LEASE AGREEMENT
Dated as of July 29, 1998
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually,
but solely as the Owner Trustee
under the Centennial Real Estate Trust 1998-1,
as Lessor
and
CENTENNIAL HEALTHCARE CORPORATION,
as Lessee
This Lease Agreement is subject to a security interest in favor of NationsBank,
N.A., as the agent for the Lenders and respecting the Security Documents, as the
agent for the Lenders and the Holders, to the extent of their interests (the
"Agent") under a Security Agreement dated as of July 29, 1998, between First
Security Bank, National Association, not individually, but solely as the Owner
Trustee under the Centennial Real Estate Trust 1998-1, and the Agent, as
amended, modified, extended, supplemented, restated and/or replaced from time to
time in accordance with the applicable provisions thereof. This Lease Agreement
has been executed in several counterparts. To the extent, if any, that this
Lease Agreement constitutes chattel paper (as such term is defined in the
Uniform Commercial Code as in effect in any applicable jurisdiction), no
security interest in this Lease Agreement may be created through the transfer or
possession of any counterpart other than the original counterpart containing the
receipt therefor executed by the Agent on the signature page hereof.
iii
TABLE OF CONTENTS
ARTICLE I.........................................................1
1.1 Definitions.............................................1
1.2 Interpretation..........................................2
ARTICLE II........................................................2
2.1 Property................................................2
2.2 Lease Term..............................................2
2.3 Title...................................................3
2.4 Lease Supplements.......................................3
ARTICLE III.......................................................3
3.1 Rent....................................................3
3.2 Payment of Basic Rent...................................3
3.3 Supplemental Rent.......................................4
3.4 Performance on a Non-Business Day.......................4
3.5 Rent Payment Provisions.................................4
ARTICLE IV........................................................5
4.1 Taxes; Utility Charges..................................5
ARTICLE V.........................................................5
5.1 Quiet Enjoyment.........................................5
ARTICLE VI........................................................5
6.1 Net Lease...............................................5
6.2 No Termination or Abatement.............................6
ARTICLE VII.......................................................6
7.1 Ownership of the Properties.............................6
ARTICLE VIII......................................................8
8.1 Condition of the Properties.............................8
8.2 Possession and Use of the Properties....................9
8.3 Integrated Properties..................................10
ARTICLE IX.......................................................10
9.1 Compliance With Legal Requirements, Insurance
Requirements and Manufacturer's Specifications and Standards.10
ARTICLE X........................................................10
10.1 Maintenance and Repair; Return........................10
10.2 Environmental Inspection..............................12
ARTICLE XI.......................................................12
11.1 Modifications.........................................12
ARTICLE XII......................................................13
12.1 Warranty of Title.....................................13
ARTICLE XIII.....................................................14
13.1 Permitted Contests Other Than in Respect of Indemnities.14
13.2 Impositions, Utility Charges, Other Matters; Compliance
with Legal Requirements....................................15
ARTICLE XIV......................................................15
14.1 Public Liability and Workers' Compensation Insurance..15
14.2 Permanent Hazard and Other Insurance..................15
14.3 Coverage..............................................16
ARTICLE XV.......................................................17
15.1 Casualty and Condemnation.............................17
15.2 Environmental Matters.................................19
15.3 Notice of Environmental Matters.......................20
ARTICLE XVI......................................................20
16.1 Termination Upon Certain Events.......................20
16.2 Procedures............................................20
ARTICLE XVII.....................................................21
17.1 Lease Events of Default...............................21
17.2 Surrender of Possession...............................24
17.3 Reletting.............................................25
17.4 Damages...............................................25
17.5 Power of Sale.........................................26
17.6 Final Liquidated Damages..............................26
17.7 Environmental Costs...................................26
17.8 Waiver of Certain Rights..............................27
17.9 Assignment of Rights Under Contracts..................27
17.10 Remedies Cumulative..................................27
ARTICLE XVIII....................................................27
18.1 Lessor's Right to Cure Lessee's Lease Defaults........27
ARTICLE XIX......................................................28
19.1 Provisions Relating to Lessee's Exercise of its
Purchase Option............................................28
19.2 No Purchase or Termination With Respect to Less than
All of a Property..........................................28
ARTICLE XX.......................................................28
20.1 Purchase Option or Sale Option-General Provisions.....28
20.2 Lessee Purchase Option................................29
20.3 Third Party Sale Option...............................30
ARTICLE XXI......................................................31
21.1 [Intentionally Omitted]...............................31
ARTICLE XXII.....................................................31
22.1 Sale Procedure........................................31
22.2 Application of Proceeds of Sale.......................33
22.3 Indemnity for Excessive Wear..........................34
22.4 Appraisal Procedure...................................34
22.5 Certain Obligations Continue.........................35
ARTICLE XXIII....................................................35
23.1 Holding Over..........................................35
ARTICLE XXIV.....................................................35
24.1 Risk of Loss..........................................35
ARTICLE XXV......................................................36
25.1 Assignment............................................36
25.2 Subleases.............................................36
ARTICLE XXVI.....................................................37
26.1 No Waiver.............................................37
ARTICLE XXVII....................................................37
27.1 Acceptance of Surrender...............................37
27.2 No Merger of Title....................................37
ARTICLE XXVIII...................................................37
28.1 Incorporation of Covenants............................37
ARTICLE XXIX.....................................................38
29.1 Notices...............................................38
ARTICLE XXX......................................................38
30.1 Miscellaneous.........................................38
30.2 Amendments and Modifications..........................39
30.3 Successors and Assigns................................39
30.4 Headings and Table of Contents........................39
30.5 Counterparts..........................................39
30.6 GOVERNING LAW.........................................39
30.7 Calculation of Rent...................................39
30.8 Memoranda of Lease and Lease Supplements..............39
30.9 Allocations between the Lenders and the Holders.......40
30.10 Limitations on Recourse..............................40
30.11 WAIVERS OF JURY TRIAL................................40
30.12 Exercise of Lessor Rights............................40
30.13 SUBMISSION TO JURISDICTION; VENUE....................41
30.14 USURY SAVINGS PROVISION..............................41
EXHIBITS
EXHIBIT A - Lease Supplement No. ____
EXHIBIT B - Memorandum of Lease and Lease Supplement No. ____
3
LEASE AGREEMENT
THIS LEASE AGREEMENT dated as of July 29, 1998 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, this
"Lease") is between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, having its principal office at 00 Xxxxx Xxxx Xxxxxx, Xxxx
Xxxx Xxxx, Xxxx 00000, not individually, but solely as the Owner Trustee under
the Centennial Real Estate Trust 1998-1, as lessor (the "Lessor"), and
CENTENNIAL HEALTHCARE CORPORATION, a Georgia corporation, having its principal
place of business at 000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx,
00000 as lessee (the "Lessee").
W I T N E S S E T H:
A. WHEREAS, subject to the terms and conditions of the Participation
Agreement and the Agency Agreement, Lessor will (i) purchase or ground lease
various parcels of real property, some of which will (or may) have existing
Improvements thereon, from one (1) or more third parties designated by Lessee
and (ii) fund the acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment and restoration of
the Properties by the Construction Agent; and
B. WHEREAS, the Basic Term shall commence with respect to each Property
upon the Property Closing Date with respect thereto; provided, Basic Rent with
respect thereto shall not be payable until the applicable Rent Commencement
Date; and
C. WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to lease
from Lessor, each Property;
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1 Definitions.
For purposes of this Lease, capitalized terms used in this Lease and
not otherwise defined herein shall have the meanings assigned to them in
Appendix A to that certain Participation Agreement dated as of July 29, 1998 (as
amended, modified, extended, supplemented, restated and/or replaced from time to
time in accordance with the applicable provisions thereof, the "Participation
Agreement") among Lessee, the various parties thereto from time to time, as the
Guarantors, Lessor, the various banks and other lending institutions which are
parties thereto from time to time, as the Holders, the various banks and other
lending institutions which are parties thereto from time to time, as the
Lenders, First Union Capital Markets, a division of Wheat First Securities,
Inc., as Syndication Agent, and NationsBank, N.A., as agent for the Lenders and
respecting the Security Documents, as agent for the Lenders and the Holders, to
the extent of their interests. Unless otherwise indicated, references in this
Lease to articles, sections, paragraphs, clauses, appendices, schedules and
exhibits are to the same contained in this Lease.
1.2 Interpretation.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Lease.
ARTICLE II
2.1 Property.
Subject to the terms and conditions hereinafter set forth and
contained in the respective Lease Supplement relating to each Property, Lessor
hereby leases to Lessee, TO HAVE AND TO HOLD, unto Lessee for the term set forth
herein, and Lessee hereby leases from Lessor, each Property.
2.2 Lease Term.
The basic term of this Lease with respect to each Property (the
"Basic Term") shall begin upon the Property Closing Date for such Property (in
each case the "Basic Term Commencement Date") and shall end on the third annual
anniversary of the Initial Closing Date (the "Basic Term Expiration Date"),
unless the Basic Term is earlier terminated or the term of this Lease is renewed
(as described below) in accordance with the provisions of this Lease.
Notwithstanding the foregoing, Lessee shall not be obligated to pay Basic Rent
until the Rent Commencement Date with respect to such Property.
To the extent no Default or Event of Default has occurred and is
continuing, and if Lessee has not provided written notice to Lessor at least one
hundred twenty (120) days prior to the first day of the applicable Renewal Term
of its determination to exercise its purchase option or sale option under
Article XX hereof, the term of this Lease for each Property shall be
automatically extended for up to two (2) additional terms each of one (1) year's
duration from the Basic Term Expiration Date (each, a "Renewal Term"); provided,
that the expiration date for the final Renewal Term for each Property shall not
be later than the fifth annual anniversary of the Initial Closing Date, unless
such later expiration date has been expressly agreed to, at the request of
Lessee, in writing by each of Lessor, the Agent, the Lenders and the Holders in
their sole discretion.
2.3 Title.
Each Property is leased to Lessee without any representation or
warranty, express or implied, by Lessor and subject to the rights of parties in
possession (if any), the existing state of title (including without limitation
the Permitted Liens) and all applicable Legal Requirements. Lessee shall in no
event have any recourse against Lessor for any defect in Lessor's title to any
Property or any interest of Lessee therein other than for Lessor Liens.
2.4 Lease Supplements.
On or prior to each Basic Term Commencement Date, Lessee and Lessor shall
each execute and deliver a Lease Supplement for the Property to be leased
effective as of such Basic Term Commencement Date in substantially the form of
Exhibit A hereto.
ARTICLE III
3.1 Rent.
(a) Lessee shall pay Basic Rent in arrears on each Payment Date, and
on any date on which this Lease shall terminate with respect to any or all
Properties during the Term; provided, however, with respect to each
individual Property Lessee shall have no obligation to pay Basic Rent with
respect to such Property until the Rent Commencement Date with respect to
such Property (notwithstanding that Basic Rent for such Property shall
accrue from and including the Scheduled Interest Payment Date immediately
preceding such Rent Commencement Date).
(b) Basic Rent shall be due and payable in lawful money of the United
States and shall be paid by wire transfer of immediately available funds
on the due date therefor (or within the applicable grace period) to such
account or accounts at such bank or banks as Lessor shall from time to
time direct.
(c) Lessee's inability or failure to take possession of all or any
portion of any Property when delivered by Lessor, whether or not
attributable to any act or omission of Lessor, the Construction Agent,
Lessee or any other Person or for any other reason whatsoever, shall not
delay or otherwise affect Lessee's obligation to pay Rent for such
Property in accordance with the terms of this Lease.
(d) Lessee shall make all payments of Rent prior to 12:00 Noon,
Charlotte, North Carolina time, on the applicable date for payment of such
amount.
3.2 Payment of Basic Rent.
Basic Rent shall be paid absolutely net to Lessor or its designee, so
that this Lease shall yield to Lessor the full amount thereof, without setoff,
deduction or reduction.
3.3 Supplemental Rent.
Lessee shall pay to the Person entitled thereto any and all
Supplemental Rent when and as the same shall become due and payable, and if
Lessee fails to pay any Supplemental Rent within three (3) days after the same
is due, Lessor shall have all rights, powers and remedies provided for herein or
by law or equity or otherwise in the case of nonpayment of Basic Rent. All such
payments of Supplemental Rent shall be in the full amount thereof, without
setoff, deduction or reduction. Lessee shall pay to the appropriate Person, as
Supplemental Rent due and owing to such Person, among other things, on demand,
(a) any and all payment obligations (except for amounts payable as Basic Rent)
owing from time to time under the Operative Agreements by any Person to the
Agent, any Lender, any Holder or any other Person, (b) interest at the
applicable Overdue Rate on any installment of Basic Rent not paid when due
(subject to the applicable grace period) for the period for which the same shall
be overdue and on any payment of Supplemental Rent not paid when due or demanded
by the appropriate Person (subject to any applicable grace period) for the
period from the due date or the date of any such demand, as the case may be,
until the same shall be paid and (c) amounts referenced as Supplemental Rent
obligations pursuant to Section 8.3 of the Participation Agreement. It shall be
an additional Supplemental Rent obligation of Lessee to pay to the appropriate
Person all rent and other amounts when such become due and owing from time to
time under each Ground Lease and without the necessity of any notice from Lessor
with regard thereto. The expiration or other termination of Lessee's obligations
to pay Basic Rent hereunder shall not limit or modify the obligations of Lessee
with respect to Supplemental Rent. Unless expressly provided otherwise in this
Lease, in the event of any failure on the part of Lessee to pay and discharge
any Supplemental Rent as and when due, Lessee shall also promptly pay and
discharge any fine, penalty, interest or cost which may be assessed or added for
nonpayment or late payment of such Supplemental Rent, all of which shall also
constitute Supplemental Rent.
3.4 Performance on a Non-Business Day.
If any Basic Rent is required hereunder on a day that is not a
Business Day, then such Basic Rent shall be due on the corresponding Scheduled
Interest Payment Date. If any Supplemental Rent is required hereunder on a day
that is not a Business Day, then such Supplemental Rent shall be due on the next
succeeding Business Day.
3.5 Rent Payment Provisions.
Lessee shall make payment of all Basic Rent and Supplemental Rent
when due (subject to the applicable grace periods) regardless of whether any of
the Operative Agreements pursuant to which same is calculated and is owing shall
have been rejected, avoided or disavowed in any bankruptcy or insolvency
proceeding involving any of the parties to any of the Operative Agreements. Such
provisions of such Operative Agreements and their related definitions are
incorporated herein by reference and shall survive any termination, amendment or
rejection of any such Operative Agreements.
ARTICLE IV
4.1 Taxes; Utility Charges.
Lessee shall pay or cause to be paid all Impositions with respect to
the Properties and/or the use, occupancy, operation, repair, access, maintenance
or operation thereof and all charges for electricity, power, gas, oil, water,
telephone, sanitary sewer service and all other rents, utilities and operating
expenses of any kind or type used in or on any Property and related real
property during the Term. Upon Lessor's request, Lessee shall provide from time
to time Lessor with evidence of all such payments referenced in the foregoing
sentence. Lessee shall be entitled to receive any credit or refund with respect
to any Imposition or utility charge paid by Lessee. Unless an Event of Default
shall have occurred and be continuing, the amount of any credit or refund
received by Lessor on account of any Imposition or utility charge paid by
Lessee, net of the costs and expenses incurred by Lessor in obtaining such
credit or refund, shall be promptly paid over to Lessee. All charges for
Impositions or utilities imposed with respect to any Property for a period
during which this Lease expires or terminates shall be adjusted and prorated on
a daily basis between Lessor and Lessee, and each party shall pay or reimburse
the other for such party's pro rata share thereof.
ARTICLE V
5.1 Quiet Enjoyment.
Subject to the rights of Lessor contained in Sections 17.2, 17.3 and
20.3 and the other terms of this Lease and the other Operative Agreements and so
long as no Event of Default shall have occurred and be continuing, Lessee shall
peaceably and quietly have, hold and enjoy each Property for the applicable
Term, free of any claim or other action by Lessor or anyone rightfully claiming
by, through or under Lessor (other than Lessee) with respect to any matters
arising from and after the applicable Basic Term Commencement Date.
ARTICLE VI
6.1 Net Lease.
This Lease shall constitute a net lease, and the obligations of
Lessee hereunder are absolute and unconditional. Lessee shall pay all operating
expenses arising out of the use, operation and/or occupancy of each Property.
Any present or future law to the contrary notwithstanding, this Lease shall not
terminate, nor shall Lessee be entitled to any abatement, suspension, deferment,
reduction, setoff, counterclaim, or defense with respect to the Rent, nor shall
the obligations of Lessee hereunder be affected (except as expressly herein
permitted and by performance of the obligations in connection therewith) for any
reason whatsoever, including without limitation by reason of: (a) any damage to
or destruction of any Property or any part thereof; (b) any taking of any
Property or any part thereof or interest therein by Condemnation or otherwise;
(c) any prohibition, limitation, restriction or prevention of Lessee's use,
occupancy or enjoyment of any Property or any part thereof, or any interference
with such use, occupancy or enjoyment by any Person or for any other reason; (d)
any title defect, Lien or any matter affecting title to any Property; (e) any
eviction by paramount title or otherwise; (f) any default by Lessor hereunder;
(g) any action for bankruptcy, insolvency, reorganization, liquidation,
dissolution or other proceeding relating to or affecting the Agent, any Lender,
Lessor, Lessee, any Holder or any Governmental Authority; (h) the impossibility
or illegality of performance by Lessor, Lessee or both; (i) any action of any
Governmental Authority or any other Person; (j) Lessee's acquisition of
ownership of all or part of any Property; (k) breach of any warranty or
representation with respect to any Property or any Operative Agreement; (l) any
defect in the condition, quality or fitness for use of any Property or any part
thereof; or (m) any other cause or circumstance whether similar or dissimilar to
the foregoing and whether or not Lessee shall have notice or knowledge of any of
the foregoing. The parties intend that the obligations of Lessee hereunder shall
be covenants, agreements and obligations that are separate and independent from
any obligations of Lessor hereunder and shall continue unaffected unless such
covenants, agreements and obligations shall have been modified or terminated in
accordance with an express provision of this Lease. Lessor and Lessee
acknowledge and agree that the provisions of this Section 6.1 have been
specifically reviewed and subjected to negotiation.
6.2 No Termination or Abatement.
Lessee shall remain obligated under this Lease in accordance with its
terms and shall not take any action to terminate, rescind or avoid this Lease,
notwithstanding any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution, or other proceeding affecting any Person or any
Governmental Authority, or any action with respect to this Lease or any
Operative Agreement which may be taken by any trustee, receiver or liquidator of
any Person or any Governmental Authority or by any court with respect to any
Person, or any Governmental Authority. Lessee hereby waives all right (a) to
terminate or surrender this Lease (except as permitted under the terms of the
Operative Agreements) or (b) to avail itself of any abatement, suspension,
deferment, reduction, setoff, counterclaim or defense with respect to any Rent.
Lessee shall remain obligated under this Lease in accordance with its terms and
Lessee hereby waives any and all rights now or hereafter conferred by statute or
otherwise to modify or to avoid strict compliance with its obligations under
this Lease. Notwithstanding any such statute or otherwise, Lessee shall be bound
by all of the terms and conditions contained in this Lease.
ARTICLE VII
7.1 Ownership of the Properties.
(a) Lessor and Lessee intend that for federal and all state and local
income tax purposes, bankruptcy purposes, regulatory purposes, commercial
law and real estate purposes and all other purposes (other than for
accounting purposes) (A) this Lease will be treated as a financing
arrangement and (B) Lessee will be treated as the owner of the Properties
and will be entitled to all tax benefits ordinarily available to owners of
property similar to the Properties for such tax purposes. Notwithstanding
the foregoing, neither party hereto has made, or shall be deemed to have
made, any representation or warranty as to the availability of any of the
foregoing treatments under applicable accounting rules, tax, bankruptcy,
regulatory, commercial or real estate law or under any other set of rules.
Lessee shall claim the cost recovery deductions associated with each
Property, and Lessor shall not, to the extent not prohibited by Law, take
on its tax return a position inconsistent with Lessee's claim of such
deductions.
(b) For all purposes described in Section 7.1(a), Lessor and Lessee
intend this Lease to constitute a finance lease and not a true lease. In
order to secure the obligations of Lessee now existing or hereafter
arising under any and all Operative Agreements, Lessee hereby conveys,
grants, assigns, transfers, hypothecates, mortgages and sets over to
Lessor, for the benefit of all Financing Parties, a first priority
security interest (but subject to the security interest in the assets
granted by Lessee in favor of the Agent in accordance with the Security
Agreement) in and lien on all right, title and interest of Lessee (now
owned or hereafter acquired) in and to all Properties to the extent such
is personal property (except those instances where Lessee's interest is
not assignable by Law but not excluding interests which are unassignable
pursuant to any applicable contract or agreement) and irrevocably grants
and conveys a lien, deed of trust and mortgage on all right, title and
interest of Lessee (now owned or hereafter acquired) in and to all
Properties to the extent such is a real property. Lessor and Lessee
further intend and agree that, for the purpose of securing the obligations
of Lessee and/or the Construction Agent now existing or hereafter arising
under the Operative Agreements, (i) this Lease shall be a security
agreement and financing statement within the meaning of Article 9 of the
Uniform Commercial Code respecting each of the Properties and all proceeds
(including without limitation insurance proceeds thereof) to the extent
such is personal property (except those instances where Lessee's interest
is not assignable by Law but not excluding interests which are
unassignable pursuant to any applicable contract or agreement) and an
irrevocable grant and conveyance of a lien, deed of trust and mortgage on
each of the Properties and all proceeds (including without limitation
insurance proceeds thereof) to the extent such is real property; (ii) the
acquisition of title (or to the extent applicable, a leasehold interest
pursuant to a Ground Lease) in each Property referenced in Article II
constitutes a grant by Lessee to Lessor of a security interest, lien, deed
of trust and mortgage in all of Lessee's right, title and interest in and
to each Property (except those instances where Lessee's interest is not
assignable by Law but not excluding interests which are unassignable
pursuant to any applicable contract or agreement) and all proceeds
(including without limitation insurance proceeds thereof) of the
conversion, voluntary or involuntary, of the foregoing into cash,
investments, securities or other property, whether in the form of cash,
investments, securities or other property, and an assignment of all rents,
profits and income produced by each Property; and (iii) notifications to
Persons holding such property, and acknowledgments, receipts or
confirmations from financial intermediaries, bankers or agents (as
applicable) of Lessee shall be deemed to have been given for the purpose
of perfecting such lien, security interest, mortgage lien and deed of
trust under applicable law. Lessee shall promptly take such actions as
Lessor may reasonably request (including without limitation the filing of
Uniform Commercial Code Financing Statements, Uniform Commercial Code
Fixture Filings and memoranda (or short forms) of this Lease and the
various Lease Supplements) to ensure that the lien, security interest,
lien, mortgage lien and deed of trust in each Property and the other items
referenced above will be deemed to be a perfected lien, security interest,
mortgage lien and deed of trust of first priority under applicable law and
will be maintained as such throughout the Term.
ARTICLE VIII
8.1 Condition of the Properties.
LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING EACH PROPERTY
"AS-IS WHERE-IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) BY LESSOR (EXCEPT THAT LESSOR SHALL KEEP EACH PROPERTY FREE AND CLEAR
OF LESSOR LIENS) AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF TITLE,
(B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF (IF ANY), (C) ANY STATE OF
FACTS REGARDING ITS PHYSICAL CONDITION OR WHICH AN ACCURATE SURVEY MIGHT SHOW,
(D) ALL APPLICABLE LEGAL REQUIREMENTS AND (E) VIOLATIONS OF LEGAL REQUIREMENTS
WHICH MAY EXIST ON THE DATE HEREOF AND/OR THE DATE OF THE APPLICABLE LEASE
SUPPLEMENT. NEITHER LESSOR NOR THE AGENT NOR ANY LENDER NOR ANY HOLDER HAS MADE
OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) (EXCEPT THAT LESSOR SHALL KEEP EACH PROPERTY FREE AND CLEAR
OF LESSOR LIENS) OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE
TITLE, VALUE, HABITABILITY, USE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY
OR FITNESS FOR USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY OTHER
REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY PROPERTY (OR ANY PART THEREOF), AND NEITHER LESSOR NOR THE AGENT
NOR ANY LENDER NOR ANY HOLDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREON OR THE FAILURE OF ANY PROPERTY, OR ANY PART THEREOF, TO COMPLY
WITH ANY LEGAL REQUIREMENT. LESSEE HAS OR PRIOR TO THE BASIC TERM COMMENCEMENT
DATE WILL HAVE BEEN AFFORDED FULL OPPORTUNITY TO INSPECT EACH PROPERTY AND THE
IMPROVEMENTS THEREON (IF ANY), IS OR WILL BE (INSOFAR AS LESSOR, THE AGENT, EACH
LENDER AND EACH HOLDER ARE CONCERNED) SATISFIED WITH THE RESULTS OF ITS
INSPECTIONS AND IS ENTERING INTO THIS LEASE SOLELY ON THE BASIS OF THE RESULTS
OF ITS OWN INSPECTIONS, AND ALL RISKS INCIDENT TO THE MATTERS DESCRIBED IN THE
PRECEDING SENTENCE, AS BETWEEN LESSOR, THE AGENT, THE LENDERS AND THE HOLDERS,
ON THE ONE HAND, AND LESSEE, ON THE OTHER HAND, ARE TO BE BORNE BY LESSEE.
8.2 Possession and Use of the Properties.
(a) At all times during the Term with respect to each Property, such
Property shall be a Permitted Facility and shall be used by Lessee in the
ordinary course of its business. Lessee shall pay, or cause to be paid,
all charges and costs required in connection with the use of the
Properties as contemplated by this Lease. Lessee shall not commit or
permit any waste of the Properties or any part thereof.
(b) The address stated in Section 29.1 of this Lease is the principal
place of business and chief executive office of Lessee (as such terms are
used in Section 9-103(3) of the Uniform Commercial Code of any applicable
jurisdiction), and Lessee will provide Lessor with prior written notice of
any change of location of its principal place of business or chief
executive office. Regarding a particular Property, each Lease Supplement
correctly identifies the initial location of the related Equipment (if
any) and Improvements (if any) and contains an accurate legal description
for the related parcel of Land or a copy of the Ground Lease (if any). The
Equipment and Improvements respecting each particular Property will be
located only at the location identified in the applicable Lease
Supplement.
(c) Lessee will not attach or incorporate any item of Equipment to or
in any other item of equipment or personal property or to or in any real
property in a manner that could give rise to the assertion of any Lien on
such item of Equipment by reason of such attachment or the assertion of a
claim that such item of Equipment has become a fixture and is subject to a
Lien in favor of a third party that is prior to the Liens thereon created
by the Operative Agreements.
(d) On the Basic Term Commencement Date for each Property, Lessor and
Lessee shall execute a Lease Supplement in regard to such Property which
shall contain an Equipment Schedule that has a general description of the
Equipment which shall comprise the Property, an Improvement Schedule that
has a general description of the Improvements which shall comprise the
Property and a legal description of the Land to be leased hereunder (or in
the case of any Property subject to a Ground Lease to be subleased
hereunder) as of such date. Each Property subject to a Ground Lease shall
be deemed to be ground subleased from Lessor to Lessee as of the Basic
Term Commencement Date, and such ground sublease shall be in effect until
this Lease is terminated or expires, in each case in accordance with the
terms and provisions hereof. Lessee shall satisfy and perform all
obligations imposed on Lessor under each Ground Lease. Simultaneously with
the execution and delivery of each Lease Supplement, such Equipment,
Improvements, Land, ground subleasehold interest, all additional Equipment
and all additional Improvements which are financed under the Operative
Agreements after the Basic Term Commencement Date and the remainder of
such Property shall be deemed to have been accepted by Lessee for all
purposes of this Lease and to be subject to this Lease.
(e) At all times during the Term with respect to each Property,
Lessee will comply with all obligations under and (to the extent no Event
of Default exists and provided that such exercise will not impair the
value, utility or remaining useful life of such Property) shall be
permitted to exercise all rights and remedies under, all operation and
easement agreements and related or similar agreements applicable to such
Property.
8.3 Integrated Properties.
On the Rent Commencement Date for each Property, Lessee shall, at its
sole cost and expense, cause such Property and the applicable property subject
to a Ground Lease to constitute (and for the duration of the Term shall continue
to constitute) all of the equipment, facilities, rights, other personal property
and other real property necessary or appropriate to operate, utilize, maintain
and control a Permitted Facility in a commercially reasonable manner.
ARTICLE IX
9.1 Compliance With Legal Requirements, Insurance Requirements and
Manufacturer's Specifications and Standards.
Subject to the terms of Article XIII relating to permitted contests,
Lessee, at its sole cost and expense, shall (a) comply with all applicable Legal
Requirements (including without limitation all Environmental Laws) and all
Insurance Requirements relating to the Properties, (b) procure, maintain and
comply with all licenses, permits, orders, approvals, consents and other
authorizations required for the acquisition, installation, testing, use,
development, construction, material operation, material maintenance, repair,
refurbishment and restoration of the Properties and (c) comply with all
manufacturer's specifications and standards, including without limitation the
acquisition, installation, testing, use, development, construction, operation,
maintenance, repair, refurbishment and restoration of the Properties, whether or
not compliance therewith shall require structural or extraordinary changes in
any Property or interfere with the use and enjoyment of any Property, unless the
failure to procure, maintain and comply with such items identified in
subparagraphs (b) and (c), individually or in the aggregate, shall not have and
could not reasonably be expected to have a Material Adverse Effect. Lessee shall
notify Lessor and the Agent immediately in detail of any actual or alleged
failure to procure, maintain and comply with such items identified in
subparagraphs (a), (b) and/or (c). Lessor agrees to take such actions as may be
reasonably requested by Lessee in connection with the compliance by Lessee of
its obligations under this Section 9.1.
ARTICLE X
10.1 Maintenance and Repair; Return.
(a) Lessee, at its sole cost and expense, shall maintain each
Property in good condition, repair and working order (ordinary wear and
tear excepted) and in the repair and condition as when originally
delivered to Lessor and make all necessary repairs thereto and
replacements thereof, of every kind and nature whatsoever, whether
interior or exterior, ordinary or extraordinary, structural or
nonstructural or foreseen or unforeseen, in each case as required by
Section 9.1 and on a basis consistent with the operation and maintenance
of properties or equipment comparable in type and function to the
applicable Property, such that such Property is capable of being promptly
utilized by a third party and in compliance with standard industry
practice subject, however, to the provisions of Article XV with respect to
Casualty and Condemnation.
(b) Lessee shall not use or locate any component of any Property
outside of the Approved State therefor. Lessee shall not move or relocate
any component of any Property beyond the boundaries of the Land
(comprising part of such Property) described in the applicable Lease
Supplement, except for the temporary removal of Equipment and other
personal property for repair or replacement.
(c) If any component of any Property becomes worn out, lost,
destroyed, damaged beyond repair or otherwise permanently rendered unfit
for use, Lessee, at its own expense, will within a reasonable time replace
such component with a replacement component which is free and clear of all
Liens (other than Permitted Liens and Lessor Liens) and has a value,
utility and useful life at least equal to the component replaced (assuming
the component replaced had been maintained and repaired in accordance with
the requirements of this Lease). All components which are added to any
Property shall immediately become the property of (and title thereto shall
vest in) Lessor and shall be deemed incorporated in such Property and
subject to the terms of this Lease as if originally leased hereunder.
(d) Lessor and its agents shall have the right from time to time to
conduct inspections of Properties during normal business hours at
reasonable times and, except upon the occurrence and during the
continuation of any Event of Default, without undue disruption of
operations at any such Properties.
(e) [Intentionally Omitted].
(f) Lessor shall under no circumstances be required to build any
improvements or install any equipment on any Property, make any repairs,
replacements, alterations or renewals of any nature or description to any
Property, make any expenditure whatsoever in connection with this Lease or
maintain any Property in any way. Lessor shall not be required to
maintain, repair or rebuild all or any part of any Property, and Lessee
waives the right to (i) require Lessor to maintain, repair, or rebuild all
or any part of any Property, or (ii) make repairs at the expense of Lessor
pursuant to any Legal Requirement, Insurance Requirement, contract,
agreement, covenant, condition or restriction at any time in effect.
(g) Lessee shall, upon the expiration or earlier termination of this
Lease with respect to a Property, if Lessee shall not have exercised its
Purchase Option with respect to such Property and purchased such Property,
surrender such Property (i) pursuant to the exercise of the applicable
remedies upon the occurrence of a Lease Event of Default, to Lessor or
(ii) pursuant to the second paragraph of Section 22.1(a) hereof, to Lessor
or the third party purchaser, as the case may be, subject to Lessee's
obligations under this Lease (including without limitation the obligations
of Lessee at the time of such surrender under Sections 9.1, 10.1(a)
through (f), 10.2, 11.1, 12.1, 22.1 and 23.1).
10.2 Environmental Inspection.
If Lessee has not given notice of exercise of its Purchase Option on
the Expiration Date pursuant to Section 20.1 or for whatever reason Lessee does
not purchase a Property in accordance with the terms of this Lease, then not
more than one hundred twenty (120) days nor less than sixty (60) days prior to
the Expiration Date, Lessee at its expense shall cause to be delivered to Lessor
a Phase I environmental site assessment recently prepared (no more than thirty
(30) days prior to the date of delivery) by an independent recognized
professional reasonably acceptable to Lessor, and in form, scope and content
reasonably satisfactory to Lessor.
ARTICLE XI
11.1 Modifications.
(a) Lessee at its sole cost and expense, at any time and from time to
time without the consent of Lessor may make modifications, alterations,
renovations, improvements and additions to any Property or any part
thereof and substitutions and replacements therefor (collectively,
"Modifications"), and Lessee shall make any and all Modifications required
to be made pursuant to all Legal Requirements, Insurance Requirements and
manufacturer's specifications and standards; provided, that: (i) no
Modification shall materially impair the value, utility or useful life of
any Property from that which existed immediately prior to such
Modification; (ii) each Modification shall be done expeditiously and in a
good and workmanlike manner; (iii) no Modification shall adversely affect
the structural integrity of any Property; (iv) to the extent required by
Section 14.2(a), Lessee shall maintain builders' risk insurance at all
times when a Modification is in progress; (v) subject to the terms of
Article XIII relating to permitted contests, Lessee shall pay all costs
and expenses and discharge any Liens arising with respect to any
Modification; (vi) each Modification shall comply with the requirements of
this Lease (including without limitation Sections 8.2 and 10.1); and (vii)
no Improvement shall be demolished or otherwise rendered unfit for use
unless Lessee shall finance the proposed replacement Modification outside
of this lease facility; provided, further, Lessee shall not make any
Modification (unless required by any Legal Requirement) to the extent any
such Modification, individually or in the aggregate, shall have or could
reasonably be expected to have a Material Adverse Effect. Title to each
Modification shall vest in Lessee to the extent such Modification (t) is
not financed pursuant to the Operative Agreements, (u) is not a fixture or
other real estate interest, (v) is readily removable without causing
material damage to any Property, (w) is not required in order for the
applicable Property to comply with any Legal Requirement, any Insurance
Requirement or any requirement of Section 8.3 of this Lease and (x) is not
necessary to conform to any applicable manufacturer's specification and/or
standard. Title to all other Modifications shall immediately and without
further action upon their incorporation into the applicable Property (1)
become property of Lessor, (2) be subject to this Lease and (3) be titled
in the name of Lessor. Lessee at its sole cost and expense shall repair in
a good and workmanlike manner any and all damage done to any Property due
to the removal, detachment, attempted removal or attempted detachment of
any Modification from a Property and all such repairs shall be completed
by the earlier of (y) thirty (30) days after such removal, detachment,
attempted removal or attempted detachment of the applicable Modification
from the applicable Property and (z) the Expiration Date. Lessee shall not
remove, detach or attempt to remove or detach any Modification from any
Property except in accordance with the provisions of this Section 11.1.
Each Ground Lease for a Property shall expressly provide for the
provisions of the foregoing sentence.
(b) The construction process provided for in the Agency Agreement is
acknowledged by Lessor to be consistent with and in compliance with the
terms and provisions of this Article XI.
ARTICLE XII
12.1 Warranty of Title.
(a) Lessee hereby acknowledges and shall cause title in each Property
(including without limitation all Equipment, all Improvements, all
replacement components to each Property and all Modifications) immediately
and without further action to vest in and become the property of Lessor
and to be subject to the terms of this Lease (provided, respecting each
Property subject to a Ground Lease, Lessor's interest therein is
acknowledged to be a leasehold interest pursuant to such Ground Lease)
from and after the date hereof or such date of incorporation into any
Property. Lessee agrees that, subject to the terms of Article XIII
relating to permitted contests, Lessee shall not directly or indirectly
create or allow to remain, and shall promptly discharge at its sole cost
and expense, any Lien, defect, attachment, levy, title retention agreement
or claim upon any Property, any component thereof or any Modifications or
any Lien, attachment, levy or claim with respect to the Rent or with
respect to any amounts held by Lessor, the Agent, any Lender or any Holder
pursuant to any Operative Agreement, other than Permitted Liens and Lessor
Liens. Lessee shall promptly notify Lessor in the event it receives actual
knowledge that a Lien other than a Permitted Lien or Lessor Lien has
occurred with respect to a Property, the Rent or any other such amounts,
and Lessee represents and warrants to, and covenants with, Lessor that the
Liens in favor of Lessor and/or the Agent created by the Operative
Agreements are (and until the financing parties under the Operative
Agreements have been paid in full shall remain) first priority perfected
Liens subject only to Permitted Liens and Lessor Liens. At all times
subsequent to the Basic Term Commencement Date respecting a Property,
Lessee shall (i) cause a valid, perfected, first priority Lien on each
applicable Property to be in place in favor of the Agent (for the benefit
of the Lenders and the Holders) and (ii) file, or cause to be filed, all
necessary documents under the applicable real property law and Article 9
of the Uniform Commercial Code to perfect such title and Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, expressed or implied, to or
for the performance by any contractor, mechanic, laborer, materialman,
supplier or vendor of any labor or services or for the furnishing of any
materials for any construction, alteration, addition, repair or demolition
of or to any Property or any part thereof. NOTICE IS HEREBY GIVEN THAT
LESSOR IS NOT AND SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS
FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING A PROPERTY OR
ANY PART THEREOF THROUGH OR UNDER LESSEE, AND THAT NO MECHANIC'S OR OTHER
LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT
THE INTEREST OF LESSOR IN AND TO ANY PROPERTY.
ARTICLE XIII
13.1 Permitted Contests Other Than in Respect of Indemnities.
Except to the extent otherwise provided for in Section 11 of the
Participation Agreement, Lessee, on its own or on Lessor's behalf but at
Lessee's sole cost and expense, may contest, by appropriate administrative or
judicial proceedings conducted in good faith and with due diligence, the amount,
validity or application, in whole or in part, of any Legal Requirement,
Imposition or utility charge payable pursuant to Section 4.1 or any Lien,
attachment, levy, encumbrance or encroachment, and Lessor agrees not to pay,
settle or otherwise compromise any such item, provided, that (a) the
commencement and continuation of such proceedings shall suspend the collection
of any such contested amount from, and suspend the enforcement thereof against,
the applicable Properties, Lessor, each Holder, the Agent and each Lender; (b)
there shall not be imposed a Lien (other than Permitted Liens and Lessor Liens)
on any Property and no part of any Property nor any Rent would be in any danger
of being sold, forfeited, lost or deferred; (c) at no time during the permitted
contest shall there be a risk of the imposition of criminal liability or
material civil liability on Lessor, any Holder, the Agent or any Lender for
failure to comply therewith; and (d) in the event that, at any time, there shall
be a material risk of extending the application of such item beyond the end of
the Term, then Lessee shall deliver to Lessor an Officer's Certificate
certifying as to the matters set forth in clauses (a), (b) and (c) of this
Section 13.1. Lessor, at Lessee's sole cost and expense, shall execute and
deliver to Lessee such authorizations and other documents as may reasonably be
required in connection with any such contest and, if reasonably requested by
Lessee, shall join as a party therein at Lessee's sole cost and expense.
13.2 Impositions, Utility Charges, Other Matters;
Compliance with Legal Requirements.
Except with respect to Impositions, Legal Requirements, utility
charges and such other matters referenced in Section 13.1 which are the subject
of ongoing proceedings contesting the same in a manner consistent with the
requirements of Section 13.1, Lessee shall cause (a) all Impositions, utility
charges and such other matters to be timely paid, settled or compromised, as
appropriate, with respect to each Property and (b) each Property to comply with
all applicable Legal Requirements.
ARTICLE XIV
14.1 Public Liability and Workers' Compensation Insurance.
During the Term for each Property, Lessee shall procure and carry, at
Lessee's sole cost and expense, commercial general liability and umbrella
liability insurance for claims for injuries or death sustained by persons or
damage to property while on such Property or respecting the Equipment and such
other public liability coverages as are then customarily carried by similarly
situated companies conducting business similar to that conducted by Lessee. Such
insurance shall be on terms and in amounts that are no less favorable than
insurance maintained by Lessee with respect to similar properties and equipment
that it owns and are then carried by similarly situated companies conducting
business similar to that conducted by Lessee, and in no event shall have a
minimum combined single limit per occurrence coverage (i) for commercial general
liability of less than $1,000,000 and (ii) for umbrella liability of less than
$10,000,000. The policies shall name Lessee as the insured and shall be endorsed
to name Lessor, the Holders, the Agent and the Lenders as additional insureds.
The policies shall also specifically provide that such policies shall be
considered primary insurance which shall apply to any loss or claim before any
contribution by any insurance which Lessor, any Holder, the Agent or any Lender
may have in force. In the operation of the Properties, Lessee shall comply with
applicable workers' compensation laws and protect Lessor, each Holder, the Agent
and each Lender against any liability under such laws.
14.2 Permanent Hazard and Other Insurance.
(a) During the Term for each Property, Lessee shall keep such
Property insured against all risk of physical loss or damage by fire and
other risks and shall maintain builders' risk insurance during
construction of any Improvements or Modifications in each case in amounts
no less than the then current replacement value of such Property (assuming
that such Property was in the condition required by the terms of this
Lease immediately prior to such loss) and on terms that (i) are no less
favorable than insurance covering other similar properties owned by Lessee
and (ii) are then carried by similarly situated companies conducting
business similar to that conducted by Lessee. The policies shall name
Lessee as the insured and shall be endorsed to name Lessor and the Agent
(on behalf of the Lenders and the Holders) as a named additional insured
and lender loss payee, to the extent of their respective interests;
provided, so long as no Event of Default exists, any loss payable under
the insurance policies required by this Section for losses up to
$1,000,000 per loss will be paid to Lessee.
(b) If, during the Term with respect to a Property the area in which
such Property is located is designated a "flood-prone" area pursuant to
the Flood Disaster Protection Act of 1973, or any amendments or
supplements thereto or is in a zone designated A or V, then Lessee shall
comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973. In addition, Lessee will fully comply
with the requirements of the National Flood Insurance Act of 1968 and the
Flood Disaster Protection Act of 1973, as each may be amended from time to
time, and with any other Legal Requirement, concerning flood insurance to
the extent that it applies to any such Property. During the Term, Lessee
shall, in the operation and use of each Property, maintain workers'
compensation insurance consistent with that carried by similarly situated
companies conducting business similar to that conducted by Lessee and
containing minimum liability limits of no less than $100,000. In the
operation of each Property, Lessee shall comply with workers' compensation
laws applicable to Lessee, and protect Lessor, each Holder, the Agent and
each Lender against any liability under such laws.
14.3 Coverage.
(a) As of the date of this Lease and annually thereafter during the
Term, Lessee shall furnish the Agent (on behalf of Lessor and the other
beneficiaries of such insurance coverage) with certificates prepared by
the insurers or insurance broker of Lessee showing the insurance required
under Sections 14.1 and 14.2 to be in effect, naming (to the extent of
their respective interests) Lessor, the Holders, the Agent and the Lenders
as additional insureds and loss payees and evidencing the other
requirements of this Article XIV. All such insurance shall be at the cost
and expense of Lessee and provided by nationally recognized, financially
sound insurance companies having an A+ or better rating by A.M. Best's Key
Rating Guide. Lessee shall cause such certificates to include a provision
for thirty (30) days' advance written notice by the insurer to the Agent
(on behalf of Lessor and the other beneficiaries of such insurance
coverage) in the event of cancellation or material alteration of such
insurance. If an Event of Default has occurred and is continuing and the
Agent (on behalf of Lessor and the other beneficiaries of such insurance
coverage) so requests, Lessee shall deliver to the Agent (on behalf of
Lessor and the other beneficiaries of such insurance coverage) copies of
all insurance policies required by Sections 14.1 and 14.2.
(b) Lessee agrees that the insurance policy or policies required by
Sections 14.1, 14.2(a) and 14.2(b) shall include an appropriate clause
pursuant to which any such policy shall provide that it will not be
invalidated should Lessee or any Contractor, as the case may be, waive, at
any time, any or all rights of recovery against any party for losses
covered by such policy or due to any breach of warranty, fraud, action,
inaction or misrepresentation by Lessee or any Person acting on behalf of
Lessee. Lessee hereby waives any and all such rights against Lessor, the
Holders, the Agent and the Lenders to the extent of payments made to any
such Person under any such policy.
(c) Neither Lessor nor Lessee shall carry separate insurance
concurrent in kind or form or contributing in the event of loss with any
insurance required under this Article XIV, except that Lessor may carry
separate liability insurance at Lessor's sole cost so long as (i) Lessee's
insurance is designated as primary and in no event excess or contributory
to any insurance Lessor may have in force which would apply to a loss
covered under Lessee's policy and (ii) each such insurance policy will not
cause Lessee's insurance required under this Article XIV to be subject to
a coinsurance exception of any kind.
(d) Lessee shall pay as they become due all premiums for the
insurance required by Section 14.1 and Section 14.2, shall renew or
replace each policy prior to the expiration date thereof or otherwise
maintain the coverage required by such Sections without any lapse in
coverage.
ARTICLE XV
15.1 Casualty and Condemnation.
(a) Subject to the provisions of the Agency Agreement and this
Article XV and Article XVI (in the event Lessee delivers, or is obligated
to deliver or is deemed to have delivered, a Termination Notice), and
prior to the occurrence and continuation of a Default or an Event of
Default, Lessee shall be entitled to receive (and Lessor hereby
irrevocably assigns to Lessee all of Lessor's right, title and interest
in) any condemnation proceeds, award, compensation or insurance proceeds
under Sections 14.2(a) or 14.2(b) hereof to which Lessee or Lessor may
become entitled by reason of their respective interests in a Property (i)
if all or a portion of such Property is damaged or destroyed in whole or
in part by a Casualty or (ii) if the use, access, occupancy, easement
rights or title to such Property or any part thereof is the subject of a
Condemnation; provided, however, if a Default or an Event of Default shall
have occurred and be continuing or if such award, compensation or
insurance proceeds shall exceed $1,000,000, then such award, compensation
or insurance proceeds shall be paid directly to Lessor or, if received by
Lessee, shall be held in trust for Lessor, and shall be paid over by
Lessee to Lessor and held in accordance with the terms of this Article XV.
All amounts held by Lessor hereunder on account of any award, compensation
or insurance proceeds either paid directly to Lessor or turned over to
Lessor shall be held as security for the performance of Lessee's
obligations hereunder and under the other Operative Agreements and when
all such obligations of Lessee with respect to such matters (and all other
obligations of Lessee which should have been satisfied pursuant to the
Operative Agreements as of such date) have been satisfied, all amounts so
held by Lessor shall be paid over to Lessee.
(b) Lessee may appear in any proceeding or action to negotiate,
prosecute, adjust or appeal any claim for any award, compensation or
insurance payment on account of any such Casualty or Condemnation and
shall pay all expenses thereof. At Lessee's reasonable request, and at
Lessee's sole cost and expense, Lessor and the Agent shall participate in
any such proceeding, action, negotiation, prosecution or adjustment.
Lessor and Lessee agree that this Lease shall control the rights of Lessor
and Lessee in and to any such award, compensation or insurance payment.
(c) If Lessee shall receive notice of a Casualty or a Condemnation of
a Property or any interest therein where damage to the affected Property
is estimated to equal or exceed twenty-five percent (25%) of the Property
Cost of such Property, Lessee shall give notice thereof to Lessor promptly
after Lessee's receipt of such notice. In the event such a Casualty or
Condemnation occurs (regardless of whether Lessee gives notice thereof),
then Lessee shall be deemed to have delivered a Termination Notice to
Lessor and the provisions of Sections 16.1 and 16.2 shall apply.
(d) In the event of a Casualty or a Condemnation (regardless of
whether notice thereof must be given pursuant to paragraph (c)), this
Lease shall terminate with respect to the applicable Property in
accordance with Section 16.1 if Lessee, within thirty (30) days after such
occurrence, delivers to Lessor a notice to such effect.
(e) If pursuant to this Section 15.1 this Lease shall continue in
full force and effect following a Casualty or Condemnation with respect to
the affected Property, Lessee shall, at its sole cost and expense (subject
to reimbursement in accordance with Section 15.1(a)) promptly and
diligently repair any damage to the applicable Property caused by such
Casualty or Condemnation in conformity with the requirements of Sections
10.1 and 11.1, using the as-built Plans and Specifications or
manufacturer's specifications for the applicable Improvements, Equipment
or other components of the applicable Property (as modified to give effect
to any subsequent Modifications, any Condemnation affecting the applicable
Property and all applicable Legal Requirements), so as to restore the
applicable Property to the same or a greater remaining economic value,
useful life, utility, condition, operation and function as existed
immediately prior to such Casualty or Condemnation (assuming all
maintenance and repair standards have been satisfied). In such event,
title to the applicable Property shall remain with Lessor.
(f) In no event shall a Casualty or Condemnation affect Lessee's
obligations to pay Rent pursuant to Article III.
(g) Notwithstanding anything to the contrary set forth in Section
15.1(a) or Section 15.1(e), if during the Term with respect to a Property
a Casualty occurs with respect to such Property or Lessee receives notice
of a Condemnation with respect to such Property, and following such
Casualty or Condemnation, the applicable Property cannot reasonably be
restored, repaired or replaced on or before the day one hundred eighty
(180) days prior to the Expiration Date or the date nine (9) months after
the occurrence of such Casualty or Condemnation (if such Casualty or
Condemnation occurs during the Term) to the same or a greater remaining
economic value, useful life, utility, condition, operation and function as
existed immediately prior to such Casualty or Condemnation (assuming all
maintenance and repair standards have been satisfied) or on or before such
day such Property is not in fact so restored, repaired or replaced, then
Lessee shall be required to exercise its Purchase Option for such Property
on the next Payment Date (notwithstanding the limits on such exercise
contained in Section 20.2) and pay Lessor the Termination Value for such
Property; provided, if any Default or Event of Default has occurred and is
continuing, Lessee shall also promptly (and in any event within three (3)
Business Days) pay Lessor any award, compensation or insurance proceeds
received on account of any Casualty or Condemnation with respect to any
Property; provided, further, that if no Default or Event of Default has
occurred and is continuing, any Excess Proceeds shall be paid to Lessee.
If a Default or an Event of Default has occurred and is continuing and any
Loans, Holder Advances or other amounts are owing with respect thereto,
then any Excess Proceeds (to the extent of any such Loans, Holder Advances
or other amounts owing with respect thereto) shall be paid to Lessor, held
as security for the performance of Lessee's obligations hereunder and
under the other Operative Agreements and applied to such obligations upon
the exercise of remedies in connection with the occurrence of an Event of
Default, with the remainder of such Excess Proceeds in excess of such
Loans, Holder Advances and other amounts owing with respect thereto being
distributed to the Lessee.
15.2 Environmental Matters.
Promptly upon Lessee's actual knowledge of the presence of Hazardous
Substances in any portion of any Property or Properties in concentrations and
conditions that constitute an Environmental Violation and which, in the
reasonable opinion of Lessee, the cost to undertake any legally required
response, clean up, remedial or other action will or might result in a cost to
Lessee of more than $50,000, Lessee shall notify Lessor in writing of such
condition. In the event of any Environmental Violation (regardless of whether
notice thereof must be given), Lessee shall, not later than thirty (30) days
after Lessee has actual knowledge of such Environmental Violation, either
deliver to Lessor a Termination Notice with respect to the applicable Property
or Properties pursuant to Section 16.1, if applicable, or, at Lessee's sole cost
and expense, promptly and diligently undertake and diligently complete any
response, clean up, remedial or other action (including without limitation the
pursuit by Lessee of appropriate action against any off-site or third party
source for contamination) necessary to remove, cleanup or remediate the
Environmental Violation in accordance with all Environmental Laws. Any such
undertaking shall be timely completed in accordance with prudent industry
standards. If Lessee does not deliver a Termination Notice with respect to such
Property pursuant to Section 16.1, Lessee shall, upon completion of remedial
action by Lessee, cause to be prepared by a reputable environmental consultant
acceptable to Lessor a report describing the Environmental Violation and the
actions taken by Lessee (or its agents) in response to such Environmental
Violation, and a statement by the consultant that the Environmental Violation
has been remedied in full compliance with applicable Environmental Law. Not less
than sixty (60) days prior to any time that Lessee elects to cease operations
with respect to any Property or to remarket any Property pursuant to Section
20.1 hereof or any other provision of any Operative Agreement, Lessee at its
expense shall cause to be delivered to Lessor a Phase I environmental site
assessment respecting such Property recently prepared (no more than thirty (30)
days prior to the date of delivery) by an independent recognized professional
acceptable to Lessor in its reasonable discretion and in form, scope and content
satisfactory to Lessor in its reasonable discretion. Notwithstanding any other
provision of any Operative Agreement, if Lessee fails to comply with the
foregoing obligation regarding the Phase I environmental site assessment, Lessee
shall be obligated to purchase such Property for its Termination Value and shall
not be permitted to exercise (and Lessor shall have no obligation to honor any
such exercise) any rights under any Operative Agreement regarding a sale of such
Property to a Person other than Lessee.
15.3 Notice of Environmental Matters.
Promptly, but in any event within five (5) Business Days from the
date Lessee has actual knowledge thereof, Lessee shall provide to Lessor written
notice of any pending or threatened claim, action or proceeding involving any
Environmental Law or any Release on or in connection with any Property or
Properties. All such notices shall describe in reasonable detail the nature of
the claim, action or proceeding and Lessee's proposed response thereto. In
addition, Lessee shall provide to Lessor, within five (5) Business Days of
receipt, copies of all material written communications with any Governmental
Authority relating to any Environmental Law in connection with any Property.
Lessee shall also promptly provide such detailed reports of any such material
environmental claims as may reasonably be requested by Lessor.
ARTICLE XVI
16.1 Termination Upon Certain Events.
If Lessee has delivered, or is deemed to have delivered, written
notice of a termination of this Lease with respect to the applicable Property to
Lessor in the form described in Section 16.2(a) (a "Termination Notice")
pursuant to the provisions of this Lease, then following the applicable
Casualty, Condemnation or Environmental Violation, this Lease shall terminate
with respect to the affected Property on the applicable Termination Date.
16.2 Procedures.
(a) A Termination Notice shall contain: (i) notice of termination of
this Lease with respect to the affected Property on a Payment Date not
more than sixty (60) days after Lessor's receipt of such Termination
Notice (the "Termination Date"); and (ii) a binding and irrevocable
agreement of Lessee to pay the Termination Value for the applicable
Property and purchase such Property on such Termination Date.
(b) On each Termination Date, Lessee shall pay to Lessor the
Termination Value for the applicable Property, and Lessor shall convey
such Property or the remaining portion thereof, if any, to Lessee (or
Lessee's designee), all in accordance with Section 20.2.
ARTICLE XVII
17.1 Lease Events of Default.
If any one (1) or more of the following events (each a "Lease Event
of Default") shall occur:
(a) Lessee shall fail to make payment of (i) any Basic Rent (except
as set forth in clause (ii)) within three (3) days after the same has
become due and payable or (ii) any Termination Value, on the date any such
payment is due and payable, or any payment of Basic Rent or Supplemental
Rent due on the due date of any such payment of Termination Value, or any
amount due on the Expiration Date;
(b) Lessee shall fail to make payment of any Supplemental Rent (other
than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other
Credit Party shall fail to make any payment of any amount under any
Operative Agreement which has become due and payable within three (3) days
after receipt of notice that such payment is due;
(c) Lessee shall fail to maintain insurance as required by Article
XIV of this Lease or to deliver any requisite annual certificate with
respect thereto within ten (10) days of the date such certificate is due
under the terms hereof;
(d) (i) Lessee shall fail to observe or perform any term, covenant,
obligation or condition of Lessee under this Lease (including without
limitation the Incorporated Covenants) or any other Operative Agreement to
which Lessee is a party other than those set forth in Sections 17.1(a),
(b) or (c) hereof, or any other Credit Party shall fail to observe or
perform any term, covenant, obligation or condition of such Credit Party
under any Operative Agreement other than those set forth in Section
17.1(b) hereof and such failure shall continue for twenty (20) days (or
with respect to the Incorporated Covenants, the grace period, if any,
applicable thereto) after notice thereof to the Lessee or such Credit
Party, or (ii) any representation or warranty made by Lessee or any other
Credit Party set forth in this Lease (including without limitation the
Incorporated Representation and Warranties) or in any other Operative
Agreement or in any document entered into in connection herewith or
therewith or in any document, certificate or financial or other statement
delivered in connection herewith or therewith shall be false or inaccurate
in any material way when made;
(e) An Agency Agreement Event of Default shall have occurred and be
continuing;
(f) The default of any Credit Party in the payment or performance of
any terms of (i) any lease of a Health Care Facility or Indebtedness
secured by real property, whether now or hereafter entered into, or (ii)
any other obligation or indebtedness to another of Five Hundred Thousand
Dollars ($500,000) or more, whether now or hereafter incurred;
(g) [Intentionally Omitted];
(h) [Intentionally Omitted];
(i) [Intentionally Omitted];
(j) [Intentionally Omitted];
(k) Any report, certificate, financial statement or other instrument
delivered to Lessor by or on behalf of any Credit Party pursuant to the
terms of this Lease or any other Operative Agreement is false or
misleading in any material respect when made or delivered;
(l) Any Lessee Credit Agreement Event of Default shall have occurred
and be continuing and shall not have been waived;
(m) If any Credit Party becomes insolvent, bankrupt or generally
fails to pay its debts as such debts become due; or is adjudicated
insolvent or bankrupt; or admits in writing its inability to pay its
debts; or shall suffer a custodian, receiver or trustee for it or
substantially all of its property to be appointed and if appointed without
its consent, not be discharged within thirty (30) days; or makes an
assignment for the benefit of creditors; or suffers proceedings under any
law related to bankruptcy, insolvency, liquidation or the reorganization,
readjustment or the relief of debtors to be instituted against it and if
contested by it not dismissed or stayed within thirty (30) days; or if
proceedings under any law related to bankruptcy, insolvency, liquidation,
or the reorganization, readjustment or the relief of debtors is instituted
or commenced by any Credit Party; of if any order for relief is entered
relating to any of the foregoing proceedings; or if any Credit Party shall
call a meeting of its creditors with a view to arranging a composition or
adjustment of its debts; or if any Credit Party shall by any act or
failure to act indicate its consent to, approval of or acquiescence in any
of the foregoing;
(n) If (i) any person or group within the meaning of Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended (the "1934 Act") and
the rules and regulations promulgated thereunder (other that (x) J.
Xxxxxxx Xxxxx and members of his immediate family or trust for the benefit
of such family members, (y) South Atlantic Venture Fund II, Limited
Partnership and South Atlantic Venture Fund III, Limited Partnership, and
(z) Welsh, Carson, Xxxxxxxx & Xxxxx VI, L.P., WCAS Capital Partners II,
L.P., WCAS Health Care Partners, L.P. and CID Equity Capital III, L.P.)
shall have beneficial ownership (within the meaning of Rule 13d-3 of the
1934 Act), directly or indirectly, of securities of Lessee (or other
securities convertible into such securities within the time specified in
Rule 13d-3 of the 0000 Xxx) representing ten percent (10%) or more of the
combined voting power of all securities of Lessee entitled to vote in the
election of directors (hereinafter called a "Controlling Person"); or (ii)
a majority of the board of directors of Lessee shall cease for any reason
to consist of (A) individuals who on the date hereof were serving as
directors of any Credit Party and (B) individuals who subsequently become
members of the Board if such individuals' nominations for election or
elections to the Board are recommended or approved by a majority of the
Board of Directors of Lessee. For purposes of clause (i) above, a person
or group shall not be a Controlling Person if such person or group holds
voting power in good faith, and not for the purpose of circumventing this
Paragraph 17.1 (n) as an agent, bank, broker, nominee, trustee, or holder
of revocable proxies given in response to a solicitation pursuant to the
1934 Act, for one or more beneficial owners who do not individually, or if
they are a group acting in concert, as a group, have the voting power
specified in clause (i) above;
(o) If J. Xxxxxxx Xxxxx shall cease to be Chief Executive Officer of
Lessee, provided that if such cessation of service is as a result of death
or permanent disability then there shall be no Lease Event of Default
under this Section 17.1(o) if a replacement is named within thirty (30)
days of such death or permanent disability and Majority Secured Parties
have not given written notice to Lessee of their objection to such
replacement within fifteen (15) days after such naming;
(p) Any Operative Agreement shall cease to be in full force and
effect;
(q) Except as to any Credit Party which is released in connection
with the Operative Agreements, the guaranty given by any Guarantor under
the Participation Agreement or any material provision thereof shall cease
to be in full force and effect, or any Guarantor or any Person acting by
or on behalf of such Guarantor shall deny or disaffirm such Guarantor's
obligations under such guaranty, or any Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part
to be performed or observed pursuant to any guaranty;
(r) If any Credit Party shall default in or fail to observe at any
test date the covenants set forth in Paragraph 5.9(a)(ii), Paragraphs 5.15
through 5.17 of the Lessee Credit Agreement or Section Six of the Lessee
Credit Agreement (in each case as such have been incorporated by reference
into this Lease pursuant to Section 28.1);
(s) If Lessee shall cease to own directly or indirectly one hundred
percent (100%) of each other Credit Party;
(t) If custody or control of any substantial part of the property of
any Credit Party shall be assumed by any governmental agency or any court
of competent jurisdiction at the instance of any governmental agency; if
any License to operate a Health Care Facility or any other material
License shall be suspended, revoked, not renewed at expiration or
otherwise terminated (other than suspensions of Licenses that do not and
are not reasonably expected to prevent the legal operation of the affected
Health Care Facility, affect the ability of the Credit Parties to receive
reimbursement with respect to such operations, or otherwise have a
Material Adverse Effect); or if any governmental regulatory authority or
judicial body shall make any other final non-appealable determination
which, in any of the foregoing instances, might reasonably be expected to
have a Material Adverse Effect;
(u) If judgment, writ, warrant or attachment or execution or similar
process which calls for payment or presents liability in excess of Five
Hundred Thousand Dollars ($500,000) shall be rendered, issued or levied
against any Credit Party or its respective property and such process shall
not be paid, waived, stayed, vacated, discharged, settled, satisfied or
fully bonded within sixty (60) days after its issuance or levy;
(v) If any event or condition shall occur or exist with respect to
any activity or substance regulated under the Environmental Control
Statutes and as a result of such event or condition, Credit Parties (or
any of them) have incurred or in the opinion of the Majority Secured
Parties are reasonably likely to incur a liability or liabilities in
excess of Five Hundred Thousand Dollars ($500,000) during any consecutive
twelve (12) month period;
then, in any such event, Lessor may, in addition to the other rights and
remedies provided for in this Article XVII and in Section 18.1, terminate this
Lease by giving Lessee five (5) days notice of such termination (provided,
notwithstanding the foregoing, this Lease shall be deemed to be automatically
terminated without the giving of notice upon the occurrence of a Lease Event of
Default under Sections 17.1(g), (h) or (i)), and this Lease shall terminate, and
all rights of Lessee under this Lease shall cease. Lessee shall, to the fullest
extent permitted by law, pay as Supplemental Rent all costs and expenses
incurred by or on behalf of Lessor or any other Financing Party, including
without limitation reasonable fees and expenses of counsel, as a result of any
Lease Event of Default hereunder.
A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A POWER OF SALE MAY ALLOW
LESSOR TO TAKE THE PROPERTIES AND SELL THE PROPERTIES WITHOUT GOING TO COURT IN
A FORECLOSURE ACTION UPON THE OCCURRENCE OF A LEASE EVENT OF DEFAULT.
17.2 Surrender of Possession.
If a Lease Event of Default shall have occurred and be continuing,
and whether or not this Lease shall have been terminated pursuant to Section
17.1, Lessee shall, upon thirty (30) days written notice, surrender to Lessor
possession of the Properties. Lessor may enter upon and repossess the Properties
by such means as are available at law or in equity, and may remove Lessee and
all other Persons and any and all personal property and Lessee's equipment and
personalty and severable Modifications from the Properties. Lessor shall have no
liability by reason of any such entry, repossession or removal performed in
accordance with applicable law. Upon the written demand of Lessor, Lessee shall
return the Properties promptly to Lessor, in the manner and condition required
by, and otherwise in accordance with the provisions of, Section 22.1(c) hereof.
17.3 Reletting.
If a Lease Event of Default shall have occurred and be continuing,
and whether or not this Lease shall have been terminated pursuant to Section
17.1, Lessor may, but shall be under no obligation to, relet any or all of the
Properties, for the account of Lessee or otherwise, for such term or terms
(which may be greater or less than the period which would otherwise have
constituted the balance of the Term) and on such conditions (which may include
concessions or free rent) and for such purposes as Lessor may determine, and
Lessor may collect, receive and retain the rents resulting from such reletting.
Lessor shall not be liable to Lessee for any failure to relet any Property or
for any failure to collect any rent due upon such reletting.
17.4 Damages.
Neither (a) the termination of this Lease as to all or any of the
Properties pursuant to Section 17.1; (b) the repossession of all or any of the
Properties; nor (c) the failure of Lessor to relet all or any of the Properties,
the reletting of all or any portion thereof, nor the failure of Lessor to
collect or receive any rentals due upon any such reletting, shall relieve Lessee
of its liabilities and obligations hereunder, all of which shall survive any
such termination, repossession or reletting. If any Lease Event of Default shall
have occurred and be continuing and notwithstanding any termination of this
Lease pursuant to Section 17.1, Lessee shall forthwith pay to Lessor all Rent
and other sums due and payable hereunder to and including without limitation the
date of such termination. Thereafter, on the days on which the Basic Rent or
Supplemental Rent, as applicable, are payable under this Lease or would have
been payable under this Lease if the same had not been terminated pursuant to
Section 17.1 and until the end of the Term hereof or what would have been the
Term in the absence of such termination, Lessee shall pay Lessor, as current
liquidated damages (it being agreed that it would be impossible accurately to
determine actual damages) an amount equal to the Basic Rent and Supplemental
Rent that are payable under this Lease or would have been payable by Lessee
hereunder if this Lease had not been terminated pursuant to Section 17.1, less
the net proceeds, if any, which are actually received by Lessor with respect to
the period in question of any reletting of any Property or any portion thereof;
provided, that Lessee's obligation to make payments of Basic Rent and
Supplemental Rent under this Section 17.4 shall continue only so long as Lessor
shall not have received the amounts specified in Section 17.6. In calculating
the amount of such net proceeds from reletting, there shall be deducted all of
Lessor's, any Holder's, the Agent's and any Lender's reasonable expenses in
connection therewith, including without limitation repossession costs, brokerage
or sales commissions, fees and expenses for counsel and any necessary repair or
alteration costs and expenses incurred in preparation for such reletting. To the
extent Lessor receives any damages pursuant to this Section 17.4, such amounts
shall be regarded as amounts paid on account of Rent. Lessee specifically
acknowledges and agrees that its obligations under this Section 17.4 shall be
absolute and unconditional under any and all circumstances and shall be paid
and/or performed, as the case may be, without notice or demand and without any
abatement, reduction, diminution, setoff, defense, counterclaim or recoupment
whatsoever.
17.5 Power of Sale.
Without limiting any other remedies set forth in this Lease, in the
event that a court of competent jurisdiction rules that this Lease constitutes a
mortgage, deed of trust or other secured financing as is the intent of the
parties, then Lessor and Lessee agree that Lessee has granted, pursuant to
Section 7.1(b) hereof and each Lease Supplement, a Lien against the Properties
WITH POWER OF SALE, and that, upon the occurrence and during the continuance of
any Lease Event of Default, Lessor shall have the power and authority, to the
extent provided by law, after prior notice and lapse of such time as may be
required by law, to foreclose its interest (or cause such interest to be
foreclosed) in all or any part of the Properties.
17.6 Final Liquidated Damages.
If a Lease Event of Default shall have occurred and be continuing,
whether or not this Lease shall have been terminated pursuant to Section 17.1
and whether or not Lessor shall have collected any current liquidated damages
pursuant to Section 17.4, Lessor shall have the right to recover, by demand to
Lessee and at Lessor's election, and Lessee shall pay to Lessor, as and for
final liquidated damages, but exclusive of the indemnities payable under Section
11 of the Participation Agreement (which, if requested, shall be paid
concurrently), and in lieu of all current liquidated damages beyond the date of
such demand (it being agreed that it would be impossible accurately to determine
actual damages) the Termination Value. Upon payment of the amount specified
pursuant to the first sentence of this Section 17.6, Lessee shall be entitled to
receive from Lessor, either at Lessee's request or upon Lessor's election, in
either case at Lessee's cost, an assignment of Lessor's entire right, title and
interest in and to the Properties, Improvements, Fixtures, Modifications,
Equipment and all components thereof, in each case in recordable form and
otherwise in conformity with local custom and free and clear of the Lien of this
Lease (including without limitation the release of any memoranda of Lease and/or
the Lease Supplement recorded in connection therewith) and any Lessor Liens. The
Properties shall be conveyed to Lessee "AS-IS, WHERE-IS" and in their then
present physical condition. If any statute or rule of law shall limit the amount
of such final liquidated damages to less than the amount agreed upon, Lessor
shall be entitled to the maximum amount allowable under such statute or rule of
law; provided, however, Lessee shall not be entitled to receive an assignment of
Lessor's interest in the Properties, the Improvements, Fixtures, Modifications,
Equipment or the components thereof unless Lessee shall have paid in full the
Termination Value. Lessee specifically acknowledges and agrees that its
obligations under this Section 17.6 shall be absolute and unconditional under
any and all circumstances and shall be paid and/or performed, as the case may
be, without notice or demand and without any abatement, reduction, diminution,
setoff, defense, counterclaim or recoupment whatsoever.
17.7 Environmental Costs.
If a Lease Event of Default shall have occurred and be continuing,
and whether or not this Lease shall have been terminated pursuant to Section
17.1, Lessee shall pay directly to any third party (or at Lessor's election,
reimburse Lessor) for the cost of any environmental testing and/or remediation
work undertaken respecting any Property, as such testing or work is deemed
appropriate in the reasonable judgment of Lessor. Lessee shall pay all amounts
referenced in the immediately preceding sentence within ten (10) days of any
request by Lessor for such payment. The provisions of this Section 17.7 shall
not limit the obligations of Lessee under any Operative Agreement regarding
indemnification obligations, environmental testing, remediation and/or work.
17.8 Waiver of Certain Rights.
If this Lease shall be terminated pursuant to Section 17.1, Lessee
waives, to the fullest extent permitted by Law, (a) any notice of re-entry or
the institution of legal proceedings to obtain re-entry or possession; (b) any
right of redemption, re-entry or possession; (c) the benefit of any laws now or
hereafter in force exempting property from liability for rent or for debt; and
(d) any other rights which might otherwise limit or modify any of Lessor's
rights or remedies under this Article XVII.
17.9 Assignment of Rights Under Contracts.
If a Lease Event of Default shall have occurred and be continuing,
and whether or not this Lease shall have been terminated pursuant to Section
17.1, Lessee shall upon Lessor's demand immediately assign, transfer and set
over to Lessor all of Lessee's right, title and interest in and to each
agreement executed by Lessee in connection with the acquisition, installation,
testing, use, development, construction, operation, maintenance, repair,
refurbishment and restoration of the Properties (including without limitation
all right, title and interest of Lessee with respect to all warranty,
performance, service and indemnity provisions), as and to the extent that the
same relate to the acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment and restoration of
the Properties or any of them.
17.10Remedies Cumulative.
The remedies herein provided shall be cumulative and in addition to
(and not in limitation of) any other remedies available at law, equity or
otherwise, including without limitation any mortgage foreclosure remedies.
ARTICLE XVIII
18.1 Lessor's Right to Cure Lessee's Lease Defaults.
Lessor, without waiving or releasing any obligation or Lease Event of
Default, may (but shall be under no obligation to) remedy any Lease Event of
Default for the account and at the sole cost and expense of Lessee, including
without limitation the failure by Lessee to maintain the insurance required by
Article XIV, and may, to the fullest extent permitted by law, and
notwithstanding any right of quiet enjoyment in favor of Lessee, enter upon any
Property, and take all such action thereon as may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of any lessee. All
out-of-pocket costs and expenses so incurred (including without limitation fees
and expenses of counsel), together with interest thereon at the Overdue Rate
from the date on which such sums or expenses are paid by Lessor, shall be paid
by Lessee to Lessor on demand.
ARTICLE XIX
19.1 Provisions Relating to Lessee's Exercise of its Purchase Option.
Subject to Section 19.2, in connection with any termination of this
Lease with respect to any Property pursuant to the terms of Section 16.2, or in
connection with Lessee's exercise of its Purchase Option, upon the date on which
this Lease is to terminate with respect to any Property, and upon tender by
Lessee of the amounts set forth in Sections 16.2(b) or 20.2, as applicable,
Lessor shall execute and deliver to Lessee (or to Lessee's designee) at Lessee's
cost and expense an assignment (by deed or other appropriate instrument) of
Lessor's entire interest in such Property, in each case in recordable form and
otherwise in conformity with local custom and free and clear of any Lessor Liens
attributable to Lessor but without any other warranties (of title or otherwise)
from Lessor. Such Property shall be conveyed to Lessee "AS-IS, "WHERE-IS" and in
then present physical condition.
19.2 No Purchase or Termination With Respect to Less than
All of a Property.
Lessee shall not be entitled to exercise its Purchase Option or the Sale
Option separately with respect to a portion of any Property consisting of Land,
Equipment, Improvements and/or any interest pursuant to a Ground Lease but shall
be required to exercise its Purchase Option or the Sale Option with respect to
an entire Property.
ARTICLE XX
20.1 Purchase Option or Sale Option-General Provisions.
Not less than one hundred twenty (120) days and no more than one
hundred eighty (180) days prior to the Expiration Date or (respecting the
Purchase Option only) any Payment Date (such Expiration Date or, respecting the
Purchase Option only, any such Payment Date being hereinafter referred to as the
"Election Date"), Lessee may give Lessor irrevocable written notice (the
"Election Notice") that Lessee is electing to exercise either (a) with respect
to an Election Notice given in connection with any Payment Date prior to the
Expiration Date only, the option to purchase one or more Properties; provided,
Lessee may not make the election under this Section 20.1(a) unless (i) no
Default or Event of Default shall have occurred and be continuing, either at the
date any such election is made or at the applicable Election Date (other than
those that will be cured by the payment of the Termination Value for all the
Properties) and (ii) the aggregate Property Cost of all Properties to be
purchased on the applicable Election Date plus the aggregate Property Cost of
all Properties previously purchased by Lessee and/or the Construction Agent from
Lessor shall not exceed an amount (the "Early Purchase Cap") equal to the
product of (A) the aggregate Property Cost (up to and including the date any
such Election Date is specified by Lessee) for all Properties then subject to
this Lease and all properties which were previously Properties subject to this
Lease (including without limitation any and all Properties previously purchased
by Lessee and/or the Construction Agent) multiplied by (B) twenty-five percent
(25%), (b) with respect to an Election Notice given in connection with the
Expiration Date only, the option to purchase all, but not less than all, the
Properties on the Expiration Date or (c) with respect to an Election Notice
given in connection with the Expiration Date only, the option to remarket all,
but not less than all, the Properties to a Person other than Lessee or any
Affiliate of Lessee and cause a sale of such Properties to occur on the
Expiration Date pursuant to the terms of Section 22.1 (the "Sale Option"). If
Lessee does not give an Election Notice indicating the Purchase Option or the
Sale Option within the allotted period of time prior to the Expiration Date
specified above in this Section 20.1, then unless such Expiration Date is the
final Expiration Date to which the Term may be extended, the term of this Lease
shall be extended in accordance with Section 2.2 hereof; if such Expiration Date
is the final Expiration Date, then Lessee shall be deemed to have elected the
Purchase Option. If Lessee shall either (i) elect (or be deemed to have elected)
to exercise the Purchase Option or (ii) elect the Sale Option and fail to cause
all, but not less than all, the Properties to be sold in accordance with the
terms of Section 22.1 on the Expiration Date, then in either case, Lessee shall
pay to Lessor on the applicable Election Date an amount equal to the Termination
Value for all, but not less than all, the Properties (which the parties do not
intend to be a "bargain" purchase) and, upon receipt of such amounts and
satisfaction of such obligations, Lessor shall transfer to Lessee all of
Lessor's right, title and interest in and to all, but not less than all, the
Properties in accordance with Section 20.2.
If Lessor, in its sole discretion, permits Lessee to purchase one or
more Properties prior to the Expiration Date in excess of the Early Purchase
Cap, then such purchase shall occur on an Election Date. On or prior to the
applicable Election Date, Lessee shall provide to Lessor and the Agent
Appraisals for Properties which remain subject to this Lease after such Election
Date evidencing an aggregate appraised value of such Properties equal to or in
excess of seventy-five percent (75%) of the aggregate Property Cost.
20.2 Lessee Purchase Option.
Provided, no Default or Event of Default shall have occurred and be
continuing (other than those that will be cured by the payment of the
Termination Value for all the Properties) and provided, that the Election Notice
has been appropriately given specifying the Purchase Option, Lessee shall
purchase (x) (in the case of Lessee's election of the Purchase Option on a date
prior to the Expiration Date) the Properties designated for purchase in such
election and (y) (in the case of Lessee's election of the Purchase Option on the
Expiration Date) all the Properties on the Expiration Date at a price equal to
the Termination Value for all the Properties (which the parties do not intend to
be a "bargain" purchase price).
Subject to Section 19.2, in connection with any termination of this
Lease with respect to any Property pursuant to the terms of Section 16.2, or in
connection with Lessee's exercise of its Purchase Option, upon the date on which
this Lease is to terminate with respect to a Property or all of the Properties,
and upon tender by Lessee of the amounts set forth in Section 16.2(b) or this
Section 20.2, as applicable, Lessor shall execute, acknowledge (where required)
and deliver to Lessee, at Lessee's cost and expense, each of the following: (a)
a termination or assignment (as requested by the Lessee) of each applicable
Ground Lease and special or limited warranty Deeds conveying each Property (to
the extent it is real property not subject to a Ground Lease) to Lessee free and
clear of the Lien of this Lease, the Lien of the Credit Documents and any Lessor
Liens; (b) a Xxxx of Sale conveying each Property (to the extent it is personal
property) to Lessee free and clear of the Lien of this Lease, the Lien of the
Credit Documents and any Lessor Liens; (c) any real estate tax affidavit or
other document required by law to be executed and filed in order to record the
applicable Deed and/or the applicable Ground Lease termination; and (d) FIRPTA
affidavits. All of the foregoing documentation must be in form and substance
reasonably satisfactory to Lessor. The applicable Property shall be conveyed to
Lessee "AS-IS, WHERE-IS" and in then present physical condition.
If any Property is the subject of remediation efforts respecting
Hazardous Substances at the applicable Election Date which could materially and
adversely impact the Fair Market Sales Value of such Property (with materiality
determined in Lessor's discretion), then Lessee shall be obligated to repurchase
each such Property pursuant to Section 20.2.
On the applicable Election Date on which Lessee has elected to
exercise its Purchase Option, Lessee shall pay (or cause to be paid) to Lessor,
the Agent and all other parties, as appropriate, the sum of all costs and
expenses incurred by any such party in connection with the election by Lessee to
exercise its Purchase Option and all Rent and all other amounts then due and
payable or accrued under this Lease and/or any other Operative Agreement.
20.3 Third Party Sale Option.
(a) Provided, that (i) no Default or Event of Default shall have
occurred and be continuing and (ii) the Election Notice has been
appropriately given specifying the Sale Option, Lessee shall undertake to
cause a sale of the Properties on the Expiration Date (all as specified in
the Election Notice) in accordance with the provisions of Section 22.1
hereof.
(b) In the event Lessee exercises the Sale Option then, as soon as
practicable and in all events not less than sixty (60) days prior to the
Expiration Date, Lessee at its expense shall cause to be delivered to
Lessor a Phase I environmental site assessment for each of the Properties
recently prepared (no more than thirty (30) days old prior to the Sale
Date) by an independent recognized professional reasonably acceptable to
Lessor and in form, scope and content reasonably satisfactory to Lessor.
In the event that Lessor shall not have received such environmental site
assessment by the date sixty (60) days prior to the Expiration Date or in
the event that such environmental assessment shall reveal the existence of
any material violation of Environmental Laws, other material Environmental
Violation or potential material Environmental Violation (with materiality
determined in each case by Lessor in its reasonable discretion), then
Lessee on the Expiration Date shall pay to Lessor an amount equal to the
Termination Value for all the Properties and any and all other amounts due
and owing hereunder. Upon receipt of such payment and all other amounts
due under the Operative Agreements, Lessor shall transfer to Lessee all of
Lessor's right, title and interest in and to all the Properties in
accordance with Section 19.1.
ARTICLE XXI
21.1 [Intentionally Omitted].
ARTICLE XXII
22.1 Sale Procedure.
(a) During the Marketing Period, Lessee, on behalf of Lessor, shall
obtain bids for the cash purchase of all the Properties in connection with
a sale to one (1) or more third party purchasers to be consummated on the
Expiration Date or such earlier date as is acceptable to the Agent and the
Lessee (the "Sale Date") for the highest price available, shall notify
Lessor promptly of the name and address of each prospective purchaser and
the cash price which each prospective purchaser shall have offered to pay
for each such Property and shall provide Lessor with such additional
information about the bids and the bid solicitation procedure as Lessor
may reasonably request from time to time. All such prospective purchasers
must be Persons other than Lessee or any Affiliate of Lessee. On the Sale
Date, Lessee shall pay (or cause to be paid) to Lessor and all other
parties, as appropriate, the sum of all costs and expenses incurred by
Lessor and/or the Agent (as the case may be) in connection with such sale
of one or more Properties, all Rent and all other amounts then due and
payable or accrued under this Lease and/or any other Operative Agreement.
Lessor may reject any and all bids and may solicit and obtain bids by
giving Lessee written notice to that effect; provided, however, that
notwithstanding the foregoing, Lessor may not reject the bids submitted by
Lessee if such bids, in the aggregate, are greater than or equal to the
sum of the Limited Recourse Amount for all the Properties, and represent
bona fide offers from one (1) or more third party purchasers. If the
highest price which a prospective purchaser or the prospective purchasers
shall have offered to pay for all the Properties on the Sale Date is less
than the sum of the Limited Recourse Amount for all the Properties or if
such bids do not represent bona fide offers from one (1) or more third
parties or if there are no bids, Lessor may elect to retain one or more of
the Properties by giving Lessee prior written notice of Lessor's election
to retain the same, and promptly upon receipt of such notice, Lessee shall
surrender, or cause to be surrendered, each of the Properties specified in
such notice in accordance with the terms and conditions of Section 10.1.
Upon acceptance of any bid, Lessor agrees, at Lessee's request and
expense, to execute a contract of sale with respect to such sale, so long
as the same is consistent with the terms of this Article 22 and provides
by its terms that it is nonrecourse to Lessor.
Unless Lessor shall have elected to retain one or more of the
Properties pursuant to the provisions of the preceding paragraph, Lessee
shall arrange for Lessor to sell all the Properties free and clear of the
Lien of this Lease and any Lessor Liens attributable to Lessor, without
recourse or warranty (of title or otherwise), for cash on the Sale Date to
the purchaser or purchasers offering the highest cash sales price, as
identified by Lessee or Lessor, as the case may be; provided, however,
solely as to Lessor or the Trust Company, in its individual capacity, any
Lessor Lien shall not constitute a Lessor Lien so long as Lessor or the
Trust Company, in its individual capacity, is diligently and in good faith
contesting, at the cost and expense of Lessor or the Trust Company, in its
individual capacity, such Lessor Lien by appropriate proceedings in which
event the applicable Sale Date, all without penalty or cost to Lessee,
shall be delayed for the period of such contest. To effect such transfer
and assignment, Lessor shall execute, acknowledge (where required) and
deliver to the appropriate purchaser each of the following: (a) special or
limited warranty Deeds conveying each such Property (to the extent it is
real property titled to Lessor) and an assignment of the Ground Lease
conveying the leasehold interest of Lessor in each such Property (to the
extent it is real property and subject to a Ground Lease) to the
appropriate purchaser free and clear of the Lien of this Lease, the Lien
of the Credit Documents and any Lessor Liens; (b) a Xxxx of Sale conveying
each such Property (to the extent it is personal property) titled to
Lessor to the appropriate purchaser free and clear of the Lien of this
Lease, the Lien of the Credit Documents and any Lessor Liens; (c) any real
estate tax affidavit or other document required by law to be executed and
filed in order to record each Deed and/or each Ground Lease assignment;
and (d) FIRPTA affidavits, as appropriate. All of the foregoing
documentation must be in form and substance reasonably satisfactory to
Lessor. Lessee shall surrender the Properties so sold or subject to such
documents to each purchaser in the condition specified in Section 10.1, or
in such other condition as may be agreed between Lessee and such
purchaser. Lessee shall not take or fail to take any action which would
have the effect of unreasonably discouraging bona fide third party bids
for any Property. If each of the Properties is not either (i) sold on the
Sale Date in accordance with the terms of this Section 22.1, or (ii)
retained by Lessor pursuant to an affirmative election made by Lessor
pursuant to the second sentence of the second paragraph of this Section
22.1(a), then (x) Lessee shall be obligated to pay Lessor on the Sale Date
an amount equal to the aggregate Termination Value for all the Properties
less any sales proceeds received by the Lessor, and (y) Lessor shall
transfer each applicable Property to Lessee in accordance with Section
20.2.
(b) If the Properties are sold on a Sale Date to one (1) or more
third party purchasers in accordance with the terms of Section 22.1(a) and
the aggregate purchase price paid for all the Properties is less than the
sum of the aggregate Property Cost for all the Properties (hereinafter
such difference shall be referred to as the "Deficiency Balance"), then
Lessee hereby unconditionally promises to pay to Lessor on the Sale Date
the lesser of (i) the Deficiency Balance, or (ii) the Maximum Residual
Guarantee Amount for all the Properties. On a Sale Date if (x) Lessor
receives the aggregate Termination Value for all the Properties from one
(1) or more third party purchasers, (y) Lessor and such other parties
receive all other amounts specified in the last sentence of the first
paragraph of Section 22.1(a) and (z) the aggregate purchase price paid for
all the Properties on such date exceeds the sum of the aggregate Property
Cost for all the Properties, then Lessee may retain such excess. If one or
more of the Properties are retained by Lessor pursuant to an affirmative
election made by Lessor pursuant to the provisions of Section 22.1(a),
then Lessee hereby unconditionally promises to pay to Lessor on the Sale
Date an amount equal to the Maximum Residual Guarantee Amount for the
Properties so retained. Any payment of the foregoing amounts described in
this Section 22.1(b) shall be made together with a payment of all other
amounts referenced in the last sentence of the first paragraph of Section
22.1(a).
(c) In the event that all the Properties are either sold to one (1)
or more third party purchasers on the Sale Date or retained by Lessor in
connection with an affirmative election made by Lessor pursuant to the
provisions of Section 22.1(a), then in either case on the applicable Sale
Date Lessee shall provide Lessor or such third party purchaser (unless
otherwise agreed by such third party purchaser) with (i) all permits,
certificates of occupancy, governmental licenses and authorizations
necessary to use, operate, repair, access and maintain each such Property
for the purpose it is being used by Lessee, and (ii) such manuals,
permits, easements, licenses, intellectual property, know-how,
rights-of-way and other rights and privileges in the nature of an easement
as are reasonably necessary or desirable in connection with the use,
operation, repair, access to or maintenance of each such Property for its
intended purpose or otherwise as Lessor or such third party purchaser(s)
shall reasonably request (and a royalty-free license or similar agreement
to effectuate the foregoing on terms reasonably agreeable to Lessor or
such third party purchaser(s), as applicable). All assignments, licenses,
easements, agreements and other deliveries required by clauses (i) and
(ii) of this paragraph (c) shall be in form reasonably satisfactory to
Lessor or such third party purchaser(s), as applicable, and shall be fully
assignable (including without limitation both primary assignments and
assignments given in the nature of security) without payment of any fee,
cost or other charge. Lessee shall also execute any documentation
requested by Lessor or such third party purchaser(s), as applicable,
evidencing the continuation or assignment of each Ground Lease.
22.2 Application of Proceeds of Sale.
In the event Lessee receives any proceeds of sale of any Property,
such proceeds shall be deemed to have been received in trust on behalf of Lessor
and Lessee shall promptly remit such proceeds to Lessor. Lessor shall apply the
proceeds of sale of any Property in the following order of priority:
(a) FIRST, to pay or to reimburse Lessor (and/or the Agent, as the
case may be) for the payment of all reasonable costs and expenses incurred
by Lessor (and/or the Agent, as the case may be) in connection with the
sale (to the extent Lessee has not satisfied its obligation to pay such
costs and expenses);
(b) SECOND, so long as the Credit Agreement is in effect and any
Loans or Holder Advances or any amount is owing to the Financing Parties
under any Operative Agreement, to the Agent to be applied pursuant to
intercreditor provisions among Lessor, the Lenders and the Holders
contained in the Operative Agreements; and
(c) THIRD, to Lessee.
22.3 Indemnity for Excessive Wear.
If the proceeds of the sale described in Section 22.1 with respect to
the Properties shall be less than the Limited Recourse Amount with respect to
the Properties, and at the time of such sale it shall have been reasonably
determined (pursuant to the Appraisal Procedure) that the Fair Market Sales
Value of the Properties shall have been impaired by greater than expected wear
and tear during the term of the Lease, Lessee shall pay to Lessor within ten
(10) days after receipt of Lessor's written statement (i) the amount of such
excess wear and tear determined by the Appraisal Procedure or (ii) the amount of
the Sale Proceeds Shortfall, whichever amount is less.
22.4 Appraisal Procedure.
For determining the Fair Market Sales Value of the Properties or any
other amount which may, pursuant to any provision of any Operative Agreement, be
determined by an appraisal procedure, Lessor and Lessee shall use the following
procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach
a mutual agreement as to such amount for a period of ten (10) days from
commencement of the Appraisal Procedure under the applicable section of the
Lease, and if they cannot agree within ten (10) days, then two (2) qualified
appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall
mutually agree thereupon, but if either party shall fail to choose an appraiser
within twenty (20) days after notice from the other party of the selection of
its appraiser, then the appraisal by such appointed appraiser shall be binding
on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20)
days after both shall have been appointed, then a third appraiser shall be
selected by the two (2) appraisers or, failing agreement as to such third
appraiser within thirty (30) days after both shall have been appointed, by the
American Arbitration Association. The decisions of the three (3) appraisers
shall be given within twenty (20) days of the appointment of the third appraiser
and the decision of the appraiser most different from the average of the other
two (2) shall be discarded and such average shall be binding on Lessor and
Lessee; provided, that if the highest appraisal and the lowest appraisal are
equidistant from the third appraisal, the third appraisal shall be binding on
Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee
shall be paid by Lessee; the fees and expenses of the appraiser appointed by
Lessor shall be paid by Lessor (such fees and expenses not being indemnified
pursuant to Section 13 of the Participation Agreement); and the fees and
expenses of the third appraiser shall be divided equally between Lessee and
Lessor.
22.5 Certain Obligations Continue.
During the Marketing Period, the obligation of Lessee to pay Rent
with respect to the Properties (including without limitation the installment of
Basic Rent due on the Expiration Date) shall continue undiminished until payment
in full to Lessor of the sale proceeds, if any, the Maximum Residual Guarantee
Amount, the amount due under Section 22.3, if any, and all other amounts due to
Lessor or any other Person with respect to all Properties or any Operative
Agreement. Lessor shall have the right, but shall be under no duty, to solicit
bids, to inquire into the efforts of Lessee to obtain bids or otherwise to take
action in connection with any such sale, other than as expressly provided in
this Article XXII.
ARTICLE XXIII
23.1 Holding Over.
If Lessee shall for any reason remain in possession of a Property
after the expiration or earlier termination of this Lease as to such Property
(unless such Property is conveyed to Lessee), such possession shall be as a
tenancy at sufferance during which time Lessee shall continue to pay
Supplemental Rent that would be payable by Lessee hereunder were the Lease then
in full force and effect with respect to such Property and Lessee shall continue
to pay Basic Rent at the lesser of the highest lawful rate and one hundred ten
percent (110%) of the last payment of Basic Rent due with respect to such
Property prior to such expiration or earlier termination of this Lease. Such
Basic Rent shall be payable from time to time upon demand by Lessor and such
additional amount of Basic Rent shall be applied by Lessor ratably to the
Lenders and the Holders based on their relative amounts of the then outstanding
aggregate Property Cost for all Properties. During any period of tenancy at
sufferance, Lessee shall, subject to the second preceding sentence, be obligated
to perform and observe all of the terms, covenants and conditions of this Lease,
but shall have no rights hereunder other than the right, to the extent given by
law to tenants at sufferance, to continue its occupancy and use of such
Property. Nothing contained in this Article XXIII shall constitute the consent,
express or implied, of Lessor to the holding over of Lessee after the expiration
or earlier termination of this Lease as to any Property (unless such Property is
conveyed to Lessee) and nothing contained herein shall be read or construed as
preventing Lessor from maintaining a suit for possession of such Property or
exercising any other remedy available to Lessor at law or in equity.
ARTICLE XXIV
24.1 Risk of Loss.
During the Term, unless Lessee shall not be in actual possession of
any Property in question solely by reason of Lessor's exercise of its remedies
of dispossession under Article XVII, the risk of loss or decrease in the
enjoyment and beneficial use of such Property as a result of the damage or
destruction thereof by fire, the elements, casualties, thefts, riots, wars or
otherwise is assumed by Lessee, and Lessor shall in no event be answerable or
accountable therefor.
ARTICLE XXV
25.1 Assignment.
(a) Lessee may not assign this Lease or any of its rights or
obligations hereunder or with respect to any Property in whole or in part
to any Person without the prior written consent of the Agent, the Lenders,
the Holders and Lessor.
(b) No assignment by Lessee (referenced in this Section 25.1 or
otherwise) or other relinquishment of possession to any Property shall in
any way discharge or diminish any of the obligations of Lessee to Lessor
hereunder and Lessee shall remain directly and primarily liable under the
Operative Agreements as to any rights or obligations assigned by Lessee or
regarding any Property in which rights or obligations have been assigned
or otherwise transferred.
25.2 Subleases.
(a) Promptly, but in any event within five (5) Business Days,
following the execution and delivery of any sublease permitted by this
Article XXV, Lessee shall notify Lessor of the execution of such sublease.
As of the date of each Lease Supplement, Lessee shall lease the respective
Properties described in such Lease Supplement from Lessor, and any
existing tenant respecting such Property shall automatically be deemed to
be a subtenant of Lessee and not a tenant of Lessor.
(b) Without the prior written consent of the Agent, any Lender, any
Holder or Lessor and subject to the other provisions of this Section 25.2,
Lessee may sublet any Property or portion thereof to any Affiliate of any
Credit Party. Except as referenced in the immediately preceding sentence,
no other subleases shall be permitted unless consented to in writing by
each Financing Party, which consent may be given or withheld in the sole
discretion of each such party. All subleasing shall be done on market
terms and shall in no way diminish the fair market value or useful life of
any applicable Property.
(c) No sublease (referenced in this Section 25.2 or otherwise) or
other relinquishment of possession to any Property shall in any way
discharge or diminish any of Lessee's obligations to Lessor hereunder and
Lessee shall remain directly and primarily liable under this Lease as to
such Property, or portion thereof, so sublet. During the Basic Term, the
term of any such sublease shall not extend beyond the Basic Term. During
any Renewal Term, the term of any such sublease shall not extend beyond
such Renewal Term. Each sublease shall be expressly subject and
subordinate to this Lease.
ARTICLE XXVI
26.1 No Waiver.
No failure by Lessor or Lessee to insist upon the strict performance
of any term hereof or to exercise any right, power or remedy upon a default
hereunder, and no acceptance of full or partial payment of Rent during the
continuance of any such default, shall constitute a waiver of any such default
or of any such term. To the fullest extent permitted by law, no waiver of any
default shall affect or alter this Lease, and this Lease shall continue in full
force and effect with respect to any other then existing or subsequent default.
ARTICLE XXVII
27.1 Acceptance of Surrender.
No surrender to Lessor of this Lease or of all or any portion of any
Property or of any part of any thereof or of any interest therein shall be valid
or effective unless agreed to and accepted in writing by Lessor and no act by
Lessor or the Agent or any representative or agent of Lessor or the Agent, other
than a written acceptance, shall constitute an acceptance of any such surrender.
27.2 No Merger of Title.
There shall be no merger of this Lease or of the leasehold estate
created hereby by reason of the fact that the same Person may acquire, own or
hold, directly or indirectly, in whole or in part, (a) this Lease or the
leasehold estate created hereby or any interest in this Lease or such leasehold
estate, (b) any right, title or interest in any Property, (c) any Notes, or (d)
a beneficial interest in Lessor.
ARTICLE XXVIII
28.1 Incorporation of Covenants.
Reference is made to the Lessee Credit Agreement and the
representations and warranties of Lessee contained in Section 3 of the Lessee
Credit Agreement (hereinafter referred to as the "Incorporated Representations
and Warranties") and the covenants contained in Sections 5 and 6 of the Lessee
Credit Agreement (hereinafter referred to as the "Incorporated Covenants").
Lessee agrees with Lessor that the Incorporated Representations and Warranties
and the Incorporated Covenants (and all other relevant provisions of the Lessee
Credit Agreement related thereto, including without limitation the defined terms
contained in Section 1 thereof which are used in the Incorporated
Representations and Warranties and the Incorporated Covenants, hereinafter
referred to as the "Additional Incorporated Terms") are hereby incorporated by
reference into this Lease to the same extent and with the same effect as if set
forth fully herein and shall inure to the benefit of Lessor as if Lessor were
expressly referenced therein as a beneficiary of each such provision, without
giving effect to any waiver, amendment, modification or replacement of the
Lessee Credit Agreement or any term or provision of the Incorporated
Representations and Warranties or the Incorporated Covenants occurring
subsequent to the date of this Lease, except to the extent otherwise
specifically provided in the following provisions of this paragraph. In the
event a waiver is granted under the Lessee Credit Agreement or an amendment or
modification is executed with respect to the Lessee Credit Agreement, and such
waiver, amendment and/or modification affects the Incorporated Representations
and Warranties, the Incorporated Covenants or the Additional Incorporated Terms,
then such waiver, amendment or modification shall be effective with respect to
the Incorporated Representations and Warranties, the Incorporated Covenants and
the Additional Incorporated Terms as incorporated by reference into this Lease
only if consented to in writing by the Agent (acting upon the direction of the
Majority Secured Parties). In the event of any replacement of the Lessee Credit
Agreement with a similar credit facility (the "New Facility") the
representations and warranties, covenants and additional terms contained in the
New Facility which correspond to the representations and warranties, covenants
contained in Section 3 and Sections 5 and 6, respectively, and such additional
terms (each of the foregoing contained in the Lessee Credit Agreement) shall
become the Incorporated Representations and Warranties, the Incorporated
Covenants and the Additional Incorporated Terms only if consented to in writing
by the Agent (acting upon the direction of the Majority Secured Parties) and, if
such consent is not granted or if the Lessee Credit Agreement is terminated and
not replaced, then the representations and warranties and covenants contained in
Section 3 and Sections 5 and 6, respectively, and such additional terms (each of
the foregoing contained in the Lessee Credit Agreement (together with any
modifications or amendments approved in accordance with this paragraph)) shall
continue to be the Incorporated Representations and Warranties, the Incorporated
Covenants and the Additional Incorporated Terms hereunder.
ARTICLE XXIX
29.1 Notices.
All notices required or permitted to be given under this Lease shall
be in writing and delivered as provided in the Participation Agreement.
ARTICLE XXX
30.1 Miscellaneous.
Anything contained in this Lease to the contrary notwithstanding, all
claims against and liabilities of Lessee or Lessor arising from events
commencing prior to the expiration or earlier termination of this Lease shall
survive such expiration or earlier termination. If any provision of this Lease
shall be held to be unenforceable in any jurisdiction, such unenforceability
shall not affect the enforceability of any other provision of this Lease and
such jurisdiction or of such provision or of any other provision hereof in any
other jurisdiction.
30.2 Amendments and Modifications.
Neither this Lease nor any Lease Supplement may be amended, waived,
discharged or terminated except in accordance with the provisions of Section
12.4 of the Participation Agreement.
30.3 Successors and Assigns.
All the terms and provisions of this Lease shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
30.4 Headings and Table of Contents.
The headings and table of contents in this Lease are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
30.5 Counterparts.
This Lease may be executed in any number of counterparts, each of
which shall be an original, but all of which shall together constitute one (1)
and the same instrument.
30.6 GOVERNING LAW.
THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, EXCEPT TO
THE EXTENT THE LAWS OF THE STATE WHERE A PARTICULAR PROPERTY IS LOCATED ARE
REQUIRED TO APPLY.
30.7 Calculation of Rent.
All calculation of Rent payable hereunder shall be computed based on
the actual number of days elapsed over a year of three hundred sixty (360) days
or, to the extent such Rent is based on the Prime Lending Rate, three hundred
sixty-five (365) (or three hundred sixty-six (366), as applicable) days.
30.8 Memoranda of Lease and Lease Supplements.
This Lease shall not be recorded; provided, Lessor and Lessee shall
promptly record (a) a memorandum of this Lease and the applicable Lease
Supplement (in substantially the form of Exhibit B attached hereto) or a short
form lease (in form and substance reasonably satisfactory to Lessor) regarding
each Property promptly after the acquisition thereof in the local filing office
with respect thereto, in all cases at Lessee's cost and expense, and as required
under applicable law to sufficiently evidence this Lease and any such Lease
Supplement in the applicable real estate filing records.
30.9 Allocations between the Lenders and the Holders.
Notwithstanding any other term or provision of this Lease to the
contrary, the allocations of the proceeds of the Properties and any and all
other Rent and other amounts received hereunder shall be subject to the
inter-creditor provisions between the Lenders and the Holders contained in the
Operative Agreements (or as otherwise agreed among the Lenders and the Holders
from time to time).
30.10Limitations on Recourse.
Notwithstanding anything contained in this Lease to the contrary,
Lessee agrees to look solely to Lessor's estate and interest in the Properties
(and in no circumstance to the Agent, the Lenders, the Holders or otherwise to
Lessor) for the collection of any judgment requiring the payment of money by
Lessor in the event of liability by Lessor, and no other property or assets of
Lessor or any shareholder, owner or partner (direct or indirect) in or of
Lessor, or any director, officer, employee, beneficiary or Affiliate of any of
the foregoing shall be subject to levy, execution or other enforcement procedure
for the satisfaction of the remedies of Lessee under or with respect to this
Lease, the relationship of Lessor and Lessee hereunder or Lessee's use of the
Properties or any other liability of Lessor to Lessee. Nothing in this Section
shall be interpreted so as to limit the terms of Sections 6.1 or 6.2 or the
provisions of Section 12.9 of the Participation Agreement.
30.11WAIVERS OF JURY TRIAL.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY, TO THE
FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS LEASE AND FOR ANY COUNTERCLAIM
THEREIN.
30.12Exercise of Lessor Rights.
Lessee hereby acknowledges and agrees that the rights and powers of
Lessor under this Lease have been assigned to the Agent pursuant to the terms of
the Security Agreement and the other Operative Agreements. Lessor and Lessee
hereby acknowledge and agree that (a) the Agent shall, in its discretion, direct
and/or act on behalf of Lessor pursuant to the provisions of Sections 8.2(h) and
8.6 of the Participation Agreement, (b) all notices to be given to Lessor shall
be given to the Agent and (c) all notices to be given by Lessor may be given by
the Agent, at its election.
30.13SUBMISSION TO JURISDICTION; VENUE.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING
TO SUBMISSION TO JURISDICTION, VENUE ARE HEREBY INCORPORATED BY
REFERENCE HEREIN, MUTATIS MUTANDIS.
30.14USURY SAVINGS PROVISION.
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND CONTRACT IN
STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. TO THE
EXTENT ANY RENT OR PAYMENTS HEREUNDER ARE HEREINAFTER CHARACTERIZED BY ANY COURT
OF COMPETENT JURISDICTION AS THE REPAYMENT OF PRINCIPAL AND INTEREST THEREON,
THIS SECTION 30.14 SHALL APPLY. ANY SUCH RENT OR PAYMENTS SO CHARACTERIZED AS
INTEREST MAY BE REFERRED TO HEREIN AS "INTEREST." ALL AGREEMENTS AMONG THE
PARTIES HERETO ARE HEREBY LIMITED BY THE PROVISIONS OF THIS PARAGRAPH WHICH
SHALL OVERRIDE AND CONTROL ALL SUCH AGREEMENTS, WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER WRITTEN OR ORAL. IN NO WAY, NOR IN ANY EVENT OR
CONTINGENCY (INCLUDING WITHOUT LIMITATION PREPAYMENT OR ACCELERATION OF THE
MATURITY OF ANY OBLIGATION), SHALL ANY INTEREST TAKEN, RESERVED, CONTRACTED FOR,
CHARGED, OR RECEIVED UNDER THIS LEASE OR OTHERWISE, EXCEED THE MAXIMUM
NONUSURIOUS AMOUNT PERMISSIBLE UNDER APPLICABLE LAW. IF, FROM ANY POSSIBLE
CONSTRUCTION OF ANY OF THE OPERATIVE AGREEMENTS OR ANY OTHER DOCUMENT OR
AGREEMENT, INTEREST WOULD OTHERWISE BE PAYABLE IN EXCESS OF THE MAXIMUM
NONUSURIOUS AMOUNT, ANY SUCH CONSTRUCTION SHALL BE SUBJECT TO THE PROVISIONS OF
THIS PARAGRAPH AND SUCH AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE
AUTOMATICALLY REDUCED TO THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER
APPLICABLE LAW, WITHOUT THE NECESSITY OF EXECUTION OF ANY AMENDMENT OR NEW
DOCUMENT OR AGREEMENT. IF LESSOR SHALL EVER RECEIVE ANYTHING OF VALUE WHICH IS
CHARACTERIZED AS INTEREST WITH RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR
UNDER APPLICABLE LAW AND WHICH WOULD, APART FROM THIS PROVISION, BE IN EXCESS OF
THE MAXIMUM LAWFUL AMOUNT, AN AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE BEEN
EXCESSIVE INTEREST SHALL, WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF THE
COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL AND NOT TO THE PAYMENT OF INTEREST,
OR REFUNDED TO LESSEE OR ANY OTHER PAYOR THEREOF, IF AND TO THE EXTENT SUCH
AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE EXCEEDS THE COMPONENT OF PAYMENTS DEEMED
TO BE PRINCIPAL. THE RIGHT TO DEMAND PAYMENT OF ANY AMOUNTS EVIDENCED BY ANY OF
THE OPERATIVE AGREEMENTS DOES NOT INCLUDE THE RIGHT TO RECEIVE ANY INTEREST
WHICH HAS NOT OTHERWISE ACCRUED ON THE DATE OF SUCH DEMAND, AND LESSOR DOES NOT
INTEND TO CHARGE OR RECEIVE ANY UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND.
ALL INTEREST PAID OR AGREED TO BE PAID TO LESSOR SHALL, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, BE AMORTIZED, PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE
FULL STATED TERM (INCLUDING WITHOUT LIMITATION ANY RENEWAL OR EXTENSION) OF THIS
LEASE SO THAT THE AMOUNT OF INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED
THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED BY APPLICABLE LAW.
[signature page follows]
Lease Agreement
Centennial Real Estate Trust 1998-1
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed
and delivered as of the date first above written.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, but solely as the Owner Trustee
under the Centennial Real Estate Trust 1998-1, as
Lessor
By:/s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: V.P.
CENTENNIAL HEALTHCARE CORPORATION,
as the Lessee
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: E.V.P.
Receipt of this original
counterpart of the foregoing
Lease is hereby acknowledged
as the date hereof
NATIONSBANK, N.A.,
as the Agent
By:/d/ J. Xxxxxx Xxxxx
Name: X.X. Xxxxx
Title: V.P.
EXHIBIT A TO THE LEASE
LEASE SUPPLEMENT NO. ___
THIS LEASE SUPPLEMENT NO. ___ (this "Lease Supplement") dated as of
[________________] between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, not individually, but solely as the Owner Trustee under the
Centennial Real Estate Trust 1998-1, as lessor (the "Lessor"), and CENTENNIAL
HEALTHCARE CORPORATION, a Georgia corporation, as lessee (the "Lessee").
WHEREAS, Lessor is the owner or will be the owner of the Property
described on Schedule 1 hereto (the "Leased Property") and wishes to lease the
same to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions; Rules of Usage. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix A to the Participation Agreement,
dated as of July 29, 1998, among Lessee, Lessor, not individually, except as
expressly stated therein, but solely as the Owner Trustee under the Centennial
Real Estate Trust 1998-1, the various banks and other lending institutions which
are parties thereto from time to time, as the Holders, the various banks and
other lending institutions which are parties thereto from time to time, as the
Lenders, First Union Capital Markets, a division of Wheat First Securities,
Inc., as Syndication Agent, and NationsBank, N.A., as the Agent for the Lenders
and respecting the Security Documents, as the Agent for the Lenders and Holders,
to the extent of their interests, as such may be amended, modified, extended,
supplemented, restated and/or replaced from time to time.
SECTION 2. The Properties. Attached hereto as Schedule 1 is the
description of the Leased Property, with an Equipment Schedule attached hereto
as Schedule 1-A, an Improvement Schedule attached hereto as Schedule 1-B and [a
legal description of the Land / a copy of the Ground Lease] attached hereto as
Schedule 1-C. Effective upon the execution and delivery of this Lease Supplement
by Lessor and Lessee, the Leased Property shall be subject to the terms and
provisions of the Lease. Without further action, any and all additional
Equipment funded under the Operative Agreements and any and all additional
Improvements made to the Land shall be deemed to be titled to the Lessor and
subject to the terms and conditions of the Lease and this Lease Supplement.
SECTION 3. Use of Property. At all times during the Term with respect to
each Property, Lessee will comply with all obligations under and (to the extent
no Event of Default exists and provided, that such exercise will not impair the
value of such Property) shall be permitted to exercise all rights and remedies
under, all operation and easement agreements and related or similar agreements
applicable to such Property.
SECTION 4. Ratification; Incorporation by Reference. Except as
specifically modified hereby, the terms and provisions of the Lease and the
Operative Agreements are hereby ratified and confirmed and remain in full force
and effect. The Lease is hereby incorporated herein by reference as though
restated herein in its entirety.
SECTION 5. Original Lease Supplement. The single executed original of this
Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART"
on the signature page thereof and containing the receipt of the Agent therefor
on or following the signature page thereof shall be the original executed
counterpart of this Lease Supplement (the "Original Executed Counterpart"). To
the extent that this Lease Supplement constitutes chattel paper, as such term is
defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction, no security interest in this Lease Supplement may be created
through the transfer or possession of any counterpart other than the Original
Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NORTH CAROLINA, EXCEPT TO THE EXTENT THE LAWS OF THE STATE WHERE A PARTICULAR
PROPERTY IS LOCATED ARE REQUIRED TO APPLY.
SECTION 7. Mortgage; Power of Sale. Without limiting any other remedies
set forth in the Lease, in the event that a court of competent jurisdiction
rules that the Lease constitutes a mortgage, deed of trust or other secured
financing as is the intent of the parties, then Lessor and Lessee agree that
Lessee hereby grants a Lien against the Leased Property WITH POWER OF SALE, and
that, upon the occurrence of any Lease Event of Default, Lessor shall have the
power and authority, to the extent provided by law, after prior notice and lapse
of such time as may be required by law, to foreclose its interest (or cause such
interest to be foreclosed) in all or any part of the Leased Property.
SECTION 8. Counterpart Execution. This Lease Supplement may be executed in
any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one (1) and the
same instrument.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, but solely as the Owner Trustee
under the Centennial Real Estate Trust 1998-1, as
Lessor
By:
Name:
Title:
CENTENNIAL HEALTHCARE CORPORATION,
as Lessee
By:
Name:
Title:
Receipt of this original counterpart of the foregoing Lease Supplement is hereby
acknowledged as the date hereof.
NATIONSBANK, N.A., as the Agent
By:
Name:
Title:
[CONFORM TO STATE LAW REQUIREMENTS]
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the undersigned
Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of FIRST SECURITY
BANK, NATIONAL ASSOCIATION, a national banking association, not individually,
but solely as the Owner Trustee under the Centennial Real Estate Trust 1998-1,
on behalf of the Owner Trustee.
[Notarial Seal]
Notary Public
My commission expires:____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the undersigned
Notary Public, in the County of _________________ this _____ day of
______________, by ________________, as __________________ of CENTENNIAL
HEALTHCARE CORPORATION, a Georgia corporation, on behalf of the corporation.
[Notarial Seal]
Notary Public
My commission expires:____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Lease Supplement was acknowledged before me, the undersigned
Notary Public, in the County of ________________ this ____ day of ___________,
by _____________, as __________________ of NATIONSBANK, N.A., a national banking
association, as the Agent.
[Notarial Seal]
Notary Public
My commission expires:____________
SCHEDULE 1
TO LEASE SUPPLEMENT NO. ____
(Description of the Leased Property)
SCHEDULE 1-A
TO LEASE SUPPLEMENT NO. ____
(Equipment)
SCHEDULE 1-B
TO LEASE SUPPLEMENT NO. ____
(Improvements)
SCHEDULE 1-C
TO LEASE SUPPLEMENT NO. ____
[(Land)/
(Ground Lease)]
B-5
EXHIBIT B TO THE LEASE
[MODIFY OR SUBSTITUTE SHORT FORM LEASE AS
NECESSARY FOR LOCAL LAW REQUIREMENTS]
Recordation requested by:
Xxxxx & Xxx Xxxxx, PLLC
After recordation return to:
Xxxxx & Xxx Xxxxx, PLLC (WMA)
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, XX 00000-0000
Space above this line
for Recorder's use
MEMORANDUM OF LEASE AGREEMENT
AND
LEASE SUPPLEMENT NO. _____________
THIS MEMORANDUM OF LEASE AGREEMENT AND LEASE SUPPLEMENT NO. ____________
("Memorandum"), dated as of _____________, 1998, is by and between FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not
individually, but solely as the Owner Trustee under the Centennial Real Estate
Trust 1998-1, with an office at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000
(hereinafter referred to as "Lessor") and CENTENNIAL HEALTHCARE CORPORATION, a
Georgia corporation, with an office at 000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx, 00000 (hereinafter referred to as "Lessee").
WITNESSETH:
That for value received, Lessor and Lessee do hereby covenant, promise and
agree as follows:
1. Demised Premises and Date of Lease. Lessor has leased to Lessee, and
Lessee has leased from Lessor, for the Term (as hereinafter defined), certain
real property and other property located in ________________, which is described
in the attached Schedule 1 (the "Property"), pursuant to the terms of a Lease
Agreement between Lessor and Lessee dated as of July 29, 1998 (as such may be
amended, modified, extended, supplemented, restated and/or replaced from time to
time, "Lease") and a Lease Supplement No. _____ between Lessor and Lessee dated
as of ______________ (the "Lease Supplement").
2. Term, Renewal, Extension and Purchase Option. The term of the Lease for
the Property ("Term") commenced as of __________, 19__ and shall end as of
_________, 19__, unless the Term is extended or earlier terminated in accordance
with the provisions of the Lease. The Lease contains provisions for renewal and
extension. The tenant has a purchase option under the Lease.
3. Tax Payer Numbers.
Lessor's tax payer number: __________________.
Lessee's tax payer number: ____________________.
4. Mortgage; Power of Sale. Without limiting any other remedies set forth
in the Lease, in the event that a court of competent jurisdiction rules that the
Lease constitutes a mortgage, deed of trust or other secured financing as is the
intent of the parties, then Lessor and Lessee agree that Lessee has granted,
pursuant to the terms of the Lease and the Lease Supplement, a Lien against the
Property WITH POWER OF SALE, and that, upon the occurrence and during the
continuance of any Lease Event of Default, Lessor shall have the power and
authority, to the extent provided by law, after prior notice and lapse of such
time as may be required by law, to foreclose its interest (or cause such
interest to be foreclosed) in all or any part of the Property.
5. Effect of Memorandum. The purpose of this instrument is to give notice
of the Lease and the Lease Supplement and their respective terms, covenants and
conditions to the same extent as if the Lease and the Lease Supplement were
fully set forth herein. This Memorandum shall not modify in any manner the
terms, conditions or intent of the Lease or the Lease Supplement and the parties
agree that this Memorandum is not intended nor shall it be used to interpret the
Lease or the Lease Supplement or determine the intent of the parties under the
Lease or the Lease Supplement.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have duly executed this instrument
as of the day and year first written.
LESSOR:
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, but solely as the Owner Trustee
under the Centennial Real Estate Trust
1998-1
By:
Name:
Title:
LESSEE:
CENTENNIAL HEALTHCARE CORPORATION
By:
Name:
Title:
SCHEDULE 1
(Description of Property)
[CONFORM TO STATE LAW REQUIREMENTS]
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Memorandum of Lease Agreement and Lease Supplement No. _____
was acknowledged before me, the undersigned Notary Public, in the County of
_________________ this _____ day of ______________, by ________________, as
__________________ of FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, not individually, but solely as the Owner Trustee under the
Centennial Real Estate Trust 1998-1, on behalf of the Owner Trustee.
[Notarial Seal]
Notary Public
My commission expires:____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Memorandum of Lease Agreement and Lease Supplement No. _____
was acknowledged before me, the undersigned Notary Public, in the County of
_________________ this _____ day of ______________, by ________________, as
__________________ of CENTENNIAL HEALTHCARE CORPORATION, a Georgia corporation,
on behalf of the corporation.
[Notarial Seal]
Notary Public
My commission expires:____________
