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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT, dated as of September 27, 2000
("Termination Agreement"), is executed by and between LEASE PLAN NORTH AMERICA,
INC., an Illinois corporation ("Lease Plan"), as landlord (in such capacity,
"Lessor") and FAIR, XXXXX AND COMPANY, INC., a Delaware corporation, as lessee
(in such capacity, "Lessee"). Unless otherwise defined herein, all other
capitalized terms used herein shall have the respective meanings given to those
terms in Schedule 1.01 of the Participation Agreement (as defined below).
RECITALS
A. Lessor, Lessee, certain financial institutions (the "Participants"),
and ABN AMRO Bank N.V., acting through its San Francisco International Branch,
as agent for the Participants (in such capacity, "Agent"), are parties to that
certain Participation Agreement dated as of May 15, 1998 (the "Participation
Agreement").
X. Xxxxxx and Lessee are parties to that certain Lease Agreement,
Construction Deed of Trust with Assignment of Rents, Security Agreement and
Fixture Filing dated as of May 15, 1998, recorded on May 20, 1998, in the
Official Records of Marin County, California, as Recorder's Serial No.
1998-0033519, as amended by that certain First Amendment to Lease Agreement,
Construction Deed of Trust with Assignment of Rents, Security Agreement and
Fixture Filing dated as of June 13, 2000, and recorded on June 13, 2000, in the
Official Records of Marin County, California, as Recorder's Serial No.
2000-0030318 (as amended, the "Lease"), pursuant to which, inter alia, Lessor
leased to Lessee, and Lessee leased from Lessor, certain Property upon the terms
and subject to the conditions set forth therein.
C. In connection with the Participation Agreement and the lease by
Lessor to Lessee of the Property, Lessor and Lessee entered into, among other
agreements, (i) that certain Purchase Agreement dated as of May 15, 1998
("Purchase Agreement"), (ii) that certain Memorandum of Purchase Agreement dated
as of May 15, 1998 (the "Memorandum of Purchase Agreement") recorded on May 20,
1998, in the Official Records of Marin County, California as Recorder's Serial
No. 1998-0033520, (iii) that certain Construction Agency Agreement dated as of
May 15, 1998 (the "Construction Agency Agreement"), and (iv) along with the
Agent, that certain Cash Collateral Agreement dated as of May 15, 1998 (the
"Cash Collateral Agreement").
D. In order to secure the obligations of Lessor to Agent arising under
the Participation Agreement, Lessor executed and delivered, among other
agreements, (i) that certain Lessor Deed of Trust and Security Agreement dated
as of May 15, 1998, to First American Title Insurance Company, as trustee, for
the benefit of Agent, as beneficiary, recorded on May 20, 1998, in the Official
Records of Marin County, California, as Recorder's Serial No. 1998-0033522, as
amended by that certain First Amendment to Lessor Deed of Trust and Security
Agreement dated as of June 13, 2000, and recorded on June 13, 2000, in the
Official Records of Marin County, California, as Recorder's Serial No.
2000-0030321 (as amended, the "Lessor
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Deed of Trust"), and (ii) that certain Assignment of Lease Agreement and
Purchase Agreement dated as of May 15, 1998, recorded on May 20, 1998, in the
Official Records of Marin County, California, as Recorder's Serial No.
1998-0033523, as amended by that certain First Amendment to Assignment of Lease
Agreement and Purchase Agreement dated as of June 13, 2000, and recorded on June
13, 2000, in the Official Records of Marin County, California, as Recorder's
Serial No. 2000-0030322 (as amended, the "Assignment of Lease Agreement and
Purchase Agreement").
E. Lessee now desires to pay all outstanding amounts owed to Lessor and
Agent by Lessee pursuant to the Participation Agreement, the Lease and the other
Terminated Documents (as defined below) and, in connection therewith, Lessor and
Lessee desire to terminate the Participation Agreement, the Lease, the Purchase
Agreement, the Memorandum of Purchase Agreement, the Construction Agency
Agreement, the Cash Collateral Agreement, the Lessor Deed of Trust, the
Assignment of Lease Agreement and Purchase Agreement and all other documents,
instruments and agreements related to any of the foregoing (collectively, the
"Terminated Documents") upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the above Recitals and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Lessee and Lessor hereby agree as follows:
1. Payment and Termination of the Terminated Documents. Lessor, in its
capacity as lessor, and Agent, in its capacity as agent for the Participants,
hereby acknowledge receipt of $26,314,051.34 as consideration in full of the
outstanding Rent and all other amounts owing under the Lease and any other
Terminated Document, and the termination of the Lease and all other Terminated
Documents as follows:
A. Principal $ 26,141,172.18
B. Interest through September 27,
2000 (plus per diem of $5,397.04
for each day after September 27,
2000) 140,323.08
C. Commitment Fees (plus per diem of
$240.49 for each day after
September 27, 2000) 20,887.98
D. Breakage Costs 168.10
E. Accrued Expenses of Lessor and
ABN Attorneys' Fees (estimated as
of 9/26/00) 11,500.00
Total $ 26,314,051.34
provided, however, that nothing contained herein shall have any effect on
Lessee's obligation to reimburse the Lessor Parties with respect to
indemnification and similar obligations of Lessee set forth in the Participation
Agreement, the Lease or the other Terminated Documents, which by their terms
expressly provide that they survive the termination of such agreement.
2. Termination of the Terminated Documents; Release of Liens.
(a) Each of the Terminated Documents executed by Lessee
pursuant to which, inter alia, Lessee granted to Lessor a security
interest with respect to the obligations
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of Lessee arising under the Participation Agreement and the Lease is
hereby terminated and Lessee is hereby released therefrom, and Lessor
hereby releases, assigns, transfers and delivers to Lessee without
recourse and without representation or warranty, all of its rights,
title and interests contained therein. In connection with the
foregoing, Lessor shall execute and deliver to Lessee for recordation
(i) that certain Mutual Cancellation, Termination and Reconveyance of
Lease Agreement, Construction Deed of Trust with Assignment of Rents,
Security Agreement and Fixture Filing in the form of Attachment A
hereto (the "Termination of Lease"), (ii) Mutual Cancellation and
Termination of Purchase Agreement in the form of Attachment B hereto
(the "Termination of Purchase Agreement"), and (iii) Mutual
Cancellation and Termination of Construction Agency Agreement,
Assignment of Construction Agreements, and Cash Collateral Agreement in
the form of Attachment C hereto (the "Termination of Construction
Agency and Other Agreements").
(b) From time to time, upon request by either party, Lessor or
Lessee shall, without further consideration other than reimbursement
for any reasonable costs and expenses, execute, deliver and acknowledge
all such further documents, agreements, certificates and instruments
and do such further acts as the other party may reasonably require to
more effectively evidence or effectuate the transactions contemplated
by this Termination Agreement, including, but not limited to, the
release and termination of the Terminated Documents and the release and
discharge of all security interests and all other rights and interests
that Lessor has or may have had in connection therewith.
3. Effectiveness. This Termination Agreement shall become effective on
September 27, 2000 (the "Effective Date"), subject to the receipt by Lessor and
Lessee on or prior to the Effective Date of the following, each in form and
substance satisfactory to Lessor, Agent, Lessee and their respective counsel:
(a) This Termination Agreement duly executed by Lessee and
Lessor;
(b) Lessor and Agent shall have received the payment of the
amount referred to in Section 1 hereof;
(c) The Termination of Lease, duly executed by Lessee and
Lessor and appropriately notarized;
(d) The Termination of Purchase Agreement, duly executed by
Lessee and Lessor and appropriately notarized;
(e) The Termination of Construction Agency and Other
Agreements, duly executed by Lessee and Lessor and appropriately
notarized;
(f) The release and reconveyance of the Lessor Deed of Trust;
(g) The termination of the Assignment of Lease Agreement and
Purchase Agreement; and
(h) Such other documents, instruments and agreements as either
Lessor or
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Lessee may reasonably request in order to evidence the termination of
the Lease Agreement and all other Terminated Documents as provided for
herein.
4. Miscellaneous. This Termination Agreement may not be amended,
modified or waived except in writing signed by the party against whom
enforcement of such amendment, modification or waiver is sought. This
Termination Agreement shall be construed and interpreted in accordance with the
laws of the State of California. This Termination Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which, when taken together, shall constitute one and the same instrument.
[The Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have entered into this Termination
Agreement as of the day and year first above written.
LESSEE: FAIR XXXXX AND COMPANY, INC.,
a Delaware corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
LESSOR: LEASE PLAN NORTH AMERICA, INC.,
an Illinois corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
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