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PURCHASE AGREEMENT
Between
FAIR, XXXXX AND COMPANY, INC.
And
LEASE PLAN NORTH AMERICA, INC.
May 15, 1998
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TABLE OF CONTENTS
Page
SECTION 1. INTERPRETATION......................................................1
1.01. Definitions.........................................................1
1.02. Rules of Construction...............................................2
SECTION 2. OPTIONAL PURCHASE BY LESSEE DURING THE TERM.........................2
2.01. Term Purchase Option................................................2
2.02. Partial Purchase Option.............................................3
SECTION 3. OBLIGATIONS OF LESSEE ON THE EXPIRATION DATE........................4
3.01. Alternative.........................................................4
3.02. Marketing Option....................................................4
3.03. Expiration Date Purchase Option.....................................9
SECTION 4. TERMS OF ALL PURCHASES.............................................10
4.01. Representations and Warranties of Parties..........................10
4.02. "As Is" Purchase...................................................12
4.03. Release............................................................12
4.04. Permits, Approvals, Etc. ..........................................13
4.05. Costs..............................................................13
4.06. Lessee's Expiration Date and Partial Purchase Date
Payment Obligations..............................................13
4.07. Lessor Liens.......................................................14
4.08. Transfer Documents.................................................14
4.09. Casualty and Condemnation Proceeds.................................14
4.10. Payments...........................................................15
4.11. Environmental Reports..............................................15
4.12. Further Assurances.................................................15
SECTION 5. MISCELLANEOUS......................................................15
5.01. Notices............................................................15
5.02. Waivers, Amendments................................................15
5.03. Successors and Assigns.............................................15
5.04. No Third Party Rights..............................................16
5.05. Partial Invalidity.................................................16
5.06. Governing Law......................................................16
5.07. Counterparts.......................................................16
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TABLE OF CONTENTS
(continued)
Page
5.08. Nature of Lessee's Obligations.....................................16
-ii-
TABLE OF CONTENTS
EXHIBITS
A(1) Notice of Term Purchase Option Exercise (2.02)
A(2) Notice of Partial Purchase Option Exercise (2.02)
B Notice of Marketing Option Exercise (3.01)
C Notice of Expiration Date Purchase Option Exercise (3.02)
D Deed (Lessor) (4.08(a))
E Xxxx of Sale (Lessor) (4.08(a))
7-i-
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement" herein), dated as of May 15,
1998, is entered into by and between:
(1) FAIR, XXXXX AND COMPANY, INC., a Delaware corporation
("Lessee"); and
(2) LEASE PLAN NORTH AMERICA, INC., an Illinois corporation
("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions which are
"Participants" under the Participation Agreement referred to in Recital B below
(such financial institutions to be referred to collectively as the
"Participants") to provide to Lessee a lease facility pursuant to which:
(1) Lessor would (a) purchase certain property designated by
Lessee, (b) lease such property to Lessee, (c) appoint Lessee as
Lessor's agent to make certain improvements to such property, (d) make
advances to finance such improvements and to pay certain related
expenses, and (e) grant to Lessee the right to purchase such property;
and
(2) The Participants would participate in such lease facility
by (a) funding the purchase price and other advances to be made by
Lessor, and (b) acquiring participation interests in the rental and
certain other payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated as of May 15, 1998 (the
"Participation Agreement") among Lessee, Lessor, the Participants and ABN AMRO
Bank N.V., as agent for the Participants (in such capacity, "Agent"), Lessor and
the Participants have agreed to provide such lease facility upon the terms and
subject to the conditions set forth therein, including without limitation the
execution and delivery of this Agreement setting forth the terms for the
purchase of the Property by Lessee from Lessor.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in
EXHIBIT 10.40
this Agreement or any other Operative Document, shall have the respective
meaning given to that term in such Schedule 1.01 or in the provision of this
Agreement or other document, instrument or agreement referenced in such Schedule
1.01.
1.02. Rules of Construction. Unless otherwise indicated in this
Agreement or any other Operative Document, the rules of construction set forth
in Schedule 1.02 to the Participation Agreement shall apply to this Agreement
and the other Operative Documents.
SECTION 2. OPTIONAL PURCHASE BY LESSEE DURING THE TERM.
2.01. Term Purchase Option. Subject to the terms and conditions of this
Agreement and the other Operative Documents (including those set forth below in
this Paragraph 2.01), Lessee may, at its option on any Business Day prior to the
Scheduled Expiration Date of the Lease Agreement, terminate the Lease Agreement
and purchase all of the Property (the "Term Purchase Option").
(a) Notice of Term Purchase Option Exercise. Lessee shall
notify Lessor of Lessee's exercise of the Term Purchase Option by
delivering to Lessor an irrevocable written notice in the form of
Exhibit A(1), appropriately completed (the "Notice of Term Purchase
Option Exercise"), which states that Lessee is exercising its right to
terminate the Lease Agreement prior to the Scheduled Expiration Date
thereof pursuant to Paragraph 4.01 of the Lease Agreement and purchase
all of the Property pursuant to this Paragraph 2.01 and specifies the
Business Day on which such termination and purchase are to occur (which
date, after the delivery of such notice, shall be the Expiration Date).
Lessee shall give the Notice of Term Purchase Option Exercise to Lessor
at least ten (10) Business Days prior to the Business Day on which such
termination and purchase are to occur. The Notice of Term Purchase
Option Exercise shall be delivered as required by Subparagraph 2.02(c)
and Paragraph 7.01 of the Participation Agreement; provided, however,
that Lessee shall promptly deliver the original of any Notice of Term
Purchase Option Exercise initially delivered by facsimile.
(b) Term Purchase Option Purchase Price. Lessee shall pay to
Lessor on the Expiration Date, as the purchase price for the Property,
an amount equal to the Outstanding Lease Amount on such date.
(c) Effect of Certain Events. Lessee may exercise the Term
Purchase Option as provided in this Paragraph 2.01, notwithstanding (i)
the prior election by Lessee to exercise the Partial Purchase Option
pursuant to Paragraph 2.02, the Marketing Option pursuant to Paragraph
3.01 and Paragraph 3.02 or the Expiration Date Purchase Option pursuant
to Paragraph 3.01 and Paragraph 3.03, provided that Lessor completes
the purchase of the Property pursuant to the Term Purchase Option and
this Agreement prior to the Scheduled Expiration Date and Lessor has
not previously entered into an agreement with a Designated Purchaser or
an Assignee Purchaser to sell the Property or (ii) the occurrence of
any Event of Default or the exercise by the Lessor Parties of any of
their rights or remedies under the Operative Documents following the
occurrence of such Event of Default, provided that such exercise by
Lessee of the Term Purchase Option
2
after the occurrence of any Event of Default shall not require the
Lessor Parties to cease exercising such rights and remedies unless and
until Lessee completes the purchase of the Property pursuant to the
Term Purchase Option and this Agreement.
2.02. Partial Purchase Option. Subject to the terms and conditions of
this Agreement and the other Operative Documents (including those set forth
below in this Paragraph 2.02), Lessee may from time to time, at its option on
any Business Day prior to the Scheduled Expiration Date of the Lease Agreement,
without terminating the Lease Agreement, purchase one or more legal parcels of
property included in any Tract (a "Sub-Tract Parcel") of the Property (the
"Partial Purchase Option").
(a) Notice of Partial Purchase Option Exercise. Lessee shall
notify Lessor of Lessee's exercise of the Partial Purchase Option by
delivering to Lessor an irrevocable written notice in the form of
Exhibit A(2), appropriately completed (the "Notice of Partial Purchase
Option Exercise"), which states that Lessee is exercising its right to
purchase one or more Sub-Tract Parcels of the Property (but less than
all of the Property) prior to the Scheduled Expiration Date pursuant to
this Paragraph 2.02 and specifies (i) the Sub-Tract(s) so to be
purchased and (ii) the Business Day on which such purchase is to occur
(a "Partial Purchase Date"). Lessee shall give each Notice of Partial
Purchase Option Exercise to Lessor at least ten (10) Business Days
prior to the Partial Purchase Date on which a purchase is to occur.
Each Notice of Partial Purchase Option Exercise shall be delivered as
required by Subparagraph 2.02(c) and Paragraph 7.01 of the
Participation Agreement; provided, however, that Lessee shall promptly
deliver the original of any Notice of Partial Purchase Option Exercise
initially delivered by facsimile.
(b) Partial Purchase Option Purchase Price. Lessee shall pay
to Lessor on each Partial Purchase Date, as the purchase price for each
Sub-Tract of Property to be purchased on such date, an amount equal to
the purchase price of such Sub-Tract, as set forth on Schedule 1 to
Exhibit A(2) (the "Sub-Tract Purchase Price")
(c) Conditions to Exercise of Partial Purchase Option. The
purchase by Lessee on any Partial Purchase Date of any Sub-Tract of
Property pursuant to this Paragraph 2.02 is subject to receipt by
Lessor, on or prior to such Partial Purchase Date, of new Expiration
Date Appraisals for all Sub-Tracts and Tracts of Property that are to
remain subject to the Lease Agreement after such Partial Purchase Date,
which appraisals (i) each shall be dated a recent date prior to such
Partial Purchase Date and (ii) together shall assess the aggregate Fair
Market Value of all such remaining Sub-Tracts and Tracts of Property at
not less than the Outstanding Lease Amount that will remain after
application of all amounts to be applied thereto on such Partial
Purchase Date.
(d) Limitations to Exercise of Partial Purchase Option as to
the Tract 2 Land. Such other limitations with respect to the exercise
of the Partial Purchase Option on the Sub-Tracts within the Tract 2
Land as Lessor may reasonably request prior to the Tract 2 Acquisition
Date.
(e) Upon delivery of any revised Expiration Date Appraisal
pursuant to Subparagraph 5.01(h) of the Participation Agreement,
Schedule 1 to Exhibit A-2 shall be
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revised in accordance with such revised Expiration Date Appraisal.
SECTION 3. OBLIGATIONS OF LESSEE ON THE EXPIRATION DATE.
3.01. Alternative. Unless Lessee has exercised the Term Purchase
Option, on the Expiration Date of the Lease Agreement, Lessee shall either:
(a) Marketing Option. Cause another Person to complete the
purchase of the Property pursuant to Paragraph 3.02 (the "Marketing
Option"); or
(b) Expiration Date Purchase Option. Purchase the Property
itself pursuant to Paragraph 3.03 (the "Expiration Date Purchase
Option").
Lessee shall elect either the Marketing Option or the Expiration Date Purchase
Option by delivering to Lessor, not less than six (6) months prior to the
Scheduled Expiration Date for the Lease Agreement, either (i) a written notice
in the form of Exhibit B, appropriately completed (the "Notice of Marketing
Option Exercise"), or (ii) a written notice in the form of Exhibit C,
appropriately completed (the "Notice of Expiration Date Purchase Option
Exercise"); provided, however, that (A) Lessee shall be deemed to have elected
the Expiration Date Purchase Option if it fails to deliver either notice as
required by this sentence; (B) Lessee's election of the Expiration Date Purchase
Option (whether expressly by a notice so delivered or implicitly by the failure
to deliver any notice) shall be irrevocable; and (C) Lessee may not elect the
Marketing Option if (1) the Expiration Date has been accelerated to an earlier
Termination Date following a Marketing Option Event of Default under the Lease
Agreement or (2) the conditions set forth in Paragraph 3.03 of the Participation
Agreement are not satisfied on the date Lessee delivers its election notice or
on the Expiration Date of the Lease Agreement (unless, in each case, the only
event or condition causing such conditions not to be so satisfied is the
occurrence of a Non-Marketing Option Event of Default under the Lease
Agreement). The Notice of Marketing Option Exercise or the Notice of Expiration
Date Purchase Option Exercise shall be delivered as required by Subparagraph
2.02(c) and Paragraph 7.01 of the Participation Agreement; provided, however,
that Lessee shall promptly deliver to Lessor the original of any such notice
initially delivered by facsimile.
3.02. Marketing Option.
(a) General. If Lessee elects to exercise the Marketing Option
by delivering to Lessor a Notice of Marketing Option Exercise pursuant
to Paragraph 3.01, Lessee shall (i) locate a purchaser which satisfies
the requirements set forth in this Paragraph 3.02, (ii) arrange for
such purchaser to purchase the Property on the Expiration Date for a
purchase price which is not less than the lesser of (A) the sum of the
total Tranche B Proportionate Share and total Tranche C Proportionate
share of the Outstanding Lease Amount and (B) the Fair Market Value of
the Property, and (iii) otherwise comply, or cause compliance with, the
requirements of this Paragraph 3.02 and the other applicable provisions
of this Agreement.
(b) Lessee's Marketing Obligations.
4
(i) Initial Marketing Period. During the period
beginning on the date Lessee delivers the Notice of Marketing
Option Exercise and ending on the date which is four (4)
months prior to the Expiration Date of the Lease Agreement
(the "Initial Marketing Period"), Lessee shall use reasonable
efforts to solicit Conforming Bids from potential purchasers
of the Property. On or prior to the last day of the Initial
Marketing Period, Lessee shall deliver to Lessor any
Conforming Bid selected by Lessee (the "Initial Bid"). If the
purchase price specified in the Initial Bid is equal to or
greater than the sum of the total Tranche B Proportionate
Share and the total Tranche C Proportionate Share of the
Outstanding Lease Amount, Lessor shall accept such bid and
Lessee shall have no further obligations to solicit additional
bids.
(ii) Secondary Marketing Period. If Lessee does not
submit an Initial Bid or if the purchase price specified in
the Initial Bid is less than the sum of the total Tranche B
Proportionate Share and the total Tranche C Proportionate
Share of the Outstanding Lease Amount, Lessor may reject such
bid and Lessee shall, during the period which begins on the
day following the Initial Marketing Period and ends on the
date two (2) months prior to the Expiration Date of the Lease
Agreement (the "Secondary Marketing Period"):
(A) Use its best efforts to solicit
additional Conforming Bids, including the engagement
of experienced and knowledgeable brokers;
(B) Furnish to each Lessor Party copies of
all bids and otherwise provide each Lessor Party with
such information relating to the marketing of the
Property as such Person may reasonably request in
writing;
(C) Agree to provide to all potential
purchasers all customary seller's indemnities
(including environmental indemnities),
representations and warranties regarding the Property
(including the title to, except for Lessor Liens, and
condition of the Property);
(D) Furnish to each Lessor Party copies of
environmental reports, architect's certificates,
licenses, permits and other evidence reasonably
requested by such Person to establish that no Default
has occurred and is continuing under the Lease
Agreement;
(E) Permit any Lessor Party or potential
purchaser to inspect the Property and the maintenance
records for the Property upon reasonable prior
written notice and during normal business hours and
provide to each such Person all information regarding
the Property reasonably requested by such Person in
writing;
(F) Take all other commercially reasonable
steps to secure the best price for the Property; and
5
(G) Submit to Lessor on or prior to the last
day of the Secondary Marketing Period any Conforming
Bid selected by Lessee with a purchase price which is
equal to or greater than the sum of the total Tranche
B Proportionate Share and the total Tranche C
Proportionate Share of the Outstanding Lease Amount
or, if no such Conforming Bid was received by Lessee,
the highest Conforming Bid received by Lessee during
the Secondary Marketing Period.
During the Secondary Marketing Period, any Lessor Party shall
have the right to submit one or more bids or solicit bids from
other Persons.
(c) Conforming Bids. Each bid must meet each of the following
requirements (each such bid to be referred to herein as a "Conforming
Bid"):
(i) The bid may be submitted by any Person other than
(A) a Person which is an Affiliate of Lessee or (B) a Person
which has an agreement (whether express or implied) with
Lessee or any of its Affiliates to sell, lease or otherwise
make available to Lessee or any of its Affiliates any portion
of the Property;
(ii) The bidder must agree in writing to purchase the
Property on the Expiration Date of the Lease Agreement for a
purchase price to be paid in cash which is not less than the
lesser of (A) the sum of the total Tranche B Proportionate
Share and the Tranche C Proportionate Share of the Outstanding
Lease Amount on such date and (B) the Fair Market Value of the
Property on such date;
(iii) The bidder must agree to purchase the Property
"as is" without any representations, warranties or
indemnities, except for (A) any representations, warranties or
indemnities provided by Lessor and Lessee pursuant to
Subparagraph 4.01(b) and (B) any representations, warranties
or indemnities provided by Lessee pursuant to clause (ii)(C)
of Subparagraph 3.02(b); and
(iv) The bidder must agree to be bound by the other
terms and conditions of this Agreement applicable to bidders.
(d) Lessor's Obligation to Accept Bids. If, at any time on or
prior to the last day of the Secondary Marketing Period, Lessee submits
to Lessor a Conforming Bid under this Paragraph 3.02 with a purchase
price which is equal to or greater than the sum of the total Tranche B
Proportionate Share and the Tranche C Proportionate Share of the
Outstanding Lease Amount, Lessor shall accept such bid. If Lessee
submits to Lessor a Conforming Bid under this Paragraph 3.02 with a
purchase price which is less than the sum of the total Tranche B
Proportionate Share and the Tranche C Porportionate Share of the
Outstanding Lease Amount, Lessor shall not accept such bid unless
approved by Lessor and Required Participants. If Lessee fails to submit
a bid to Lessor on or prior to the last day of the Secondary Marketing
Period which Lessor is so required to accept, Lessor shall retain the
Property after the Expiration Date of the Lease Agreement; provided,
however, that Lessee's payment obligations on such Expiration Date
shall be
6
limited to the amounts payable pursuant to clause (iii) of Subparagraph
4.06(a) if (i) Lessor retains the Property after Lessee submits a
Conforming Bid on or prior to the last day of the Secondary Marketing
Period in accordance with clause (ii) of Subparagraph 3.02(b) and (ii)
the Marketing Option has not terminated prior to such Expiration Date
pursuant to Subparagraph 3.02(f). Lessor shall notify Lessee of
Lessor's election to retain the Property by delivering to Lessee, at
least ten (10) days prior to the Expiration Date of the Lease
Agreement, a written notice of such election.
(e) Purchase Price. If Lessor accepts any bid by any Person,
such Person (the "Designated Purchaser") shall pay to Lessor on the
Expiration Date of the Lease Agreement, as the purchase price for the
Property, the amount set forth in such bid as the purchase price.
(f) Termination of the Marketing Option. Lessee's right to
exercise the Marketing Option shall immediately terminate and Lessee
shall purchase the Property on the Expiration Date of the Lease
Agreement pursuant to Paragraph 3.03 if (i) Lessee fails to comply with
any of its obligations under this Paragraph 3.02; (ii) a Marketing
Option Event of Default under the Lease Agreement occurs after Lessee
delivers the Notice of Marketing Option Exercise; (iii) the conditions
precedent set forth in Paragraph 3.03 of the Participation Agreement
are not satisfied on the Expiration Date of the Lease Agreement (unless
the only event or condition causing such conditions not to be so
satisfied is the occurrence of a Non-Marketing Option Event of Default
under the Lease Agreement); or (iv) the Designated Purchaser fails to
consummate the purchase of the Property on the Expiration Date of the
Lease Agreement in accordance with its accepted bid and this Agreement,
without regard to the reason for such failure (except as otherwise
provided in the following proviso); provided, however, that, if the
Designated Purchaser fails to consummate the purchase of the Property
on the Expiration Date solely due to Lessor's failure to remove Lessor
Liens or deliver the required deed and xxxx of sale or other documents
required to be delivered by Lessor hereunder, Lessee's right to
exercise the Marketing Option shall not terminate, Lessee shall not be
required to purchase the Property on the Expiration Date and Lessee's
payment obligations on the Expiration Date shall be limited to the
amounts set forth in clause (ii) of Subparagraph 4.06(a) (determined as
if the purchase by the Designated Purchaser had been consummated).
(g) Residual Value Guaranty Amount and Indemnity Amount.
Unless Lessee's right to exercise the Marketing Option has terminated
and Lessee is required to purchase the Property on the Expiration Date
of the Lease Agreement pursuant to Paragraph 3.03, Lessee shall pay to
Lessor on such Expiration Date the following:
(i) An amount (the "Residual Value Guaranty Amount")
equal to the total Tranche A Proportionate Share of the
Outstanding Lease Amount on such date; and
(ii) An amount (the "Indemnity Amount") equal to the
decrease, if any, between the Commencement Date and the
Expiration Date of the Lease Agreement in the Fair Market
Value of the Property caused by (A) any representation or
warranty of Lessee or any of its Affiliates regarding the
Property
7
set forth in any of the Operative Documents proving to be
false or inaccurate when made, (B) the existence of, or the
failure of Lessee to pay any Governmental Charge, Indebtedness
or other obligation which might give rise to, any Liens in the
Property (other than Permitted Property Liens), (C) the
failure of Lessee to complete any New Improvements or any
Modifications or (D) any other failure of Lessee to comply
with any of its obligations regarding the Property set forth
in any of the Operative Documents;
Provided, however, that (A) Lessee shall not be obligated to pay any
Residual Value Guaranty Amount or Indemnity Amount if the purchase
price paid to Lessor equals or exceeds the Outstanding Lease Amount on
such date and (B) the sum of any Residual Value Guaranty Amount and
Indemnity Amount payable to Lessor on the Expiration Date of the Lease
Agreement shall not exceed the deficiency, if any, between such
Outstanding Lease Amount and such purchase price.
(h) Determination of Fair Market Value and Indemnity Amount.
If the purchase price specified in the Initial Bid is less than the sum
of the total Tranche B Proportionate Share and the total Tranche C
Proportionate Share of the Outstanding Lease Amount, Lessor may, on or
prior to the last day of the Secondary Marketing Period (if Lessee has
not previously delivered to Lessor a Conforming Bid with a purchase
price equal to or greater than the sum of the total Tranche B
Proportionate Share and the total Tranche C Proportionate Share of the
Outstanding Lease Amount), deliver to Lessee a written notice of
Lessor's determination of the current Fair Market Value of the Property
and the Indemnity Amount. To determine such amounts, Lessor shall
obtain Appraisals of the Property which set forth:
(i) A current Appraisal of the Fair Market Value of
the Property in its then existing condition (the "Current
Appraisal"); and
(ii) An Appraisal of the Fair Market Value of the
Property which assumes that (A) all representations and
warranties regarding the Property made by Lessee or any of its
Affiliates in any of the Operative Documents were true and
correct when made; (B) Lessee has maintained the Property in
compliance with all applicable Governmental Rules, Insurance
Requirements and the Operative Documents; (C) Lessee has
completed all Modifications and any other New Improvements in
a good and workmanlike manner and otherwise as required by the
Operative Documents; (D) Lessee has repaired the Property as
required by the Operative Documents following any Casualty;
(E) Lessee has restored the Property as required by the
Operative Documents following any Condemnation; (F) Lessee has
paid all Governmental Charges, Indebtedness and other
obligations which, if unpaid, might give rise to a Lien (other
than a Lessor Lien) on the Property; (G) Lessee has removed
all Liens on the Property except for Permitted Property Liens
and Lessor Liens; and (H) Lessee has performed all of its
other obligations as required by the Operative Documents (the
"Assumed Appraisal").
In the absence of manifest error, (A) the Current Appraisal shall
constitute the current Fair Market Value of the Property and (B) the
difference between the Current Appraisal
8
and the Assumed Appraisal shall constitute the Indemnity Amount if the
Current Appraisal is less than the Assumed Appraisal.
(i) Lessee not an Agent. Lessee shall not be an agent for any
of the Lessor Parties in arranging for a purchaser of the Property. No
Lessor Party shall be bound by any acts of Lessee.
(j) Excess Proceeds. If, on the Expiration Date of the Lease
Agreement, after the application by Lessor of all amounts received by
Lessor on such date to the Outstanding Lease Amount, all unpaid Rent
accrued through or due and payable on or prior to such date and all
other amounts, if any, due and payable by Lessee under the Operative
Documents on or prior to such date, any excess amount remains, Lessor
promptly shall pay such excess amount to Lessee.
(k) Creditworthiness of Designated Purchaser. Lessee assumes
all responsibility for determining the creditworthiness of any
potential purchaser on any bid submitted by Lessee to Lessor hereunder.
If, after any purchase by a Designated Purchaser hereunder, the
purchase price paid by such Designated Purchaser is recovered from any
Lessor Party, Lessee shall reimburse such Lessor Party for such
recovery unless such recovery is due solely to a material
misrepresentation or covenant breach by such Lessor Party.
(l) Exercise of Marketing Option After Non-Marketing Option
Event of Default. If Lessor notifies Lessee pursuant to Subparagraph
5.03(a) or Subparagraph 5.04(a) of the Lease Agreement that Lessor is
terminating the Lease Agreement on a Termination Date which is prior to
the Scheduled Expiration Date of the Lease Agreement and the only basis
for such early termination is the occurrence of a Non-Marketing Option
Event of Default, Lessee may, subject to Paragraph 3.01, elect to
exercise the Marketing Option if, not later than five (5) Business Days
after it receives from Lessor such notice of early termination, it (i)
delivers to Lessor a Notice of Marketing Option Exercise, (ii) delivers
to Agent or Participants Cash Collateral as required by clause (ii) of
Subparagraph 2.11(a) of the Participation Agreement, (iii) delivers to
Lessor an opinion of its counsel as required by clause (ii) of
Subparagraph 2.11(a) of the Participation Agreement, and (iv) takes
such other actions as may be necessary to grant to Agent first priority
perfected security interests in such Cash Collateral in accordance with
the Cash Collateral Agreement. Upon the delivery by Lessee to Lessor of
a Notice of Marketing Option Exercise and satisfaction of the Cash
Collateral requirements set forth in the preceding sentence of this
Subparagraph 3.02(l), the Expiration Date of the Lease Agreement shall,
if the conditions to the exercise of the Marketing Option set forth in
Paragraph 3.01 are satisfied, be extended to the first Business Day
that is six (6) months after the date of receipt by Lessor of such
Notice of Marketing Option Exercise. Any exercise by Lessee of the
Marketing Option pursuant to this Subparagraph 3.02(l) shall be subject
to the terms and conditions otherwise set forth in this Agreement.
3.03. Expiration Date Purchase Option.
9
(a) General. If (i) Lessee elects to exercise the Expiration
Date Purchase Option by delivering to Lessor a Notice of Expiration
Date Purchase Option Exercise pursuant to Paragraph 3.01; (ii) Lessee
elects to exercise the Marketing Option by delivering to Lessor a
Notice of Marketing Option Exercise pursuant to Paragraph 3.01 but the
Marketing Option terminates pursuant to Subparagraph 3.02(f); or (iii)
Lessee fails to deliver to Lessor either notice as required by
Paragraph 3.01; Lessee shall purchase the Property on the Expiration
Date of the Lease Agreement and otherwise comply, or cause compliance
with, the requirements of this Paragraph 3.03 and the other applicable
provisions of this Agreement.
(b) Purchase Price. If Lessee is purchasing the Property
pursuant to the Expiration Date Purchase Option, Lessee shall pay to
Lessor on the Expiration Date of the Lease Agreement, as the purchase
price for the Property, an amount equal to the Outstanding Lease Amount
on such date.
SECTION 4. TERMS OF ALL PURCHASES.
4.01. Representations and Warranties of Parties.
(a) Representations and Warranties of Purchaser. The purchaser
of the Property, whether Lessee, an Assignee Purchaser or a Designated
Purchaser ("Purchaser") shall represent and warrant to Lessor on the
Expiration Date of the Lease Agreement (or, in the case of a purchase
of a portion of the Property pursuant to the Partial Purchase Option,
on the applicable Partial Purchase Date) as follows:
(i) Such Person is a legal entity duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization or an individual with legal
capacity to purchase the Property (or, in the case of a
purchase of a portion of the Property pursuant to the Partial
Purchase Option, on the applicable Partial Purchase Date).
(ii) The execution, delivery and performance by such
Person of each document, instrument and agreement executed, or
to be executed, by such Person in connection with its purchase
of the Property (or, in the case of a purchase of a portion of
the Property pursuant to the Partial Purchase Option, on the
applicable Partial Purchase Date) (the "Purchase Documents")
and the consummation of the transactions contemplated thereby
(A) are within the power of such Person and (B) have been duly
authorized by all necessary actions on the part of such
Person.
(iii) Each Purchase Document executed, or to be
executed, by such Person has been, or will be, duly executed
and delivered by such Person and constitutes, or will
constitute, a legal, valid and binding obligation of such
Person, enforceable against such Person in accordance with its
terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the
enforcement of creditors' rights generally and general
principles of equity.
10
(iv) Such Person has not (A) made a general
assignment for the benefit of creditors, (B) filed any
voluntary petition in bankruptcy or suffered the filing of any
involuntary petition by such Person's creditors, (C) suffered
the appointment of a receiver to take possession of all, or
substantially all, of such Person 's assets, (D) suffered the
attachment or other judicial seizure of all, or substantially
all, of such Person's assets, (E) admitted in writing its
inability to pay its debts as they come due, or (F) made an
offer of settlement, extension or composition to its creditors
generally.
(v) Such Person is not a "party in interest" within
the meaning of Section 3(14) of the ERISA, with respect to any
investor in or beneficiary of Lessor.
(b) Representations and Warranties of Lessor and Lessee. Each
of Lessor and Lessee shall represent and warrant to Purchaser (and
Lessee also shall represent and warrant to Lessor if Lessor is to
retain the Property) on the Expiration Date of the Lease Agreement as
follows:
(i) Such Person is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization.
(ii) The execution, delivery and performance by such
Person of each Purchase Document executed, or to be executed,
by such Person and the consummation of the transactions
contemplated thereby (A) are within the power of such Person
and (B) have been duly authorized by all necessary actions on
the part of such Person.
(iii) Each Purchase Document executed, or to be
executed, by such Person has been, or will be, duly executed
and delivered by such Person and constitutes, or will
constitute, a legal, valid and binding obligation of such
Person, enforceable against such Person in accordance with its
terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the
enforcement of creditors' rights generally and general
principles of equity.
(iv) Such Person has not (A) made a general
assignment for the benefit of creditors, (B) filed any
voluntary petition in bankruptcy or suffered the filing of any
involuntary petition by such Person's creditors, (C) suffered
the appointment of a receiver to take possession of all, or
substantially all, of such Person's assets, (D) suffered the
attachment or other judicial seizure of all, or substantially
all, of such Person's assets, (E) admitted in writing its
inability to pay its debts as they come due, or (F) made an
offer of settlement, extension or composition to its creditors
generally.
In addition to the foregoing, (A) Lessee shall represent and warrant to
the Designated Purchaser (or Lessor if Lessor is to retain the
Property) on the Expiration Date of the Lease Agreement that no Liens
are attached to the Property, except for Permitted Property Liens, and
(B) Lessor shall represent and warrant to Purchaser on the Expiration
11
Date of the Lease Agreement (or, in the case of a purchase of a portion
of the Property pursuant to the Partial Purchase Option, on the
applicable Partial Purchase Date) that no Lessor Liens are attached to
the Property (or, in the case of a purchase of a portion of the
Property pursuant to the Partial Purchase Option, on the portion to be
purchased). Except for the foregoing representations and warranties to
be made by Lessor on the Expiration Date of the Lease Agreement (or, in
the case of a purchase of a portion of the Property pursuant to the
Partial Purchase Option, on the applicable Partial Purchase Date), no
Lessor Party shall make any representation or warranty regarding the
Property or the sale of the Property. Lessee shall make such additional
representations and warranties as it may be required to make pursuant
to clause (ii) of Subparagraph 3.02(b).
(c) Survival of Representations and Warranties. The
representations and warranties of Purchaser, Lessor and Lessee shall
survive for a period of twelve (12) months after the Expiration Date of
the Lease Agreement (or, in the case of a purchase of a portion of the
Property pursuant to the Partial Purchase Option, on the applicable
Partial Purchase Date). Any claim which any such party may have at any
time against any other such party for a breach of any such
representation or warranty, whether known or unknown, which is not
asserted by written notice within such twelve (12) month period shall
not be valid or effective, and the party shall have no liability with
respect thereto.
4.02. "As Is" Purchase. All purchases of the Property hereunder shall
be "as is, with all faults" and without any representations, warranties or
indemnities except for any representations, warranties or indemnities provided
by Lessee pursuant to clause (ii)(C) of Subparagraph 3.02(b) or by Lessor or
Lessee pursuant to Subparagraph 4.01(b). Purchaser shall specifically
acknowledge and agree that Lessor is selling and Purchaser is purchasing the
Property on an "as is, with all faults" basis and that Purchaser is not relying
on any representations or warranties of any kind whatsoever, express or implied,
from any Lessor Party, its agents, or brokers as to any matters concerning the
Property (except for any representations and warranties provided by Lessor
pursuant to Subparagraph 4.01(b)), including (a) the condition of the Property
(including any Improvements to the Property made prior to the Commencement Date
or during the Term of the Lease Agreement); (b) title to the Property (including
possession of the Property by any Person or the existence of any Lien or any
other right, title or interest in or to any of the Property in favor of any
Person); (c) the value, habitability, useability, design, operation or fitness
for use of the Property; (d) the availability or adequacy of utilities and other
services to the Property; (e) any latent, hidden or patent defect in the
Property; (f) the zoning or status of the Property or any other restrictions on
the use of the Property; (g) the economics of the Property; (h) any Casualty or
Condemnation; or (i) the compliance of the Property with any applicable
Governmental Rule or Insurance Requirement.
4.03. Release. Without limiting the foregoing, Purchaser shall, on
behalf of itself and its successors and assigns, waive its right to recover
from, and forever release and discharge, Lessor and the other Indemnitees from
any and all demands, claims, legal or administrative proceedings, losses,
liabilities, damages, penalties, fines, liens, judgments, costs or expenses
whatsoever (including attorneys' fees and costs), whether direct or indirect,
known or unknown, foreseen or unforeseen, that may arise on account of or in any
way be connected with the physical condition of the Property or any Governmental
Rule applicable thereto, including any Environment Law. Purchaser shall
expressly waive the benefits of Section 1542 of the
12
California Civil Code, which provides that, "a general release does not extend
to claims which the creditor does not know or expect to exist in his favor at
the time of executing the release, which if known to him must have materially
affected the settlement with the debtor."
4.04. Permits, Approvals, Etc. Lessee shall obtain all permits,
licenses and approvals from and make all filings with Governmental Authorities
and other Persons, comply and cause compliance with all applicable Governmental
Rules and take all other actions required for the marketing, purchase and sale
of the Property.
4.05. Costs. Lessee shall pay directly, without deduction from the
purchase price or any other amount payable to Lessor hereunder, all costs and
expenses of Lessee and Lessor associated with the marketing and sale of the
Property, including brokers' fees and commissions; title insurance premiums;
survey charges; utility, tax and other prorations; fees and expenses of
environmental consultants and attorneys; appraisal costs; escrow fees; recording
fees; documentary, transfer and other taxes; and all other fees, costs and
expenses which might otherwise be deducted from the purchase price or any other
amount payable to Lessor hereunder.
4.06. Lessee's Expiration Date and Partial Purchase Date Payment
Obligations.
(a) Expiration Date. On the Expiration Date of the Lease
Agreement, Lessee shall pay to Lessor the following:
(i) Purchase by Lessee. If the Property is to be
purchased by Lessee or an Assignee Purchaser on such date, (i)
the purchase price payable by Lessee, (ii) all unpaid Rent
accrued through or due and payable on or prior to such date
and (iii) all other amounts, if any, due and payable by Lessee
under the Operative Documents on or prior to such date;
(ii) Purchase by a Designated Purchaser. If the
Property is to be purchased by a Designated Purchaser on such
date, (i) the Residual Value Guaranty Amount (subject to the
provisos set forth at the end of Subparagraph 3.02(g)), (ii)
the Indemnity Amount (subject to the provisos set forth at the
end of Subparagraph 3.02(g)), (iii) all unpaid Rent accrued
through or due and payable on or prior to such date and (iv)
all other amounts, if any, due and payable by Lessee under the
Operative Documents on or prior to such date; or
(iii) Retention by Lessor. If the Property is to be
retained by Lessor on such date pursuant to Subparagraph
3.02(d), (i) the Residual Value Guaranty Amount, (ii) the
Indemnity Amount, (iii) all unpaid Rent accrued through or due
and payable on or prior to such date and (iv) all other
amounts, if any, due and payable by Lessee under the Operative
Documents on or prior to such date.
(b) Partial Purchase Date. On any Partial Purchase Date,
Lessee shall pay to Lessor (i) the purchase price for the Sub-Tract(s)
of Property to be purchased on such date, (ii) all unpaid Rent
attributable to such Sub-Tract(s) of Property accrued through or due
and payable on or prior to such date and (iii) all other amounts
attributable to such Sub-Tracts of Property , if any, due and payable
by Lessee under the Operative Documents on or prior to such date.
13
4.07. Lessor Liens. Lessor shall remove all Lessor Liens from the
Property on or before the Expiration Date of the Lease Agreement.
4.08. Transfer Documents.
(a) Expiration Date.
(i) Lessor. Subject to receipt by Lessor on the
Expiration Date of the Lease Agreement of the full amount of
the following, without any setoff, deduction or reduction of
any kind:
(A) In the case of a transfer to Lessee or
an Assignee Purchaser, all amounts payable by Lessee
pursuant to clause (i) of Subparagraph 4.06(a); or
(B) In the case of a transfer to a
Designated Purchaser, (A) the purchase price payable
by the Designated Purchaser and (B) all amounts
payable by Lessee pursuant to clause (ii) of
Subparagraph 4.06(a);
Lessor shall transfer its interest in the Property to
Purchaser on the Expiration Date of the Lease Agreement
(unless Lessor is to retain the Property) by executing and
delivering to Purchaser a Deed in substantially the form of
Exhibit D and a Xxxx of Sale in substantially the form of
Exhibit E.
(ii) Lessee. On the Expiration Date of the Lease
Agreement, unless Lessee is to purchase the Property, Lessee
shall transfer its interest in the Property to the Designated
Purchaser or the Assignee Purchaser (or Lessor if Lessor is to
retain the Property) by executing and delivering to such
Person a Deed in substantially the form of Exhibit F, a Xxxx
of Sale in substantially the form of Exhibit G and such other
documents, instruments and agreements as such Person may
reasonably request.
(b) Partial Purchase Date. Subject to receipt by Lessor on any
Partial Purchase Date of all amounts payable by Lessee pursuant to
Subparagraph 4.06(b), without any setoff, deduction or reduction of any
kind, Lessor shall transfer its interest in the Tracts of Property to
be purchased on such date to Lessee by executing and delivering to
Lessee a Deed in substantially the form of Exhibit D, a Xxxx of Sale in
substantially the form of Exhibit E and such other documents,
instruments and agreements as Lessee may reasonably request
4.09. Casualty and Condemnation Proceeds. If, on the Expiration Date of
the Lease Agreement, any Casualty and Condemnation Proceeds are held by Lessor
in a Repair and Restoration Account or otherwise, Lessor shall (a) if Lessee is
to purchase the Property on the Expiration Date of the Lease Agreement and
Lessee shall so direct, apply such proceeds to the purchase price to be paid by
Lessee or (b) in all other cases, release such proceeds to Lessee; provided,
however, that Lessor shall not have any obligation so to apply or release such
proceeds unless Lessee and/or any Designated Purchaser has complied with all of
the terms and conditions of this Agreement.
14
4.10. Payments. Purchaser, Lessor and Lessee shall make all payments in
lawful money of the United States and in same day or immediately available funds
not later than 12:00 noon on the date due.
4.11. Environmental Reports. Lessee shall obtain and deliver to Lessor,
not later than one (1) month prior to the Expiration Date of the Lease Agreement
(or, in the case of a purchase of a portion of the Property pursuant to the
Partial Purchase Option, prior to the applicable Partial Purchase Date), copies
of all reports or documents (not previously delivered to Lessor) that update the
Environmental Reports with respect to the Property (or, in the case of a
purchase of a portion of the Property pursuant to the Partial Purchase Option,
with respect to the applicable portion thereof) prepared by environmental
consultants acceptable to Lessor and a database report prepared by such
environmental consultants with respect to the properties adjoining the Property
(or the applicable portion thereof).
4.12. Further Assurances. Lessee shall, and shall cause any Designated
Purchaser to, execute and deliver such documents, instruments and agreements and
take such other actions as Lessor may reasonably request to effect the purposes
of this Agreement and comply with the terms hereof. Similarly, Lessor shall
execute and deliver such documents, instruments and agreements and take such
other actions as Lessee or a Designated Purchaser may reasonably request to
effect the purposes of this Agreement and comply with the terms hereof.
SECTION 5. MISCELLANEOUS.
5.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessee or Lessor under this Agreement shall be given as provided in Subparagraph
2.02(c) and Paragraph 7.01 of the Participation Agreement.
5.02. Waivers, Amendments. Any term, covenant, agreement or condition
of this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by any Lessor Party in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
5.03. Successors and Assigns.
(a) General. This Agreement shall be binding upon and inure to
the benefit of the Lessor Parties and Lessee and their permitted
successors and assigns; provided, however, that the Lessor Parties and
Lessee shall not sell, assign or delegate their respective rights and
obligations hereunder except as provided in the Participation Agreement
and in Subparagraph 5.03(b).
(b) Assignment by Lessee of Purchase Rights. Lessee may assign
to a third party (an "Assignee Purchaser") its right to purchase the
Property pursuant to the Term Purchase Option, the Partial Purchase
Option or the Expiration Date Purchase Option;
15
provided, however, that (i) such an assignment shall not relieve Lessee
of its obligations to consummate or cause the consummation of any such
purchase in accordance with the terms of this Agreement and (ii) Lessee
assumes all responsibility for determining the creditworthiness of any
such Assignee Purchaser. If, after any purchase by an Assignee
Purchaser hereunder, the purchase price paid by such Assignee Purchaser
is recovered from any Lessor Party, Lessee shall reimburse such Lessor
Party for such recovery unless such recovery is due solely to a
material misrepresentation or covenant breach by such Lessor Party.
5.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and Lessee and their permitted successors and
assigns, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
5.05. Partial Invalidity. If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect under
the law or any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
5.06. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without reference to
conflicts of law rules.
5.07. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
5.08. Nature of Lessee's Obligations.
(a) Independent Obligation. The obligation of Lessee to pay
the amounts payable by Lessee under this Agreement and the other
Operative Documents and to perform the other Lessee Obligation are
absolute, unconditional and irrevocable obligations which are separate
and independent of the obligations of the Lessor Parties under this
Agreement and the other Operative Documents and all other events and
circumstances, including the events and circumstances set forth in
Subparagraph 5.08(c).
(b) No Termination or Abatement. This Agreement and the other
Operative Documents and Lessee's obligation to pay all amounts
hereunder and to pay and perform all other Lessee Obligations shall
continue in full force and effect without abatement notwithstanding the
occurrence or existence of any event or circumstance, including any
event or circumstance set forth in Subparagraph 5.08(c).
(c) Full Payment and Performance. Lessee shall make all
payments under this Agreement and the other Operative Documents in the
full amounts and at the times required by the terms of this Agreement
and the other Operative Documents without setoff, deduction or
reduction of any kind and shall perform all other Lessee Obligations as
and when required, without regard to any event or circumstances
whatsoever,
16
including (i) the condition of the Property (including any Improvements
to the Property made prior to the Commencement Date or during the Term
of the Lease Agreement); (ii) title to the Property (including
possession of the Property by any Person or the existence of any Lien
or any other right, title or interest in or to any of the Property in
favor of any Person); (iii) the value, habitability, useability,
design, operation or fitness for use of the Property; (iv) the
availability or adequacy of utilities and other services to the
Property; (v) any latent, hidden or patent defect in the Property; (vi)
the zoning or status of the Property or any other restrictions on the
use of the Property; (g) the economics of the Property; (vii) any
Casualty or Condemnation; (viii) the compliance of the Property with
any applicable Governmental Rule or Insurance Requirement; (ix) any
failure by any Lessor Party to perform any of its obligations under
this Agreement or any other Operative Document; or (x) the exercise by
any Lessor Party of any of its remedies under this Agreement or any
other Operative Document; provided, however, that this Paragraph 5.08
shall not abrogate any right which Lessee may have to recover damages
from any Lessor Party for any material breach by such Lessor Party of
its obligations under this Agreement or any other Operative Document to
the extent permitted hereunder or thereunder.
[The signature page follows.]
17
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed as of the day and year first above written.
LESSEE: FAIR, XXXXX AND COMPANY, INC.,
a Delaware corporation
By:_________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President--Facilities
Administration
LESSOR: LEASE PLAN NORTH AMERICA, INC.,
an Illinois corporation
By:__________________________________
Name: Xxxxx Xxxxxx
Title: Attorney-in-Fact
18
EXHIBIT A(1)
NOTICE OF TERM PURCHASE OPTION EXERCISE
[Date]
Lease Plan North America, Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
1. Reference is made to the following:
(a) The Participation Agreement, dated as of May 15, 1998 (the
"Participation Agreement"), among Fair, Xxxxx and Company, Inc.
("Lessee"), Lease Plan North America, Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent");
(b) The Lease Agreement, dated as of ____________, 1998 (the
"Lease Agreement"), between Lessee and Lessor; and
(c) The Purchase Agreement, dated as of ____________, 1998
(the "Lease Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Subparagraph 4.01(a) of the Lease Agreement and
Paragraph 2.01 of the Purchase Agreement, Lessee hereby irrevocably notifies
Lessor that Lessee is exercising its right to terminate the Lease Agreement
prior to the Scheduled Expiration Date of the Lease Agreement and purchase the
Property on [_________, ____] (which date is a Scheduled Rent Payment Date and
which date, after the delivery of this notice, shall be the Expiration Date of
the Lease Agreement).
IN WITNESS WHEREOF, Lessee has executed this Notice of Term Purchase
Option Exercise on the date set forth above.
FAIR, XXXXX AND COMPANY, INC.,
a Delaware corporation
By:_____________________________
Name:________________________
Title:_______________________
A-1
EXHIBIT A(2)
NOTICE OF PARTIAL PURCHASE OPTION EXERCISE
[Date]
Lease Plan North America, Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
1. Reference is made to the following:
(a) The Participation Agreement, dated as of May 15, 1998 (the
"Participation Agreement"), among Fair, Xxxxx and Company, Inc.
("Lessee"), Lease Plan North America, Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent"); and
(b) The Purchase Agreement, dated as of May __, 1998 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 2.02 of the Purchase Agreement, Lessee hereby
irrevocably notifies Lessor that Lessee is exercising its right to purchase a
portion of the Property as follows:
(a) The Sub-Tract[s] of Property to be purchased is [are]
________________; and
(b) The date on which such purchase is to occur is [_________,
____] (which date is a Business Day).
3. Lessee hereby certifies to Lessor, Agent and the Participants that,
on the date of this notice:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as if
made on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and
effect.
A(2)-1
IN WITNESS WHEREOF, Lessee has executed this Notice of Partial Purchase
Option Exercise on the date set forth above.
FAIR, XXXXX AND COMPANY, INC.
By:_____________________________
Name:________________________
Title:_______________________
A(2)-2
SCHEDULE 1
TO
EXHIBIT A(2)
SUB-TRACT PURCHASE PRICE
-------------------------------------- -----------------------------------------
Description of Parcel Purchase Price
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
-------------------------------------- -----------------------------------------
A(2)-3
EXHIBIT B
NOTICE OF MARKETING OPTION EXERCISE
[Date]
Lease Plan North America, Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
1. Reference is made to the following:
(a) The Participation Agreement, dated as of May 15, 1998 (the
"Participation Agreement"), among Fair, Xxxxx and Company, Inc.
("Lessee"), Lease Plan North America, Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent"); and
(b) The Purchase Agreement, dated as of ____________, 1998
(the "Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 3.01 of the Purchase Agreement, Lessee hereby
notifies Lessor that Lessee is electing to exercise the Marketing Option on the
Scheduled Expiration Date of the Lease Agreement of [_____, ____].
3. Lessee hereby certifies to Lessor, Agent and the Participants that,
on the date of this notice:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as if
made on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);
(b) No Default (other than a Non-Marketing Option Event of
Default under the Lease Agreement) has occurred and is continuing; and
(c) All of the Operative Documents are in full force and
effect.
B-1
IN WITNESS WHEREOF, Lessee has executed this Notice of Marketing Option
Exercise on the date set forth above.
FAIR, XXXXX AND COMPANY, INC.,
a Delaware corporation
By:_____________________________
Name:________________________
Title:_______________________
B-2
EXHIBIT C
NOTICE OF EXPIRATION DATE PURCHASE OPTION EXERCISE
[Date]
Lease Plan North America, Inc.
ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
1. Reference is made to the following:
(a) The Participation Agreement, dated as of May 15, 1998 (the
"Participation Agreement"), among Fair, Xxxxx and Company, Inc.
("Lessee"), Lease Plan North America, Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent"); and
(b) The Purchase Agreement, dated as of ____________, 1998
(the "Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 3.01 of the Purchase Agreement, Lessee hereby
notifies Lessor that Lessee is electing to exercise the Expiration Date Purchase
Option on the Scheduled Expiration Date of the Lease Agreement of [_____, ____].
IN WITNESS WHEREOF, Lessee has executed this Notice of Expiration Date
Purchase Option Exercise on the date set forth above.
FAIR, XXXXX AND COMPANY, INC.,
a Delaware corporation
By:_____________________________
Name:________________________
Title:_______________________
C-1
EXHIBIT D
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
AND MAIL TAX STATEMENTS TO:
[Purchaser]
__________________
__________________
__________________
Documentary Transfer Tax is not of public record and is shown on a separate
sheet attached to this deed.
________________________________________________________________________________
QUITCLAIM DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, LEASE PLAN NORTH AMERICA, INC. , a [_________] ("Grantor"), hereby
releases, remises and forever quitclaims to [PURCHASER], a _____________
("Grantee"), the real property located in the City of [_______], County of
[_________], State of California, described on Exhibit A attached hereto and
made a part hereof (the "Property"). Grantor is selling and Grantee is
purchasing the Property on an "as is, with all faults" basis and that Grantee is
not relying on any representations or warranties of any kind whatsoever, express
or implied, from Grantor, its agents, or brokers as to any matters concerning
the Property including (a) the condition of the Property (including any
improvements to the Property); (b) title to the Property (including possession
of the Property by any individual or entity or the existence of any lien or any
other right, title or interest in or to any of the Property in favor of any
person); (c) the value, habitability, useability, design, operation or fitness
for use of the Property; (d) the availability or adequacy of utilities and other
services to the Property; (e) any latent, hidden or patent defect in the
Property; (f) the zoning or status of the Property or any other restrictions on
the use of the Property; (g) the economics of the Property; (h) any damage to,
destruction or, or decrease in the value of all or any portion of the Property
or any condemnation or other taking or sale of all or any portion of the
Property, by or on account of any actual or threatened eminent domain proceeding
or other taking of action by any governmental authority or other person have the
power of eminent domain; or (i) the compliance of the Property with any
applicable law, rule, regulation, ordinance, order, code, judgment or similar
form of decision of any governmental authority or any terms, conditions or
requirements imposed by any policies of insurance relating to the Property.
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D-1
Executed as of _____, 19__.
LEASE PLAN NORTH AMERICA, INC.,
an Illinois corporation
By: ______________________________
Its: ______________________________
D-2
EXHIBIT A
LEGAL DESCRIPTION
Assessor's Parcel No.: _______________
D(A)-1
State of _____________
County of _____________________
On ___________________ before me, _________________________________________,
Date Name, Title of Officer
personally appeared ___________________________________________________________,
Name(s) of signer(s)
(personally known to me -OR- (proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument
and acknowledged to me that he/she/they
executed the same in his/her/their
authorized capacity(ies), and that by
his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of
which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
____________________________________________
_____________________, 19__
Marin County Recorder
Re: Request That Statement of Documentary
Transfer Tax Not be Recorded
Dear Sir:
Request is hereby made in accordance with Section 11932 of the Revenue
and Taxation Code that this statement of tax due not be recorded with the
attached deed but be affixed to the deed after recordation and before return as
directed on the deed.
The attached deed names LEASE PLAN NORTH AMERICA, INC., an Illinois
corporation, as grantor, and [PURCHASER], a _________________, as grantee.
The property being transferred and described in the attached deed is
located in the City of San Xxxxxx and County of Marin, State of California.
The amount of Documentary Transfer Tax due on the attached deed is
$__________, computed on full value of the property conveyed.
LEASE PLAN NORTH AMERICA, INC.,
an Illinois corporation
By: ______________________________
Its: ______________________________
EXHIBIT E
XXXX OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, LEASE PLAN NORTH AMERICA, INC., an Illinois corporation ("Seller")
does hereby sell, transfer and convey to [PURCHASER], a
_________________________ ("Purchaser"), the personal property owned by Seller
in connection with that certain real property commonly known as _______________,
_________, California, including, without limitation, the personal property
itemized on Schedule 1 attached hereto and incorporated herein by this reference
(the "Property").
Seller is selling and Purchaser is purchasing the Property on an "as
is, with all faults" basis and Purchaser is not relying on any representations
or warranties of any kind whatsoever, express or implied, from Seller, its
agents, or brokers as to any matters concerning the Property including (a) the
condition of the Property; (b) title to the Property (including possession of
the Property by any individual or entity or the existence of any lien or any
other right, title or interest in or to any of the Property in favor of any
person); (c) the value, habitability, useability, design, operation or fitness
for use of the Property; or (d) any latent, hidden or patent defect in the
Property.
Dated: ________________, 19__ SELLER:
LEASE PLAN NORTH AMERICA, INC.,
an Illinois corporation
By: ______________________________
Its: ______________________________
PURCHASER:
[PURCHASER]
a _____________________________
By: ______________________________
Its: ______________________________
X-0
Xxxxxxxx 0
Xxxxxxxx
XXXXXXX G
XXXX OF SALE
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Fair, Xxxxx and Company, Inc., a Delaware
corporation ("Seller"), does hereby sell, transfer, and convey unto [PURCHASER]
("Buyer"), the personal property owned by Seller in connection with that certain
real property commonly known as _______________, ________, California, which
Seller warrants to be free and clear of all liens and encumbrances, including,
without limitation, the personal property itemized on Schedule 1 attached hereto
and incorporated herein by this reference.
Seller does hereby covenant with Buyer that Seller is the lawful owner
of such personal property, and that the undersigned has good right to sell the
same as aforesaid and will warrant and defend the title thereto unto Buyer, its
successors and assigns, against the claims and demands of all persons
whomsoever.
DATED this ____ day of __________, 19__.
Seller: Fair, Xxxxx and Company, Inc.,
a Delaware corporation
By: ______________________________
Its: ______________________________
Schedule 1
Property
E(1)-1
