LEASE AGREEMENT
Dated as of September 22, 2000
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
as Owner Trustee under the 1995 Pep Boys Leased Property Trust and
the 1997 Pep Boys II Leased Property Trust (as applicable),
jointly and severally, as Lessor, to the extent of such Person's interest in
any Property
and
THE PEP BOYS - MANNY, MOE & XXXX
THE PEP BOYS XXXXX XXX & XXXX OF CALIFORNIA,
PEP BOYS - MANNY, MOE & XXXX OF DELAWARE, INC.,
as Lessee
This Lease Agreement is subject to a security interest in favor of First Union
National Bank, as the agent for the Lenders and respecting the Security
Documents, as the agent for the Secured Parties (the "Agent") under a Security
Agreement dated as of September 22, 2000, between State Street Bank and Trust
Company of Connecticut, National Association, as Owner Trustee under the 1995
Pep Boys Leased Property Trust and the 1997 Pep Boys II Leased Property Trust
(as applicable) and the Agent, as amended, modified, extended, supplemented,
restated and/or replaced from time to time in accordance with the applicable
provisions thereof. This Lease Agreement has been executed in several
counterparts. To the extent, if any, that this Lease Agreement constitutes
chattel paper (as such term is defined in the Uniform Commercial Code as in
effect in any applicable jurisdiction), no security interest in this Lease
Agreement may be created through the transfer or possession of any counterpart
other than the original
counterpart containing the receipt therefor executed by the Agent on the
signature page hereof.
TABLE OF CONTENTS
ARTICLE I 1
1.1 Definitions. 1
1.2 Interpretation. 2
ARTICLE II 2
2.1 Property. 2
2.2 Lease Term. 2
2.3 Title. 3
2.4 Lease Supplements. 3
ARTICLE III 3
3.1 Rent. 3
3.2 Payment of Basic Rent. 3
3.3 Supplemental Rent. 3
3.4 Performance on a Non-Business Day. 4
3.5 Rent Payment Provisions. 4
ARTICLE IV 5
4.1 Taxes; Utility Charges. 5
ARTICLE V 5
5.1 Quiet Enjoyment. 5
ARTICLE VI 5
6.1 Net Lease. 5
6.2 No Termination or Abatement. 6
ARTICLE VII 6
7.1 Ownership of the Properties. 6
ARTICLE VIII 8
8.1 Condition of the Properties. 8
8.2 Possession and Use of the Properties. 8
8.3 Integrated Properties. 9
ARTICLE IX 9
9.1 Compliance With Legal Requirements,
Insurance Requirements and Manufacturer's
Specifications and Standards. 9
ARTICLE X 10
10.1 Maintenance and Repair; Return. 10
10.2 Environmental Inspection. 11
ARTICLE XI 12
11.1 Modifications. 12
ARTICLE XII 12
12.1 Warranty of Title. 12
ARTICLE XIII 13
13.1 Permitted Contests Other Than in Respect of Indemnities. 13
13.2 Impositions, Utility Charges, Other Matters; Compliance
with Legal Requirements. 14
ARTICLE XIV 14
14.1 Public Liability and Workers' Compensation Insurance. 14
14.2 Permanent Hazard and Other Insurance. 14
14.3 Coverage. 15
14.4 Additional Insurance Requirements. 16
ARTICLE XV 16
15.1 Casualty and Condemnation. 16
15.2 Environmental Matters. 19
15.3 Notice of Environmental Matters. 20
ARTICLE XVI 21
16.1 Termination Upon Certain Events. 21
16.2 Procedures. 21
ARTICLE XVII 21
17.1 Lease Events of Default. 21
17.2 Surrender of Possession. 24
17.3 Reletting. 24
17.4 Damages. 25
17.5 Power of Sale. 25
17.6 Final Liquidated Damages. 26
17.7 Environmental Costs. 26
17.8 Waiver of Certain Rights. 27
17.9 Assignment of Rights Under Contracts. 27
17.10 Remedies Cumulative. 27
ARTICLE XVIII 27
18.1 Lessor's Right to Cure Lessee's Lease Defaults. 27
ARTICLE XIX 28
19.1 Provisions Relating to Lessee's Exercise of its Purchase
Option. 28
19.2 No Purchase or Termination With Respect to Less than All
of a Property. 28
ARTICLE XX 28
20.1 Purchase Option or Sale Option-General Provisions. 28
20.2 Lessee Purchase Option. 29
20.3 Third Party Sale Option. 30
ARTICLE XXI 30
21.1 [Intentionally Omitted]. 30
ARTICLE XXII 30
22.1 Sale Procedure. 30
22.2 Application of Proceeds of Sale. 33
22.3 Indemnity for Excessive Wear. 33
22.4 Appraisal Procedure. 34
22.5 Certain Obligations Continue. 34
22.6 Out Parcel Sale. 34
ARTICLE XXIII 35
23.1 Holding Over. 35
ARTICLE XXIV 35
24.1 Risk of Loss. 35
ARTICLE XXV 36
25.1 Assignment. 36
25.2 Subleases. 36
ARTICLE XXVI 37
26.1 No Waiver. 37
ARTICLE XXVII 37
27.1 Acceptance of Surrender. 37
27.2 No Merger of Title. 37
ARTICLE XXVIII 37
28.1 Incorporation of Covenants. 37
ARTICLE XXIX 38
29.1 Notices. 38
ARTICLE XXX 38
30.1 Miscellaneous. 38
30.2 Amendments and Modifications. 39
30.3 Successors and Assigns. 39
30.4 Headings and Table of Contents. 39
30.5 Counterparts. 39
30.6 GOVERNING LAW. 39
30.7 Calculation of Rent. 39
30.8 Memoranda of Lease and Lease Supplements. 39
30.9 Allocations between the Lenders and the Holders. 40
30.10 Limitations on Recourse. 40
30.11 WAIVERS OF JURY TRIAL. 40
30.12 Exercise of Lessor Rights. 40
30.13 SUBMISSION TO JURISDICTION AND VENUE. 40
30.14 USURY SAVINGS PROVISION. 41
SCHEDULE
SCHEDULE 22.6 - Out Parcels Approved at Closing
EXHIBITS
EXHIBIT A - Lease Supplement No. ____
EXHIBIT B - Memorandum of Lease and Lease Supplement No. ____
LEASE AGREEMENT
THIS LEASE AGREEMENT dated as of September 22, 2000 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Lease") is between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, having its principal
office at 000 Xxxxxx Xxxxxx, Xxxxxxx Square, Hartford, CT 06103 as Owner
Trustee under the 1995 Pep Boys Leased Property Trust and the 1997 Pep Boys II
Leased Property Trust (as applicable), may be referred to herein to the extent
of their respective interest in any property jointly as lessor (the "Lessor"),
and THE PEP BOYS - MANNY, MOE & XXXX a Pennsylvania corporation, having its
principal place of business at 0000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, THE PEP BOYS XXXXX XXX & XXXX OF CALIFORNIA, a California
corporation, having its principal place of business at 0000 X. Xxxxxxxxx Xxxxxx
,Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 and PEP BOYS - MANNY, MOE & XXXX OF DELAWARE
,INC., a Delaware
corporation, having its principal place of business at 0000 X. Xxxxxxxxx Xxxxxx
, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, each as a lessee (jointly and severally,
the "Lessee").
W I T N E S S E T H:
A. WHEREAS, Owner Trustee is the owner of the Property (as such
term is defined in Appendix A to the Participation Agreement
described below);
B. WHEREAS, the Term shall commence with respect to each Property
upon the Closing Date; and
C. WHEREAS, Lessor desires to lease to Lessee, and Lessee desires
to lease from Lessor, each Property;
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1 Definitions.
For purposes of this Lease, capitalized terms used in this
Lease and not otherwise defined herein shall have the meanings assigned to
them in Appendix A to that certain Participation Agreement dated as of
September 22, 2000 (as amended, modified, extended, supplemented, restated
and/or replaced from time to time in accordance with the applicable
provisions thereof, the "Participation Agreement") among The Pep Boys
- Manny, Moe & Xxxx,The Pep Boys Xxxxx Xxx & Xxxx of California, Pep Boys
- Manny, Moe & Xxxx of Delaware, Inc.,jointly and severally, as Lessees,
The Pep Boys - Manny, Moe & Xxxx and the various parties thereto from time
to time, as the Guarantors, State Street Bank and Trust Company of
Connecticut, National Association,as the Owner Trustee, Lessor, the various
banks and other lending institutions which are parties thereto from time to
time, as the Holders, the various banks and other lending institutions
which are parties thereto from time to time, as the Lenders, and First Union
National Bank, as agent for the Lenders and respecting the Security
Documents, as the agent for the Secured Parties. Unless otherwise indicated
, references in this Lease to articles, sections, paragraphs, clauses,
appendices, schedules and exhibits are to the same contained in this Lease.
The Master Lease dated as of November 13, 1995 and the Master Lease dated
as of February 28, 1997 each between State Street Bank and Trust Company
(not individually but solely as trustee) and the Lessee are two of the
documents being restated and replaced in connection with the refinancing
of the Existing Debt as referred to in Section 3.1 of the Participation
Agreement.
1.2 Interpretation.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Lease.
ARTICLE II
2.1 Property.
Subject to the terms and conditions hereinafter set forth and
contained in the respective Lease Supplement relating to each Property,
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor,
each Property.
2.2 Lease Term.
The term of this Lease with respect to each Property
(the "Term") shall begin upon the Closing Date and shall end on the fourth
annual anniversary of the Closing Date, unless the Term is earlier
terminated or extended in accordance with the provisions of the next
paragraph.Not less than two hundred ten (210) days and no more than
three hundred (300) days prior to the fourth annual anniversary of the
Closing Date, Lessee may give the Lessor, the Lenders,the Holders and the
Agent written notice of Lessee's election to extend the Term, for all but
not less than all Properties,for a period of one (1) year commencing on
the fourth annualanniversary of the Closing Date and ending one (1) year
after the commencement of such extended term, subject to the satisfaction
of the following conditions: (a) no Lease Default or Lease Event of Default
shall have occurred and be continuing either (i) on the date Lessee
delivers the written notice referenced above in this sentence or (ii) on the
fourth annual anniversary of the Closing Date and (b) Lessee and the Agent
have received a written consent to such extended term from each of the
Financing Parties in each Financing Party's sole and absolute discretion.
2.3 Title.
Each Property is leased to Lessee without any representation
or warranty, express or implied, by Lessor and subject to the rights of
parties in possession (if any), the existing state of title (including
without limitation the Permitted Liens) and all applicable Legal
Requirements. Lessee shall in no event have any recourse against Lessor for
any defect in Lessor's title to any Property or any interest of Lessee
therein other than for Lessor Liens.
2.4 Lease Supplements.
Lessee and Lessor have executed and delivered a Lease
Supplement for each Property to be leased effective as of the Closing Datein
substantially the form of EXHIBIT A hereto.
ARTICLE III
3.1 Rent.
(a) Lessee shall pay Basic Rent in arrears on each Payment
Date, and on any date on which this Lease shall
terminate with respect to any or all Properties during
the Term.
(b) Basic Rent shall be due and payable in lawful money of
the United States and shall be paid by wire transfer of
immediately available funds on the due date therefor
(or within the applicable grace period) to such account
or accounts at such bank or banks as Lessor shall from
time to time direct.
(c) Lessee's inability or failure to take possession of all
or any portion of any Property when delivered by Lessor
,whether or not attributable to any act or omission of
Lessor, Lessee or any other Person or for any other
reason whatsoever, shall not delay or otherwise affect
Lessee's obligation to pay Rent for such Property in
accordance with the terms of this Lease.
(d) Lessee shall make all payments of Rent prior to 1:00p.m
., Charlotte, North Carolina time, on the applicable
date for payment of such amount.
3.2 Payment of Basic Rent.
Basic Rent shall be paid absolutely net to Lessor or its
designee, so that this Lease shall yield to Lessor the full amount thereof,
without setoff, deduction or reduction.
3.3 Supplemental Rent.
Lessee shall pay to the Person entitled thereto any and all
Supplemental Rent when and as the same shall become due and payable, and if
Lessee fails to pay any Supplemental Rent within five (5) days after the
same is due, Lessor shall have all rights, powers and remedies provided for
herein or by law or equity or otherwise in the case of nonpayment of Basic
Rent. All such payments of Supplemental Rent shall be in the full amount
thereof, without setoff, deduction or reduction. Lessee shall pay to the
appropriate Person, as Supplemental Rent due and owing to such Person,
among other things, on demand, (a) any and all payment obligations (except for
amounts payable as Basic Rent) owing from time to time under the Operative
Agreements by any Person to the Agent, any Lender, any Holder or any other
Person, (b) interest at the applicable Overdue Rate on any installment of
Basic Rent not paid when due(subject to the applicable grace period and
notice) for the period for which the same shall be overdue and on any
payment of Supplemental Rent not paid when due or demanded by the
appropriate Person (subject to any applicable grace period and notice) for
the period from the due date or the date of any such demand, as the case
may be, until the same shall be paid and (c) amounts referenced as Supplemental
Rent obligations pursuant to Section 8.3 of the Participation Agreement.
The expiration or other termination of Lessee's obligations to pay Basic Rent
hereunder shall not limit or modify the obligations of Lessee with respect
to Supplemental Rent. Unless expressly provided otherwise in this Lease,in
the event of any failure on the part of Lessee to pay and discharge any
Supplemental Rent as and when due, Lessee shall also promptly pay and
discharge any fine,penalty, interest or cost which may be assessed or added
for nonpayment or late payment of such Supplemental Rent, all of which
shall also constitute Supplemental Rent.For purposes of this Section 3.3, the
term "Person" shall be limited to the Lessor, the Agent, the Lenders, the
Holders, the Trust Company and any other party to any of the Operative
Agreements from time to time or any of their Affiliates, successors, or assigns
, agents, independent contractors, advisors, attorneys, accountants or others
engaged by any part to any Operative Agreement.
3.4 Performance on a Non-Business Day.
If any Basic Rent is required hereunder on a day that is not a
Business Day, then such Basic Rent shall be due on the corresponding
Scheduled Interest Payment Date. If any Supplemental Rent is required
hereunder on a day that is not a Business Day, then such Supplemental Rent
shall be due on the preceding Business Day.
3.5 Rent Payment Provisions.
Lessee shall make payment of all Basic Rent and Supplemental
Rent when due (subject to the applicable grace periods)regardless of
whether any of the Operative Agreements pursuant to which same is calculated
and is owing shall have been rejected, avoided or disavowed in any bankruptcy
or insolvency proceeding involving any of the parties to any of the Operative
Agreements provided, however, Lessee shall not be required to pay Basic
Rent allocable to the Tranche A Loans to the extent such Basic Rent was paid
directly to the Tranche A Lender in accordance with the Side Letter dated
as of the date hereof among Lessee, the Guarantors and the Tranche A Lender and
to the extent such Basic Rent would be duplicative if paid hereunder.Such
provisions of such Operative Agreements and their related definitions are
incorporated herein by reference and shall survive any termination,
amendment or rejection of any such Operative Agreements.
ARTICLE IV
4.1 Taxes; Utility Charges.
Lessee shall pay or cause to be paid all Impositions with
respect to the Properties and/or the use, occupancy, operation, repair,
access, maintenance or operation thereof and all charges for electricity,
power, gas, oil, water, telephone,sanitary sewer service and all other
rents , utilities and operating expenses of any kind or type used in or on any
Property and related real property during the Term. Upon Lessor's request
, Lessee shall provide from time to time Lessor with evidence of all such
payments referenced in the foregoing sentence. Lessee shall be entitled to
receive any credit or refund with respect to any Imposition or utility
charge paid by Lessee. Unless an Event of Default shall have occurred and
be continuing, the amount of any credit or refund received by Lessor on
account of any Imposition or utility charge paid by Lessee, net of the
costs and expenses incurred by Lessor in obtaining such credit or refund, shall
be promptly paid over to Lessee. All charges for Impositions or utilities
imposed with respect to any Property for a period during which this Lease
expires or terminates shall be adjusted and prorated on a dailybasis
between Lessor and Lessee, and each party shall pay or reimburse the other for
such party's pro rata share thereof.
ARTICLE V
5.1 Quiet Enjoyment.
Subject to the rights of Lessor contained in Sections 17.2,
17.3 and 20.3 and the other terms of this Lease and the other Operative
Agreements and so long as no Event of Default shall have occurred and be
continuing, Lessee shall peaceably and quietly have, hold and enjoy each
Property for the applicable Term, free of any claim or other action by
Lessor or anyone rightfully claiming by, through or under Lessor (other
than Lessee) with respect to any matters arising from and after the Closing
Date.
ARTICLE VI
6.1 Net Lease.
This Lease shall constitute a net lease, and the obligations of
Lessee hereunder are absolute and unconditional. Lessee shall pay all
operating expenses arising out of the use, operation and/or occupancy of
each Property. Any present or future law to the contrary notwithstanding,
this Lease shall not terminate, nor shall Lessee be entitled to any
abatement, suspension, deferment, reduction, setoff, counterclaim, or defense
with respect to the Rent or other amounts payable by Lessee hereunder, nor
shall the obligations of Lessee hereunder be affected (except as expressly
herein permitted and by performance of the obligations in connection therewith)
for any reason whatsoever, including without limitation by reason of: (a)
any damage to or destruction of any Property or any part thereof; (b) any
taking of any Property or any part thereof or interest therein by
Condemnation or otherwise; (c) any prohibition, limitation, restriction or
prevention of Lessee's use, occupancy or enjoyment of any Property or any
part thereof, or any interference with such use, occupancy or enjoyment by
any Person or for any other reason; (d) any title defect, Lien or any
matter affecting title to any Property; (e) any eviction by paramount title or
otherwise; (f) any default by Lessor hereunder; (g) any action for
bankruptcy, insolvency, reorganization, liquidation, dissolution or other
proceeding relating to or affecting the Agent, any Lender, Lessor, Lessee,
any Holder or any Governmental Authority; (h) the impossibility or
illegality of performance by Lessor, Lessee or both; (i) any action of any
Governmental Authority or any other Person; (j) breach of any warranty or
representation with respect to any Property or any Operative Agreement;
(k) any defect in the condition, quality or fitness for use of any Property
or any part thereof; or (l) any other cause or circumstance whether similar
or dissimilar to the foregoing and whether or not Lessee shall have notice
or knowledge of any of the fore-going. The parties intend that the
obligations of Lessee hereunder shall be covenants, agreements and
obligations that are separate and independent from any obligations of
Lessor hereunder and shall continue unaffected unless such covenants,
agreements and obligations shall have been modified or terminated in accordance
with an express provision of this Lease. Lessor and Lessee acknowledge and
agree that the provisions of this Section 6.1 have been specifically reviewed
and subjected to negotiation.
6.2 No Termination or Abatement.
Lessee shall remain obligated under this Lease in accordance
with its terms and shall not take any action to terminate, rescind or avoid
this Lease, notwithstanding any action for bankruptcy, insolvency,
reorganization, liquidation, dissolution, or other proceeding affecting any
Person or any Governmental Authority, or any action with respect to this
Lease or any Operative Agreement which may be taken by any trustee,
receiver or liquidator of any Person or any Governmental Authority or by any
court with respect to any Person, or any Governmental Authority. Lessee hereby
waives all right (a) to terminate or surrender this Lease (except as
permitted under the terms of the Operative Agreements) or (b) to avail
itself of any abatement, suspension, deferment, reduction, setoff,
counterclaim or defense with respect to any Rent or other amounts payable
by Lessee hereunder. Lessee shall remain obligated under this Lease in
accordance with its terms and Lessee hereby waives any and all rights now
or hereafter conferred by statute or otherwise to modify or to avoid strict
compliance with its obligations under this Lease. Notwith-standing any
such statute or otherwise, Lessee shall be bound by all of the terms and
conditions contained in this Lease.
ARTICLE VII
7.1 Ownership of the Properties.
(a) Lessor and Lessee intend that (i) for financial
accounting purposes with respect to Lessee (A) this Lease will be treated
as an "operating lease"pursuant to Statement of Financial Accounting
Standards No. 13, as amended, (B) Lessor will be treated as the owner and
lessor of each Property and (C) Lessee will be treated as the lessee of
each Property, but (ii) for federal and all state and local income tax
purposes, bankruptcy purposes, regulatory purposes,commercial law and real
estate purposes (A) this Lease will be treated as a financing arrangement
and (B) Lessee will be treated as the owner of the Properties and will be
entitled to all tax benefits ordinarily available to owners of property
similar to the Properties for such tax purposes. Notwithstanding the
foregoing, neither party hereto has made, or shall be deemed to have made,
any representation or warranty as to the availability of any of the
foregoing treatments under applicable accounting rules, tax, bankruptcy,
regulatory, commercial or real estate law or under any other set of rules
(except to the extent of the representation and warranty by Lessee in
Section 6.2(b)(ii) of the Participation Agreement). Lessee shall claim the
cost recovery deductions associated with each Property, and Lessor shall
not, to the extent not prohibited by Law, take on its tax return a position
inconsistent with Lessee's claim of such deductions.
(b) In order to secure the obligations of Lessee now
existing or hereafter arising under any and all Operative Agreements,
Lessee hereby conveys, grants, assigns, transfers, hypothecates,
mortgages and sets over to Lessor, for the benefit of the Secured Parties,
a first priority security interest in and lien on all right, title and
interest of Lessee (now owned or hereafter acquired) in and to all
Properties, to the extent such is personal property and irrevocably grants
and conveys a lien, deed of trust and mortgage on all right, title and
interest of Lessee (now owned or hereafter acquired) in and to all
Properties to the extent such is real property. Lessor and Lessee further
intend and agree that, for the purpose of securing the obligations of
Lessee now existing or hereafter arising under the Operative Agreements,
(i) this Lease shall be a security agreement and financing statement within the
meaning of Article 9 of the Uniform Commercial Code respecting each
of the Properties and all proceeds (including without limitation insurance
proceeds thereof) to the extent such is personal property and an
irrevocable grant and conveyance of a lien, deed of trust and mortgage on
each of the Properties and all proceeds(including without limitation
insurance proceeds thereof) to the extent such is real property; (ii) the
acquisition of title by Lessor in each Property referenced in Article II
constitutes a grant by Lessee to Lessor of a security interest, lien, deed
of trust and mortgage in all of Lessee's right, title and interest in and
to each Property and all proceeds (including without limitation insurance
proceeds thereof) of the conversion, voluntary or involuntary, of the
foregoing into cash, investments, securities or other property, whether in
the form of cash, investments, securities or other property, and an
assignment of all rents, profits and income produced by each Property; and
(iii) notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from financial intermediaries, bankers or agents
(as applicable) of Lessee shall be deemed to have been given for the
purpose of perfecting such lien, security interest, mortgage lien and deed of
trust under applicable law. Lessee shall promptly take such actions as
necessary(including without limitation the filing of Uniform Commercial Code
Financing Statements, Uniform Commercial Code Fixture Filings and memoranda
(or short forms) of this Lease and the various Lease Supplements) to ensure
that the lien, security interest, mortgage lien and deed of trust in each
Property and the other items referenced above will be deemed to be a
perfected lien, security interest, mortgage lien and deed of trust of first
priority under applicable law and will be maintained as such throughout the
Term.
ARTICLE VIII
8.1 Condition of the Properties.
LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING EACH PROPERTY
"AS-IS WHERE-IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) BY LESSOR (EXCEPT THAT LESSOR SHALL KEEP EACH PROPERTY FREE AND
CLEAR OF LESSOR LIENS) AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE
OF TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF (IF ANY), (C)
ANY STATE OF FACTS REGARDING ITS PHYSICAL CONDITION OR WHICH AN ACCURATE
SURVEY MIGHT SHOW, (D) ALL APPLICABLE LEGAL REQUIREMENTS AND (E) VIOLATIONS
OF LEGAL REQUIREMENTS WHICH MAY EXIST ON THE DATE HEREOF AND/OR THE DATE OF
THE APPLICABLE LEASE SUPPLEMENT. NEITHER LESSOR NOR THE AGENT NOR ANY
LENDER NOR ANY HOLDER HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) (EXCEPT THAT
LESSOR SHALL KEEP EACH PROPERTY FREE AND CLEAR OF LESSOR LIENS) OR SHALL BE
DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE, VALUE,
HABITABILITY, USE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR
USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION,
WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY
PROPERTY (OR ANY PART THEREOF), AND NEITHER LESSOR NOR THE AGENT NOR ANY LENDER
NOR ANY HOLDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREON
OR THE FAILURE OF ANY PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL
REQUIREMENT. LESSEE HAS OR PRIOR TO THE CLOSING DATE WILL HAVE BEEN
AFFORDED FULL OPPORTUNITY TO INSPECT EACH PROPERTY AND THE IMPROVEMENTS
THEREON (IF ANY), IS OR WILL BE (INSOFAR AS LESSOR, THE AGENT, EACH LENDER
AND EACH HOLDER ARE CONCERNED) SATISFIED WITH THE RESULTS OF ITS
INSPECTIONS AND IS ENTERING INTO THIS LEASE SOLELY ON THE BASIS OF THE RESULTS
OF ITS OWN INSPECTIONS, AND ALL RISKS INCIDENT TO THE MATTERS DESCRIBED IN THE
PRECEDING SENTENCE, AS BETWEEN LESSOR, THE AGENT, THE LENDERS AND THE
HOLDERS, ON THE ONE (1) HAND, AND LESSEE, ON THE OTHER HAND, ARE TO BE
BORNE BY LESSEE.
8.2 Possession and Use of the Properties.
(a) At all times during the Term with respect to each
Property, such Property shall be used by Lessee in the ordinary course of
its business. Lessee shall pay, or cause to be paid, all charges and costs
required in connection with the use of the Properties as contemplated by
this Lease. Lessee shall not commit or permit any waste of the Properties
or any part thereof.
(b) The address stated in Section 12.2 of the Participation
Agreement is the principal place of business and chief executive office of
Lessee (as such terms are used in Section 9-103(3) of the Uniform
Commercial Code of any applicable jurisdiction), and Lessee will provide Lessor
with prior written notice of any change of location of its principal place of
business or chief executive office. Regarding a particular Property, each
Lease Supplement correctly identifies the initial location of the related
Equipment (if any) and Improvements (if any) and contains an accurate legal
description for the related parcel of Land. The Equipment and Improvements
respecting each particular Property will be located only at the location
identified in the applicable Lease Supplement.
(c) Lessee will not attach or incorporate any item of
Equipment to or in any other item of equipment or personal property or to
or in any real property in a manner that could give rise to the assertion of
any Lien on such item of Equipment by reason of such attachment or the
assertion of a claim that such item of Equipment has become a fixture and
is subject to a Lien in favor of a third party that is prior to the Liens
thereon created by the Operative Agreements.
(d) At all times during the Term with respect to each
Property, Lessee will comply with all obligations under and (to the extent
no Event of Default exists and provided that such exercise will not impair
the value, utility or remaining useful life of such Property) shall be
permitted to exercise all rights and remedies under, all operation and
easement agreements and related or similar agreements applicable to such
Property. Lessor shall, in Lessor's reasonable discretion, from time to
time cooperate with Lessee to enable Lessee to exercise such rights and
remedies including, without limitation, the execution and delivery of
documents reasonably requested by the Lessee and in form and substance
reasonably acceptable to Lessor.
8.3 Integrated Properties.
At all times during the Term, Lessee shall, at its sole cost
and expense, cause each Property to constitute (and for the duration of the
Term shall continue to constitute) all of the equipment, facilities, rights
, other personal property and other real property necessary or appropriate
to operate, utilize, maintain and control each such Property in a
commercially reasonable manner.
ARTICLE IX
9.1 Compliance With Legal Requirements, Insurance Requirements and
Manufacturer's Specifications and Standards.
Subject to the terms of Article XIII relating to permitted
contests, Lessee, at its sole cost and expense, shall (a) comply with all
applicable Legal Requirements (including without limitation all
Environmental Laws) and all Insurance Requirements relating to the
Properties, (b) procure, maintain and comply with all licenses, permits,
orders, approvals, consents and other authorizations required for the
acquisition, installation, testing, use, development, construction,
operation, maintenance, repair, refurbishment and restoration of the
Properties, and (c) comply with all manufacturer's specifications and
standards, including without limitation the acquisition, installation,
testing, use, development, construction, operation, maintenance, repair,
refurbishment and restoration of the Properties, whether or not compliance
therewith shall require structural or extraordinary changes in any Property
or interfere with the use and enjoyment of any Property unless the failure
to procure, maintain and comply with such items identified in subparagraphs
(b) and (c), individually or in the aggregate, shall not and could not
reasonably be expected to have a Material Adverse Effect. Lessor agrees to
take such actions as may be reasonably requested by Lessee in connection
with the compliance by Lessee of its obligations under this Section 9.1.
ARTICLE X
10.1 Maintenance and Repair; Return.
(a) Lessee, at its sole cost and expense, shall maintain
each Property in good condition, repair and working order (ordinary wear
and tear excepted) and in the repair and condition as when originally delivered
(subject to ordinary wear and tear) to Lessor and make all necessary
repairs thereto and replacements thereof, of every kind and nature whatsoever,
whether interior or exterior, ordinary or extraordinary, structural or
nonstructural or foreseen or unforeseen, in each case as required by
Section 9.1 and on a basis consistent with the operation and maintenance of
properties or equipment comparable in type and function to the applicable
Property, such that such Property is capable of being immediately utilized
by a third party and in compliance with standard industry practice subject,
however, to the provisions of Article XV with respect to Casualty and
Condemnation.
(b) Lessee shall not move or relocate any component of any
Property beyond the boundaries of the Land (comprising part of such
Property) described in the applicable Lease Supplement, except for the
temporary removal of Equipment and other personal property for repair or
replacement.
(c) If any component of any Property becomes worn out, lost
,destroyed, damaged beyond repair or otherwise permanently rendered unfit
for use, Lessee, at its own expense, will within a reasonable time replace such
component with a replacement component which is free and clear of all Liens
(other than Permitted Liens and Lessor Liens) and has a value, utility and
useful life at least equal to the component replaced (assuming the
component replaced had been maintained and repaired in accordance with the
requirements of this Lease). All components which are added to any
Property shall immediately become the property of (and title thereto shall vest
in) Lessor and shall be deemed incorporated in such Property and subject to
the terms of this Lease as if originally leased hereunder.
(d) Upon reasonable advance notice, Lessor and its agents
shall have the right to inspect each Property and all maintenance records
with respect thereto at any reasonable time during normal business hours
and, provided no Default or Event of Default has occurred and is continuing,
shall use all reasonable efforts to minimize interference with and
disruption of Lessee's business.
(e) Lessee shall cause to be delivered to Lessor (at
Lessee's sole expense) one (1) or more additional Appraisals (or
reappraisals of Property) as Lessor may request if any one (1) of Lessor,
the Agent, the Trust Company, any Lender or any Holder is required pursuant
to any applicable Legal Requirement to obtain such Appraisals (or
reappraisals) and upon the request of Lessor after the occurrence and
continuance of any Event of Default.
(f) Lessor shall under no circumstances be required to
build any improvements or install any equipment on any Property, make any
repairs,replacements, alterations or renewals of any nature or description to
any Property, make any expenditure whatsoever in connection with this Lease or
maintain any Property in any way. Lessor shall not be required to maintain
, repair or rebuild all or any part of any Property, and Lessee waives the
right to (i) require Lessor to maintain, repair, or rebuild all or any part
of any Property, or (ii) make repairs at the expense of Lessor pursuant to
any Legal Requirement, Insurance Requirement, contract, agreement, covenant
,condition or restriction at any time in effect.
(g) Lessee shall, upon the expiration or earlier
termination of this Lease with respect to a Property, if Lessee shall not have
exercised its Purchase Option with respect to such Property and purchased such
Property, surrender such Property (i) to Lessor pursuant to the exercise of
the applicable remedies upon the occurrence of a Lease Event of Default or
(ii) pursuant to the second paragraph of Section 22.1(a) hereof, to Lessor
or the third party purchaser, as the case may be, subject to Lessee's
obligations under this Lease (including without limitation the obligations
of Lessee at the time of such surrender under Sections 9.1, 10.1(a) through
(f), 10.2, 11.1, 12.1, 22.1 and 23.1).
10.2 Environmental Inspection.
If Lessee has not given notice of exercise of its Purchase
Option on the Expiration Date pursuant to Section 20.1 or for whatever
reason Lessee does not purchase a Property in accordance with the terms of
this Lease, then not more than one hundred eighty (180) days nor less than
sixty (60) days prior to the Expiration Date, Lessee at its expense shall
cause to be delivered to Lessor a Phase I environmental site assessment
recently prepared (no more than ninety (90) days prior to the date of
delivery) by an independent recognized professional reasonably acceptable
to Lessor, and in form, scope and content reasonably satisfactory to Lessor.
ARTICLE XI
11.1 Modifications.
Lessee at its sole cost and expense, at any time and from time
to time without the consent of Lessor may make modifications, alterations,
renovations, improvements and additions to any Property or any part thereof
and substitutions and replacements therefor (collectively, "Modifications")
,and Lessee shall make any and all Modifications required to be made
pursuant to all Legal Requirements, Insurance Requirements and manufacturer's
specifications and standards; provided, that: (i) no Modification shall
materially impair the value, utility or useful life of any Property from
that which existed immediately prior to such Modification; (ii) each
Modification shall be done expeditiously and in a good and workmanlike
manner; (iii) no Modification shall adversely affect the structural
integrity of any Property; (iv) to the extent required by Section 14.2(a),
Lessee shall maintain builders' risk insurance at all times when a
Modification is in progress; (v) subject to the terms of Article XIII
relating to permitted contests, Lessee shall pay all costs and expenses and
discharge any Liens arising with respect to any Modification; (vi) each
Modification shall comply with the requirements of this Lease (including
without limitation Sections 8.2 and 10.1); and (vii) no Improvement shall
be demolished or otherwise rendered unfit for use unless Lessee shall finance
the proposed replacement Modification outside of this lease facility;
provided, further, Lessee shall not make any Modification (unless required
by any Legal Requirement) to the extent any such Modification, individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect. All Modifications shall immediately and without further action
upon their incorporation into the applicable Property (1) become property of
Lessor, (2) be subject to this Lease and (3) be titled in the name of
Lessor. Lessee shall not remove or attempt to remove any Modification from any
Property. Lessee, at its own cost and expense, will pay for the repairs of
any damage to any Property caused by the removal or attempted removal of
any Modification.
ARTICLE XII
12.1 Warranty of Title.
(a) Lessee hereby acknowledges and shall cause title in
each Property (including without limitation all Equipment, all Improvements,
all replacement components to each Property and all Modifications) immediately
and without further action to vest in and become the property of Lessor and
to be subject to the terms of this Lease from and after the date hereof or
such date of incorporation into any Property. Lessee agrees that, subject
to the terms of Article XIII relating to permitted contests, Lessee shall
not directly or indirectly create or allow to remain, and shall promptly
discharge at its sole cost and expense, any Lien, defect, attachment, levy
, title retention agreement or claim upon any Property, any component
thereof or any Modifications or any Lien, attachment, levy or claim with
respect to the Rent or with respect to any amounts held by Lessor, the
Agent, any Lender or any Holder pursuant to any Operative Agreement, other than
Permitted Liens and Lessor Liens. Lessee shall promptly notify Lessor in
the event it receives actual knowledge that a Lien other than a Permitted
Lien or Lessor Lien has occurred with respect to a Property, the Rent or
any other such amounts, and Lessee represents and warrants to, and covenants
with, Lessor that the Liens in favor of Lessor and/or the Agent created by
the Operative Agreements are (and until the Financing Parties under the
Operative Agreements have been paid in full shall remain) first priority
perfected Liens subject only to Permitted Liens and Lessor Liens. At all
times during the Term, Lessee shall (i) cause a valid, perfected, first
priority Lien on each applicable Property to be in place in favor of the
Agent (for the benefit of the Secured Parties) and (ii) file, or cause to
be filed, all necessary documents under the applicable real property law and
Article 9 of the Uniform Commercial Code to perfect such title and Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, expressed or implied, to or
for the performance by any contractor, mechanic, laborer, materialman,
supplier or vendor of any labor or services or for the furnishing of any
materials for any construction, alteration, addition, repair or demolition
of or to any Property or any part thereof. NOTICE IS HEREBY GIVEN THAT
LESSOR IS NOT AND SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS
FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING A PROPERTY OR
ANY PART THEREOF THROUGH OR UNDER LESSEE, AND THAT NO MECHANIC'S OR OTHER
LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT
THE INTEREST OF LESSOR IN AND TO ANY PROPERTY.
ARTICLE XIII
13.1 Permitted Contests Other Than in Respect of Indemnities.
Except to the extent otherwise provided for in Section 11 of
the Participation Agreement, Lessee, on its own or on Lessor's behalf but at
Lessee's sole cost and expense, may contest, by appropriate administrative
or judicial proceedings conducted in good faith and with due diligence, the
amount, validity or application, in whole or in part, of any Legal
Requirement, Imposition or utility charge payable pursuant to Section 4.1
or any Lien, attachment, levy, encumbrance or encroachment, and Lessor agrees
not to pay, settle or otherwise compromise any such item, provided, that
(a) the commencement and continuation of such proceedings shall suspend the
collection of any such contested amount from, and suspend the enforcement
thereof against, the applicable Properties, Lessor, each Holder, the Agent
and each Lender; (b) there shall not be imposed a Lien (other than
Permitted Liens and Lessor Liens) on any Property and no part of any Property
nor any Rent would be in any danger of being sold,forfeited, lost or deferred;
(c) at no time during the permitted contest shall there be a risk of the
imposition of criminal liability or material civil liability on Lessor, any
Holder, the Agent or any Lender for failure to comply therewith; and (d) in the
event that, at any time, there shall be a material risk of extending the
application of such item beyond the end of the Term, then Lessee shall deliver
to Lessor an Officer's Certificate certifying as to the matters set forth in
clauses (a), (b) and (c) of this Section 13.1. Lessor,at Lessee's sole cost
and expense, shall execute and deliver to Lessee such authorizations and other
documents as may reasonably be required in connection with any such contest and
, if reasonably requested by Lessee, shall join as a party therein at Lessee's
sole cost and expense.
13.2 Impositions, Utility Charges, Other Matters; Compliance with
Legal Requirements.
Except with respect to Impositions, Legal Requirements, utility
charges and such other matters referenced in Section 13.1 which are the
subject of ongoing proceedings contesting the same in a manner consistent
with the requirements of Section 13.1, Lessee shall cause (a) all
Impositions, utility charges and such other matters to be timely paid,
settled or compromised, as appropriate, with respect to each Property and
(b) each Property to comply with all applicable Legal Requirements in all
material respects.
ARTICLE XIV
14.1 Public Liability and Workers' Compensation Insurance.
During the Term for each Property, Lessee shall procure and
carry, at Lessee's sole cost and expense, commercial general liability and
umbrella liability insurance for claims for injuries or death sustained by
persons or damage to property while on such Property or respecting the
Equipment and such other public liability coverages as are then customarily
carried by similarly situated companies conducting business similar to that
conducted by Lessee. Such insurance shall be on terms and in amounts that
are no less favorable than insurance maintained by Lessee with respect to
similar properties and equipment that it owns and are then carried by
similarly situated companies conducting business similar to that conducted
by Lessee, and in no event shall such coverage have a minimum combined
single limit per occurrence coverage for commercial general liability of
less than $25,000,000.00 or less than $50,000,000.00 in the aggregate. The
policies shall name Lessee as the insured and shall be endorsed to name
Lessor, Trust Company, the Holders, the Agent and the Lenders as additional
insureds. The policies shall also specifically provide that such policies
shall be considered primary insurance which shall apply to any loss or
claim before any contribution by any insurance which Lessor, any Holder, the
Agent or any Lender may have in force. In the operation of the Properties,
Lessee shall comply with applicable workers' compensation laws and protect
Lessor, each Holder,the Agent and each Lender against any liability under such
laws.
14.2 Permanent Hazard and Other Insurance.
(a) During the Term for each Property, Lessee shall keep
such Property insured against all risk of physical loss or damage by fire
and other risks generally insured against by similarly situated entities
and shall maintain builders' risk insurance during construction of any
Improvements or Modifications in each case in amounts no less than the
Property Cost of such Property from time to time and on terms that (i) are
no less favorable than insurance covering other similar properties owned by
Lessee and (ii) are then carried by similarly situated companies conducting
business similar to that conducted by Lessee. The policies shall name
Lessee as the insured and shall be endorsed to name Lessor and the Agent
(on behalf of the Secured Parties) as a named additional insured and loss
payee; provided, so long as no Event of Default exists, any loss payable
under the insurance policies required by this Section for losses up to
$1,000,000 will be paid to Lessee.
(b) If, during the Term with respect to a Property the area
in which such Property is located is designated a "flood-prone" area
pursuant to the Flood Disaster Protection Act of 1973, or any amendments or
supplements thereto or is in a zone designated A or V, then Lessee shall
comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973. In addition, Lessee will fully comply
with the requirements of the National Flood Insurance Act of 1968 and the Flood
Disaster Protection Act of 1973, as each may be amended from time to time,
and with any other Legal Requirement, concerning flood insurance to the
extent that it applies to any such Property. During the Term, Lessee shall
,in the operation and use of each Property, maintain workers' compensation
insurance consistent with that carried by similarly situated companies
conducting business similar to that conducted by Lessee and containing
minimum liability limits of no less than $100,000. In the operation of
each
Property, Lessee shall comply with workers' compensation laws applicable to
Lessee, and protect Lessor, each Holder, the Agent and each Lender against
any liability under such laws.
14.3 Coverage.
(a) As of the date of this Lease and annually thereafter
during the Term, Lessee shall furnish the Agent (on behalf of Lessor and the
other beneficiaries of such insurance coverage) with certificates prepared by
the insurers or insurance broker of Lessee showing the insurance required under
Sections 14.1 and 14.2 to be in effect, naming (to the extent of their
respective interests) Lessor, Trust Company, the Holders, the Agent and the
Lenders as additional insureds and loss payees and evidencing the other
requirements of this Article XIV. All such insurance shall be at the cost and
expense of Lessee and provided by nationally recognized, financially sound
insurance companies having an A- or better rating by A.M. Best's Key Rating
Guide. Lessee shall cause such certificates to include a provision for thirty
(30) days' advance written notice by the insurer to the Agent (on behalf of
Lessor and the other beneficiaries of such insurance coverage) in the event of
cancellation or material alteration of such insurance. If an Event of Default
has occurred and is continuing and the Agent (on behalf of Lessor and the other
beneficiaries of such insurance coverage) so requests, Lessee shall deliver to
the Agent (on behalf of Lessor and the other beneficiaries of such insurance
coverage) copies of all insurance policies required by Sections 14.1 and 14.2.
(b) Lessee agrees that the insurance policy or policies
required by Sections 14.1, 14.2(a) and 14.2(b) shall include an appropriate
clause pursuant to which any such policy shall provide that it will not be
invalidated should Lessee waive, at any time, any or all rights of recovery
against any party for losses covered by such policy or due to any breach of
warranty, fraud, action, inaction or misrepresentation by Lessee or any Person
acting on behalf of Lessee. Lessee hereby waives any and all such rights
against Lessor, Trust Company, the Holders, the Agent and the Lenders to the
extent of payments made to any such Person under any such policy.
(c) Neither Lessor nor Lessee shall carry separate
insurance concurrent in kind or form or contributing in the event of loss with
any insurance required under this Article XIV, except that Lessor may carry
separate liability insurance at Lessor's sole cost so long as (i) Lessee's
insurance is designated as primary and in no event excess or contributory to
any insurance Lessor may have in force which would apply to a loss covered
under Lessee's policy and (ii) each such insurance policy will not cause
Lessee's insurance required under this Article XIV to be subject to a
coinsurance exception of any kind.
(d) Lessee shall pay as they become due all premiums for
the insurance required by Section 14.1 and Section 14.2, shall renew or replace
each policy prior to the expiration date thereof or otherwise maintain the
coverage required by such Sections without any lapse in coverage. Lessee may
carry the insurance required under this Lease under one or more blanket
policies, subject to the terms and conditions herein.
14.4 Additional Insurance Requirements.
Not in limitation of any provision of the Operative Agreements
but in addition thereto, Lessee shall obtain any and all additional insurance
policies (including without limitation with respect to Condemnation) with
regard to the Property or otherwise with respect to the transactions
contemplated by the Operative Agreements as requested reasonably from time to
time by Lessor provided, however, such additional policies and coverages are
customarily carried by owners of comparable properties in the vicinity of the
applicable Property.
ARTICLE XV
15.1 Casualty and Condemnation.
(a) Subject to the provisions of this Article XV and
Article XVI (in the event Lessee delivers, or is obligated to deliver or is
deemed to have delivered, a Termination Notice), and prior to the occurrence
and continuation of a Default or an Event of Default, Lessee shall be entitled
to receive (and Lessor hereby irrevocably assigns to Lessee all of Lessor's
right, title and interest in) any condemnation proceeds, award, compensation or
insurance proceeds under Sections 14.2(a) or 14.2(b) hereof to which Lessee or
Lessor may become entitled by reason of their respective interests in a
Property (i) if all or a portion of such Property is damaged or destroyed in
whole or in part by a Casualty or (ii) if the use, access, occupancy, easement
rights or title to such Property or any part thereof is the subject of a
Condemnation; provided, however, if a Default or an Event of Default shall have
occurred and be continuing or if such award, compensation or insurance
proceeds shall exceed $1,000,000
(whether or not a Default or Event of Default has occurred), then such award,
compensation or insurance proceeds shall be paid directly to Lessor or, if
received by Lessee, shall be held in trust for Lessor, and shall be paid over
by Lessee to Lessor and held in accordance with the terms of this paragraph (a)
. All amounts held by Lessor hereunder on account of any award, compensation
or insurance proceeds either paid directly to Lessor or turned over to Lessor
shall be held as security for the performance of Lessee's obligations hereunder
and under the other Operative Agreements and when all such obligations of
Lessee with respect to such matters (and all other obligations of Lessee which
should have been satisfied pursuant to the Operative Agreements as of such
date) have been satisfied, all amounts so held by Lessor shall be paid over to
Lessee.
(b) Lessee may appear in any proceeding or action to
negotiate, prosecute, adjust or appeal any claim for any award, compensation or
insurance payment on account of any such Casualty or Condemnation and shall
pay all expenses thereof. At Lessee's reasonable request, and at Lessee's sole
cost and expense, Lessor and the Agent shall participate in any such
proceeding, action, negotiation, prosecution or adjustment. Lessor and Lessee
agree that this Lease shall control the rights of Lessor and Lessee in and to
any such award, compensation or insurance payment.
(c) If Lessee shall receive notice or otherwise has knowledge of a Casualty
or a Condemnation of a Property or any interest therein where damage to the
affected Property is estimated to equal or exceed twenty-five percent (25%) of
the Property Cost of such Property, Lessee shall give notice thereof to Lessor
promptly after Lessee's receipt of such notice or obtaining such knowledge.
In the event a Casualty or Condemnation occurs (regardless of whether Lessee is
obligated to give notice thereof to Lessor pursuant to the foregoing sentence)
, and unless the Casualty or Condemnation is estimated to affect an amount
equal to or less than twenty-five percent (25%) of the Property Cost of such
Property and the Lessee performs a Restoration in accordance with Section 15.1
(e) hereof, then Lessee shall be deemed to have delivered a Termination Notice
to Lessor and the provisions of Sections 16.1 and 16.2 shall apply; provided,
however, if no Default or Event of Default has occurred and is continuing and
the lesser of Lessee's bond ratings is not worse than BB- for Standard and
Poors and Ba3 for Moody's and Lessee delivers written notice to Lessor within
fifteen (15) days of such Casualty or Condemnation, and proceeds held by Lessor
are made available for Restoration in accordance with Section 15.1(e) hereof
then Lessee may restore such Property pursuant to the terms and conditions of
the Operative Agreements, including without limitation Sections 10.1, 11.1 and
15.1 of this Lease and proceeds held by Lessor shall be made available for
Restoration in accordance with Section 15.1(e) hereof.
(d) In the event of a Casualty or a Condemnation
(regardless of whether notice thereof must be given pursuant to paragraph (c)),
this Lease shall terminate with respect to the applicable Property in
accordance with Section 16.1 if Lessee, within thirty (30) days after such
occurrence, delivers to Lessor a notice to such effect.
(e) If pursuant to this Section 15.1 this Lease shall
continue in full force and effect following a Casualty or Condemnation with
respect to the affected Property, Lessee shall, at its sole cost and expense
(subject to reimbursement in accordance with Section 15.1(e)) promptly and
diligently repair any damage to the Property caused by such Casualty or
Condemnation in conformity with the requirements of Sections 10.1 and 11.1
("Restoration"), using the plans and specifications or manufacturer's
specifications for the applicable Improve-ments, Equipment or other components
of the Property (as modified to give effect to any subsequent Modifications,
any Condemnation affecting the Property and all applicable Legal Requirements),
so as to restore the Property to the same or a greater remaining economic
value, useful life, utility, condition, operation and function as existed
immediately prior to such Casualty or Condemnation (assuming all maintenance
and repair standards have been satisfied).
In such event, title to the Property shall remain with Lessor.
(i) If the award, compensation or proceeds received by or
turned over to Lessor, in accordance with 15.1(a), in respect of any Casualty
or Condemnation (collectively, as used in this Section 15.1(e), "proceeds"),
and if a Default or Event of Default shall not have occurred and be continuing
, then Lessor shall make available for expenses related to the Restoration of
the Property, apply all such proceeds it receives pursuant to the terms of this
Lease provided that such Restoration shall be accomplished as provided in
Section 15.1(g) so long as such Restoration can, in the reasonable judgment of
the Agent, be completed within one (1) year after the date of the Casualty or
Condemnation and in such a manner so that the Property will have a value at
least equal to its value prior to the Casualty or Condemnation.
(ii) Any such proceeds held by Lessor for Restoration shall
be made available by Lessor (or at Lessor's election by a disbursing or escrow
agent who shall be selected by Lessor and whose fees shall be paid by Lessee)
from time to time or as requested by Lessee no more frequently than once a
month as the Restoration progresses, upon delivery to the Agent of the
following: (i) evidence reasonably satisfactory to the Agent of the estimated
cost of Restoration; (ii) funds (or assurances reasonably satisfactory to the
Agent that such funds are available) sufficient in addition to such proceeds
to complete and fully pay for the Restoration; and (iii) such architect's
certificates, waivers of lien, contractor's sworn statements, title insurance
endorsements, plats of survey and such other evidence of cost, payment and
performance as the Agent may reasonably require and approve. No payment made
prior to the final completion of Restoration shall exceed ninety percent (90%)
of the value of the work
performed from time to time, as such value shall be determined by the Agent in
its reasonable judgment. Prior to commencement of the work, and from time to
time thereafter, if so requested by the Agent. Lessee shall deposit with
Lessor an amount of funds in excess of the proceeds which, together with such
proceeds, shall at all times be at least sufficient in the reasonable judgment
of the Agent to pay the entire unpaid cost of the Restoration, free and clear
of all Liens or claims of Lien. Any surplus which may remain out of the
proceeds held by Lessor after payment of all costs of the Restoration shall be
paid to Lessee. At Lessee's reasonable request, Lessor will deposit any
proceeds held by it for Restoration into an interest-bearing account which is
backed directly or indirectly by the full faith and credit of The United
States government over which Lessor has sole possession, authority and control,
and otherwise on terms and conditions reasonably satisfactory to the Agent.
(f) In no event shall a Casualty or Condemnation affect
Lessee's obligations to pay Rent pursuant to Article III except upon any Lease
termination and Lessee's payment of the Termination Value to Lessor in
accordance with Article XVI hereof.
(g) Notwithstanding anything to the contrary set forth in
Section 15.1(a) or Section 15.1(e), if during the Term a Casualty occurs with
respect to a Property or Lessee receives notice of a Condemnation with respect
to a Property, and following such Casualty or Condemnation, the applicable
Property cannot reasonably be restored, repaired or replaced on or before the
day one hundred eighty (180) days prior to the Expiration Date or the date one
(1) year after the occurrence of such Casualty or Condemnation (if such
Casualty or Condemnation occurs during the Term) to the same or a greater
remaining economic value, useful life, utility, condition, operation and
function as existed immediately prior to such Casualty or Condemnation
(assuming all maintenance and repair standards have been satisfied) or on or
before such day such Property is not in fact so restored, repaired or replaced,
then Lessee shall be required to exercise its Purchase Option for such
Property on the next Payment Date
(notwithstanding the limits on such exercise contained in Section 20.2) and pay
Lessor the Termination Value for such Property; provided, if any Default or
Event of Default has occurred and is continuing, Lessee shall also promptly
(and in any event within five (5) Business Days) pay Lessor any award,
compensation or insurance proceeds received on account of any Casualty or
Condemnation with respect to any Property; provided, further, that if no
Default or Event of Default has occurred and is continuing, any Excess Proceeds
shall be paid to Lessee. If a Default or an Event of Default has occurred and
is continuing and any Loans, Holder Advances or other amounts are owing with
respect thereto, then any Excess Proceeds (to the extent of any such Loans,
Holder Advances or other amounts owing with respect thereto) shall be paid to
Lessor, held as security for the performance of Lessee's obligations hereunder
and under the other Operative Agreements and applied to such obligations upon
the exercise of remedies in
connection with the occurrence of an Event of Default, with the remainder of
such Excess Proceeds in excess of such Loans, Holder Advances and other amounts
owing with respect thereto being distributed to the Lessee.
15.2 Environmental Matters.
Promptly upon Lessee's actual knowledge of the presence of
Hazardous Substances in any portion of any Property or Properties in
concentrations and conditions that constitute an Environmental Violation and
which, in the reasonable opinion of Lessee, the cost to undertake any legally
required response, clean up, remedial or other action will or might result in
a cost to Lessee of more than $50,000, Lessee shall notify Lessor in writing of
such condition. In the event of any Environmental Violation (regardless of
whether notice thereof must be given), Lessee shall, not later than thirty (30)
days after Lessee has actual knowledge of such Environmental Violation,
deliver to Lessor a Termination Notice with respect to the applicable Property
or Properties pursuant to Section 16.1, if applicable, or, subject to Lessee's
right to contest pursuant to Section 13.1 hereof, at Lessee's sole cost and
expense, promptly and diligently undertake and diligently complete any response
, clean up, remedial or
other action (including without limitation the pursuit by Lessee of appropriate
action against any off-site or third party source for contamination) necessary
to remove, cleanup or remediate the Environmental Violation in accordance with
all Environmental Laws. Any such undertaking shall be timely completed in
accordance with all applicable Environmental Laws. If Lessee does not deliver
a Termination Notice with respect to such Property pursuant to Section 16.1,
Lessee shall, upon completion of remedial action by Lessee, cause to be
prepared by a reputable environmental consultant reasonably acceptable to
Lessor a report describing the Environmental Violation and the actions taken by
Lessee (or its agents) in response to such Environmental Violation, and a
statement by the consultant that the Environmental Violation has been remedied
in full compliance with applicable Environmental Law. Not less than sixty
(60) days and not more than one hundred eighty (180) days prior to any time
that Lessee elects to
cease operations with respect to any Property or to remarket any Property
pursuant to Section 20.1 hereof or any other provision of any Operative
Agreement, Lessee at its expense shall cause to be delivered to Lessor a Phase
I environmental site assessment respecting such Property recently prepared (no
more than ninety (90) days prior to the date of delivery) by an independent
recognized professional acceptable to Lessor in its reasonable discretion and
in form, scope and content satisfactory to Lessor in its reasonable discretion.
Notwithstanding any other provision of any Operative Agreement, if Lessee
fails to materially comply with the foregoing obligation regarding the Phase I
environmental site assessment, Lessee shall be obligated to purchase such
Property for its Termination Value and shall not be permitted to exercise (and
Lessor shall have no obligation to honor any such exercise) any rights under
any Operative Agreement regarding a sale of such Property to a Person other
than Lessee or any
Affiliate of Lessee.
15.3 Notice of Environmental Matters.
Promptly, but in any event within ten (10) Business Days from
the date Lessee has actual knowledge thereof, Lessee shall provide to Lessor
written notice of any pending or threatened claim, action or proceeding
involving any Environmental Law or any Release on or in connection with any
Property or Properties which will or might result in a cost of more than
$25,000 or any other penalty involving similar or greater severity. All such
notices shall describe in reasonable detail the nature of the claim, action or
proceeding and Lessee's proposed response thereto. In addition, Lessee shall
provide to Lessor, within ten (10) Business Days of receipt, copies of all
material written communications with any Governmental Authority relating to any
Environmental Violation in connection with any Property. Lessee shall also
promptly provide such detailed reports of any such material environmental
claims as may reasonably be requested by Lessor.
ARTICLE XVI
16.1 Termination Upon Certain Events.
If Lessee has delivered, or is deemed to have delivered,
written notice of a termination of this Lease with respect to the applicable
Property to Lessor in the form described in Section 16.2(a) (a "Termination
Notice") pursuant to the provisions of this Lease, then following the
applicable Casualty, Condemnation or Environmental Violation, this Lease shall
terminate with respect to the affected Property on the applicable Termination
Date.
16.2 Procedures.
(a) A Termination Notice shall contain: (i) notice of
termination of this Lease with respect to the affected Property on a Payment
Date not more than sixty (60) days after Lessor's receipt of such Termination
Notice (the "Termination Date"); and (ii) a binding and irrevocable agreement
of Lessee to pay the Termination Value for the applicable Property and purchase
such Property on such Termination Date.
(b) On each Termination Date, Lessee shall pay to Lessor
the Termination Value for the applicable Property, and Lessor shall convey
such Property or the remaining portion thereof, if any, to Lessee (or Lessee's
designee), all in accordance with Section 20.2.
ARTICLE XVII
17.1 Lease Events of Default.
If any one (1) or more of the following events (each a "Lease
Event of Default") shall occur:
(a) Lessee shall fail to make payment of (i) any Basic Rent
(except as set forth in clause (ii)) within three (3) days after the same has
become due and payable or (ii) any Termination Value, on the date any such
payment is due and payable, or any payment of Basic Rent or Supplemental Rent
due on the due date of any such payment of Termination Value, or any amount
due on the Expiration Date;
(b) Lessee shall fail to make payment of any Supplemental
Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or any
other Credit Party shall fail to make any payment of any amount under any
Operative Agreement which has become due and payable within five (5) days after
receipt of notice that such payment is due;
(c) Lessee shall fail to maintain insurance as required by
Article XIV of this Lease or to deliver any requisite annual certificate with
respect thereto within ten (10) days of the date such certificate is due under
the terms hereof;
(d) (i) Lessee shall fail to observe or perform any term,
covenant, obligation or condition of Lessee under this Lease (including
without limitation the Incorporated Covenants) or any other Operative Agreement
to which Lessee is a party other than those set forth in Sections 17.1(a), (b)
or (c) hereof, or any other Credit Party shall fail to observe or perform any
term, covenant, obligation or condition of such Credit Party under any
Operative Agreement other than those set forth in Section 17.1(b) hereof and
such failure shall continue for fifteen (15) days (or with respect to the
Incorporated Covenants, the grace period, if any, applicable thereto),
provided such fifteen (15) day period shall not apply in the case of: (A) any
such failure which is not capable of being cured at all or with such fifteen
(15) day period or which has been the subject of a prior failure within a six
(6) month period or (B) an intentional breach by any Credit Party, or (ii) any
representation or warranty made
by Lessee or any other Credit Party set forth in this Lease (including without
limitation the Incorporated Representations and Warranties) or in any other
Operative Agreement or in any document entered into in connection herewith or
therewith or in any document, certificate or financial or other statement
delivered in connection herewith or therewith shall when made or deemed made be
false or misleading in any material respect;
(e) [Intentionally Reserved];
(f) Any Credit Party or any Subsidiary of any Credit Party
shall default (beyond applicable periods of grace and/or notice and cure) in
the payment when due of any principal of or interest on any Indebtedness having
an outstanding principal amount of at least $5,000,000; or any other event or
condition shall occur which results in a default of any Indebtedness having an
outstanding principal amount of at least $5,000,000 or enables the holder of
any such Indebtedness or any Person acting on such holder's behalf to
accelerate the maturity thereof;
(g) The liquidation or dissolution of any Credit Party, or
the suspension of the business of any Credit Party, or the filing by any Credit
Party of a voluntary petition or an answer seeking reorganization, arrangement
, readjustment of its debts or for any other relief under the United States
Bankruptcy Code, as amended, or under any other insolvency act or law, state or
federal, now or hereafter existing, or any other action of any Credit Party
indicating its consent to, approval of or acquiescence in, any such petition or
proceeding; the application by any Credit Party for, or the appointment by
consent or acquiescence of any Credit Party of a receiver, a trustee or a
custodian of any Credit Party for all or a substantial part of its property;
the making by any Credit Party of any assignment for the benefit of creditors;
the inability of any Credit Party or the admission by any Credit Party in
writing of its inability to pay its debts as they mature or any Credit Party is
generally not
paying its debts and other financial obligations as they become due and payable
; or any Credit Party taking any corporate action to authorize any of the
foregoing;
(h) The filing of an involuntary petition against any
Credit Party in bankruptcy or seeking reorganization, arrangement, readjustment
of its debts or for any other relief under the United States Bankruptcy Code,
as amended, or under any other insolvency act or law, state or federal, now or
hereafter existing; or the involuntary appointment of a receiver, a trustee or
a custodian of any Credit Party for all or a substantial part of its property;
or the issuance of a warrant of attachment, execution or similar process
against any substantial part of the property of any Credit Party, and the
continuance of any of such events for forty-five (45) days undismissed or
undischarged;
(i) The adjudication of any Credit Party as bankrupt or
insolvent;
(j) The entering of any order in any proceedings against
any Credit Party or any Subsidiary of any Credit Party decreeing the
dissolution, divestiture or split-up of any Credit Party or any Subsidiary of
any Credit Party, and such order remains in effect for more than forty-five
(45) days;
(k) Any report, certificate, financial statement or other
instrument delivered to Lessor by or on behalf of any Credit Party pursuant to
the terms of this Lease or any other Operative Agreement is false or
misleading in any material respect when made;
(l) Any Lessee Credit Agreement Event of Default shall have
occurred and be continuing and shall not have been waived in writing;
(m) A final judgment or judgments for the payment of money
shall be rendered by a court or courts against any Credit Party or any
Subsidiary of any Credit Party in excess of $5,000,000 in any one case or in
excess of $10,000,000 in the aggregate, exclusive of any amounts covered by
insurance, and shall remain undischarged or unvacated for a period in excess of
forty-five (45) days or execution shall at any time not be effectively stayed,
or any judgment other than for the payment of money, or injunction,
attachment, garnishment or execution is rendered against any Credit Party or
any of their assets;
(n) Any Credit Party or any member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess of
$5,000,000 which it shall have become liable to pay to the PBGC or to a Pension
Plan under Title IV of ERISA; or notice of intent to terminate a Pension Plan
or Pension Plans having aggregate Unfunded Liabilities in excess of $5,000,000
shall be filed under Title IV of ERISA by any Credit Party or any member of
the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any such Pension
Plan or Pension Plans or a proceeding shall be instituted by a fiduciary of
any such Pension Plan or Pension Plans against any Credit Party or any member
of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA; or a
condition shall exist by reason of which the PBGC would be entitled to obtain
a decree adjudicating
that any such Pension Plan or Pension Plans must be terminated;
(o) any Change of Control;
(p) Any Operative Agreement shall cease to be in full force
and effect against any Credit Party; or
(q) Except as to any Credit Party which is released in
connection with the Operative Agreements, the guaranty given by any Guarantor
under the Participation Agreement or any material provision thereof shall cease
to be in full force and effect, or any Guarantor or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations
under such guaranty, or any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any guaranty;
then, in any such event, Lessor may, in addition to the other rights and
remedies provided for in this Article XVII and in Section 18.1, terminate this
Lease by giving Lessee five (5) days advance written notice of such
termination (provided, notwithstanding the foregoing, this Lease shall be
deemed to be automatically terminated without the giving of notice upon the
occurrence of a Lease Event of Default under Sections 17.1(g), (h), (i) or (j))
, and this Lease shall terminate, and all rights of Lessee under this Lease
shall cease. Lessee shall, to the fullest extent permitted by law, pay as
Supplemental Rent all costs and expenses incurred by or on behalf of Lessor or
any other Financing Party, including without limitation reasonable fees and
expenses of counsel, as a result of any Lease Event of Default hereunder.
A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A POWER OF SALE MAY
ALLOW LESSOR TO TAKE THE PROPERTIES AND SELL THE PROPERTIES WITHOUT GOING TO
COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE OF A LEASE EVENT OF DEFAULT.
17.2 Surrender of Possession.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated pursuant
to Section 17.1, Lessee shall, upon thirty (30) days prior written notice,
surrender to Lessor possession of the Properties. Lessor may enter upon and
repossess the Properties by such means as are available at law or in equity,
and may remove Lessee and all other Persons and any and all personal property
and Lessee's equipment and personalty and severable Modifications from the
Properties. Lessor shall have no liability by reason of any such entry,
repossession or removal performed in accordance with applicable law. Upon the
written demand of Lessor, Lessee shall return the Properties promptly to
Lessor, in the manner and condition required by, and otherwise in accordance
with the provisions of, Section 22.1(c) hereof.
17.3 Reletting.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated pursuant
to Section 17.1, Lessor may, but shall be under no obligation to, relet any or
all of the Properties, for the account of Lessee or otherwise, for such term
or terms (which may be greater or less than the period which would otherwise
have constituted the balance of the Term) and on such conditions (which may
include concessions or free rent) and for such purposes as Lessor may determine
, and Lessor may collect, receive and retain the rents resulting from such
reletting. Lessor shall not be liable to Lessee for any failure to relet any
Property or for any failure to collect any rent due upon such reletting.
17.4 Damages.
Neither (a) the termination of this Lease as to all or any of
the Properties pursuant to Section 17.1; (b) the repossession of all or any of
the Properties; nor (c) the failure of Lessor to relet all or any of the
Properties, the reletting of all or any portion thereof, nor the failure of
Lessor to collect or receive any rentals due upon any such reletting, shall
relieve Lessee of its liabilities and obligations hereunder, all of which shall
survive any such termination, repossession or reletting. If any Lease Event
of Default shall have occurred and be continuing and notwithstanding any
termination of this Lease pursuant to Section 17.1, Lessee shall forthwith pay
to Lessor all Rent and other sums due and payable hereunder to and including
without limitation the date of such termination. Thereafter, on the days on
which the Basic Rent or Supplemental Rent, as applicable, are payable under
this Lease or would have been payable under this Lease if the same had not been
terminated pursuant to
Section 17.1 and until the end of the Term hereof or what would have been the
Term in the absence of such termination, Lessee shall pay Lessor, as current
liquidated damages (it being agreed that it would be impossible accurately to
determine actual damages) an amount equal to the Basic Rent and Supplemental
Rent that are payable under this Lease or would have been payable by Lessee
hereunder if this Lease had not been terminated pursuant to Section 17.1, less
the net proceeds, if any, which are actually received by Lessor with respect
to the period in question of any reletting of any Property or any portion
thereof; provided, that Lessee's obligation to make payments of Basic Rent and
Supplemental Rent under this Section 17.4 shall continue only so long as
Lessor shall not have received the amounts specified in Section 17.6. Nothing
contained in this Section 17.4 shall be construed to impair or limit the right
of Lessor to demand and receive at any time, during the continuance of a Lease
Event of Default,
immediate payment in full of the Termination Value with respect to all
Properties under Section 17.6. In calculating the amount of such net proceeds
from reletting, there shall be deducted all of Lessor's, any Holder's, the
Agent's and any Lender's reasonable expenses in connection therewith, including
without limitation repossession costs, brokerage or sales commissions, fees
and expenses for counsel and any necessary repair or alteration costs and
expenses incurred in preparation for such reletting. To the extent Lessor
receives any damages pursuant to this Section 17.4, such amounts shall be
regarded as amounts paid on account of Rent. Lessee specifically acknowledges
and agrees that its obligations under this Section 17.4 shall be absolute and
unconditional under any and all circumstances and shall be paid and/or
performed, as the case may be, without notice or demand and without any
abatement, reduction, diminution, setoff, defense, counterclaim or recoupment
whatsoever.
17.5 Power of Sale.
Without limiting any other remedies set forth in this Lease,
Lessor and Lessee agree that Lessee has granted, pursuant to Section 7.1(b)
hereof and each Lease Supplement, a Lien against the Properties WITH POWER OF
SALE, and that, upon the occurrence and during the continuance of any Lease
Event of Default, Lessor shall have the power and authority, to the extent
provided by law, after prior notice and lapse of such time as may be required
by law, to foreclose its interest (or cause such interest to be foreclosed) in
all or any part of the Properties.
17.6 Final Liquidated Damages.
If a Lease Event of Default shall have occurred and be continuing, whether or
not this Lease shall have been terminated pursuant to Section 17.1 and whether
or not Lessor shall have collected any current liquidated damages pursuant to
Section 17.4, Lessor shall have the right to recover, by demand to Lessee and
at Lessor's election, and Lessee shall immediately upon Lessor's demand pay to
Lessor in full, as and for final liquidated damages, but exclusive of the
indemnities payable under Section 11 of the Participation Agreement (which, if
requested, shall be paid concurrently), and in lieu of all current liquidated
damages beyond the date of such demand (it being agreed that it would be
impossible accurately to determine actual damages) the Termination Value. Such
amount shall be paid in lawful money of the United States by wire transfer of
immediately available funds for the Termination Value with respect to all
Properties. Upon payment of the amount specified pursuant to the first
sentence of this Section
17.6, Lessee shall be entitled to receive from Lessor, either at Lessee's
request or upon Lessor's election, in either case at Lessee's cost, an
assignment of Lessor's entire right, title and interest in and to the
Properties, Improvements, Fixtures, Modifications, Equipment and all components
thereof, in each case in recordable form and otherwise in conformity with
local custom and free and clear of the Lien of this Lease (including without
limitation the release of any memoranda of Lease and/or the Lease Supplement
recorded in connection therewith) and any Lessor Liens. The Properties shall
be conveyed to Lessee "AS-IS, WHERE-IS" and in their then present physical
condition. If any statute or rule of law shall limit the amount of such final
liquidated damages to less than the amount agreed upon, Lessor shall be
entitled to the maximum amount allowable under such statute or rule of law;
provided, however, Lessee shall not be entitled to receive an assignment of
Lessor's interest in the Properties, the
Improvements, Fixtures, Modifications, Equipment or the components thereof
unless Lessee shall have paid in full the Termination Value. Lessee
specifically acknowledges and agrees that its obligations under this Section
17.6 shall be absolute and unconditional under any and all circumstances and
shall be paid and/or performed, as the case may be, without notice, but upon
demand, and without any abatement, reduction, diminution, setoff, defense,
counterclaim or recoupment whatsoever.
17.7 Environmental Costs.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated pursuant
to Section 17.1, Lessee shall pay directly to any third party (or at Lessor's
election, reimburse Lessor) for the cost of any environmental Phase I site
assessment and if such assessment recommends testing or/or remediation, then
the cost of such recommended testing and/or remediation work undertaken
respecting any Property, and shall indemnify and hold harmless Lessor and each
other Indemnified Person therefrom provided, however, that Lessor shall use
only reputable environmental consultants to perform such work and shall ensure
that such consultant carries customary insurance covering Lessee and Lessor
against any acts or omissions by or attributable to such consultant. Lessee
shall pay all amounts referenced in the immediately preceding sentence within
ten (10) days of any written request by Lessor for such payment. The
provisions of this Section 17.7 shall
not limit the obligations of Lessee under any Operative Agreement regarding
indemnification obligations, environmental testing, remediation and/or work.
17.8 Waiver of Certain Rights.
If this Lease shall be terminated pursuant to Section 17.1,
Lessee waives, to the fullest extent permitted by Law, (a) any notice of
re-entry or the institution of legal proceedings to obtain re-entry or
possession; (b) any right of redemption, re-entry or possession; (c) the
benefit of any laws now or hereafter in force exempting property from liability
for rent or for debt; and (d) any other rights which might otherwise limit or
modify any of Lessor's rights or remedies under this Article XVII.
17.9 Assignment of Rights Under Contracts.
If a Lease Event of Default shall have occurred and be
continuing, and whether or not this Lease shall have been terminated pursuant
to Section 17.1, Lessee shall upon Lessor's demand immediately assign,
transfer and set over to Lessor all of Lessee's right, title and interest in
and to each agreement executed by Lessee in connection with the acquisition,
installation, testing, use, development, construction, operation, maintenance,
repair, refurbishment and restoration of the Properties (including without
limitation all right, title and interest of Lessee with respect to all warranty
, performance, service and indemnity provisions), as and to the extent that the
same relate to the acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment and restoration of
the Properties or any of them.
17.10 Remedies Cumulative.
The remedies herein provided shall be cumulative and in
addition to (and not in limitation of) any other remedies available at law,
equity or otherwise, including without limitation any mortgage foreclosure
remedies.
ARTICLE XVIII
18.1 Lessor's Right to Cure Lessee's Lease Defaults.
Lessor, without waiving or releasing any obligation or Lease
Event of Default, may (but shall be under no obligation to) remedy any Lease
Event of Default for the account and at the sole cost and expense of Lessee,
including without limitation the failure by Lessee to maintain the insurance
required by Article XIV, and may, to the fullest extent permitted by law, and
notwithstanding any right of quiet enjoyment in favor of Lessee, enter upon
any Property, and take all such action thereon as may be necessary or
appropriate therefor. No such entry shall be deemed an eviction of any lessee.
All reasonable out-of-pocket costs and expenses so incurred (including
without limitation fees and expenses of counsel), together with interest
thereon at the Overdue Rate from the date on which such sums or expenses are
paid by Lessor, shall be paid by Lessee to Lessor on demand.
ARTICLE XIX
19.1 Provisions Relating to Lessee's Exercise of its Purchase Option
.
Subject to Section 19.2, in connection with any termination of
this Lease with respect to any Property pursuant to the terms of Section 16.2,
or in connection with Lessee's exercise of its Purchase Option, upon the date
on which this Lease is to terminate with respect to any Property, and upon
tender by Lessee of the amounts set forth in Sections 16.2(b) or 20.2, as
applicable, Lessor shall execute and deliver to Lessee (or to Lessee's
designee) at Lessee's cost and expense an assignment (by special or limited
warranty deed and/or other appropriate instrument) of Lessor's entire interest
in such Property, in each case in recordable form and otherwise in conformity
with local custom and free and clear of any Lessor Liens attributable to
Lessor and Liens granted for the benefit of the Financing Parties pursuant to
the Operative Agreements but without any other warranties (of title or
otherwise) from Lessor. Such Property shall be conveyed to Lessee "AS-IS,
"WHERE-IS" and in then present
physical condition.
19.2 No Purchase or Termination With Respect to Less than All of a
Property.
Lessee shall not be entitled to exercise its Purchase Option or
the Sale Option separately with respect to a portion of any Property
consisting of Land, Equipment and/or Improvements but shall be required to
exercise its Purchase Option or the Sale Option with respect to an entire
Property.
ARTICLE XX
20.1 Purchase Option or Sale Option-General Provisions.
Not less than one hundred eighty (180) days and no more than
three hundred sixty (360) days prior to the Expiration Date or, respecting the
Purchase Option only, not less than sixty (60) days and no more than ninety
(90) days prior to any Payment Date, but in no event less than one hundred
eighty (180) days prior to the Expiration Date, (such Expiration Date or,
respecting the Purchase Option only, any such Payment Date being hereinafter
referred to as the "Election Date"), Lessee may give Lessor, the Lenders, the
Holders and the Agent irrevocable written notice (the "Election Notice") that
Lessee is electing to exercise either (a) the option to purchase all, but not
less than all, the Properties on the applicable Election Date (the "Purchase
Option") or (b) with respect to an Election Notice given in connection with the
Expiration Date only, the option to remarket all, but not less than all, the
Properties to a Person other than Lessee or any Affiliate of Lessee and cause
a sale of such
Properties to occur on the applicable Election Date pursuant to the terms of
Section 22.1 (the "Sale Option"). If Lessee does not give an Election Notice
indicating the Purchase Option or the Sale Option at least one hundred eighty
(180) days and not more than three hundred sixty (360) days prior to the
Expiration Date, then Lessee shall be deemed to have elected for the Purchase
Option to apply on the Expiration Date. If Lessee shall either (i) elect (or
be deemed to have elected) to exercise the Purchase Option or (ii) elect the
Sale Option and fail to cause all, but not less than all, the Properties to be
sold in accordance with the terms of Section 22.1 on the applicable Election
Date, then in either case Lessee shall pay to Lessor on the date on which such
purchase or sale is scheduled to occur an amount equal to the Termination
Value for all, but not less than all, the Properties (which the parties do not
intend to be a "bargain" purchase price) and, upon receipt of such amounts and
satisfaction of
such obligations, Lessor shall transfer to Lessee all of Lessor's right, title
and interest in and to all, but not less than all, the Properties in accordance
with Section 20.2.
20.2 Lessee Purchase Option.
Provided, no Default or Event of Default shall have occurred
and be continuing (other than those that will be cured by the payment of the
Termination Value for all the Properties) and provided, that the Election
Notice has been appropriately given specifying the Purchase Option, Lessee
shall purchase all the Properties on the applicable Election Date at a price
equal to the Termination Value for such Properties (which the parties do not
intend to be a "bargain" purchase price).
Subject to Section 19.2, in connection with any termination of
this Lease with respect to any Property pursuant to the terms of Section 16.2,
or in connection with Lessee's exercise of its Purchase Option, upon the date
on which this Lease is to terminate with respect to a Property or all of the
Properties, and upon tender by Lessee of the amounts set forth in Section 16.2
(b) or this Section 20.2, as applicable, Lessor shall execute, acknowledge
(where required) and deliver to Lessee, at Lessee's cost and expense, each of
the following: (a) special or limited warranty Deeds conveying each Property
(to the extent it is real property) to Lessee free and clear of the Lien of
this Lease, the Lien of the Credit Documents and any Lessor Liens; (b) a Xxxx
of Sale conveying each Property (to the extent it is personal property) to
Lessee free and clear of the Lien of this Lease, the Lien of the Credit
Documents and any Lessor Liens; (c) any real estate tax affidavit or other
document required by law
to be executed and filed in order to record the applicable Deed; and (d) FIRPTA
affidavits; (e) any assignments or other transfer instruments reasonably
requested by the purchaser to transfer leases, contracts, licenses, permits,
warranties, guaranties and similar rights and agreements; (f) seller's title
affidavits to the title company and (g) such other documents that are customary
for the purchase and sale of real and personal property in the jurisdiction
where each Property is located. All of the foregoing documentation must be in
form and substance reasonably satisfactory to Lessor and Lessee. The
applicable Property shall be conveyed to Lessee or a third party purchaser an
Affiliate of Lessee "AS-IS, WHERE-IS" and in then present physical condition.
If any Property is the subject of remediation efforts
respecting Hazardous Substances at the applicable Election Date which could
materially and adversely impact the Fair Market Sales Value of such Property
(with materiality determined in Lessor's discretion), then Lessee shall be
obligated to purchase each such Property pursuant to Section 20.2.
On the applicable Election Date on which Lessee has elected to
exercise its Purchase Option, Lessee shall pay (or cause to be paid) to Lessor
, the Agent and all other parties, as appropriate, the sum of all reasonable
costs and expenses incurred by any such party in connection with the election
by Lessee to exercise its Purchase Option and all Rent and all other amounts
then due and payable or accrued under this Lease and/or any other Operative
Agreement (including, without limitation, the Termination Value for all
Properties).
20.3 Third Party Sale Option.
(a) Provided, that (i) no Default or Event of Default shall
have occurred and be continuing and (ii) the Election Notice has been
appropriately given specifying the Sale Option, Lessee shall undertake to cause
a sale of the Properties on the applicable Election Date (all as specified in
the Election Notice), in accordance with the provisions of Section 22.1 hereof.
Such Election Date on which a sale is required may be hereafter referred to
as the "Sale Date".
(b) In the event Lessee exercises the Sale Option then, as
soon as practicable and in all events not less than sixty (60) days and not
more than one hundred eighty (180) days prior to the Sale Date, Lessee at its
expense shall cause to be delivered to Lessor a Phase I environmental site
assessment for each of the Properties recently prepared (no more than ninety
(90) days prior to the date of delivery) by an independent recognized
professional reasonably acceptable to Lessor and in form, scope and content
reasonably satisfactory to Lessor. In the event that Lessor shall not have
received such environmental site assessment by the date sixty (60) days prior
to the Sale Date or in the event that such environmental assessment shall
reveal the existence of any material violation of Environmental Laws, other
material Environmental Violation or potential material Environmental Violation
(with materiality determined in each case by Lessor in its reasonable
discretion), then Lessee on the Sale
Date shall pay to Lessor an amount equal to the Termination Value for all the
Properties and any and all other amounts due and owing hereunder. Upon receipt
of such payment and all other amounts due under the Operative Agreements,
Lessor shall transfer to Lessee all of Lessor's right, title and interest in
and to all the Properties, at Lessee's sole cost and expense, in accordance
with Section 19.1 and 20.2, without duplication.
ARTICLE XXI
21.1 [Intentionally Omitted].
ARTICLE XXII
22.1 Sale Procedure.
(a) During the Marketing Period, Lessee, on behalf of
Lessor, shall obtain bids for the cash purchase of all the Properties in
connection with a sale to one (1) or more third party purchasers to be
consummated on the Sale Date for the highest price available, shall notify
Lessor promptly of the name and address of each prospective purchaser and the
cash price which each prospective purchaser shall have offered to pay for each
such Property and shall provide Lessor with such additional information about
the bids and the bid solicitation procedure as Lessor may reasonably request
from time to time. All such prospective purchasers must be Persons other than
Lessee or any Affiliate of Lessee. On the Sale Date, Lessee shall pay (or
cause to be paid) to Lessor and all other parties, as appropriate, the sum of
all costs and expenses incurred by Lessor and/or the Agent (as the case may
be) in connection with such sale of one or more Properties, all Rent and all
other amounts then due and payable
or accrued under this Lease and/or any other Operative Agreement (including,
without limitation, the Termination Value for all Properties).
Lessor may reject any and all bids and may solicit and obtain
bids by giving Lessee written notice to that effect; provided, however, that
notwithstanding the foregoing, Lessor may not reject the bids submitted by
Lessee if such bids, in the aggregate, are greater than or equal to the sum of
the Limited Recourse Amount for all the Properties, and represent bona fide
offers from one (1) or more third party purchasers. If the highest price which
a prospective purchaser or the prospective purchasers shall have offered to
pay for all the Properties on the Sale Date is less than the sum of the Limited
Recourse Amount for all the Properties or if such bids do not represent bona
fide offers from one (1) or more third parties or if there are no bids, Lessor
may elect to retain one or more of the Properties by giving Lessee prior writte
n notice of Lessor's election to retain the same, and promptly upon receipt of
such notice, Lessee shall surrender, or cause to be surrendered, each of the
Properties
specified in such notice in accordance with the terms and conditions of Section
10.1. Upon acceptance of any bid, Lessor agrees, at Lessee's request and
expense, to execute a contract of sale and any amendments thereto with respect
to such sale, so long as such contract and amendments are consistent with the
terms of this Article 22 and provide by their terms that they are nonrecourse
to Lessor.
Unless Lessor shall have elected to retain one or more of the
Properties pursuant to the provisions of the preceding paragraph, Lessee shall
arrange for Lessor to sell all the Properties free and clear of the Lien of
this Lease and any Lessor Liens attributable to Lessor, without recourse or
warranty (of title or otherwise, except for a warranty of title pursuant to a
special or limited warranty deed), for cash on the Sale Date to the purchaser
or purchasers offering the highest cash sales price, as identified by Lessee or
Lessor, as the case may be; provided, however, solely as to Lessor or the
Trust Company, in its individual capacity, any Lessor Lien shall not constitute
a Lessor Lien so long as Lessor or the Trust Company, in its individual
capacity, is diligently and in good faith contesting, at the cost and expense
of Lessor or the Trust Company, in its individual capacity, such Lessor Lien by
appropriate proceedings in which event the applicable Sale Date, all without
penalty or cost to
Lessee, shall be delayed for the period of such contest. To effect such
transfer and assignment, Lessor shall execute, acknowledge (where required) and
deliver to the appropriate purchaser each of the following: (a) special ors
limited warranty Deeds conveying each such Property (to the extent it is real
property titled to Lessor) to the appropriate purchaser free and clear of the
Lien of this Lease, the Lien of the Credit Documents and any Lessor Liens; (b)
a Xxxx of Sale conveying each such Property (to the extent it is personal
property) titled to Lessor to the appropriate purchaser free and clear of the
Lien of this Lease, the Lien of the Credit Documents and any Lessor Liens; (c)
any real estate tax affidavit or other document required by law to be executed
and filed in order to record each Deed; (d) FIRPTA affidavits, as appropriate
(e) any assignments or other transfer instruments reasonably requested by the
purchaser to transfer leases, contracts, licenses, permits, warranties,
guaranties and similar
rights and agreements; (f) seller's title affidavits to the title company and
(g) such other documents that are customary for the purchase and sale of real
and personal property in the jurisdiction where each Property is located. All
of the foregoing documentation must be in form and substance reasonably
satisfactory to Lessor and Lessee. Lessee shall surrender the Properties so
sold or subject to such documents to each purchaser in the condition specified
in Section 10.1, or in such other condition as may be agreed between Lessee
and such purchaser. Lessee shall not take or fail to take any action which
would have the effect of unreasonably discouraging bona fide third party bids
for any Property. If each of the Properties is not either (i) sold on the
Sale Date in accordance with the terms of this Section 22.1, or (ii) retained
by Lessor pursuant to an affirmative election made by Lessor pursuant to the
second sentence of the second paragraph of this Section 22.1(a), then (x)
Lessee shall be obligated
to pay Lessor on the Sale Date an amount equal to the aggregate Termination
Value for all the Properties less any sales proceeds received, and (y) Lessor
shall transfer each applicable Property to Lessee in accordance with Section
20.2.
(b) If the Properties are sold on a Sale Date to one (1) or
more third party purchasers in accordance with the terms of Section 22.1(a)
and the aggregate purchase price paid for all the Properties is less than the
sum of the aggregate Property Cost for all the Properties (hereinafter such
difference shall be referred to as the "Deficiency Balance"), then Lessee
hereby unconditionally promises to pay to Lessor on the Sale Date all Rent and
all other amounts then due and owing pursuant to the Operative Agreements and
the lesser of (i) the Deficiency Balance, or (ii) the Maximum Residual
Guarantee Amount for all the Properties. On a Sale Date if (x) Lessor receives
the aggregate Termination Value for all the Properties from one (1) or more
third party purchasers, (y) Lessor and such other parties receive all other
amounts specified in the last sentence of the first paragraph of Section 22.1
(a) and (z) the aggregate purchase price paid for all the Properties on such
date exceeds the sum of
the aggregate Property Cost for all the Properties, then Lessee may retain such
excess. If one or more of the Properties are retained by Lessor pursuant to
an affirmative election made by Lessor pursuant to the provisions of Section
22.1(a), then Lessee hereby unconditionally promises to pay to Lessor on the
Sale Date all Rent and all other amounts then due and owing pursuant to the
Operative Agreements and an amount equal to the Maximum Residual Guarantee
Amount for the Properties so retained. Any payment of the foregoing amounts
described in this Section 22.1(b) shall be made together with a payment of all
other amounts referenced in the last sentence of the first paragraph of
Section 22.1(a).
(c) In the event that all the Properties are either sold to
one (1) or more third party purchasers on the Sale Date or retained by Lessor
in connection with an affirmative election made by Lessor pursuant to the
provisions of Section 22.1(a), then in either case on the applicable Sale Date
Lessee shall provide Lessor or such third party purchaser (unless otherwise
agreed by such third party purchaser) with copies or originals reasonably
acceptable to the Agent (i) all permits, certificates of occupancy,
governmental licenses and authorizations necessary to use, operate, repair,
access and maintain each such Property for the purpose it is being used by
Lessee, and (ii) such manuals, permits, easements, licenses, intellectual
property, know-how, rights-of-way and other rights and privileges in the nature
of an easement as are reasonably necessary or desirable in connection with the
use, operation, repair, access to or maintenance of each such Property for its
intended purpose. All
assignments of licenses, easements, agreements and other deliveries required by
clauses (i) and (ii) of this paragraph (c) shall be in form reasonably
satisfactory to Lessor or such third party purchaser(s), as applicable, and
shall assign such licenses, easements, agreements and other deliveries
(including without limitation both primary assignments and assignments given in
the nature of security) to the extent assignable without payment of any fee,
cost or other charge.
22.2 Application of Proceeds of Sale.
In the event Lessee receives any proceeds of sale of the
Property, such proceeds shall be deemed to have been received in trust on
behalf of Lessor and Lessee shall promptly remit such proceeds to Lessor.
Lessor shall apply the proceeds of sale of any Property in the following order
of priority:
(a) FIRST, to pay or to reimburse Lessor (and/or the Agent,
as the case may be) for the payment of all reasonable costs and expenses
incurred by Lessor (and/or the Agent, as the case may be) in connection with
the sale (to the extent Lessee has not satisfied its obligation to pay such
costs and expenses);
(b) SECOND, so long as the Credit Agreement is in effect
and any Loans or Holder Advances or any amount is owing to the Financing
Parties under any Operative Agreement, to the Agent to be applied pursuant to
intercreditor provisions among Lessor, the Lenders and the Holders contained in
the Operative Agreements; and
(c) THIRD, to Lessee or as may otherwise be required under
applicable law.
22.3 Indemnity for Excessive Wear.
If the proceeds of the sale described in Section 22.1 with
respect to the Properties shall be less than the Limited Recourse Amount with
respect to the Properties, and at the time of such sale it shall have been
reasonably determined (pursuant to the Appraisal Procedure) that the Fair
Market Sales Value of the Properties shall have been impaired by greater than
expected wear and tear during the term of the Lease, Lessee shall pay to
Lessor within thirty (30) days after receipt of Lessor's written statement (i)
the amount of such excess wear and tear determined by the Appraisal Procedure
or (ii) the amount of the Sale Proceeds Shortfall, whichever amount is less.
22.4 Appraisal Procedure.
For determining the Fair Market Sales Value of the Properties
or any other amount which may, pursuant to any provision of any Operative
Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use
the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall
endeavor to reach a mutual agreement as to such amount for a period of ten
(10) days from commencement of the Appraisal Procedure under the applicable
section of the Lease, and if they cannot agree within ten (10) days, then two
(2) qualified independent, third party appraisers, one (1) chosen by Lessee and
one (1) chosen by Lessor, shall mutually agree thereupon, but if either party
shall fail to choose an appraiser within twenty (20) days after notice from
the other party of the selection of its appraiser, then the appraisal by such
appointed appraiser shall be binding on Lessee and Lessor. If the two (2)
appraisers cannot agree within twenty (20) days after both shall have been
appointed, then a third
independent, third party appraiser shall be selected by the two (2) appraisers
or, failing agreement as to such third appraiser within thirty (30) days after
both shall have been appointed, by the American Arbitration Association. The
decisions of the three (3) appraisers shall be given within twenty (20) days of
the appointment of the third appraiser and the decision of the appraiser most
different from the average of the other two (2) shall be discarded and such
average shall be binding on Lessor and Lessee; provided, that if the highest
appraisal and the lowest appraisal are equidistant from the third appraisal,
the third appraisal shall be binding on Lessor and Lessee. The fees and
expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees
and expenses of the appraiser appointed by Lessor shall be paid by Lessor
(such fees and expenses not being indemnified pursuant to Section 11 of the
Participation Agreement); and the fees and expenses of the third appraiser
shall be divided
equally between Lessee and Lessor.
22.5 Certain Obligations Continue.
During the Marketing Period, the obligation of Lessee to pay
Rent with respect to the Properties (including without limitation the
installment of Basic Rent due on the Sale Date) shall continue undiminished
until payment in full to Lessor of the sale proceeds, if any, the Maximum
Residual Guarantee Amount, the amount due under Section 22.3, if any, and all
other amounts due to Lessor or any other Person with respect to all Properties
or any Operative Agreement. Lessor shall have the right, but shall be under
no duty, to solicit bids, to inquire into the efforts of Lessee to obtain bids
or otherwise to take action in connection with any such sale, other than as
expressly provided in this Article XXII.
22.6 Out Parcel Sale.
Provided that no Lease Default or Lease Event of Default shall have occurred
and be continuing, Lessee shall have the option, exercisable by giving Lessor
no less than thirty (30) days written notice of Lessee's election to transfer
and convey any undeveloped Land (including any de minimis site improvements
and de minimis improvements made to facilitate construction) regarding any
Property ("Out Parcel") on the following terms and conditions: (a) the
purchase price net of actual expenses paid by Lessee in connection with such
transfer and conveyance for such Out Parcel shall be promptly paid to Lessor
(and in any event within three (3) Business Days after such transfer and
conveyance), except with respect to Out Parcels described in Schedule 22.6
attached hereto, for ratable application to the then current outstanding
principal balance of the Notes and the unreimbursed Holder Amount; (b) the
applicable Property, excluding such Out Parcel transferred and conveyed
therefrom, shall continue to constitute an area
with appropriate easement and operating agreements such that the value and
utility of such remaining applicable Property are not diminished; (c) the
applicable Property, excluding such Out Parcel transferred and conveyed
therefrom, shall (on and after the date of such transfer and conveyance)
satisfy all of the terms and conditions of the Operative Agreements; and (d)
all Rent due and payable and other amounts due and payable by Lessee under any
Operative Agreement shall be paid on or prior to the date of such transfer and
conveyance.
ARTICLE XXIII
23.1 Holding Over.
If Lessee shall for any reason remain in possession of a
Property after the expiration or earlier termination of this Lease as to such
Property (unless such Property is conveyed to Lessee), such possession shall
be as a tenancy at sufferance during which time Lessee shall continue to pay
Supplemental Rent that would be payable by Lessee hereunder were the Lease then
in full force and effect with respect to such Property and Lessee shall
continue to pay Basic Rent at the lesser of the highest lawful rate and one
hundred ten percent (110%) of the last payment of Basic Rent due with respect
to such Property prior to such expiration or earlier termination of this Lease.
Such Basic Rent shall be payable from time to time upon demand by Lessor and
such additional amount of Basic Rent shall be applied by Lessor ratably to the
Lenders and the Holders based on their relative amounts of the then
outstanding aggregate Property Cost for all Properties. During any period of
tenancy at sufferance, Lessee
shall, subject to the second preceding sentence, be obligated to perform and
observe all of the terms, covenants and conditions of this Lease, but shall
have no rights hereunder other than the right, to the extent given by law to
tenants at sufferance, to continue their occupancy and use of such Property.
Nothing contained in this Article XXIII shall constitute the consent, express
or implied, of Lessor to the holding over of Lessee after the expiration or
earlier termination of this Lease as to any Property (unless such Property is
conveyed to Lessee) and nothing contained herein shall be read or construed as
preventing Lessor from maintaining a suit for possession of such Property or
exercising any other remedy available to Lessor at law or in equity.
ARTICLE XXIV
24.1 Risk of Loss.
During the Term, unless Lessee shall not be in actual
possession of any Property in question solely by reason of Lessor's exercise of
its remedies of dispossession under Article XVII, the risk of loss or decrease
in the enjoyment and beneficial use of such Property as a result of the damage
or destruction thereof by fire, the elements, casualties, thefts, riots, wars
or otherwise is assumed by Lessee, and Lessor shall in no event be answerable
or accountable therefor.
ARTICLE XXV
25.1 Assignment.
(a) Except as required pursuant to the Operative Agreements
, Lessee may not assign this Lease or any of its rights or obligations
hereunder or with respect to any Property in whole or in part to any Person
without the prior written consent of the Agent, the Lenders, the Holders and
Lessor, which consent shall be in such parties sole discretion.
(b) No assignment by Lessee (referenced in this Section
25.1 or otherwise) or other relinquishment of possession to any Property shall
in any way discharge or diminish any of the obligations of Lessee to Lessor
hereunder and Lessee shall remain directly and primarily liable under the
Operative Agreements as to any rights or obligations assigned by Lessee or
regarding any Property in which rights or obligations have been assigned or
otherwise transferred, unless any such Property is no longer subject to this
Lease.
25.2 Subleases.
(a) Promptly, but in any event within five (5) Business
Days, following the execution and delivery of any sublease permitted by this
Article XXV, Lessee shall notify Lessor of the execution of such sublease. As
of the Closing Date, Lessee shall lease the respective Property described in
such Lease Supplement from Lessor, and any existing tenant respecting such
Property shall automatically be deemed to be a subtenant of Lessee and not a
tenant of Lessor.
(b) Without the prior written consent of the Agent, any
Lender, any Holder or Lessor and subject to the other provisions of this
Section 25.2, Lessee may sublet any Property or portion thereof to any
wholly-owned Subsidiary of Lessee. Except as referenced in the immediately
preceding sentence, no other subleases shall be permitted unless consented to
in writing by Lessor. All subleasing shall be on market terms and shall in no
way diminish the fair market value or useful life of any applicable Property.
(c) No sublease (referenced in this Section 25.2 or
otherwise) or other relinquishment of possession to any Property shall in any
way discharge or diminish any of Lessee's obligations to Lessor hereunder and
Lessee shall remain directly and primarily liable under this Lease as to such
Property, or portion thereof, so sublet. The term of any such sublease shall
not extend beyond the Term. Each sublease shall be expressly subject and
subordinate to this Lease.
ARTICLE XXVI
26.1 No Waiver.
No failure by Lessor or Lessee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy upon a
default hereunder, and no acceptance of full or partial payment of Rent during
the continuance of any such default, shall constitute a waiver of any such
default or of any such term. To the fullest extent permitted by law, no waiver
of any default shall affect or alter this Lease, and this Lease shall continue
in full force and effect with respect to any other then existing or subsequent
default.
ARTICLE XXVII
27.1 Acceptance of Surrender.
No surrender to Lessor of this Lease or of all or any portion
of any Property or of any part of any thereof or of any interest therein shall
be valid or effective unless agreed to and accepted in writing by Lessor and
no act by Lessor or the Agent or any representative or agent of Lessor or the
Agent, other than a written acceptance, shall constitute an acceptance of any
such surrender.
27.2 No Merger of Title.
There shall be no merger of this Lease or of the leasehold
estate created hereby by reason of the fact that the same Person may acquire,
own or hold, directly or indirectly, in whole or in part, (a) this Lease or
the leasehold estate created hereby or any interest in this Lease or such
leasehold estate, (b) any right, title or interest in any Property, (c) any
Notes, or (d) a beneficial interest in Lessor.
ARTICLE XXVIII
28.1 Incorporation of Covenants.
Reference is made to the Lessee Credit Agreement and the
representations and warranties of Lessee contained in Section 8 of the Lessee
Credit Agreement (hereinafter referred to as the "Incorporated Representations
and Warranties") and the covenants contained in Sections 7 and 9 of the Lessee
Credit Agreement (hereinafter referred to as the "Incorporated Covenants").
Lessee agrees with Lessor that the Incorporated Representations and Warranties
and the Incorporated Covenants (and all other relevant provisions of the
Lessee Credit Agreement related thereto, including without limitation the
defined terms contained in Section 1 thereof which are used in the Incorporated
Representations and Warranties and the Incorporated Covenants, hereinafter
referred to as the "Additional Incorporated Terms") are hereby incorporated by
reference into this Lease to the same extent and with the same effect as if
set forth fully herein and shall inure to the benefit of Lessor, without giving
effect to any waiver,
amendment, modification or replacement of the Lessee Credit Agreement or any
term or provision of the Incorporated Representations and Warranties or the
Incorporated Covenants occurring subsequent to the date of this Lease, except
to the extent otherwise specifically provided in the following provisions of
this paragraph. In the event a waiver is granted under the Lessee Credit
Agreement or an amendment or modification is executed with respect to the
Lessee Credit Agreement, and such waiver, amendment and/or modification affects
the Incorporated Representations and Warranties, the Incorporated Covenants or
the Additional Incorporated Terms, then such waiver, amendment or modification
shall be effective with respect to the Incorporated Representations and
Warranties, the Incorporated Covenants and the Additional Incorporated Terms as
incorporated by reference into this Lease only if consented to in writing by
the Agent (acting upon the direction of the Tranche A Lenders). In the event
of any replacement of
the Lessee Credit Agreement with a similar credit facility (the "New Facility")
the representations and warranties, covenants and additional terms contained
in the New Facility which correspond to the representations and warranties,
covenants contained in Section 8 and Sections 7 and 9, respectively, and such
additional terms (each of the foregoing contained in the Lessee Credit
Agreement) shall become the Incorporated Representations and Warranties, the
Incorporated Covenants and the Additional Incorporated Terms only if consented
to in writing by the Agent (acting upon the direction of the Tranche A
Lenders) and, if such consent is not granted or if the Lessee Credit Agreement
is terminated and not replaced, then the representations and warranties and
covenants contained in Section 8 and Sections 7 and 9, respectively, and such
additional terms (each of the foregoing contained in the Lessee Credit
Agreement (together with any modifications or amendments approved in
accordance with this paragraph)) shall
continue to be the Incorporated Representations and Warranties, the
Incorporated Covenants and the Additional Incorporated Terms hereunder.
ARTICLE XXIX
29.1 Notices.
All notices required or permitted to be given under this Lease
shall be in writing and delivered as provided in the Participation Agreement.
ARTICLE XXX
30.1 Miscellaneous.
Anything contained in this Lease to the contrary
notwithstanding, all claims against and liabilities of Lessee or Lessor arising
from events commencing prior to the expiration or earlier termination of this
Lease shall survive such expiration or earlier termination. If any provision
of this Lease shall be held to be unenforceable in any jurisdiction, such
unenforceability shall not affect the enforceability of any other provision of
this Lease and such jurisdiction or of such provision or of any other provision
hereof in any other jurisdiction.
30.2 Amendments and Modifications.
Neither this Lease nor any Lease Supplement may be amended,
waived, discharged or terminated except in accordance with the provisions of
Section 12.4 of the Participation Agreement.
30.3 Successors and Assigns.
All the terms and provisions of this Lease shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
30.4 Headings and Table of Contents.
The headings and table of contents in this Lease are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
30.5 Counterparts.
This Lease may be executed in any number of counterparts, each
of which shall be an original, but all of which shall together constitute one
(1) and the same instrument.
30.6 GOVERNING LAW.
THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW)
, EXCEPT TO THE EXTENT THE LAWS OF THE STATE WHERE A PARTICULAR PROPERTY IS
LOCATED ARE REQUIRED TO APPLY.
30.7 Calculation of Rent.
All calculation of Rent payable hereunder shall be computed
based on the actual number of days elapsed over a year of three hundred sixty
(360) days.
30.8 Memoranda of Lease and Lease Supplements.
This Lease shall not be recorded; provided, Lessor and Lessee
shall promptly record a memorandum of this Lease and the applicable Lease
Supplement (in substantially the form of EXHIBIT B attached hereto) or a short
form lease (in form and substance reasonably satisfactory to Lessor) regarding
each Property promptly after the acquisition thereof in the local filing
office with respect thereto, in all cases at Lessee's cost and expense, and as
required under applicable law to sufficiently evidence this Lease and any such
Lease Supplement in the applicable real estate filing records.
30.9 Allocations between the Lenders and the Holders.
Notwithstanding any other term or provision of this Lease to
the contrary, the allocations of the proceeds of the Properties and any and all
other Rent and other amounts received hereunder shall be subject to the
inter-creditor provisions between the Lenders and the Holders contained in the
Operative Agreements (or as otherwise agreed among the Lenders and the Holders
from time to time).
30.10 Limitations on Recourse.
Notwithstanding anything contained in this Lease to the
contrary, Lessee agrees to look solely to Lessor's estate and interest in the
Properties and the rents, issues and profits therefrom (and in no circumstance
to the Agent, the Lenders, the Holders, the Owner Trustee, the Trust Company
or otherwise to Lessor) for the collection of any judgment requiring the
payment of money by Lessor in the event of liability by Lessor, and no other
property or assets of Lessor or any shareholder, owner or partner (direct or
indirect) in or of Lessor, or any director, officer, employee, beneficiary,
Affiliate of any of the foregoing shall be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Lessee under or
with respect to this Lease, the relationship of Lessor and Lessee hereunder or
Lessee's use of the Properties or any other liability of Lessor to Lessee.
Nothing in this Section shall be interpreted so as to limit the terms of
Sections 6.1 or 6.2 or the
provisions of Section 12.9 of the Participation Agreement.
30.11 WAIVERS OF JURY TRIAL.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY, TO
THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS LEASE AND FOR ANY COUNTERCLAIM THEREIN.
30.12 Exercise of Lessor Rights.
Lessee hereby acknowledges and agrees that the rights and
powers of Lessor under this Lease have been assigned to the Agent pursuant to
the terms of the Security Agreement and the other Operative Agreements. Lessor
and Lessee hereby acknowledge and agree that (a) the Agent shall, in its
discretion, direct and/or act on behalf of Lessor pursuant to the provisions of
Sections 8.2(h) and 8.6 of the Participation Agreement, (b) all notices to be
given to Lessor shall be given to the Agent and (c) all notices to be given by
Lessor may be given by the Agent, at its election.
30.13 SUBMISSION TO JURISDICTION AND VENUE.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO
SUBMISSION TO JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE
HEREIN, MUTATIS MUTANDIS.
30.14 USURY SAVINGS PROVISION.
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND
CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN
EFFECT. TO THE EXTENT ANY RENT OR PAYMENTS HEREUNDER ARE HEREINAFTER
CHARACTERIZED BY ANY COURT OF COMPETENT JURISDICTION AS THE REPAYMENT OF
PRINCIPAL AND INTEREST THEREON, THIS SECTION 30.14 SHALL APPLY. ANY SUCH RENT
OR PAYMENTS SO CHARACTERIZED AS INTEREST MAY BE REFERRED TO HEREIN AS
"INTEREST." ALL AGREEMENTS AMONG THE PARTIES HERETO ARE HEREBY LIMITED BY THE
PROVISIONS OF THIS PARAGRAPH WHICH SHALL OVERRIDE AND CONTROL ALL SUCH
AGREEMENTS, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER WRITTEN OR
ORAL. IN NO WAY, NOR IN ANY EVENT OR CONTINGENCY (INCLUDING WITHOUT LIMITATION
PREPAYMENT OR ACCELERATION OF THE MATURITY OF ANY OBLIGATION), SHALL ANY
INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR RECEIVED UNDER THIS LEASE
OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER
APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION
OF ANY OF THE OPERATIVE AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST
WOULD OTHERWISE BE PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY
SUCH CONSTRUCTION SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH
AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED TO
THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW, WITHOUT THE
NECESSITY OF EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT. IF
LESSOR SHALL EVER RECEIVE ANYTHING OF VALUE WHICH IS CHARACTERIZED AS INTEREST
WITH RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR UNDER APPLICABLE LAW AND
WHICH WOULD, APART FROM THIS PROVISION, BE IN EXCESS OF THE MAXIMUM LAWFUL
AMOUNT, AN AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE INTEREST
SHALL, WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF THE COMPONENT OF
PAYMENTS DEEMED TO BE PRINCIPAL AND NOT TO THE PAYMENT OF INTEREST, OR REFUNDED
TO LESSEE OR ANY OTHER PAYOR THEREOF, IF AND TO THE EXTENT SUCH AMOUNT WHICH
WOULD HAVE BEEN EXCESSIVE
EXCEEDS THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL. THE RIGHT TO DEMAND
PAYMENT OF ANY AMOUNTS EVIDENCED BY ANY OF THE OPERATIVE AGREEMENTS DOES NOT
INCLUDE THE RIGHT TO RECEIVE ANY INTEREST WHICH HAS NOT OTHERWISE ACCRUED ON
THE DATE OF SUCH DEMAND, AND LESSOR DOES NOT INTEND TO CHARGE OR RECEIVE ANY
UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND. ALL INTEREST PAID OR AGREED TO
BE PAID TO LESSOR SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE
AMORTIZED, PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED TERM
(INCLUDING WITHOUT LIMITATION ANY RENEWAL OR EXTENSION) OF THIS LEASE SO THAT
THE AMOUNT OF INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE MAXIMUM
NONUSURIOUS AMOUNT PERMITTED BY APPLICABLE LAW.
[signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Lease to be duly
executed and delivered as of the date first above written.
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Owner Trustee under the 1995 Pep Boys Leased Property Trust and
the 1997 Pep Boys II Leased Property Trust (as applicable)
By:
Name:
Title:
[signature pages continue]
THE PEP BOYS - MANNY, MOE & XXXX
By:
Name:
Title:
THE PEP BOYS XXXXX XXX & XXXX OF CALIFORNIA
By:
Name:
Title:
PEP BOYS - MANNY, MOE & XXXX OF DELAWARE, INC.
By:
Name:
Title:
[signature pages continue]
Receipt of this original
counterpart of the foregoing
Lease is hereby acknowledged
as the date hereof
FIRST UNION NATIONAL BANK,
as the Agent
By:
Name:
Title:
[signature pages end]
Schedule 22.6
Out Parcels Approved at Closing
Description of
Out Parcel Property
Location
Lessee
Trust Purchase
Price
Purchaser Expected Date
of Purchase
Undeveloped Land 0000 Xxxx Xxxxx Xx.
Xxxxxxxxx, XX "Penn"
"Pep II"
T/B/D T/B/D T/B/D
Undeveloped Land 0000 Xxxx Xxxxx
Xxxxxx, XX "Del"
"Pep I"
T/B/D T/B/D T/B/D
Undeveloped Land 000 Xxxx Xxxxx Xx.
Xxxxxxxxx, XX
"Del"
"Pep I"
T/B/D T/B/D T/B/D
"Penn" = The Pep Boys - Manny, Moe & Xxxx
"Del" = Pep Boys - Manny, Moe & Xxxx of Delaware, Inc.
"Pep I" = 1995 Pep Boys Leased Property Trust
"Pep II" = 1997 Pep Boys II Leased Property Trust
EXHIBIT A TO THE LEASE
LEASE SUPPLEMENT NO. ___
THIS LEASE SUPPLEMENT NO. ___ (this "Lease Supplement") dated as of
___________, 200___ between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT
, NATIONAL ASSOCIATION, a national banking association, as Owner Trustee under
the [1995 Pep Boys Leased Property Trust / 1997 Pep Boys II Leased Property
Trust], as lessor (the "Lessor"), and [___________________, a ____________]
corporation, as lessee (the "Lessee").
WHEREAS, Lessor is the owner or will be the owner of the Property
described on Schedule 1 hereto (the "Leased Property") and wishes to lease the
same to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions; Rules of Usage. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in Appendix A to the Participation
Agreement, dated as of September 22, 2000, among Lessee, Lessor, not
individually, except as expressly stated therein, but solely as the Owner
Trustee under the 1995 Pep Boys Leased Property Trust and the 1997 Pep Boys II
Leased Property Trust (as applicable), the various banks and other lending
institutions which are parties thereto from time to time, as the Holders, the
various banks and other lending institutions which are parties thereto from
time to time, as the Lenders, and First Union National Bank, as the Agent for
the Lenders and respecting the Security Documents, as the Agent for the Secured
Parties, as such may be amended, modified, extended, supplemented, restated
and/or replaced from time to time.
SECTION 2. The Properties. Attached hereto as Schedule 1 is the
description of the Leased Property, with an Equipment Schedule attached hereto
as Schedule 1-A, an Improvement Schedule attached hereto as Schedule 1-B and a
legal description of the Land attached hereto as Schedule 1-C. Effective upon
the execution and delivery of this Lease Supplement by Lessor and Lessee, the
Leased Property shall be subject to the terms and provisions of the Lease.
Without further action, any and all additional Equipment funded under the
Operative Agreements and any and all additional Improvements made to the Land
shall be deemed to be titled to the Lessor and subject to the terms and
conditions of the Lease and this Lease Supplement.
This Lease Supplement shall constitute a mortgage, deed of trust,
security agreement and financing statement under the laws of the state in which
the Leased Property is situated. The maturity date of the obligations secured
hereby shall be [___________] unless extended to not later than [___________].
For purposes of provisions of the Lease and this Lease Supplement
related to the creation and enforcement of the Lease and this Lease Supplement
as a security agreement and a fixture filing, Lessee is the debtor and Lessor
is the secured party. The mailing addresses of the debtor (Lessee herein) and
of the secured party (Lessor herein) from which information concerning
security interests hereunder may be obtained are set forth on the signature
pages hereto. A carbon, photographic or other reproduction of the Lease and
this Lease Supplement or of any financing statement related to the Lease and
this Lease Supplement shall be sufficient as a financing statement for any of
the purposes referenced herein.
SECTION 3. Use of Property. At all times during the Term with respect
to each Property, Lessee will comply with all obligations under and (to the
extent no Event of Default exists and provided, that such exercise will not
impair the value of such Property) shall be permitted to exercise all rights
and remedies under, all operation and easement agreements and related or
similar agreements applicable to such Property.
SECTION 4. Ratification; Incorporation by Reference. Except as
specifically modified hereby, the terms and provisions of the Lease and the
Operative Agreements are hereby ratified and confirmed and remain in full
force and effect. The Lease is hereby incorporated herein by reference as
though restated herein in its entirety.
SECTION 5. Original Lease Supplement. The single executed original of
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the original
executed counterpart of this Lease Supplement (the "Original Executed
Counterpart"). To the extent that this Lease Supplement constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY
AND CONSTRUED, INTERPRETED TO AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF [__________] (WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE LAWS OF THE
STATE WHERE A PARTICULAR PROPERTY IS LOCATED ARE REQUIRED TO APPLY.
SECTION 7. Mortgage; Power of Sale. Without limiting any other
remedies set forth in the Lease, in the event that a court of competent
jurisdiction rules that the Lease constitutes a mortgage, deed of trust or
other secured financing as is the intent of the parties, then Lessor and Lessee
agree that Lessee hereby grants a Lien against the Leased Property WITH POWER
OF SALE, and that, upon the occurrence of any Lease Event of Default, Lessor
shall have the power and authority, to the extent provided by law, after prior
notice and lapse of such time as may be required by law, to foreclose its
interest (or cause such interest to be foreclosed) in all or any part of the
Leased Property.
SECTION 8. Counterpart Execution. This Lease Supplement may be
executed in any number of counterparts and by each of the parties hereto in
separate counterparts, all such counterparts together constituting but one (1)
and the same instrument.
For purposes of the provisions of this Lease Supplement concerning this
Lease Supplement constituting a security agreement and fixture filing, the
addresses of the debtor (Lessee herein) and the secured party (Lessor herein),
from whom information may be obtained about this Lease Supplement, are as set
forth on the signature pages hereto.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of
the date and year first above written.
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, as
Owner Trustee under the [1995 Pep Boys Leased Property Trust / 1997 Pep Boys
II Leased Property Trust], as Lessor
By:
Name:
Title:
State Street Bank and Trust Company of Connecticut, National Association
000 Xxxxxx Xxxxxx, Xxxxxxx Square
Hartford, CT 06103
Attention: Corporate Trust Department
Telephone:
Telecopy:
[LESSEE], as Lessee
By:
Name:
Title:
[LESSEE ADDRESS]
Attn:
Receipt of this original counterpart of the foregoing Lease Supplement is
hereby acknowledged as the date hereof.
FIRST UNION NATIONAL BANK, as
the Agent
By:
Name:
Title:
First Union National Bank
c/o First Union Securities, Inc.
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
SCHEDULE 1
TO LEASE SUPPLEMENT NO. ____
(Description of the Leased Property)
SCHEDULE 1-A
TO LEASE SUPPLEMENT NO. ____
(Equipment)
SCHEDULE 1-B
TO LEASE SUPPLEMENT NO. ____
(Improvements)
SCHEDULE 1-C
TO LEASE SUPPLEMENT NO. ____
(Land)
EXHIBIT B TO THE LEASE
[MODIFY OR SUBSTITUTE SHORT FORM LEASE AS
NECESSARY FOR LOCAL LAW REQUIREMENTS]
Recordation requested by:
Xxxxx & Xxx Xxxxx, PLLC
After recordation return to:
Xxxxx & Xxx Xxxxx, PLLC (WMA)
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, XX 00000-0000
Space above this line
for Recorder's use
MEMORANDUM OF LEASE AGREEMENT
AND
LEASE SUPPLEMENT NO. ____
THIS MEMORANDUM OF LEASE AGREEMENT AND LEASE SUPPLEMENT NO. ____
("Memorandum"), dated as of _____________, 200___, is by and between STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, as Owner Trustee under the 1995 Pep Boys Leased Property
Trust and the 1997 Pep Boys II Leased Property Trust (as applicable), with an
office at [______________________] (hereinafter referred to as "Lessor") and
[_______________, a __________] corporation, with an office at
[___________________] (hereinafter referred to as "Lessee").
WITNESSETH:
That for value received, Lessor and Lessee do hereby covenant, promise
and agree as follows:
1. Demised Premises and Date of Lease. Lessor has leased to
Lessee, and Lessee has leased from Lessor, for the Term (as hereinafter
defined), certain real property and other property located in ________________,
which is described in the attached Schedule 1 (the "Property"), pursuant to
the terms of a Lease Agreement between Lessor and Lessee dated as of
[__________, 200__] (as such may be amended, modified, extended, supplemented,
restated and/or replaced from time to time, "Lease") and a Lease Supplement
No. _____ between Lessor and Lessee dated as of ______________
(the "Lease Supplement").
The Lease and the Lease Supplement shall constitute a mortgage, deed of
trust and security agreement and financing statement under the laws of the
state in which the Property is situated. The maturity date of the obligations
secured thereby shall be ___________, unless extended to not later than
___________.
For purposes of provisions of the Lease and the Lease Supplement
related to the creation and enforcement of the Lease and the Lease Supplement
as a security agreement and a fixture filing, Lessee is the debtor and Lessor
is the secured party. The mailing addresses of the debtor (Lessee herein) and
of the secured party (Lessor herein) from which information concerning
security interests hereunder may be obtained are as set forth on the signature
pages hereof. A carbon, photographic or other reproduction of this Memorandum
or of any financing statement related to the Lease and the Lease Supplement
shall be sufficient as a financing statement for any of the purposes referenced
herein.
2. Term, Renewal, Extension and Purchase Option. The term of the
Lease for the Property ("Term") commenced as of __________, 200__ and shall
end as of _________, 200__, unless the Term is extended or earlier terminated
in accordance with the provisions of the Lease. The Lease contains provisions
for renewal and extension. The tenant has a purchase option under the Lease.
3. Tax Payer Numbers.
Lessor's tax payer number: __________________.
Lessee's tax payer number: __________________.
4. Mortgage; Power of Sale. Without limiting any other remedies
set forth in the Lease, in the event that a court of competent jurisdiction
rules that the Lease constitutes a mortgage, deed of trust or other secured
financing as is the intent of the parties, then Lessor and Lessee agree that
Lessee has granted, pursuant to the terms of the Lease and the Lease Supplement
, a Lien against the Property WITH POWER OF SALE, and that, upon the occurrence
and during the continuance of any Lease Event of Default, Lessor shall have
the power and authority, to the extent provided by law, after prior notice and
lapse of such time as may be required by law, to foreclose its interest (or
cause such interest to be foreclosed) in all or any part of the Property.
5. Effect of Memorandum. The purpose of this instrument is to
give notice of the Lease and the Lease Supplement and their respective terms,
covenants and conditions to the same extent as if the Lease and the Lease
Supplement were fully set forth herein. This Memorandum shall not modify in
any manner the terms, conditions or intent of the Lease or the Lease Supplement
and the parties agree that this Memorandum is not intended nor shall it be
used to interpret the Lease or the Lease Supplement or determine the intent of
the parties under the Lease or the Lease Supplement.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LESSOR:
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Owner Trustee under the 1995 Pep Boys Leased Property Trust
and the 1997 Pep Boys II Leased Property Trust (as applicable)
By:
Name:
Title:
State Street Bank and Trust Company of Connecticut, National Association
000 Xxxxxx Xxxxxx, Xxxxxxx Square
Hartford, CT 06103
Attention: Corporate Trust Department
Telephone:
Telecopy:
LESSEE:
[ ]
By:
Name:
Title:
[LESSEE ADDRESS]
Attn:
SCHEDULE 1
(Description of Property)
[CONFORM TO STATE LAW REQUIREMENTS]
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Memorandum of Lease Agreement and Lease Supplement
No. _____ was acknowledged before me, the undersigned Notary Public, in the
County of _________________ this _____ day of ______________,
by ________________, as __________________ of STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association,
as Owner Trustee under the 1995 Pep Boys Leased Property Trust and the 1997
Pep Boys II Leased Property Trust (as applicable), on behalf of the Owner
Trustee.
[Notarial Seal]
Notary Public
My commission expires: ____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Memorandum of Lease Agreement and Lease Supplement
No. _____ was acknowledged before me, the undersigned Notary Public, in the
County of _________________ this _____ day of ______________,
by ________________, as __________________ of [_______________, a __________]
corporation, on behalf of the corporation.
[Notarial Seal]
Notary Public
My commission expires: ____________
