1
EXHIBIT 10.19
================================================================================
MASTER LEASE
dated as of December 23, 1997
between
ABN AMRO BANK N.V.,
as the Lessor
and
CHASE BRASS & COPPER COMPANY, INC.,
as the Lessee
================================================================================
Extrusion Press Facility
================================================================================
This Lease has been executed in counterparts. To the extent, if any, that this
Lease constitutes chattel paper (as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction), no lien on this
Lease 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.
2
TABLE OF CONTENTS
Page
----
ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions; Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Acceptance and Lease of Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Acceptance Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Lease Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 Payment of Basic Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.3 Supplemental Rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.4 Method of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 [Reserved]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.1 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6.1 Net Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6.2 No Termination or Abatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7.1 Ownership of the Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8.1 Condition of the Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8.2 Possession and Use of the Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.1 Compliance with Requirements of Law and Insurance Requirements. . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10.1 Maintenance and Repair; Return. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11.1 Modifications, Substitutions and Replacements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
12.1 Warranty of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13.1 Permitted Contests Other Than in Respect of Indemnities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
14.1 Public Liability and Workers' Compensation Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
14.2 Hazard and Other Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
14.3 Coverage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14.4 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3
TABLE OF CONTENTS
(cont'd)
Page
----
ARTICLE XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
15.1 Casualty and Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE XVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
16.1 Termination by the Lessee upon Certain Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
16.2 Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE XVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
17.1 Lease Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
17.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
17.3 Waiver of Certain Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17.4 Power of Sale and Foreclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17.5 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
17.6 Lessee's Right to Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE XVIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18.1 The Lessor's Right to Cure the Lessee's Lease Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE XIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19.1 Provisions Relating to the Lessee's Termination of this Lease or Exercise of Purchase Option or Obligation and
Conveyance Upon Remarketing and Conveyance Upon Certain Other Events. . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE XX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
20.1 Purchase Option. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
20.2 Expiration Date Purchase Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
20.3 Acceleration of Purchase Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE XXI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
21.1 Renewal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE XXII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
22.1 Option to Remarket. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
22.2 Certain Obligations Continue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
22.3 Support Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE XXIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
23.1 Holding Over. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE XXIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
24.1 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE XXV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
25.1 Subletting and Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE XXVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
26.1 Estoppel Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE XXVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
27.1 Right to Inspect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
27.2 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE XXVIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
28.1 Acceptance of Surrender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
- ii -
4
TABLE OF CONTENTS
(cont'd)
Page
----
ARTICLE XXVIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
29.1 [Reserved]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE XXX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
30.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE XXXI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
31.1 Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
31.2 Amendments and Modifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
31.3 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
31.4 Headings and Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
31.5 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
31.6 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
31.7 Limitations on Recourse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
31.8 Original Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
- iii -
5
APPENDICES
APPENDIX I DEFINITIONS AND INTERPRETATION
EXHIBITS
EXHIBIT A FORM OF LEASE SUPPLEMENT
EXHIBIT B FORM OF EQUIPMENT SCHEDULE
6
MASTER LEASE
THIS MASTER LEASE (including all Lease Supplements from time to time
executed and delivered, this "Lease"), dated as of December 23, 1997, between
ABN AMRO BANK N.V., a bank organized under the laws of The Netherlands, having
its principal office at 000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as the
lessor (the "Lessor"), and CHASE BRASS & COPPER COMPANY, INC., a Delaware
corporation, having a principal office at State Route 15N, 00000 Xxxxxx Xxxx
X-00, Xxxxxxxxxx, Xxxx 00000, as the lessee (the "Lessee").
W I T N E S S E T H:
WHEREAS, the Lessor intends to purchase the Equipment, from time to
time, subject to the terms and conditions of this Lease and the Participation
Agreement and, simultaneously therewith, lease the Equipment to the Lessee
pursuant to Lease Supplements to be entered into pursuant to this Lease; and
WHEREAS, the Lessee desires to lease from the Lessor, and the Lessor
is willing to lease to the Lessee, such Property pursuant to Lease Supplements
to be entered into pursuant to this Lease;
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; Interpretation.
Capitalized terms used but not otherwise defined in this Lease have
the respective meanings specified in Appendix 1 to this Lease; and the rules of
interpretation set forth in Appendix 1 to this Lease shall apply to this Lease.
ARTICLE II
2.1 Acceptance and Lease of Property.
Effective as of the applicable Closing Date, the Lessor, subject to
the satisfaction or waiver of the conditions set forth in Section 6 of the
Participation Agreement, hereby agrees to accept delivery of and lease the
Equipment which may be purchased pursuant to this Lease or the Participation
Agreement, and the Lessee hereby agrees, expressly for the direct benefit of
the Lessor, to lease any such Equipment pursuant to the Lease or the
Participation Agreement.
2.2 Acceptance Procedure.
(a) The Lessor hereby authorizes one or more employees of the
Lessee, to be designated by the Lessee, as the authorized representative or
representatives of the Lessor to accept delivery on behalf of the Lessor of the
Property identified on an Equipment Schedule.
7
(b) The Lessee hereby agrees that such acceptance of delivery by
such authorized representative or representatives and the execution and
delivery by the Lessee on the applicable Closing Date of a Lease Supplement in
the form of Exhibit A hereto (appropriately completed) shall, without further
act, constitute the irrevocable acceptance by the Lessee of the Property which
is the subject thereof for all purposes of this Lease and the other Operative
Documents on the terms set forth therein and herein, and that the Property
shall be subject to the terms and conditions of this Lease as of such Closing
Date.
(c) The Lessee hereby agrees that such acceptance of delivery by
such authorized representative or representatives and the execution and
delivery by the Lessee of an Equipment Schedule in the form of Exhibit B hereto
(appropriately completed) on or prior to the applicable Funding Date with
respect to the acquisition of Equipment shall, without further act, constitute
the irrevocable acceptance of the Equipment which is the subject thereof for
all purposes of this Lease and the other Operative Documents on the terms set
forth therein and herein, and that the Equipment shall be subject to the terms
and conditions of this Lease as of such Closing Date.
2.3 Lease Term.
The term of this Lease (the "Term") shall begin on the Closing Date
with respect to such Equipment and shall end on the third anniversary of such
Closing Date, unless the Term is renewed or earlier terminated in accordance
with the provisions of this Lease.
2.4 Title.
The Property is leased to the Lessee without any representation or
warranty of title, condition of the Equipment or permitted uses, express or
implied, by the Lessor and subject to the rights of parties in possession, the
existing state of title and all applicable Requirements of Law. The Lessee
shall in no event have any recourse against the Lessor for any defect in or
exception to title to the Property, other than for any such defect or exception
constituting a Lessor Lien. The Lessee expressly waives and releases the
Lessor from any common law or statutory covenant of quiet enjoyment.
ARTICLE III
3.1 Rent.
(a) During the Term, the Lessee shall pay Basic Rent on each
Payment Date, on the date required under Section 22.1(i) in connection with the
Lessee's exercise of the Remarketing Option and on any date on which this Lease
shall terminate.
(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 to such account or accounts at such bank or banks or
to the Agent or in such other manner as the Agent shall from time to time
direct.
- 2 -
8
(c) Neither the Lessee's inability or failure to take possession
of all or any portion of the Property when delivered by the Lessor, nor the
Lessor's inability or failure to deliver all or any portion of the Property to
the Lessee on or before the applicable Closing Date, whether or not
attributable to any act or omission of the Lessee or any act or omission of the
Lessor, or for any other reason whatsoever, shall delay or otherwise affect the
Lessee's obligation to pay Rent for the Property from and after commencement of
the Term.
3.2 Payment of Basic Rent.
Basic Rent shall be paid absolutely net to the Lessor, so that this
Lease shall yield to the Lessor the full amount thereof, without setoff,
deduction or reduction, whether or not the Lessee's quiet possession of the
Property is disturbed.
3.3 Supplemental Rent.
The Lessee shall pay to the Lessor or the Person entitled thereto any
and all Supplemental Rent promptly as the same shall become due and payable,
and if the Lessee fails to pay any Supplemental Rent, the 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. The Lessee shall pay to the
Lessor, as Supplemental Rent, among other things, on demand, to the extent
permitted by Applicable Law, interest at the applicable Overdue Rate on any
installment of Basic Rent not paid when due for the period for which the same
shall be overdue and on any payment of Supplemental Rent not paid when due or
demanded by the Lessor for the period from the due date or the date of any such
demand, as the case may be, until the same shall be paid. The expiration or
other termination of the Lessee's obligations to pay Basic Rent hereunder shall
not limit or modify the obligations of the Lessee with respect to Supplemental
Rent. Unless expressly provided otherwise in this Lease, in the event of any
failure on the part of the Lessee to pay and discharge any Supplemental Rent as
and when due, the Lessee shall also promptly pay and discharge any fine,
penalty, interest or cost which may be assessed or added under any agreement
with a third party for nonpayment or late payment of such Supplemental Rent,
all of which shall also constitute Supplemental Rent.
3.4 Method of Payment.
Each payment of Rent shall be made by the Lessee to the Agent by 12:00
noon, Chicago time at the place of payment in funds consisting of lawful
currency of the United States of America which shall be immediately available
on the scheduled date when such payment shall be due, unless such scheduled
date shall not be a Business Day, in which case such payment shall be made on
the next succeeding Business Day or as otherwise required by the definition of
the term "Interest Period" set forth in Appendix 1 hereto. Payments initiated
after 12:00 noon, Chicago time shall be deemed received on the next succeeding
Business Day.
- 3 -
9
ARTICLE IV
4.1 [RESERVED].
ARTICLE V
5.1 Quiet Enjoyment.
LESSEE SPECIFICALLY DISCLAIMS ANY WARRANTY OF QUIET ENJOYMENT FOR ANY
ACTION BY ANY PARTY, other than the obligations of the Lessor to remove Lessor
Liens.
ARTICLE VI
6.1 Net Lease.
This Lease shall constitute a net lease. It is the further express
intent of Lessor and Lessee that the obligations of Lessor and Lessee hereunder
shall be separate and independent covenants and agreements and that the Basic
Rent and Supplemental Rent, and all other charges and sums payable by Lessee
hereunder, shall commence at the times provided herein and shall continue to be
payable in all events unless the obligations to pay the same shall be
terminated pursuant to an express provision in this Lease. Any present or
future law to the contrary notwithstanding, this Lease shall not terminate, nor
shall the Lessee be entitled to any abatement, suspension, deferment,
reduction, setoff, counterclaim, or defense with respect to the Rent, nor shall
the obligations of the Lessee hereunder be affected (except as expressly herein
permitted and by performance of the obligations in connection therewith) by
reason of: (i) any defect in the condition, merchantability, design,
construction, quality or fitness for use of the Property or any part thereof,
or the failure of the Property to comply with all Requirements of Law,
including any inability to occupy or use the Property by reason of such
non-compliance; (ii) any damage to, removal, abandonment, salvage, loss,
contamination of or Release from, scrapping or destruction of or any
requisition or taking of the Property or any part thereof; (iii) any
restriction, prevention or curtailment of or interference with any use of the
Property or any part thereof including eviction; (iv) any defect in title to or
rights to the Property or any Lien on such title or rights or on the Property
(other than Lessor Liens); (v) any change, waiver, extension, indulgence or
other action or omission or breach in respect of any obligation or liability of
or by the Lessor, the Agent or any Participant; (vi) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation
or other like proceedings relating to the Lessee, the Lessor, the Agent, any
Participant or any other Person, or any action taken with respect to this Lease
by any trustee or receiver of the Lessee, the Lessor, the Agent, any
Participant or any other Person, or by any court, in any such proceeding; (vii)
any claim that the Lessee has or might have against any Person, including
without limitation the Lessor, any vendor, manufacturer, contractor of or for
the Property, the Agent or any Participant; (viii) any failure on the part of
the Lessor to perform or comply with any of the terms of this Lease, any other
Operative Document or any other agreement; (ix) any invalidity or
unenforceability or illegality or disaffirmance of this Lease against or by the
Lessee or any provision hereof or any of the other Operative Documents
- 4 -
10
or any provision of any thereof; (x) the impossibility or illegality of
performance by the Lessee, the Lessor or both; (xi) any action by any court,
administrative agency or other Governmental Authority; (xii) any restriction,
prevention or curtailment of or interference with the construction on or any
use of the Property or any part thereof; or (xiii) any other cause or
circumstances whether similar or dissimilar to the foregoing and whether or not
the Lessee shall have notice or knowledge of any of the foregoing. The parties
intend that the obligations of the Lessee hereunder shall be covenants and
agreements that are separate and independent from any obligations of the Lessor
hereunder or under any other Operative Documents and the obligations of the
Lessee shall continue unaffected unless such obligations shall have been
modified or terminated in accordance with an express provision of this Lease.
6.2 No Termination or Abatement.
The 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 the Lessor, the Agent
or any Participant, or any action with respect to this Lease or any Operative
Document which may be taken by any trustee, receiver or liquidator of the
Lessor, the Agent or any Participant or by any court with respect to the
Lessor, the Agent or any Participant. The Lessee hereby waives all right (i)
to terminate or surrender this Lease (except as provided herein) or (ii) to
avail itself of any abatement, suspension, deferment, reduction, setoff,
counterclaim or defense (other than the defense of payment) with respect to any
Rent. The Lessee shall remain obligated under this Lease in accordance with
its terms and the 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. Notwithstanding any such statute or
otherwise, the Lessee shall be bound by all of the terms and conditions
contained in this Lease.
ARTICLE VII
7.1 Ownership of the Property.
(a) It is the intent of the parties hereto that: (i) this Lease
constitutes an "operating lease" pursuant to Statement of Financial Accounting
Standards No. 13, as amended, for purposes of Lessee's financial reporting, and
(ii) for purposes of federal, state, and local income or franchise taxes and
for any other tax imposed on or measured by income, the transaction
contemplated hereby is a financing arrangement and preserves ownership in the
Property in the Lessee. Nevertheless, the Lessee acknowledges and agrees that
neither the Agent, the Lessor nor any Participant has made any representations
or warranties to the Lessee concerning the tax, accounting or legal
characteristics of the Operative Documents and that the Lessee has obtained and
relied upon such tax, accounting and legal advice concerning the Operative
Documents as it deems appropriate.
(b) Anything to the contrary in the Operative Documents
notwithstanding, the Lessor and the Lessee intend and agree that with respect
to the nature of the transactions evidenced by
- 5 -
11
this Lease, this Lease grants a security interest and mortgage or deed of trust
or lien, as the case may be, in the Property to the Lessor and the Participants
to secure the Lessee's performance under and payment of all amounts under this
Lease and the other Operative Documents.
(c) Specifically, without limiting the generality of subsection
(b) of this Section 7.1, the Lessor and the Lessee further intend and agree
that (i) this Lease shall also be deemed to be a security agreement and
financing statement within the meaning of Article 9 of the Uniform Commercial
Code; (ii) the possession by the Lessor or any of its agents of notes and such
other items of property as constitute instruments, money, negotiable documents
or chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-305 of the
Uniform Commercial Code, (iii) Lessee does hereby grant and assign to Lessor a
security interest in and to all right, title and interest of the Lessee in and
to the Property as collateral for the payment of all amounts payable by Lessee
under this Lease and the Operative Documents; and (iv) notifications to Persons
holding such property, and acknowledgments, receipts or confirmations from
financial intermediaries, bankers or agents (as applicable) of the Lessee shall
be deemed to have been given for the purpose of perfecting such security
interest under Applicable Law. The Lessor and the Lessee shall, to the extent
consistent with this Lease, take such actions and execute, deliver, file and
record such other documents, financing statements, mortgages and deeds of trust
as may be necessary to ensure that, if this Lease were deemed to create a
security interest in the Property in accordance with this Section, such
security interest would be deemed to be a perfected security interest of first
priority under Applicable Law and will be maintained as such throughout the
Term.
ARTICLE VIII
8.1 Condition of the Property.
THE LESSEE ACKNOWLEDGES AND AGREES THAT ALTHOUGH THE LESSOR WILL HOLD
TITLE TO THE EQUIPMENT, THE LESSEE IS SOLELY RESPONSIBLE FOR THE EQUIPMENT AND
ANY ALTERATIONS OR MODIFICATIONS. THE LESSEE FURTHER ACKNOWLEDGES AND AGREES
THAT IT IS LEASING THE PROPERTY "AS IS" WITHOUT REPRESENTATION, WARRANTY OR
COVENANT (EXPRESS OR IMPLIED) BY THE LESSOR, THE AGENT OR ANY PARTICIPANT AND
IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF TITLE, (B) THE RIGHTS OF ANY
PARTIES IN POSSESSION THEREOF, (C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY
OR PHYSICAL INSPECTION MIGHT SHOW, AND (D) VIOLATIONS OF REQUIREMENTS OF LAW
WHICH MAY EXIST ON THE DATE HEREOF. NEITHER THE LESSOR, THE AGENT NOR ANY
PARTICIPANT HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION,
WARRANTY OR COVENANT (EXPRESS OR IMPLIED) OR SHALL BE DEEMED TO HAVE ANY
LIABILITY WHATSOEVER AS TO THE TITLE (INCLUDING BUT NOT LIMITED TO ANY IMPLIED
LIABILITY RELATING TO A COVENANT OF QUIET ENJOYMENT, WHICH THE LESSEE HEREBY
EXPRESSLY WAIVES), VALUE, HABITABILITY, USE, CONDITION, DESIGN, OPERATION, OR
FITNESS FOR USE OF THE PROPERTY (OR ANY PART THEREOF), OR ANY OTHER
REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PROPERTY (OR ANY
- 6 -
12
PART THEREOF) AND NEITHER THE LESSOR, THE AGENT NOR ANY PARTICIPANT SHALL BE
LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE
PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY REQUIREMENT OF LAW.
8.2 Possession and Use of the Property.
The Property shall be used in a manner consistent with properties of a
similar nature in the businesses in which the Lessee is engaged or as permitted
by a sublessee or assignee in Section 25.1 hereof and in compliance with any
covenants, conditions and restrictions of record and any ordinance or law
affecting the use and occupancy of the Property. At all times during the Term
following installation and delivery of the Equipment, the Property shall be
continuously used by the Lessee or a permitted assignee or sublessee in the
ordinary course of its business. The Lessee shall pay, or cause to be paid,
all charges and costs required in connection with the use of the Property as
contemplated by this Lease.
ARTICLE IX
9.1 Compliance with Requirements of Law and Insurance
Requirements.
Subject to the terms of Article XIII relating to permitted contests,
the Lessee, at its sole cost and expense, shall (a) comply with all
Requirements of Law (including all Environmental Laws) and comply with all
Insurance Requirements relating to the Property, including the construction,
use, operation, maintenance, repair and restoration thereof and the remarketing
thereof pursuant to Article XXII, whether or not compliance therewith shall
interfere with the use and enjoyment of the Property, and (b) procure, maintain
and comply with all licenses, permits, orders, approvals, consents and other
authorizations required for the construction, use, maintenance, repair and
operation of the Property.
ARTICLE X
10.1 Maintenance and Repair; Return.
(a) The Lessee, at its sole cost and expense, shall maintain the
Property in good working order, mechanical condition and repair, subject in
each case to ordinary wear and tear, and make all necessary repairs thereto, 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 all Requirements of Law and Insurance Requirements and on a
basis consistent with the operation and maintenance of properties comparable in
type to the Property and in compliance with prudent industry practice.
(b) The Lessor shall under no circumstances be required to build
any improvements on the Property, make any repairs, replacements, alterations
or renewals of any nature or description to the Property, make any expenditure
whatsoever in connection with this Lease or maintain the Property in any way.
The Lessor shall not be required to maintain, repair or rebuild all or any part
of the Property, and the Lessee waives any right to (i) require the Lessor to
- 7 -
13
maintain, repair, or rebuild all or any part of the Property, or (ii) make
repairs at the expense of the Lessor pursuant to any Requirement of Law,
Insurance Requirement, contract, agreement, or covenant, condition or
restriction in effect at any time during the Term.
(c) The Lessee shall, upon the expiration or earlier termination
of this Lease, surrender the Property to the Lessor in its then-current, "AS
IS" condition, subject to the Lessee's obligations under Sections 9.1, 10.1(a),
11.1, 12.1, 15.1(e), 15.2, 22.1 and 23.1.
(d) The Lessee warrants that it shall cause the Equipment
currently being delivered and installed on the Site to be designed and
constructed in a workmanlike manner and in accordance with all Requirements of
Law, so that such Equipment will be fit for its intended purpose.
ARTICLE XI
11.1 Modifications, Substitutions and Replacements.
(a) The Lessee, at its sole cost and expense, may at any time and
from time to time make alterations, renovations, improvements and additions to
the Property or any part thereof and substitutions and replacements therefor
(collectively, "Modifications"); provided that: (i) no Modification shall
impair the value, utility or useful life of the Property or any part thereof
from that which existed immediately prior to such Modification; (ii) the
Modification shall be done expeditiously and in a good and workmanlike manner;
(iii) the Lessee shall comply with all Requirements of Law (including all
Environmental Laws) and comply with all Insurance Requirements applicable to
the Modification, including the obtaining of all permits and certificates of
occupancy, and the structural integrity of the Property shall not be adversely
affected in any material respect; (iv) subject to the terms of Article XIII
relating to permitted contests, the Lessee shall pay all costs and expenses and
shall discharge (or cause to be insured or bonded over) within sixty (60) days
after the same shall be filed (or otherwise become effective) any Liens arising
with respect to the Modification; and (v) such Modifications shall comply with
Sections 8.2 and 10.1. All Modifications (other than those that both are not
Modifications required to be made pursuant to a Requirement of Law or an
Insurance Requirement ("Required Modification") and are readily removable
without impairing the value, utility or remaining useful life of the Property)
shall remain part of the Property and shall be subject to this Lease, and title
thereto shall immediately vest in the Lessor. The Lessee may place upon the
Site any trade fixtures, machinery, equipment or other property belonging to
the Lessee or third parties and may remove the same at any time during the
Term, subject, however, to the terms of Section 10.1(a); provided that such
trade fixtures, machinery, equipment or other property do not impair the value,
utility or remaining useful life of the Property in any material respect;
provided, further, that the Lessee shall keep and maintain at the Property and
shall not remove from the Property any Equipment financed or otherwise paid for
(directly or indirectly) by the Lessor or any Participant pursuant to the
Participation Agreement.
- 8 -
14
(b) The Lessee shall deliver to the Lessor and the Agent a brief
written narrative of the work to be done in connection with any Modification to
the Property the cost of which is anticipated to exceed $500,000 in the
aggregate.
ARTICLE XII
12.1 Warranty of Title.
(a) The Lessee agrees that except as otherwise provided herein and
subject to the terms of Article XIII relating to permitted contests, the 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 the Property (or the Lessor's interest
therein) or any Modifications or any Lien, attachment, levy or claim with
respect to the Rent or with respect to any amounts held by the Agent pursuant
to the Participation Agreement or the other Operative Documents, other than
Permitted Liens and Lessor Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of the 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 the
Property or any part thereof. NOTICE IS HEREBY GIVEN THAT NEITHER THE LESSOR,
ANY PARTICIPANT NOR THE AGENT IS OR SHALL BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE OR TO ANYONE HOLDING THE
PROPERTY OR ANY PART THEREOF THROUGH OR UNDER THE LESSEE AND THAT NO MECHANICS'
OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR
AFFECT THE INTEREST OF THE LESSOR IN AND TO THE PROPERTY.
ARTICLE XIII
13.1 Permitted Contests Other Than in Respect of Indemnities.
Except to the extent otherwise provided for in Section 13 of the
Participation Agreement, the Lessee, on its own or on the Lessor's behalf but
at the 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
Requirement of Law, or any Lien, attachment, levy, encumbrance or encroachment,
and the 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 thereof from, and suspend the enforcement thereof
against, the Property, the Lessor, the Agent and the Participants or the
Lessee shall have bonded or otherwise secured such amount in a manner
satisfactory to the Lessor and the Agent; (b) there shall be no risk of the
imposition of a Lien (other than Permitted Liens) on the Property and no part
of the 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
- 9 -
15
the imposition of criminal liability or material civil liability on the Lessor,
the Agent or any Participant for failure to comply therewith (unless, in the
case of civil liability, the Lessee shall have bonded or otherwise secured such
amount in a manner satisfactory to the Lessor and the Agent); 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 the Lessee shall
deliver to the Lessor a Responsible Officer's Certificate certifying as to the
matters set forth in clauses (a), (b) and (c) of this Section 13.1. The Lessor,
at the Lessee's sole cost and expense, shall execute and deliver to the Lessee
such authorizations and other documents as may reasonably be required or
reasonably requested by Lessee in connection with any such contest and, if
reasonably requested by the Lessee, shall join as a party therein at the
Lessee's sole cost and expense.
ARTICLE XIV
14.1 Public Liability and Workers' Compensation Insurance.
During the Term, the Lessee shall procure and carry, at the Lessee's
sole cost and expense, commercial general liability insurance, including
contractual liability, for claims for injuries or death sustained by persons or
damage to property while on the Site and such other public liability coverages
as are ordinarily procured by Persons who own or operate similar properties and
consistent with prudent business practice, which policies shall include
contractual liability endorsements covering the Lessee's indemnification
obligations in Section 14.4. Such insurance shall be on terms and in amounts
(which shall be acceptable to the Lessor, which acceptance shall not be
unreasonably withheld) that are no less favorable than insurance maintained by
the Lessee with respect to similar properties that it owns and that are in
accordance with prudent business practice and may be provided under blanket
policies maintained by or on behalf of the Lessee. The policy shall be
endorsed to name the Lessor, the Agent and each Participant as additional
insureds. The policy shall also specifically provide that the policy shall be
considered primary insurance which shall apply to any loss or claim before any
contribution by any insurance which the Lessor, the Agent or the Participants
may have in force. The Lessee shall, in the delivery and installation of the
Equipment and the operation of the Property (including in connection with any
Modifications thereof) comply with the applicable workers' compensation laws
and protect the Lessor, the Agent and the Participants against any liability
under such laws.
14.2 Hazard and Other Insurance.
During the Term, the Lessee shall keep, or cause to be kept, the
Property insured against loss or damage by fire and other risks in an amount
not less than the then current Asset Termination Value and on terms that are no
less favorable than insurance covering other similar properties owned or leased
by the Lessee and that are in accordance with prudent business practice. The
Lessee may provide such coverage under blanket policies maintained by the
Lessee. During the delivery and installation of any Equipment the Lessee shall
also maintain builders' risk insurance. Each policy of insurance maintained by
the Lessee pursuant to this Section 14.2 shall provide that all insurance
proceeds in respect of any loss or occurrence shall be paid to and adjusted
solely by the Lessee except from and after the date on which the insurer
- 10 -
16
receives written notice from the Lessor or the Agent that a Lease Event of
Default exists (and unless and until such insurer receives written notice from
the Lessor or the Agent that all Lease Events of Default have been cured), all
losses shall be adjusted solely by, and all insurance proceeds shall be paid
solely to, the Agent (or the Lessor if the Participation Interests have been
fully paid) for application pursuant to Article XV.
14.3 Coverage.
(a) The Lessee shall furnish the Lessor and the Agent with
certificates showing the insurance required under Sections 14.1 and 14.2 to be
in effect and naming the Lessor, the Agent and each Participant as additional
insureds and, with respect to the insurance required under Section 14.2, loss
payees, and showing the mortgagee endorsement required by Section 14.3(c). All
such insurance shall be at the cost and expense of the Lessee. Such
certificates shall include a provision for thirty (30) days' advance written
notice by the insurer to the Lessor and the Agent in the event of cancellation
of or any significant reduction in the coverage provided by such insurance.
(b) The Lessee agrees that the insurance policy or policies
required by Sections 14.1 and 14.2 shall include (i) an appropriate clause
pursuant to which such policy shall provide that it will not be invalidated
should the Lessee waive, in writing, prior to a loss, any or all rights of
recovery against any party for losses covered by such policy, and that the
insurance in favor of the Lessor, the Agent and the Participants, and their
respective rights under and interests in said policies shall not be invalidated
or reduced by any act or omission or negligence of the Lessee or any other
Person having any interest in the Property, and (ii) a so-called "Waiver of
Subrogation Clause". The Lessee hereby waives any and all such rights against
the Lessor, the Agent and the Participants to the extent of payments made under
such policies.
(c) All such insurance shall be written by reputable insurance
companies that are financially sound and solvent and otherwise reasonably
appropriate considering the amount and type of insurance being provided by such
companies. Any insurance company selected by the Lessee which is rated in
Best's Key Rating Guide or any successor thereto (or if there be none, an
organization having a similar national reputation) shall have a general
policyholder rating of "A" and a financial rating of at least 12 in Best's Key
Rating Guide or be otherwise acceptable to the Lessor, the Agent and the
Required Participants. All insurance policies required by Section 14.2 shall
include a standard form mortgagee endorsement in favor of the Agent.
Notwithstanding the other provisions of this Article XIV, in the absence of a
continuing Event of Default, the Lessee may provide the insurance coverage
required under this Article XIV through its self-insurance program.
(d) The Lessor shall not 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 the Lessor may carry separate liability
insurance (at its sole cost) so long as (i) the Lessee's insurance is
designated as primary and in no event excess or contributory to any insurance
the Lessor may have in force which would apply to a loss covered under the
Lessee's policy and (ii) each such insurance policy will not cause the Lessee's
insurance required under this Article XIV to be subject to a coinsurance
exception of any kind.
- 11 -
17
(e) The Lessee shall pay as they become due all premiums for the
insurance required by Section 14.1 and Section 14.2, and shall renew or replace
each policy prior to the expiration date thereof. Throughout the Term, at the
time each of the Lessee's insurance policies is renewed (but in no event less
frequently than once each year), the Lessee shall deliver to the Lessor and the
Agent certificates of insurance evidencing that all insurance required by this
Article XIV is being maintained by the Lessee with respect to the Property and
is in effect.
(f) The Lessee hereby waives, releases and discharges the Lessor,
the Agent and each Participant and their agents and employees from all claims
whatsoever arising out of loss, claim, expense or damage to or destruction
covered or coverable by insurance required under this Article XIV
notwithstanding that such loss, claim, expense or damage may have been caused
by the Lessor, the Agent or any Participant or any of their agents or
employees, and the Lessee agrees to look to the insurance coverage only in the
event of such loss.
14.4 Indemnification.
In addition to the indemnification provisions provided for in Section
13 of the Participation Agreement, to the fullest extent allowed by law, the
Lessee shall at all times indemnify, defend and hold each Indemnitee harmless
against and from any and all Claims by or on behalf of any Person arising from
the delivery or installation of the Equipment or conduct of management, or from
any work or things whatsoever done in or about the Property, and will further
indemnify, defend and hold each Indemnitee harmless against and from any and
all Claims arising during the term of this Lease, from any condition of the
Property or arising from any breach or default on the part of the Lessee in the
performance of any covenant or agreement on the part of the Lessee to be
performed, pursuant to the terms of this Lease or arising from any act or
negligence of the Lessee, its agents, servants, employees or licensees, or
arising from any accident, injury or damage whatsoever caused to any Person
occurring during the term of this Lease, in or about the Property. The
indemnification provisions of this Section 14.4 shall be subject to the
indemnification provisions of Section 13.1 of the Participation Agreement
(including the limitations to the Lessee's obligation to indemnify as set forth
in clauses (1) through (6) of the proviso of such Section 13.1) and any action,
suit or proceeding in respect of any such Claim shall be handled in the manner
set forth in Section 13.4 of the Participation Agreement.
ARTICLE XV
15.1 Casualty and Condemnation.
(a) Subject to the provisions of this Article XV and Article XVI
(in the event the Lessee delivers, or is obligated to deliver, a Termination
Notice), and prior to the occurrence and continuation of a Lease Default, the
Lessee shall be entitled to receive (and the Lessor shall pay over to the
Lessee, if received by the Lessor, and hereby irrevocably assigns to the Lessee
all of the Lessor's right, title and interest in) any award, compensation or
insurance proceeds to which the Lessee or the Lessor may become entitled by
reason of their respective interests in the Property (i) if all or a portion of
the 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 the Property or any
part
- 12 -
18
thereof, is the subject of a Condemnation; provided, however, if a Lease
Default shall have occurred and be continuing, such award, compensation or
insurance proceeds shall be paid directly to the Agent or, if received by the
Lessee, shall be held in trust for the Agent, and shall be paid over by the
Lessee to the Agent (or, if the Participation Interests have been fully paid,
to the Lessor) and held in accordance with the terms of this paragraph (a).
If, contrary to such provision, any such award, compensation or insurance
proceeds are paid to the Lessor or the Lessee rather than to the Agent, the
Lessor and the Lessee, as the case may be, hereby agree to transfer any such
payment to the Agent. All amounts held by the Lessor or the Agent when a Lease
Default exists hereunder on account of any award, compensation or insurance
proceeds either paid directly to the Lessor or the Agent or turned over to the
Lessor or the Agent shall either be (i) paid to the Lessee for the repair of
damage caused by such Casualty or Condemnation in accordance with paragraph (e)
of this Section 15.1, or (ii) applied to the purchase price of the Property on
the Termination Date, with any Excess Proceeds being payable to the Lessee.
(b) Prior to the occurrence of an Event of Default the 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 the
Lessee's reasonable request, and at the Lessee's sole cost and expense, the
Lessor and the Agent shall participate in any such proceeding, action,
negotiation, prosecution or adjustment. The Lessor and the Lessee agree that
this Lease shall control the rights of the Lessor and the Lessee in and to any
such award, compensation or insurance payment.
(c) If the Lessor or the Lessee shall receive notice of a Casualty
or of an actual, pending or threatened Condemnation of the Property or any
interest therein, the Lessor or the Lessee, as the case may be, shall give
notice thereof to the other and to the Agent promptly after the receipt of such
notice.
(d) In the event of a Casualty or receipt of notice by the Lessee
or the Lessor of a Condemnation, the Lessee may deliver to the Lessor and the
Agent a Termination Notice with respect to all or a portion of the Property
pursuant to Section 16.1. If the Lessee does not deliver a Termination Notice
within thirty (30) days after such occurrence, then this Lease shall (subject
to the terms and conditions thereof) remain in full force and effect, and the
Lessee shall, at the Lessee's sole cost and expense, promptly and diligently
restore the Property pursuant to paragraph (e) of this Section 15.1 and
otherwise in accordance with this Lease. If the Lessee delivers a Termination
Notice within thirty (30) days after such occurrence, a Significant Event shall
irrevocably be deemed to have occurred with respect to the Property, and, in
such event, this Lease shall terminate and the Lessee shall purchase the
Property or such portion thereof on the next Payment Date (or, if such Payment
Date is within fifteen (15) days of the Lessor's receipt of such Termination
Notice, on the Payment Date next following such Payment Date) (a "Termination
Date") pursuant to Article XVI hereof.
(e) If pursuant to this Section 15.1 this Lease shall continue in
full force and effect following a Casualty or Condemnation, the Lessee shall,
at its sole cost and expense (and, without limitation, if any award,
compensation or insurance payment is not sufficient to restore
- 13 -
19
the Property in accordance with this paragraph, the Lessee shall pay the
shortfall), promptly and diligently repair any damage to the Property caused by
such Casualty or Condemnation or substitute new Equipment for the affected
Equipment in conformity with the requirements of Sections 10.1 and 11.1 using
the as-built Plans and Specifications for the Equipment (as modified to give
effect to any subsequent Modifications, any Condemnation affecting the Property
and all applicable Requirements of Law) so as to restore the Property to at
least the same condition, operation, function and value as existed immediately
prior to such Casualty or Condemnation; provided, the substitution of any
Property for any such affected Property shall, at the Lessor's reasonable
request, be subject to delivery of an independent third-party appraisal
reasonably satisfactory to the Lessor and the Required Participants by an
appraiser satisfactory to the Lessor and the Required Participants showing both
(i) a current Fair Market Sales Value and (ii) expected Fair Market Sales Value
as of the than current Expiration Date and the dates on which any potential
Renewal Term would expire, in each case equal to or greater than such values at
such dates for the Property being replaced. In the event of such restoration,
title to the Property shall remain with the Lessor; provided, that (i) title to
any such substituted property shall vest in the Lessor and such property shall
constitute Property thereafter for all purposes of this Lease, and (ii) the
Lessor shall assign all of its right, title and interest to the Lessee in any
such replaced property without representation or warranty of any kind other
than that such property is free of Lessor Liens. Upon completion of such
restoration, the Lessee shall furnish the Lessor an architect's certificate of
substantial completion and a Responsible Officer's Certificate confirming that
such restoration has been completed pursuant to this Lease.
(f) In no event shall a Casualty or Condemnation with respect to
which this Lease remains in full force and effect under this Section 15.1
affect the Lessee's obligations to pay Rent pursuant to Section 3.1 or to
perform its obligations and pay any amounts due on the Expiration Date or
pursuant to Articles XIX and XX.
(g) Any Excess Proceeds received by the Lessor or the Agent in
respect of a Casualty or Condemnation shall be turned over to the Lessee,
provided that no Lease Event of Default or Lease Default has occurred and is
continuing.
ARTICLE XVI
16.1 Termination by the Lessee upon Certain Events.
If either: (i) the Lessee or the Lessor shall have received notice of
a Condemnation, and the Lessee shall have delivered to the Lessor a Responsible
Officer's Certificate that such Condemnation is a Significant Condemnation; or
(ii) a Casualty occurs, and the Lessee shall have delivered to the Lessor a
Responsible Officer's Certificate that such Casualty is a Significant Casualty;
then, the Lessee shall, simultaneously with the delivery of the Responsible
Officer's Certificate pursuant to the preceding clause (i) or (ii) deliver a
written notice in the form described in Section 16.2(a) (a "Termination
Notice").
- 14 -
20
16.2 Procedures.
(a) A Termination Notice shall contain: (i) notice of termination
of this Lease with respect to the Property or the affected portion thereof on a
date that is no later than thirty (30) days after the occurrence of the
applicable event described in clause (i) or (ii) of Section 16.1 (the
"Termination Date"), such termination to be effective upon the Lessee's payment
of the Asset Termination Value (or portion thereof representing the Property
Improvement Cost of the affected portion of the Property); and (ii) a binding
and irrevocable agreement of the Lessee to pay the Asset Termination Value (or
such portion thereof) and purchase the Property or the affected portion thereof
on the Termination Date.
(b) On the Termination Date, the Lessee shall pay to the Lessor
the Asset Termination Value (or such portion thereof, as applicable), including
all other amounts owing in respect of Rent for the Property (including
Supplemental Rent) theretofore accruing, and the Lessor shall convey the
Lessor's interest in the Property or such portion thereof to the Lessee (or the
Lessee's designee) all in accordance with Section 19.1, as well as any Net
Proceeds with respect to the Casualty or Condemnation giving rise to the
termination of this Lease with respect to the Property theretofore received by
the Lessor.
ARTICLE XVII
17.1 Lease Events of Default.
The occurrence of any one or more of the following events (whether
such event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body) shall constitute a "Lease Event of Default":
(a) the Lessee shall fail to make payment of (i) any Basic Rent
(other than a payment of Basic Rent due on the Expiration Date or Termination
Date) within five (5) Business Days after the same has become due and payable
or (ii) Basic Rent, Purchase Option Price, Asset Termination Value or Residual
Value Guarantee Amount or other amounts due on the Expiration Date or the
Termination Date, including, without limitation, amounts due pursuant to
Sections 16.2, 20.1, 20.2, 20.3 or 22.1, after the same has become due and
payable;
(b) Lessee shall fail to make payment of any Supplemental Rent
(other than Supplemental Rent referred to in clause (a) of this Section) due
and payable within five (5) Business Days after the same has become due and
payable;
(c) the Lessee shall fail to maintain insurance as required by
Article XIV of this Lease;
(d) the Lessee shall fail to observe or perform any term, covenant
or condition of the Lessee under this Lease, the Participation Agreement or any
other Operative Document to which it is a party other than those described in
Section 17.1(a), (b), (c) or (m) hereof, or any representation or warranty set
forth in this Lease or in any other Operative Document 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 be false or inaccurate in any Material way, and such failure or
misrepresentation or breach of warranty shall
- 15 -
21
remain uncured for a period of thirty (30) days after receipt of written notice
thereof; provided, that if such failure to perform is not capable of being
cured within such period but is capable of being cured within one hundred
eighty (180) days after the occurrence of such default and the Lessee is
proceeding diligently to cure such default, the Lessee shall be entitled to
request an additional period (not to exceed one hundred eighty (180) days from
the date of such default) to cure such default, which consent may be granted by
the Lessor in its sole discretion;
(e) the Lessee shall (i) admit in writing its inability to pay its
debts generally as they become due, (ii) file a petition under the United
States bankruptcy laws or any other applicable insolvency law or statute of the
United States of America or any State or Commonwealth thereof, (iii) make a
general assignment for the benefit of its creditors, (iv) consent to the
appointment of a receiver of itself or the whole or any substantial part of its
property, or (v) file a petition or answer seeking or consenting to
reorganization under the United States bankruptcy laws or any other applicable
insolvency law or statute of the United States of America or any State or
Commonwealth thereof;
(f) insolvency proceedings or a petition under the United States
bankruptcy laws or any other applicable insolvency law or statute of the United
States of America or any State or Commonwealth thereof shall be filed against
the Lessee and shall remain undismissed or unstayed and in effect for a period
of sixty (60) consecutive days from the date of its filing, or a court of
competent jurisdiction shall enter an order or decree appointing, without the
consent of the Lessee, a custodian, trustee or receiver for the Lessee or the
whole or a substantial part of its property, and such order or decree shall not
be vacated or set aside within sixty (60) days from the date of the entry
thereof;
(g) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate
a Material Plan shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $1,000,000;
(h) a final judgment for the payment of money in excess of
$3,000,000 shall be entered against the Lessee or any Subsidiary and such
judgment is not discharged, vacated, bonded or stayed pending appeal (pursuant
to laws, rules or court orders) within a period of thirty (30) days from the
date of entry of such judgment;
(i) the Lessee or any of its Subsidiaries (i) shall default in the
payment when due, whether at stated maturity or otherwise, of principal or
interest in respect of Indebtedness having an aggregate principal amount in
excess of $3,000,000 (including, without limitation,
- 16 -
22
Indebtedness outstanding under the Credit Agreement) and such payment default
continues unremedied until the expiration of any applicable grace period; or
(ii) shall fail to perform or observe any other condition or covenant, or any
other event shall occur or condition exist, under any agreement or instrument
relating to any such Indebtedness, if the effect of any such failure, event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its stated maturity,
or cash collateral in respect thereof to be demanded;
(j) a Guarantee Event of Default shall have occurred and be
continuing;
(k) if the Lessee shall not have exercised its Purchase Option
pursuant to Section 20.1 hereof and the Lessee shall have validly exercised its
Remarketing Option pursuant to Section 22.1 hereof, the Lessee shall have
failed (A) to consummate a sale of the Property in the manner provided therein
on the Expiration Date and to pay to the Agent (or such other Person as the
Agent may direct) pursuant to such Section the Residual Value Guarantee Amount
and the other amounts required thereby, or (B) to purchase the Lessor's
interest in the Property on the Expiration Date as provided in Section 20.2
hereof and to pay to the Lessor the Asset Termination Value therefor on the
Expiration Date as required thereby;
(l) the Lessee shall have abandoned or constructively abandoned
all or any material portion of the Property for a period of 30 consecutive
days;
(m) the Lessee shall have elected to or be required to purchase
the Property pursuant to Section 16.2 hereof and such purchase shall not have
been consummated on the Termination Date pursuant to either such Section;
(n) an Event of Default (as such term is defined in the Credit
Agreement) shall have occurred and be continuing; or
(o) the Lessee shall fail to have delivered to the Agent, each
Participant and the Lessor, on or before the tenth Business Day after the date
hereof, an opinion of counsel to the Lessee addressing those matters set forth
in Exhibit C-3 of the Participation Agreement in form and substance reasonably
satisfactory to the Agent, each Participant and the Lessor.
17.2 Remedies.
Upon the occurrence of any Lease Event of Default and at any time
thereafter, the Lessor may, so long as such Lease Event of Default is
continuing, do one or more of the following as the Lessor in its sole
discretion shall determine, without limiting any other right or remedy the
Lessor may have on account of such Lease Event of Default (including, without
limitation, the obligation of the Lessee to purchase the Property as set forth
in Section 20.3):
(a) The Lessor may, by notice to the Lessee, rescind or terminate
this Lease as to all or any portion of the Property as of the date specified in
such notice; however, (i) no reletting or taking of possession of the Property
(or any portion thereof) by the Lessor will be construed as an election on the
Lessor's part to terminate this Lease unless a written notice of such intention
is
- 17 -
23
given to the Lessee, (ii) notwithstanding any reletting or taking of
possession, the Lessor may at any time thereafter elect to terminate this Lease
for a continuing Lease Event of Default, and (iii) no act or thing done by the
Lessor or any of its agents, representatives or employees and no agreement
accepting a surrender of the Property shall be valid unless the same be made in
writing and executed by the Lessor;
(b) The Lessor may (i) demand that the Lessee, and the Lessee
shall upon the written demand of the Lessor, return the Property promptly to
the Lessor in the manner and condition required by, and otherwise in accordance
with all of the provisions of, Articles VIII, IX and X hereof as if the
Property were being returned at the end of the Term, and the Lessor shall not
be liable for the reimbursement of the Lessee for any costs and expenses
incurred by the Lessee in connection therewith and (ii) without prejudice to
any other remedy which the Lessor may have for possession of the Property, and
to the extent and in the manner permitted by Applicable Law, enter upon the
Property and take immediate possession of (to the exclusion of the Lessee) and
remove all of the Property or any part thereof, by summary proceedings or
otherwise, all without liability to the Lessee for or by reason of such entry
or taking of possession, whether for the restoration of damage to property
caused by such taking or otherwise and, in addition to the Lessor's other
damages, the Lessee shall be responsible for all costs and expenses incurred by
the Lessor and/or the Agent or the Participants in connection with any
reletting, including, without limitation, brokers' fees and all costs of any
alterations or repairs made by the Lessor;
(c) The Lessor may (i) sell all or any part of the Property at
public or private sale, as the Lessor may determine, free and clear of any
rights of the Lessee and without any duty to account to the Lessee with respect
to such action or inaction or any proceeds with respect thereto (except to the
extent required by clause (ii) below if the Lessor shall elect to exercise its
rights thereunder) in which event the Lessee's obligation to pay Basic Rent
hereunder for periods commencing after the date of such sale shall be
terminated or proportionately reduced, as the case may be; and (ii) if the
Lessor shall so elect, demand that the Lessee pay to the Lessor, and the Lessee
shall pay to the Lessor, on the date of such sale, as liquidated damages for
loss of a bargain and not as a penalty (the parties agreeing that the Lessor's
actual damages would be difficult to predict, but the aforementioned liquidated
damages represent a reasonable approximation of such amount) (in lieu of Basic
Rent due for periods commencing on or after the Payment Date coinciding with
such date of sale (or, if the sale date is not a Payment Date, the Payment Date
next preceding the date of such sale)), an amount equal to (A) the excess, if
any, of (1) the Asset Termination Value calculated as of such Payment Date
(including all Rent due and unpaid to and including such Payment Date), over
(2) the net proceeds of such sale, if any (that is, after deducting all costs
and expenses incurred by the Lessor, the Agent and the Participants incident to
such conveyance, including, without limitation, repossession costs, brokerage
commissions, prorations, transfer taxes, fees and expenses for counsel, title
insurance fees, survey costs, recording fees, and any repair or alteration
costs) plus (B) interest at the Overdue Rate on the foregoing amount from such
Payment Date until the date of payment;
(d) The Lessor may, at its option, not terminate the Lease with
respect to the Property, and continue to collect all Basic Rent, Supplemental
Rent, and all other amounts due the Lessor (together with all costs of
collection) and enforce the Lessee's obligations under this Lease as and when
the same become due, or are to be performed, and at the option of the Lessor,
- 18 -
24
upon any abandonment of the Property by the Lessee or repossession of same by
the Lessor, the Lessor may, in its sole and absolute discretion, elect not to
terminate this Lease and may make such reasonable alterations and necessary
repairs in order to relet the Property, and relet the Property or any part
thereof for such term or terms (which may be for a term extending beyond the
Term of this Lease) and at such rental or rentals and upon such other terms and
conditions as the Lessor in its reasonable discretion may deem advisable; and
upon each such reletting all rentals actually received by the Lessor from such
reletting shall be applied to the Lessee's obligations hereunder and the other
Operative Documents in such order, proportion and priority as the Lessor may
elect in the Lessor's sole and absolute discretion. If such rentals received
from such reletting during any period be less than the Rent with respect to the
Property to be paid during that period by the Lessee hereunder, the Lessee
shall pay any deficiency, as calculated by the Lessor, to the Lessor on the
next Payment Date;
(e) Unless the Property has been sold in its entirety, the Lessor
may, whether or not the Lessor shall have exercised or shall thereafter at any
time exercise any of its rights under paragraph (b), (c) or (d) of this Section
17.2 with respect to the Property or portions thereof, demand, by written
notice to the Lessee specifying a date (a "Termination Date") not earlier than
10 days after the date of such notice, that the Lessee purchase, on such
Termination Date, the Property (or the remaining portion thereof) in accordance
with the provisions of Article XIX and Section 20.2;
(f) The Lessor may exercise any other right or remedy that may be
available to it under Applicable Law, or proceed by appropriate court action
(legal or equitable) to enforce the terms hereof or to recover damages for the
breach hereof. Separate suits may be brought to collect any such damages for
any period(s), and such suits shall not in any manner prejudice the Lessor's
right to collect any such damages for any subsequent period(s), or the Lessor
may defer any such suit until after the expiration of the Term, in which event
such suit shall be deemed not to have accrued until the expiration of the Term;
or
(g) The Lessor may retain and apply against the Lessor's damages
all sums which the Lessor would, absent such Lease Event of Default, be
required to pay to, or turn over to, the Lessee pursuant to the terms of this
Lease.
17.3 Waiver of Certain Rights.
If this Lease shall be terminated pursuant to Section 17.2, the Lessee
waives, to the fullest extent permitted by law, (a) any notice of re-entry or
the institution of legal proceedings to obtain re-entry or possession; (b) any
right of redemption, re-entry or repossession; (c) the benefit of any laws now
or hereafter in force exempting property from liability for rent or for debt or
limiting the Lessor with respect to the election of remedies; and (d) any other
rights which might otherwise limit or modify any of the Lessor's rights or
remedies under this Article XVII.
- 19 -
25
17.4 Power of Sale and Foreclosure.
In the event that a court of competent jurisdiction rules that this
Lease constitutes a mortgage, deed of trust or other secured financing as is
the intent of the parties pursuant to Section 7.1, and subject to the
availability of such remedy under applicable law, then the Lessor and the
Lessee agree that (i) the Lessee hereby grants a Lien against the Property WITH
POWER OF SALE, and that, upon the occurrence of any Lease Event of Default the
Lessor shall have the power and authority, to the extent provided by law, after
proper notice and lapse of such time as may be required by law, to sell the
Property at the time and place of sale fixed by the Lessor in said notice of
sale, either as a whole, or in separate lots or parcels or items and in such
order as the Lessor may elect, at auction to the highest bidder for cash in
lawful money of the United States payable at the time of sale; accordingly, it
is acknowledged that A POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT; A
POWER OF SALE MAY ALLOW THE LESSOR TO TAKE THE PROPERTY AND SELL IT WITHOUT
GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE LESSEE UNDER THIS
INSTRUMENT, and (ii) upon the occurrence of a Lease Event of Default, the
Lessor, in lieu of or in addition to exercising any power of sale hereinabove
given, may proceed by a suit or suits in equity or at law, whether for a
foreclosure hereunder, or for the sale of the Property, or against the Lessee
on a recourse basis for the Asset Termination Value, or the specific
performance of any covenant or agreement herein contained or in aid of the
execution of any power herein granted, or for the appointment of a receiver
pending any foreclosure hereunder or the sale of the Property, or for the
enforcement of any other appropriate legal or equitable remedy.
17.5 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.
17.6 Lessee's Right to Cure.
Notwithstanding any provision contained in the Lease or any other
Operative Agreement, if a Lease Event of Default has occurred and is
continuing, the Lessee shall have the right to cure such Lease Event of Default
by exercising its Purchase Option at any time prior to such time as a
foreclosure upon or sale of the Property has been completed.
ARTICLE XVIII
18.1 The Lessor's Right to Cure the Lessee's Lease Defaults.
The Lessor, without waiving or releasing any obligation or Lease Event
of Default, may (but shall be under no obligation to) remedy any Lease Default
or Lease Event of Default for the account and at the sole cost and expense of
the Lessee, including the failure by the 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 the Lessee, enter upon
the Property for such purpose and take all such action thereon as may be
necessary or appropriate therefor. No such entry shall be deemed an eviction
of the Lessee. All out-of-pocket costs and expenses so incurred (including
fees and expenses of counsel), together with interest thereon at the
- 20 -
26
Overdue Rate from the date on which such sums or expenses are paid by the
Lessor, shall be paid by the Lessee to the Lessor on demand, as Supplemental
Rent.
ARTICLE XIX
19.1 Provisions Relating to the Lessee's Termination of this Lease
or Exercise of Purchase Option or Obligation and Conveyance Upon
Remarketing and Conveyance Upon Certain Other Events.
(a) In connection with any termination of this Lease pursuant to
the terms of Section 16.2, or in connection with the Lessee's exercise of its
Purchase Option or Expiration Date Purchase Obligation, upon the date on which
this Lease is to terminate or upon the Expiration Date, and upon tender by the
Lessee of the amounts set forth in Sections 10.1(c), 16.2(b), 20.1, 20.2 or
20.3, as applicable, the Lessor shall execute and deliver to the Lessee (or to
the Lessee's designee) at the Lessee's cost and expense an assignment without
recourse of the Lessor's entire interest in the Equipment (which shall include
a release, quitclaim and assignment of all of the Lessor's right, title and
interest in and to any Net Proceeds not previously received by the Lessor),
subject to any encumbrance caused by the fault, neglect or intention of the
Lessee, in recordable form and otherwise in conformity with local custom and
free and clear of any Lessor Liens attributable to the Lessor. The Equipment
shall be conveyed to the Lessee "AS IS" and in its then present condition of
title and physical condition.
(b) If the Lessee properly exercises the Remarketing Option, then
the Lessee shall, on the Expiration Date, and at its own cost, transfer
possession of the Property to the independent purchaser thereof, by
surrendering the same into the possession of the Lessor or such purchaser, as
the case may be, free and clear of all Liens other than Lessor Liens and
Permitted Liens of the type described in clause (vii) of the definition of
Permitted Liens, in good condition (as modified by Modifications permitted by
this Lease), ordinary wear and tear excepted and in compliance with Applicable
Law. The Lessee shall cooperate reasonably with the Lessor and the independent
purchaser of the Property in order to facilitate the purchase by such purchaser
of the Property which cooperation shall include the following, all of which the
Lessee shall do on or before the Expiration Date: providing all books and
records regarding the maintenance and ownership of the Property and all
know-how, data and technical information relating thereto in the possession of
the Lessee or as to which the Lessee shall have rights therein, providing a
current copy of the "as built" Plans and Specifications for the Property,
granting or assigning all licenses necessary for the operation and maintenance
of the Property and cooperating reasonably in seeking and obtaining all
necessary Governmental Action. The obligations of the Lessee under this
paragraph shall survive the expiration or termination of this Lease.
ARTICLE XX
20.1 Purchase Option.
Without limitation of the Lessee's purchase obligation pursuant to
Sections 20.2 or 20.3, unless the Lessee shall have given notice of its
intention to exercise the Remarketing Option and the Lessor shall have entered
into a binding contract to sell the Property, the Lessee shall have
- 21 -
27
the option (exercisable by giving the Lessor irrevocable written notice (the
"Purchase Notice") of the Lessee's election to exercise such option) to
purchase, or to designate a third party to purchase, the Property on the date
specified in such Purchase Notice, which date shall be a Payment Date. The
purchase price shall be equal to the Asset Termination Value (including all
amounts owing in respect of Rent (including Supplemental Rent) theretofore
accruing) (the "Purchase Option Price"). The Lessee shall deliver the Purchase
Notice to the Lessor not less than thirty (30) days prior to the purchase date.
If the Lessee exercises its option to purchase the Property pursuant to this
Section 20.1 (the "Purchase Option"), the Lessor shall transfer to the Lessee
all of the Lessor's right, title and interest in and to the Property as of the
date specified in the Purchase Notice upon receipt of the Purchase Option Price
(including all Rent and other amounts then due and payable under this Lease and
any other Operative Document), in accordance with Section 19.l(a).
20.2 Expiration Date Purchase Obligation.
Unless (a) the Lessee shall have properly exercised the Purchase
Option pursuant to Section 20.1 and purchased the Property pursuant thereto,
(b) the Lessee shall have properly exercised the Remarketing Option and shall
have fulfilled all of the conditions of clauses (a) through (k) of Section 22.1
hereof and the Lessor shall have sold its interest in the Property pursuant
thereto, or (c) the Lessee shall have properly exercised the Renewal Option
pursuant to Section 21.1, then, subject to the terms, conditions and provisions
set forth in this Article, and in accordance with the terms of Section 19.1(a),
the Lessee shall purchase from the Lessor, and the Lessor shall assign to the
Lessee without recourse, on the Expiration Date of the Term (as such Term may
be renewed pursuant to Section 21.1) all of the Lessor's right, title and
interest in the Property for an amount equal to the Asset Termination Value.
The Lessee may designate, in a notice given to the Lessor not less than ten
(10) Business Days prior to the closing of such purchase (time being of the
essence), the transferee or transferees to whom the conveyance shall be made
(if other than to the Lessee), in which case such conveyance shall (subject to
the terms and conditions set forth herein) be made to such designee; provided,
however, that such designation of a transferee or transferees shall not cause
the Lessee to be released, fully or partially, from any of its obligations
under this Lease, including, without limitation, the obligation to pay the
Lessor an amount equal to the Asset Termination Value that was not fully and
finally paid by such designee on such Expiration Date.
20.3 Acceleration of Purchase Obligation.
(a) The Lessee shall be obligated to purchase for an amount equal
to the Asset Termination Value the Lessor's interest in the Property
(notwithstanding any prior election to exercise its Purchase Option pursuant to
Section 20.1) (i) automatically and without notice upon the occurrence of any
Lease Event of Default specified in clause (f) or (g) of Section 17.1, and (ii)
as provided for at Section 17.2(e) immediately upon written demand of the
Lessor upon the occurrence of any other Lease Event of Default.
(b) The Lessee shall be obligated to purchase for an amount equal
to the Asset Termination Value (including all amounts owing in respect of Rent
(including Supplemental Rent) theretofore accruing) immediately upon written
demand of the Lessor the Lessor's interest
- 22 -
28
in the Property at any time during the Term when the Lessor ceases to have
title as contemplated by Section 12.1.
ARTICLE XXI
21.1 Renewal.
(a) Subject to the conditions set forth herein, the Lessee shall
have three options (the "Renewal Options") by written notice (the "Renewal
Request") to the Lessor, each Participant and the Agent given not later than
120 days prior to the Expiration Date then in effect, to renew the Term for
periods of one-year each commencing on the date following the Expiration Date
then in effect. The renewal of the Term contemplated by any Renewal Request
shall become effective as of the date following the Expiration Date then in
effect; provided that such renewal shall be subject to and conditioned upon the
following:
(A) on both the Expiration Date then in effect
and the date of the Renewal Request, (i) no Lease
Default or Lease Event of Default shall have occurred
and be continuing, and (ii) the Lessor and the Agent
shall have received a Responsible Officer's
Certificate of the Lessee as to the matters set forth
in clause (i) above, and
(B) the Lessee shall not have exercised the
Remarketing Option.
(b) Each renewal of this Lease shall be on the same terms and
conditions as are set forth in this Lease for the original Term, with such
modifications thereto, if any, as the parties hereto and to the other Operative
Documents may negotiate based upon the current credit information regarding the
Lessee, interest rates and such other factors as the Lessor may consider
relevant. No more than three Renewal Terms shall be permitted hereunder.
ARTICLE XXII
22.1 Option to Remarket.
Subject to the fulfillment of each of the conditions set forth in this
Section 22.1, the Lessee shall have the option (the "Remarketing Option") to
market for the Lessor and complete the sale of all, but not less than all, of
the Lessor's interest in the Property on the Expiration Date for the Lessor.
The Lessee's effective exercise and consummation of the Remarketing Option
shall be subject to the due and timely fulfillment of each of the following
provisions as of the dates set forth below.
(a) Not later than one hundred twenty (120) days prior to the
Expiration Date, the Lessee shall give to the Lessor written notice of the
Lessee's exercise of the Remarketing Option, which exercise shall be
irrevocable (except by delivery of a Purchase Notice and consummation of the
exercise of the Purchase Option prior to the earlier of (i) the Expiration Date
or (ii) the date on which the Lessor enters into a binding contract to sell the
Property pursuant to the exercise of the Remarketing Option).
- 23 -
29
(b) [RESERVED].
(c) On the date of the Lessee's notice to the Lessor of the
Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease
Default shall exist, and thereafter, no uncured Lease Event of Default or Lease
Default shall exist.
(d) The Lessee shall have completed all Modifications, restoration
and rebuilding of the Property pursuant to Sections 11.1 and 15.1 (as the case
may be) and shall have fulfilled all of the conditions and requirements in
connection therewith pursuant to said Sections, in each case by the date on
which the Lessor receives the Lessee's notice of the Lessee's exercise of the
Remarketing Option (time being of the essence), regardless of whether the same
shall be within the Lessee's control. The Lessee shall have also paid the cost
of all Modifications commenced prior to the Expiration Date. The Lessee shall
not have been excused pursuant to Section 13.1 from complying with any
Applicable Law that involved the extension of the ultimate imposition of such
Applicable Law beyond the last day of the Term. Any Permitted Liens on the
Property that were contested by the Lessee shall have been removed.
(e) During the Marketing Period, the Lessee shall, as nonexclusive
agent for the Lessor, use commercially reasonable efforts to sell the Lessor's
interest in the Property on or prior to the Expiration Date (without
diminishing the Lessee's obligation to consummate the sale on the Expiration
Date) and will attempt to obtain the highest purchase price therefor and for
not less than the Fair Market Sales Value. The Lessee will be responsible for
hiring and compensating brokers and making the Property available for
inspection by prospective purchasers. The Lessee shall promptly upon request
permit inspection of the Property and any maintenance records relating to the
Property by the Lessor, any Participant and any potential purchasers, and shall
otherwise do all things necessary to sell and deliver possession of the
Property to any purchaser. All such marketing of the Property shall be at the
Lessee's sole expense. The Lessee shall allow the Lessor and any potential
qualified purchaser reasonable access to the Property for the purpose of
inspecting the same.
(f) The Lessee shall submit all bids to the Lessor, the Agent and
the Participants, and the Lessor will have the right to review the same and the
right to submit any one or more bids. All bids shall be on an all-cash basis
unless the Lessor, the Agent and the Participants shall otherwise agree in
their sole discretion. The Lessee shall procure bids from one or more bona
fide prospective purchasers and shall deliver to the Lessor, the Agent and the
Participants not less than ninety (90) days prior to the Expiration Date a
binding written unconditional (except as set forth below), irrevocable offer by
such purchaser or purchasers offering the highest bid to purchase the Property.
No such purchaser shall be the Lessee, or any Subsidiary or Affiliate of the
Lessee. The written offer must specify the Expiration Date as the closing date
unless the Lessor, the Agent and the Participants shall otherwise agree in
their sole discretion.
(g) In connection with any such sale of the Property, the Lessee
will provide to the purchaser all customary "seller's" indemnities,
representations and warranties regarding title, absence of Liens (except Lessor
Liens) and the condition of the Property, as well as such other terms and
conditions as may be negotiated between the Lessee and the purchaser. The
Lessee shall have obtained, at its cost and expense, all required governmental
and regulatory consents
- 24 -
30
and approvals and shall have made all filings as required by Applicable Law in
order to carry out and complete the transfer of the Property. As to the
Lessor, any such sale shall be made on an "as is, with all faults" basis
without representation or warranty by the Lessor other than the absence of
Lessor Liens. Any agreement as to such sale shall be made subject to the
Lessor's rights hereunder.
(h) The Lessee shall pay directly, and not from the sale proceeds,
all prorations, credits, costs and expenses of the sale of the Property,
whether incurred by the Lessor or the Lessee, including without limitation, the
cost of all title insurance, surveys, environmental reports, appraisals,
transfer taxes, the Lessor's and the Agent's reasonable attorneys' fees, the
Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all
applicable documentary and other transfer taxes.
(i) The Lessee shall pay to the Agent on or prior to the
Expiration Date (or to such other Person as the Agent shall notify the Lessee
in writing, or in the case of Supplemental Rent, to the Person entitled
thereto) an amount equal to the Residual Value Guarantee Amount, including all
Rent and all other amounts hereunder which have accrued or will accrue prior to
or as of the Expiration Date, in the type of funds specified in Section 3.4
hereof.
(j) If the selling price of the Property is less than the
difference between the Asset Termination Value minus the Residual Value
Guarantee Amount, then the Lessee shall have caused to be delivered to the
Lessor, the Agent and each Participant the appraisal required by Section 13.2
of the Participation Agreement thirty (30) Business Days prior to the
Expiration Date and shall pay to the Agent on or prior to the Expiration Date
(or to such other person as the Agent shall notify the Lessee in writing) the
amounts required to be paid pursuant to Section 13.2 of the Participation
Agreement.
(k) The purchase of the Property shall be consummated on the
Expiration Date following the payment by the Lessee pursuant to paragraphs (i)
and (j) above and contemporaneously with the Lessee's surrender of the Property
pursuant to Section 19.1(b) and the gross proceeds (the "Gross Proceeds") of
the sale of the Property (i.e., without deduction for any marketing, closing or
other costs, prorations or commissions) shall be paid directly to the Agent;
provided, however, that if the sum of the Gross Proceeds from such sale plus
the Residual Value Guarantee Amount paid by the Lessee pursuant to paragraph
(i) above exceeds the Asset Termination Value as of such date, then the excess
shall be paid to the Lessee on the Expiration Date.
If one or more of the foregoing provisions shall not be fulfilled as of the
date set forth above, or the Property is not purchased as aforesaid, then the
Lessor shall declare by written notice to the Lessee the Remarketing Option to
be null and void (whether or not it has been theretofore exercised by the
Lessee) as to the Property, in which event all of the Lessee's rights under
this Section 22.1 shall immediately terminate and the Lessee shall be obligated
to purchase all of the Lessor's interest in the Property pursuant to Section
20.2 on the Expiration Date. Except as expressly set forth herein, the Lessee
shall have no right, power or authority to bind the Lessor in connection with
any proposed sale of the Property.
- 25 -
31
22.2 Certain Obligations Continue.
During the Marketing Period, the obligation of the Lessee to pay Rent
(including the installment of Basic Rent due on the third anniversary of the
Closing Date or at the end of a Renewal Term, or on the Expiration Date, as the
case may be) shall continue undiminished until payment in full to the Agent of
the Gross Proceeds, the Residual Value Guarantee Amount, and all other amounts
due to the Lessor with respect to the Property under the Operative Documents.
The Lessor shall have the right, but shall be under no duty, to solicit bids,
to inquire into the efforts of the Lessee to obtain bids or otherwise to take
action in connection with any such sale, other than as expressly provided in
this Article XXII.
22.3 Support Obligations.
In the event that the Lessee does not elect to purchase the Property
on the Expiration Date or, pursuant to the Lessor's exercise of remedies under
Article XVII, this Lease is terminated, the Lessee shall provide the Lessor,
effective on the Expiration Date, with (i) all permits, certificates of
occupancy, governmental licenses and authorizations necessary to use and
operate the Property for its intended purposes (to the extent such items are
transferable or may be obtained by the Lessee on behalf of another party), (ii)
such easements, licenses, 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, repair, access to or maintenance of the Property as the Lessor
shall request, and (iii) a services agreement covering such services as the
Lessor may request in order to use and operate the Property for its intended
purposes at such rates (not in excess of arm's length fair market rates) as
shall be acceptable to the Lessor and the Lessee. All assignments, licenses,
easements, agreements and other deliveries required by clauses (i) and (ii) of
this Section 22.3 shall be in form satisfactory to the Lessor and shall be
fully assignable (including both primary assignments and assignments given in
the nature of security) without payment of any fee, cost or other charge.
ARTICLE XXIII
23.1 Holding Over.
If the Lessee shall for any reason remain in possession of the
Property after the expiration or earlier termination of this Lease (unless the
Property is conveyed to the Lessee), such possession shall be as a tenancy at
sufferance during which time the Lessee shall continue to pay Supplemental Rent
that would be payable by the Lessee hereunder were the Lease then in full force
and effect and the Lessee shall continue to pay Basic Rent at an annual rate
equal to 110% of the average rate of Basic Rent payable hereunder during the
Term. Such Basic Rent shall be payable from time to time upon demand by the
Lessor. During any period of tenancy at sufferance, the 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 its occupancy and use of the Property and to exercise
its Purchase Option at any time prior to such time as a foreclosure upon or
sale of the Property has been completed. Nothing contained in this Article
XXIII shall constitute the consent, express or implied, of the Lessor to the
holding over of
- 26 -
32
the Lessee after the expiration or earlier termination of this Lease (unless
the Property is conveyed to the Lessee), and nothing contained herein shall be
read or construed to relieve the Lessee of its obligations to purchase or
remarket the Property on the Expiration Date pursuant to Article XX or Article
XXII or as preventing the Lessor from maintaining a suit for possession of the
Property or exercising any other remedy available to the Lessor at law or in
equity or hereunder.
ARTICLE XXIV
24.1 Risk of Loss.
During the Term the risk of loss of or decrease in the enjoyment and
beneficial use of the Property as a result of the damage or destruction thereof
by fire, the elements, casualties, thefts, riots, wars or otherwise is assumed
by the Lessee, and the Lessor shall in no event be answerable or accountable
therefor.
ARTICLE XXV
25.1 Subletting and Assignment.
The Lessee may assign with recourse this Lease or any of its rights or
obligations hereunder in whole or in part to any Person, in which case the
Lessee and the Guarantor shall guarantee performance of the obligations of such
assignee under this Lease by a guaranty in form and substance acceptable to the
Lessor and the Required Participants. The Lessee may, without the consent of
the Lessor, sublease the Property or portion thereof to any Person, provided,
that no such sublease shall, in the opinion of the Lessor, adversely affect any
of the Lessor's interests, rights or remedies under the Lease or the Lessor's
title to the Property. No assignment, sublease or other relinquishment of
possession of the Property shall in any way discharge or diminish any of the
Lessee's obligations to the Lessor hereunder and the Lessee shall remain
directly and primarily liable under this Lease as to the Property, or portion
thereof, so assigned or sublet. Any sublease of the Property shall be made
subject to and subordinated to this Lease and to the rights of the Lessor
hereunder, and shall expressly provide for the surrender of the Property (or
portion thereof) after a Lease Event of Default hereunder. All such subleases
shall expressly provide for termination at or prior to the earlier of the
applicable Expiration Date or other date of termination of this Lease unless
the Lessee shall have purchased the Property pursuant to Article XX. No
assignee or sublessee shall be permitted to engage in any activities on the
Property that are substantially different from those engaged in by the Lessee
without the prior written consent of the Lessor. The Lessee shall furnish a
copy of all subleases to the Lessor and the Agent promptly after their
execution.
ARTICLE XXVI
26.1 Estoppel Certificates.
At any time and from time to time upon not less than twenty (20) days'
prior request by the Lessor or the Lessee (the "Requesting Party"), the other
party (whichever party shall have received such request, the "Certifying
Party") shall furnish to the Requesting Party (but not more
- 27 -
33
than four times per year unless required to satisfy the requirements of any
sublessees and only to the extent that the required information has been
provided to the Certifying Party by the other party) a certificate signed by an
individual having the office of vice president or higher in the Certifying
Party certifying that this Lease is in full force and effect (or that this
Lease is in full force and effect as modified and setting forth the
modifications); the dates to which the Basic Rent and Supplemental Rent have
been paid; to the best knowledge of the signer of such certificate, whether or
not the Requesting Party is in default under any of its obligations hereunder
(and, if so, the nature of such alleged default); and such other matters under
this Lease as the Requesting Party may reasonably request. Any such
certificate furnished pursuant to this Article XXVI may be relied upon by the
Requesting Party, and any existing or prospective mortgagee, purchaser or
lender, and any accountant or auditor, of, from or to the Requesting Party (or
any Affiliate thereof).
ARTICLE XXVII
27.1 Right to Inspect.
During the Term, the Lessee shall upon reasonable notice from the
Lessor (except that no notice shall be required if a Lease Event of Default has
occurred and is continuing), permit the Lessor, the Agent and their respective
authorized representatives to inspect the Property during normal business
hours, provided that such inspections shall not unreasonably interfere with the
Lessee's business operations at the Property.
27.2 No Waiver.
No failure by the Lessor or the 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 XXVIII
28.1 Acceptance of Surrender.
No surrender to the 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 the Lessor and,
prior to the payment or performance of all obligations under the Participation
Agreement and termination of the Commitments, the Agent, and no act by the
Lessor or the Agent or any representative or agent of the Lessor or the Agent,
other than a written acceptance, shall constitute an acceptance of any such
surrender.
- 28 -
34
ARTICLE XXVIX
29.1 [RESERVED].
ARTICLE XXX
30.1 Notices.
All notices, demands, requests, consents, approvals and other
communications hereunder shall be in writing and delivered (i) personally, (ii)
by a nationally recognized overnight courier service, (iii) by mail (by
registered or certified mail, return receipt requested, postage prepaid) or
(iv) by facsimile, addressed to the respective parties, as follows:
If to the Lessee:
Chase Brass & Copper Company, Inc.
State Route 15N
00000 Xxxxxxx Xxxx X-00
Xxxxxxxxxx, Xxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Lessor:
ABN AMRO Bank N.V., Chicago Branch
Central Processing Unit
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Credit Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
ABN AMRO Bank N.V.,
Xxx XXX Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xx. Xxxxxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
- 29 -
35
If to the Agent:
ABN AMRO Bank N.V., Chicago Branch
Central Processing Unit
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Credit Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
ABN AMRO Bank N.V.,
Xxx XXX Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xx. Xxxxxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such additional parties and/or other address as such party may hereafter
designate (provided, however, in no event shall either party be obligated to
notify, in the aggregate, more than five (5) designees of the other party), and
shall be effective upon receipt or refusal thereof.
ARTICLE XXXI
31.1 Miscellaneous.
Anything contained in this Lease to the contrary notwithstanding, all
claims against and liabilities of the Lessee or the Lessor arising from events
commencing prior to the expiration or earlier termination of this Lease shall
survive such expiration or earlier termination. If any term or provision of
this Lease or any application thereof shall be declared invalid or
unenforceable, the remainder of this Lease and any other application of such
term or provision shall not be affected thereby. If any right or option of the
Lessee provided in this Lease, including any right or option described in
Articles XV, XVI, XX, XXI or XXII, would, in the absence of the limitation
imposed by this sentence, be invalid or unenforceable as being in violation of
the rule against perpetuities or any other rule of law relating to the vesting
of an interest in or the suspension of the power of alienation of property,
then such right or option shall be exercisable only during the period which
shall end twenty-one (21) years after the date of death of the last survivor of
the descendants of Xxxxxxxx X. Xxxxxxxxx, the former president of the United
States, Xxxxx Xxxx, the deceased automobile manufacturer, and Xxxx X.
Xxxxxxxxxxx, the founder of the Standard Oil Company, known to be alive on the
date of the execution, acknowledgment and delivery of this Lease.
- 30 -
36
31.2 Amendments and Modifications.
Subject to the requirements, restrictions and conditions set forth in
the Participation Agreement, neither this Lease, any Lease Supplement nor any
provision hereof may be amended, waived, discharged or terminated except by an
instrument in writing in recordable form signed by the Lessor and the Lessee.
31.3 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.
31.4 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.
31.5 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 and
the same instrument.
31.6 GOVERNING LAW.
THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES. WITHOUT LIMITING THE FOREGOING, IN THE EVENT THAT THIS
LEASE IS DEEMED TO CONSTITUTE A FINANCING, WHICH IS THE INTENTION OF THE
PARTIES, THE LAW OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES, SHALL GOVERN THE CREATION, TERMS AND PROVISIONS OF THE INDEBTEDNESS
EVIDENCED HEREBY, BUT THE LIEN CREATED HEREBY AND THE ENFORCEMENT OF SAID LIEN
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE IN
WHICH THE PROPERTY IS LOCATED.
31.7 Limitations on Recourse.
The parties hereto agree that the Lessor shall have no personal
liability whatsoever to the Lessee or its respective successors and assigns for
any claim based on or in respect of this Lease or any of the other Operative
Documents or arising in any way from the transactions contemplated hereby or
thereby; provided, however, that the Lessor shall be liable in its individual
capacity (a) for its own willful misconduct or gross negligence (or negligence
in the handling of funds), (b) for liabilities that may result from the
incorrectness of any representation or warranty expressly made by it in Section
8.1 of the Participation Agreement or (c) for any Taxes based on or measured by
any fees, commission or compensation received by it for acting as the Lessor as
contemplated by the Operative Documents. It is understood and agreed that,
except as provided in the preceding proviso: (i) the Lessor shall have no
personal liability under
- 31 -
37
any of the Operative Documents as a result of acting pursuant to and consistent
with any of the Operative Documents; (ii) all obligations of the Lessor to the
Lessee are solely nonrecourse obligations, except to the extent that it has
received payment from others and are enforceable solely against the Lessor's
interest in the Property; and (iii) all such personal liability of the Lessor
is expressly waived and released as a condition of, and as consideration for,
the execution and delivery of the Operative Documents by the Lessor.
31.8 Original Lease.
The single executed original of this Lease 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 (the "Original
Executed Counterpart"). To the extent that this Lease constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease may be created
through the transfer or possession of any counterpart other than the Original
Executed Counterpart.
[SIGNATURE PAGE FOLLOWS]
- 32 -
38
IN WITNESS WHEREOF, the parties have caused this Lease be duly
executed and delivered as of the date first above written.
ABN AMRO BANK N.V., as Lessor
By: /s/ XXXXXXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ XXXXX X. XXXXXXXX, XX.
--------------------------------
Name: Xxxxx X. XxXxxxxx, Xx.
Title: Vice President
CHASE BRASS & COPPER COMPANY, INC.,
a Delaware corporation, as Lessee
By: /s/ M.T. XXXXXXXX
--------------------------------
Name: M.T. Xxxxxxxx
------------------------------
Title: CFO
-----------------------------
S-1
00
XXXXXXXXXXXX XX XXXXXXXXXXXX )
) SS.:
COUNTY OF ALLEGHENY )
Before me, the undersigned, a Notary Public within and for the State and County
aforesaid, personally appeared Xxxxxxxxxxx X. Xxxxxxx, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged himself to be an Vice President of ABN AMRO
BANK N.V., the within named bargainor, a corporation, and that he as such Vice
President, being duly authorized so to do, executed the foregoing instrument
for the purposes therein contained by signing the name of the corporation by
himself as such Vice President.
WITNESS my hand and seal, at office, on this the 22nd day of December, 1997.
/s/ XXXXX X. XXXXXX
--------------------------------
Notary Public
My Commission Expires:
Notary Seal
Xxxxx X. Xxxxxx, Notary Public
Pittsburgh, Allegheny County
My Commission Expires Oct. 3, 1993
--------------------------------------------
Member, Pennsylvania Association of Notaries
40
COMMONWEALTH OF PENNSYLVANIA )
) SS.:
COUNTY OF ALLEGHENY )
Before me, the undersigned, a Notary Public within and for the State and County
aforesaid, personally appeared Xxxxx X. XxXxxxxx, Xx., with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged himself to be an Vice President of ABN AMRO
BANK N.V., the within named bargainor, a corporation, and that he as such Vice
President, being duly authorized so to do, executed the foregoing instrument
for the purposes therein contained by signing the name of the corporation by
himself as such Vice President.
WITNESS my hand and seal, at office, on this the 22nd day of December, 1997.
/s/ XXXXX X. XXXXXX
--------------------------------
Notary Public
My Commission Expires:
Notary Seal
Xxxxx X. Xxxxxx, Notary Public
Pittsburgh, Allegheny County
My Commission Expires Oct. 3, 1993
--------------------------------------------
Member, Pennsylvania Association of Notaries
41
STATE OF OHIO )
) SS.:
COUNTY OF XXXXXXXX )
Before me, the undersigned, a Notary Public within and for the State and County
aforesaid, personally appeared M.T. Xxxxxxxx, with whom I am personally
acquainted (or proved to me on the basis of satisfactory evidence), and who,
upon oath, acknowledged himself to be the CFO of CHASE BRASS & COPPER COMPANY,
INC., the within named bargainor, a corporation, and that he as such CFO, being
duly authorized so to do, executed the foregoing instrument for the purposes
therein contained by signing the name of the corporation by himself as such CFO.
WITNESS my hand and seal, at office, on this the 22nd day of December, 1997.
/s/ XXXX X. XXXXXXXX
--------------------------------
Notary Public
My Commission Expires:
XXXX X. XXXXXXXX
Notary Public, State of Ohio
My Commission Expires Oct. 28, 2000
-----------------------------------------
42
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Lease is hereby
acknowledged as of December 23, 1997.
ABN AMRO BANK N.V., as Agent
By: /s/ XXXXXXXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ XXXXX X. XxXXXXXX, XX.
-----------------------------------
Name: Xxxxx X. XxXxxxxx, Xx.
Title: Vice President
