been obtained and is in full force and effect for its
continuing legal use;
(v) all of the requirements and conditions set forth in
SECTION 3.3(B) of the Master Agreement have been completed and
fulfilled;
(vi) the Property is in compliance in all material respects
with all applicable zoning laws and regulations; and
(vii) the representations set forth in SECTION 4.1 of the
Master Agreement are true and correct in all material respects on the
Completion Date.
The Lessee has caused this Completion Date Certificate to be executed
and delivered by its duly authorized officer this _______________, 2000.
▇▇▇▇▇▇▇▇-▇▇▇▇, INC.
By:
--------------------------------
Name Printed:
----------------------
Title:
-----------------------------
Master Agreement 44
EXHIBIT C
TO MASTER AGREEMENT
[letterhead of firm that performed environmental audit]
____________, 1996
First Chicago Leasing Corporation
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
American National Bank and Trust Company of Chicago
--------------------
Chicago, Illinois ______
Ladies/Gentlemen:
We refer to the Phase One environmental assessment dated _________,
prepared by us for ______________, with respect to [DESCRIBE PROPERTY]. Please
be advised that you may rely upon such report as if it were addressed directly
to you.
Very truly yours,
[ ]
-----------------------------------
By:
------------------------------------------
Title:
---------------------------------------
Master Agreement 45
