RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
▇▇▇▇▇, Brown & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-1503
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
--------------SPACE ABOVE THIS LINE FOR RECORDER'S USE ----------
AMENDED AND RESTATED LEASE
AND DEED OF TRUST
THIS DOCUMENT SECURES FUTURE ADVANCES
Dated as of June 22, 2000
by and among
TELETECH SERVICES CORPORATION,
as Lessee and trustor,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Certificate Trustee under the
Trust Agreement dated as of March 1, 2000,
as Lessor and beneficiary,
and,
for purposes of the Deed of Trust
(set forth in Article XVI hereof),
PUBLIC TRUSTEE OF ARAPAHOE COUNTY, COLORADO,
as Deed of Trust Trustee
TELETECH 2000 LEASE FINANCING
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; INTERPRETATION; EFFECTIVENESS........................ 2
SECTION 1.1. Definitions; Interpretation....................................... 2
SECTION 1.2. Effectiveness.....................................................
ARTICLE II
LEASE OF LEASED PROPERTY; LEASE TERM.............................. 2
SECTION 2.1. Acceptance and Lease of the Leased Property....................... 2
SECTION 2.2. Acceptance Procedure.............................................. 3
SECTION 2.3. Term.............................................................. 3
SECTION 2.4. Title............................................................. 3
ARTICLE III
PAYMENT OF RENT................................................... 4
SECTION 3.1. Rent.............................................................. 4
SECTION 3.2. Payment of Basic Rent............................................. 4
SECTION 3.3. Supplemental Rent................................................. 4
SECTION 3.4. Method of Payment................................................. 5
ARTICLE IV
QUIET ENJOYMENT; RIGHT TO INSPECT................................. 6
SECTION 4.1. Non-Interference.................................................. 6
SECTION 4.2. Inspection and Reports............................................ 6
ARTICLE V
NET LEASE, ETC.................................................... 7
SECTION 5.1. Net Lease......................................................... 7
SECTION 5.2. No Termination or Abatement....................................... 8
ARTICLE VI
ASSIGNMENTS AND SUBLEASES......................................... 9
SECTION 6.1. No Assignments.................................................... 9
SECTION 6.2. Permitted Subleases............................................... 10
ARTICLE VII
LESSEE ACKNOWLEDGMENTS............................................ 11
SECTION 7.1. Condition of the Leased Property.................................. 11
SECTION 7.2. Risk of Loss...................................................... 12
SECTION 7.3. Certain Duties and Responsibilities of Lessor..................... 12
ARTICLE VIII
POSSESSION AND USE OF THE LEASED PROPERTY, ETC.................... 12
SECTION 8.1. Utility and Other Charges......................................... 12
i
TABLE OF CONTENTS
(continued)
SECTION 8.2. Possession and Use of the Leased Property........................ 13
SECTION 8.3. Compliance with Requirements of Law and
Insurance Requirements........................................... 13
ARTICLE IX
MAINTENANCE AND REPAIR; REPORTS.................................. 14
SECTION 9.1. Maintenance and Repair; Reports.................................. 14
SECTION 9.2. Maintenance and Repair Reports................................... 14
ARTICLE X
MODIFICATIONS, ETC............................................... 15
SECTION 10.1. Improvements and Modifications................................... 15
SECTION 10.2. Title to Modifications........................................... 16
SECTION 10.3. Other Property................................................... 17
ARTICLE XI
COVENANTS WITH RESPECT TO LIENS; EASEMENTS....................... 18
SECTION 11.1. Covenants with Respect to Liens.................................. 18
ARTICLE XII
PERMITTED CONTESTS............................................... 19
SECTION 12.1. Permitted Contests in Respect of Applicable Laws................. 19
ARTICLE XIII
INSURANCE........................................................ 20
SECTION 13.1. Required Coverages............................................... 20
SECTION 13.2. Insurance Coverage............................................... 21
SECTION 13.3. Delivery of Insurance Certificates............................... 23
SECTION 13.4. Insurance by Lessor, Administrative Agent or
any Participant.................................................. 23
ARTICLE XIV
CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS................. 23
SECTION 14.1. Casualty and Condemnation........................................ 23
SECTION 14.2. Environmental Matters............................................ 26
SECTION 14.3. Notice of Environmental Matters.................................. 26
ARTICLE XV
TERMINATION OF LEASE............................................. 27
SECTION 15.1. Termination upon Certain Events.................................. 27
ii
TABLE OF CONTENTS
(continued)
SECTION 15.2. Termination Procedures........................................... 28
ARTICLE XVI
EVENTS OF DEFAULT................................................ 31
SECTION 16.1. Lease Events of Default.......................................... 31
SECTION 16.2. Remedies......................................................... 32
SECTION 16.3. Waiver of Certain Rights......................................... 36
SECTION 16.4. Power of Sale and Foreclosure.................................... 36
SECTION 16.5. Assignment of Leases and Rents................................... 38
SECTION 16.6. Grant of Security Interest....................................... 41
SECTION 16.7. Limitation of Recourse During the Interim Term................... 41
ARTICLE XVII
LESSOR'S RIGHT TO CURE........................................... 42
SECTION 17.1. Lessor's Right to Cure Lessee's Lease Defaults................... 42
ARTICLE XVIII
PURCHASE PROVISIONS.............................................. 42
SECTION 18.1. Early and End of Term Purchase Options........................... 42
SECTION 18.2. Acceleration of Leased Property Purchase......................... 44
ARTICLE XIX
END OF TERM OPTIONS.............................................. 44
SECTION 19.1. End of Term Options.............................................. 44
SECTION 19.2. Election of Options.............................................. 45
SECTION 19.3. Renewal Options. ....................................... 45
ARTICLE XX
SALE OPTION...................................................... 46
SECTION 20.1. Sale Option Procedures........................................... 46
SECTION 20.2. Certain Obligations Continue..................................... 50
ARTICLE XXI
PROCEDURES RELATING TO PURCHASE OR SALE OPTION;
SUPPLEMENTAL RENT................................................ 50
SECTION 21.1. Provisions Relating to Conveyance of the Leased
Property Upon Purchase by ▇▇▇▇▇▇, Sales or
Certain Other Events............................................. 50
iii
TABLE OF CONTENTS
(continued)
ARTICLE XXII
ACCEPTANCE OF SURRENDER.......................................... 52
SECTION 22.1. Acceptance of Surrender.......................................... 52
ARTICLE XXIII
NO MERGER OF TITLE............................................... 52
SECTION 23.1. No Merger of Title............................................... 52
ARTICLE XXIV
INTENT OF THE PARTIES............................................ 53
SECTION 24.1. Nature of Transaction............................................ 53
ARTICLE XXV
MISCELLANEOUS.................................................... 55
SECTION 25.1. Survival; Severability; Etc...................................... 55
SECTION 25.2. Amendments and Modifications..................................... 55
SECTION 25.3. No Waiver........................................................ 56
SECTION 25.4. Notices.......................................................... 56
SECTION 25.5. Successors and Assigns........................................... 56
SECTION 25.6. Headings and Table of Contents................................... 56
SECTION 25.7. Counterparts..................................................... 56
SECTION 25.8. GOVERNING LAW.................................................... 56
SECTION 25.9. HIGHEST LAWFUL RATE.............................................. 56
SECTION 25.10. Original Lease................................................... 56
SECTION 25.11. Limitations on Recourse.......................................... 57
SECTION 25.12. Notice of Potential Claimants.................................... 57
SECTION 25.13. Construction Loan................................................ 58
SECTION 25.14. Future Advances.................................................. 58
EXHIBITS
EXHIBIT A - Legal Description of Land
EXHIBIT B - Release Parcel Depiction
Appendix 1 - Definitions
iv
LEASE
This Amended and Restated Lease and Deed of Trust (this "LEASE"), dated as
of June 22, 2000, by and among STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its individual capacity, but solely as
Certificate Trustee under the Trust Agreement dated as of March 1, 2000, having
its principal office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, as Lessor and
beneficiary, TELETECH SERVICES CORPORATION, a Colorado corporation, having its
principal office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, as Lessee and as
trustor, and, The Public Trustee of Arapahoe County, as trustee, for purposes of
the Deed of Trust (set forth in Article XVI hereof), with an address of ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
▇. ▇▇▇▇▇▇, Lessor, Guarantor, the Initial Certificate Holder, the Initial
Lender and Administrative Agent entered into the Original Operative Documents
for the purpose of financing the acquisition of the parcel of land located in
Arapahoe County, Colorado more particularly described in Exhibit A to the
Original Lease, together with all Appurtenant Rights attached (the "LAND").
B. Subject to the terms and conditions of the Original Participation
Agreement and the other Original Operative Documents, on the First Document
Closing Date, among other things, Lessee and Lessor entered into the Original
Lease pursuant to which Lessor agreed to lease to Lessee, and Lessee agreed to
lease from Lessor, the Leased Property and Initial Certificate Holder and
Initial Lender funded the Advance occurring on March 6, 2000, to pay Land
Acquisition Costs (including Fees and other Transaction Expenses) accruing on or
prior to such date (the "ORIGINAL ADVANCE");
C. The parties are entering into the Operative Documents in order to
amend and restate the Original Operative Documents in their entirety and to
provide financing for construction of the Financed Improvements on the Land.
Subject to the terms and conditions set forth in the Operative Documents, (i)
during the Interim Term, Construction Agent, using Advances funded by the
Participants, will construct the Financed Improvements on the Land on behalf of
Lessor; and (ii) pursuant to this Lease, Lessor will
lease the resulting Leased Property to Lessee, and Lessee will lease the Leased
Property from Lessor.
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION; EFFECTIVENESS
SECTION 1.1. DEFINITIONS; INTERPRETATION. For all purposes hereof, the
capitalized terms used herein and not otherwise defined shall have the meanings
assigned thereto in APPENDIX 1 attached hereto; and the rules of interpretation
set forth in Appendix 1 attached hereto shall apply to this Lease. Except as
specifically provided for in SECTION 16.7 hereof, all obligations imposed on
"Lessee" in this Lease shall be the full recourse liability of Lessee. For
purposes hereof, the term "Participation Agreement" shall mean that certain
Participation Agreement dated as of even date herewith, among Teletech Services
Corporation, as Lessee; Teletech Holdings, Inc., as Guarantor; State Street Bank
and Trust Company of Connecticut, National Association, not in its individual
capacity, except as expressly stated therein, but solely as Lessor; First
Security Bank, National Association, not in its individual capacity, except as
expressly stated therein, but solely as Administrative Agent; the financial
institutions named on Schedule I thereto, as Certificate Holders; and the
financial institutions named on Schedule II thereto, as Lenders.
SECTION 1.2. EFFECTIVENESS. This Lease shall be effective on the Second
Document Closing Date, and upon such effective date, this Lease shall amend and
completely restate and supersede the Original Lease.
ARTICLE II
LEASE OF LEASED PROPERTY; LEASE TERM
SECTION 2.1. ACCEPTANCE AND LEASE OF THE LEASED PROPERTY. Lessor, subject
to the satisfaction or waiver of the conditions set forth in Article VI of the
Participation Agreement, hereby agrees to provide for the construction of the
Financed Improvements on the Land pursuant to the terms of the Participation
Agreement and the
2
Construction Agency Agreement and to lease all of Lessor's interest in the
Leased Property to Lessee hereunder. ▇▇▇▇▇▇ hereby agrees, expressly for the
direct benefit of Lessor, to lease the Leased Property from Lessor for the Term.
SECTION 2.2. ACCEPTANCE PROCEDURE. Lessor hereby authorizes one or more
employees of Lessee, to be designated by ▇▇▇▇▇▇, as the authorized
representative or representatives of Lessor to accept delivery of the Leased
Property, including without limitation the Financed Improvements. ▇▇▇▇▇▇ hereby
agrees that acceptance of delivery by such authorized representative or
representatives and the execution and delivery by ▇▇▇▇▇▇ of this Lease shall,
without further act, constitute the irrevocable acceptance by Lessee of the
Leased Property for all purposes of this Lease and the other Operative Documents
on and subject to the terms set forth herein and therein and ▇▇▇▇▇▇'s agreement
to lease the Leased Property during the Term subject to the terms of this Lease
and the other Operative Documents.
SECTION 2.3. TERM. Unless earlier terminated in accordance herewith and
with the other Operative Documents, the term of this Lease shall consist of (i)
an interim period (the "INTERIM TERM") commencing on and including the Second
Document Closing Date and ending on but not including the Base Term Commencement
Date and (ii) a base term (the "BASE TERM") commencing on and including the Base
Term Commencement Date and ending on but not including the fourth anniversary of
the First Document Closing Date, and, if exercised pursuant to ARTICLE XIX
hereof, each Lease Renewal Term (the Base Term and the Lease Renewal Terms, if
any, being collectively referred to as, the "TERM").
SECTION 2.4. TITLE. The Leased Property is leased to Lessee without any
representation or warranty, express or implied, by ▇▇▇▇▇▇, Administrative Agent,
Arranger or any Participant and subject to the rights of parties in possession,
the existing state of title with respect thereto (including, without limitation,
all Liens other than Lessor Liens) and all applicable Requirements of Law and
any violations thereof. Lessee shall in no event have any recourse against
Lessor for any defect in or exception to title to the Leased Property other than
any defect or exception resulting from Lessor Liens.
3
ARTICLE III
PAYMENT OF RENT
SECTION 3.1. RENT.
(a) During the Lease Term, Lessee shall pay Basic Rent on each
Scheduled Payment Date, on the date required under SECTION 20.1(j) in connection
with Lessee's exercise of the Sale Option and on any date on which this Lease
shall terminate with respect to the Leased Property; PROVIDED, HOWEVER, that
during the Interim Term and (except as provided for at Section 4.3(a) of the
Participation Agreement with respect to Original Period Rent), Basic Rent shall
be payable from the proceeds of Advances pursuant to and subject to the terms
and conditions of Article III of the Participation Agreement and to the extent
described in the Approved Budget.
(b) Basic Rent shall be due and payable in lawful money of the United
States of America and shall be paid by wire transfer of immediately available
funds on the due date therefor.
(c) ▇▇▇▇▇▇'s inability or failure to take possession of all or any
portion of the Leased Property when delivered by Lessor, whether or not
attributable to any act or omission of Lessee or any act or omission of Lessor,
shall not delay or otherwise affect Lessee's obligation to pay Rent in
accordance with and subject to the terms of this Lease, including the provisions
for early termination hereof.
SECTION 3.2. PAYMENT OF BASIC RENT. Basic Rent shall be paid absolutely net
to Lessor, so that this Lease shall yield to Lessor the full amount thereof,
without setoff, deduction or reduction.
SECTION 3.3. SUPPLEMENTAL RENT. Lessee shall pay to Lessor or the Person
entitled thereto any and all Supplemental Rent promptly as the same shall become
due and payable, and if Lessee fails to pay any Supplemental Rent, Lessor shall
have all rights, powers and remedies provided for herein or by law or equity or
otherwise in the case of nonpayment of Basic Rent; PROVIDED, HOWEVER, that
except as provided for at Section 4.3(a) of the Participation Agreement,
Supplemental Rent allocated to Construction Costs payable prior to Base Term
Commencement Date shall be payable with Advances pursuant to and subject to the
terms and conditions of Article III of the Participation Agreement and to the
extent described in the Approved Budget. Lessee hereby
4
reaffirms that its obligation to pay Supplemental Rent shall include the payment
of any and all Contingent Rent. Lessee shall pay to Lessor, as Supplemental
Rent, among other things, on demand, to the extent permitted by applicable
Requirements of Law, interest at the applicable Overdue Rate on any installment
of Basic Rent not paid when due for the period for which the same shall be
overdue and on any payment of Supplemental Rent payable to Lessor or any
Indemnitee not paid when due or demanded pursuant to and in accordance with the
terms hereof and the other Operative Documents by Lessor or any Indemnitee for
the period from the due date or the date of any such demand, as the case may be,
until the same shall be paid. The expiration or other termination of ▇▇▇▇▇▇'s
obligations to pay Basic Rent hereunder shall not limit or modify the
obligations of Lessee with respect to Supplemental Rent. Unless expressly
provided otherwise in this Lease, in the event of any failure on the part of
Lessee to pay and discharge any Supplemental Rent as and when due, Lessee shall
also promptly pay and discharge any fine, penalty, interest or cost which may be
assessed or added under any agreement with a third party for nonpayment or late
payment of such Supplemental Rent, all of which shall also constitute
Supplemental Rent.
SECTION 3.4. METHOD OF PAYMENT. Each payment of Rent shall be made by
Lessee to Administrative Agent prior to 10:00 A.M., Utah time, to the account at
Administrative Agent designated on Schedule III to the Participation Agreement
(or in the case of Excepted Payments directly to the Person entitled thereto) in
funds consisting of lawful currency of the United States of America which shall
be immediately available on the scheduled date when such payment shall be due,
unless such scheduled date shall not be a Business Day, in which case such
payment shall be made on the next succeeding Business Day unless the result of
such extension would be to carry into another calendar month, in which case such
payment shall be made on the immediately preceding Business Day. Payments
received after 10:00 A.M., Utah time, on the date due shall for the purpose of
SECTION 16.1 hereof be deemed received on such day; PROVIDED, HOWEVER, that for
the purposes of the third sentence of SECTION 3.3 hereof, such payments shall be
deemed received on the next succeeding Business Day and subject to interest at
the Overdue Rate as provided in such SECTION 3.3.
5
ARTICLE IV
QUIET ENJOYMENT; RIGHT TO INSPECT
SECTION 4.1. NON-INTERFERENCE. Subject to Lessor's cure rights, as provided
for in SECTION 17.1, Lessor covenants that it will not interfere with ▇▇▇▇▇▇'s
use or possession of the Leased Property during the Term, so long as no Event of
Default has occurred and is continuing, it being agreed that ▇▇▇▇▇▇'s remedies
for breach of the foregoing covenant shall be limited to a claim for damages or
the commencement of proceedings to enjoin such breach. Such right is independent
of and shall not affect ▇▇▇▇▇▇'s obligations hereunder and under the other
Operative Documents or ▇▇▇▇▇▇'s rights otherwise to initiate legal action to
enforce the obligations of Lessee under this Lease. The foregoing covenant shall
not require Lessor to take any action contrary to, or which would permit Lessee
to use the Leased Property for a use not permitted under, the provisions of this
Lease.
SECTION 4.2. INSPECTION AND REPORTS.
(a) Upon five (5) Business Days prior notice to Lessee, Lessor or its
authorized representatives (the "INSPECTING PARTIES") may inspect (a) the Leased
Property and (b) the books and records of Lessee relating to the Leased Property
and (subject to appropriate confidentiality arrangements) make copies and
abstracts therefrom. All such inspections shall be during Lessee's normal
business hours (unless an Event of Default has occurred and is existing), shall
be subject to Lessee's customary safety and security provisions and shall be at
the expense and risk of the Inspecting Parties, except that if an Event of
Default or a Default has occurred and is continuing, Lessee shall reimburse the
Inspecting Parties for the reasonable costs of such inspections and, except for
the Inspecting Party's gross negligence or willful misconduct, such inspection
shall be at ▇▇▇▇▇▇'s risk, and none of the Inspecting Parties shall incur any
liability or obligation by reason of making any such inspection or inquiry. No
inspection shall unreasonably interfere with ▇▇▇▇▇▇'s operations. None of the
Inspecting Parties shall have any duty to make any such inspection or inquiry.
(b) To the extent permissible under Applicable Laws, Lessee shall
prepare and file in timely fashion, or, where Lessor shall be required to file,
Lessee shall prepare and make available to Lessor within a reasonable time prior
to the date for filing and Lessor shall file, at Lessee's sole cost and expense,
any reports
6
with respect to the condition or operation of the Leased Property that shall be
required to be filed with any Governmental Authority.
ARTICLE V
NET LEASE, ETC.
SECTION 5.1. NET LEASE. This Lease shall constitute a net lease and
Lessee's obligations to pay all Rent shall be absolute and unconditional under
any and all circumstances. Any present or future law to the contrary
notwithstanding, this Lease shall not terminate, nor shall Lessee be entitled to
any abatement, suspension, deferment, reduction, setoff, counterclaim, or
defense with respect to the Rent, nor shall the obligations of Lessee hereunder
be affected, to the extent permitted by Applicable Laws, by reason of: (i) any
defect in the condition, merchantability, design, construction, quality or
fitness for use of the Leased Property or any part thereof, or the failure of
the Leased Property to comply with all Requirements of Law, including any
inability to occupy or use the Leased Property by reason of such non-compliance;
(ii) any damage to, removal, abandonment, salvage, loss, contamination of, or
Release from, demolition, scrapping or destruction of or any requisition or
taking of the Leased Property or any part thereof; (iii) any restriction,
prevention or curtailment of or interference with any use of the Leased Property
or any part thereof, including as a result of the exercise of remedies following
and during the occurrence of an Event of Default; (iv) any defect in title to or
rights to the Leased Property or any Lien on such title or rights or on the
Leased Property; (v) any change, waiver, extension, indulgence or other action
or omission or breach in respect of any obligation or liability of or by Lessor,
Administrative Agent or any Participant; (vi) to the fullest extent permitted by
law, any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceedings relating to Lessee,
Guarantor, Lessor, Administrative Agent, any Participant or any other Person, or
any action taken with respect to this Lease by any trustee or receiver of
Lessee, Lessor, Administrative Agent, any Participant or any other Person, or by
any court, in any such proceeding; (vii) any claim that ▇▇▇▇▇▇ has or might have
against any Person, including Lessor, Administrative Agent, any Participant, any
contractor, vendor, architect, designer, manufacturer, or contractor of or for
the Leased Property; (viii) any failure on the part of Lessor to perform or
comply with any of the terms of this Lease, of any other Operative Document or
7
of any other agreement; (ix) any invalidity or unenforceability or illegality or
disaffirmance of this Lease against or by Lessee or any provision hereof or any
of the other Operative Documents or any provision of any thereof; (x) any
impossibility or illegality of performance by Lessee, Lessor or both; (xi) any
action by any court, administrative agency or other Governmental Authority;
(xii) any restriction, prevention or curtailment of or interference with the
Construction on or any use of the Leased Property or any part thereof; (xiii)
any failure of Lessee to achieve any accounting or tax benefits or the
characterization of the transaction intended by the parties as set forth at
Section 24.1 hereof and Section 5.1 of the Participation Agreement; or (xiv) any
other cause or circumstances whether similar or dissimilar to the foregoing and
whether or not Lessee shall have notice or knowledge of any of the foregoing.
Lessee's agreement in the preceding sentence shall not affect any claim, action
or right Lessee may have against any Person. The parties to the Operative
Documents intend that the obligations of Lessee hereunder shall be covenants and
agreements that are separate and independent from any obligations of Lessor
hereunder or under any other Operative Documents and the obligations of Lessee
shall continue unaffected unless such obligations shall have been modified or
terminated in accordance with an express provision of this Lease.
SECTION 5.2. NO TERMINATION OR ABATEMENT. Lessee shall remain obligated
under this Lease in accordance with its terms and the terms of the other
Operative Documents and shall not take any action to terminate (except as
expressly permitted herein), rescind or avoid this Lease to the fullest extent
permitted by Applicable Laws, notwithstanding any action for bankruptcy,
insolvency, reorganization, liquidation, dissolution, or other proceeding
affecting Lessor, Administrative Agent or any Participant, or any action with
respect to this Lease which may be taken by any trustee, receiver or liquidator
of Lessor, Administrative Agent or any Participant or by any court with respect
to Lessor, Administrative Agent or any Participant. Lessee hereby waives, to the
extent permitted by Applicable Laws, all right to terminate or surrender this
Lease (except as provided herein) or to avail itself of any abatement,
suspension, deferment, reduction, setoff, counterclaim or defense with respect
to any Rent. Lessee shall remain obligated under this Lease in accordance with
its terms and the terms of the other Operative Documents and Lessee hereby
waives, to the extent permitted by Applicable Laws, any and all rights now or
hereafter conferred by statute or otherwise to modify or to avoid strict
compliance with its obligations under this
8
Lease. Notwithstanding any such statute or otherwise, Lessee shall be bound by
all of the terms and conditions contained in this Lease.
ARTICLE VI
ASSIGNMENTS AND SUBLEASES
SECTION 6.1. NO ASSIGNMENTS. Except for subleases permitted by this ARTICLE
VI, Lessee shall not have the right to assign, mortgage or pledge to any Person,
including an Affiliate of Lessee or Guarantor, at any time, in whole or in part,
any of its right, title or interest in, to or under this Lease, any portion of
the Leased Property, in any case without the prior written consent of the
Required Participants, and any such assignment, mortgage or pledge shall be
void. Notwithstanding the foregoing, Lessee may, without the consent of
Administrative Agent on behalf of the Participants and so long as no Event of
Default exists, enter into an assignment or sublease of all or any portion of
its rights and obligations under this Lease relating to the Leased Property with
a wholly owned subsidiary of the Guarantor. With respect to any assignment or
sublease permitted under this ARTICLE VI, Lessee shall not assign or sublease
any portion of the Leased Property or assign any interest with respect to this
Lease to, or permit any such assignment or sublease by, any Person who shall
then be engaged in any proceedings for relief under any bankruptcy or insolvency
law or laws relating to the relief of debtors.
No assignment or sublease permitted hereunder will (a) discharge or
diminish any of Lessee's or Guarantor's obligations under any Operative
Document, including Lessee's obligations under this Lease, or to any other
Person under any other Operative Document, and Lessee shall remain directly and
primarily liable under the Lease with respect to all of the Leased Property or
(b) extend beyond the last day of the Term. Each assignment or sublease
permitted hereby shall be made and shall expressly provide that it is subject
and subordinate to this Lease and the rights of Lessor hereunder, and shall
expressly provide for the surrender of the Leased Property subleased by the
applicable sublessee at the election of Lessor after the occurrence and
continuance of an Event of Default. The effectiveness of an assignment hereunder
shall be conditioned upon the receipt by Administrative Agent of a writing
executed by ▇▇▇▇▇▇, the assignee and Guarantor reaffirming that ▇▇▇▇▇▇ and
Guarantor shall remain primarily liable hereunder and with respect to Guarantor,
under the
9
Guarantees, notwithstanding such assignment or sublease and confirming that,
notwithstanding any assignment of this Lease by the Lessee, the Lessee will
serve as the representative of each assignee with the authority, on behalf of
each assignee, to bind each assignee with respect to the Operative Documents or
any amendment, modification or waiver thereunder and shall have the power and
authority to receive and give all notifications, consents, payments and
deliveries under this Lease and the other Operative Documents.
Lessee shall give Lessor prompt written notice of any assignment or
sublease permitted under this ARTICLE VI, and ▇▇▇▇▇▇ shall, within thirty (30)
days after execution of any assignment or sublease, deliver to the
Administrative Agent a fully executed copy of such assignment or sublease.
SECTION 6.2. PERMITTED SUBLEASES. In addition to the rights set forth in
SECTION 6.1, following the Base Term Commencement Date, Lessee may enter into
one or more subleases of not more than twenty-five percent (25%) in the
aggregate of the net rentable square feet of the Financed Improvements (together
with the nonexclusive use of any related or necessary portion of the Land as
shall be necessary for access and parking). With respect to any sublease
permitted under this ARTICLE VI, Lessee shall not sublease any portion of the
Leased Property to, or permit the sublease of any portion of the Leased Property
to, or permit the sublease of any portion of the Leased Property by, any Person
who shall then be engaged in any proceedings for relief under any bankruptcy or
insolvency law or laws relating to the relief of debtors.
No sublease hereunder will discharge or diminish any of ▇▇▇▇▇▇'s or
Guarantor's obligations hereunder, the Guarantees or under any other Operative
Document, and Lessee shall remain directly and primarily liable under the Lease
with respect to the entire Leased Property. Each sublease permitted hereby shall
be made and shall expressly provide that it is subject and subordinate to this
Lease and the rights of Lessor hereunder and the Participants under the
Operative Documents, and shall expressly provide for the surrender of the space
subleased by the applicable sublessee at the election of Lessor after an Event
of Default.
Lessee shall give Lessor prompt written notice of any sublease permitted
under this ARTICLE VI, and Lessee shall, within fifteen
10
(15) days after execution of any sublease, deliver to Administrative Agent a
fully executed copy of such sublease.
ARTICLE VII
LESSEE ACKNOWLEDGMENTS
SECTION 7.1. CONDITION OF THE LEASED PROPERTY. ▇▇▇▇▇▇ ACKNOWLEDGES AND
AGREES THAT ALTHOUGH ▇▇▇▇▇▇ WILL OWN AND HOLD TITLE TO THE LEASED PROPERTY
INCLUDING THE FINANCED IMPROVEMENTS, CONSTRUCTION AGENT IS SOLELY RESPONSIBLE
UNDER THE TERMS OF THE CONSTRUCTION AGENCY AGREEMENT FOR THE DESIGN,
DEVELOPMENT, BUDGETING AND CONSTRUCTION OF THE FINANCED IMPROVEMENTS AND
FOLLOWING THE BASE TERM COMMENCEMENT DATE, LESSEE IS SOLELY RESPONSIBLE UNDER
THE TERMS OF THE LEASE FOR ANY ALTERATIONS OR MODIFICATIONS AND ALL ACTIVITIES
CONDUCTED IN CONNECTION THEREWITH. LESSEE FURTHER ACKNOWLEDGES AND AGREES THAT
IT IS LEASING THE LEASED PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR
COVENANT (EXPRESS OR IMPLIED) BY ▇▇▇▇▇▇, ADMINISTRATIVE AGENT OR ANY OF THE
PARTICIPANTS AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF TITLE
(EXCLUDING LESSOR LIENS), (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF,
(C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT
SHOW, AND (D) ▇▇▇▇▇ TIONS OF REQUIREMENTS OF LAW WHICH MAY EXIST ON THE DATE
HEREOF. NONE OF LESSOR, ADMINISTRATIVE AGENT OR ANY OF THE PARTICIPANTS HAS MADE
OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO
THE TITLE (OTHER THAN FOR LESSOR LIENS), VALUE, HABITABILITY, USE, CONDITION,
DESIGN, OPERATION, OR FITNESS FOR USE OF THE LEASED PROPERTY (OR ANY PART
THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS
OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTY (OR ANY PART THEREOF) AND NONE
OF LESSOR, AGENT OR ANY OF THE PARTICIPANTS SHALL BE LIABLE FOR ANY LATENT,
HIDDEN, OR PATENT DEFECT THEREIN (OTHER THAN FOR LESSOR LIENS) OR THE FAILURE OF
THE LEASED PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY REQUIREMENT OF LAW.
Lessee has been afforded full opportunity to inspect the Leased Property, is
satisfied with the results of its inspections and is entering into this Lease
solely on the basis of the results of its own inspections, and all risks
incident to the matters discussed in the preceding sentence, as between Lessor,
Administrative Agent and the Participants, on the one hand, and Lessee, on the
other, are to be borne by Lessee. The provisions of this SECTION 7.1 have been
negotiated, and, except to the extent otherwise expressly stated, the foregoing
provisions are intended to be a complete exclusion
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and negation of any representations or warranties by any of Lessor, the
Administrative Agent or the Participants, express or implied, with respect to
the Leased Property (or any interest therein), that may arise pursuant to any
law now or hereafter in effect or otherwise.
SECTION 7.2. RISK OF LOSS. Subject to the limitations set forth in SECTION
14.1(e), the risk of loss of or decrease in the enjoyment and beneficial use of
the Leased Property as a result of the damage or destruction thereof by fire,
the elements, casualties, thefts, riots, wars or otherwise is assumed by Lessee,
and Lessor shall in no event be answerable or accountable therefor.
SECTION 7.3. CERTAIN DUTIES AND RESPONSIBILITIES OF LESSOR. Lessor
undertakes to perform such duties and only such duties as are specifically set
forth herein and in the other Operative Documents, and no implied covenants or
obligations shall be read into this Lease against Lessor, and Lessor agrees that
it shall not, nor shall it have a duty to, manage, control, use, sell, maintain,
insure, register, lease, operate, modify, dispose of or otherwise deal with the
Leased Property or any other part of the Trust Estate in any manner whatsoever,
except as required by the terms of the Operative Documents and as otherwise
provided herein.
ARTICLE VIII
POSSESSION AND USE OF THE LEASED PROPERTY, ETC.
SECTION 8.1. UTILITY AND OTHER CHARGES. Lessee shall pay or cause to be
paid all charges for electricity, power, gas, oil, water, telephone, sanitary
sewer service and all other rents and utilities used in or on the Leased
Property during the Term; PROVIDED, HOWEVER, prior to the Base Term Commencement
Date such amounts shall be paid with Advances to the extent provided for in the
Approved Budget. Lessee shall be entitled to receive any credit or refund with
respect to any utility charge paid by ▇▇▇▇▇▇ and the amount of any credit or
refund received by Lessor on account of any utility charges paid by Lessee, net
of the costs and expenses reasonably incurred by Lessor in obtaining such credit
or refund, shall be promptly paid over to Lessee. All charges for utilities
imposed with respect to the Leased Property for a billing period during which
this Lease expires or terminates (except when Lessee purchases the Leased
Property in accordance with the terms of this Lease, in which case Lessee shall
be solely responsible for all such charges) shall be adjusted and prorated on a
daily basis
12
between Lessee and any purchaser of the Leased Property, and each party shall
pay or reimburse the other for each party's pro rata share thereof; PROVIDED,
that in no event shall Lessor have any liability therefor.
SECTION 8.2. POSSESSION AND USE OF THE LEASED PROPERTY. Lessee may take
possession of and occupy the Leased Property beginning with the Base Term
Commencement Date and for the remainder of the Term unless ▇▇▇▇▇▇'s right to
possession is earlier terminated pursuant to the terms of this Lease or the
Construction Agency Agreement. The Leased Property shall be used only as a first
class commercial office building. Lessee shall not use the Leased Property or
any part thereof for any purpose or in any manner that would materially
adversely affect the Fair Market Value, utility, remaining useful life or
residual value of the Leased Property. At all times during the Term, the Leased
Property shall be continuously leased by Lessee or a permitted sublessee, to the
extent permitted herein, in the ordinary course of its business and only for a
Permitted Use. Lessee shall pay, or cause to be paid, all charges and costs
required in connection with the use of the Leased Property as contemplated by
this Lease and the other Operative Documents. Lessee shall not commit or permit
any waste of the Leased Property or any part thereof. During the Term, ▇▇▇▇▇▇
assumes and agrees to perform on behalf of Lessor all of ▇▇▇▇▇▇'s obligations as
owner of the Leased Property and to pay all fees, assessments, Impositions and
other amounts payable by Lessor as such owner during the Term and which relate
to or arise in connection with the purchase, disposition, ownership or use of
the Leased Property.
SECTION 8.3. COMPLIANCE WITH REQUIREMENTS OF LAW AND INSURANCE
REQUIREMENTS. Subject to the terms of ARTICLE XII relating to permitted
contests, Lessee, at its sole cost and expense, shall comply in all material
respects with all Requirements of Law (including all Environmental Laws) and
Insurance Requirements relating to the Leased Property, including the use,
construction, operation, maintenance, repair and restoration thereof, whether or
not compliance therewith shall require structural or extraordinary changes or
interfere with the use and enjoyment of the Leased Property, and procure,
maintain and comply with all licenses, permits, orders, approvals, consents and
other authorizations required for the construction, use, maintenance and
operation of the Leased Property.
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ARTICLE IX
MAINTENANCE AND REPAIR; REPORTS
SECTION 9.1. MAINTENANCE AND REPAIR; REPORTS. In addition to Lessee's
obligations as Construction Agent under the Construction Agency Agreement, on
and after the Base Term Commencement Date, Lessee, at its own expense, shall at
all times (a) maintain the Leased Property in good operating condition, subject
to ordinary wear and tear, and in any event at least as good as the condition of
similar properties owned or leased by Lessee, Guarantor and their Affiliates and
in good repair and condition; (b) maintain the Leased Property in accordance
with all Applicable Laws in all material respects, whether or not such
maintenance requires modifications or alterations; (c) comply with the Insurance
Requirements which are in effect at any time with respect to the Leased Property
or any part thereof; (d) use the Leased Property only in accordance with ARTICLE
VIII and cause the Leased Property to have at all times the capacity and
functional ability to be used, on a continuing basis and in commercial
operation, in accordance with ARTICLE VIII except during any period for which
any Casualty or Condemnation prevents such use; (e) make all necessary or
appropriate repairs, replacements and renewals of the Leased Property or any
part thereof which may be required to keep the Leased Property in the condition
required by the preceding CLAUSES (a) through (d), whether interior or exterior,
structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen,
and including, repairs, replacements and renewals that would constitute capital
expenditures under GAAP if incurred by an owner of property; and (f) procure,
maintain and comply in all material respects with all material licenses,
permits, orders, approvals, consents and other authorizations required for the
construction, use, development, maintenance and operation of the Leased
Property. Lessee waives any right that it may now have or hereafter acquire to
(x) require Lessor to maintain, repair, replace, alter, remove or rebuild all or
any part of the Leased Property or (y) make repairs at the expense of Lessor
pursuant to any Applicable Laws or other agreements.
SECTION 9.2. MAINTENANCE AND REPAIR REPORTS. During the Term, Lessee shall
keep maintenance and repair reports in sufficient detail, on the same basis as
records are kept for similar properties owned or leased by Lessee or any of its
Affiliates, to indicate the nature and date of any material maintenance work,
repair or any Modifications pursuant to SECTION 10.1 hereof. Such reports shall
be kept on file by Lessee at its
14
offices during the Term, and shall be made available at Lessee's office to
Lessor upon reasonable request. Lessee shall give written notice to Lessor of
any Condemnation or Casualty promptly after ▇▇▇▇▇▇ has knowledge thereof.
ARTICLE X
MODIFICATIONS, ETC.
SECTION 10.1. IMPROVEMENTS AND MODIFICATIONS.
(a) On and after the Second Document Closing Date but subject to the
final sentence of this paragraph (i) Lessee, at Lessee's own cost and expense,
shall make alterations, renovations, improvements and additions to the Leased
Property or any part thereof and substitutions and replacements therefor
(collectively, "MODIFICATIONS") which are (A) necessary to repair or maintain
the Leased Property in the condition required by SECTION 9.1; (B) necessary in
order for the Leased Property to be in compliance with Applicable Laws; or (C)
necessary or advisable to restore the Leased Property to its condition existing
prior to a Casualty or Condemnation to the extent required pursuant to ARTICLE
XIV; and (ii) so long as no Lease Event of Default or Lease Default has occurred
and is continuing, Lessee, at Lessee's own cost and expense, may, following the
Base Term Commencement Date, undertake Modifications to the Leased Property so
long as such Modifications comply with Applicable Laws and with SECTION 9.1 and
subsection (b) of this SECTION 10.1. Prior to the Base Term Commencement Date,
all Modifications (other than the Financed Improvements being built pursuant to
the Approved Plans and Specifications and in compliance with the Construction
Agency Agreement, and any modification permitted pursuant to and in accordance
with Section 3.2 of the Construction Agency Agreement) shall be subject to the
terms, conditions and restrictions set forth in Section 3.2 of the Construction
Agency Agreement.
(b) The making of any Modifications must be in compliance with the
following requirements:
(i) No such Modifications with a cost exceeding $500,000 shall
be made or undertaken except upon not less than thirty (30) days' prior
written notice to Lessor.
(ii) Lessee shall not make any Modifications in violation of the
terms of any restriction, easement,
15
condition, covenant or other similar matter affecting title to or binding
on the Leased Property.
(iii) No Modifications shall be undertaken until Lessee shall
have procured and paid for, so far as the same may be required from time to
time, all required permits and authorizations relating to such
Modifications of all municipal and other Governmental Authorities having
jurisdiction over the Leased Property. Lessor, at ▇▇▇▇▇▇'s expense, shall
join in the application for any such permit or authorization and execute
and deliver any document in connection therewith, whenever such joinder is
necessary or advisable.
(iv) The Modifications shall be completed in a good and
workmanlike manner and in compliance with all Applicable Laws then in
effect and the standards imposed by any insurance policies required to be
maintained hereunder.
(v) All Modifications shall, when completed, be of such a
character as to not materially adversely affect the Fair Market Value,
utility or residual value of the Leased Property from their Fair Market
Value, utility or residual value immediately prior to the making thereof
or, in the case of Modifications being made by virtue of a Casualty or
Condemnation, immediately prior to the occurrence of such Casualty or
Condemnation.
(vi) Lessee shall have made adequate arrangements for payment of
the cost of all Modifications when due so that the Leased Property shall at
all times be free of Liens for labor and materials supplied or claimed to
have been supplied to the Leased Property, other than Permitted Liens.
(vii) All Modifications must be located solely on the Land.
SECTION 10.2. TITLE TO MODIFICATIONS. Title to the following described
Modifications shall, without further act, vest in Lessor and shall be deemed to
constitute a part of the Leased Property and be subject to this Lease:
(a) each of the Financed Improvements;
(b) Modifications that are in replacement of or in substitution for a
portion of any Financed Improvements;
16
(c) Modifications that are required to be made pursuant to the terms
of SECTION 10.1(a)(i) hereof; or
(d) Modifications that are Nonseverable.
Except for Construction of the Financed Improvements as provided for in the
Construction Agency Agreement, Lessee shall not make or permit any Modifications
prior to the Base Term Commencement Date.
▇▇▇▇▇▇, at ▇▇▇▇▇▇'s request, shall execute and deliver any deeds, bills of
sale, assignments or other documents of conveyance reasonably necessary to
evidence the vesting of title in and to such Modifications to Lessor, and ▇▇▇▇▇▇
shall acknowledge therein that the same are subject to this Lease.
If any Modifications are not within any of the categories set forth in
CLAUSES (a) through (d) of this SECTION 10.2, then title to such Modifications
shall vest in Lessee and such Modifications shall not be deemed to be
Modifications which are part of the Leased Property.
All Modifications to which Lessee shall have title may, so long as removal
thereof shall not result in the violation of any Applicable Laws and no Event of
Default is continuing, be removed by Lessee. Lessee shall notify Lessor in
writing at least thirty (30) days before it removes any such Modifications
which, individually or in the aggregate, had an original cost exceeding
$500,000, and Lessee shall at its expense repair any damage to the Leased
Property caused by the removal of such Modifications. Lessor (or the purchaser
of the Leased Property) may purchase from Lessee any such Modifications (if not
already owned by Lessor) that Lessee intends to remove from the Leased Property
prior to the return of the Leased Property to Lessor or sale of the Leased
Property, which purchase shall be at the Fair Market Value of such Modifications
as determined by the Appraiser at the time of such purchase. Title to any such
Modifications shall vest in Lessor (or the purchaser of the applicable Leased
Property) if not removed from the Leased Property by Lessee prior to the return
of the Leased Property to Lessor or sale of the Leased Property.
SECTION 10.3. OTHER PROPERTY. Following the Base Term Commencement Date,
Lessee may from time to time own or hold under lease from Persons other than
Lessor, furniture, trade fixtures,
17
equipment and other tangible personal property located on or about the Leased
Property that is not subject to this Lease and does not constitute a portion of
the Financed Improvements. Lessor shall from time to time during the Term, upon
the reasonable request, and at the sole cost and expense of Lessee, which
request shall be accompanied by such supporting information and documents as
Lessor may reasonably require, acknowledge in writing to Lessee or other Persons
that the particular items of furniture, trade fixtures and equipment in question
are not part of the Leased Property and that, subject to the rights of Lessor
hereunder and under any other Operative Documents, Lessor does not own or have
any other right or interest in or to such furniture, trade fixtures and
equipment.
ARTICLE XI
COVENANTS WITH RESPECT TO LIENS; EASEMENTS
SECTION 11.1. Covenants with Respect to Liens.
(a) Lessee shall not directly or indirectly create, incur, assume or
suffer to exist any Lien (other than Permitted Liens) on or with respect to any
portion of the Leased Property, Lessor's title thereto, or any interest therein
and Lessee shall protest any such Lien and diligently pursue the defense
thereof. Lessee, at its own expense, shall promptly pay, satisfy and otherwise
take such actions as may be necessary to keep the Leased Property free and clear
of, and duly to discharge, eliminate or bond in a manner reasonably satisfactory
to Lessor and Administrative Agent, any such Lien (other than Permitted Liens)
not accepted above if the same shall arise at any time.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, express or implied, to or for the
performance by any contractor, mechanic, laborer, materialman, supplier or
vendor of any labor or services or for the furnishing of any materials for any
construction, alteration, addition, repair or demolition of or to the Leased
Property or any part thereof. NOTICE IS HEREBY GIVEN THAT NONE OF LESSOR, THE
AGENTS OR ANY OF THE PARTICIPANTS IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES
OR MATERIALS FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING THE
LEASED PROPERTY OR ANY PART THEREOF THROUGH OR UNDER LESSEE, AND THAT NO
MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH
TO OR AFFECT THE INTEREST OF LESSOR, ADMINISTRATIVE AGENT OR ANY PARTICIPANT IN
AND TO THE LEASED PROPERTY.
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ARTICLE XII
PERMITTED CONTESTS
SECTION 12.1. PERMITTED CONTESTS IN RESPECT OF APPLICABLE LAWS. Following
the Base Term Commencement Date, to the extent and for so long as (a) a test,
challenge, appeal or proceeding for review of any Applicable Laws relating to
Leased Property or the obligation to comply therewith shall be prosecuted
diligently and in good faith in appropriate proceedings by Lessee or (b)
compliance with such Applicable Laws shall have been excused or exempted by a
valid nonconforming use, variance permit, waiver, extension or forbearance,
Lessee shall not be required to comply with such Applicable Laws but only if and
so long as any such test, challenge, appeal, proceeding, waiver, extension,
forbearance or noncompliance shall not, in the reasonable opinion of Lessor,
acting at the direction of the Required Participants, involve (A) any risk of
criminal liability being imposed on Lessor, Administrative Agent, any
Participant or the Leased Property or (B) any material risk of (1) until after
an adverse determination therein, the foreclosure, forfeiture or loss of the
Leased Property, or any material part thereof, or (2) the nonpayment of Rent or
(3) any sale of, or, until after an adverse determination therein, the creation
of any Lien (other than a Permitted Lien) on, any part of the Leased Property,
(4) civil liability being imposed on Lessor, Administrative Agent, any
Participant or the Leased Property for which ▇▇▇▇▇▇ is not obligated to
indemnify such parties under the Operative Documents, or (5) enjoinment of, or
interference with, the use, possession or disposition of the Leased Property in
any material respect in accordance with the other Operative Documents.
Lessor shall not be required to join in any proceedings pursuant to this
SECTION 12.1 unless a provision of any Applicable Law requires that such
proceedings be brought by or in the name of Lessor or it is customary in the
applicable jurisdiction for the title holder to join in such proceedings; and in
that event Lessor shall join in the proceedings or permit them or any part
thereof to be brought in its name if and so long as (i) Lessee has not elected
the Sale Option and (ii) Lessee agrees in writing to and pays all related
expenses and agrees in writing to indemnify ▇▇▇▇▇▇, the Administrative Agent and
the Participants in form and substance reasonably satisfactory to each of the
respective Indemnitees.
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ARTICLE XIII
INSURANCE
SECTION 13.1. REQUIRED COVERAGES. During the Term, Lessee shall provide or
cause to be provided insurance with respect to the Leased Property of a
character usually insured by corporations engaged in the same or similar
business similarly situated against loss or damage of the kinds and in the
amounts customarily insured against by such corporations, and carry such other
insurance as is usually carried by such corporations; PROVIDED, that in any
event Lessee shall maintain or cause to be maintained at all times:
(a) COMPREHENSIVE GENERAL LIABILITY INSURANCE. Combined single limit
insurance against claims for third-party bodily injury, including death and
third-party property damage occurring on, in or about the Leased Property
(including adjoining streets and sidewalks) in an amount at least equal to
$1,000,000 per occurrence and $2,000,000 in the aggregate and a minimum of
$10,000,000 per occurrence and in the aggregate excess of such coverage. Such
coverage may be subject to deductibles up to an amount that is customarily
carried by a company of similar size and engaged in business similar to Lessee
and shall be otherwise reasonably acceptable to the Required Participants. The
coverage required by this paragraph (a) may be provided in a combination of
umbrella and excess liability policies.
(b) PROPERTY INSURANCE. Insurance against loss or damage covering the
Leased Property or any portion thereof by reason of any Peril (as defined below)
in an amount (subject to such deductibles in such minimum amounts as is carried
by corporations owning and/or operating similar properties) otherwise reasonably
acceptable to the Required Participants; PROVIDED, that at no time shall the
amount of such coverage be less than the replacement cost of any Improvements,
including any costs that may be required to cause the Leased Property to be
reconstructed to comply with all Applicable Laws including any costs that may be
required to cause the Leased Property to be reconstructed to comply with all
Applicable Laws and, during the Interim Term, in amounts sufficient to fund all
Interest, Yield and Fees accruing on or with respect to the Notes and the
Certificates or otherwise payable to any Participant during any period while the
Leased Property is being reconstructed or repaired. The term "PERIL" shall mean,
collectively, fire, lightning, flood, windstorm, hail, earthquake, explosion,
riot and civil commotion, vandalism and malicious mischief, damage from
aircraft, vehicles and smoke and all other
20
perils covered by the "all risk endorsement" then in use in the State of
Colorado.
(c) CONDEMNATION AND EMINENT DOMAIN INSURANCE. Insurance against
Condemnation with respect to all or any portion of the Leased Property with a
maximum liability amount not less than $21,000,000. Such insurance policy shall
not be subject to any deductibles and shall otherwise be in form and substance
reasonably satisfactory to the Required Participants.
(d) WORKERS' COMPENSATION. During the Interim Term, Lessee shall
cause Construction Agent to, and following the Base Term Commencement Date
Lessee shall, in the construction of any Modifications and the operation of the
Leased Property, comply with the applicable Workers' Compensation laws and
protect Lessor, the Agents and the Participants against any liability under such
laws.
(e) BUILDERS' RISK INSURANCE. During the Interim Term, Lessee shall
cause Construction Agent to, and following the Base Term Commencement Date
Lessee shall, during the construction of any Modifications, maintain, for the
benefit of Lessor, all-risk Builders' Risk Insurance in an amount equal to the
greater of the replacement value of the Financed Improvements or such
Modifications, as applicable, and the aggregate cost for the construction of
same, including costs that may be required to cause the Leased Property to be
reconstructed to comply with all Applicable Laws and in amounts sufficient to
fund all Interest, Yield and Fees accruing on the Notes and the Certificates or
otherwise payable to any Participant, during the Interim Term, or during any
period while the Leased Property is being reconstructed or repaired.
(f) OTHER INSURANCE. Such other insurance, in each case as is
generally carried by Guarantor or its Affiliates for similar properties owned or
leased by any of them or by other owners of similar properties, in such amounts
and against such risks as are then customary for properties similar in use and
flood insurance to the extent required by Applicable Laws, including banking
regulations applicable to such Participant.
SECTION 13.2. INSURANCE COVERAGE.
(a) GENERAL REQUIREMENTS. The insurance coverage required in SECTION
13.1 shall be written by reputable insurance companies that are financially
sound and solvent and otherwise reasonably
21
appropriate considering the amount and type of insurance being provided by such
companies. Any insurance company selected by Lessee shall be rated in A.M.
Best's Insurance Guide or any successor thereto (or if there be none, an
organization having a similar national reputation) and shall have a general
policyholder rating of "A" (or comparable rating for a rating by an organization
other than A.M. Best) and a financial rating of at least "X" (or comparable
rating for a rating by an organization other than A.M. Best) or be otherwise
acceptable to the Required Participants. In the case of liability insurance
maintained by ▇▇▇▇▇▇, such insurance shall name Lessor (both in its individual
capacity and as trustee), Administrative Agent and each of the Participants, as
additional insureds and, in the case of property insurance maintained by ▇▇▇▇▇▇,
such insurance shall name Administrative Agent as mortgagee and sole loss payee.
Each policy referred to in SECTION 13.1 shall provide that: (i) it will not be
canceled, materially modified or its limits reduced, or allowed to lapse without
renewal, except after not less than fifteen (15) days' prior written notice to
Lessor and Administrative Agent; (ii) the interests of Lessor, Administrative
Agent and any Participant shall not be invalidated by any act or negligence of
or breach of warranty or representation by Lessee or any other Person having an
interest in the Leased Property; (iii) such insurance is primary with respect to
any other insurance carried by or available to Lessor, Administrative Agent or
any Participant; (iv) the insurer shall waive any right of subrogation, setoff,
counterclaim, or other deduction, whether by attachment or otherwise, against
Lessor; and (v) such policy shall contain a cross-liability clause providing for
coverage of Lessor, Administrative Agent and each Participant, as if separate
policies had been issued to each of them. Lessee shall notify Lessor and
Administrative Agent promptly of any policy cancellation, reduction in policy
limits, or material modification or amendment.
(b) INTERIM TERM REQUIREMENTS. During the Interim Term, the insurance
coverage required in SECTION 13.1 shall be satisfied to the extent such coverage
is maintained by the General Contractor or Construction Agent and otherwise
complies with the requirements of SECTION 13.2(a). The premium for any insurance
maintained by Construction Agent during the Interim Term required pursuant to
SECTION 13.1(a) may be paid for with Advances, subject to the terms and
conditions set forth in the Participation Agreement and to the extent amounts
are set aside for such purpose in the Approved Construction Budget. During the
Interim Term and notwithstanding the provisions of SECTION 13.1(a), no
deductibles or self-insurance
22
amounts shall be maintained or permitted with respect to such required coverage,
except deductibles in amounts reasonably acceptable to Administrative Agent and
for which amounts are separately reserved in the Approved Construction Budget.
SECTION 13.3. DELIVERY OF INSURANCE CERTIFICATES. On or before the Initial
Advance Date, Lessee shall deliver to Administrative Agent certificates of
insurance satisfactory to Administrative Agent and the Participants evidencing
the existence of all insurance required to be maintained hereunder and setting
forth the respective coverages, limits of liability, carrier, policy number and
period of coverage. Thereafter, at the time each of Lessee's insurance policies
is renewed (but in no event less frequently than once each year) or upon written
request by Lessor or Administrative Agent following a Lease Event of Default,
Lessee shall deliver to Administrative Agent certificates of insurance
evidencing that all insurance required by SECTIONS 13.1 and 13.2 to be
maintained by Lessee is in effect.
SECTION 13.4. INSURANCE BY ▇▇▇▇▇▇, ADMINISTRATIVE AGENT OR ANY PARTICIPANT.
Each of Lessor, Administrative Agent or any Participant may at its own expense
carry insurance with respect to its interest in the Leased Property, and any
insurance payments received from policies maintained by Lessor, Administrative
Agent or any Participant shall be retained by Lessor, Administrative Agent or
such Participant, as the case may be, without reducing or otherwise affecting
Lessee's obligations hereunder.
ARTICLE XIV
CASUALTY AND CONDEMNATION; ENVIRONMENTAL MATTERS
SECTION 14.1. CASUALTY AND CONDEMNATION.
(a) If all or a portion of the Leased Property is damaged or
destroyed in whole or in part by a Casualty (other than a Significant Casualty,
which shall be governed by SECTION 15.1) any insurance proceeds payable with
respect to such Casualty, shall be paid directly to Lessor, or if received by
Administrative Agent or Lenders, shall be paid over to Lessor, and shall in each
case be advanced to Lessee to be used solely for the reconstruction,
refurbishment and repair of Leased Property, and if the use, access, occupancy,
easement rights or title to the Leased Property or any part thereof is the
subject of a Condemnation (other than a Significant Condemnation), then any
award or compensation relating
23
thereto, shall be paid to Lessor and shall be used solely for the restoration of
the Leased Property such insurance proceeds or condemnation awards and any
amounts in the case of either a Casualty or Condemnation will be applied in the
manner provided for in Section 5.3(i) of the Participation Agreement. Any
insurance proceeds or condemnation award payable with respect to a Casualty or
Condemnation occurring prior to the Base Term Commencement Date or aggregating
more than $5,000,000 shall be held in trust by Administrative Agent in a
segregated account for reimbursement to Lessee from time to time during the
course of ▇▇▇▇▇▇'s restoration of the Leased Property and compliance with the
provisions of SECTION 9.1 and with respect to a Casualty or Condemnation
occurring prior to the Base Term Commencement Date to fund the payment of
interest and Yield accruing on the Notes and Certificates and the payment of
Fees accruing during such period. Any such amounts held by Administrative Agent
shall be invested by Administrative Agent at the direction of Lessor from time
to time, with all interest and earnings on such investments being applied
promptly upon receipt thereof by Administrative Agent from time to time to
reduce the then outstanding amount of the Lease Balance in accordance with the
provisions of Section 5.3(i) of the Participation Agreement. All amounts held by
Administrative Agent, Lessor or any of the Participants on account of any award,
compensation or insurance proceeds paid directly to or otherwise received by
Lessor, Administrative Agent or any of the Participants shall promptly be
remitted to Lessee (or if the immediately preceding sentence is applicable,
Administrative Agent) to be applied in accordance with this SECTION 14.1.
Notwithstanding the foregoing, if any Lease Event of Default shall have occurred
and be continuing, such award, compensation or insurance proceeds shall be paid
directly to Administrative Agent or, if received by Lessee, shall be held in
trust for the Participants and shall be paid over by Lessee to Administrative
Agent to be distributed by Administrative Agent in accordance with the
Participation Agreement. All amounts held by Lessor or Administrative Agent on
account of any award, compensation or insurance proceeds either paid directly to
Lessor or Administrative Agent or turned over to Lessor or Administrative Agent,
in each case after the occurrence and during the continuance of a Lease Event of
Default shall at the option of Lessor (at the direction of the Required
Participants) either be (A) paid to Lessee for the repair of damage caused by
such Casualty or Condemnation in accordance with this CLAUSE (a), or (B) applied
to Lease Balance and any other amounts owed by Lessee under the Operative
Documents in accordance with ARTICLE XVI.
24
(b) In the event any part of the Leased Property becomes subject to
condemnation or requisition proceedings, Lessee shall give notice thereof to
Lessor promptly after Lessee has knowledge thereof and, to the extent permitted
by Applicable Laws, Lessee shall control the negotiations with the relevant
Governmental Authority unless an Event of Default exists or such condemnation or
requisition occurs during the Interim Term, in which case Lessor shall be
entitled to control such negotiations; PROVIDED, that in any event, Lessor may
participate at Lessor's expense (or if an Event of Default exists or such
condemnation or requisition occurs during the Interim Term, at ▇▇▇▇▇▇'s expense)
in such negotiations, PROVIDED, in all cases, that no settlement shall be made
without ▇▇▇▇▇▇'s prior written consent, which will not be unreasonably withheld
or delayed. Lessee shall give to Lessor such information and copies of such
documents which relate to such proceedings, or which relate to the settlement of
amounts due under insurance policies required by ARTICLE XIII, and are in the
possession of Lessee, as are reasonably requested by ▇▇▇▇▇▇. If the proceedings
relate to a Significant Condemnation, Lessee shall act diligently in connection
therewith. Nothing contained in this SECTION 14.1(b) shall diminish Lessor's
rights with respect to condemnation awards and property insurance proceeds under
ARTICLES XIII or XIV.
(c) In no event shall a Casualty or Condemnation affect Lessee's
obligations to pay Rent pursuant to SECTION 3.1 or to perform its obligations
and pay any amounts due on the Expiration Date or pursuant to ARTICLES XVIII,
XIX and XX.
(d) If, pursuant to this ARTICLE XIV, this Lease shall continue in
full force and effect following a Casualty or Condemnation, and provided that
all insurance proceeds or condemnation proceeds received by Lessor have been
made available to Lessee, Lessee shall, at its sole cost and expense (and,
without limitation, if any award, compensation or insurance payment is not
sufficient to restore the Leased Property in accordance with this CLAUSE (d)
Lessee shall pay the shortfall, unless such Casualty or Condemnation occurs
during the Interim Term and did not arise as a result of, and is not related to,
a Lessee Related Event, in which case Lessee's liability shall be as provided
for in SECTION 14.1(e)), promptly and diligently repair any damage to the Leased
Property caused by such Casualty or Condemnation in conformity with the
requirements of SECTIONS 9.1 and 10.1 using the as-built Approved Plans and
Specifications for the Leased Property (as modified to give effect to any
subsequent Modifications, any Condemnation affecting the Leased Property and all
applicable
25
Requirements of Law) so as to restore the Leased Property to at least the same
condition and value as existed immediately prior to such Casualty or
Condemnation. In such event, title to the Leased Property shall remain with
Lessor subject to the terms of this Lease. Upon completion of such restoration,
Lessee shall furnish to Lessor a Responsible Officer's Certificate to Lessor
confirming that such restoration has been completed pursuant to this Lease.
(e) Notwithstanding any provision to the contrary contained herein
(including in ARTICLE XV), should a Casualty or Condemnation occur during the
Interim Term, Lessee shall have no recourse liability to fund any shortfall in
available insurance proceeds as required pursuant to SECTION 14.1(d) or to pay
amounts to purchase the Leased Property in accordance with ARTICLE XV unless
such shortfall, Casualty or Condemnation arose as a result of or was otherwise
related to a Lessee Related Event, in which case the limitation on Lessee's
liability set forth in this sentence shall not apply. Notwithstanding the
foregoing, the limitation in this SECTION 14.1(e) shall not relieve Lessee of
its obligations to repair, rebuild or reconstruct under SECTION 14.1(d) with any
insurance proceeds, condemnation awards, and, if the Participants elect,
additional amounts funded by the Participants. "LESSEE RELATED EVENT" shall mean
any act or omission of Lessee (including in its capacity as Construction Agent)
or any Construction Agency Person, including without limitation, any breach
under any Operative Document (including the insurance provisions in ARTICLE XIII
and in the Construction Agency Agreement) or Construction Document and, in any
case, any fraud, misapplication of funds, illegal acts or willful misconduct by
Construction Agent.
SECTION 14.2. ENVIRONMENTAL MATTERS. At Lessee's sole cost and expense,
Lessee shall promptly and diligently commence any response, clean up, remedial
or other action necessary to remove, clean up or remediate any Release which
constitutes a Material Environmental Condition or an Environmental Violation
with respect to the Leased Property which in either case arising or resulting
from the acts or omissions of Guarantor, Lessee or any of their Affiliates or
which any such Person has an obligation to respond, clean up or remediate under
Applicable Laws.
SECTION 14.3. NOTICE OF ENVIRONMENTAL MATTERS. Lessee shall promptly
provide to Lessor written notice of any pending or threatened claim, action or
proceeding involving any Environmental Violation or any Release on, at, under or
from Leased Property,
26
which violation or Release could require in excess of $100,000.00 in remediation
costs, or which could result in the imposition of criminal penalties upon
Lessor, Administrative Agent or any Participant (any such violation, claim,
action, proceeding or Release, a "MATERIAL ENVIRONMENTAL CONDITION") All such
notices shall describe in reasonable detail the nature of the claim, action or
proceeding and ▇▇▇▇▇▇'s proposed response thereto. In addition, Lessee shall
provide to Lessor, within ten (10) Business Days of receipt, copies of all
written communications with any Governmental Authority relating to any such
Material Environmental Condition. Lessee shall also promptly provide such
detailed reports of any such Material Environmental Condition as may reasonably
be requested by Lessor or Administrative Agent. Upon completion of remedial
action of any such Material Environmental Condition by ▇▇▇▇▇▇, Lessee shall
cause to be prepared by an environmental consultant reasonably acceptable to
Lessor and Administrative Agent a report describing the Material Environmental
Condition and the actions taken by Lessee (or its agents) in response to such
Material Environmental Condition, and a statement by the consultant that the
Material Environmental Condition has been remedied in compliance in all material
respects with applicable Environmental Law. Each Release constituting a Material
Environmental Condition and any Environmental Violation shall be remedied prior
to the Expiration Date unless the Leased Property has been purchased by Lessee
in accordance with ARTICLE XV or SECTION 19.1. Nothing in this ARTICLE XIV shall
reduce or limit Lessee's obligations elsewhere in this Lease or under the
Participation Agreement.
ARTICLE XV
TERMINATION OF LEASE
SECTION 15.1. TERMINATION UPON CERTAIN EVENTS.
(a) If any of the following occurs with respect to the Leased
Property:
(i) a Significant Condemnation;
(ii) a Significant Casualty; or
(iii) an Environmental Violation or Release, or the discovery of
an Environmental Violation or Release, the cost of remediation of which in the
reasonable judgment of Administrative Agent would exceed $100,000.00;
27
then, in any such event, Lessor may elect to terminate the Lease and, if such
event occurs during the Interim Term, the Construction Agency Agreement, by
giving written notice (a "TERMINATION NOTICE") to Lessee that, as a consequence
of such event, the Lease and, if such event occurs during the Interim Term, the
Construction Agency Agreement is to be terminated following satisfaction of the
conditions set forth herein.
(b) Following ▇▇▇▇▇▇'s receipt of the Termination Notice, unless SECTION
15.1(c) is applicable, Lessee shall be obligated to purchase Lessor's interest
in the Leased Property on or prior to the next occurring Payment Date by paying
Lessor an amount equal to the Purchase Amount.
(c) If a Significant Condemnation or Significant Casualty occurs during
the Interim Term for which the limitation on Lessee's recourse liability set
forth in SECTION 14.1(e) applies, then, following Lessee's receipt of a
Termination Notice and in lieu of the procedures set forth in SECTION 15.1(b)
above, Lessee shall be obligated, on or prior to the next occurring Payment
Date, either to (y) purchase Lessor's interest in the Leased Property and pay to
Lessor the Purchase Amount (in which case Lessor shall, as set forth in SECTION
15.2(a), transfer to Lessee its interest in the Leased Property) or (z) deliver
the Leased Property to Lessor, in which case SECTION 15.2(b) shall apply;
provided, however, that if Lessee fails for any reason to comply with all of the
requirements set forth in SECTION 15.2(b) in all material respects, Lessee shall
instead be deemed to have elected to, and shall, purchase the Leased Property
pursuant to SECTION 15.1(c)(y) above. Lessee acknowledges that an Environmental
Violation or Release in which CLAUSE (iii) of SECTION 15.1(a) applies or a
Significant Condemnation or Significant Casualty to which SECTION 14.1(e) is not
applicable shall be subject to SECTION 15.1(b) rather than this SECTION 15.1(c).
SECTION 15.2. TERMINATION PROCEDURES.
(a) On the date of the payment by Lessee of the Purchase Amount in
accordance with SECTION 15.1(b) or SECTION 15.1(c)(y) (such date, the
"TERMINATION DATE"), this Lease shall terminate and, promptly following Lessor's
receipt of such payment:
(i) Lessor shall execute and deliver to Lessee at ▇▇▇▇▇▇'s cost and
expense a warranty deed of any remaining interest of Lessor in the Leased
Property and a discharge of
28
mortgage with respect to this Lease, in each case in recordable form and
otherwise in conformity with local custom and without representation and
warranty except as to the absence of any Lessor Liens attributable to
Lessor;
(ii) the Leased Property shall be conveyed to Lessee "AS IS" and in
its then present physical condition; and
(iii) in the case of a termination pursuant to CLAUSE (i) or (ii) of
SECTION 15.1(a), Lessor shall convey to Lessee any Net Proceeds with
respect to the Casualty or Condemnation giving rise to the termination of
this Lease and, the Construction Agency Agreement theretofore received by
Lessor or at the request of Lessee, to the extent actually received, such
amounts shall be applied against sums due hereunder.
(b) If SECTION 15.1(c) is applicable and Lessee elects not to
purchase the Leased Property and instead elects to return the Leased Property as
provided in SECTION 15.1(c)(z), Lessee shall, at its own cost and expense, do
each of the following, upon the completion of which this Lease and the
Construction Agency Agreement shall terminate:
(i) Lessee shall execute and deliver to Lessor (or to Lessor's
designee) (A) a special warranty deed with respect to its interest in the
Leased Property containing representations and warranties of grantor to
Lessor (or such other Person) regarding the absence of Liens (other than
Permitted Liens of the type described in CLAUSES (iv), (v), and (vii) of
the definition of "Permitted Liens"), (B) an assignment of Lessee's entire
interest in the Leased Property (which shall include an assignment of all
of Lessee's right, title and interest in and to all awards, compensation
and insurance proceeds payable in connection with the applicable
Significant Condemnation or Significant Casualty and, if requested by
Lessor, an assignment of leases of the Leased Property), and (C) all other
transfer requirements described in SECTION 21.1(iii), in each case in
recordable form where appropriate for the type of document or instrument
involved, and otherwise in conformity with local custom and free and clear
of any Liens attributable to Lessee;
(ii) Lessee shall pay over to Lessor all awards, compensation and
insurance proceeds previously received by
29
Lessee in connection with the applicable Significant Condemnation or
Significant Casualty;
(iii) Lessee shall execute and deliver to Lessor and ▇▇▇▇▇▇'s title
insurance company an affidavit as to the absence of any Liens (other than
Permitted Liens of the type described in CLAUSES (iv), (v), and (vii) of
the definition of "Permitted Liens"), and shall execute and deliver to
Lessor a statement of termination of this Lease;
(iv) Lessee shall vacate the Leased Property and transfer possession
of the Leased Property to Lessor or to any Person designated by ▇▇▇▇▇▇, in
each case by surrendering the same into the possession of Lessor or such
Person, as the case may be, in the condition required by SECTION 21.1(iv)
and in compliance with all Applicable Laws and Insurance Requirements; and
(v) Lessee shall deliver to Lessor or to any Person designated by
Lessor copies of all books and records regarding the maintenance of, and
▇▇▇▇▇▇'s interest in, the Leased Property, a current copy of the Approved
Plans and Specifications, and an assignment of all assignable licenses
necessary for the operation and maintenance of the Leased Property and any
rights under the Construction Documents. Lessee shall, for a period of up
to one (1) year after the applicable date of transfer hereunder, cooperate
reasonably with Lessor and/or any Person designated by Lessor to receive
the Leased Property, which cooperation shall include seeking and obtaining
all necessary Governmental Action. The obligations of Lessee under this
paragraph shall survive the expiration or termination of this Lease; and
(vi) Lessee shall take any other acts and execute and deliver all such
other documents reasonably deemed necessary by Lessor to cause any of the
foregoing items in clause (i) through (v) to occur, it being understood
that ▇▇▇▇▇▇ shall execute all such documents and take such acts as
described in this SECTION 15.2 both in its capacity as "Lessee" and
"Construction Agent."
30
ARTICLE XVI
EVENTS OF DEFAULT
SECTION 16.1. LEASE EVENTS OF DEFAULT. The occurrence of any one or more of
the following events (whether such event shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body) shall constitute a "LEASE EVENT OF
DEFAULT":
(a) the occurrence of a Payment Default; or
(b) the Lessee shall fail to make payment of any Supplemental Rent
(other than Supplemental Rent giving rise to a Lease Event of Default under
CLAUSE (a) of this SECTION 16.1) due and payable within five (5) Business Days
after receipt of notice thereof; or
(c) the insurance required by ARTICLE XIII of this Lease is not
maintained and in place for any reason; or
(d) Lessee or Guarantor shall fail to observe or perform any material
term, covenant or condition of Lessee under this Lease or any other Operative
Document (other than those described in any other clause of this SECTION 16.1)
and such failure shall have continued for thirty (30) days after the earlier of
(i) receipt by Lessee of notice thereof and (ii) notification by Lessee of such
event pursuant to Section 7.1(d) of the Participation Agreement; PROVIDED,
HOWEVER, that if such failure is capable of cure but cannot be cured by payment
of money or cannot be cured by diligent efforts within such thirty (30)-day
period, but such diligent efforts shall be properly commenced within such thirty
(30)-day cure period and Lessee is diligently pursuing, and shall continue to
pursue diligently, remedy of such failure, the cure period shall be extended for
an additional 90 days, but not to extend beyond the Expiration Date; or
(e) the occurrence of a Teletech Event of Default; or
(f) a Construction Agency Event of Default shall have occurred and be
continuing; or
(g) Lessee shall fail to sell the Leased Property in accordance with
and satisfy each of the terms, covenants,
31
conditions and agreements set forth at ARTICLES XX and XXI in connection with
and following its exercise of the Sale Option, including each of Lessee's
obligations at SECTIONS 20.1 and 21.1; or
(h) Any Operative Document or the security interest and lien granted
under this Lease (except in accordance with its terms), in whole or in part,
terminates, ceases to be effective or ceases to be the legal, valid and binding
enforceable obligation of Lessee, Guarantor or any of their Affiliates, or
Lessee, Guarantor or any such Affiliate, directly or indirectly, contests in any
manner in any court the effectiveness, validity, binding nature or
enforceability thereof; or the security interest and lien securing ▇▇▇▇▇▇'s or
Guarantor's obligations under the Operative Documents, in whole or in part,
ceases to be a perfected first priority security interest and lien.
SECTION 16.2. REMEDIES. Upon the occurrence of any Lease Event of Default
and at any time thereafter, Lessor may, so long as such Lease Event of Default
is continuing, do one or more of the following as Lessor in its sole discretion
shall determine, without limiting any other right or remedy Lessor may have on
account of such Lease Event of Default, including the obligation of Lessee to
purchase the Leased Property as set forth in SECTION 18.2 and any rights and
remedies set forth in this Lease but subject to the rights of the Lessee to
purchase the Leased Property pursuant to the terms and conditions and within the
time periods as set forth in SECTION 18.1:
(a) Lessor may, by notice to Lessee, rescind or terminate this Lease
as to any or all of the Leased Property as of the date specified in such notice;
PROVIDED, HOWEVER, that no reletting, reentry or taking of possession of the
Leased Property (or any portion thereof) by Lessor shall be construed as an
election on Lessor's part to terminate this Lease unless a written notice of
such intention is given to Lessee, and notwithstanding any reletting, reentry or
taking of possession, Lessor may at any time thereafter elect to terminate this
Lease for a continuing Lease Event of Default and no act or thing done by Lessor
or any of its agents, representatives or employees and no agreement accepting a
surrender of the Leased Property shall be valid unless the same be made in
writing and executed by ▇▇▇▇▇▇;
(b) Lessor may demand that Lessee, and Lessee shall upon any such
demand of Lessor, return the Leased Property promptly to
32
Lessor in the manner and condition required by, and otherwise in accordance with
all of the provisions of, ARTICLES VII and IX and SECTION 8.3 and SECTION 14.2
hereof as if the Leased Property were being returned at the end of the Term, and
Lessor shall not be liable for the reimbursement of Lessee for any costs and
expenses incurred by Lessee in connection therewith and without prejudice to any
other remedy which Lessor may have for possession of the Leased Property, and to
the extent and in the manner permitted by Applicable Laws, enter upon the Leased
Property and take immediate possession of (to the exclusion of Lessee) the
Leased Property or any part thereof and expel or remove Lessee, by summary
proceedings or otherwise, all without liability to Lessee for or by reason of
such entry or taking of possession, whether for the restoration of damage to
property caused by such taking or otherwise and, in addition to Lessor's other
damages, Lessee shall be responsible for all reasonable costs and expenses
incurred by ▇▇▇▇▇▇ and the Participants in connection with any reletting,
including, without limitation, reasonable brokers' fees and all costs of any
necessary repairs made by Lessor;
(c) Lessor may (i) sell all or any part of the Leased Property at
public or private sale, as Lessor may determine, free and clear of any rights of
Lessee (except that any Excess Sales Proceeds shall be payable to Lessee) with
respect thereto (except to the extent required by CLAUSE (ii) below if Lessor
shall elect to exercise its rights thereunder) in which event Lessee's
obligation to pay Basic Rent hereunder for periods commencing after the date of
such sale shall be terminated; and (ii) if Lessor shall so elect, demand that
Lessee pay to Lessor, and Lessee shall pay to Lessor, on the date of such sale,
as damages for loss of bargain and not as a penalty (in lieu of Basic Rent due
for periods commencing on or after the Payment Date coinciding with such date of
sale (or, if the sale date is not a Payment Date, the Payment Date next
preceding the date of such sale)), an amount equal to (A) the excess, if any, of
(1) the Lease Balance calculated as of such Payment Date (including all Rent due
and unpaid to and including such Payment Date), over (2) the net proceeds of
such sale (that is, after deducting all reasonable costs and expenses incurred
by Lessor or any Participant(s) incident to such conveyance, including, without
limitation, repossession costs, brokerage commissions, prorations, transfer
taxes, fees and expenses for counsel, title insurance fees, survey costs,
recording fees and any repair costs); plus (B) interest at the Overdue Rate on
the foregoing amount from such Payment Date until the date of payment;
33
(d) Lessor may, at its option, elect not to terminate this Lease with
respect to the Leased Property and may continue to collect all Basic Rent,
Supplemental Rent and all other amounts due Lessor (together with all costs of
collection) and enforce Lessee's obligations under this Lease as and when the
same become due, or are to be performed, and at the option of Lessor, upon any
abandonment of the Leased Property by Lessee or re-entry of same by Lessor,
Lessor may, in its sole and absolute discretion, elect not to terminate this
Lease and may make the necessary repairs (and Lessee shall pay the reasonable
costs of such repairs) in order to relet the Leased Property, and relet the
Leased Property or any part thereof for such term or terms (which may be for a
term extending beyond the Term of this Lease) and at such rental or rentals and
upon such other terms and conditions as Lessor in its reasonable discretion may
deem advisable; and upon each such reletting all rentals actually received by
Lessor from such reletting shall be applied to ▇▇▇▇▇▇'s obligations hereunder
and the other Operative Documents in such order, proportion and priority as
Lessor may elect in Lessor's sole and absolute discretion. If such rentals
received from such reletting during any period are less than the Rent with
respect to the Leased Property to be paid during that period by Lessee
hereunder, Lessee shall pay any deficiency, as calculated by ▇▇▇▇▇▇, to Lessor
on the next Payment Date;
(e) Unless the Leased Property has been sold in its entirety, Lessor
may, whether or not Lessor shall have exercised or shall thereafter at any time
(subject to ▇▇▇▇▇▇'s prior performance in full under this clause) exercise any
of its rights under CLAUSE (b), (c) or (d) with respect to the Leased Property
or any portion thereof, demand, by written notice to Lessee specifying a date (a
"TERMINATION DATE") not earlier than ten (10) days after the date of such
notice, that Lessee purchase, on such Termination Date, the Leased Property (or
any remaining portions thereof) in the manner provided in SECTION 18.2 and in
accordance with the provisions of ARTICLE XXI;
(f) Lessor may exercise any other right or remedy that may be
available to it under Applicable Laws, or proceed by appropriate court action
(legal or equitable) to enforce the terms hereof or to recover damages for the
breach hereof. Separate suits may be brought to collect any such damages for any
period(s), and such suits shall not in any manner prejudice ▇▇▇▇▇▇'s right to
collect any such damages for any subsequent period(s), or Lessor may defer any
such suit until after the expiration of the Term, in
34
which event such suit shall be deemed not to have accrued until the expiration
of the Term;
(g) Lessor may retain and apply against the Lease Balance, or any
other amounts payable under the Operative Documents, all sums which Lessor
would, absent such Lease Event of Default, be required to pay to, or turn over
to, Lessee pursuant to the terms of this Lease; or
(h) If an Event of Default shall have occurred and be continuing,
Lessor, as a matter of right and with notice to ▇▇▇▇▇▇, shall have the right to
apply to any court having jurisdiction to appoint a receiver or receivers of the
Leased Property, and ▇▇▇▇▇▇ hereby irrevocably consents to any such appointment.
Any such receiver(s) shall have all of the usual powers and duties of receivers
in like or similar cases and all of the powers and duties of Lessor in case of
entry, and shall continue as such and exercise such powers until the date of
confirmation of the sale of the Leased Property unless such receivership is
sooner terminated.
To the maximum extent permitted by law, Lessee hereby waives the benefit of
any appraisement, valuation, stay, extension, reinstatement and redemption laws
now or hereafter in force and all rights of marshaling in the event of any sale
of the Leased Property or any interest therein.
Lessor shall be entitled to enforce payment of the indebtedness and
performance of the obligations secured hereby and to exercise all rights and
powers under this instrument or under any of the other Operative Documents or
other agreement or any laws now or hereafter in force, notwithstanding some or
all of the obligations secured hereby may now or hereafter be otherwise secured,
whether by mortgage, security agreement, pledge, lien, assignment or otherwise.
Neither the acceptance of this instrument nor its enforcement, shall prejudice
or in any manner affect ▇▇▇▇▇▇'s right to realize upon or enforce any other
security now or hereafter held by Lessor, it being agreed that Lessor shall be
entitled to enforce this instrument and any other security now or hereafter held
by Lessor in such order and manner as Lessor may determine in its absolute
discretion. No remedy herein conferred upon or reserved to Lessor is intended to
be exclusive of any other remedy herein or by law provided or permitted, but
each shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by any of the Operative
35
Documents to Lessor or to which it may otherwise be entitled, may be exercised,
concurrently or independently, from time to time and as often as may be deemed
expedient by ▇▇▇▇▇▇. In no event shall Lessor, in the exercise of the remedies
provided in this instrument (including, without limitation, in connection with
the assignment of rents to Lessor, or the appointment of a receiver and the
entry of such receiver onto all or any part of the Leased Property), be deemed a
"mortgagee in possession", and Lessor shall not in any way be made liable for
any act, either of commission or omission, in connection with the exercise of
such remedies.
SECTION 16.3. WAIVER OF CERTAIN RIGHTS. If this Lease shall be terminated
pursuant to SECTION 16.2, Lessee waives, to the fullest extent permitted by
law,(a) any notice of re-entry or the institution of legal proceedings to obtain
re-entry or possession; (b) any right of redemption, re-entry or repossession;
(c) the benefit of any laws now or hereafter in force exempting property from
liability for rent or for debt or limiting Lessor with respect to the election
of remedies; and (d) any other rights which might otherwise limit or modify any
of Lessor's rights or remedies under this ARTICLE XVI.
SECTION 16.4. POWER OF SALE AND FORECLOSURE.
(a) As it is the intent of the parties pursuant to ARTICLE XXIV that
the transaction reflected in this Lease shall constitute a deed of trust
financing as described therein, Lessee hereby grants a Lien, and ▇▇▇▇▇▇ does
hereby irrevocably warrant, grant, bargain, sell, transfer, convey and assign
the Leased Property to the Public Trustee of Arapahoe County, Colorado ("DEED OF
TRUST TRUSTEE") IN TRUST FOREVER WITH POWER OF SALE for the benefit and security
of Lessor, to secure all Obligations, and that, upon the occurrence of any Event
of Default, Lessor shall have the power and authority, to the extent provided by
law, to direct Deed of Trust Trustee, after proper notice and lapse of such time
as may be required by law, to sell the Leased Property at the time and place of
sale fixed by Deed of Trust Trustee in such notice of sale, either as a whole,
or in separate lots or parcels or items and in such order it may elect, at
auction to the highest bidder for cash in lawful money of the United States of
America payable at the time of sale; accordingly, it is acknowledged that A
POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT; A POWER OF SALE MAY ALLOW
DEED OF TRUST TRUSTEE TO TAKE THE LEASED PROPERTY AND SELL IT WITHOUT GOING TO
COURT IN A FORECLOSURE ACTION UPON DEFAULT BY LESSEE UNDER THIS INSTRUMENT, and
upon the occurrence of
36
a Lease Event of Default, Lessor, in lieu of or in addition to directing Deed of
Trust Trustee to exercise any power of sale hereinabove given, may proceed by a
suit or suits in equity or at law, whether for a foreclosure hereunder, or for
the sale of the Leased Property, or against Lessee on a recourse basis for the
Lease Balance and all accrued and unpaid interest on the Loans, all accrued and
unpaid Yield on the Certificate Amounts, and all other amounts owing by Lessee
under the Operative Documents with respect to the Leased Property or pursuant to
the Operative Documents, or for the specific performance of any covenant or
agreement herein contained or in aid of the execution of any power herein
granted, or for the appointment of a receiver pending any foreclosure hereunder
or the sale of the Leased Property, or for the enforcement of any other
appropriate legal or equitable remedy.
(b) Should Lessor elect to foreclose by exercise of the power of sale
herein contained, Lessor shall notify Deed of Trust Trustee in the manner then
required by law and shall deposit with Deed of Trust Trustee this Lease and the
Instruments and such receipts and evidence of expenditures made and secured
hereby as Deed of Trust Trustee may require.
Upon receipt of such notice of Lessor and at the direction of Lessor, Deed of
Trust Trustee shall cause to be recorded, published and delivered such notices
of default and notices of sale as may then be required by law and by this Lease.
Deed of Trust Trustee shall, only at the direction of Lessor and without demand
on Lessee, after such time as may then be required by law and after recordation
of such notice of default and after notice of sale having been given as required
by law, sell the Leased Property at the time and place of sale fixed by it in
such notice of sale, either as whole or in separate lots or parcels or items as
Lessor shall deem expedient, and in such order as it may determine, at public
auction to the highest bidder for cash in lawful money of the United States
payable at the time of sale, or as otherwise may then be required by law. Deed
of Trust Trustee shall deliver to such purchaser or purchasers thereof its good
and sufficient deed or deeds conveying the property so sold, but without any
covenant or warranty, express or implied. The recitals in such deed of any
matters or facts shall be conclusive proof of the truthfulness thereof. Any
person, including, without limitation, Lessee, Deed of Trust Trustee or Lessor,
may purchase at such sale. Deed of Trust Trustee may in the manner provided by
law postpone sale of all or any portion of the Leased Property.
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(c) After deducting all costs, fees and expenses of Deed of Trust
Trustee and of the trust created hereby, including costs of evidence of title in
connection with sale and the payment of the Deed of Trust Trustee's fees
actually incurred not to exceed the amount which may be provided for in this
Lease, Deed of Trust Trustee shall apply the proceeds of sale, subject to
Section 5.3 of the Participation Agreement, in the following priority, to
payment of: (i) first, all sums expended under the terms hereof, not then
repaid, with accrued interest at the Overdue Rate; (ii) second, other sums then
secured hereby; and (iii) the remainder, if any, to the person or persons
legally entitled thereto.
(d) Subject to Applicable Laws, Deed of Trust Trustee may postpone
sale of all or any portion of the Leased Property and the other Teletech
Collateral by public announcement at such time and place of sale, and from time
to time thereafter may postpone such sale by public announcement or subsequently
noticed sale, and without further notice make such sale at the time fixed by the
last postponement, or may, in its discretion, give a new notice of sale.
(e) Upon the occurrence of an Event of Default hereunder, Lessor may
proceed, in any sequence: (i) to exercise its rights hereunder with respect to
all or any portion of the Leased Property and the other Teletech Collateral; and
(ii) to exercise its rights with respect to all or any portion of the Leased
Property and the other Teletech Collateral which is personal property in
accordance with the provisions of the UCC (defined below).
(f) Subject always to the then existing rights, if any, of the Lessee
under the Lease, Lessor may proceed to exercise all rights, privileges and
remedies of Lessor under the Lease and may exercise all such rights and remedies
either in the name of Lessee or in the name of Lessor for the use and benefit of
Lessor.
SECTION 16.5. ASSIGNMENT OF LEASES AND RENTS.
(a) Lessee hereby absolutely assigns and transfers to Lessor the
following:
(i) All subleases, written or oral, now in existence or
hereafter arising and all agreements in each case entered into by
Lessee (or any person holding an interest in all or any portion of the
Leased Property derived through ▇▇▇▇▇▇'s interest as lessee under the
Lease) for
38
the use and occupancy of all or any portion of the Leased Property
together with all the right, power and authority of Lessee to alter,
modify or change the terms of such leases or agreements or to
surrender, cancel or terminate such leases or agreements together with
any and all extensions and renewals thereof and any and all further
leases or agreements upon all or any part of the Leased
Property(collectively, the "SUBLEASES");
(ii) Any and all guarantees of the lessee's (the "SUBLESSEE'S")
obligations under any of such Subleases;
(iii) The immediate and continuing right to collect and receive
all of the rents, income, receipts, revenues, issues and profits now
due or which may become due or to which Lessee may now or shall
hereafter (whether during any applicable period of redemption, or
otherwise) become entitled or may demand or claim, arising or issuing
from or out of the Subleases, or from or out of the Leased Property or
any part thereof, including but not limited to: minimum rents,
additional rents, percentage rents, parking maintenance charges or
fees, tax and insurance contributions, proceeds of sale of
electricity, gas, chilled and heated water and other utilities and
services, deficiency rents and liquidated damages following a Sublease
event of default or late payment of rent, premiums payable by any
Sublessee upon the exercise of a cancellation privilege provided for
in any Sublease and all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability caused by
destruction or damage to the Leased Property, together with any and
all rights and claims of any kind which Lessee may have against any
Sublessee under any Sublease or any subtenants or occupants of the
Leased Property(all such money, rights and claims being hereinafter
collectively called the "SUBRENTS"), LESS AND EXCEPTING THEREFROM,
HOWEVER, any sums which by the express provisions of any Sublease are
payable directly to any governmental authority or to any other person,
firm or corporation other than the lessor under any Sublease or any
person, firm or corporation which controls or is controlled by or is
under common control with the lessor under any Sublease.
39
(b) Lessee hereby constitutes and appoints Lessor the true and
lawful attorney-in-fact, coupled with an interest, of Lessee,
empowered and authorized in the name, place and stead of Lessee to
demand, sue for, attach, levy, recover and receive all Subrents and
any premium or penalty payable upon the exercise by any Sublessee
under any Sublease of a privilege of cancellation originally provided
in such Sublease and to give proper receipts, releases and
acquittances therefor and after deducting expenses of collection, to
apply the net proceeds as a credit upon any portion of the
indebtedness secured hereby selected by Lessor notwithstanding the
fact that such portion of said indebtedness may not then be due and
payable or that such portion of said indebtedness is otherwise
adequately secured, and ▇▇▇▇▇▇ does hereby authorize and direct any
such Sublessee to deliver such payment to Lessor, in accordance with
this Lease, and Lessee hereby ratifies and confirms all that its said
attorney, Lessor, shall do or cause to be done by virtue of the powers
granted hereby. The foregoing appointment is irrevocable and
continuing and such rights, powers and privileges shall be exclusive
in Lessor, its successors and assigns, so long as any part of the
obligations secured hereby remain unpaid or undischarged. A Sublessee
need not inquire into the authority of Lessor to collect any Subrents,
and its obligations to Lessee pursuant to the relevant Sublease shall
be absolutely discharged to the extent of any payment to Lessor.
Lessee hereby constitutes and appoints Lessor the true and lawful
attorney-in-fact, coupled with an interest, of Lessee empowered and
authorized in the name and stead of Lessee to subject and subordinate
at any time and from time to time any Sublease or any part thereof to
the lien and security interest of this Lease or any other mortgage,
deed of trust or security agreement on the Leased Property, or to
request or require such subordination, where such reservation, option
or authority was reserved to Lessee under any such Sublease, or in any
case where Lessee otherwise would have the right, power or privilege
so to do. The foregoing appointment is irrevocable and continuing and
such rights, powers and privileges shall be exclusive in Lessor, its
successors and assigns so long as any part of the obligations secured
hereby remain unpaid or undischarged, and Lessee hereby warrants that
Lessee has not, at any time prior to the date hereof, exercised any
such rights or assigned the right to do so.
40
(c) So long as the obligations secured hereby remain unpaid and
undischarged and unless Lessor otherwise consents in writing, the fee
and the leasehold estates in and to the Leased Property shall not
merge but shall always remain separate and distinct, notwithstanding
the union of such estates either in Lessee, Lessor, any sublessee or
any third party by purchase or otherwise.
(d) The acceptance by Lessor of the assignment provided in this
SECTION 16.5(d), together with all of the rights, powers, privileges
and authority created in this paragraph or elsewhere in this Lease,
shall not, prior to entry upon and taking possession of the Leased
Property by Lessor, be deemed or construed to constitute Lessor a
"mortgagee in possession" nor thereafter or at any time or in any
event obligate Lessor to appear in or defend any action or proceeding
relating to the Subleases, the Rents or the Leased Property or to take
any action hereunder or to expend any money or incur any expenses or
perform or discharge any obligation, duty or liability under any
Sublease or to assume any obligation or responsibility for any
security deposits or other deposits delivered to Lessee by any
Sublessee and not assigned and delivered to Lessor, nor shall Lessor
be liable in any way for any injury or damage to person or property
sustained by any person or persons, firm or corporation in or about
the Leased Property.
SECTION 16.6. GRANT OF SECURITY INTEREST. In addition to the Lien granted
pursuant to SECTION 16.4, Lessee hereby grants a security interest to Lessor in
the Teletech Collateral which constitutes tangible personal property. This Lease
shall constitute a security agreement within the meaning of the Uniform
Commercial Code as enacted in the state in which the Leased Property is located
("UCC"), and if an Event of Default has occurred and is continuing, Lessor
shall, in addition to all other rights available at law or equity, have all of
the rights provided to a secured party under Article 9 of the UCC.
SECTION 16.7. LIMITATION OF RECOURSE DURING THE INTERIM TERM.
Notwithstanding any provision to the contrary contained in this ARTICLE XVI or
in any provision of any of the other Operative Documents, prior to the Base Term
Commencement Date, the aggregate amount payable by Lessee on a recourse basis
under this ARTICLE XVI and under SECTION 18.2 as the result of a Lease Event of
Default which is not a Full Recourse Construction Period Event of Default
41
or otherwise payable directly by Lessee or Construction Agent on a recourse
basis pursuant to Section 4.3(a) of the Participation Agreement shall be subject
to the limitations on recourse liability set forth in Article XIV of the
Participation Agreement.
ARTICLE XVII
LESSOR'S RIGHT TO CURE
SECTION 17.1. ▇▇▇▇▇▇'S RIGHT TO CURE LESSEE'S LEASE DEFAULTS. Lessor,
without waiving or releasing any obligation or Lease Event of Default, may (but
shall be under no obligation to), upon five (5) Business Days' prior written
notice to Lessee (except in the case of a condition Lessor reasonably determines
may be an emergency or a condition or event which if not promptly remedied may
materially and adversely affect the Fair Market Value of the Leased Property, in
which case only 24 hours' advance notice to Lessee shall be required), remedy
any Event of Default for the account and at the sole cost and expense of ▇▇▇▇▇▇,
including the failure by Lessee to maintain the insurance required by ARTICLE
XIII, and may, to the fullest extent permitted by law, and notwithstanding any
right of quiet enjoyment in favor of ▇▇▇▇▇▇, enter upon the Leased Property for
such purpose and take all such action thereon as may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of Lessee. All reasonable
out-of-pocket costs and expenses so incurred (including reasonable fees and
expenses of counsel), together with interest thereon at the Overdue Rate from
the date on which such sums or expenses are paid by Lessor, shall be paid by
Lessee to Lessor on demand as Supplemental Rent.
ARTICLE XVIII
PURCHASE PROVISIONS
SECTION 18.1. EARLY AND END OF TERM PURCHASE OPTIONS.
(a) Subject to the conditions contained herein and without limitation
of Lessee's purchase obligation pursuant to SECTION 18.2, on (1) any Scheduled
Payment Date following the second anniversary of the date that the Base Term
Commencement Date has commenced with respect to all of the Leased Property and
provided Lessee has not elected the Sale Option or (2) any Business Day after
the occurrence and during the continuance of a Lease Event of Default of the
types described in CLAUSE (ii) of the next sentence, Lessee may, at its option,
purchase all of the Leased
42
Property (the "EARLY TERMINATION OPTION") at a price equal to the Purchase
Amount. Lessee's right to purchase the Leased Property pursuant to this SECTION
18.1 shall terminate automatically and without notice upon (i) the occurrence of
a Lease Event of Default arising as a result of an Insolvency Event, or (ii)
upon the occurrence of any other Lease Event of Default, unless in the case of a
Lease Event of Default described in this CLAUSE (ii) Lessee delivers a written
notice of its election to exercise this option to purchase not less than three
(3) Business Days prior to the date of the purchase and consummates the purchase
within fifteen (15) Business Days following the occurrence of such Event of
Default. In order to exercise its option to purchase the Leased Property
pursuant to this SECTION 18.1 and except as provided for in CLAUSE (ii) of the
foregoing sentence, Lessee shall give to Lessor not less than ten (10) days'
prior written notice of such election to exercise, which election shall be
irrevocable when made. If Lessee exercises its option pursuant to this SECTION
18.1 then, upon ▇▇▇▇▇▇'s receipt of all amounts due in connection therewith,
Lessor shall transfer to Lessee all of Lessor's right, title and interest in and
to the Leased Property in accordance with the procedures set forth in SECTION
21.1, such transfer to be effective as of the date specified in the Purchase
Notice.
(b) PARTIAL SITE PURCHASE. In addition to Lessee's option to purchase
the Leased Property as provided above, Lessee also shall have the option to
purchase that portion of the Land (not to exceed three (3) acres) substantially
identical to the real property depicted on EXHIBIT B attached hereto (the
"RELEASE PARCEL") upon satisfaction of the following conditions: (i) No Event of
Default shall have occurred, (ii) Lessee shall deliver to Lessor, Administrative
Agent and the Participants an Appraisal setting forth the Fair Market Value (as
separate and independent pieces of property) of the Release Parcel as of the
date of purchase and the remaining portion of the Leased Property, (iii) the
purchase price for the Release Parcel being purchased shall be equal to the
product of (A) a fraction the numerator of which is the Fair Market Value of the
portion being purchased as determined in such Appraisal, and the denominator of
which is the Fair Market Value of the Release Parcel and the remaining portion
of the Leased Property as determined in such Appraisal and (B) the Lease
Balance, which purchase price shall be applied to the Lease Balance, (iv) the
Release Parcel and the remaining portion of the Leased Property shall each
constitute a legal parcel under Applicable Laws regarding subdivision, (v) the
remaining portion of the Leased Property shall not be dependent upon the Release
Parcel for
43
services, utilities, parking or access unless perpetual easements have been
granted for the benefit of the remaining portion of the Leased Property in form
satisfactory to the Required Participants and otherwise in accordance with
Applicable Laws regarding subdivision and zoning, (vi) any improvements situated
on the remaining portion of the Leased Property shall be situated entirely on
the remaining portion of the Leased Property and no portion of the improvements
situated on the remaining portion of the Leased Property shall be situated on
the portion of the Release Parcel, (vii) Lessee shall deliver to Lessor,
Administrative Agent and the Participants a (x) Title Policy complying with the
requirements of Section 6.1(n) of the Participation Agreement, or (y)
endorsements to the existing Title Policies satisfactory to the Participants, in
either case insuring, among other things, the continued lien priority of the
Liens in favor of Administrative Agent and including endorsements with respect
to the subdivision and zoning, (viii) Lessee shall execute and deliver such
modifications, amendments or supplements to the Operative Documents to reflect
the sale of the Release Parcel and the payment of the purchase price thereof as
reasonably requested by Lessor or Administrative Agent.
SECTION 18.2. ACCELERATION OF LEASED PROPERTY PURCHASE.
(a) Lessee shall be obligated to purchase for an amount equal to the
Purchase Amount Lessor's interest in all of the Leased Property (notwithstanding
any prior election to exercise its Early Termination Option pursuant to SECTION
18.1) (i) automatically and without notice upon the occurrence of a Lease Event
of Default resulting from an Insolvency Event, and (ii) as provided for in
SECTION 16.2(e) upon written demand of Lessor upon the occurrence of any other
Lease Event of Default.
(b) Any purchase under this SECTION 18.2 shall be in accordance with
the procedures for transfer set forth in SECTION 21.1.
ARTICLE XIX
END OF TERM OPTIONS
SECTION 19.1. END OF TERM OPTIONS. At least two hundred seventy (270) days
before the scheduled expiration date of the Term, Lessee shall, by delivery of
written notice to Lessor and each Agent, exercise one of the following options:
44
(a) Renew this Lease with respect to the Leased Property for an additional
one-year term (each, a "LEASE RENEWAL TERM") on the terms and conditions set
forth herein and in the other Operative Documents (the "RENEWAL OPTION");
PROVIDED, HOWEVER, that the Renewal Option shall not be available during the
second Lease Renewal Term; or
(b) Purchase for cash for the Purchase Amount all of the Leased Property
on the last day of the Term (the "PURCHASE OPTION"); and if Lessee shall have
elected to purchase the Leased Property, Lessor shall, upon the payment to
Lessor of the Purchase Amount then due and payable by Lessee under the Operative
Documents, transfer all of Lessor's right, title and interest in and to the
Leased Property pursuant to SECTION 21.1; or
(c) Sell all of the Leased Property on behalf of Lessor for cash to a
single purchaser not in any way affiliated with Lessee, any of its Affiliates on
the last day of the Term (the "SALE OPTION"). ▇▇▇▇▇▇'s right to sell the Leased
Property pursuant to the Sale Option shall be conditioned upon and subject to
the fulfillment by Lessee of each of the terms and conditions set forth in
ARTICLE XX.
SECTION 19.2. ELECTION OF OPTIONS. To the extent that the Renewal Option is
available, unless Lessee shall have affirmatively elected in accordance herewith
the Purchase Option or the Sale Option, Lessee shall be deemed to have elected
the Renewal Option. If the Renewal Option is no longer available, unless Lessee
shall have (a) affirmatively elected the Sale Option within the time period
provided for in SECTION 19.1 and (b) satisfied each of the requirements in
ARTICLES XX and XXI, Lessee shall be deemed to have elected the Purchase Option.
In addition, the Sale Option shall automatically be revoked if there exists a
Lease Default, Lease Event of Default, Significant Casualty or Significant
Condemnation at any time after the Sale Option is properly elected or Lessee
fails to comply with each of the terms and conditions set forth at ARTICLES XX
and XXI (including ▇▇▇▇▇▇'s obligation to sell the Leased Property in accordance
with the terms and conditions set forth at ARTICLES XX and XXI, on the last day
of the Term) and Lessor shall be entitled to exercise all rights and remedies
provided in ARTICLE XVI. Lessee may not elect the Sale Option if there exists on
the date the election is made a Default, an Event of Default, Significant
Casualty or Significant Condemnation. Any election by ▇▇▇▇▇▇ pursuant to SECTION
19.1 shall be irrevocable at the time made.
45
SECTION 19.3. RENEWAL OPTIONS. The exercise of any Renewal Option by Lessee
shall be subject to satisfaction of the following conditions:
(i) on the Expiration Date then in effect no Lease Event of Default
or Lease Default shall have occurred and be continuing, and on the date
Lessee gives notice of its exercise of the Renewal Option, no Lease Event
of Default or Lease Default shall have occurred and be continuing; and
(ii) Lessee shall not have exercised the Sale Option or the Purchase
Option.
▇▇▇▇▇▇'s exercise of a Renewal Option shall be deemed to be a representation by
▇▇▇▇▇▇ that on both the Expiration Date then in effect and the date Lessee gives
notice of its exercise of the Renewal Option, no Event of Default or Lease
Default shall have occurred and be continuing.
ARTICLE XX
SALE OPTION
SECTION 20.1. SALE OPTION PROCEDURES. Lessee's effective exercise and
consummation of the Sale Option with respect to the Leased Property shall be
subject to the due and timely fulfillment of each of the following provisions as
to the Leased Property as of the dates set forth below.
(a) Lessee shall have given to Lessor and Lenders written notice of
▇▇▇▇▇▇'s exercise of the Sale Option in accordance with SECTION 19.1.
(b) Prior to the Expiration Date, Lessee shall furnish to Lessor,
Administrative Agent, the Participants and, the independent purchaser hereunder
a reasonably current Environmental Audit dated no earlier than forty-five (45)
days prior to the Expiration Date and addressed to each such party. Such
Environmental Audit shall be prepared by an environmental consultant selected by
Lessor in Lessor's discretion and shall contain conclusions satisfactory to the
Participants and such purchaser as to the environmental status of the Leased
Property. If any such Environmental Audit indicates any exceptions, Lessee shall
take such remedial action as shall be necessary to enable delivery, and Lessee
shall cause to be delivered prior to the
46
Expiration Date, a Phase Two environmental assessment by such environmental
consultant and a written statement by such environmental consultant indicating
that all such exceptions have been remedied in compliance with Applicable Laws.
(c) Lessor shall at Lessee's expense be entitled to perform such
investigation, including obtaining reports of engineers and other experts as to
the condition and state of repair and maintenance of the Leased Property
required by this Lease and as to the compliance of the Leased Property with
Applicable Laws and regulations including Environmental Laws, as it deems
appropriate. Lessee, at its sole cost and expense, shall cause the repair or
other remediation of any discrepancies between the actual condition of the
Leased Property and the condition required under this Lease, such repair or
remediation to be completed not later than the Expiration Date.
(d) No Event of Default or Default shall exist on or at any time
following the date of the exercise of the Sale Option.
(e) On the date of ▇▇▇▇▇▇'s election of the Sale Option and upon
surrender of the Leased Property, (i) the Leased Property shall be in the
condition required by SECTION 9.1 and (ii) Lessee shall have completed or caused
to be completed all Financed Improvements, in accordance with the Approved Plans
and Specifications, and Modifications commenced prior to the Expiration Date,
and Lessee shall have caused to be completed prior to the Expiration Date the
repair and rebuilding of the affected portions of the Leased Property suffering
a Casualty or Condemnation.
(f) Lessee shall, as nonexclusive agent for Lessor, diligently pursue
efforts to obtain the highest cash purchase price for the Leased Property.
Lessee shall be responsible for hiring brokers and making the Leased Property
available for inspection by prospective purchasers, and all marketing of the
Leased Property shall be at Lessee's expense. Lessee shall promptly upon request
permit inspection of the Leased Property and any Leased Property Records by
▇▇▇▇▇▇, any Participant and any potential purchasers, and shall otherwise do all
things necessary to sell and deliver possession of the Leased Property to any
purchaser.
(g) Lessee shall diligently pursue efforts to procure bids from one
or more bona fide prospective purchasers to purchase the Leased Property.
47
(h) Lessee shall submit all bids to Lessor and the Participants, and
Lessor shall have the right to review the same and to submit any one or more
bids. All bids shall be on an all-cash basis unless Lessor and the Required
Participants shall otherwise agree in their sole discretion. In the event Lessee
receives any bid, Lessee shall within five (5) Business Days after receipt
thereof, and at least twenty (20) Business Days prior to the Lease Expiration
Date, certify to Lessor in writing the amount and terms of such bid, the name
and address of the party (who shall not be Lessee, Guarantor or any Lessee Group
Affiliate or any Person with whom Lessee, Guarantor or any Lessee Group
Affiliate has an understanding or arrangement regarding the future use,
possession or ownership of the Leased Property), but who may be a Participant,
any Affiliate thereof, or any Person contacted by any Participant (other than
any Person referred to in the foregoing parenthetical clause) submitting such
bid. If the Gross Proceeds to which Lessee desires to accept is less than the
Lease Balance, ▇▇▇▇▇▇'s rights hereunder shall be further conditioned upon
demonstrating that such proposed bid is for an amount at least equal to the Fair
Market Value of the Leased Property as established by the Appraisal described at
SECTION 20.1(m) below. All bids shall be on an all-cash basis unless the
Required Participants, each Agent and Lessee shall otherwise agree.
(i) In connection with any such sale of Leased Property, Lessee shall
provide to the purchaser all customary seller's indemnities, representations and
warranties regarding title, absence of Liens (except Lessor Liens) and the
condition of such Leased Property. Lessee shall have obtained, at its cost and
expense, all required governmental and regulatory consents and approvals and
shall have made all filings as required by Applicable Laws in order to carry out
and complete the transfer of the Leased Property. As to Lessor, any such sale
shall be made on an "as is, with all faults" basis without representation or
warranty by Lessor, other than the absence of Lessor Liens. Any agreement as to
such sale shall be made subject to ▇▇▇▇▇▇'s rights hereunder and shall be in
form and substance reasonably satisfactory to Lessor.
(j) Lessee shall pay or cause to be paid directly, and not from the
sale proceeds, any prorations, credits, costs, Impositions and expenses of or
arising from the sale of the Leased Property, whether incurred by Lessor or
Lessee, including the cost of all title insurance, surveys, environmental
reports, appraisals, transfer taxes, Lessor's reasonable attorneys' fees,
▇▇▇▇▇▇'s attorneys' fees, commissions, escrow fees, recording fees, and all
48
applicable documentary and other transfer and document taxes and Impositions.
(k) On the Lease Expiration Date, Lessee shall pay to Lessor (or in
the case of Supplemental Rent, to the Person entitled thereto) an amount equal
to (i) the Sale Option Recourse Amount PLUS (ii) all accrued and unpaid Rent
(including Supplemental Rent, if any) and all other amounts hereunder which have
accrued or will accrue prior to or as of the Expiration Date for the Leased
Property, in the type of funds specified in SECTION 3.4 hereof.
(l) Lessee shall pay to Lessor on or prior to the Expiration Date the
amounts, if any, required to be paid pursuant to Article XIII of the
Participation Agreement.
(m) Upon consummation of a sale of the Leased Property, Lessee shall
pay directly to Lessor the gross proceeds (the "GROSS PROCEEDS") of such sale
(I.E., without deduction for any marketing, closing or other costs, prorations
or commissions); PROVIDED, HOWEVER, that if the sum of (x) the Gross Proceeds
from such sale PLUS (y) the Sale Option Recourse Amount received by Lessor
pursuant to CLAUSE (j)(i) PLUS (z) amounts received by Lessor pursuant to
Section 13.3 of the Participation Agreement exceeds the Lease Balance for the
Leased Property as of such date, then the excess shall be paid to Lessee on such
Expiration Date.
(n) If the bid that Lessee proposes to accept and which Lessee
submits pursuant to SECTION 20.1(g) is for an amount less than the Lease
Balance, then Lessor shall promptly following the receipt of such bid, engage an
appraiser, reasonably satisfactory to the Participants and Lessee, at Lessee's
expense, to determine (by appraisal methods reasonably satisfactory to the
Required Participants) the Fair Market Value of the Leased Property as of (i)
the Expiration Date and (ii) the first day of any Lease Renewal Term in which
the Sale Option is elected. The Appraiser's conclusion relating to the first day
of the Lease Renewal Term shall be used in calculating the "Recourse Deficiency
Amount." A copy of such appraisal shall be delivered to each of the Participants
not later than five (5) Business Days prior to the Expiration Date. The
appraiser shall be instructed to assume that the Leased Property is in the
condition required by and has been maintained in accordance with this Lease.
If one or more of the foregoing provisions shall not be fulfilled as of the
date set forth above with respect to the Leased
49
Property, including Lessee's obligation at Section 20.1(g) to accept a bid for
not less than the Fair Market Value of the Leased Property and sell the Leased
Property on the Expiration Date, then Lessor shall declare by written notice to
Lessee the Sale Option to be null and void (whether or not it has been
theretofore exercised by Lessee), in which event all of Lessee's rights under
this SECTION 20.1 shall immediately terminate and Lessee shall be obligated to
purchase the Leased Property pursuant to SECTION 18.2 on the Expiration Date.
Except as expressly set forth herein, Lessee shall have no right, power or
authority to bind Lessor in connection with any proposed sale of the Leased
Property.
SECTION 20.2. CERTAIN OBLIGATIONS CONTINUE. During the period following
▇▇▇▇▇▇'s exercise of the Sale Option, the obligation of Lessee to pay Rent with
respect to the Leased Property (including the installment of Rent due on the
Expiration Date for the Leased Property) shall continue undiminished. Lessor
shall have the right, but shall be under no duty, to solicit bids, to inquire
into the efforts of ▇▇▇▇▇▇ to obtain bids or otherwise to take action in
connection with any such sale, other than as expressly provided in this ARTICLE
XX.
ARTICLE XXI
PROCEDURES RELATING TO PURCHASE OR SALE OPTION; SUPPLEMENTAL RENT
SECTION 21.1. PROVISIONS RELATING TO CONVEYANCE OF THE LEASED PROPERTY UPON
PURCHASE BY ▇▇▇▇▇▇, SALES OR CERTAIN OTHER EVENTS.
(a) In connection with any termination of this Lease and purchase of
the Leased Property by Lessee in accordance with this Lease, then, upon the date
on which this Lease is to terminate with respect to the Leased Property and upon
tender by Lessee of the amounts set forth in ARTICLE XV, SECTIONS 16.2(e), 18.1,
18.2 or 19.1(b), as applicable:
(i) Lessor shall execute and deliver to Lessee (or to ▇▇▇▇▇▇'s
designee) at Lessee's cost and expense a warranty deed of ▇▇▇▇▇▇'s interest
in the Leased Property in recordable form and otherwise in conformity with
local custom and without representation and warranty except as to the
absence of any Lessor Liens attributable to Lessor;
50
(ii) the Leased Property shall be conveyed to Lessee "AS IS" and
in its then present physical condition; and
(iii) Lessor shall execute and deliver to Lessee and, if
requested by ▇▇▇▇▇▇, ▇▇▇▇▇▇'s title insurance company, an affidavit as to
the absence of Lessor Liens attributable to Lessor and shall execute and
deliver to Lessee a statement of termination of this Lease to the extent
such Operative Document relates to the Leased Property, but not with
respect to any term or condition which is meant to survive termination, and
shall use its best efforts to cause Administrative Agent to execute and
deliver a release of the Deed of Trust relating to the Leased Property, a
release of the Assignment of Leases and Rents, releases of any Liens
created by the Operative Documents attributable to Administrative Agent,
and termination statements for any financing statements which are then of
record naming Administrative Agent as the secured party.
(b) If Lessee properly exercises the Sale Option, then Lessee shall, on
the Expiration Date, and at its own cost, transfer possession of the Leased
Property to the independent purchaser(s) thereof in the case of a sale by
surrendering the same into the possession of such purchaser, free and clear of
all Liens (other than Permitted Liens of the types described in clauses (iii),
(v), (vi), (vii) and (viii) of the definition of Permitted Liens, in the
condition required by SECTION 20.1(d) and in compliance with Applicable Laws and
the provisions of this Lease, and the Lessee shall execute and deliver to the
purchaser, at the Lessee's cost and expense, a special warranty deed, a bill of
sale with respect to any personal property, in each case in recordable form and
otherwise in conformity with local custom and free and clear of all Liens other
than Permitted Liens of the types described in clauses (iii), (v), (vi), (vii)
and (viii) of the definition of Permitted Liens; Lessee shall execute and
deliver to the purchaser and the purchaser's title insurance company an
affidavit as to the absence of any Liens (other than Permitted Liens), and such
other affidavits and certificates reasonably requested by any title insurance
company insuring title to the Leased Property, as well as a FIRPTA affidavit,
and an instrument in recordable form declaring Lessee's rights under this Lease
to be terminated on the date of closing of the sale of the Leased Property;
Lessee shall, on and within a reasonable time before and up to one year after
such sale of the Leased Property, cooperate reasonably with the Lessor and any
purchaser of the Leased Property in order to facilitate the
51
purchase and use by such purchaser of the Leased Property, which cooperation
shall include the following, all of which Lessee shall do on or before such
sale, or as soon thereafter as is reasonably practicable: providing all books
and records regarding the maintenance and ownership of the Leased Property and
all know-how, data and technical information relating thereto, granting or
assigning all licenses necessary for the ownership, use and maintenance of the
Leased Property and cooperating reasonably in seeking and obtaining all
necessary Governmental Action. The obligations of the Lessee under this
paragraph shall survive the expiration or termination of this Lease.
ARTICLE XXII
ACCEPTANCE OF SURRENDER
SECTION 22.1. ACCEPTANCE OF SURRENDER. No surrender to Lessor of this Lease
or of the Leased Property or of any part of any thereof or of any interest
therein shall be valid or effective unless agreed to and accepted in writing by
Lessor and, prior to the payment or performance of all obligations under the
Loan Agreement and the Trust Agreement and termination of the Commitments, the
Participants, and no act by Lessor or the Participants or any representative or
agent of Lessor or the Participants, other than a written acceptance, shall
constitute an acceptance of any such surrender.
ARTICLE XXIII
NO MERGER OF TITLE
SECTION 23.1. NO MERGER OF TITLE. There shall be no merger of this Lease or
of the leasehold estate created hereby solely by reason of the fact that the
same Person may acquire, own or hold, directly or indirectly, in whole or in
part, (a) this Lease or the leasehold estate created hereby or any interest in
this Lease or such leasehold estate, (b) the fee interest in the Leased
Property, except as may expressly be stated in a written instrument duly
executed and delivered by the appropriate Person or (c) a beneficial interest in
Lessor.
52
ARTICLE XXIV
INTENT OF THE PARTIES
SECTION 24.1. NATURE OF TRANSACTION. It is the intention of the parties
that:
(a) the Overall Transaction (including, without limitation, the
transactions and activities during the Interim Term referred to or contemplated
by the Construction Agency Agreement), constitutes an operating lease from
Lessor to Lessee for purposes of Lessee's and Guarantor's financial reporting,
including, without limitation, under Financial Accounting Standards Board
Statement No. 13;
(b) for federal and all state and local income and transfer taxes and
for purposes of bankruptcy, insolvency, conservatorship and receivership law
(including the substantive law upon which bankruptcy, conservatorship and
insolvency and receivership proceedings are based) and real estate and Uniform
Commercial Code purposes:
(i) the Overall Transaction (including, without limitation, the
transactions and activities during the Interim Term referred to or
contemplated by the Construction Agency Agreement), constitute a financing
by the Participants to Lessee and preserves beneficial ownership in the
Leased Property in Lessee, Lessee will be entitled to all tax benefits
ordinarily available to owners of property similar to the Leased Property
for tax purposes (including, without limitation, depreciation) and the
obligations of Lessee to pay Basic Rent shall be treated as payments of
interest to the Participants, and the payment by ▇▇▇▇▇▇ of any amounts in
respect of the Lease Balance shall be treated as payments of principal to
the Participants;
(ii) in order to secure the obligations of Lessee now existing or
hereafter arising under any of the Operative Documents, this Lease creates,
and Lessee hereby grants, conveys, assigns, mortgages and transfers a
security interest or a lien, as the case may be, in the Leased Property and
the other Teletech Collateral, and ▇▇▇▇▇▇ does hereby irrevocably GRANT,
BARGAIN, SELL, ALIEN, REMISE, RELEASE, CONFIRM AND CONVEY to Deed of Trust
Trustee, and for the benefit of ▇▇▇▇▇▇ and the Participants, a Lien, deed
of trust and mortgage on
53
all right, title and interest of ▇▇▇▇▇▇ in and to the Leased Property and
the Land; and
(iii) the Deed of Trust creates Liens and security interests in
the Mortgaged Property in favor of Administrative Agent for the benefit of
all of the Participants to secure ▇▇▇▇▇▇'s payment and performance of the
Obligations.
Nevertheless, ▇▇▇▇▇▇ acknowledges and agrees that none of Lessor, Administrative
Agent, Arranger or any Participant has made any representations or warranties
concerning the tax, accounting or legal characteristics of the Operative
Documents or any aspect of the Overall Transaction and that Lessee has obtained
and relied upon such tax, accounting and legal advice concerning the Operative
Documents and the Overall Transaction as it deems appropriate; provided,
however, none of the Lessor, any Agent, Arranger or any Participant shall treat
the Overall Transaction for federal or state tax purposes other than as a
financing preserving beneficial ownership in the Leased Property in the Lessee
in the manner described in this SECTION 24.1(b).
(c) Specifically, but without limiting the generality of SUBSECTION
(b) of this SECTION 24.1, Lessor and Lessee further intend and agree that, with
respect to that portion of the Leased Property constituting personal property,
for the purpose of securing Lessee's obligations for the repayment of the
above-described loans from Lessor and the Participants to Lessee, (i) this Lease
shall also be deemed to be a security agreement and financing statement within
the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance
provided for hereby shall be deemed to be a grant by Lessee to Lessor, for the
benefit of the Participants, of a mortgage, lien and security interest in all of
▇▇▇▇▇▇'s present and future right, title and interest in and to such portion of
the Leased Property, including but not limited to ▇▇▇▇▇▇'s leasehold estate
therein and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, investments, securities or other property, whether in the
form of cash, investments, securities or other property to secure such loans,
effective on the date hereof, to have and to hold such interests in the Leased
Property unto Lessor, for the benefit of the Participants; (iii) the possession
by Lessor of notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 4-9-305 of the Uniform
54
Commercial Code; and (iv) notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from financial intermediaries,
bankers or agents (as applicable) of Lessee shall be deemed to have been given
for the purpose of perfecting such security interest under Applicable Laws.
Lessor and Lessee shall, to the extent consistent with this Lease, take such
actions and execute, deliver, file and record such other documents, financing
statements, mortgages and deeds of trust as may be necessary to ensure that, if
this Lease were deemed to create a security interest in the Leased Property in
accordance with this Section, such security interest would be deemed to be a
perfected security interest with priority over all Liens other than Permitted
Liens, under Applicable Laws and will be maintained as such throughout the Term.
ARTICLE XXV
MISCELLANEOUS
SECTION 25.1. SURVIVAL; SEVERABILITY; ETC. Anything contained in this Lease
to the contrary notwithstanding, all claims against and liabilities of Lessee or
Lessor arising from events commencing prior to the expiration or earlier
termination of this Lease shall survive such expiration or earlier termination.
If any term or provision of this Lease or any application thereof shall be
declared invalid or unenforceable, the remainder of this Lease and any other
application of such term or provision shall not be affected thereby. If any
right or option of Lessee provided in this Lease, including any right or option
described in ARTICLES XIV, XV, XVIII, XIX or XX, would, in the absence of the
limitation imposed by this sentence, be invalid or unenforceable as being in
violation of the rule against perpetuities or any other rule of law relating to
the vesting of an interest in or the suspension of the power of alienation of
property, then such right or option shall be exercisable only during the period
which shall end twenty-one (21) years after the date of death of the last
survivor of the descendants of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, the former President of
the United States, ▇▇▇▇▇ ▇▇▇▇, the deceased automobile manufacturer, and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, the founder of the Standard Oil Company, known to be alive on the
date of the execution, acknowledgment and delivery of this Lease.
SECTION 25.2. AMENDMENTS AND MODIFICATIONS. Subject to the requirements,
restrictions and conditions set forth in the Participation Agreement, neither
this Lease nor any provision
55
hereof may be amended, waived, discharged or terminated except by an instrument
in writing in recordable form signed by ▇▇▇▇▇▇ and ▇▇▇▇▇▇.
SECTION 25.3. NO WAIVER. No failure by Lessor or Lessee to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
upon a default hereunder, and no acceptance of full or partial payment of Rent
during the continuance of any such default, shall constitute a waiver of any
such default or of any such term. To the fullest extent permitted by law, no
waiver of any default shall affect or alter this Lease, and this Lease shall
continue in full force and effect with respect to any other then existing or
subsequent default.
SECTION 25.4. NOTICES. All notices, demands, requests, consents, approvals
and other communications hereunder shall be in writing and directed to the
address described in, and deemed received in accordance with the provisions of,
Section 14.3 of the Participation Agreement.
SECTION 25.5. SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Lease shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 25.6. HEADINGS AND TABLE OF CONTENTS. The headings and table of
contents in this Lease are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof.
SECTION 25.7. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
SECTION 25.8. GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES.
SECTION 25.9. HIGHEST LAWFUL RATE. All obligations of Lessee to make
payments hereunder or in connection with any transaction contemplated hereby
shall be subject to the provisions of Section 4.6 of the Participation
Agreement.
SECTION 25.10. ORIGINAL LEASE. The single executed original of this Lease
marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
56
COUNTERPART" on the signature page thereof and containing the receipt thereof of
Administrative Agent, on or following the signature page thereof shall be the
Original Executed Counterpart of this Lease (the "ORIGINAL EXECUTED
COUNTERPART"). To the extent that this Lease constitutes chattel paper, as such
term is defined in the Uniform Commercial Code, no security interest in this
Lease may be created through the transfer or possession of any counterpart other
than the Original Executed Counterpart.
SECTION 25.11. LIMITATIONS ON RECOURSE. The parties hereto agree that,
except as specifically set forth in the Lease or in any other Operative
Document, Bank shall have no personal liability whatsoever to Lessee or its
respective successors and assigns for any claim based on or in respect of this
Lease or any of the other Operative Documents or arising in any way from the
Overall Transaction; PROVIDED, HOWEVER, that Bank shall be liable in its
individual capacity (a) for its own willful misconduct or gross negligence (or
negligence in the handling of funds), (b) for any Tax based on, with respect to
or measured by any income, fees, commission, compensation or other amounts
received by it as compensation for services (including for acting as Lessor) or
otherwise under, or as contemplated by, the Operative Documents, (c) Lessor
Liens on the Leased Property which are attributable to it, (d) for its
representations and warranties made in its individual capacity in the
Participation Agreement or in any certificate or documents delivered pursuant
thereto, (e) for its failure to perform any of its covenants and agreements set
forth in the Participation Agreement or any other Operative Document, and (f) as
otherwise expressly provided in the Operative Documents.
SECTION 25.12. NOTICE OF POTENTIAL CLAIMANTS. Nothing contained in this
Lease shall be construed as constituting the consent or request of Lessor,
expressed or implied, to or for the performance by any contractor, mechanic,
laborer, materialman, supplier or vendor of any labor or services or for the
furnishing of any materials for any construction, alteration, addition, repair
or demolition of or to either Premises or any part thereof. NOTICE IS HEREBY
GIVEN THAT NEITHER LESSOR, NOR ANY PARTICIPANT, CERTIFICATE TRUSTEE, NOR
ADMINISTRATIVE AGENT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS
FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING THE PREMISES OR ANY
PART OR PORTION THEREOF THROUGH OR UNDER LESSEE, AND THAT NO MECHANICS' OR OTHER
LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE
INTEREST OF LESSOR, CERTIFICATE TRUSTEE, ADMINISTRATIVE
57
AGENT OR ANY PARTICIPANT IN AND TO ALL OR ANY PORTION OF THE LEASED PROPERTY.
SECTION 25.13. CONSTRUCTION LOAN. This Lease is a construction deed of
trust under the Uniform Commercial Code, to secure an obligation incurred for
the construction of an improvement on land. Any materials, equipment or supplies
used or intended for use in the construction, development, or operation of the
Leased Property, whether stored on or off the Leased Property, shall also be
subject to the lien of this Lease and Lessee, or ▇▇▇▇▇▇'s contractor if loan
proceeds are paid to such contractor, shall apply the loan proceeds to the
payment of lawful claims for labor and material furnished for such construction.
SECTION 25.14. FUTURE ADVANCES. This instrument will be deemed given to
secure not only existing financing but also future advances of up to $26,665,000
made pursuant to or as provided in the Operative Documents, whether such
advances are obligatory or to be made at the option of the Participants or
Lessor, or otherwise to the same extent as if such future advances were made on
the date of execution of this instrument, although there may be no financing
outstanding at the time any advance is made. To the fullest extent permitted by
law, the lien of this instrument shall be valid as to all such amounts,
including all future advances, from the time this instrument is recorded.
Nothing contained herein shall be deemed an obligation to make future advances
to the Lessee.
[END OF PAGE]
[SIGNATURE PAGES FOLLOW]
58
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed
and delivered as of the date first above written.
TELETECH SERVICES CORPORATION, as
Lessee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Title: SVP
-----------------------------
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not
in its individual capacity, but solely
as Trustee under the Trust Agreement
dated as of March 1, 2000, as Lessor and
Beneficiary
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Title: Assistant Secretary
-----------------------------
Payment Office:
S-1
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of the date hereof.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title: VP
-----------------------------
S-2
STATE OF COLORADO )
) SS.:
COUNTY OF _____________ )
The foregoing Lease was acknowledged before me, the undersigned Notary
Public, in the County of _____________, State of Colorado, this _____ day of
____________, 2000, by _____________________________, as ________________ of
TELETECH SERVICES CORPORATION, a Colorado corporation.
[Notarial Seal]
-----------------------------
Notary Public
My commission expires:
-----------------
S-3
STATE OF CONNECTICUT )
) SS.:
COUNTY OF _____________ )
The foregoing Lease was acknowledged before me, the undersigned Notary
Public, in the County of ___________, State of Connecticut, this _____ day of
____________, 2000, by ______________________________, as ____________________
of STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association.
[Notarial Seal]
-----------------------------
Notary Public
My commission expires:
-----------------
S-4
Appendix 1
(Definitions)
(To be attached)
S-5
EXHIBIT A TO LEASE
LEGAL DESCRIPTION OF LAND
PARCEL A:
LOT 1, BLOCK 1, KELMORE PARK WEST FILING NO. 2, AS AMENDED BY AFFIDAVIT OF
CORRECTION RECORDED DECEMBER 22, 1997 UNDER RECEPTION NO. A7162368, COUNTY OF
ARAPAHOE, STATE OF COLORADO.
PARCEL B:
A NON-EXCLUSIVE EASEMENT FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS TO AND
FROM DRY CREEK ROAD OVER AND ACROSS THE "ACCESS EASEMENT AREA" AS DEFINED AND AS
SET FORTH IN EASEMENT AND RESTRICTION AGREEMENT RECORDED JULY 15, 1997 UNDER
RECEPTION NO. A7085466.
S-6