1
==============================================================================
Exhibit 10-7
AMENDED AND RESTATED LEASE AGREEMENT
dated as of December 21, 1995
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
as Lessor
and
NEW JERSEY NATURAL GAS COMPANY,
a New Jersey corporation,
as Lessee
-------------------------
New Jersey Natural Gas Company
Leveraged Lease of
Monmouth Shores Corporate Office Park
building and site
2
Wall, New Jersey
==============================================================================
-2-
3
TABLE OF CONTENTS
-----------------
PAGE
----
SECTION 1. Definitions and Construction........................................................................ 1
SECTION 2. Lease; Lease Term................................................................................... 1
(a) Lease.......................................................................................... 1
(b) Lease Term..................................................................................... 1
(c) Descriptions................................................................................... 2
SECTION 3. Rent; Adjustments to Rent........................................................................... 2
(a) Basic Rent..................................................................................... 2
(b) Supplemental Rent.............................................................................. 2
(c) Method of Payment.............................................................................. 3
(d) Adjustments to Rent............................................................................ 4
(e) Sufficiency of Basic Rent and
Supplemental Rent.............................................................................. 4
SECTION 4. Net Lease .......................................................................................... 4
SECTION 5. Use of the Facility and Relinquishment of Possession................................................ 6
(a) Use........................................................................................... 6
(b) Termination.................................................................................... 7
SECTION 6. Warranty of the Lessor.............................................................................. 8
(a) Quiet Enjoyment................................................................................ 8
(b) Disclaimer of Other Warranties................................................................. 9
(c) Enforcement of Certain Warranties.............................................................. 10
(d) Title Insurance................................................................................ 10
SECTION 7. Liens............................................................................................... 11
SECTION 8. Operation and Maintenance; Modifications;
Identification............................................................................ 12
(a) Operation and Maintenance...................................................................... 12
(b) Inspection..................................................................................... 13
(c) Modifications.................................................................................. 13
(d) Title to Modifications......................................................................... 14
(e) Removal of Property............................................................................ 15
(f) Trade Fixtures and Other Equipment............................................................. 15
(g) Contest of Requirements of Law................................................................. 16
-1-
4
TABLE OF CONTENTS
-----------------
(CONTINUED)
PAGE
----
(h) Improvements.................................................................................... 17
(i) Reports......................................................................................... 18
(j) Environmental Compliance........................................................................ 18
SECTION 9. Event of Loss........................................................................................ 20
(a) Damage, Loss or Casualty Event.................................................................. 20
(b) Repair.......................................................................................... 21
(c) Casualty Event; Requisition of
Title; Requisition of Use; Payment
of Casualty Value............................................................................... 22
(i) Casualty During Basic Term............................................................... 22
(ii) Casualty During a Renewal Term........................................................... 24
(iii) Requisition of Title or
Requisition of Use....................................................................... 24
(d) Condemnation Other Than Requisition
of Use or Requisition of Title................................................................ 26
(e) Application of Payments on an Event
of Loss....................................................................................... 27
(f) Application of Payments Not Relating
to an Event of Loss........................................................................... 28
(g) Application During Event of Default............................................................. 29
SECTION 10. Insurance........................................................................................... 30
(a) Required Insurance.............................................................................. 30
(b) Other Insurance................................................................................. 31
(c) Self-Insurance.................................................................................. 31
(d) [Intentionally Omitted.......................................................................... 32
(e) Policy Provisions and Endorsements.............................................................. 32
(f) Adjustment of Insurance Requirements............................................................ 33
(g) Evidence of Insurance........................................................................... 33
SECTION 11. Rights To Sublease; Assignment by Lessor
as Security....................................................................................... 34
(a) Sublease by the Lessee.......................................................................... 34
(b) Sublessee Non-Disturbance;
-2-
5
TABLE OF CONTENTS
-----------------
(CONTINUED)
PAGE
----
Assignment of Existing Leases................................................................... 34
(c) Assignment by the Lessor to the
Indenture Trustee as Security for
the Lessor's Obligations........................................................................ 36
(d) Other Assignments by the Lessor................................................................. 37
(e) Attornment...................................................................................... 37
(f) Corporate Change................................................................................ 37
(g) Lessee Assignment............................................................................... 38
SECTION 12. Lease Renewal Options................................................................................ 38
SECTION 13. Notices for Renewal; Determination of
Fair Market Rental Value........................................................................ 39
(a) Notices for Renewal............................................................................. 39
(b) Determination of Fair Market Rental
Value........................................................................................... 40
(c) Assistance with Disposition..................................................................... 40
SECTION 14. Obsolescence or Uneconomic Usefulness
Termination........................................................................................ 40
(a) Termination Notices............................................................................. 40
(b) Events Prior to Termination Date................................................................ 41
SECTION 15. Events of Default.................................................................................... 43
(a) Payments of Basic Rent, Casualty
Value, Termination Value and EBO
Price........................................................................................... 44
(b) Certain Other Supplemental Rent
Payments........................................................................................ 44
(c) Insurance....................................................................................... 44
(d) Other Covenants................................................................................. 44
(e) Representations and Warranties.................................................................. 44
(f) Receivership, etc............................................................................... 45
SECTION 16. Remedies ............................................................................................ 45
(a) Remedies........................................................................................ 45
(b) No Release...................................................................................... 50
(c) Remedies Cumulative............................................................................. 50
-3-
6
TABLE OF CONTENTS
-----------------
(CONTINUED)
PAGE
----
SECTION 17. Notices............................................................................................ 51
SECTION 18. Successors and Assigns............................................................................. 51
SECTION 19. Right To Perform for the Lessee.................................................................... 51
SECTION 20. Additional Covenants............................................................................... 52
SECTION 21. Right of First Offer............................................................................... 52
SECTION 22. Purchase Options................................................................................... 54
(a) Purchase Options.............................................................................. 54
(b) Determination of Fair Market Sales
Value......................................................................................... 54
(c) [Intentionally Omitted]....................................................................... 55
(d) Purchase Procedure............................................................................ 55
(e) Apportionments................................................................................ 57
(f) Termination under Participation
Agreement..................................................................................... 57
SECTION 23. Granting of Easements.............................................................................. 58
(a) Grant......................................................................................... 58
(b) Cooperation................................................................................... 58
SECTION 24. Amendments and Miscellaneous....................................................................... 58
(a) Amendments in Writing......................................................................... 58
(b) Severability of Provisions.................................................................... 58
(c) True Lease.................................................................................... 59
(d) GOVERNING LAW................................................................................. 59
(e) Headings...................................................................................... 59
(f) Concerning the Owner Trustee.................................................................. 59
(g) Lien of the Indenture......................................................................... 60
(h) Counterpart Execution......................................................................... 60
(i) Estoppel Certificates......................................................................... 60
(j) No Merger..................................................................................... 60
(k) Recordation................................................................................... 60
(l) Signs; Name................................................................................... 61
(m) Rule Against Perpetuities..................................................................... 61
-4-
7
TABLE OF CONTENTS
PAGE
----
Appendix, Schedules and Exhibits:
---------------------------------
Appendix A - Definitions and Rules of Usage
Schedule 1 - Basic Rent
Schedule 2 - Casualty Value
Schedule 3 - Termination Value
Schedule 4 - EBO Date and EBO Price
Exhibit A - Description of Premises
Exhibit B - Legal Description of Site
-5-
8
AMENDED AND RESTATED LEASE AGREEMENT
AMENDED AND RESTATED LEASE AGREEMENT dated as of December 21, 1995,
between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as Owner Trustee, as the Lessor, and NEW JERSEY NATURAL GAS COMPANY, a
New Jersey corporation, as the Lessee.
WHEREAS, the Lessor is the owner of the Facility;
WHEREAS, the Lessee desires to lease from the Lessor the Facility upon
the terms and subject to the conditions set forth herein; and
WHEREAS, the Lessor is willing to lease the Facility to the Lessee upon
the terms and subject to the conditions set forth herein;
WHEREAS, the Lessor and the Lessee desire to amend and restate that
certain Lease Agreement dated as of December 20, 1995 by and between Seller, as
lessor, and the Lessee, as lessee by the execution and delivery of this Lease;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
S1. DEFINITIONS AND CONSTRUCTION. For purposes of this Lease (including
the foregoing recitals), capitalized terms used herein and not otherwise defined
in this Lease shall have the meanings (and rules of usage) assigned to them in
Appendix A. Any term defined by reference to an agreement, instrument or other
document shall have the meaning so assigned to it whether or not such document
is in effect. Unless otherwise indicated, references in this Lease to sections,
paragraphs, clauses, appendices, schedules and exhibits are to the same
contained in or attached to this Lease.
S2. LEASE; LEASE TERM.
9
Lease Agreement
(a) LEASE. Upon the terms and subject to the conditions of this Lease,
the Lessor hereby leases to the Lessee, and the Lessee hereby leases from the
Lessor, the Facility.
(b) LEASE TERM. The interim term of this Lease (the "Interim Term")
shall commence on the Closing Date and shall terminate at 11:59 p.m., New York
City time, on the day before the Basic Term Commencement Date or such earlier
date as provided herein. The basic term (the "Basic Term") shall commence on
(and include) the Basic Term Commencement Date and shall terminate at 11:59
p.m., New York City time, on June 30, 2021 or such earlier date as provided
herein. The term of this Lease shall also include each Renewal Term hereunder.
(c) DESCRIPTIONS. The Premises to be leased on the Closing Date is
described in Exhibit A, and the Site to be leased on the Closing Date is
described in Exhibit B.
S3. RENT; ADJUSTMENTS TO RENT.
(a) BASIC RENT. The Lessee shall pay to the Lessor, as basic rent
("Basic Rent") for the Premises, the following amounts:
(i) on each Rent Payment Date occurring during the Basic Term,
the amounts (payable in advance) set forth on Schedule 1;
(ii) on each Rent Payment Date occurring during a Renewal
Term, if any, an amount determined as provided in Sections 12 and 13.
(b) SUPPLEMENTAL RENT. The Lessee shall pay to the Lessor during the
Lease Term, or (in the case of Excepted Rights and Payments) to whoever shall be
entitled thereto, as supplemental rent ("Supplemental Rent"), the following
amounts:
(i) if and when due, any amount payable hereunder as
-2-
10
Lease Agreement
Casualty Value, Termination Value or EBO Price; and
(ii) when due, amounts payable by the Lessor in respect of
Make-Whole Amount (other than any Make-Whole Amount payable pursuant to
Section 7.4(b) of the Indenture) and any other amounts (other than
principal and interest) payable on the Facility Notes or under the
Indenture except to the extent such amounts are payable as a result of
(x) an Indenture Event of Default that is not also an Event of Default,
or (y) a refinancing of the Facility Notes not made at the Lessee's
request unless such refinancing results from an Event of Default; and
(iii) when due, or when no due date is specified, on demand,
any amount (other than Basic Rent, Casualty Value, Termination Value or
EBO Price) that the Lessee is required to pay to the Lessor (or any
co-trustee or separate trustee appointed pursuant to the Trust
Agreement), the Owner Participant, the Indenture Trustee (or any note
registrar, paying agent, co-trustee or additional trustee appointed
pursuant to the Indenture), any Loan Participant, any Indemnified
Person and any Related Party to any Indemnified Person, under this
Lease or any other Transaction Document to which the Lessee is a party;
(iv) on demand to the extent permitted by Applicable Law,
interest on (A) any Basic Rent not paid when due and (B) any other Rent
not paid when due, in each case from and including the due date thereof
to but excluding the date of payment thereof (unless payment is made
after 12:00 noon, local time at the place of receipt, in which event
such date of payment shall be included) at a rate per annum equal to
the Default Rate; and
(v) when due, any other amounts, liabilities and obligations
other than Basic Rent which the Lessee has assumed or is otherwise
obligated to pay under this Lease or any other Transaction Document.
-3-
11
Lease Agreement
(c) METHOD OF PAYMENT. Subject to Section 11(c), each payment of Rent
shall be made in immediately available funds no later than 12:00 noon, New York
City time, on the date such payment shall be due and payable hereunder, and
shall be paid either (i) in the case of payments other than Excepted Rights and
Payments, as provided in Section 11(c), or if Section 11(c) is inapplicable,
then to the Lessor by wire transfer to the bank account of the Lessor specified
in Schedule 2 to the Participation Agreement or such other account at such other
place as may be specified in writing from time to time by the Lessor (any such
notification by the Lessor being effective for any payment of Rent due not
earlier than five (5) Business Days after the date the Lessee receives such
notification, and such bank account to be located in the contiguous continental
United States), or (ii) in the case of payments with respect to Excepted Rights
and Payments, to such Person as shall be entitled to receive such payment at
such address as such Person may specify by notice to the Lessee (the address for
the Lessor to be its address determined in accordance with Section 17);
provided, however, that with respect to payments to the Owner Participant with
respect to Excepted Rights and Payments, all such payments shall be paid by wire
transfer to the account of the Owner Participant specified in Schedule 2 to the
Participation Agreement or such other account at such other place as may be
specified in writing from time to time by the Owner Participant (any such
notification by the Owner Participant being effective for any such payment due
not earlier than five (5) Business Days after the date the Lessee receives such
notification, and such bank account to be located in the contiguous continental
United States). If the date on which any payment of Rent is due hereunder is not
a Business Day, such payment shall be made as aforesaid on the next succeeding
Business Day, with the same force and effect as if made on the nominal due date
provided for in this Lease. Payments shall in all events only be made within the
contiguous continental United States.
(d) ADJUSTMENTS TO RENT. The amounts of Casualty Value and Termination
Value set forth, respectively, in Schedule 2 and Schedule 3, and the EBO Price
set forth in Schedule 5, shall in
-4-
12
Lease Agreement
each case be adjusted (upward or downward, except in the case of the EBO Price
which shall be adjusted upward only) in accordance with the requirements of
Section 11.1(d) of the Participation Agreement.
(e) SUFFICIENCY OF BASIC RENT AND SUPPLEMENTAL RENT. Notwithstanding
any other provision of this Lease or of any other Transaction Document, (i) the
amount of the installment of Basic Rent payable on each Rent Payment Date shall
be at least equal to the aggregate amount of principal (other than principal due
by reason of prepayment or acceleration) and accrued interest due and payable on
such Rent Payment Date in respect of all Facility Notes then Outstanding and
(ii) the amount of each payment of Casualty Value, Termination Value or EBO
Price (when added to all other amounts required to be paid by the Lessee under
this Lease in respect of any Event of Loss or termination of this Lease) shall
be at least equal to an amount sufficient, as of the date of payment, to pay in
full the principal of, Make-Whole Amount (except any Make-Whole Amount owed
pursuant to Section 7.4(b) of the Indenture), if any, and accrued interest on
all Outstanding Facility Notes on and as of such date of payment.
S4. NET LEASE. This Lease is a net lease and the Lessee hereby
acknowledges and agrees that the Lessee shall pay all costs, charges, Taxes
(other than Taxes imposed on, based on or measured by net income), assessments
and other expenses of every character, foreseen or unforeseen, for the payment
of which the Lessee or, subject to the exclusions set forth in Section 7.1(b) of
the Participation Agreement, any Indemnitee is or shall become liable by reason
of the Lessee's or such Indemnitee's estate, right, title or interest in the
Premises and the Site, or that are connected with or arise out of the
possession, use, occupancy, maintenance, ownership, leasing, subleasing, repair,
rebuilding or improvement of, or addition to, the Premises or the Site or any
portion of either thereof, or that are connected with or arise out of any
obligation of the Lessee under any of the Transaction Documents, or any interest
thereunder, including, without limitation, those specifically referred to in
this Lease. The Lessee's obligation to pay all Rent hereunder, and the rights
-5-
13
Lease Agreement
of the Lessor in and to such Rent, shall be absolute, unconditional and
irrevocable and shall not be affected by any circumstance of any character,
including, without limitation: (i) any set-off, abatement, counterclaim,
suspension, recoupment, reduction, deduction, deferment, diminution, rescission,
defense or other right or claim that the Lessee or any Affiliate thereof may
have against the Lessor, the Owner Participant, the Indenture Trustee, any Loan
Participant, any vendor or manufacturer of or contractor or subcontractor for
the Premises or any part of any thereof, or any other Person for any reason
whatsoever; (ii) any defect in, failure of or Lien on the title,
merchantability, condition, design, quality, compliance with specifications,
operation or fitness for use of all or any part of the Premises or the Site or
the failure of the Premises or the Site to comply with Applicable Law; (iii) any
damage to, or removal, abandonment, dismantling, requisition, taking, salvage,
contamination, release of Hazardous Substances, condemnation, loss, theft or
destruction of all or any part of the Premises or the Site or any interference,
interruption or cessation in the use or possession of the Premises or the Site
or any part thereof by the Lessee or by any other Person for any reason
whatsoever or of whatever duration; (iv) any restriction, prevention or
curtailment of or interference with any use of all or any part of the Premises
or the Site, including eviction; (v) to the maximum extent permitted by law, any
receivership, conservatorship, insolvency, bankruptcy, reorganization or similar
proceeding by or against the Lessee, the Lessor, the Owner Participant, the
Indenture Trustee, any Loan Participant, the Remainderman or any other Person;
(vi) the invalidity, illegality or unenforceability of this Lease, any other
Transaction Document or any other instrument referred to herein or therein or
any other infirmity herein or therein or any lack of right, power or authority
of the Lessor, the Lessee, the Owner Participant, the Indenture Trustee, the
Remainderman, any Loan Participant or any other Person to enter into this Lease,
any other Transaction Document or to perform the obligations hereunder or
thereunder or consummate the transactions contemplated hereby or thereby or any
doctrine of Force Majeure, impossibility, frustration or failure of
consideration; (vii) the breach or failure of any warranty or
-6-
14
Lease Agreement
representation made in this Lease or any other Transaction Document by the
Lessee, the Lessor, the Owner Participant, the Indenture Trustee, any Loan
Participant, the Remainderman or any other Person; (viii) 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 Owner Participant, the
Indenture Trustee, the Remainderman or any Loan Participant; (ix) any claim that
the Lessee has or might have against any Person, including without limitation
the Lessor, any vendor, manufacturer, contractor, the Owner Participant, the
Indenture Trustee, the Remainderman or any Loan Participant; (x) any failure on
the part of the Lessor to perform or comply with any of the terms of this Lease,
any other Transaction Document or of any other agreement whether or not related
to the Overall Transaction; (xi) any action by any court, administrative agency
or other Governmental Authority; or (xii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing. The Lessee hereby
waives, to the extent permitted by Applicable Law, any and all rights that it
may now have or that at any time hereafter may be conferred upon it, by statute
or otherwise, to modify, terminate, cancel, quit or surrender this Lease or to
effect or claim any diminution or reduction of Rent payable by the Lessee
hereunder, except in accordance with the express terms hereof. The Lessee agrees
that, if for any reason whatsoever this Lease shall be terminated in whole or in
part by operation of law or otherwise (other than a termination of the entire
Lease expressly provided for in this Lease), then, except as provided herein,
the Lessee shall pay, to the maximum extent permitted by Applicable Law, to the
Lessor or any other Person entitled thereto, an amount equal to each installment
of Basic Rent and all Supplemental Rent at the time such payment would have
become due and payable in accordance with the terms hereof had this Lease not
been terminated in whole or in part. Each payment of Rent made by the Lessee
hereunder shall be final and the Lessee shall not seek or have any right to
recover all or any part of such payment from the Lessor or any Person for any
reason whatsoever. All covenants, agreements and undertakings of the Lessee
herein shall be performed at its cost, expense and risk unless expressly
otherwise stated. Nothing in this Section 4 or
-7-
15
Lease Agreement
elsewhere shall be construed as a guaranty by the Lessee of any Fair Market
Sales Value, Fair Market Rental Value, residual value, utility or useful life of
the Facility or as a guaranty of the Facility Notes. The Lessee's absolute and
irrevocable covenant to pay Rent, as provided in this Section 4, shall not
affect the Lessee's rights, at law or in equity, otherwise to enforce the
Lessor's obligations under this Lease or any other Transaction Documents.
S5. USE OF THE FACILITY AND RELINQUISHMENT OF POSSESSION.
(a) USE. The Facility shall be used by the Lessee as an office
building, and for no other purpose. The Lessee shall maintain in full force and
effect all Governmental Actions necessary for such use, occupancy or operation
of the Facility.
(b) TERMINATION. Unless the Lessee has theretofore acquired the
Facility as provided herein or in the Participation Agreement, on the Lease
Termination Date, the Lessee shall vacate and surrender possession of the
Facility to the Lessor (or to a Person specified by the Lessor to the Lessee in
writing). At the time of such surrender, the Facility and the Site shall be free
and clear of all Liens (other than Liens described in clauses (a) (excluding the
rights and interests of the Lessee in the Transaction Documents), (b), (c), (g),
(h) and (i) of the definition of "Permitted Liens" and Remainderman Liens);
broom clean in all areas vacated by the Lessee or its Affiliates and in the
condition and state of repair required by Section 8(a)(i). Simultaneously with
such surrender, the Lessee shall deliver to the Lessor (or to such Person) the
following items:
(i) originals or clear copies, if same are required to be left on
the Premises, of all transferable operating licenses, other
licenses, certificates of occupancy, other certificates,
permits, authorizations and approvals relating to the use and
occupancy of the Premises and the Site,
(ii) to the extent in the possession of the Lessee or
-8-
16
Lease Agreement
any Affiliate thereof: (x) plans and specifications for all
mechanical, electrical and HVAC Systems pertaining to the
Premises, (y) as-built drawings, blueprints, operating and
repair manuals, engineering logs and preventative maintenance
records relating to the Premises or the Site, and (z) plans
and specifications for any Modifications whether made by
Lessee or made by tenants at the Premises and, with respect to
those made by tenants, any consents of the Lessee related
thereto,
(iii) the current rent roll for the Premises (listing each tenant
which is not an Affiliate of the Lessee by name, and
specifying with respect to each such tenant, the square
footage of such tenant's space, the rental rate per square
footage, the rental rate per month, any amount owed for
special tenant services, parking charges, prepaid rent, if
any, and security deposit, if any), together with (1) the
amount of any rent paid by any tenant at the Premises to the
Lessee or any Affiliate of the Lessee attributable to any
period after the Lease Termination Date and (2) with respect
to security deposits, either (x) all security deposits then
held by the Lessee or any Affiliate of the Lessee with respect
to any such tenants or (y) an assignment of all of the
Lessee's or such Affiliate's rights with respect to such
security deposits not theretofore rightfully applied and not
so held,
(iv) for all lessees and sublessees which are not Affiliates of the
Lessee, the originals (if available) or true copies of all
then existing leases (other than this Lease) and subleases of
the Premises (together with all amendments thereto) to which
the Lessee or any Affiliate of the Lessee is a party or which
shall be in the possession or control of the Lessee or any
such Affiliate, and
-9-
17
Lease Agreement
(v) keys to the Building and all locks located therein in the
possession of the Lessee or any Affiliate of the Lessee.
In addition, in connection with such surrender, the Lessee shall also use
commercially reasonable efforts to assign to the Lessor (or such Person) (x) all
then existing maintenance and management contracts relating to the Premises and
the Site with Persons other than Affiliates of the Lessee, (y) all then existing
warranties against dealers, manufacturers, vendors, contractors and
subcontractors relating to the Premises, the Site or any portion thereof not
theretofore assigned to the Lessor, and (z) all then existing claims against
dealers, manufacturers, vendors, contractors and subcontractors which are not
Affiliates of the Lessee relating to the Premises, the Site or any portion
thereof not theretofore assigned to the Lessor; provided, however, that the
Lessee shall not be required to make any payment in order to obtain any consent
to any such assignment unless the Lessor shall pay or reimburse the Lessee, on
an After-Tax Basis, for the amount of any such payment. The obligations of the
Lessee under this Section 5(b) shall survive the termination of the Lease.
S6. WARRANTY OF THE LESSOR.
(a) QUIET ENJOYMENT. The Lessor covenants and warrants that, unless an
Event of Default shall have occurred and be continuing, the Lessee's quiet and
peaceable possession, use and enjoyment of the Facility in accordance with this
Lease, shall not be interfered with or disturbed by the Lessor or any other
Person lawfully claiming by, through or under the Lessor; provided, however,
that the Lessor shall not be liable to the Lessee for any violation of this
Section 6(a) by the Indenture Trustee or any Loan Participant. The right of
quiet enjoyment under this Lease described above is independent of, and shall
not affect, the Lessor's rights otherwise to initiate legal actions seeking to
enforce the obligations of the Lessee under this Lease or Lessor's rights under
Section 19.
(b) DISCLAIMER OF OTHER WARRANTIES. The warranty set forth
-10-
18
Lease Agreement
in Section 6(a) is in lieu of all other warranties of the Lessor, whether
written, oral or implied, with respect to this Lease or the Premises, the Site
or the Estate for Years, other than as expressly provided by the Lessor in the
Transaction Documents. Subject to Section 6(a), the Premises and the Site are
leased in their present condition without representation or warranty by the
Lessor and subject to the rights of the parties in possession, to the existing
state of title, to all Applicable Laws now or hereafter in effect and, without
limiting the generality of the foregoing, to all present and future Liens
(exclusive, however, of Lessor Liens and Owner Participant Liens). The Lessee
has examined the Facility and the Site and title thereto and has found all of
the same satisfactory for all purposes. NONE OF THE LESSOR, THE BANK , THE
REMAINDERMAN NOR THE OWNER PARTICIPANT HAS MADE AN INSPECTION OF THE PREMISES
AND THE SITE OR OF ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF,
AND, EXCEPT AS PROVIDED IN SECTION 6(a), NONE OF THE LESSOR, THE BANK, THE
REMAINDERMAN NOR THE OWNER PARTICIPANT MAKES ANY WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED OR OTHERWISE, WITH RESPECT TO THE SAME OR THE LOCATION, USE,
DESCRIPTION, DESIGN, MERCHANTABILITY, FITNESS FOR USE FOR ANY PARTICULAR
PURPOSE, CONDITION, VALUE, HABITABILITY OR DURABILITY THEREOF, OR AS TO THE
TITLE THERETO OR OWNERSHIP THEREOF OR OTHERWISE (EXCEPT THAT THE LESSOR, IN ITS
INDIVIDUAL CAPACITY, REPRESENTS AND WARRANTS THAT ON THE CLOSING DATE, THE
LESSOR SHALL HAVE RECEIVED WHATEVER RIGHT, TITLE AND INTEREST TO THE FACILITY AS
WAS CONVEYED TO THE LESSOR BY THE LESSEE, THE SELLER OR ANY AFFILIATE THEREOF
AND THE PREMISES AND THE SITE WILL BE FREE OF LESSOR LIENS ATTRIBUTABLE TO THE
LESSOR IN ITS INDIVIDUAL CAPACITY), IT BEING AGREED THAT ALL RISKS INCIDENT
THERETO ARE TO BE BORNE BY THE LESSEE. IN THE EVENT OF ANY DEFECT OR DEFICIENCY
OF ANY NATURE IN THE PREMISES AND THE SITE OR ANY FIXTURE OR OTHER ITEM
CONSTITUTING A PORTION THEREOF, WHETHER PATENT OR LATENT, NONE OF THE LESSOR,
THE BANK, THE REMAINDERMAN NOR THE OWNER PARTICIPANT SHALL HAVE RESPONSIBILITY
OR LIABILITY WITH RESPECT THERETO. THE PROVISIONS OF THIS SECTION 6(b) HAVE BEEN
NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION BY THE
LESSOR, THE BANK, THE REMAINDERMAN AND THE OWNER PARTICIPANT OF, AND THE LESSEE
DOES HEREBY DISCLAIM, ANY AND ALL WARRANTIES BY THE LESSOR, THE BANK,
-11-
19
Lease Agreement
THE REMAINDERMAN AND THE OWNER PARTICIPANT OTHER THAN AS SET FORTH IN SECTION
6(a), EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OR OF HABITABILITY OR OF COMPLIANCE WITH APPLICABLE
LAWS, WITH RESPECT TO THE PREMISES AND THE SITE OR ANY FIXTURE OR OTHER ITEM
CONSTITUTING A PORTION THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM
COMMERCIAL CODE OR ANOTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE, EXCEPT
THAT THE LESSOR HEREBY REPRESENTS AND WARRANTS THAT THE PREMISES AND THE SITE
ARE AND SHALL BE FREE OF LESSOR LIENS ARISING BY, THROUGH OR UNDER IT.
(c) ENFORCEMENT OF CERTAIN WARRANTIES. Unless an Event of Default shall
have occurred and be continuing and the Lessor shall have notified the Lessee
that the Lessee is no longer permitted to continue enforcement of its rights
under this Section 6(c), the Lessor authorizes the Lessee (directly or through
agents), at the Lessee's expense, to assert for the Lessor's account, during the
Lease Term, all of the Lessor's rights (if any) under any applicable warranty
and any other claim (under this Lease or any Xxxx of Sale) that the Lessee or
the Lessor may have against the Seller or any vendor, manufacturer, contractor
or subcontractor with respect to the Premises, the Site or any Modification, and
the Lessor agrees to cooperate, at the Lessee's expense (on an After-Tax Basis
to the Owner Participant or the Lessor to the extent a Tax is imposed on Lessor
rather than the Owner Participant, to the extent the Lessee would be liable to
indemnify the Owner Participant with respect to any recovery from such claim
under the terms of the Tax Indemnification Agreement), with the Lessee and its
agents in asserting such rights. Any amount recovered by the Lessee under any
such warranty or other claim against any vendor, manufacturer, contractor or
subcontractor shall be applied in accordance with Section 9(f) or (g), as
applicable.
(d) TITLE INSURANCE. The Lessee has obtained title insurance policies
in favor of the Lessor, the Indenture Trustee and the Remainderman as set forth
in Section 3.1(18) of the Participation Agreement. During the Lease Term,
proceeds of any recovery under any or all of said title insurance policies (but
-12-
20
Lease Agreement
in the case of any proceeds of title insurance received by the Indenture
Trustee, prior to the foreclosure of the Lien of the Indenture or assignment in
lieu of foreclosure (whether to the Indenture Trustee, its designee or any other
Person)) shall be applied as follows:
(i) If the proceeds relate to a total failure of title, then
(without limiting any rights of the Lessor or the Owner Participant
under the Participation Agreement for a breach of any warranty of title
made by the Lessee or the Seller) such total failure of title shall be
treated as a Requisition of Title with respect to which the Lessor
shall have accepted the Lessee's rejectable offer under Section
9(c)(iii), and the Lessee shall purchase the Facility on the first
Determination Date occurring at least thirty (30) days after the date
the Title Underwriter confirms in writing the total failure of title
(which date shall be deemed the Event of Loss Purchase Date) pursuant
to the provisions of Section 11.2(a) of the Participation Agreement,
which purchase shall be deemed an Event of Loss Purchase. In such
event, upon compliance with all of the provisions of Section 11.2(a) of
the Participation Agreement, all such title insurance proceeds shall be
allocated among (x) the Lessor, as owner of the Building and the Estate
for Years and as holder of rights under the Option and Estate for Years
Agreement and the Three Party Agreement, (y) the Remainderman, as owner
of the Remainder and as holder of rights under the Option and Estate
for Years Agreement and the Three Party Agreement and (z) the Lessee,
as their respective interests may appear.
(ii) If the proceeds relate to title defects, events or
circumstances which constitute less than a total failure of title, (A)
said proceeds shall be used to cure such title defects, events or
circumstances (or to reimburse any Person who has effected, in whole or
in part, such cure), and shall be held, pending such use, in accordance
with the provisions of Sections 9(f)(i) and (if applicable) 9(g) and
(B) the balance, if any, shall be distributed in accordance with
-13-
21
Lease Agreement
Section 9(f)(iii).
S7. LIENS. The Lessee shall not directly or indirectly create, grant, incur or
suffer to exist any Lien on or with respect to the Facility or the Site, the
Lessor's title thereto or interest therein, as the case may be, or any title or
interest of the Lessee therein, except Permitted Liens. The Lessee, at its own
expense, shall promptly take such action as may be necessary duly to discharge
any such Lien that may arise. WITHOUT LIMITING THE OBLIGATION OF THE BANK OR THE
OWNER PARTICIPANT TO DISCHARGE LESSOR LIENS OR OWNER PARTICIPANT LIENS,
RESPECTIVELY, NOTICE IS HEREBY GIVEN THAT THE LESSOR IS NOT AND SHALL NOT BE
LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO THE
LESSEE, OR TO ANYONE HOLDING THE FACILITY, THE SITE 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 FACILITY, THE SITE OR ANY PART THEREOF.
-14-
22
Lease Agreement
S8. OPERATION AND MAINTENANCE; MODIFICATIONS; IDENTIFICATION.
(a) OPERATION AND MAINTENANCE.
(i) STANDARD. The Lessee shall do each of the following: (1)
operate and maintain all parts of the Premises and the Site in good
repair and condition and will take all actions and will make all
Modifications (if any), structural or nonstructural changes, repairs
and upgrades which may be required to keep all parts of the Premises
and the Site in good repair and condition consistent with customary
standards applicable to the maintenance of first class commercial
office buildings of similar age and size in the area of Wall Township,
New Jersey and consistent with the condition delivered to the Lessee on
the Basic Term Commencement Date (ordinary wear and tear excepted); (2)
operate and maintain the Premises and the Site and make Modifications
(if any) in compliance in all material respects with all Applicable
Laws and applicable Governmental Actions; (3) operate and maintain the
Premises and the Site in at least substantially the same manner and in
accordance with the same standards as the Lessee or its Affiliates
maintains any other similar property owned, leased or subleased by the
Lessee or any such Affiliate and without in any way discriminating
against the Premises or the Site, whether by reason of its leased
status or otherwise; (4) operate, service, maintain or repair the
Premises and the Site in all material respects as may be required to
comply with the conditions of all insurance policies required to be
maintained pursuant to Section 10; and (5) comply in all material
respects with all easements existing from time to time with respect to
the Premises and the Site and maintain all services of public
utilities, in each case as may be necessary for the use and operation
of the Premises and the Site as a first class commercial office
building in the area of Wall Township, New Jersey. Neither the Lessor
nor the Remainderman shall have any obligation to operate, service,
maintain, alter, repair, rebuild or replace the Premises and the Site
or any part thereof, and
-15-
23
Lease Agreement
the Lessee expressly waives the right to perform any such action at the
expense of the Lessor pursuant to any Applicable Law.
(ii) PAYMENT OF TAXES AND OTHER IMPOSITIONS. Without limiting
the provisions of Section 7.1 of the Participation Agreement, upon the
written request of the Lessor or the Remainderman, the Lessee shall
provide the Lessor or the Remainderman as the case may be, with
evidence of the payment of any Taxes, utility charges or other
impositions, the failure of which to be paid would cause the imposition
of a Lien (other than a Permitted Lien) upon the Premises or the Site.
(iii) ENCROACHMENTS. The Lessee shall undertake no addition to
or improvement of the Premises which encroaches onto property not a
part of the Site unless it shall have obtained a license, easement,
encroachment or other agreement in form and substance reasonably
satisfactory to the Lessor and the Remainderman from the Person owning
the property into which the addition or improvement encroaches.
(b) INSPECTION. Upon not less than five (5) Business Days' notice to
the Lessee (unless an Event of Default shall have occurred and be continuing, in
which case no such notice shall be required), the Lessor, the Remainderman, the
Indenture Trustee, any Participant and their respective authorized
representatives shall, at such party's sole cost, risk and expense (unless an
Event of Default shall have occurred and be continuing, in which case at the
Lessee's cost and expense), have the right to inspect and/or environmentally
assess the Premises and the Site from time to time during normal business hours;
provided, however, that (i) any inspection pursuant to this Section 8(b) shall
be subject to rights of existing tenants and subtenants, Applicable Law and the
Lessee's standard security and safety rules established from time to time and
(ii) each Person conducting any inspection pursuant to this Section 8(b) shall
be accompanied by an authorized representative of the Lessee unless an Event of
Default shall have occurred and be continuing, in which case no such
-16-
24
Lease Agreement
accompaniment shall be required. No inspection pursuant to this Section 8(b)
shall unreasonably interfere with the use, operation or maintenance of the
Premises or the Site or the normal conduct of the business of the Lessee or any
Affiliate tenant or occupant thereof or that of any applicable sublessee. No
person entitled to make any inspection or inquiry referred to in this Section
8(b) shall have any duty to make any such inspection or inquiry, or shall incur
any obligation or liability by reason of not making any such inspection or
inquiry.
(c) MODIFICATIONS. The Lessee, at its cost and expense and subject to
Section 8(g), shall make any Modification required by any Applicable Law or
Governmental Action or as required in order for the Lessee to maintain any
insurance policy required to be maintained by the Lessee pursuant to Section 10.
In addition, the Lessee, at its cost and expense, from time to time may make any
Modification that the Lessee may deem desirable in the conduct of its business,
subject to the immediately succeeding sentence. All Modifications made pursuant
to either of the first two sentences of this Section 8(c) shall be completed in
a good and workmanlike manner and in a manner that does not (i) decrease the
Fair Market Sales Value, utility, residual value or remaining useful life of the
Site or the Premises from that immediately prior to making such Modification
assuming that the Facility was in the condition required by this Lease or (ii)
cause the Premises or the Site to be characterized as "limited use property"
within the meaning of Revenue Procedure 76-30, 1976-2 C.B. 647; provided,
however, that Modifications required by Applicable Law or insurance requirements
which are completed in a good and workmanlike manner shall in all cases be
deemed to have satisfied the requirements of this sentence. All such
Modifications, upon completion, and the making of all such Modifications shall
comply with all Applicable Laws and with the applicable conditions of all
insurance policies required to be maintained by the Lessee pursuant to Section
10.
(d) TITLE TO MODIFICATIONS. Title to each Modification shall vest as
follows:
-17-
25
Lease Agreement
(i) in the case of each Nonseverable Modification the Lessor
shall, without further act, effective on the date such Nonseverable
Modification shall have been incorporated into the Premises or the
Site, acquire title to such Nonseverable Modification;
(ii) in the case of each Severable Modification which is in
replacement of or in substitution for a portion of the Premises, the
Lessor shall, without further act, effective on the date such Severable
Modification shall have been incorporated into the Premises or the
Site, acquire title to such Severable Modification; and
(iii) in the case of each Severable Modification which does
not become the property of the Lessor pursuant to clause (ii), the
Lessee shall retain title to such Severable Modification.
Immediately upon title to a Modification vesting in the Lessor pursuant
to subparagraphs (i) or (ii) of this Section 8(d), such Modification shall,
without further act, become subject to this Lease and be deemed part of the
Facility for all purposes hereof. Modifications, title to which remains in the
Lessee pursuant to subparagraph (iii) of this Section 8(d), shall not be or be
deemed to be a part of the Facility.
(e) REMOVAL OF PROPERTY. Subject to compliance with Applicable Law and
any applicable insurance requirements under insurance policies maintained by the
Lessee under Section 10, the Lessee may remove from time to time any Severable
Modification to which the Lessee has title in accordance with Section 8(d)(iii),
and any other property to which the Lessee shall have title; provided, however,
that the Lessee, at its expense and in any event prior to the Lease Termination
Date (or in the event of a termination under Section 16(a), promptly
thereafter), shall repair any damage to the Premises or the Site caused by such
removal. If any Part is removed by the Lessee from the Premises for the purpose
of making any Modification or of replacement
-18-
26
Lease Agreement
thereof with another Part, title to such removed Part shall remain the property
of the Lessor, no matter where such removed Part is located, until such time as
the Modification has been completed or the Part constituting a replacement
thereof shall have been incorporated into the Premises, at which time, without
further act, title to such removed Part shall vest in the Lessee or in such
Person as shall be designated by the Lessee, free of the Lien of the Indenture,
and such Part shall not thereafter be part of the Premises. Each replacement
Part shall be free and clear of all Liens (except Permitted Liens), shall upon
installation become a part of the Premises (with title thereto vesting in the
Lessor), and shall be in as good operating condition as, and shall have a Fair
Market Sales Value, residual value, utility and remaining useful life at least
equal to, that of the Part removed, it being assumed for purposes of this
sentence that such removed Part was in at least the condition and state of
repair required by Section 8(a).
(f) TRADE FIXTURES AND OTHER EQUIPMENT. The trade fixtures, personal
property, machinery, equipment and the like in the Premises which are owned by
the Lessee or are owned by the Seller and were not transferred to the Lessor
under the Xxxx of Sale are acknowledged by the Lessor to be the property of the
Lessee and the Seller, respectively (and do not constitute part of the Facility)
and, without the Lessor's prior written approval, the Lessee or the Seller, as
the case may be, may make such improvements and alterations thereto as it may
desire, at its own expense. Subject to Section 8(e), any such trade or other
fixtures and any trade or other fixture of the Lessee hereafter made or
installed by or for the Lessee and not constituting a Nonseverable Modification
or a Severable Modification title to which has passed to the Lessee, shall
remain the property of the Lessee or the Seller, as the case may be, and in case
of damage or destruction thereto by fire or other causes, the Lessee or the
Seller, as the case may be, shall have the right to recover the value thereof as
its own loss from any insurance company with which it has insured the same, or
to claim an award in the event of condemnation but in either case only in the
event the amount of insurance proceeds or condemnation awards
-19-
27
Lease Agreement
otherwise payable with respect to the Facility is not reduced. The Lessee may
remove all or any of such things, at any time during the Lease Term (or in the
case of a termination under Section 16(a), promptly thereafter) or, at its
option, the Lessee may abandon the same, in whole or in part, to the Lessor at
the expiration or earlier termination of the Lease Term by vacating the Premises
without removing the same, in which case title to such property shall vest in
the Lessor and such property shall become part of the Premises for the purposes
of Section 5(b); provided that in the case of any such removal by the Lessee,
the Lessee shall repair any damage to the Premises or the Site caused by such
removal; and provided, further, that the Lessee shall pay, or reimburse the
Lessor or the Remainderman, as the case may be, for, any reasonable costs
incurred by the Lessor in connection with the removal or disposal by it of such
abandoned property.
(g) CONTEST OF REQUIREMENTS OF LAW. If, with respect to any requirement
of Applicable Law or any Governmental Action relating to the use, operation or
maintenance of the Premises or the Site, (i) the Lessee is contesting diligently
and in good faith by appropriate proceedings such requirement or Governmental
Action (in which case such contest shall be completed prior to the date the
Facility is to be returned to the Lessor hereunder), or (ii) compliance with
such requirement or Governmental Action shall have been excused or exempted by a
valid nonconforming use permit, waiver, extension or forbearance exempting the
Premises or the Site from such requirement or Governmental Action or (iii) the
Lessee shall be making a good faith effort and shall be diligently taking
appropriate steps to comply with such requirement or Governmental Action (in
which case such compliance shall be effected prior to the date the Facility is
to be returned to the Lessor hereunder), then the failure by the Lessee to
comply with such requirement or Governmental Action shall not constitute a
Default or Event of Default hereunder; provided, however, that in the case of
each of clauses (i) through (iii) above, such contest or noncompliance does not
involve (A) a material risk of foreclosure, sale, forfeiture or loss of, or
imposition of any Lien other than a Permitted Lien on, any part
-20-
28
Lease Agreement
of the Premises or the Site, (B) a material risk of extending the ultimate
imposition of such Applicable Law or Governmental Action beyond the termination
of the Basic Term or the current Renewal Term, as the case may be (unless there
shall have been furnished indemnification reasonably satisfactory to the Lessor
and the Remainderman), (C) a risk of any material civil liability or any risk of
criminal liability being imposed on the Lessor, the Site, the Premises, the
Owner Participant, the Indenture Trustee, any Loan Participant or the
Remainderman (unless, with respect to civil liability, there shall have been
furnished indemnification satisfactory to each such party), (D) any interference
with the payment of Rent, (E) risk of any material adjustment of, or material
interference with, the use, possession or disposition of the Premises or the
Site or (F) a material risk of reduction of the value, utility or remaining
useful life of the Premises or the Site; provided, however, that the Lessee
shall not be obligated to cure any noncompliance with respect to the Premises or
the Site including, without limitation, any prior nonconforming structure or
uses to the extent such noncompliance does not constitute a current violation of
Applicable Law. The Lessee shall provide the Lessor and the Indenture Trustee
with notice of any contest of the type described in clause (i) above in detail
sufficient to enable the Lessor and the Indenture Trustee to ascertain whether
such contest may have any material adverse effect of the types described in
clauses (A) through (F) above. Notwithstanding the foregoing, compliance with
Applicable Laws regarding Taxes and contests of Taxes shall not be subject to
this Section 8(g), but rather shall be subject to the provisions of Section 7.1
of the Participation Agreement or the provisions of the Tax Indemnification
Agreement, whichever is applicable to the Taxes at issue.
(h) IMPROVEMENTS. The Lessee shall not construct, or cause to be
constructed, any additional building or buildings, any additional structure or
structures, or any comparable additional improvement or improvements, in each
case that would materially increase the gross square footage of the Building or
any other building or structure on the Site or that would reduce the value of
the Building or any other building or structure on the Site
-21-
29
Lease Agreement
(each an "Additional Improvement" and collectively, "Additional Improvements")
without the Lessor's and the Remainderman's prior written consent (which consent
shall not be unreasonably withheld or delayed and shall not be conditioned upon
the payment to the Lessor or the Owner Participant of any fee for receipt of
such consent); provided, however, that the Lessor's consent shall not be
required for any Additional Improvement if the following conditions are
satisfied with respect thereto:
(i) the scheduled period of construction from commencement of
construction until such Additional Improvement is under roof and
enclosed shall not extend beyond the date which is one (1) year prior
to the end of the Lease Term; and
(ii) the Lessee shall deliver to the Lessor certificates of
any additional insurance which the Lessee shall obtain in connection
with construction of such Additional Improvement, with the Additional
Insureds being named additional insureds thereunder; provided, however,
that in the case of any insurance obtained by the Lessee from any
contractors, the Lessee shall not be required to deliver such insurance
certificates to the Lessor, but shall use commercially reasonable
efforts to so obtain such certificates.
Title to all Additional Improvements shall, without further act, automatically
vest in the name of the Lessor.
(i) REPORTS. To the extent permissible under Applicable Law, the Lessee
shall, at the Lessee's cost and expense, prepare (or cause to be prepared) and
file in a timely fashion, or, if the Lessor shall be required pursuant to
Applicable Law to file, the Lessee, at the Lessee's cost and expense, shall
prepare or cause to be prepared and delivered to the Lessor within a reasonable
time prior to the date for filing, and the Lessor shall, upon receipt thereof
from the Lessee, file all reports, applications, permits, requests or other
filings with respect to the Premises or the Site or the condition or operation
thereof
-22-
30
Lease Agreement
that shall be required to be filed with any Governmental Authority and if, in
the Lessee's reasonable judgment, it is necessary or appropriate for the Lessor
to sign, approve or join in any such report, application, permit, request or
other filing, the Lessor shall not unreasonably refuse to sign, approve or join
therein promptly after the receipt of the Lessee's written request therefor and
reasonable opportunity to review same (with appropriate consultants reasonably
acceptable to the Lessee), and any reasonable out-of-pocket expenses incurred by
the Lessor, the Owner Participant or the Remainderman in connection therewith
shall be promptly paid on an After-Tax Basis by the Lessee upon receipt of bills
therefor.
(j) ENVIRONMENTAL COMPLIANCE.
(i) The Lessee shall promptly notify the Owner Participant,
the Lessor, the Indenture Trustee and the Remainderman, with reasonable
detail, in writing of (A) any fact, circumstance, condition,
occurrence, omission or release (as that term is defined under
Environmental Laws) at, around, under or from the Site or the Premises
that may result in material expense relating to any Environmental Laws
or Hazardous Substances, such notice to be given no later than ten days
after the condition is discovered or such occurrence takes place, and
(B) any pending or threatened Claim against the Lessee, the Site or the
Premises relating to an alleged violation of Environmental Laws, such
notice to be given no later than ten days after such Claim is commenced
or threatened. Upon request, the Lessee shall provide copies of all
written communications and other documents relating to any such notice.
(ii) The Lessee shall take any and all actions, at the
Lessee's sole cost and expense, necessary to conduct and complete any
investigation, study, sampling and testing and undertake any cleanup,
removal, remedial, corrective, responsive or other action, in each case
as necessary to xxxxx, correct, remove and clean up or remediate any
violation of applicable Environmental Laws or any release
-23-
31
Lease Agreement
at, on, under, around or from the Site or the Premises in compliance
with Environmental Laws.
(iii) The Lessee will not cause or permit the use, release,
generation, treatment, storage, recycling or disposal (as those terms
are defined under Environmental Laws) of any Hazardous Substances on
the Site or the Premises or the transportation of Hazardous Substances
to or from the Site or the Premises, other than in de minimis
quantities in the ordinary course of business and in compliance with
Environmental Laws. The Lessee will not permit the Site or the Premises
to be used or operated by the Lessee, its sublessees, and/or its and
their respective agents, employees, contractors and invitees in a
manner which creates any liability under any Environmental Laws.
(iv) The Lessee shall comply with all Environmental Laws now
or hereafter applicable to the use, modification, operation,
construction or maintenance of the Site or the Premises and the Lessee
shall have sole responsibility for all expenses (including attorney,
professional or consultant fees or costs) associated with such
compliance, including compliance with any such Environmental Laws
directed to any Participant, the Owner Trustee, the Indenture Trustee,
the Lessor or the Remainderman or to which any Participant, the Owner
Trustee, the Indenture Trustee, the Lessor or the Remainderman may
become subject with respect to its interests in the Premises and the
Site. The Lessee covenants that it shall not install or permit the
installation by the Lessee, its sublessees and/or its or their
respective agents, employees, contractors and invitees of any above
ground or underground storage tanks (other than septic tanks), surface
impoundments or asbestos containing materials.
(v) The Lessee shall (on its behalf and on behalf of the
Lessor), at the Lessee's sole cost and expense, comply with the
Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq. ("ISRA"). The
Lessee shall (on its behalf and on
-24-
32
Lease Agreement
behalf of the Lessor), at the Lessee's sole cost and expense, make all
submissions to, provide all information to, and comply with all
requirements of, the Department of Environmental Protection or its
successor.
S9. EVENT OF LOSS.
(a) DAMAGE, LOSS OR CASUALTY EVENT.
(i) If an Event of Loss shall occur, or if any substantial
part of the Premises or the Site shall suffer damage, destruction,
loss, condemnation, confiscation, theft or seizure that does not
constitute an Event of Loss, the Lessee shall promptly, and in any case
within ten (10) days after such event, so notify the Lessor, the
Remainderman and the Indenture Trustee and, at the Lessee's sole
expense, shall diligently pursue collection of insurance or
condemnation proceeds in a manner reasonably acceptable to the Lessor,
the Owner Participant and the Remainderman.
(ii) If a Casualty shall occur, the Lessee shall, within
ninety (90) days of the occurrence of such Casualty, notify the Lessor
and the Remainderman in writing of its election to either (A) so long
as no Default or Event of Default shall have occurred and be
continuing, reconstruct the Premises and the Site pursuant to Section
9(b)(ii) or (B) whether or not a Default or an Event of Default shall
have occurred and be continuing, (x) if such Casualty occurs during the
Basic Term, make an irrevocable, rejectable purchase offer for the
Facility pursuant to Section 9(c)(i) or (y) if such Casualty occurs
during any Renewal Term, make an irrevocable, rejectable purchase offer
for the Facility pursuant to Section 9(c)(ii). For any Casualty which
occurs during the Basic Term, failure to give such a notice within such
90-day period or, if the Lessee has given notice pursuant to clause (A)
of this Section 9(a)(ii) that it will reconstruct the Premises and the
Site, failure of the Lessee to reconstruct the Premises and the Site in
accordance with Section 9(b)(ii), shall be deemed to be a rejectable
-25-
33
Lease Agreement
purchase offer for the Facility pursuant to clause (B)(x) of this
Section 9(a)(ii) and Section 9(c), and for any Casualty which occurs
during any Renewal Term, failure to give such notice within such 90-day
period shall be deemed to be an election of the provisions of clause
(B)(y) of this Section 9(a)(ii). Unless the Lessee shall elect to
reconstruct the Premises and the Site, such Casualty shall be a
"Casualty Event" and constitute an Event of Loss.
(b) REPAIR.
(i) If the Premises or the Site or any part thereof shall
suffer damage that does not constitute a Casualty or an Event of Loss,
the Lessee shall make or cause to be made such repairs as are necessary
to ensure that the Premises and the Site are restored to the condition
and value thereof immediately preceding such damage, assuming the
Premises and the Site had been maintained in the condition and state of
repair required under Section 8(a)(i); provided, however, that the
Lessee shall have the right to use any insurance proceeds received by
reason of such damage for such repairs pursuant to the terms and
conditions of Section 9(f); and provided, further, that such repairs
shall be commenced promptly (in any event within six (6) months of such
damage subject to Force Majeure delays) and be completed promptly
(subject to Force Majeure delays), but in any event such repairs shall
be completed not later than the Lease Termination Date.
(ii) So long as no Event of Default shall have occurred and be
continuing, if a Casualty occurs and the Lessee has given notice
pursuant to Section 9(a)(ii) that it will reconstruct the Premises and
the Site, then the Lessee shall promptly commence the reconstruction of
the Premises and the Site (such that the resulting Premises and the
Site shall have a Fair Market Sales Value, residual value, utility and
remaining useful life at least equal to that which the Premises and the
Site had immediately prior to its destruction or damage (assuming that
the Premises and the
-26-
34
Lease Agreement
Site had been maintained in the condition required under the terms of
this Lease) and otherwise be in the condition and state of repair
required under Section 8(a)(i)) and shall thereafter promptly complete
the reconstruction (subject to Force Majeure delays), but in any event
such reconstruction shall be completed not later than the Lease
Termination Date.
(iii) Should any damage, loss, condemnation, requisition by a
Governmental Authority, confiscation, theft or seizure occur with
respect to the Premises or the Site (whether or not constituting an
Event of Loss), no Rent shall be abated hereunder at any time by virtue
thereof.
-27-
35
(c) CASUALTY EVENT; REQUISITION OF TITLE; REQUISITION OF USE; PAYMENT
OF CASUALTY VALUE.
(i) CASUALTY DURING BASIC TERM. In the event the Lessee shall
elect (or be deemed to have elected) pursuant to Section 9(a)(ii)(B)(x)
to make an irrevocable, rejectable offer to purchase the Facility
(which, for this purpose, shall include, without limitation, all rights
of the Lessor under the Option and Estate For Years Agreement and the
Three Party Agreement and the Ground Lease, if applicable), then the
Lessee shall purchase the Facility on a Determination Date (which shall
be the Determination Date next following the date one hundred fifty
(150) days following the occurrence of the Casualty Event) at a
purchase price equal to the sum of (A) Casualty Value determined as of
such Determination Date, plus (B) all Supplemental Rent due and owing
on such Determination Date, plus (C) all Basic Rent payable in arrears
and due and owing on such Determination Date (it being understood that
the Lessee shall pay when due any Basic Rent due and payable on a Rent
Payment Date which occurs on or after the date of such Casualty Event
but prior to the Determination Date), plus (D) without duplication of
any such amounts included within clauses (A), (B) and (C) above, all
accrued and unpaid interest on the Facility Notes together with all
other amounts due under the Indenture and the other Transaction
Documents as of the Determination Date.
If the Lessee has elected (or is deemed to have elected)
pursuant to Section 9(a)(ii)(B)(x) to make an irrevocable, rejectable
offer to purchase the Facility and the Lessor accepts such offer by a
writing signed by the Lessor with a copy to the Indenture Trustee or
fails to expressly reject such offer in the manner provided in the
final paragraph of this Section 9(c)(i) within sixty (60) days from the
date of the Lessee's offer or deemed offer, the Lessee shall pay the
purchase price specified in the immediately preceding paragraph to the
Indenture Trustee (so long as the Indenture has not been satisfied or
discharged)
-28-
36
Lease Agreement
or thereafter to the Lessor, on the Determination Date specified in the
immediately preceding paragraph. Upon payment in full of all amounts
payable pursuant to the immediately preceding paragraph, (x) the Lease
Term shall end, (y) the obligations of the Lessee hereunder (other than
any obligations expressed herein as surviving termination of this
Lease) shall terminate as of the date of such payment and (z) the
Lessor shall Transfer to the Lessee, or if the Lessee shall so
designate, to the property damage insurer, all right, title and
interest of the Lessor in, to and under the Facility.
Anything herein to the contrary notwithstanding, if the Lessee
shall fail to pay all amounts due under and pursuant to this Section
9(c)(i), no sale shall be consummated, this Lease shall continue in
full force and effect and it shall be deemed that Lessee has rescinded
its offer pursuant to Section 9(a)(ii)(B)(x) and the Lessee shall be
required to repair, replace, restore or rebuild in accordance with
Section 9(a)(ii)(A).
In the event that the Lessor expressly rejects in writing the
offer of the Lessee to purchase the Facility as provided in the first
paragraph of this Section 9(c)(i) at the purchase price stated therein
(which rejection shall be effective only if it is signed by an
Authorized Officer of the Lessor and so long as the Indenture has not
been satisfied and discharged consented to in writing by the Indenture
Trustee, it being agreed that such consent shall be deemed to have been
given if the Lessor shall have irrevocably deposited with the Indenture
Trustee an amount equal to the principal amount of, accrued and unpaid
interest on and Make-Whole Amount, if any, and any other amounts due
and owing under the Indenture with respect to the Outstanding Facility
Notes), the Lessee shall, on the date that would otherwise have been
the purchase date pursuant to the first paragraph of this Section
9(c)(i), pay the following amount to the Indenture Trustee (so long as
the Indenture has not been satisfied and discharged) or thereafter to
the Lessor (or, with respect to Supplemental Rent, the Person entitled
thereto) or such amount shall be retained (in the case of the proceeds
of insurance) by the Indenture Trustee (so long as the Indenture has
not been satisfied or discharged) or
-29-
37
Lease Agreement
thereafter by the Lessor: the sum of (A) the amounts payable by the
Lessee under Section 9(e)(ii), plus (B) all Supplemental Rent then due
plus (C) all Basic Rent payable in arrears due and owing on such
payment date (it being understood that Lessee shall pay when due any
Basic Rent due on any Rent Payment Date which occurs on or after the
date of such Event of Loss but before such payment date), plus (D)
without duplication of any amounts included within clauses (A), (B) and
(C) above, all accrued and unpaid interest on the Facility Notes
together with all other amounts due under the Indenture and the other
Transaction Documents as of such payment date. Upon payment in full of
such amount (1) the Lease Term shall end and (2) the obligations of the
Lessee hereunder (other than any obligations expressed herein as
surviving termination of this Lease) shall terminate as of the date of
such payment.
(ii) CASUALTY DURING A RENEWAL TERM. In the event the Lessee
shall elect (or be deemed to have elected) pursuant to Section 9(a)(ii)
to have a Casualty constitute a Casualty Event during any Renewal Term,
and to make an irrevocable, rejectable offer to purchase the Facility
(which, for this purpose, shall include, without limitation, all rights
of the Lessor under the Option and Estate For Years Agreement and the
Three Party Agreement and the Ground Lease, if applicable), then the
Lessee shall purchase the Facility on a Determination Date (which shall
be the Determination Date next following the date one hundred fifty
(150) days following the occurrence of the Casualty Event) at a
purchase price equal to the sum of (A) Casualty Value determined as of
such Determination Date, plus (B) all Supplemental Rent due and owing
on such Determination Date, plus (C) all Basic Rent payable in arrears
and due and owing on such Determination Date (it being understood that
the Lessee shall pay when due any Basic Rent due and payable on
-30-
38
Lease Agreement
a Rent Payment Date which occurs on or after the date of such Casualty
Event but prior to the Determination Date), plus (D) without
duplication of any such amounts included within clauses (A), (B) and
(C) above, all accrued and unpaid interest on the Facility Notes
together with all other amounts due under the Indenture and the other
Transaction Documents as of the Determination Date. Casualty Value
during any Renewal Term shall equal a value based on a straight-line
amortization of the difference between the Fair Market Sales Value of
the Facility as of the commencement of such Renewal Term and the
estimated Fair Market Sales Value of the Facility as of the expiration
of such Renewal Term; provided, however, that both such Fair Market
Sales Values shall be determined or estimated prior to the commencement
of such Renewal Term pursuant to the Appraisal Procedure.
(iii) REQUISITION OF TITLE OR REQUISITION OF USE. The giving
of notice by the Lessee pursuant to Section 9(a)(i) that a Requisition
of Title or a Requisition of Use shall have occurred shall be deemed to
be an irrevocable, rejectable offer by the Lessee to purchase the
Facility (which for this purpose shall include, without limitation, all
rights of the Lessor under the Option and Estate For Years Agreement
and the Three Party Agreement and the Ground Lease, if applicable) on a
Determination Date (which shall be the Determination Date next
following the date one hundred fifty (150) days following the
occurrence of such Requisition of Use or Requisition of Title) at a
purchase price equal to the sum of (A) Casualty Value determined as of
such Determination Date, plus (B) all Supplemental Rent due and owing
on such Determination Date, plus (C) all Basic Rent payable in arrears
and due and owing on such Determination Date (it being understood that
Lessee shall pay when due any Basic Rent due and payable on a Rent
Payment Date which occurs on or after the date of such Requisition of
Use or Requisition of Title but prior to the Determination Date), plus
(D) without duplication of any amounts included within clauses (A), (B)
and (C) above, all
-31-
39
Lease Agreement
accrued and unpaid interest on the Facility Notes together with all
other amounts due under the Indenture and the other Transaction
Documents as of such Determination Date.
If the Lessor accepts such offer by a writing signed by the
Lessor with a copy to the Indenture Trustee or fails to expressly
reject such offer in the manner provided in the final paragraph of this
Section 9(c)(iii) within sixty (60) days from the date of the Lessee's
offer, the Lessee shall on the Determination Date specified in the
first paragraph of this Section 9(c)(iii), pay the purchase price
specified in the first paragraph of this Section 9(c)(iii) to the
Indenture Trustee so long as the Indenture has not been satisfied and
discharged) or thereafter to the Lessor. Upon payment in full of all
amounts described in clauses (A), (B), (C) and (D) of the first
paragraph of this Section 9(c)(iii), (x) the Lease Term shall end, (y)
the obligations of the Lessee hereunder (other than any obligations
expressed herein as surviving termination of this Lease) shall
terminate as of the date of such payment.
Anything herein to the contrary notwithstanding, if the Lessee
shall fail to pay all amounts due under and pursuant to this Section
9(c)(iii), no sale shall be consummated, this Lease shall continue in
full force and effect and it shall be deemed that Lessee has rescinded
its offer pursuant to the first paragraph of this Section 9(c)(iii) and
the Lessee shall be required to pursue collection of condemnation
proceeds in accordance with Section 9(a)(i).
In the event that the Lessor expressly rejects in writing the
offer of the Lessee to purchase the Facility as provided in the first
paragraph of this Section 9(c)(iii) at the purchase price stated
therein (which rejection shall be effective only if it is signed by an
Authorized Officer of the Lessor and so long as the Indenture has not
been satisfied and discharged consented to in writing by the Indenture
Trustee, it being agreed that such consent shall be deemed to have been
given if the Lessor shall have
-32-
40
Lease Agreement
irrevocably deposited with the Indenture Trustee the principal amount
of, accrued and unpaid interest on and Make-Whole Amount, if any, and
any other amounts due and owing under the Indenture with respect to the
Outstanding Facility Notes), the Lessee shall, on the date that would
otherwise have been the purchase date pursuant to the first paragraph
of this Section 9(c)(iii), pay the following amount to the Indenture
Trustee (so long as the Indenture has not been satisfied and
discharged) or thereafter to the Lessor (or, with respect to
Supplemental Rent, the Person entitled thereto) or such amount shall be
retained (in the case of the proceeds of insurance) by the Indenture
Trustee (so long as the Indenture has not been satisfied or discharged)
or thereafter by the Lessor: the sum of (A) the amounts payable by the
Lessee under Section 9(e)(ii), plus (B) all Supplemental Rent then due
plus (C) all Basic Rent payable in arrears due and owing on such
payment date (it being understood that Lessee shall pay when due any
Basic Rent due on any Rent Payment Date which occurs on or after the
date of such Event of Loss but before such payment date), plus (D)
without duplication of any amounts included within clauses (A), (B) and
(C) above, all accrued and unpaid interest on the Facility Notes
together with all other amounts due under the Indenture and the other
Transaction Documents as of such payment date. Upon payment in full of
such amount (1) the Lease Term shall end and (2) the obligations of the
Lessee hereunder (other than any obligations expressed herein as
surviving termination of this Lease) shall terminate as of the date of
such payment.
(d) CONDEMNATION OTHER THAN REQUISITION OF USE OR REQUISITION OF TITLE.
In the case of a taking or condemnation not constituting a Requisition of Use or
a Requisition of Title, (i) this Lease shall continue (but not beyond the Lease
Term), and each and every obligation of the Lessee hereunder and under each
Transaction Document shall remain in full force and effect, and (ii) the Lessee
shall, at its own expense and to the extent reasonably practicable, reconstruct
or restore the affected portion of the Premises and the Site to the condition
existing
-33-
41
Lease Agreement
immediately prior thereto (assuming that immediately prior thereto, the Premises
and the Site were in the condition required by Section 8(a)); provided that the
Lessee shall have the right to use any amounts received by reason of such taking
or condemnation for such reconstruction and restoration in accordance with
Section 9(f)(i). Any such amounts not so used shall be divided among the Lessor,
the Remainderman and the Lessee as their respective interests shall appear.
(e) APPLICATION OF PAYMENTS ON AN EVENT OF LOSS. Payments received by
the Lessor (other than proceeds of insurance carried by the Lessor or the Owner
Participant pursuant to Section 10(b)(ii), which shall be the unencumbered
property of such party), the Lessee (other than proceeds of insurance carried by
or on behalf of the Lessee described in Section 10(b)(i) (but only if the amount
of insurance proceeds otherwise payable with respect to the Facility is not
reduced as a result thereof), which shall be the unencumbered property of the
Lessee) or the Indenture Trustee from any Governmental Authority, insurer or
other Person, plus the amount of any payments which would have been due from an
insurer but for the Lessee's self-insurance or policy deductibles, as a result
of an Event of Loss shall be applied as follows (with any proceeds received
prior to the acceptance (or deemed acceptance) or rejection of any rejectable
purchase offer being held by the Indenture Trustee (or after release of the Lien
of the Indenture on the Indenture Estate in accordance with its terms, by the
Lessor), and invested at the direction of the Lessee, until such rejectable
purchase offer is accepted (or deemed accepted) or rejected):
(i) in connection with an Event of Loss, if the Lessor shall
accept (or be deemed to have accepted) the Lessee's rejectable purchase
offer under Section 9(c), (x) so much of such payments as shall not
exceed the amount of Casualty Value and all other amounts required to
be paid by the Lessee pursuant to Section 9(c) shall be applied in
reduction of the Lessee's obligation to pay such amounts if not already
paid by the Lessee or, if all such amounts have already been paid by
the Lessee, shall be applied to
-34-
42
Lease Agreement
reimburse the Lessee for its payment of such amounts, and (y) any such
payments that shall exceed the aggregate of the amounts payable
pursuant to clause (x) above shall, in the case of insurance maintained
by the Lessee pursuant to Section 10(a), be paid to, or retained by,
and shall become the unencumbered property of the Lessee, and in the
case of amounts received with respect to any Requisition of Title or
Requisition of Use, or payments received from any other Person with
respect to a Casualty, be divided among the Lessor, the Remainderman
and the Lessee as their respective interests shall appear; or
(ii) in connection with an Event of Loss, if the Lessor shall
reject the Lessee's rejectable purchase offer under Section 9(c),
(A) the Lessor shall be entitled to all such
insurance payments with respect to the Premises and the Lessee
shall pay to the Lessor an amount equal to the Lessee's
self-insurance and deductibles with respect to the Premises;
and
(B) in the case of amounts received with respect to
any Requisition of Title or Requisition of Use, all such
amounts shall be paid to the Lessee, the Lessor and the
Remainderman as their respective interests shall appear.
(f) APPLICATION OF PAYMENTS NOT RELATING TO AN EVENT OF LOSS. Payments
received by the Lessor (other than proceeds of insurance carried by the Lessor
or the Owner Participant pursuant to Section 10(b)(ii)), by the Lessee (other
than proceeds of insurance carried by or on behalf of the Lessee described in
Section 10(b)(i), but only if the amount of insurance proceeds otherwise payable
with respect to the Facility is not reduced as a result thereof) or by the
Indenture Trustee from any Governmental Authority, insurer or other Person, plus
the amount of any payments which would have been due from an insurer (but for
the Lessee's self-insurance or policy deductibles) or with
-35-
43
Lease Agreement
respect to any event giving rise to payment of an amount referred to in the
second sentence of Section 6(c), or with respect to any destruction, damage,
loss, condemnation, confiscation, theft, seizure of or requisition of title to
the Facility or any part thereof, in each case not constituting an Event of
Loss, shall be applied as follows:
(i) all such payments from insurers or from other Persons
including Governmental Authorities, but excluding payments attributable
to the Lessee's policy deductibles and self-insurance, shall be held by
the Lessee for use in connection with any restoration or rebuilding of
the Premises; provided, however, that any payments that are (x) in
excess of $1,000,000 or (y) received after the occurrence and during
the continuance of a Default or an Event of Default, shall be held by
the Indenture Trustee (or after release of the Lien of the Indenture on
the Indenture Estate in accordance with its terms, by the Lessor) as
security for the obligations of the Lessee under Section 9(b) of this
Lease, but any amounts so held shall be released and paid over to the
Lessee from time to time so long as no Default or Event of Default has
occurred and is then continuing, in each case upon presentation to the
Indenture Trustee and the Lessor of a Lessee Request specifying the
amount so to be released, and certifying that (A) the funds requested
will, to the extent not applied to reimburse the Lessee for such
expenditures already made, be applied to the payment of such
expenditures incurred and that such expenditures are due and owing (or
will be due and owing within the next sixty (60) days), (B) there exist
no Liens (other than Permitted Liens) with respect to such repair,
rebuilding or restoration, (C) the amounts remaining to be disbursed
are sufficient to complete such repair, rebuilding and restoration and
(D) such costs and expenses were not the subject of a previous Lessee
Request hereunder; and
(ii) the balance, if any, of any payments representing
proceeds of such insurance remaining after completion of such repair,
rebuilding and restoration and the payment
-36-
44
Lease Agreement
therefor, shall be paid to the Lessee; and
(iii) the balance, if any, of any payments representing
condemnation proceeds or like proceeds or any other payment remaining
after completion of such repair, rebuilding and restoration and the
payment therefor, shall be paid to the Lessor, the Remainderman and the
Lessee as their respective interests may appear.
If the Lessor or the Indenture Trustee shall in good faith desire to
dispute the information contained in any Lessee Request, the Lessor or the
Indenture Trustee, as the case may be, shall so notify the Lessee and the Lessor
or the Indenture Trustee, as the case may be, in writing within ten (10)
Business Days after the giving of such Lessee Request, specifying the amount
intended to be disputed and the nature of the dispute. After such ten (10)
Business Day period has elapsed, if the Lessor or the Indenture Trustee has not
disputed the information contained in the Lessee Request, the Person holding
such amounts shall promptly disburse to the Lessee out of such amounts the
amount of such Lessee Request.
(g) APPLICATION DURING EVENT OF DEFAULT. Notwithstanding the foregoing
provisions of this Section 9 or the provisions of Section 10, if a Default or an
Event of Default shall have occurred and be continuing, any amount that would
otherwise be payable to or for the account of, or that would otherwise be
retained by, the Lessee pursuant to the second sentence of Section 6(c) or
Section 10 or this Section 9 shall be held by the Indenture Trustee (or after
release of the Lien of the Indenture on the Indenture Estate in accordance with
its terms, by the Lessor), as security for the obligations of the Lessee under
this Lease until such time thereafter as no such Default or Event of Default
shall be continuing, unless this Lease theretofore shall have been declared in
default pursuant to Section 16, in which event such amount shall be applied in
accordance with the provisions of this Lease; provided, however, that if a
rejectable purchase offer is made (or deemed made) by the Lessee pursuant to
Section 9(c)(i) or 9(c)(iii) and such offer is accepted and the
-37-
45
Lease Agreement
Transfer in connection therewith is consummated and payment in full of any
Outstanding Facility Notes and all other amounts due under the Transaction
Documents to the Lessor, the Indenture Trustee or any Participant is duly
provided for, then contemporaneously with such Transfer and payment of such
amounts, the Lessee shall be entitled to receive from the Indenture Trustee (or
from the Lessor, as applicable) all such amounts unencumbered by any interest
the Lessor.
-38-
46
Lease Agreement
S10. INSURANCE.
(a) REQUIRED INSURANCE. The Lessee shall carry and maintain, or cause
to be carried and maintained, at the Lessee's sole cost and expense, commercial
general liability insurance (including contractual liability insurance) for
claims for injuries or death sustained by persons or damage to property while on
the Site or the Premises, and all risk property insurance coverage, including
flood and earthquake, in each case in amounts and on terms and conditions that
are consistent with the Lessee's then current practices and with insurance
companies rated at least "A-X" by A.M. Best; provided, however, that such all
risk property insurance coverage shall at all times be in an amount at least
equal to the greater of (w) the replacement cost of the Premises and (x) the
outstanding principal balance of and accrued interest on the Facility Notes
(unless all risk property insurance coverage in such amount cannot be obtained
by the Lessee, in which event the Lessee shall obtain an unconditional
irrevocable sight draft letter of credit in favor of the Indenture Trustee and
issued by a bank or other financial institution having a capital and surplus of
at least $500,000,000 and a senior unsecured debt rating of A (by S&P) and A2
(by Moody's), which letter of credit shall have a face amount not less than the
excess of (y) the amount of all risk property insurance coverage required
pursuant to this proviso over (z) the amount of all risk property insurance
coverage actually obtained by the Lessee); and provided, further, however, that
the commercial general liability insurance shall at all times be in an amount at
least equal to $35,000,000 per occurrence and not subject to an annual
aggregate. In the event the provider of such Letter of Credit ceases to meet the
standards set forth above, the Lessee will promptly and in any event within
thirty (30) days substitute a new provider meeting such standards. The policies
maintained by the Lessee pursuant to this clause (a) may, at the Lessee's
option, be carried and maintained by the Lessee under the Lessee's blanket
insurance policies. Each policy maintained by the Lessee pursuant to this clause
(a) shall (i) in the case of commercial general liability coverage, name
-39-
47
Lease Agreement
the Lessor, the Remainderman, the Owner Participant, Xxxx Lease Finance
Corporation, Xxxx Commercial Credit Corporation, Xxxx Credit Corporation, Xxxx
Corporation, each Loan Participant and, so long as the Lien of the Indenture
shall not have been discharged, the Indenture Trustee, as additional insureds
(collectively, (the "Additional Insureds") thereunder and (ii) in the case of
all risk property insurance coverage, name the Lessor, the Remainderman, the
Owner Participant and each Loan Participant as additional insureds, name the
Indenture Trustee as sole loss payee thereunder so long as any Facility Notes
are Outstanding, and thereafter name the Lessor as sole loss payee, and, so long
as the Lien of the Indenture shall not have been discharged, name the Indenture
Trustee as mortgagee under a mortgagee endorsement in form and substance
satisfactory to the Indenture Trustee. The obligation to pay premiums under the
policies described in this clause (a) shall be the sole obligation of the Lessee
and not that of any other insured.
(b) OTHER INSURANCE.
(i) Nothing in this Section 10 shall prohibit the Lessee from
maintaining at its expense insurance on or with respect to the Facility
or the operation, use and occupancy of the Facility, naming the Lessee
as insured and/or loss payee for an amount greater than the insurance
required to be maintained under this Section 10.
(ii) Nothing in this Section 10 shall prohibit the Lessor, the
Owner Participant or the Remainderman from maintaining at its expense
other insurance on or with respect to the Facility, the Site, or the
operation, use and occupancy of the Facility or the Site, naming the
Lessor, the Owner Participant or the Remainderman as insured and/or
loss payee, unless such insurance would conflict with or otherwise
limit the availability of insurance required to be maintained under
Section 10(a).
(c) SELF-INSURANCE. For so long as the Lessee shall maintain the debt
ratings and net worth described in Section
-40-
48
Lease Agreement
10(f), (i) the Lessee may satisfy an amount not to exceed $2,500,000 of the all
risk property insurance requirements set forth in Section 10(a)(w) through
self-insurance by the Lessee (by means of a deductible, self-insured retention
or otherwise) and (ii) the Lessee may maintain a deductible on its commercial
general liability insurance not in excess of $2 million. In the event the annual
audited financial statements of the Lessee for the years ending 5, 10, 15 and 20
years after the date hereof show that the Lessee's net worth for each such year
(the "Test Year") has increased by at least 10% from its net worth for the
immediately preceding Test Year, the Lessee may increase the deductible on its
commercial general liability insurance under this Section 10(c) by an amount
equal to the product obtained by multipying (1) the percentage increase in net
worth for such Test Year by (2) 2,000,000, but in no event shall such deductible
ever be in excess of $3 million.
(d) [INTENTIONALLY OMITTED].
(e) POLICY PROVISIONS AND ENDORSEMENTS. All policies of insurance
carried in accordance with Section 10(a) shall provide in the policy or by
endorsement to the extent available from the carriers satisfying the
requirements of Section 10(a) selected by the Lessee in good faith that:
(i) All liability insurance shall provide that, insofar as the
policy is written to cover more than one insured, all terms,
conditions, insuring agreements and endorsements, with the exception of
limits of liability and deductibles, shall operate in the same manner
as if there were a separate policy covering each insured;
(ii) The insurer thereunder waives all rights of subrogation
against the Lessor, the Indenture Trustee, each Participant and the
Remainderman, and waives any right of set-off and counterclaim and any
other right to deduction whether by attachment or otherwise;
(iii) Such insurance shall be primary (which may
-41-
49
Lease Agreement
include umbrella policies) as to the Lessor, the Bank, the Indenture
Trustee, each Participant and the Remainderman, without right of
contribution of any other insurance carried by or on behalf of the
Lessor, the Indenture Trustee, any Participant or the Remainderman;
(iv) Such insurance shall remain in full force and effect
until the Lessor, the Owner Participant, the Indenture Trustee and the
Remainderman are notified in writing at least thirty (30) days (or ten
(10) days, in the case of non-payment of premiums) in advance of any
cancellation or non-renewal or material change in the terms and
conditions thereof;
(v) the respective interests of the Lessor, the Remainderman,
the Indenture Trustee, the Loan Participants and the Owner Participant
under all insurance policies required under Section 10(a) shall not be
invalidated by any action or inaction of the Lessee or any other Person
(other than the beneficiary of such respective interest) and such
insurance shall insure the Lessor, the Remainderman, the Indenture
Trustee, the Loan Participants and the Owner Participant as their
interests may appear, regardless of any breach or violation of any
warranty, declaration or condition contained in such policies by the
Lessee or any other Person (other than the beneficiary of such
respective interest); and
(vi) With respect to the commercial general liability
insurance maintained by the Lessee pursuant to this Section 10, (i)
such coverage shall at all times maintain a retroactive date on or
before the Closing Date (whether by purchasing an extended reporting
period or otherwise) and (ii) if on the Lease Termination Date such
coverage is not maintained on an "occurrence form" basis, such coverage
shall continue for a period of seven (7) years after the Lease
Termination Date (whether by purchasing an extended reporting period or
otherwise).
-42-
50
Lease Agreement
(f) ADJUSTMENT OF INSURANCE REQUIREMENTS. In the event that, on any
date, the senior long term debt rating of the Lessee, as given by Xxxxx'x
Investors Service, Inc. ("Moody's") and Standard and Poor's Corporation ("S&P")
in their regular rating reports, is lower than BBB+ (as given by S&P) or Baa1
(as given by Moody's) or the Lessee's net worth is less than 60% of its net
worth reflected in its most recent (as of the date hereof) audited financial
statements, then the Lessee shall promptly (and in any event within thirty (30)
days) obtain and maintain insurance in the full amounts required under Section
10(a) and with insurance companies meeting the criteria set forth therein,
subject to deductibles of no more than $150,000 with respect to all risk
property insurance and $200,000 with respect to liability insurance.
(g) EVIDENCE OF INSURANCE. The Lessee shall deliver to the Lessor, each
Participant, the Remainderman and the Indenture Trustee at least two (2) days
before the Closing Date and annually thereafter, certificates of insurance
evidencing the provisions described in this Section 10 executed by the insurer
or its duly authorized agent. Without limiting the foregoing, each such
certificate shall set forth the insurance obtained in accordance with this
Section 10 and state that such insurance is in full force and effect, all
premiums then due and payable thereon have been paid and, in the opinion of the
signer, such insurance complies with the provisions of this Lease. During the
Lease Term, if an Event of Default has occurred and is continuing and the Lessor
or (so long as the Indenture has not been satisfied and discharged) the
Indenture Trustee so requests, the Lessee shall deliver to the Lessor and the
Indenture Trustee copies of all insurance policies required by this Section 10.
-43-
51
Lease Agreement
S11. RIGHTS TO SUBLEASE; ASSIGNMENT BY LESSOR AS SECURITY.
(a) SUBLEASE BY THE LESSEE. So long as no Default or Event of Default
shall have occurred and be continuing, the Lessee may, without the consent of
the Lessor, (A) sublease all or any portion of the Facility to any Affiliate of
the Lessee, or (B) sublease less than substantially all of the Facility to any
Person; provided, however, that in each of the foregoing cases (i) such sublease
shall be expressly subject and subordinate to this Lease, the Indenture and the
Mortgage, (ii) such sublease shall not release the Lessee from any of its
obligations as the Lessee hereunder, (iii) such sublease will not cause all or
any portion of the Facility to constitute "tax exempt use property" within the
meaning of Section 168(g) or (h) of the Code (or any successor provisions
thereto), (iv) such sublessee is not subject to any bankruptcy or insolvency
proceedings and is generally paying its debts as they become due, and (v) the
term of such sublease shall not extend beyond the Lease Termination Date. The
rights of any sublessee and the obligations of the sublessor under any future
sublease (each, a "Future Sublease") shall not be inconsistent with the
obligations of the Lessee and, during the Lease Term, the rights of the Lessor
under this Lease.
(b) SUBLESSEE NON-DISTURBANCE; ASSIGNMENT OF EXISTING
LEASES.
(i) Notwithstanding the provisions of clause (i) of the
proviso to the first sentence of Section 11(a), with respect to any
tenants and subtenants under any lease or sublease described on
Schedule 8 to the Participation Agreement (collectively, the "Existing
Leases"), such tenants and subtenants shall be entitled to all rights
of non-disturbance available under, and other rights expressly set
forth in, their respective Existing Leases as currently in effect, as
well as all rights of non-disturbance available under Applicable Law.
(ii) The Lessor hereby grants, transfers, assigns and conveys
to the Lessee, during the Lease Term and subject to
-44-
52
Lease Agreement
the rights of the Indenture Trustee therein pursuant to the Security
Documents, all of the right, title and interest of the Lessor in and to
the Existing Leases (with all extensions, renewals, amendments and
modifications, if any, from time to time), and the Lessee hereby
assumes all of the obligations of the Lessor under the Existing Leases.
Unless an Event of Default shall have occurred and be continuing, the
Lessor hereby covenants and agrees that the Lessee shall have the right
to enforce, terminate, extend, renew or otherwise amend or modify any
of the Existing Leases; provided, however, that no amendment or
modification shall be entered into which would not be permitted to be
included in a sublease permitted by the other provisions of this Lease.
It is understood and agreed that the grant and assignment of the
Existing Leases in this clause (ii) is subject and subordinate to the
Lien of the Mortgage and the other Security Documents, notwithstanding
that this Lease (or a memorandum hereof) is being filed for record in
the appropriate recording office prior to recordation of the Mortgage
and other Security Documents.
(iii) To secure the prompt and full performance and payment by
the Lessee of its obligations under the Transaction Documents, the
Lessee hereby assigns to the Lessor, subject to the conditions
hereinafter set forth, all of the Lessee's right, title and interest in
and to all Existing Leases and all rents, issues and profits accruing
thereunder, and all guarantees and security deposits with respect to
such Existing Leases; provided, however, that such assignment, although
presently effective, is given solely as security, and the Lessor hereby
irrevocably waives the right to exercise the Lessor's rights pursuant
to this clause (ii) until and unless an Event of Default shall have
occurred and be continuing. The Lessee hereby irrevocably directs each
tenant under any such Existing Lease (each, an "Existing Subtenant") to
pay to the Lessor the rentals or other sums payable under such Existing
Subtenant's sublease when, as and if directed to do so by the Lessor in
a written notice to such Existing Subtenant in which the Lessor shall
-45-
53
Lease Agreement
certify that an Event of Default shall have occurred and be continuing
under this Lease. The Lessee hereby irrevocably notifies and directs
each Existing Subtenant to pay such amounts to the Lessor in the event
such Existing Subtenant receives any such notice from the Lessor, and
the Lessee hereby irrevocably waives any claims for non-payment of such
rentals or other sums that might arise as a result of such payments to
the Lessor.
(iv) The Lessee shall not enter into any renewals of the
Existing Leases unless such Existing Leases, as renewed, are subject
and subordinate to this Lease. The Lessee may not permit or suffer to
exist any Lien (other than the Lien of the First Mortgage Bonds) on any
sublease of the Premises without the prior written consent of the
Lessor and the Indenture Trustee, except Permitted Liens. The Lessee
shall, within ten (10) Business Days after the execution of any
sublease with a sublessee that is not an Affiliate of the Lessee,
deliver to the Lessor, the Remainderman and the Indenture Trustee a
conformed copy thereof (with acknowledgments, if any) and a conformed
copy of any short form lease or memorandum of lease. Any sublease not
permitted by this Section 11(b) shall be void.
(c) ASSIGNMENT BY THE LESSOR TO THE INDENTURE TRUSTEE AS SECURITY FOR
THE LESSOR'S OBLIGATIONS. To secure the Secured Indebtedness, the Lessor will
assign to the Indenture Trustee, for the benefit of the Loan Participants (i)
its right, title and interest in and to this Lease (including the right to
receive all payments of Rent but excluding any Excepted Rights and Payments), to
the extent provided in the Indenture, and (ii) its right, title and interest in
and to the Facility. The Lessee hereby (w) consents to such assignment and to
the terms of the Indenture, (x) agrees (and the Lessor hereby authorizes and
directs the Lessee) to pay directly to the Indenture Trustee at the Indenture
Trustee's Office on behalf of the Lessor (until the Lien of the Indenture on the
Indenture Estate shall have been released in accordance with its terms, and
evidence thereof shall have been delivered to the Lessee) all amounts of Rent
(other than payments
-46-
54
Lease Agreement
with respect to Excepted Rights and Payments) due or to become due to the
Lessor, (y) agrees that the right of the Indenture Trustee to any such payments
shall be absolute and unconditional and shall not be affected by any
circumstances whatsoever, including, without limitation, those circumstances set
forth in Section 4, and (z) agrees that, to the extent provided in the Indenture
(until the Lien of the Indenture on the Indenture Estate shall have been
released in accordance with its terms), the Indenture Trustee shall have or
shall share with the Lessor such rights of the Lessor hereunder (other than
Excepted Rights and Payments) as are specified in the Indenture.
(d) OTHER ASSIGNMENTS BY THE LESSOR. During the Lease Term, the Lessor
may transfer, sell or convey the Facility or assign its rights and obligations
under this Lease only in accordance with the Transaction Documents, including,
without limitation, the limitations contained in Section 4.8 of the Indenture
and Sections 21 and 22 of this Lease.
(e) ATTORNMENT. In the event of (i) the foreclosure of any mortgage or
deed of trust made by the Lessor covering the Facility (including, without
limitation, the Indenture and the Mortgage), (ii) the giving of a deed in lieu
of foreclosure by the Lessor with respect to the Facility, (iii) the filing of a
petition in bankruptcy or other similar insolvency proceeding by or against the
Lessor, or (iv) any other permitted transfer by the Lessor of title to the
Facility, then the Lessee shall, at the request of the mortgagee, beneficiary of
the deed of trust, trustee in bankruptcy, receiver or transferee, as the case
may be, attorn to the purchaser or other transferee of the Facility, including
the Indenture Trustee, or the mortgagee or beneficiary of the deed of trusts
upon any such foreclosure, sale, filing or transfer, and recognize such
purchaser or other transferee as the Lessor under this Lease.
(f) CORPORATE CHANGE. The Lessee shall not be a party to any Corporate
Change unless: (a) the successor corporation (if other than the Lessee) formed
by such consolidation or into which the Lessee shall be merged or the Person
that shall acquire by
-47-
55
Lease Agreement
sale, conveyance, transfer or lease all or substantially all the assets of the
Lessee shall (i) be a corporation duly organized, validly existing and in good
standing under the laws of the United States of America, any state thereof or
the District of Columbia and qualified to transact business in the State of New
Jersey and (ii) execute and deliver to the Owner Participant, each Loan
Participant, the Remainderman, the Owner Trustee and the Indenture Trustee an
agreement in form and substance reasonably satisfactory to the Owner
Participant, each Loan Participant, the Remainderman, the Owner Trustee and the
Indenture Trustee in which such successor corporation shall assume the due and
punctual performance of each covenant and condition of this Lease and all other
Transaction Documents to which the Lessee is a party to be performed or observed
by the Lessee, (b) such transaction shall not cause a Default or Event of
Default to occur and (c) the Lessee shall have delivered to the Owner
Participant, each Loan Participant, the Remainderman, the Owner Trustee and the
Indenture Trustee an opinion of outside counsel addressed to, and in form and
substance reasonably satisfactory to, the Owner Participant, each Loan
Participant, the Remainderman, the Owner Trustee and the Indenture Trustee to
the effect that (i) the surviving corporation is a corporation duly organized,
validly existing and in good standing in the state of its incorporation and the
State of New Jersey, (ii) the agreement executed and delivered by the surviving
corporation pursuant to this Section 11(f) is within its corporate power, has
been duly authorized, executed and delivered by the surviving corporation and
constitutes the legal, valid and binding agreement of the surviving corporation
enforceable against it in accordance with its terms and (iii) all of the
Transaction Documents to which the Lessee is a party will, upon the consummation
of such transaction, be the legal, valid and binding obligations of the
surviving corporation enforceable against it in accordance with the terms
thereof, except as such enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting creditors generally and by general
equitable principles. Upon any such consolidation or merger, or any sale,
conveyance, transfer or lease of the assets of the Lessee as an entirety or
substantially as an entirety in
-48-
56
Lease Agreement
accordance with this Section 11(f), the successor corporation formed by such
consolidation or into which the Lessee shall be merged or to which such sale,
conveyance, transfer or lease shall be made shall succeed to, and be substituted
for, and may exercise every right and power of, the Lessee under the Transaction
Documents to which the Lessee is a party.
(g) LESSEE ASSIGNMENT. The Lessee shall not assign its right, title and
interest in, to or under this Lease except as permitted by Section 11(b), 11(f)
or this Section 11(g).
Other than pursuant to the Indenture of Mortgage and Deed of Trust
dated April 1, 1952 securing the First Mortgage Bonds, this Lease shall not be
mortgaged or pledged by the Lessee, nor shall the Lessee mortgage or pledge the
interests of the Lessee in and to the Facility or any portion thereof. Any such
mortgage or pledge shall be void.
S12. LEASE RENEWAL OPTIONS. Subject to the notice requirement set forth in
Section 13(a) or 13(b), as the case may be, and to the provisions of Section
13(c), the Lessee shall (provided that at the time of any notice pursuant to
Section 13(a) and at the commencement of any Renewal Term no Event of Default
shall have occurred and be continuing) have and is hereby granted the right and
option to renew the term of this Lease at the end of the Basic Term or any
Renewal Term, as the case may be, as follows:
(a) The Lessee may renew the term of this Lease for up to two
(2) periods which in the aggregate shall not exceed seven (7) years,
the first such renewal for a period of four (4) years and the second
such renewal for a period of three (3) years (each, a "Fixed Rate
Renewal Term") at a fixed rental per annum equal to the Basic Rent
payable with respect to the final year of the Basic Lease Term (the
"Fixed Rental Amount"); provided; however, that the Lessee may not
select a Fixed Rate Renewal Term at any time after the Lessee has
selected a Fair Market Value Renewal Term. During each Fixed Rate
Renewal Term, the Lessee shall pay to the Lessor the Fixed Rental
Amount in semiannual
-49-
57
Lease Agreement
installments payable in advance on each January 1 and July 1 during
such Fixed Rate Renewal Term.
(b) The Lessee may renew the term of this Lease for a period
of five (5) years (a "Fair Market Value Renewal Term") at a rental
payment equal to the then Fair Market Rental Value of the Facility
(determined in accordance with Section 13(b) for such renewal;
provided, however, that the Lessee may select no more than four (4)
Fair Market Value Renewal Terms. During each Fair Market Value Renewal
Term, the Lessee shall pay to the Lessor the Fair Market Rental Value
of the Facility for such a renewal in semiannual installments payable
in advance on each Rent Payment Date during such Fair Market Value
Renewal Term.
If the Lessee has exercised its option for a Renewal Term,the Lessee
shall be responsible for payment and performance of all of the Lessor's
obligations under the Ground Lease other than the payment of Basic Ground Rent
(as defined in the Ground Lease), including the obligation and responsibility
for the repair, replacement, maintenance and operation of the Premises and the
Site and, as between the Lessee, the Lessor and the Remainderman, the Lessee
hereby acknowledges that neither the Lessor nor the Remainderman shall have any
responsibility with respect thereto during any such Renewal Term; provided,
however, that the Lessee need not pay and shall not be responsible for the
payment of Basic Ground Rent during any Renewal Term.
S13. NOTICES FOR RENEWAL; DETERMINATION OF FAIR MARKET RENTAL
VALUE.
(a) NOTICES FOR RENEWAL. In the event that, prior to the expiration
date of the Basic Term or the then current Renewal Term, the Lessee desires to
exercise its option to renew this Lease for a Renewal Term pursuant to Section
12, then the Lessee shall give to the Lessor and Remainderman irrevocable notice
of its election not earlier than two (2) years nor later than eighteen (18)
months prior to the expiration date of the Basic Term or current Renewal Term,
as the case may be.
-50-
58
Lease Agreement
(b) DETERMINATION OF FAIR MARKET RENTAL VALUE FOR FAIR MARKET VALUE
RENEWAL TERMS. If the Lessee shall give to the Lessor and the Remainderman
notice of its election to renew this Lease pursuant to Section 13(a) for a Fair
Market Value Renewal Term, then not earlier than eighteen (18) months nor later
than twelve (12) months prior to the expiration date of the Basic Term or of the
then-current Renewal Term, as the case may be, the Lessee and the Lessor shall
attempt to agree upon the Fair Market Rental Value of the Facility for such Fair
Market Value Renewal Term. If the Lessee and the Lessor are unable to agree upon
such Fair Market Rental Value, such value shall be determined by the Appraisal
Procedure.
(c) ASSISTANCE WITH DISPOSITION. From and after the date on which the
Lessee could last give a notice of its election to renew the Lease Term with no
such notice having been given, the Lessee shall cooperate with the reasonable
requests of the Lessor in its effort to sell or lease the Facility and the
Remainder for a term following the Lease Termination Date including, but not
limited to, making the Facility and the Site available for inspection upon
reasonable advance notice and subject to the provisions of Section 8(b).
-51-
59
Lease Agreement
S14. OBSOLESCENCE OR UNECONOMIC USEFULNESS TERMINATION.
(a) TERMINATION NOTICES. So long as no Event of Default shall have
occurred and be continuing on the date the Termination Notice is delivered or on
the Termination Date, if, at any time during the Lease Term, following the tenth
anniversary of the Closing Date, the Lessee's Board of Directors shall have
determined that the Facility is obsolete or uneconomic for use or surplus to the
needs of the Lessee, the Lessee shall, on not more than two (2) occasions and
not closer than eighteen (18) months apart, have the option to terminate this
Lease on any Determination Date that is specified by the Lessee (a "Termination
Date") in a notice to the Lessor (a "Termination Notice") given at least six (6)
months prior to the Termination Date (which notice may be given prior to such
tenth anniversary of the Closing Date but no earlier than the ninth anniversary
of the Closing Date) and accompanied by a certified resolution of the Board of
Directors of the Lessee evidencing such determination.
(b) EVENTS PRIOR TO TERMINATION DATE. Not more than sixty (60) nor less
than thirty (30) days prior to the Termination Date, the Lessee shall deliver an
Officer's Certificate to the Lessor, the Remainderman, the Indenture Trustee and
each Loan Participant specifying (a) the Termination Date, (b) that the
principal amount of the Outstanding Facility Notes will be prepaid on such date,
(c) that a Make-Whole Amount may be payable, (d) the date when such Make-Whole
Amount will be calculated, (e) the Estimated Make-Whole Amount, (f) the accrued
interest applicable to such prepayment, and (g) the Sections of this Lease and
the Indenture pursuant to which such prepayment shall be made. Two (2) Business
Days prior to the Termination Date, the Lessee shall provide the Lessor, the
Indenture Trustee and each Loan Participant written notice of the Make-Whole
Amount, if any, payable in connection with the termination of this Lease and a
reasonably detailed calculation of the Make-Whole Amount determined as of the
Termination Date and calculated three (3) Business Days prior to such date.
-52-
60
Lease Agreement
During the period commencing with the date on which such Termination
Notice is given until the Termination Date, the Lessee, as non-exclusive agent
for the Lessor, shall undertake on behalf of the Lessor to obtain cash bids for
the purchase of the Facility and shall use commercially reasonable efforts to
effect the sale of the Facility. The Lessee may use a third party as its agent
in connection with any such sale. The Lessor shall also have the right, at its
own expense, (but no obligation) to obtain cash bids for the purchase thereof,
either directly or through agents other than the Lessee. The Lessee shall
certify to the Lessor in writing the amount and terms of each bid received by
the Lessee and the name and address of the person submitting a bid (which Person
shall not be the Lessee or any Affiliate of the Lessee but may be the Lessor or
the Owner Participant). On the Termination Date, the Lessor shall (subject to
receipt of the net sales price and all additional payments specified in the
second and third following sentences), Transfer its interest in the Facility
(which, of this purpose, shall include, without limitation, all rights of the
Lessor under the Option and Estate for Years Agreement and the Three Party
Agreement and the Ground Lease, if applicable) for cash to bidder which shall
have submitted the highest bid prior to such date (which Person shall not be the
Lessee, a Person related to the Lessee or any Affiliate of the Lessee, but may
be the Lessor or the Owner Participant). The purchase price for such sale shall
be paid on the Termination Date in immediately available funds. The total sales
price realized upon the sale of the Facility, subject to the terms of the
Indenture and the Lien of the Security Documents, shall be retained by the
Lessor. In addition, on the Termination Date, the Lessee shall pay to the
Indenture Trustee (so long as the Indenture has not been satisfied and
discharged), or thereafter to the Lessor (or, in the case of Supplemental Rent,
the Person entitled thereto) the sum of (A) the excess, if any, of the
Termination Value determined as of the Termination Date over the net sales
proceeds actually paid to the Lessor plus (B) all accrued and unpaid Basic Rent
due and unpaid as of the Termination Date, plus (C) all Supplemental Rent owing
by the Lessee to and including the Termination Date, including the Make-Whole
Amount, if any,
-53-
61
Lease Agreement
determined as of the Termination Date, plus (D) without duplication of amounts
included within clauses (A), (B) and (C) above, all accrued and unpaid interest
on the Facility Notes together with all other amounts due under the Indenture
and the other Transaction Documents.
Notwithstanding the foregoing, the Lessor may elect to retain, rather
than sell, the Facility (which, for this purpose, shall include, without
limitation, all rights of the Lessor under the Option and Estate For Years
Agreement and the Three Party Agreement and the Ground Lease, if applicable) by
giving irrevocable written notice to that effect to the Lessee and the Indenture
Trustee (so long as the Indenture has not been satisfied and discharged);
provided, however, that such irrevocable notice is given no later than ninety
(90) days prior to the scheduled Termination Date and, provided, further, that
any such irrevocable notice is signed by an Authorized Officer of the Lessor and
consented to in writing by an Authorized Officer of the Indenture Trustee (so
long as the Indenture has not been satisfied and discharged). It shall be a
condition precedent to the Lessor's right of retention that on or prior to the
scheduled Termination Date, the Lessor shall have deposited with the Indenture
Trustee all amounts then unpaid and outstanding under the Security Documents to
the date of payment (including, without limitation, any Make-Whole Amount and
all other amounts due on or with respect to the Facility Notes). If the Lessor
elects to retain the Facility pursuant to this paragraph, the Lessee shall pay
to the Indenture Trustee (so long as the Indenture has not been satisfied and
discharged), or thereafter to the Lessor or to whoever is entitled thereto, on
the scheduled Termination Date, the amounts set forth in clauses (B), (C), and
(D) of the preceding paragraph. If the Lessor expressly elects in writing to
retain Lessor's interest in the Facility as provided in this Section 14, such
election shall be deemed effective only if it is consented to in writing by an
Authorized Officer of the Indenture Trustee (so long as the Indenture has not
been satisfied and discharged, it being agreed that such consent shall be deemed
to have been given if the Lessor shall have irrevocably deposited with the
Indenture Trustee the amounts required by the second
-54-
62
Lease Agreement
sentence of this paragraph).
If a sale shall not have occurred on or as of the Termination Date,
then Lessee may at its option (i) elect to terminate the Lease, upon payment to
the Indenture Trustee (so long as the Indenture has not been satisfied and
discharged), or thereafter to the Lessor or to whomever is entitled thereto, on
the scheduled Termination Date the amounts set forth in clauses (B), (C) and (D)
of the second paragraph of this Section 14(b) plus the Termination Value as of
such Termination Date and return the Facility to the Lessor in accordance with
Section 5 or (ii) revoke its Termination Notice in which case this Lease shall
continue in full force and effect, and Lessee shall not be required to pay the
Termination Value or any Make-Whole Amount. In addition to any revocation
described in the preceding sentence, Lessee shall be entitled to revoke its
Termination Notice at any other time at least thirty (30) days prior to the
Termination Date with the same effect as a revocation pursuant to the
immediately preceding clause (ii). In the event of any such revocations, the
Lessee will pay all reasonable fees and expenses (including reasonable
attorney's fees and expenses) of the Lessor, the Owner Participant, the
Indenture Trustee, the Remainderman and the Loan Participants incurred in
connection with such revoked Termination Notice. If the Lessee shall fail to pay
all amounts due under and pursuant to this Section 14 on the scheduled
Termination Date, no sale shall be consummated, this Lease shall continue in
full force and effect and it shall be deemed that Lessee has revoked its
Termination Notice.
Upon compliance by the Lessee with the provisions of this Section 14
(other than those which expressly provide that the term of this Lease shall
continue), the obligation of the Lessee to pay Basic Rent after the Termination
Date shall cease, the Lease Term shall end and the obligations of the Lessee
hereunder (other than any such obligation expressly surviving termination of
this Lease) shall terminate as of the Termination Date. The Lessor shall be
under no duty to solicit bids, to inquire into the efforts of the Lessee to
obtain bids or otherwise to take any
-55-
63
Lease Agreement
action in connection with any such sale other than to sell its interest in the
Facility as provided above.
S15. EVENTS OF DEFAULT. The term "Event of Default", wherever used herein, shall
mean any of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary, or come about or be effected
by operation of law, or be pursuant to or in compliance with any judgment,
decree or order of any court or any Applicable Law or Governmental Action):
(a) PAYMENTS OF BASIC RENT, CASUALTY VALUE, TERMINATION VALUE AND EBO
PRICE. The Lessee shall fail to make, or cause to be made any payment of Basic
Rent, Casualty Value, Termination Value, EBO Price or any other amounts payable
under Section 9, 14 or 22 within five (5) Business Days after the same shall
become due; or
(b) CERTAIN OTHER SUPPLEMENTAL RENT PAYMENTS. The Lessee shall fail to
make, or cause to be made any payment of Supplemental Rent (other than (i)
Casualty Value, Termination Value, EBO Price or any other amounts payable under
Section 9, 14 or 22 and (ii) any payment with respect to Excepted Rights and
Payments (unless the Lessor elects to have such failure constitute an Event of
Default)) after the same shall become due, and such failure shall continue,
after the Lessee shall have received a notice from the Lessor specifying such
failure and requiring it to be remedied, for a period of thirty (30) days; or
(c) INSURANCE. The Lessee shall fail to carry or maintain
any insurance required under Section 10(a); or
(d) OTHER COVENANTS. The Lessee shall fail to perform or observe any
covenant or agreement (other than those referred to in clauses (a) through (c)
above) to be performed or observed by it under this Lease or any other
Transaction Document (other than the Tax Indemnification Agreement) to which it
is a party, and such failure shall continue, after the earlier of the date the
Lessee has Actual Knowledge of such failure or the date the
-56-
64
Lease Agreement
Lessee shall have been given a notice specifying such failure and requiring it
to be remedied, for a period of thirty (30) days (or such longer period, not to
extend beyond the earlier of (A) the expiration of one hundred eighty (180) days
from the Lessee's receipt of such notice and (B) the last day of the Lease Term,
as may be necessary to remedy any such failure that cannot, with reasonable
diligence, be remedied within such thirty (30) day period, so long as the Lessee
is diligently proceeding to remedy such failure); or
(e) REPRESENTATIONS AND WARRANTIES. Any representation or warranty made
by the Lessee or the Seller in this Lease or in any other Transaction Document
(other than the Tax Indemnification Agreement) or in any certificate required to
be delivered hereunder or thereunder shall prove to have been incorrect in any
material respect when such representation or warranty was made, unless the fact,
circumstance or condition that is the subject of such representation or warranty
is remedied, cured or made true within thirty (30) days after the earlier of the
date the Lessee or the Seller has Actual Knowledge that a representation or
warranty made by it was incorrect in any material respect or the date the Lessee
or the Seller, as the case may be, shall have received notice specifying the
breach thereof from the Lessor; or
(f) RECEIVERSHIP, ETC. The Lessee shall file any petition for
dissolution or liquidation of the Lessee, or the Lessee shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or the Lessee shall consent to the entry of an order
for relief in an involuntary case under any such law, or the Lessee shall fail
generally to pay its debts as such debts become due (within the meaning of the
Bankruptcy Code), or the Lessee shall fail promptly to satisfy or discharge any
execution, garnishment or attachment of such consequence as will impair its
ability to carry out its obligations under this Lease or any other Transaction
Document or a receiver, custodian or trustee (or other similar official) shall
be appointed for the Lessee or shall take possession of any substantial part of
the Lessee's property, or the Lessee shall execute a general assignment for
-57-
65
Lease Agreement
the benefit of its creditors, or the Lessee shall enter into an agreement of
composition with its creditors, or the Lessee shall take any corporate action in
furtherance of any of the foregoing; or an involuntary petition in bankruptcy
shall be filed against the Lessee which results in an order for relief being
entered or, notwithstanding that an order for relief has not been entered, the
petition is not dismissed within ninety (90) days of the date of the filing of
the petition, or any petition under any law relating to bankruptcy, insolvency
or relief of debtors shall be filed against the Lessee for reorganization,
composition, extension or arrangement with creditors which either (i) results in
a finding or adjudication of insolvency of the Lessee or (ii) is not dismissed
within ninety (90) days of the date of the filing of such petition.
The Lessee covenants that it will give notice to the Lessor, the
Remainderman, and the Indenture Trustee upon its obtaining Actual Knowledge of
any Default under this Lease.
S16. REMEDIES.
(a) REMEDIES. Upon the occurrence of any Event of Default and at any
time thereafter so long as the same shall be continuing the Lessor at its option
may, by notice to the Lessee, declare this Lease to be in default and at any
time thereafter exercise one or more of the following remedies as the Lessor in
its sole discretion shall elect:
(i) the Lessor may, by notice to the Lessee, terminate this
Lease as of the date specified in such notice; provided, however, (A)
no reletting, reentry or taking of possession of the Facility 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 given
to the Lessee, (B) notwithstanding any reletting, reentry or taking of
possession, the Lessor may at any time thereafter elect to terminate
this Lease for a continuing Event of Default and (C) no act or thing
done by the Lessor or any of its agents, representatives or employees
and no agreement
-58-
66
Lease Agreement
accepting a surrender of the Facility shall be valid unless the same be
made in writing and executed by the Lessor;
(ii) the Lessor may (A) demand that the Lessee, and the Lessee
shall upon the written demand of the Lessor, return the Facility
promptly to the Lessor in the manner and condition required by, and
otherwise in accordance with all of the provisions of Section 5 as if
the Facility was being returned at the end of the Lease 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
(B) without prejudice to any other remedy which the Lessor may have for
possession of the Facility, enter upon the Facility and take immediate
possession of (to the exclusion of the Lessee) the Facility and expel
or remove the Lessee and any other Person who may be occupying the
Facility, by summary proceedings or otherwise, all without liability to
the Lessee for or by reason of such entry or taking 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 the reasonably necessary costs and expenses of
reletting, including brokers fees and the costs of any alterations or
repairs made by the Lessor. The provisions of this Section 16(a)(ii)
shall operate as a notice to quit and shall be deemed to satisfy any
other requirement or provisions of Applicable Law which may require the
Lessor to provide a notice to quit or of the Lessor's intention to
re-enter the Facility and any such requirements or provisions are
hereby waived to the fullest extent permitted by Applicable Law by the
Lessee;
(iii) the Lessor may sell all or any part of the Facility 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 paragraph (vi) below if the
Lessor shall elect to exercise its rights thereunder) in
-59-
67
Lease Agreement
which event the Lessee's obligation to pay Basic Rent hereunder for
periods commencing after the date of such sale shall be terminated
(except to the extent that Basic Rent is to be included in computations
under Section 16(a)(v) or (vi) below if the Lessor shall elect to
exercise its rights thereunder);
(iv) the Lessor may hold, keep idle or lease to others all or
any part of the Facility as the Lessor in its sole discretion 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 for any proceeds with respect to such action or inaction, except
that the Lessee's obligation to pay Basic Rent from and after the
occurrence of an Event of Default shall be reduced by the
net proceeds, if any, received by the Lessor from leasing the Facility
to any Person other than the Lessee for the same periods or any portion
thereof (the Lessee acknowledges and agrees, however, that the Lessor
shall have no duty or obligation to relet the Facility);
(v) the Lessor may, whether or not the Lessor shall have
exercised or shall thereafter at any time exercise any of its rights
under Section 16(a)(ii), (iii) or (iv) with respect to the Facility,
demand, by written notice to the Lessee specifying a date (the "Final
Payment Date") not earlier than ten (10) days after the date of such
notice, that the Lessee pay to the Lessor, and the Lessee shall pay to
the Lessor, on the Final Payment Date, 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 after the Final Payment
Date), an amount equal to the sum of (A)(1) if the Final Payment Date
is a Rent Payment Date, all accrued and unpaid Basic Rent payable in
arrears and due and unpaid as of the Final Payment Date or (2) if the
Final Payment Date is not a Rent Payment Date, the accrued arrears
Basic Rent due and payable
-60-
68
Lease Agreement
on such Final Payment Date (it being understood, in the case of clauses
(1) and (2) above, that the Lessee shall pay when due any Basic Rent
due on a Rent Payment Date which occurs on or after the Event of
Default but prior to the Final Payment Date), plus (B) without
duplication of any amounts included within clause (A) above or (C)
below, all Supplemental Rent (to be paid directly to the Person
entitled thereto) due as of such Final Payment Date and all accrued and
unpaid interest on the Outstanding Facility Notes together with all
other amounts, including, without limitation, the Make-Whole Amounts,
if any, due under the Indenture and the other Transaction Documents as
of the Final Payment Date, plus (C) whichever one of the following
amounts the Lessor, in its sole discretion, shall specify in such
notice (together with interest on such amount at the Default Rate from
the Final Payment Date specified in such notice to the date of actual
payment):
(1) if the Facility has not been sold, an amount
equal to the excess, if any, of the Casualty Value computed as
of the Final Payment Date, over the Fair Market Sales Value of
the Facility as of the Final Payment Date (such Fair Market
Sales Value to be determined by mutual agreement of the Lessor
and the Lessee, or if they cannot agree within ten (10) days
after such notice, by the Appraisal Procedure);
(2) if the Facility has not been sold, an amount
equal to the excess, if any, of the Casualty Value computed as
of the Final Payment Date over the present value of the Fair
Market Rental Value for the Facility for the balance of the
Lease Term discounted semiannually at the Debt Rate (such Fair
Market Rental Value to be determined by mutual agreement of
the Lessor and the Lessee, or if they cannot agree within ten
(10) days of such notice, by the Appraisal Procedure);
(3) if the Facility has not been sold, an amount
-61-
69
Lease Agreement
equal to the excess of (a) the present value as of the Final
Payment Date of all installments of Basic Rent through the end
of the Basic Term or the then applicable Renewal Term,
discounted semiannually at the Debt Rate, over (b) the present
value as of such Final Payment Date of the Fair Market Rental
Value of the Facility (such Fair Market Rental Value to be
determined by mutual agreement of the Lessor and the Lessee,
or if they cannot agree within ten (10) days of such notice,
the Appraisal Procedure) through the end of the Basic Term or
the then applicable Renewal Term, discounted at the Debt Rate;
or
(4) if the Facility has not been sold, the greater of
(a) Casualty Value, (b) such discounted Fair Market Rental
Value, (c) such discounted Fair Market Sales Value and (d)
such discounted Basic Rent computed as of the Final Payment
Date and upon payment of such amount, and the amount of any
unpaid Rent referred to in Section 16(b), the Lessor shall
convey to the Lessee all of the Lessor's right, title and
interest in and to the Facility (which, for this purpose,
shall include, without limitation, all rights of the Lessor
under the Option and Estate for Years Agreement and the Three
Party Agreement and the Ground Lease, if applicable) without
recourse or warranty, but free and clear of all Lessor Liens;
(vi) if the Lessor shall have sold the Facility pursuant to
Section 16(a)(iii), the Lessor, in lieu of exercising its rights under
Section 16(a)(v), may, if it 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 for the portion of the Facility so sold due for periods commencing
-62-
70
Lease Agreement
on or after the Determination Date coinciding with such date of sale
(or, if the sale date is not a Determination Date, the Determination
Date next preceding the date of such sale)), an amount equal to the sum
of (A)(1) if the sale date is a Determination Date, all such accrued
and unpaid Basic Rent payable in arrears and due and unpaid as of such
sale date or (2) if the sale date is not a Determination Date, the
accrued arrears Basic Rent due and payable on such sale date (it being
understood that, in the case of clauses (1) and (2) above, the Lessee
shall pay when due any Basic Rent due on a Rent Payment Date which
occurs on or after the Event of Default but prior to such sale date),
plus (B) (without duplication of any amounts in clause (A) above or
clause (C) below) all Supplemental Rent due as of the date of sale and
all accrued and unpaid interest on the Outstanding Facility Notes
together with all other amounts, including, without limitation, the
Make-Whole Amount, if any, due under the Indenture and the other
Transaction Documents as of such sale date, plus (C) the amount of any
excess of the Casualty Value, computed as of such Casualty Date, over
the net proceeds of such sale, together with interest at the Default
Rate on such excess from such Determination Date to the date of sale,
plus (D) interest at the Default Rate on all of the foregoing amounts
from the date of such sale until the date of payment;
(vii) the Lessor may exercise any other right or remedy that
may be available to it under Applicable Law or in equity, 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 semiannual lease
period(s), and such suits shall not in any manner prejudice the
Lessor's right to collect any such damages for any subsequent
semiannual lease period(s), or the Lessor may defer any such suit until
after the expiration of the Basic Term or the then current Renewal
Term, in which event such suit shall be deemed not to have accrued
until the expiration of the Basic Term, or the then current Renewal
-63-
71
Lease Agreement
Term; or
(viii) the Lessor may retain and apply against the
Lessor's damages all sums which the Lessor would, absent such Event of
Default, be required to pay to, or turn over to, the Lessee pursuant to
the terms of this Lease, including, without limitation, any sums which
the Lessor may be required to pay to Lessee under Section 9.
(b) NO RELEASE. Except as otherwise provided in Section 16(a), no
rescission or termination of this Lease, in whole or in part, or repossession of
the Facility or exercise of any remedy under Section 16(a) shall relieve the
Lessee of any of its obligations under this Lease. In addition, except as
aforesaid, the Lessee shall be liable for any and all unpaid Basic Rent (other
than Basic Rent payable on or after the date that Casualty Value or Termination
Value, or any amount determined by reference to Casualty Value or Termination
Value, is payable) and all Supplemental Rent due and accrued hereunder before,
after or during the exercise of any of the foregoing remedies, including all
legal fees and other costs and expenses on an After-Tax Basis incurred by the
Lessor, the Indenture Trustee or any Participant by reason of the occurrence of
any Event of Default or the exercise of the Lessor's remedies with respect
thereto. At any public sale of the Facility or any part thereof pursuant to this
Section 16, any Participant, the Lessor or the Indenture Trustee may bid for and
purchase such property.
(c) REMEDIES CUMULATIVE. No remedy under this Section 16 is intended to
be exclusive, but each shall be cumulative and in addition to any other remedy
provided thereunder or otherwise available to the Lessor at law or in equity. No
express or implied waiver by the Lessor of any Default or Event of Default
hereunder shall in any way be, or be construed to be, a waiver of any future or
subsequent Default or Event of Default. The failure or delay of the Lessor in
exercising any right granted it hereunder upon any occurrence of any of the
contingencies set forth herein shall not constitute a waiver of any such right
upon the continuation or recurrence of any such contingency or similar
-64-
72
Lease Agreement
contingencies and any single or partial exercise of any particular right by the
Lessor shall not exhaust the same or constitute a waiver of any other right
provided herein.
S17. NOTICES. All communications, declarations, demands, requests and notices
provided for in this Lease shall be in writing and addressed, delivered and
deemed effective as specified in Section 11.3 of the Participation Agreement
(except for telephonic notice to the Lessee expressly permitted under Section
19, which telephonic notice shall be made to the Lessee, to the attention of the
Treasurer of the Lessee (currently Xxx Xxxxxx) at (000) 000-0000 (or such other
Person and/or telephone number as the Lessee may from time to time specify in a
written notice made in accordance with this Section 17), with written notice
delivered in accordance with the provisions of this Section 17 promptly
thereafter). So long as any Facility Notes remain Outstanding, the Lessee shall
give the Indenture Trustee copies of any notices required to be given to the
Lessor pursuant to this Lease.
S18. SUCCESSORS AND ASSIGNS. This Lease, including all agreements, covenants,
indemnities, representations and warranties contained herein, shall be binding
upon and inure to the benefit of the Lessor and the Lessee and their respective
successors and permitted assigns.
S19. RIGHT TO PERFORM FOR THE LESSEE. Subject to the provisions of the
Indenture, if the Lessee shall fail to make any payment to be made by it
hereunder or shall fail to perform or comply with any of its other agreements
contained herein, and the Lessee shall not be diligently curing such failure,
then (subject to the requirements of the next sentence of this Section 19)
unless and until the Lessee shall make such payment or perform or comply with
such agreement, the Owner Participant or the Lessor may, to the extent not
prohibited by Applicable Law, but shall not be obligated to, itself make any
such payment or perform or comply with any such agreement as the Lessee shall be
obligated to pay, perform or comply with under this Lease, and the amount of
such payment and the amount of the reasonable out-of-pocket
-65-
73
Lease Agreement
expenses of the Owner Participant or the Lessor incurred in connection with such
payment or the performance or compliance with such agreement (including, without
limitation, reasonable legal fees), as the case may be, together with interest
thereon at the Default Rate, shall be deemed Supplemental Rent, payable by the
Lessee on an After-Tax Basis upon demand. The Owner Participant and the Lessor
shall provide the Lessee with the following notice with respect to its making
any such payment or performing any such agreement: (i) if such payment or
performance shall result from the Lessee's failure to carry or maintain
insurance required pursuant to Section 10(a) of this Lease, the Owner
Participant or the Lessor shall give the Lessee notice thereof promptly after
taking any action in accordance with the preceding sentence; (ii) if such
payment or performance shall result from an emergency, the Owner Participant or
the Lessor shall give the Lessee prior notice thereof before taking any action
in accordance with the preceding sentence; provided, however, that such notice
may be telephonic or facsimile with written notice delivered promptly
thereafter, all in accordance with the provisions of Section 17; and (iii) if
such payment or performance shall occur in any other situation, the Owner
Participant or the Lessor shall give the Lessee 10 Business Days' prior notice
before taking any action in accordance with the preceding sentence.
S20. ADDITIONAL COVENANTS. The Lessee agrees to pay as Supplemental Rent to the
Person or Persons entitled thereto all amounts payable by it under the
provisions of Article VII of the Participation Agreement and Section 11.2 of the
Participation Agreement and under the provisions of the Tax Indemnification
Agreement, which provisions are incorporated herein by this reference as fully
as if set forth in full at this place. The Lessee agrees to comply with its
covenants and agreements set forth in Section 6.1 of the Participation
Agreement, which covenants and agreements are incorporated herein by this
reference as fully as if set forth in full at this place.
S21. RIGHT OF FIRST OFFER.
-66-
74
Lease Agreement
(a) In the event that the Indenture Trustee at any time permits the
Lessor to sell, transfer, convey or otherwise alienate the Facility (which for
so long as any Facility Notes are Outstanding the Lessor acknowledges can be
done only with the consent of the Indenture Trustee acting at the direction of
all of the Loan Participants and upon such terms as the Loan Participants may
agree to in their sole discretion, unless such sale, transfer or conveyance is
to a successor trustee or co-trustee permitted by the terms of the Trust
Agreement and the Participation Agreement or to the purchaser of the Facility
pursuant to Section 14), and provided that no Event of Default shall have
occurred and be continuing, before the Lessor may offer to sell, transfer,
convey or otherwise alienate (other than any easement or other interest which
the Lessor shall grant or convey pursuant to Section 23(a)) the Facility to a
third Person (other than any Affiliate or designee of the Lessee) other than to
any successor trustee or co-trustee permitted by the terms of the Trust
Agreement and the Participation Agreement and other than to the purchaser of the
Facility pursuant to Section 14, including in response to any unsolicited offer
by a potential purchaser or potential transferee and prior to the acceptance of
such offer or the making of a counteroffer, the Lessor shall offer, in writing,
that interest in the Facility, and does hereby grant a right of first offer to
purchase that interest in the Facility, to the Lessee for purchase at a price
(the "Determined Price"), which Determined Price shall in any case never be less
than all amounts due and owing by the Lessor under the Indenture, and upon terms
(the "Determined Terms") specified by the Lessor. Such offer may be accepted by
the Lessee at any time within sixty (60) days after the date of receipt by the
Lessee of the notice of the offer and the Determined Price and Determined Terms
by irrevocable written notice of the acceptance of such offer specifying the
closing date for such purchase which shall not be more than thirty (30) days
after the date of such written acceptance, and such purchase shall be made in
accordance with Section 22(d)(i) (substituting "Determined Price" and
"Determined Date" for "EBO Price" and "EBO Date", respectively) and Section 6.5
of the Indenture. In the event that the Lessee does not elect to purchase the
Facility for the Determined Price and upon
-67-
75
Lease Agreement
the Determined Terms, concurrently with the prepayment of all, but not less than
all, of the Facility Notes pursuant to Section 6.4 of the Indenture and payment
of all amounts due thereunder, the Facility may be sold by the Lessor at the
Determined Price and upon the Determined Terms at any time during the period of
two hundred seventy (270) days following the giving by the Lessee of a notice
that it does not intend to exercise its right of first offer (or in the case of
the deemed waiver by the Lessee of its right of first offer, during the period
of 270 days following the expiration of the aforementioned 30-day period during
which the Lessee shall have the right to accept the offer), without the need to
offer the Facility to the Lessee pursuant to the provisions of this Section 21.
The Facility shall not be sold (1) at any price or upon any terms materially
more favorable to the purchaser than those contained in the offer to the Lessee
or (2) at a time after such 270-day period, in each case without first having
again complied with the provisions of this Section 21. Any failure of the Lessee
to exercise its rights pursuant to this Section 21 shall in no event diminish,
waive or extinguish its rights with respect to any subsequent proposed sale or
transfer.
(b) If the Lessee shall not exercise its right to purchase under clause
(a) of this Section 21, the Lessee shall, upon written request after the
expiration of the thirty (30) day period applicable thereto, deliver to the
Lessor a recordable statement certifying any waiver of or refusal to exercise
such right of first offer.
(c) The foregoing provisions of this Section 21 shall not be applicable
to a foreclosure sale of the Facility pursuant to the Indenture.
S22. PURCHASE OPTIONS.
(a) PURCHASE OPTIONS. So long as no Event of Default shall have
occurred and be continuing, the Lessee shall have and is hereby granted the
following rights and options:
-68-
76
Lease Agreement
(i) to purchase the Facility or the Beneficial Interest on the
EBO Date at the EBO Price by not more than eighteen (18) months nor
less than six (6) months prior irrevocable written notice;
(ii) to purchase the Facility at the end of the Basic Term at
the then Fair Market Sales Value by not more than twenty-four (24)
months nor less than eighteen (18) months irrevocable prior written
notice, unless the Lessee shall have exercised its Renewal Option in
which case by not less than six (6) months irrevocable prior written
notice; and
(iii) to purchase the Facility at the end of any Renewal Term
at the then Fair Market Sales Value by not more than twenty-four (24)
months nor less than eighteen (18) months irrevocable prior written
notice, unless the Lessee shall have exercised its Renewal Option in
which case by not less than six (6) months irrevocable prior written
notice,
in the case of clause (i), in accordance with the purchase procedure set forth
in Section 22(d)(i), and in the case of clause (ii) or (iii), in accordance with
Section 22(d)(ii).
(b) DETERMINATION OF FAIR MARKET SALES VALUE. If the Lessee shall give
to the Lessor notice of its election to purchase pursuant to clause (ii) or
(iii) of Section 22(a), then commencing not later than nine (9) months prior to
the expiration date of the Basic Term or then-current Renewal Term, as the case
may be, the Lessee and the Lessor shall attempt to agree upon the Fair Market
Sales Value of the Facility. If the Lessee and the Lessor are unable to agree
upon the Fair Market Sales Value, such value shall be determined by the
Appraisal Procedure.
(c) [INTENTIONALLY OMITTED].
-69-
77
Lease Agreement
(d) PURCHASE PROCEDURE.
(i) If the Lessee shall have exercised its option pursuant to
Section 22(a)(i), and does not elect to purchase the Beneficial
Interest in accordance with Section 11.2 of the Participation
Agreement, the Lessee shall purchase the Lessor's interest in the
Facility (which for this purpose shall include, without limitation, all
rights of the Lessor under the Option and Estate For Years Agreement
and the Three Party Agreement and the Ground Lease, if applicable) on
the EBO Date at a purchase price equal to the sum of (A) the EBO Price,
plus (B) all Supplemental Rent (including, without limitation, the
Make-Whole Amount, if any, due on the Facility Notes) due and owing on
the EBO Date, plus (C) all Basic Rent payable in arrears and due and
owing on the EBO Date (it being understood that the Lessee shall pay
when due any Basic Rent due and payable on a Rent Payment Date which
occurs on or after the date it exercises its option pursuant to Section
22(a)(i) but prior to the EBO Date), plus (D) without duplication of
any amounts included within clauses (A), (B) and (C) above, all accrued
and unpaid interest on the Facility Notes together with all other
amounts due under the Indenture and the other Transaction Documents as
of the EBO Date. The Lessee shall pay the purchase price specified in
the preceding sentence to the Indenture Trustee (so long as the
Indenture has not been satisfied and discharged) or thereafter to the
Lessor on the EBO Date. Upon payment in full of all amounts described
in clauses (A), (B), (C) and (D) of the preceding sentence, (x) the
Lease Term shall end, (y) the obligations of the Lessee hereunder
(other than any obligations expressed herein as surviving termination
of this Lease) shall terminate as of the date of such payment and (z)
the Lessor shall Transfer to the Lessee all right, title and interest
of the Lessor in, to and under the Facility. Anything herein to the
contrary notwithstanding, if the Lessee shall fail to pay all amounts
due under and pursuant to this Section 22(d)(i), no purchase shall be
consummated, this Lease shall continue in full force and effect and it
-70-
78
Lease Agreement
shall be deemed that Lessee has rescinded its election pursuant to
Section 22(a)(i).
If the Lessee shall elect to purchase the Beneficial Interest
in accordance with Section 11.2(a) of the Participation Agreement, the
Lessee shall comply with the provisions thereof on or prior to the EBO
Date, and shall pay to the Lessor on the EBO Date (A) the EBO Price,
less the aggregate principal amount of the Facility Notes so
assumed, plus (B) all Supplemental Rent due and owing on the EBO Date
to the Lessor and the Owner Participant, plus (C) all Basic Rent
payable in arrears and due and owing on the EBO Date (it being
understood that the Lessee shall pay when due any Basic Rent due and
payable on a Rent Payment Date which occurs on or after the date it
exercises its option pursuant to Section 22(a)(i) but prior to the EBO
Date). Upon payment in full of all amounts described in clauses (A),
(B) and C of the preceding sentence, the Lessor shall Transfer to the
Lessee all right, title and interest of the Lessor in, to and under the
Facility. Any payment obligations of the Lessee under this Section
22(d)(i) shall be Supplemental Rent.
(ii) If the Lessee shall purchase the Facility, pursuant to
Section 16(a)(v), Section 21 (unless the Lessee assumes the obligations
of the Lessor under the Indenture and the Facility Notes in connection
with such purchase) or clause (ii) or (iii) of Section 22(a), the
Lessee may designate another Person to acquire the Facility, and the
Lessee (or its designee) shall accept from the Lessor a deed with
respect to the Estate for Years and the Building containing
representations and warranties of grantor to the Lessee regarding
Lessor Liens, and a xxxx of sale for the Personalty constituting a part
of the Facility, subject to the then existing title to the Facility,
but free of, and with a warranty from the Lessor and the Owner
Participant against, any Lessor Liens and Owner Participant Liens. Upon
the date fixed for the purchase of the Facility hereunder, (1) the
Lessee shall pay (or shall cause its designee to
-71-
79
Lease Agreement
pay) by wire transfer of immediately available funds the applicable
purchase price, (2) in addition thereto, the Lessee will pay to the
Lessor (or, in the case of Supplemental Rent payable to any Indemnified
Person or any Related Party to any such Indemnified Person, to the
Indemnified Person or Related Party to any Indemnified Person entitled
thereto) all unpaid Rent due such Person for any period through and
including such purchase date (other than any Basic Rent due in advance
on such purchase date), (3) if the applicable purchase date is not a
Rent Payment Date, the Lessor shall pay to the Lessee (or the Lessee
shall have the right to deduct from any amounts payable to the Lessor
or the Owner Participant under clauses (1) and (2) above) the portion
of any Basic Rent theretofore paid by the Lessee relating to any period
occurring after the applicable purchase date; and (4) upon payment by
the Lessee (or its designee) of the amounts specified in clauses (1)
and (2) above and the costs hereinafter defined, net of the amount due
the Lessee under clause (3) above, the Lessor shall effect a Transfer
to the Lessee or its designee of the Facility or applicable portion
thereof and this Lease shall terminate. All reasonable charges incident
to such conveyance, including, without limitation, the Lessee's, the
Lessor's, the Indenture Trustee's, each Loan Participant's and the
Owner Participant's reasonable attorneys' fees, escrow fees, recording
fees, title insurance premiums and (except to the extent required
otherwise by Applicable Law) all applicable sales, use, transfer,
transaction and similar taxes, as well as Taxes required to be paid in
order to record the transfer documents (but not any taxes imposed on,
based on or measured by gross or net income, capital gains taxes or any
minimum tax or alternative minimum tax, gross receipts, capital or net
worth, franchise, excess profits or conduct of business (other than
Taxes which are, or are in the nature of, sales, use, transfer,
transaction, rental, ad valorem or property Taxes), payable by the
Lessor upon or with respect to the sale or disposition by it of all or
any part of its interest) that may be imposed by reason of such
conveyance and assignment and the delivery of such deed
-72-
80
shall be paid by the Lessee in all cases, except that if the purchase
shall be in connection with the Lessee's exercise of its rights under
Section 22(a)(ii) or Section 22(a)(iii) of this Lease, all New Jersey
transfer Taxes shall be paid by the Lessor to the extent such Taxes do
not exceed 3/4 of 1% of the Lessor's Purchase Price.
(e) APPORTIONMENTS. Upon termination of this Lease resulting in
delivery of the Lessor's title to the Facility to the Lessee, there shall be no
apportionment of space tenant rents, water and sewer rents, taxes, insurance or
other charges payable with respect to the Facility, all of such rents, taxes,
insurance or other charges due and payable with respect to the Facility prior to
termination being payable by the Lessee hereunder and all due after such time
being payable by the Lessee as the then owner of the Facility.
(f) TERMINATION UNDER PARTICIPATION AGREEMENT. This Lease is subject to
termination as provided in, and subject to the provisions of, Section 11.2 of
the Participation Agreement.
-73-
81
Lease Agreement
S23. GRANTING OF EASEMENTS.
(a) GRANT. The Lessor shall, from time to time within thirty (30) days
after the Lessee's request given to the Lessor (which request shall specify the
recipient of such easement, declaration, license, right of way or release),
grant easements, declarations, licenses and rights of way, and release then
existing easements, declarations, licenses and rights of way affecting the
Facility; provided, that such grant or release does not reduce the Fair Market
Sales Value, residual value, utility or remaining useful life of the Facility or
the Site or interfere with the continued use of the Premises or the Site for a
first class Wall Township, New Jersey office building of similar age and size as
the Premises and the use to which the Premises are then generally being put. The
Lessee shall pay, or reimburse, the Lessor, the Remainderman and the Indenture
Trustee on an After- Tax Basis for all reasonable out-of-pocket expenses and
reasonable attorneys' fees incurred by the Lessor in performing its obligations
under this Section 23 or incurred by Indenture Trustee under the related
provisions of the Indenture.
(b) COOPERATION. The Lessee and Lessor shall reasonably cooperate with
each other and the Lessor shall comply with any provisions of the Indenture
regarding the subject matter of this Section 23.
S24. AMENDMENTS AND MISCELLANEOUS.
(a) AMENDMENTS IN WRITING. The provisions of this Lease may not be
waived, altered, modified, amended, supplemented or terminated in any manner
whatsoever except by written instrument signed by the Lessor and the Lessee. It
is understood and agreed by the parties hereto that any waiver, alteration,
modification, amendment, supplement or termination of this Lease that requires
the consent of the Indenture Trustee or all the Loan Participants or a Majority
in Interest thereof (in each case as provided in the Indenture) shall not be
effective unless and until such consent shall have been obtained as provided in
accordance with the provisions of the Indenture.
-74-
82
Lease Agreement
(b) SEVERABILITY OF PROVISIONS. Any provision of this Lease that may be
determined by competent authority to be prohibited or unenforceable in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by Applicable Law, the Lessee hereby
waives any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
(c) TRUE LEASE. This Lease is intended as, and shall constitute, an
agreement of lease, and nothing herein shall be construed as conveying to the
Lessee any right, title or interest in or to the Premises or the Site except as
a lessee. It is the intention of the Lessee, the Owner Participant and the Owner
Trustee for income tax purposes to treat the Owner Participant as the owner and
lessor of the Facility and that the Lease be characterized as a "true lease" for
income tax purposes.
(d) GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW JERSEY (WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES).
(e) HEADINGS. The division of this Lease into sections and subsections,
the provision of a table of contents and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Lease.
(f) CONCERNING THE OWNER TRUSTEE. The Bank is entering into this Lease
solely as Owner Trustee under the Trust Agreement and not in its individual
capacity. Accordingly, except as otherwise expressly set forth herein or in the
other Transaction Documents, each of the representations, warranties,
undertakings and agreements herein made on the part of the Owner Trustee as the
Lessor is made and intended not as a personal representation, warranty,
undertaking or agreement by or for the purpose or with the intention of binding
the Bank personally, but is made and intended for the purpose of binding only
the Trust Estate; this
-75-
83
Lease Agreement
Lease is executed and delivered by the Owner Trustee solely in the exercise of
the powers expressly conferred upon it as trustee under the Trust Agreement; and
no personal liability or responsibility is assumed hereunder by or shall at any
time be enforceable against the Bank, or any successor in trust on account of
any action taken or omitted to be taken or any representation, warranty,
undertaking or agreement hereunder of the Owner Trustee, either expressed or
implied, all such personal liability, if any, being expressly waived by the
Lessee, except that the Lessee or any Person acting by, through or under it,
making a claim hereunder, may look to the Trust Estate for satisfaction of the
same and the Bank or its successor in trust, as applicable, shall be personally
liable for its own gross negligence or willful misconduct (or negligence, in the
case of the handling, holding and transfer of funds), in the performance of its
duties as Owner Trustee or otherwise. If a successor owner trustee is appointed
in accordance with the terms of the Trust Agreement, such successor owner
trustee, without any further act, shall succeed to all the rights, duties,
immunities and obligations of the Owner Trustee hereunder and the predecessor
owner trustee shall be released from all further duties and obligations
hereunder.
(g) LIEN OF THE INDENTURE. The Lessee hereby agrees that any property
subject to the Lien of the Indenture that is to be transferred by the Lessor
hereunder shall be transferred subject to such Lien unless the Outstanding
Facility Notes are paid in full in connection with such transfer.
(h) COUNTERPART EXECUTION. This Lease may be executed in
any number of counterparts and by each of the parties hereto in
separate counterparts, all such counterparts together
constituting but one and the same instrument.
-76-
84
Lease Agreement
(i) ESTOPPEL CERTIFICATES. Each party hereto agrees, at any time and
from time to time, upon not less than thirty (30) days' prior written notice
from the other party, to execute, acknowledge and deliver to the requesting
party a statement in writing (v) certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that this Lease is
in full force and effect as modified and stating the modifications hereto); (w)
stating the dates to which the Basic Rent and other specified charges hereunder
have been paid by the Lessee; (x) stating whether or not such party has
knowledge that the Lessee is in default in the performance of any covenant,
agreement or condition contained in this Lease, and, if such party has knowledge
of such a default, specifying each such default; (y) stating the address to
which notices to such party shall be sent; and (z) stating such other matters as
such requesting party may reasonably request.
(j) NO MERGER. There shall be no merger of this Lease or the leasehold
estate hereby created with the Estate for Years or any other estate in the Site
or the Premises by reason of the fact that the same Person acquires, holds,
directly or indirectly, this Lease or the leasehold estate hereby created or any
interest herein or in such leasehold estate and the Estate for Years, the Site
or the Premises or any interest in any thereof, such merger to occur only upon
recordation of an instrument to such effect in the Recorder's Office of Monmouth
County, New Jersey; provided, however, that at the time of such recordation, the
Indenture is no longer a Lien on the Estate for Years.
(k) RECORDATION. The Lessor and the Lessee agree that the Memorandum of
Lease shall be recorded in the Office of the Monmouth County, New Jersey
Recorder of Deeds, at the cost of the Lessee.
(l) SIGNS; NAME. The Lessee shall have the exclusive right to place its
signs in, on and about the Premises and the Site; provided, however, that such
signs are purchased and installed at the sole cost and expense of the Lessee and
are removed from the
-77-
85
Lease Agreement
Premises at the expiration or earlier termination of the Lease Term at the
Lessee's sole cost and expense. The Lessee shall have the exclusive right to
name the Facility. The Lessor shall not be permitted to erect or place signs in,
on or about the Premises and the Site or to change the name of the Facility
during the Lease Term.
(m) RULE AGAINST PERPETUITIES. If any rule of law shall forbid or
frustrate the vesting of the title to the Facility, the Beneficial Interest or
any other interest as provided herein or the exercise of any option or right of
first refusal herein, then such vesting of title shall occur and any option or
right of first refusal shall only be exercisable not later than 21 years less
one day after the death of the last survivor of any of the descendants living on
the Closing Date of Xxxx X. Xxxxxxxxxxx, Xx. (excluding Xxxxxxx Xxxxxxxxxxx, son
of Xxxxxx X. Xxxxxxxxxxx, and any descendants of said Xxxxxxx Xxxxxxxxxxx).
-78-
86
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease to
be duly executed in New York, New York, by an officer thereunto duly authorized
as of the date and year first above written.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a
national banking
association, not in its
individual capacity but
solely as Owner Trustee
under the Trust Agreement
dated as of December 21,
1995, as the Lessor
By /s/ XXXXXX X XXXXXX
Name: Xxxxxx X Xxxxxx
Title: Vice President
NEW JERSEY NATURAL GAS COMPANY, a
New Jersey corporation, as the
Lessee
By /s/ XXX XXXXXX
Name: Xxx Xxxxxx
Title: Treasurer
The address of the within named Lessor is:
State Street Bank and Trust Company
of Connecticut, National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000
-79-
87
Attention: Corporate Trust Department
The address of the within named Lessee is:
New Jersey Natural Gas Company
0000 Xxxxxxx Xxxx
Xxxx, Xxx Xxxxxx 00000
Attention:
-80-
88
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
I, Xxxxxxxx X. Xxxxx a notary public in and for said County, in the
State aforesaid, do hereby certify that Xxxxxx X. Xxxxxx personally known to me
to be a Vice President of STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, and personally known to me
to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that as such Vice
President, he signed and delivered the said instrument and caused the seal of
said national banking association to be affixed thereto, pursuant to authority
given by the Board of Directors of said national banking association as his free
and voluntary act and as the free and voluntary act and deed of said national
banking association, for the uses and purposes therein set forth.
Given under my hand and official seal this 22 day of December, 1995.
/s/ Xxxxxxxx X. Xxxxx
---------------------------------
Notary Public
Commission expires: _____________
[SEAL]
00
XXXXX XX XXX XXXXXX )
) SS.
COUNTY OF MONMOUTH )
I, Xxxxxx X. Xxxxxx a notary public in and for said County, in the
State aforesaid, do hereby certify that Xxx Xxxxxx personally known to me to be
the Treasurer of NEW JERSEY NATURAL GAS COMPANY, a New Jersey corporation, and
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that as such Treasurer, he signed and delivered the said instrument and caused
the seal of said New Jersey corporation to be affixed thereto, pursuant to
authority given by the Board of Directors of said New Jersey corporation as his
free and voluntary act and as the free and voluntary act and deed of said New
Jersey corporation, for the uses and purposes therein set forth.
Given under my hand and official seal this 22nd day of December,
1995.
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Notary Public
Commission expires: _____________
[SEAL]
90
APPENDIX A
DEFINITIONS AND RULES OF USAGE
91
LEASE AGREEMENT
SCHEDULE 1 TO
THE LEASE
---------
Basic Rent
----------
Rent Basic Rent Basic Rent Total
Payment Date In Arrears In Advance Basic Rent Payment
------------ ---------- ---------- ------------------
July 1, 1996 0.00 1,141,955.00 1,141,955.00
January 1, 1997 0.00 1,141,955.00 1,141,955.00
July 1, 1997 0.00 1,141,955.00 1,141,955.00
January 1, 1998 0.00 1,141,955.00 1,141,955.00
July 1, 1998 0.00 1,141,955.00 1,141,955.00
January 1, 1999 0.00 1,141,955.00 1,141,955.00
July 1, 1999 0.00 1,141,955.00 1,141,955.00
January 1, 2000 0.00 1,141,955.00 1,141,955.00
July 1, 2000 0.00 1,292,378.00 1,292,378.00
January 1, 2001 0.00 1,292,378.00 1,292,378.00
July 1, 2001 0.00 1,292,378.00 1,292,378.00
January 1, 2002 0.00 1,292,378.00 1,292,378.00
July 1, 2002 0.00 1,292,378.00 1,292,378.00
January 1, 2003 0.00 1,292,378.00 1,292,378.00
July 1, 2003 0.00 1,292,378.00 1,292,378.00
January 1, 2004 0.00 1,292,378.00 1,292,378.00
July 1, 2004 0.00 1,292,378.00 1,292,378.00
January 1, 2005 0.00 1,292,378.00 1,292,378.00
July 1, 2005 0.00 1,461,702.00 1,461,702.00
January 1, 2006 0.00 1,461,702.00 1,461,702.00
July 1, 2006 0.00 1,461,702.00 1,461,702.00
January 1, 2007 0.00 1,461,702.00 1,461,702.00
July 1, 2007 0.00 1,461,702.00 1,461,702.00
January 1, 2008 0.00 1,461,702.00 1,461,702.00
July 1, 2008 0.00 1,461,702.00 1,461,702.00
January 1, 2009 0.00 1,461,702.00 1,461,702.00
July 1, 2009 0.00 1,461,702.00 1,461,702.00
January 1, 2010 0.00 1,461,702.00 1,461,702.00
July 1, 2010 0.00 1,656,228.00 1,656,228.00
January 1, 2011 0.00 1,656,228.00 1,656,228.00
July 1, 2011 0.00 1,656,228.00 1,656,228.00
January 1, 2012 0.00 1,656,228.00 1,656,228.00
July 1, 2012 0.00 1,656,228.00 1,656,228.00
January 1, 2013 0.00 1,656,228.00 1,656,228.00
July 1, 2013 0.00 1,656,228.00 1,656,228.00
January 1, 2014 0.00 1,656,228.00 1,656,228.00
July 1, 2014 0.00 1,656,228.00 1,656,228.00
January 1, 2015 0.00 1,656,228.00 1,656,228.00
July 1, 2015 0.00 1,886,982.00 1,886,982.00
January 1, 2016 0.00 1,886,982.00 1,886,982.00
July 1, 2016 0.00 1,886,982.00 1,886,982.00
January 1, 2017 0.00 1,886,982.00 1,886,982.00
July 1, 2017 0.00 1,886,982.00 1,886,982.00
January 1, 2018 0.00 1,886,982.00 1,886,982.00
July 1, 2018 0.00 1,886,982.00 1,886,982.00
January 1, 2109 0.00 1,886,982.00 1,886,982.00
July 1, 2019 0.00 1,886,982.00 1,886,982.00
January 1, 2020 0.00 1,886,982.00 1,886,982.00
July 1, 2020 0.00 2,116,948.00 2,116,948.00
January 1, 2021 0.00 2,116,948.00 2,116,948.00
July 1, 2021 0.00 0.00 0.00
92
SCHEDULE 2 TO
THE LEASE
---------
Casualty Value
--------------
[Monthly]
Determination Casualty
Date Value
------------- --------
93
Lease Agreement
SCHEDULE 2 To
THE LEASE
Casual Value
Determination Casualty
Date Value
February 1, 1996 35,844,459
March 1, 1996 36,081,816
April 1, 1996 36,319,572
May 1, 1996 36,556,043
June 1, 1996 36,792,948
July 1, 1996 37,028,564
August 1, 1996 36,121,867
September 1, 1996 36,357,550
October 1, 1996 36,591,936
November 1, 1996 36,926,741
December 1, 1996 37,061,968
January 1, 1997 37,295,896
February 1, 1997 36,386,948
March 1, 1997 36,620,365
April 1, 1997 36,854,195
May 1, 1997 37,087,768
June 1, 1997 37,321,754
July 1, 1997 37,555,483
August 1, 1997 36,646,336
September 1, 1997 36,879,553
October 1, 1997 37,112,508
November 1, 1997 37,345,872
December 1, 1997 37,579,648
January 1, 1998 37,813,166
February 1, 1998 36,903,906
March 1, 1998 37,136,808
April 1, 1998 37,370,219
May 1, 1998 37,603,414
June 1, 1998 37,837,020
July 1, 1998 38,070,412
August 1, 1998 37,160,924
September 1, 1998 37,393,797
October 1, 1998 37,626,450
November 1, 1998 37,859,511
December 1, 1998 38,092,980
January 1, 1999 38,326,234
February 1, 1999 37,416,608
March 1, 1999 37,649,341
April 1, 1999 37,882,481
May 1, 1999 38,115,423
June 1, 1999 38,348,773
July 1, 1999 38,581,927
August 1, 1999 37,672,199
September 1, 1999 37,904,830
1 of 12
94
October 1, 1999 38,137,259
November 1, 1999 38,370,093
2 of 12
95
Lease Agreement
SCHEDULE 2 TO
The Lease
Casualty Value
Determination Casualty
Date Value
December 1, 1999 38,603,334
January 1, 2000 38,836,377
February 1, 2000 37,926,538
March 1, 2000 38,159,056
April 1, 2000 38,391,980
May 1, 2000 38,624,852
June 1, 2000 38,858,132
July 1, 2000 39,091,362
August 1, 2000 38,029,805
September 1, 2000 38,261,020
October 1, 2000 38,492,172
November 1, 2000 38,723,720
December 1, 2000 38,955,666
January 1, 2001 39,187,555
February 1, 2001 38,124,647
March 1, 2001 38,354,501
April 1, 2001 38,584,743
May 1, 2001 38,815,062
June 1, 2001 39,045,772
July 1, 2001 39,276,561
August 1, 2001 38,212,546
September 1, 2001 38,441,287
October 1, 2001 38,670,095
November 1, 2001 38,899,283
December 1, 2001 39,128,854
January 1, 2002 39,358,497
February 1, 2002 38,293,328
March 1, 2002 38,520,906
April 1, 2002 38,748,856
May 1, 2002 38,976,886
June 1, 2002 39,205,291
July 1, 2002 39,433,778
August 1, 2002 38,367,445
September 1, 2002 38,593,851
October 1, 2002 38,820,327
November 1, 2002 39,047,168
December 1, 2002 39,274,374
January 1, 2003 39,501,655
February 1, 2003 38,434,109
March l,'2003 38,659,293
April 1, 2003 38,884,833
May 1, 2003 39,110,454
June 1, 2003 39,336,433
July 1, 2003 39,562,496
3 of 12
96
August 1, 2003 38,493,722
September 1, 2003 38,717,672
4 of 12
97
Lease Agreement
SCHEDULE TO
THE LEASE
Casualty Value
Determination Casualty
Date Value
October 1, 2003 38,941,692
November 1, 2003 39,166,060
December 1, 2003 39,390,777
January 1, 2004 39,615,570
February 1, 2004 38,545,517
March 1, 2004 38,768,180
April 1, 2004 38,991,180
May 1, 2004 39,214,244
June 1, 2004 39,437,650
July 1, 2004 39,661,121
August 1, 2004 38,589,739
September 1, 2004 38,811,062
October 1, 2004 39,032,438
November 1, 2004 39,254,143
December 1, 2004 39,476,181
January 1, 2005 39,698,275
February 1, 2005 38,625,506
March 1, 2005 38,845,433
April 1, 2005 39,065,680
May 1, 2005 39,286,118
June 1, 2005 39,506,890
July 1, 2005 39,727,836
August 1, 2005 39,482,927
September 1, 2005 38,700,019
October 1, 2005 39,917,283
November 1, 2005 39,134,848
December 1, 2005 39,352,718
January 1, 2006 39,570,763
February 1, 2006 38,322,924
March 1, 2006 39,537,067
April 1, 2006 38,751,492
May 1, 2006 38,966,216
June 1, 2006 39,181,226
July 1, 2006 39,396,538
August 1, 2006 38,145,948
September 1, 2006 38,357,322
October 1, 2006 39,568,975
November 1, 2006 38,780,893
December 1, 2006 38,993,078
January l, 2007 39,205,547
February 1, 2007 37,952,096
March 1, 2007 38,160,599
April 1, 2007 38,369,327
May 1, 2007 38,578,326
June 1, 2007 38,787,573
5 of 12
98
July 1, 2007 38,997,084
6 of 12
99
Lease Agreement
SCHEDULE 2 To
THE LEASE
Casualty Value
Determination Casualty
Date Value
August 1, 2007 37,740,655
September 1, 2007 37,946,152
October 1, 2007 38,151,998
November 1, 2007 38,357,851
December 1, 2007 38,564,041
January 1, 2008 38,770,476
February 1, 2008 37,511,391
March 1, 2008 37,714,218
April 1, 2008 37,917,256
May 1, 2008 39,120,539
June 1, 2008 39,324,035
July 1, 2008 38,527,779
August 1, 2008 37,266,430
September 1, 2009 37,466,988
October 1, 2008 37,667,784
November 1, 2008 37,868,786
December 1, 2008 38,069,998
January 1, 2009 38,271,449
February 1, 2009 37,007,750
March 1, 2009 37,205,951
April 1, 2009 37,404,352
May 1, 2009 37,603,021
June 1, 2009 37,601,993
July 1, 2009 38,001,035
August 1, 2009 36,735,308
September 1, 2009 36,931,483
October 1, 2009 37,127,924
November 1, 2009 37,324,568
December 1, 2009 37,521,414
January 1, 2010 37,710,531
February 1, 2010 36,451,107
March 1, 2010 36,645,591
April 1, 2010 36,840,282
May 1, 2010 37,035,500
June 1, 2010 37,230,931
July 1, 2010 37,426,893
August 1, 2010 35,962,310
September r 1, 2010 36,154,169
October 1, 2010 36,346,561
November 1, 2010 36,539,171
December 1, 2010 36,732,000
January 1, 2011 38,059,880
February 1, 2011 36,592,568
March 1, 2011 36,781,706
April 1, 2011 36,971,066
May 1, 2011 37,161,407
7 of 12
100
Lease Agreement
SCHEDULE 2 TO
THE LEASE
Casualty Value
Determination Casualty
Date Value
June 1, 2011 37,351,977
July 1, 2011 37,543,536
August 1, 2011 36,073,857
September 1, 2011 36,260,635
October 1, 2011 36,448,400
November 1, 2011 36,636,402
December 1, 2011 36,824,642
January 1, 2012 37,013,878
February 1, 2012 35,541,872
March 1, 2012 35,726,333
April 1, 2012 35,911,035
May 1, 2012 36,096,845
June 1, 2012 36,282,904
July 1, 2012 36,470,081
August 1, 2012 34,996,426
September 1, 2012 35,179,259
October 1, 2012 35,363,218
November 1, 2012 35,547,445
December 1, 2012 35,731,941
January 1, 2013 35,917,575
February 1, 2013 34,442,220
March 1, 2013 34,623,373
April 1, 2013 34,804,807
May 1, 2013 34,987,524
June 1, 2013 35,170,532
July 1, 2013 35,354,833
August 1, 2013 33,877,984
September 1, 2013 34,057,666
October 1, 2013 34,238,653
November 1, 2013 34,419,952
December 1, 2013 34,601,565
January 1, 2014 34,784,495
February 1, 2014 33,306,108
March 1, 2014 33,484,275
April 1, 2014 33,662,771
May 1, 2014 33,842,741
June 1, 2014 34,023,050
July 1, 2014 34,204,846
August 1, 2014 32,725,153
September 1, 2014 32,902,041
October 1, 2014 33,080,428
November 1, 2014 33,259,180
December 1, 2014 33,438,298
January 1, 2015 33,618,930
8 of 12
101
February 1, 2015 32,137,896
March 1, 2015 32,313,470
9 of 12
102
LEASE AGREEMENT
SCHEDULE 2 TO
THE LEASE
Casualty Value
Casualty Casualty
Date Value
April 1, 2015 32,489,427
May 1, 2015 32,667,332
June 1, 2015 32,845,636
July 1, 2015 33,025,903
August 1, 2015 31,312,163
September 1, 2015 31,485,820
October 1, 2015 31,661,457
November 1, 2015 31,837,525
December 1, 2015 32,014,025
January 1, 2016 32,192,523
February 1, 2016 30,476,779
March 1, 2016 31,649,465
April 1, 2016 30,820,605
May 1, 2016 30,995,224
June 1, 2016 31,170,315
July 1, 2016 31,347,905
August 1, 2016 29,631,010
September 1, 2016 29,801,591
October 1, 2016 29,974,691
November 1, 2016 30,140,304
December 1, 2016 30,322,432
January 1,2017 30,499,102
February 1,2017 28,791,039
March 1, 2017 28,950,497
April 1, 2017 29,120,495
May 1, 2017 29,293,281
June 1, 2017 29,466,630
July 1, 2017 29,642,787
August 1, 2017 27,923,9S7
September 1, 2017 28,092,697
October 1, 2017 28,264,270
November 1, 2017 28,436,451
December 1, 2017 28,609,244
January 1, 2018 28,794,997
February 1, 2028 27,065,299
March 1, 2018 27,233,321
April 1, 2019 27,401,984
May 1, 2018 27,573,772
June 1, 2018 27,746,226
July 1, 2018 27,921,829
August 1, 2010 26,201,912
September 1, 2010 26,369,670
October 1, 2018 26,540,606
November 1, 2019 26,712,260
10 of 12
103
December 1, 2018 26,884,635
January 1, 2019 27,060,218
11 of 12
104
Lease Agreement
SCHEDULE 2 TO
THE LEASE
Casualty Value
Determination Casualty
Date Value
February 1, 2019 25,340,000
March 1, 2019 25,507,516
April 1, 2019 25,675,787
May 1, 2019 25,847,553
June 1, 2019 26,020,103
July 1, 2019 26,196,174
August 1, 2019 24,476,158
September 1, 2019 24,643,939
October 1, 2019 24,815,274
November 1, 2019 24,997,452
December 1, 2019 25,160,477
January 1, 2020 25,337,089
February 1, 2020 23,617,317
March 1, 2020 23,785,408
April 1, 2020 23,954,395
May 1, 2020 24,127,525
June 1, 2020 24,301,583
July 1, 2020 24,479,837
August 1, 2020 22,530,036
September 1, 2020 22,698,139
October 1, 2020 22,870,476
November 1, 2020 23,043,802
December 1, 2020 23,218,123
January 1, 2021 23,396,719
February 1, 2021 21,445,997
March 1, 2021 21,613,225
April 1, 2021 21,781,491
May 1, 2021 21,951,148
June 1, 2021 22,121,846
July 1, 2021 22,293,944
12 of 12
105
SCHEDULE 3 TO
THE LEASE
---------
Termination Value
-----------------
[Monthly]
Determination Termination
Date Value
------------- -----------
106
Lease Agreement
SCHEDULE 3 TO
THE LEASE
Termination Value
Determination Termination
Date Value
February 1, 1996 35,844,499
March 1, 1996 36,091,816
April 1, 1996 36,319,572
May 1, 1996 36,556,043
June 1, 1996 36,792,948
July 1, 1996 37,028,564
August 1, 1996 36,121,867
September 1, 1996 36,357,550
October 1, 1996 36,591,936
November 1, 1996 36,826,741
December 1, 1996 37,061,968
January 1, 1997 37,295,896
February 1, 1997 36,386,948
March 1, 1997 36,620,365
April 1, 1997 36,854,195
May 1, 1997 37,087,768
June 1, 1997 37,321,754
July 1, 1997 37,555,483
August 1, 1997 36,646,336
September 1, 1997 36,879,553
October 1, 1997 37,112,508
November 1, 1997 37,345,872
December 1, 1997 37,579,648
January 1, 1999 37,813,166
February 1, 1998 36,903,806
March 1, 1998 37,136,808
April 1, 1998 37,370,219
May 1, 1998 37,603,414
June 1, 1998 37,837,020
July 1, 1998 38,070,412
August 1, 1998 37,160,924
September 1, 1998 37,393,797
October 1, 1998 37,626,450
November 1, 1998 37,859,511
December 1, 1998 38,092,980
January 1, 1999 38,326,234
February 1, 1999 37,416,608
March 1, 1999 37,649,341
April 1, 1999 37,882,481
May 1, 1999 38,115,423
June 1, 1999 39,348,773
July 1, 1999 38,581,927
August 1, 1999 37,672,199
September 1, 1999 37,904,830
October 1, 1999 38,137,259
1 of 13
107
November 1, 1999 38,370,093
2 of 13
108
Lease Agreement
SCHEDULE 3 To
THE LEASE
Termination Value
Determination Termination
Date Value
December 1, 1999 38,603,334
January 1, 2000 38,836,377
February 1, 2000 37,926,538
March 1, 2000 38,159,056
April 1, 2000 38,391,980
May 1, 2000 38,624,852
June 1, 2000 38,858,132
July 1, 2000 39,091,362
August 1, 2000 38,029,805
September 1, 2000 38,261,020
October 1, 2000 38,492,172
November 1, 2000 38,723,720
December 1, 2000 38,955,666
January 1, 2001 39,187,555
February 1, 2001 38,124,647
March 1, 2001 38,354,501
April 1, 2001 38,584,743
May 1, 2001 38,815,062
June 1, 2001 39,045,772
July 1, 2001 39,276,561
August 1, 2001 38,212,546
September 1, 2001 38,441,287
October 1, 2001 38,670,095
November 1, 2001 38,899,283
December 1, 2001 39,128,854
January 1, 2002 39,358,497
February 1, 2002 38,293,328
March 1, 2002 38,520,906
April 1, 2002 38,748,856
May 1, 2002 38,976,886
June 1, 2002 39,205,291
July 1, 2002 39,433,778
August 1, 2002 38,367,445
September 1, 2002 38,593,851
October 1, 2002 38,820,327
November 1, 2002 39,047,168
December 1, 2002 39,274,374
January 1, 2003 39,501,655
February 1, 2003 38,434,108
March l,'2003 38,659,293
April 1, 2003 38,884,833
May 1, 2003 39,110,454
June 1, 2003 39,336,433
July 1, 2003 39,562,496
August 1, 2003 38,493,722
3 of 13
109
September 1, 2003 38,717,672
4 of 13
110
Lease Agreement
SCHEDULE 3 to
The Lease
Termination Value
Determination Termination
Date Value
October 1, 2003 38,941,692
November 1, 2003 39,166,060
December 1, 2003 39,390,777
January 1, 2004 39,615,570
February 1, 2004 38,545,517
March 1, 2004 38,768,180
April 1, 2004 38,991,180
May I , 2004 39,214,244
June 1, 2004 39,437,650
July 1, 2004 39,661,121
August 1, 2004 38,589,739
September 1, 2004 38,811,062
October 1, 2004 39,032,438
November 1, 2004 39,254,143
December 1, 2004 39,476,181
January 1, 2005 39,696,275
February 1, 2005 38,625,506
March 1, 2005 38,845,433
April 1, 2005 39,065,168
May 11 2005 39,286,118
June 1, 2005 39,506,880
July 1, 2005 39,727,836
August 1, 2005 38,482,927
September 1, 2005 38,700,019
October 1, 2005 38,917,283
November 1, 2005 39,134,948
December 1, 2005 39,352,718
January 1, 2006 39,570,763
February 1, 2006 38,322,924
March 1, 2006 38,537,067
April 1, 2006 38,751,492
May 1, 2006 38,966,216
June 1, 2006 39,181,226
July 1, 2006 39,396,538
August 1, 2006 38,145,948
September 1, 2006 38,357,322
October 1, 2006 38,568,975
November 1, 2006 38,780,893
December 1, 2006 38,993,078
January 1, 2007 39,205,547
February 1, 2007 37,952,096
March 1, 2007 38,160,589
April 1, 2007 38,369,327
May 1, 2007 38,579,326
5 of 13
111
June 1, 2007 38,787,573
July 1, 2007 38,997,084
6 of 13
112
Lease Agreement
SCHEDULE 3 TO
The Lease
Termination
Determination Termination
Date Value
August 1, 2007 37,740,655
September 1, 2007 37,946,152
October 1, 2007 38,151,888
November 1, 2007 38,357,851
December 1, 2007 38,564,041
January 1, 2008 38,770,476
February 1, 2008 37,511,391
March 1, 2008 37,714,218
April 1, 2008 37,917,256
May 1, 2008 38,120,539
June 1, 2008 38,324,035
July 1, 2008 38,527,779
August 1, 2008 37,266,430
September 1, 2008 37,466,988
October 1, 2008 37,667,784
November 1, 2008 37,868,786
December 1, 2008 38,069,998
January 1, 2009 38,271,449
February 1, 2009 37,007,750
March 1, 2009 37,205,951
April 1, 2009 37,404,352
May 1, 2009 37,603,021
June 1, 2009 37,801,993
July 1, 2009 38,001,035
August 1, 2009 36,735,308
September 1, 2009 36,931,483
October 1, 2009 37,127,924
November 1, 2009 37,324,568
December 1, 2009 37,521,414
January 1, 2010 37,718,531
February 1, 2010 36,451,107
March 1, 2010 36,645,591
April 1, 2010 36,840,282
May 1, 2010 37,035,500
June 1, 2010 37,230,931
July 1, 2010 37,426,893
August 1, 2010 35,962,310
September 1, 2010 36,154,169
October 1, 2010 36,346,561
November 1, 2010 36,539,171
December 1, 2010 36,732,000
January 1, 2011 38,059,880
February 1, 2011 36,592,568
March 1, 2011 36,781,706
7 of 13
113
April 1, 2011 36,971,066
May 1, 2011 37,161,407
8 of 13
114
Lease Agreement
SCHEDULE 3 To
THE LEASE
Termination Value
Determination Termination
Date Value
June 1, 2011 37,351,977
July 1, 2011 37,543,536
August 1, 2011 36,073,857
September 1, 2011 36,260,635
October 1, 2011 36,448,400
November 1, 2011 36,636,402
December 1, 2011 36,824,642
January 1, 2012 37,013,878
February 1, 2012 35,541,872
March 1, 2012 35,726,333
April 1, 2012 35,911,035
May 1, 2012 36,096,845
June 1, 2012 36,282,904
July 1, 2012 36,470,081
August 1, 2012 34,996,426
September 1, 2012 35,179,259
October 1, 2012 35,363,218
November 1, 2012 35,547,445
December 1, 2012 35,731,941
January 1, 2013 35,917,575
February 1, 2013 34,442,220
March 1, 2013 34,623,373
April 1, 2013 34,804,807
May 1, 2013 34,987,524
June 1, 2013 35,170,532
July 1, 2013 35,354,833
August 1, 2013 33,877,984
September 1, 2013 34,057,666
October 1, 2013 34,238,653
November 1, 2013 34,419,952
December 1, 2013 34,601,565
January 1, 2014 34,784,495
February 1, 2014 33,306,108
March 1, 2014 33,484,275
April 1, 2014 33,662,771
May 1, 2014 33,842,741
June 1, 2014 34,023,050
July 1, 2014 34,204,846
August 1, 2014 32,725,153
September 1, 2014 32,902,041
October 1, 2014 33,080,428
November 1, 2014 33,259,180
December 1, 2014 33,438,298
January 1, 2015 33,618,930
February 1, 2015 32,137,896
9 of 13
115
March 1, 2015 32,313,470
10 of 13
116
Lease Agreement
SCHEDULE 3 To
THE LEASE
Termination Value
Determination Termination
Date Value
April 1, 2015 32,489,427
May 1, 2015 32,667,332
June 1, 2015 32,845,636
July 1, 2015 33,025,903
August 1, 2015 31,312,163
September 1, 2015 31,485,820
October 1, 2015 31,661,457
November 1, 2015 31,837,525
December 1, 2015 32,014,025
January 1, 2016 32,192,523
February 1, 2016 30,476,778
March 1, 2016 30,648,465
April 1, 2016 30,820,605
May 1, 2016 30,995,224
June 1, 2016 31,170,315
July 1, 2016 31,347,905
August 1, 2016 29,631,010
September 1, 2016 29,801,591
October 1, 2016 29,974,691
November 1, 2016 30,148,304
December 1, 2016 30,322,432
January 1, 2017 30,499,102
February 1, 2017 28,781,039
March 1, 2017 28,950,497
April 1, 2017 29,120,495
May 1, 2017 29,293,281
June 1, 2017 29,466,630
July 1, 2017 29,642,787
August 1, 2017 27,923,957
September 1, 2017 28,092,697
October 1, 2017 28,264,270
November 1, 2017 28,436,451
December 1, 2017 28,609,244
January 1, 2018 28,784,897
February 1, 2018 27,065,299
March 1, 2018 27,233,321
April 1, 2018 27,401,984
May 1, 2018 27,573,772
June 1, 2018 27,746,226
July 1, 2018 27,921,829
August 1, 2018 26,201,912
September 1, 2018 26,369,670
October 1, 2018 26,540,606
November 1, 2018 26,712,260
11 of 13
117
December 1, 2018 26,884,635
January 1, 2019 27,060,218
12 of 13
118
Lease Agreement
SCHEDULE 3 to
The Lease
Determination Termination
Date Value
February 1, 2019 25,340,000
March 1, 2019 25,507,516
April 1, 2019 25,675,787
May 1, 2019 25,847,553
June 1, 2019 26,020,103
July 1, 2019 26,196,174
August 1, 2019 24,476,158
September 1, 2019 24,643,939
October 1, 2019 24,815,274
November 1, 2019 24,987,452
December 1, 2019 25,160,477
January 1, 2020 25,337,089
February 1, 2020 23,617,317
March 1, 2020 23,785,408
April 1, 2020 23,954,385
May 1, 2020 24,127,525
June 1, 2020 24,301,583
July 1, 2020 24,479,837
August 1, 2020 22,530,036
September 1, 2020 22,698,139
October 1, 2020 22,870,476
November 1, 2020 23,043,802
December 1, 2020 23,218,123
January 1, 2021 23,396,718
February 1, 2021 21,445,987
March 1, 2021 21,613,225
April 1, 2021 21,781,491
May 1, 2021 21,951,148
June 1, 2021 22,121,846
July 1, 2021 22,293,944
13 of 13
119
SCHEDULE 4 TO
THE LEASE
---------
EBO Date and EBO Price
----------------------
EBO Date: January 1, 2017
EBO Price: $31,531,500
120
Lease Agreement
SCHEDULE 1 TO
THE LEASE
Basic Rent
Rent Payment Date Basic Rent Basic Rent Total Basic
In Arrears In Advance Rent Payment
July 1, 1996 0.00 1,141,955.00 1,141,955.00
January 1, 1997 0.00 1,141,955.00 1,141,955.00
July 1, 1997 0.00 1,141,955.00 1,141,955.00
January 1, 1998 0.00 1,141,955.00 1,141,955.00
July 1, 1998 0.00 1,141,955.00 1,141,955.00
January 1, 1999 0.00 1,141,955.00 1,141,955.00
July 1, 1999 0.00 1,141,955.00 1,141,955.00
January 1, 2000 0.00 1,141,955.00 1,141,955.00
July 1, 2000 0.00 1,292,378.00 1,292,378.00
January 1, 2001 0.00 1,292,378.00 1,292,378.00
July 1, 2001 0.00 1,292,378.00 1,292,378.00
January 1, 2002 0.00 1,292,370.00 1,292,378.00
July 1, 2002 0.00 1,292,378.00 1,292,378.00
January 1, 2003 0.00 1,292,378.00 1,292,378.00
July 1, 2003 0.00 1,292,378.00 1,292,378.00
January 1, 2004 0.00 1,292,378.00 1,292,378.00
July 1, 2004 0.00 1,292,378.00 1,292,378.00
January 1, 2003 0.00 1,292,370.00 1,292,378.00
July 1, 2003 0.00 1,461,702.00 1,461,702.00
January 1, 2006 0.00 1,461,702.00 1,461,702.00
July 1, 2006 0.00 1,461,702.00 1,461,702.00
January 1, 2007 0.00 1,461,702.00 1,461,702.00
July 1, 2007 0.00 1,461,702.00 1,461,702.00
January 1, 2008 0.00 1,461,702.00 1,461,702.00
July 1, 2008 0.00 1,461,702.00 1,461,702.00
January 1, 2009 0.00 1,461,702.00 1,461,702.00
July 1, 2009 0.00 1,461,702.00 1,461,702.00
January 1, 2010 0.00 1,461,702.00 1,461,702.00
July 1, 2010 0.00 1,656,228.00 1,656,228.00
January 1, 2011 0.00 1,656,228.00 1,656,228.00
July 1, 2011 0.00 1,656,228.00 1,656,228.00
January 1, 2012 0.00 1,656,228.00 1,656,228.00
July 1, 2012 0.00 1,656,228.00 1,656,220.00
January 1, 2013 0.00 1,656,228.00 1,656,228.00
July 1, 2013 0.00 1,636,228.00 1,656,228.00
January 1, 2014 0.00 1,656,228.00 1,656,228.00
July 1, 2014 0.00 1,656,228.00 1,656,228.00
January 1, 2015 0.00 1,656,228.00 1,656,228.00
July 1, 2015 0.00 1,986,982.00 1,886,982.00
January 1, 2016 0.00 1,886,982.00 1,886,982.00
July 1, 2016 0.00 1,886,982.00 1,886,982.00
January 1, 2017 0.00 l,886,982.00 1,886,982.00
121
July 1, 2017 0.00 1,886,902.00 1,886,982.00
January 1, 2018 0.00 1,886,982.00 1,886,982.00
July 1, 2018 0.00 1,886,982.00 1,886,982.00
January 1, 2019 0.00 1,886,982.00 1,886,982.00
July 1, 2019 0.00 1,886,982.00 1,886,982.00
January 1, 2020 0.00 1,886,982.00 1,886,982.00
July 1, 2020 0.00 2,116,948.00 2,116,948.00
January 1, 2021 0.00 2,116,948.00 2,116,949.00
July 1, 2021 0.00 0.00 0.00
122
EXHIBIT A TO
THE LEASE
Description of the Premises
---------------------------
The building is a two (2) story brick office building shown on the
ALTA/ACSM Land Title Survey of Xxx 00, Xxxxx 000, Xxxxxxxx xx Xxxx, Xxxxxxxx
Xxxxxx, Xxx Xxxxxx, as certified by Xxxxx X. Xxxxx, Professional Land Surveyor,
on December 19, 1995. The building is located on the Site described in Exhibit B
to this Lease.
The Personalty is described on Schedule A-1 to this Exhibit.
123
Schedule A-1 to
Exhibit A to the Lease
Personalty
----------
The Personalty shall include all fixtures in the Building and the
following:
DOCK LEVELER & BUMPERS INCLUDING: PIT MOTOR, DISCONNECT
SWITCH.
WIRING AND CONDUIT TO AND INCLUDING CIRCUIT BREAKER.
ROLL-UP DOOR
ALL TOILET FIXTURES (PAPER TOWEL DISPENSER, TOILET TISSUE
DISPENSER, GRAB BAR, SOAP DISPENSER, TOWEL BAR, TISSUE BOX,
SANITARY NAPKIN DISPOSAL RECESSED NAPKIN DISPENSER, SURFACE
MOUNTED DISPENSER).
MIRROR
VANITY TOP & BLACKSPLASH
LINEN CLOSET SHELVES
MAHOGANY WOOD BENCH IN SHOWER AREA
ADJUSTABLE SHELVES IN PROJECTION ROOM
RAISED PLATFORM-PROJ. ROOM
PROJECTION SCREEN
CABINETS & LAMINATED TOP IN PANTRY AREA
ALL SPECIAL POWER CONNECTIONS FOR PANTRY EQUIPMENT INCLUDING
RECEPTACLES, WIRING, CONDUIT TO AND INCLUDING JUNCTION BOX
AND CIRCUIT BREAKER.
COLD WATER PIPING FROM ICE MAKER TO FIRST BRANCH
PANTRY SINK AND PLUMBING TO FIRST BRANCH
HOT WATER PIPING FROM DISHWASHER TO FIRST BRANCH
RUBBER TREAD ON STAIRS AND LANDING
124
ELEVATORS #1 AND #2 INCLUDING LIGHTING AND SERVICE OUTLETS, HOISTWAY
ENTRANCES, SIGNAL EQUIPMENT, INSERTS, CAB FRAME, PLATFORM INTERIOR,
PLASTIC LAMINATE PANELS GUIDE SHOES, AUTOMATIC LEVELING DEVICE,
HYDRAULIC PLUNGER, CYLINDER ASSEMBLY, CASING, HYDRAULIC POWER UNIT,
ELECTRIC CONTROLLER UNIT, PIPING ALL POWER CONNECTIONS TO AND INCLUDING
DISCONNECT SWITCH AND CIRCUIT BREAKER #10 IN PANEL
MAHOGANY PANELING TO CONCEAL MOVABLE PARTITION
ALL CABINETS INCLUDING BACKSPLASH AND DESK UNIT
PROJECTION SCREEN IN BOARD ROOM
MOVABLE WALL PANELS INCLUDING SLIDING TRACK IN MEETING ROOM
GENERATOR AND PAD
MOVABLE PARTITIONS INCLUDING THOSE IN CONF. ROOM AREA
ALL CABINETS
1.5 HOUR FIRE CURTAIN INCLUDING HOUSING (ATLAS DOOR AND
MISCELLANEOUS IRON WORK AND SHEETROCK AND SEALING)
"FLEXCO" BLACK RAISED 12"x 12" RUBBER TILES
RAISED FLOOR - COMPUTER ROOM INCLUDING STRUCTURAL SUPPORT
CABINETS IN BOARD ROOM
ACOUSTICAL LOUVERS (TO THE EXTENT ATTACHED TO OR MADE PART
OF THE BUILDING)
CARPET TILE AND BROADLOOM
VINYL BASE (TOTAL 13,000 LN FT)
-2-
125
MOVABLE PARTITION IN MAILROOM
ALL SHELVES INCLUDING THOSE IN STORAGE AREA AND CRT.
TRAINING ROOM
COUNTER AND CABINETS IN KITCHEN AREA
CARPET TILE AND BROADLOOM
VINYL BASE (EXCEPT TO THE EXTENT NOT ATTACHED TO THE
BUILDING)
HALON FIRE SUPPRESSION SYSTEMS INCLUDING: CONTROL PANEL,
PURGE SWITCH IONIZATION DETECTORS, PHOTOELECTRIC DETECTORS,
AUDIO AND VISUAL ALARMS, STORAGE TANKS, PIPING, NOZZLES,
VALVES, ETC.
ALL ELECTRIC WIRING, CONDUIT, SWITCHES, ETC. REQUIRED FOR
OPERATION OF THE SYSTEM
VIDEO DATA SYSTEM INCLUDING 12" MONITOR CHARACTER
GENERATOR TV TYPEWRITER, MF MODULATOR AND AMPLIFIER, CONTROL
CENTER, TV SETS AND MOUNTING SUPPORTS
ALL ELECTRIC WIRING, CONDUIT, SWITCHES, ETC. REQUIRED FOR
OPERATION OF THE SYSTEM
CARD ACCESS SYSTEM INCLUDING CARD READERS, CONSOLE, TERMINAL
PROCESSORS, POWER UNIT, DOOR OPEN ALARM SWITCH, POWER LOCK,
ALL ELECTRIC WIRING, CONDUIT, SWITCHES, ETC. REQUIRED FOR
OPERATION OF THE SYSTEM
TV SURVEILLANCE SYSTEM INCLUDING CCTV CAMERAS, TV SCREENS,
SEQUENTIAL SWITCHER
ALL ELECTRIC WIRING, CONDUIT, SWITCHES, ETC. REQUIRED FOR
OPERATION OF THE SYSTEM
STEEL LADDER TO ROOF HATCH
STEEL OVERHEAD DOORS IN LOADING AREA AND SHEETROCKING
ELEVATOR SUMP PUMPS PP-1, PP-2, PLUMBING TO FIRST BRANCH AND
-3-
126
PIT
VENDING MACHINE PLUMBING CONNECTIONS TO 1ST BRANCH
COUNTERS IN KITCHEN AREA
WASTE CONNECT TO 2" WASTE LINE GOING DOWN IN WALL ON LINE TO FIRST
XXXXXX
XX BOOSTER INCLUDING PLUMBING TO SINKS AND STAND
GREASE INTERCEPTOR INCLUDING PLUMBING TO 1ST BRANCH
(3) SINKS INCLUDING HW/CW LINES TO FIRST BRANCH
HAND SINK, INCLUDING HW/CW LINE TO FIRST BRANCH
COMPUTER FACILITY HVAC:
WATER ALARM CIRCUIT, INCLUDING ALARM AT GUARD ST; CHILLER #3 CONTROL
PANEL AND CONNECTIONS TO EQUIP AND TMCC-1 CONTROL CONNECTION FROM
COOLING TOWER #3 TO TMCC-1 CHILLER #3 WATER TEMP ALARM AT GUARD ST AND
WIRING
CHILLER #3 SYSTEM INCLUDING CONDENSER #3 CIRCULATING PUMPS 4-1 AND 4-2,
EXPANSION TANK, AIRTROL, PLUMBING TO COMPUTER ROOM UNITS, COOLING TOWER
#3 PLUMBING TO TOWER FROM CONDENSER #3, PLUMBING AFTER COLD WATER
MAKE-UP TO MOTOR, DP-3
TELCO BACKBOARDS
RAISED FLOOR IN ELECTRIC CLOSET
TELEPHONE RECEPTACLES, WIRING AND CONDUIT
EMERGENCY DISTRIBUTION PANEL FOR GENERATOR
AUTOMATIC TRANSFER SWITCH FOR GENERATOR
ALL SIGNAL WIRING FOR EQUIPMENT (SUCH AS CRT'S)
TO CPU'S IN COMPUTER RM. OR TO TELEPHONE CLOSET
TELCO BLACKBOARDS
ELECTRIC RELOCK LIGHTING HOOK-UP
-4-
127
VENETIAN BLINDS
FLAT WIRE FOR CRT EQUIPMENT
SUMP PUMP UNDER COMPUTER FLOOR
AUDIO VISUAL EQUIPMENT INCLUDING SOUND SYSTEM (EXCEPT TO THE
EXTENT NOT INSTALLED IN OR ATTACHED TO THE BUILDING)
CAFETERIA MOSAIC
DISPLAY AREA FOR APPLIANCES
FIRE EXTINGUISHERS AND HOSE CABINETS (2 oz.)
REFRIG IN BATHROOMS INCLUDING INSTALLATION AND ELECTRIC
TOILET PARTITIONS AND SUPPORTS
ALL SIGNAL WIRING FOR EQUIPMENT (SUCH AS CRT'S)
TO CPU'S IN COMPUTER ROOM OR TO TELEPHONE CLOSET
TELCO BLACKBOARDS
ALL SIGNAL WIRING FOR EQUIPMENT (SUCH AS CRT'S)
TO CPU'S IN COMPUTER RM. OR TO TELEPHONE CLOSET
COMPUTER, NETWORK CONTROL CPU ROOMS:
ALL EQUIPMENT CONNECTIONS (WIRING, CONDUIT, JUNCTION BOXES) TO AND
INCLUDING PMC DISTRIBUTION MODULE WIRING AND CONDUIT FROM PMC
DISTRIBUTION MODULE TO PMC SYNTHESIZER TO AND INCLUDING CHECK METER,
CIRCUIT BREAKER IN PANEL EDP AND BYPASS TRANSFORMER
COMPUTER ROOM CHILLER, WIRING AND CONDUIT TO AND INCLUDING
CHECK METER AND CIRCUIT BREAKER IN TMCC-1
6 AIR CONDITIONERS FOR COMPUTER, NETWORK CONTROL AND CPU
ROOMS INCLUDING DUCTWORK, STRUCTURAL SUPPORTS,
PLUMBING/CONDENSATION CONNECTIONS (NOTE: 5 UNITS + 1 UNIT IN
-5-
128
PHONE AND GENERATOR ROOM)
WIRING, CONDUIT AND TRANSFORMER BETWEEN GENERATOR AND
EMERGENCY DISTRIBUTION PANEL
THE FOLLOWING ELECTRIC CIRCUITS FROM THE EQUIPMENT TO AND
INCLUDING THE CIRCUIT BREAKER:
PANEL NO. CIRCUIT NO. SERVICE
EDP 5 THRU 10 COMPUTER RMS. A/C
11 PMC SYNTHESIZER
RPA 2,6,7,33,34 CRT RECEPTACLES
10 VIDEO DATA SYSTEM
RBP 2 HALON SYSTEM
3 PLUGMOLD
5 CARD ACCESS SYSTEM
7 TV SURVEILLANCE SYS
9 PHONE EQ CLOSET
10 CRT RECEPTACLES
11 VIDEO DATA SYSTEM
13, 15 TELEPHONE ROOM
14, 17 ELEVATOR CONTROLLERS
32, 34, 37, 38, 41 CRT RECEPTACLES
42, 49, 50, 53, 71 CRT RECEPTACLES
RPC 14, 15, 16, 17, 20 CRT RECEPTACLES
21, 24, 25, 28, 29, 31 CRT RECEPTACLES
32, 37, 38, 41, 42, 47 CRT RECEPTACLES
48, 53, 54, 57, 60, 63 CRT RECEPTACLES
64, 74, 78, 82 CRT RECEPTACLES
KP 2 FREEZER
-6-
129
4, 6 REFRIGERATORS
7 ICE MAKER
8 WARMER
9 COFFEE MACHINE
10 BOOSTER HEATER
12, 14, 16 VENDING MACHINES
11 OVEN
PMC ALL CIRCUITS COMPUTER HARDWARE
SECURITY XXXXXXX XXXX (0XX XXXXX), & XXXXXXXXXXXX XXXX (0XX
XXXXX)
FENCING AROUND COOLING TOWER
REMOVABLE TILES IN CEILING GRID SYSTEM.
GAS CONTROL CENTER EQUIPMENT
HVAC
HALON SYSTEM
ACCESS FLOORING
GENERATOR
INFORMATION SERVICES EQUIPMENT
RAISED FLOOR
HVAC & POWER DISTRIBUTION EQUIPMENT
-7-
130
THE FOLLOWING ITEMS ARE SPECIFICALLY EXCLUDED FROM THE PERSONALTY:
FLOOR MATS - VESTIBULE
PANTRY EQUIPMENT:
ICE MAKER
DISHWASHER
REFRIGERATOR
MICROWAVE OVEN
MOVABLE PARTITIONS IN BOARD ROOM INCLUDING SLIDING DOOR
TRACK
ACOUSTICAL LOUVERS (EXCEPT TO THE EXTENT ATTACHED TO OR
MADE PART OF THE BUILDING)
VENDING MACHINES
CHALKBOARD IN TRAINING ROOM
REMOVABLE RAILINGS IN PIVOT WINDOW
XEROX MACHINES & WIRING CONDUIT
KITCHEN AREA EQUIPMENT: INCLUDING CONVECTION OVEN, (2)
REFRIGERATORS, FREEZER & ICE MAKER
DICTAPHONE
PMC SYNTHESIZER
BOARD ROOM LECTERN INCLUDING LIGHT
CAFETERIA EQUIP PER CHANGE ORDER 40
CAFETERIA POTS AND MISC. EQUIPMENT.
CARPETING NOT AFFIXED TO THE BUILDING
AUDIO VISUAL EQUIPMENT NOT INSTALLED IN OR ATTACHED TO
-8-
131
THE BUILDING
COMPACTOR
GAS CONTROL CENTER EQUIPMENT
----------------------------
P.C. BASED COMPUTER SYSTEM
RADIO BASE STATION
DISPATCHER CONSOLE
MAPBOARD
UNINTERRUPTIBLE POWER SUPPLY
KITCHEN EQUIPMENT
INFORMATION SERVICES EQUIPMENT
------------------------------
SURGE PROTECTOR
UPS SYSTEM
-9-
132
EXHIBIT B TO
THE LEASE
Legal Description of the Site
LEGAL DESCRIPTION
BLOCK 913 TAX XXX 00
XXXXXXXX XX XXXX
XXXXXX XX XXXXXXXX, XXXXX OF NEW JERSEY
BEGINNING at a point in the new Westerly sideline of Xxxxxxx Road (35 feet
Westerly from the centerline thereof) at a point formed by the intersection of
said line with the centerline of South Brook, said beginning point being distant
North 59 degrees 32 minutes 57 seconds West, a distance of 35.00 feet from a
point in the centerline of Xxxxxxx Road, said point in turn being distance South
30 degrees 27 minutes 03 seconds West, a distance of 403.25 feet from the point
of intersection of the centerline of Xxxxxxx Road with the centerline of New
Jersey State Highway Route #34, said point of intersection being station
385+08.40, Route 34 centerline and station 00x00 Xxxxxxx Xxxx centerline as
indicated on a Map entitled "New Jersey State Highway Department General
Property Map Route 34 (1953) Section 2 from Route 38 to Route 33 Showing
Existing Right of Way and Parcels to be Acquired in the Township of Wall, County
of Monmouth", dated June 1961, and from said beginning point running, thence;
1. Along said sideline, South 30 degrees 27 minutes 03 seconds
West, a distance of 405.54 feet to an angle point in the
same, thence;
2. Still along said sideline, South 27 degrees 08 minutes 21 seconds West,
a distance of 660.37 feet to a point in the line of lands now or
formerly Commercial Realty and Resources Corp., thence;
3. Along said sideline, North 64 degrees 26 minutes 50 seconds
West, a distance of 287.19 feet to an iron pipe found,
thence;
4. Still along the same, South 25 degrees 33 minutes 10 seconds
West, a distance of 35.00 feet to a point and new corner,
thence;
133
5. The following six (6) courses along the line of a Minor Subdivision
approved by Wall Township, dated Xxxxx 0, 0000, Xxxxx 64 degrees 26
minutes 50 seconds West, a distance of 210.00 feet, thence;
6. North 42 degrees 56 minutes 50 seconds West, a distance of
300.00 feet, thence;
7. North 12 degrees 33 minutes 10 seconds East, a distance of
210.00 feet, thence;
8. North 44 degrees 41 minutes 50 seconds West, a distance of
227.00 feet, thence;
9. North 07 degrees 54 minutes 46 seconds West, a distance of
262.82 feet, thence;
10. North 46 degrees 22 minutes 00 seconds East, a distance of 400.73 feet
more or less, to the middle of South Brook, being the original line of
the entire tract conveyed to Gas Associated Services by deed recorded
in the Monmouth County Clerk's Office in book 4187, page 20, of which
this parcel is part, thence;
11. Down the middle of said South Brook, its various courses, a total
distance of 1,151 feet more or less to the point and place of
beginning.
Containing 22.16 acres of land more or less, together with Easement Rights in
the land described in Deed of Easement/Right of Way and Conveyance of Sewer
Facilities recorded December 17, 1985 in Deed Book 4618, Page 519.
-2-
