AMENDED AND RESTATED LEASE AGREEMENT Dated as of January 11, 2007 Between Wachovia Development Corporation (as assignee of Wachovia Capital Investments, Inc.), as the Lessor, and Protective Life Insurance Company, as the Lessee
THIS
DOCUMENT WAS PREPARED BY
AND
IS TO
BE RETURNED TO:
Xxxxxxx
X. Xxxxxxxx, Esq.
Xxxxx
Day
0000
Xxxxxxxxx Xxxxxx, XX, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000-0000
AMENDED
AND RESTATED LEASE AGREEMENT
Dated
as
of January 11, 2007
Between
Wachovia
Development Corporation
(as
assignee of Wachovia Capital Investments, Inc.),
as
the
Lessor,
and
Protective
Life Insurance Company,
as
the
Lessee
THIS
AMENDED AND RESTATED LEASE AGREEMENT AMENDS AND RESTATES THAT CERTAIN LEASE
AGREEMENT DATED AS OF FEBRUARY 1, 2000, RECORDED AS INSTRUMENT NO. 200002/0944,
IN THE PROBATE OFFICE OF JEFFERSON COUNTY, ALABAMA, AS PREVIOUSLY AMENDED.
THIS
AMENDED AND RESTATED LEASE AGREEMENT IS ALSO A MORTGAGE AND SECURITY AGREEMENT
BETWEEN THE LESSEE, PROTECTIVE LIFE INSURANCE COMPANY, AS MORTGAGOR AND DEBTOR,
AND THE LESSOR, WACHOVIA DEVELOPMENT CORPORATION, AS MORTGAGEE AND SECURED
PARTY, SECURING INDEBTEDNESS IN THE PRINCIPAL AMOUNT OF $75,000,000. THE
COLLATERAL SUBJECT TO THE SECURITY INTEREST INCLUDES PERSONAL PROPERTY THAT
IS,
OR MAY BECOME, FIXTURES ATTACHED TO THE REAL PROPERTY DESCRIBED IN THIS AMENDED
AND RESTATED LEASE AGREEMENT. THIS AMENDED AND RESTATED LEASE AGREEMENT SHOULD
BE FILED AND RECORDED IN THE REAL ESTATE RECORDS AS A LEASE AND AS A MORTGAGE
AND FIXTURE FILING. WACHOVIA DEVELOPMENT CORPORATION SHOULD BE INDEXED AS
THE
GRANTOR OF THE LEASE AND THE GRANTEE (MORTGAGEE) OF THE MORTGAGE AND SECURITY
INTEREST. PROTECTIVE LIFE INSURANCE COMPANY SHOULD BE INDEXED AS THE GRANTEE
OF
THE LEASE AND THE GRANTOR (MORTGAGOR) OF THE MORTGAGE AND SECURITY INTEREST.
THE
MAILING ADDRESSES OF THE LESSEE (MORTGAGOR AND DEBTOR) AND THE LESSOR (MORTGAGEE
AND SECURED PARTY) FROM WHICH INFORMATION CONCERNING THE SECURITY INTEREST
MAY
BE OBTAINED ARE SET FORTH ON THE SIGNATURE PAGES HEREOF AND A STATEMENT
INDICATING THE TYPES, OR DESCRIBING THE ITEMS, OF COLLATERAL ARE AS DESCRIBED
IN
SECTION 26 HEREOF.
THIS
INSTRUMENT IS FILED AND SHALL CONSTITUTE A FIXTURE FILING IN ACCORDANCE WITH
THE
PROVISIONS OF SECTION 7-9A-502(C) OF THE CODE OF ALABAMA.
THIS
INSTRUMENT IS A “CONSTRUCTION MORTGAGE,” AS DEFINED IN SECTION 7-9A-334(H) OF
THE CODE OF ALABAMA AND SECURES, AMONG OTHER OBLIGATIONS, AN OBLIGATION INCURRED
FOR THE CONSTRUCTION OF AN IMPROVEMENT ON LAND.
ATI-2239731v7
TABLE
OF
CONTENTS
Section
0.Xxxxx
of
Facility
Section
3.Payments
Section
4.Anti-Terrorism
Laws
Section
5.Title
to
Facility
Section
6.Title
to
Remain in the Lessor
Section
7.Maintenance
of the Facility; Operations
Section
8.Modifications
Section
9.Further
Assurances
Section
10.Compliance
with Governmental Requirements and Insurance Requirements: Related
Contracts
Section
11.Condition
and Use of Facility; Quiet Enjoyment
Section
12.Liens
Section
13.Permitted
Contests
Section
00.Xxxxxxxxx,
etc
Section
15.Termination;
Cancellation; Purchase Option
Section
16.Transfer
of Title on Removal of Facility; Expenses of Transfer
Section
00.Xxxxxx
of
Default and Remedies
Section
18.Change
in
the Lessee’s Name or Structure
Section
19.Inspection;
Right to Enter Premises of the Lessee
Section
20.Right
to
Perform the Lessee’s Covenants; The Administrative Agent
Section
21.Participation
by Co-Lessees or Sublessees
Section
22.Notices
Section
23.Amendments
and Waivers
Section
24.Severability
Section
25.Federal
Income Tax Considerations
Section
26.Other
Provisions
Section
27.Miscellaneous
EXHIBIT
A Description
of Site
EXHIBIT
B Other
Defined Terms
SCHEDULE
14 Insurance
Requirements
ATI-2239731v7
AMENDED
AND RESTATED LEASE AGREEMENT
This
Amended and Restated Lease Agreement dated as of January 11, 2007, (as the
same
may be amended, restated, modified or supplemented from time to time, this
“Lease”)
is
between Wachovia Development Corporation, a North Carolina corporation (together
with its successors and permitted assigns, the “Lessor”),
and
Protective Life Insurance Company, a Tennessee corporation (together with
its
successors and permitted assigns, the “Lessee”).
RECITALS
WHEREAS,
pursuant to the Original Ground Lease (as this and other terms used in these
recitals are defined in accordance with Section 1 below), WCI acquired a
ground
lease of certain real property located in Jefferson County, Alabama, described
in greater detail in Exhibit
A,
attached hereto and made a part hereof (the “Site”),
and,
pursuant to the Original Lease Documents, constructed and installed on the
Site
an annex office building and a related parking deck and related enhancements
and
improvements, including furniture, fixtures and equipment, all of which comprise
the Facility; and
WHEREAS,
WCI has assigned 100% of its right, title, and interest in and to the Original
Lease Documents to Lessor pursuant to the terms of the Lessor Assignment
Agreement; and
WHEREAS,
the Lessee has requested to refinance and extend the maturity of the Original
Lease Agreement by, among other things, entering into that certain Amended
and
Restated Ground Lease dated as of the date hereof (as the same may be amended,
restated, supplemented, or otherwise modified from time to time, the
“Ground
Lease”),
that
certain Amended and Restated Investment and Participation Agreement dated
as of
the date hereof (as the same may be amended, restated, supplemented, or
otherwise modified from time to time, the “Investment
Agreement”),
and
this Lease; and
WHEREAS,
subject to the terms and conditions of this Lease, the Lessee desires to
continue to lease from the Lessor the ground lease interest in the Site and
such
enhancements and Improvements beginning on the Lease Commencement Date for
the
purpose of continuing to occupy and use the Site and such enhancements and
Improvements as an annex office building and parking deck in accordance with
the
amended and restated terms and conditions set forth in this Lease.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, and for other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the Lessor and
the
Lessee agree as follows:
Section
1. Defined
Terms.
(i) In
this
Lease, the terms “Lease,”
“Lessee,”
and
“Lessor”
shall
have the meanings indicated above.
(ii) As
used
in this Lease, all capitalized terms used in this Lease and not otherwise
defined herein or as set forth on Exhibit
B
shall
have the meanings assigned such terms in Schedule 1.02 to the Investment
Agreement, the terms and provisions of which schedule are incorporated herein
by
reference and made a part hereof.
Section
2. Lease
of Facility.
(a) During
the term of and subject to the terms and conditions of this Lease, the Lessor
hereby leases to the Lessee, and the Lessee hereby leases from the Lessor,
the
Facility for the Lease Term to be occupied and used for and only for the
Permitted Use with respect to the Basic Term. The entire Facility shall become
subject to this Lease as of the effective date hereof.
(b) Unless
earlier terminated in accordance with the other provisions hereof, including
without limitation, Sections 15 and 17, this Lease shall terminate on the
Scheduled Lease Termination Date.
The
Lessee shall give to the Lessor written notice as provided below under the
circumstances described below specifying its election as to which of the
options
under Section 15(a)(ii) of this Lease the Lessee intends to exercise upon
the
applicable Lease Termination Date:
(x) in
the
case of a termination on the Scheduled Lease Termination Date, the Lessee
shall
give the Lessor notice of such election on any date that is not less than
12
months and no more than 18 months prior to the then current Scheduled Lease
Termination Date; and
(y) if
the
Lessor (acting, in accordance with Section 9.02(f) of the Investment Agreement,
of its own accord or at the direction of the Majority Funding Parties) elects
to
terminate this Lease due to a Limited Recourse Event of Default, the Lessee
shall give the Lessor notice of such election within 5 Business Days of the
date
the Lessee receives such written notice of the Lessor’s election to terminate
this Lease due to such Limited Recourse Event of Default.
In
the
event the Lessee fails to give timely written notice of such election to
the
Lessor on or before the dates herein provided, the Lessee shall be deemed
to
have elected to purchase the Facility on the Lease Termination Date for the
Purchase Price.
Section
3. Payments.
(a) Basic
Rent.
The
Lessee shall pay to the Lessor on the Rent Payment Date for each Rental Period
the amount of Basic Rent due for such Rental Period during the Basic
Term.
(b) Final
Rent Payment.
On the
earlier to occur of the Scheduled Lease Termination Date or the Option Date,
Lessee shall pay to the Lessor the Final Rent Payment or, if the Company
has
elected to purchase the Facility, the Purchase Price.
(c) Supplemental
Rent.
In
addition to Basic Rent and the Final Rent Payment, the Lessee will also pay
to
the Lessor, from time to time, within 10 Business Days after demand by the
Lessor, or otherwise as and when due pursuant to the Operative Documents,
as
additional rent (“Supplemental
Rent”)
the
following (but without duplication of any amounts included in the calculation
of
Rent):
(i)
all
out-of-pocket costs and expenses reasonably incurred by the Lessor and the
Administrative Agent in connection with the preparation, negotiation, execution,
delivery, performance and administration of this Lease and the other Operative
Documents, including, but not limited to, the following: (A) fees and expenses
of the Lessor and the Administrative Agent, including, without limitation,
reasonable attorneys' fees and expenses and the fees and expenses for the
Approved Appraisal, the Related Contracts, and the Survey, the Environmental
Assessment, the title policy referred to in Section 6.01(k) of the Investment
Agreement; (B) all other amounts owing to the Lessor, the Administrative
Agent,
and the Lease Participants pursuant hereto or any other Operative Documents,
including, without limitation, the Upfront Supplemental Rent, the Arranger’s
Supplemental Rent and the Administrative Supplemental Rent payable pursuant
to
Section 2.04 of the Investment Agreement, and all fees, indemnities, expenses,
compensation in respect of increased costs of any kind or description payable
under the Investment Agreement or any other Operative Document; (C) all yield
maintenance, capital adequacy and other costs contemplated under Article
V of
the Investment Agreement, and (D) all out-of-pocket costs and expenses incurred
by the Lessor or the Administrative Agent (and, in the case of clause (3)
below,
any Lease Participant) after the date of this Lease (including, without
limitation, reasonable attorneys' fees and expenses and other expenses and
disbursements reasonably incurred) associated with (1) negotiating and entering
into, or the giving or withholding of, any future amendments, supplements,
waivers or consents with respect to this Lease; (2) any Loss Event, Casualty
Occurrence or termination of this Lease; and (3) any Default or Event of
Default
and the enforcement and preservation of the rights or remedies of the Lessor
under this Lease and the other Operative Documents and all reasonable costs
and
expenses incurred by the Lessor or the Administrative Agent or any of their
affiliates in syndicating to Lease Participants on or about the Restatement
Closing Date all or any part of its interests under the Operative Documents,
including, without limitation, the related reasonable fees and out-of-pocket
expenses of counsel for the Lessor, the Administrative Agent, or their
affiliates, travel expenses, duplication and printing costs and courier and
postage fees, and excluding any fees paid to the Lessor or any Lease Participant
purchasing such an interest after the Restatement Closing Date; and
(ii)
all
other amounts that the Lessee agrees herein to pay other than Basic Rent,
the
Final Rent Payment and amounts described in clause (i) above.
(d) Computations.
All
computations of Basic Rent shall be made by the Lessor on the basis of a
year of
360 days (or, in the case of computations based on the Base Rate, 365/366
days),
in each case for the actual number of days (including the first day but
excluding the last day) occurring in the Rental Period for which such Basic
Rent
payments are payable. Whenever any payment hereunder shall be stated to be
due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of Rent; provided,
however,
that if
such extension would cause payment of Basic Rent to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) No
Offsets.
This
Lease is an absolute net lease, and Rent and all other sums payable by the
Lessee hereunder shall be paid without notice except as otherwise expressly
provided herein, and the Lessee shall not be entitled to any abatement,
reduction, setoff, counterclaim, defense or deduction with respect to any
Rent
or other sums payable hereunder. The obligations of the Lessee to pay Rent
and
all other sums payable hereunder shall not be affected by reason of: (i)
any
damage to, or destruction of, the Facility or any part thereof by any cause
whatsoever (including, without limitation, fire, casualty or act of God or
enemy
or any other force majeure event); (ii) any condemnation, including, without
limitation, a temporary condemnation of the Facility or any part thereof;
(iii)
any prohibition, limitation, restriction or prevention of the Lessee's use,
occupancy or enjoyment of the Facility or any part thereof by any Person
(other
than by the Lessor in violation of this Lease); (iv) any matter affecting
title
to the Facility or any part thereof; (v) any eviction of the Lessee from,
or
loss of possession by the Lessee of, the Facility or any part thereof, by
reason
of title paramount or otherwise (other than by the Lessor in violation of
this
Lease); (vi) any default by the Lessor hereunder or under any other Operative
Document; (vii) the invalidity or unenforceability of any provision hereof
or
the impossibility or illegality of performance by the Lessor or the Lessee
or
both; (viii) any action of any Governmental Authority; or (ix) any other
Loss
Event, Casualty Occurrence or other cause or occurrence whatsoever, whether
similar or dissimilar to the foregoing. The Lessee shall remain obliged under
this Lease in accordance with its terms and shall not take any action to
terminate, rescind or avoid this Lease, except as expressly provided in Section
15, notwithstanding any bankruptcy, insolvency, reorganization, liquidation,
dissolution or other proceeding affecting the Lessor or any action with respect
to this Lease which may be taken by any trustee, receiver or liquidator or
by
any court. The Lessee waives all rights to terminate or surrender this Lease,
except as expressly provided in Section 15, or to any abatement or deferment
of
Rent or other sums payable hereunder. The Lessee hereby waives any and all
rights now or hereafter conferred by law or otherwise to modify or to avoid
strict compliance with its obligations under this Lease. All payments made
to
the Lessor hereunder as required hereby shall be final and irrevocable, and
the
Lessee shall not seek to recover any such payment or any part thereof for
any
reason whatsoever, absent manifest error.
(f) Taxes.
Subject
to the Lessee's contest rights under Section 13, all payments of Rent and
all
other amounts to be paid by the Lessee hereunder to the Lessor shall be made
without deduction for, and free from, any taxes, imposts, levies, duties,
deductions or withholdings of any nature now or at any time hereafter imposed
by
any Governmental Authority or by any taxing authority thereof or therein
imposed
or levied upon, assessed against or measured by any Rent or other sums payable
hereunder excluding taxes imposed on or measured by the net income or net
worth
of the Lessor or any Lease Participant and franchise taxes imposed on the
Lessor
or any Lease Participant, and any tax arising by reason of a connection between
the Lessor or any Lease Participant or the jurisdiction of the Lessor or
any
Lease Participant or the Applicable Funding Office of the Lessor or any Lease
Participant and the jurisdiction imposing such tax (all such non-excluded
taxes,
imposts, levies, duties, deductions or withholdings of any nature being
“Taxes”).
In
the event that the Lessee is required by applicable law to make any such
withholding or deduction of Taxes with respect to any Rent or other amount,
the
Lessee shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to the Lessor or such Lease Participant
in
respect of which such deduction or withholding is made all receipts and other
documents evidencing such payment and shall pay to the Lessor or such Lease
Participant additional amounts as may be necessary in order that the amount
received by the Lessor or such Lease Participant after the required deduction
or
withholding shall equal the amount the Lessor or such Lease Participant would
have received had no such deduction or withholding been made. In addition,
the
Lessee agrees that it will promptly pay all other Impositions imposed upon
or
levied or assessed against the Facility or any part thereof, or against the
Lessor or any Lease Participant in connection with the transactions contemplated
by this Lease and the other Operative Documents, or any sums levied in
connection with the execution, delivery or recording of the Operative Documents,
and will furnish to the Lessor or any Lease Participant upon request copies
of
official receipts or other proof evidencing such payment; provided,
however,
that
the Lessee shall not be obligated to pay (i) any Impositions that are excluded
from the definition of Taxes; or (ii) any Impositions attributable to the
gross
negligence or willful misconduct of the Lessor or any Lease Participant.
The
Lessee further agrees that, subject to its contest rights under Section 13,
it
will, at its expense, do all things required to be done by the Lessor in
connection with the levy, assessment, billing or payment of any Impositions
that
it is required to pay pursuant to the preceding sentence, and is hereby
authorized by the Lessor or any Lease Participant to act for and on its behalf
in any and all such respects and to prepare and file, on behalf of the Lessor
or
any Lease Participant, all tax returns and reports required to be filed by
the
Lessor or any Lease Participant (other than federal income tax returns and
documents related thereto, subject to Section 25) concerning the Facility.
The
Lessee's payment obligations under this Section 3(f) shall survive the
termination of this Lease. In the event that any withholding or deduction
from
any payment to be made by the Lessee hereunder is required in respect of
any
Imposition pursuant to any Governmental Requirement, then the Lessee
will:
(1) pay
directly to the relevant Governmental Authority the full amount required
to be
so withheld or deducted;
(2) promptly
forward to the Lessor, if available, an official receipt or other documentation
satisfactory to the Lessor evidencing such payment to such Governmental
Authority; and
(3) pay
to
the Lessor or any Lease Participant, as applicable, such additional amount
or
amounts as is necessary to ensure that the net amount actually received by
the
Lessor or such Lease Participant will equal the full amount the Lessor or
such
Lease Participant would have received had no such withholding or deduction
been
required.
(g) Payments
to the Lessor; Payments to the Administrative Agent on Lessor’s
Behalf.
The
Lessee acknowledges and agrees that, pursuant to Section 10.02 of the Investment
Agreement, Lessor and the Lease Participants have appointed the Administrative
Agent to, among other things, receive on their behalf and for their account
all
payments which are otherwise to be made directly to Lessor or the Lease
Participants, as applicable, under the Operative Documents and to disburse
on
behalf of Lessor all payments which are otherwise to be made by Lessor under
the
Operative Documents, and Lessee agrees that it shall pay all amounts due
under
this Lease to the Lessor or the Lease Participants directly to the
Administrative Agent on the Lessor’s or Lease Participants’ behalf, as
applicable, and for the Lessor’s or Lease Participants’ account, as applicable.
Receipt of any such payments by the Administrative Agent shall constitute
constructive receipt thereof by the Lessor or the Lease Participants, as
applicable. All such payments required to be made to the Lessor shall be
made
not later than 1:00 P.M., Charlotte, North Carolina, time, on the date due,
in
immediately available funds, to such account as the Lessor shall specify
from
time to time by notice to the Lessee. Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, except as otherwise
expressly provided herein or in the Investment Agreement, such payment shall
be
made on the next succeeding Business Day and such extension shall be included
in
computing Rent, interest, yield and fees, if any, in connection with such
payment.
(h) Default
Rate.
The
Lessee shall pay on demand to the Lessor interest at the Default Rate on
all
amounts payable by the Lessee to the Lessor hereunder or under the Operative
Documents in respect of overdue principal of, Yield on, and other amounts
owing
in respect of all Rent and all other amounts payable under this Lease, the
Investment Agreement or any of the other Operative Documents, from the due
date
thereof until paid in full.
Section
4. Anti-Terrorism
Laws.
Lessee
shall, at its expense, comply with all Anti-Terrorism Laws and will comply
in
all respects with all terms and conditions set forth in the Investment Agreement
relating to Anti-Terrorism Laws, all of which are incorporated herein by
this
reference.
Section
5. Title
to
Facility.
Title
to
all components of the Facility are vested in and shall remain in the Lessor,
and
such components shall be subject to the terms and conditions of this
Lease.
Section
6. Title
to Remain in the Lessor.
The
Lessor shall own 100% of the ground lease of the Site and the legal and
beneficial interest in the remainder of the Facility. All accessories,
equipment, parts, fixtures and devices affixed or placed on the Facility
from
time to time by the Lessee, other than “Excluded
Equipment,”
and
all modifications, alterations, renovations or improvements to the Facility
made
by the Lessee shall be and become part of the Facility for the purposes of
this
Lease and shall be Property of the Lessor subject to the terms of this Lease;
provided that the Lessor's interest in any part of the Facility that is replaced
by the Lessee pursuant to and as permitted by the terms of this Lease shall
be
deemed released from this Lease (and the Collateral) and thereupon become
the
Property of the Lessee automatically, without further action by the Lessor,
and
the Lessor shall perform all acts and execute all documents that the Lessee
reasonably requests to give effect to the foregoing at the expense of the
Lessee, including the execution and delivery of bills of sale and other
documents of transfer. This Lease shall not give or grant to the Lessee any
right, title or interest in or to the Facility, except the rights expressly
conferred by this Lease. The term “Excluded
Equipment”
shall
mean any computer equipment, telephone equipment, copier equipment, facsimile
equipment or other office equipment which is (i) acquired by the Lessee with
its
own funds or leased under separate lease agreements from third party lessors
and
not acquired in whole or in part with the proceeds of Lessor Investments,
and
(ii) does not constitute a modification or replacement of or supplement or
accession to any part of the Facility.
Section
7. Maintenance
of the Facility; Operations.
(a) The
Lessee shall, and it shall require and cause any and all employees, contractors,
subcontractors, agents, representatives, affiliates, consultants and occupants
at the Lessee's own cost and expense to: (i) cause the Facility to be maintained
in all material respects in good operating order, repair and condition, in
accordance with prudent industry practice and any applicable manufacturer's
or
supplier's manuals or warranties, subject to normal wear and tear, and take
all
action, and make all changes and repairs, structural and non-structural,
foreseen and unforeseen, ordinary and extraordinary, which are required pursuant
to any Governmental Requirement or Insurance Requirement at any time in effect
to assure full compliance therewith in all material respects; and (ii) do
all
things necessary to prevent the incurrence of any Environmental Damages or
Environmental Liabilities relating to the Facility or any business conducted
in
or relating to the Facility or the Site, and cause the Facility to continue
to
have at all times, in all material respects, and in compliance with all
applicable Governmental Requirements and Insurance Requirements, the capacity
and functional ability to perform, on a continuing basis (subject to normal
interruption in the ordinary course of business for maintenance, inspection,
service, repair and testing) and in commercial operation, the functions for
which it was designed as specified in the Facility Plan and to be utilized
commercially for the Permitted Use.
(b) The
Lessee shall, and it shall require and cause any and all employees, contractors,
subcontractors, agents, representatives, affiliates, consultants and occupants
at the Lessee's own cost and expense to, promptly replace, or cause to be
replaced, any part of the Facility which may from time to time be incorporated
or installed in or attached to the Facility, and which may from time to time
become worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond
repair, obsolete or permanently rendered unfit for use for any reason
whatsoever. All replacement parts shall be free and clear of all Liens other
than Permitted Liens, and, except for temporary accessions and replacement
parts
utilized pending installation of permanent replacement parts, shall be of
a type
customarily used in the industry at such time for such purpose, shall be
in as
good operating condition as, and shall have a utility and useful life at
least
equal to, the parts replaced (assuming such replaced parts were in the condition
and repair required to be maintained by the terms hereof) and shall have
a value
at least equal to the parts replaced (assuming such replaced parts were in
the
condition and repair required to be maintained by the terms
hereof).
(c) Notwithstanding
the provisions of Section 8 and the foregoing provisions of this Section
7, the
Lessee shall not (except as may be required by any Governmental Requirement)
remove, replace or alter any part of the Facility or affix or place any
accessory, equipment, part or device on any part of the Facility, if such
removal, replacement, alteration or addition would impair the originally
intended function or use of the Facility so as to materially reduce the value
of
the Facility taken as a whole, or materially decrease the estimated useful
life
of the Facility.
(d) The
Lessor shall not be required in any way to maintain, repair or rebuild the
Facility or any part thereof and the Lessee waives any right it may now or
hereafter have to make any repairs at the expense of the Lessor pursuant
to any
Governmental Requirement at any time in effect or otherwise.
(e) The
Lessee shall, and it shall require and cause any and all employees, contractors,
subcontractors, agents, representatives, affiliates, consultants and occupants
at the Lessee's own cost and expense to: (i) comply in all material respects
with all applicable Environmental Requirements with regard to the Facility
and
all parts thereof; and (ii) use, employ, process, emit, generate, store,
handle,
transport, dispose of and/or arrange for the disposal of, any and all Hazardous
Materials in, on or, directly or indirectly, related to or in connection
with
the Facility or any part thereof in a manner consistent with prudent industry
practice and in compliance with any applicable Environmental Requirement.
The
Lessor and the Lessee hereby acknowledge and agree that the Lessee's obligations
hereunder with respect to Environmental Requirements are intended to bind
the
Lessee with respect to matters and conditions involving the Facility or any
part
thereof.
Section
8. Modifications.
(a) The
Lessee shall make no modifications, alterations, renovations or improvements
to
the Facility without the prior written consent of the Lessor, provided however,
that subject to the terms of Section 8(b), the Lessee shall have the right
to
make modifications, alterations, renovations or improvements to the Facility
so
long as such modifications, alterations, renovations or improvements do not
(except as may be required by any Governmental Requirement) (i) materially
reduce the value of the Facility as a whole; (ii) materially and adversely
affect the capacity and performance of the Facility on a continuing basis
in
commercial operation of the function for which the Facility was designed
as
specified in the Facility Plan; (iii) materially deviate from the Facility
Plan;
or (iv) materially and adversely affect the estimated useful life of the
Facility. Within 20 Business Days of the end of each calendar quarter, an
Authorized Officer of the Lessee shall deliver to the Lessor a schedule
certifying to the Lessor's reasonable satisfaction: (x) the nature of the
repairs, replacements, modifications, alterations, renovations or improvements
to the Facility made during such quarter having a cost of at least $500,000
at
the time made, and (y) that the Facility continues to have, in all material
respects, the capacity and functional ability to perform on a continuing
basis
(subject to normal interruption in the ordinary course of business for
maintenance, inspection, service, repair and testing) and in commercial
operation, the functions for which it was designed as specified in the Facility
Plan or, if not, specifying the reason for any such deficiency, including,
without limitation, the occurrence and nature of any Loss Event or Casualty
Occurrence with respect to the Facility.
(b) If
the
Lessee determines that any part of the Facility is no longer necessary for
the
performance of the Facility on a continuing basis in commercial operation
of the
function for which the Facility was designed as specified in the Facility
Plan,
then the Lessee (except when such action or removal may be required by any
applicable Governmental Requirement, in which event, the Lessee shall promptly
give the Lessor notice of such action or removal) shall give the Lessor at
least
30 days' notice prior to taking any action as the result of such determination
and shall not remove any such part unless and until the Lessor has determined
that (i) such part is no longer necessary for the performance of the Facility
on
a continuing basis in commercial operation of the function for which the
Facility was designed in all material respects as specified in the Facility
Plan, (ii) removal of such part does not materially reduce the value of the
Facility as a whole, and (iii) removal of such part does not materially decrease
the estimated useful life of the Facility. This Section 8(b) shall not apply
to
worn out or obsolete Property or damaged Property (to the extent such damage
does not constitute a Casualty Occurrence or Loss Event) removed and replaced
by
the Lessee in accordance with Section 7(b).
Section
9. Further
Assurances.
The
Lessee, at its expense, shall execute, acknowledge and deliver from time
to time
such further counterparts of this Lease or a memorandum of this Lease acceptable
to the Lessor or such affidavits, certificates, certificates of title, bills
of
sale, financing and continuation statements, consents and other instruments
as
may be required by applicable law or reasonably requested by the Lessor in
order
to evidence the Lessor's ground lease of the Site and title to the remainder
of the
Facility and the Lessor's interests in this Lease, and shall, at the Lessee's
expense, cause such documents to be recorded, filed or registered in such
places
as the Lessor reasonably may request and to be re-recorded, refiled or
re-registered in such places as may be required by applicable law or at such
times as may be required by applicable law in order to maintain and continue
in
effect the recordation, filing or registration thereof. The Lessor shall
not
grant or create any Lien on the Facility to any Person except Permitted Liens,
Liens in favor of the Lessor (for itself and in trust for the Lease
Participants) and Liens pursuant to this Lease, the Security Instruments
and the
other Operative Documents.
Section
10. Compliance
with Governmental Requirements and Insurance Requirements: Related
Contracts.
The
Lessee, at its expense, will comply with all Governmental Requirements
applicable to the Facility or any part thereof or the ownership, construction,
operation, mortgaging, occupancy, possession, use, non-use or condition of
the
Facility or any part thereof, all Insurance Requirements, and all instruments,
contracts or agreements affecting title to ownership of the Facility or any
part
thereof. In addition, the Lessee (as Lessee under this Lease or as Lessor’s
agent in accordance with Section 8.30 of the Investment Agreement), so long
as
Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement,
of its own accord or at the direction of the Majority Funding Parties) has
not
commenced the exercise of remedies under the Operative Documents, is hereby
authorized by the Lessor to, and shall, fully and promptly keep, observe,
perform and satisfy on behalf of the Lessor any and all obligations, conditions,
covenants and restrictions of or on the Lessor or the Lessee under any and
all
Related Contracts so that there will be no default thereunder and so that
the
other parties thereunder shall be, and remain at all times, obliged to perform
their obligations thereunder, and the Lessee, to the extent within its control,
shall not permit to exist any condition, event or fact that could allow or
serve
as a basis or justification for any such Person to avoid such
performance.
Section
11. Condition
and Use of Facility; Quiet Enjoyment.
(a) THE
FACILITY IS LEASED AND THE LESSEE ACCEPTS AND TAKES POSSESSION OF THE FACILITY
AS IS, WHERE IS, AND WITH ALL FAULTS AND IN THE CONDITION THEREOF AND SUBJECT
TO
THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF, THE STATE OF THE TITLE THERETO,
THE RIGHTS OF OWNERSHIP THEREIN AND SUBJECT TO ALL GOVERNMENTAL REQUIREMENTS
NOW
IN EFFECT OR HEREAFTER ADOPTED, IN EACH CASE AS IN EXISTENCE WHEN THE SAME
FIRST
BECOMES SUBJECT TO THIS LEASE, WITHOUT REPRESENTATIONS AND WARRANTIES OF
ANY
KIND AS TO TITLE BY THE LESSOR (OTHER THAN, AS TO THE LESSOR, THE ABSENCE
OF ANY
“LESSOR LIENS,” AS DEFINED IN SECTION 16(a) HEREOF), ANY LEASE PARTICIPANT OR
ANY PERSON ACTING ON BEHALF OF ANY OF THEM. THE LESSEE ACKNOWLEDGES AND AGREES
THAT THE FACILITY HAS NOT BEEN SELECTED BY THE LESSOR, ANY LEASE PARTICIPANT,
ARRANGER, OR ADMINISTRATIVE AGENT THAT NONE OF THE LESSOR, ANY LEASE
PARTICIPANT, ARRANGER, OR ADMINISTRATIVE AGENT HAS SUPPLIED ANY SPECIFICATIONS
WITH RESPECT TO THE FACILITY AND THAT NONE OF THE LESSOR, ANY LEASE PARTICIPANT,
ARRANGER, OR ADMINISTRATIVE AGENT (I) IS A VENDOR OF, OR MERCHANT OR SUPPLIER
WITH RESPECT TO, ANY OF THE PROPERTY COMPRISING THE FACILITY OR ANY PROPERTY
OF
SUCH KIND, (II) HAS MADE ANY RECOMMENDATION, GIVEN ANY ADVICE OR TAKEN ANY
OTHER
ACTION WITH RESPECT TO THE CHOICE OF ANY MANUFACTURER, SUPPLIER OR TRANSPORTER
OF, OR ANY VENDOR OF OR OTHER CONTRACTOR, INCLUDING, WITHOUT LIMITATION,
WITH
RESPECT TO PROPERTY COMPRISING THE FACILITY, (III) HAS AT ANY TIME HAD PHYSICAL
POSSESSION OF ANY SUCH PROPERTY, (IV) HAS MADE OR IS MAKING ANY WARRANTY,
EXPRESS OR IMPLIED, RELATING TO THE FACILITY, INCLUDING WITHOUT LIMITATION,
WITH
RESPECT TO TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OTHERWISE, THE DESIGN, CONDITION, QUALITY OF MATERIAL OR WORKMANSHIP, CONFORMITY
TO SPECIFICATIONS, FREEDOM FROM PATENT OR TRADEMARK INFRINGEMENT, ABSENCE
OF ANY
LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, WHETHER ARISING PURSUANT
TO THE UCC OR ANY OTHER PRESENT OR FUTURE LAW OR OTHERWISE, OR COMPLIANCE
WITH
APPLICABLE PERMITS OR OTHER GOVERNMENTAL REQUIREMENTS, OR (V) SHALL BE LIABLE
FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LIABILITY IN TORT, STRICT
OR
OTHERWISE). IN THE EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE
FACILITY OR ANY PROPERTY OR OTHER ITEM CONSTITUTING A PART THEREOF, WHETHER
PATENT OR LATENT, NONE OF THE LESSOR, ANY LEASE PARTICIPANT, ARRANGER, OR
ADMINISTRATIVE AGENT SHALL HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT
THERETO. THE PROVISIONS OF THIS SECTION 11 HAVE BEEN NEGOTIATED AND ARE INTENDED
TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY AND ALL WARRANTIES, EXPRESS
OR
IMPLIED, BY THE LESSOR, THE LEASE PARTICIPANTS, ARRANGER, AND ADMINISTRATIVE
AGENT WITH RESPECT TO THE FACILITY OR ANY PROPERTY OR OTHER ITEM CONSTITUTING
A
PART THEREOF, WHETHER ARISING PURSUANT TO THE UCC OR ANY OTHER LAW NOW OR
HEREAFTER IN EFFECT.
(b) The
Lessor hereby assigns to the Lessee, until the occurrence of a Cancellation
Event or Termination Event hereunder, the benefits in respect of any Vendor's
warranties or undertakings, express or implied, relating to the Facility
(including any labor, equipment or parts supplied therewith), and, to the extent
assignment of the same is prohibited or precludes enforcement of any such
warranty or undertaking, the Lessor hereby subrogates the Lessee to its rights
in respect thereof. The Lessor hereby authorizes the Lessee, at the Lessee's
expense, to assert any and all claims and to prosecute any and all suits,
actions and proceedings, in its own name or in the name of the Lessor, in
respect of any such warranty or undertaking and, except during the continuance
of an Event of Default, or after the occurrence of a Cancellation Event or
Termination Event hereunder, to retain the proceeds received, and after the
termination of this Lease or after the occurrence of a Cancellation Event
or
Termination Event, to pay the same in the form received (with any necessary
endorsement) to the Lessor.
(c) The
Lessee may use the Facility for the Permitted Use provided that the value
of the
Facility is not diminished by any such use other than as a result of normal
wear
and tear in the ordinary course of business. During the term of this Lease,
the
Lessor covenants that unless a Cancellation Event or a Termination Event
has
occurred and is continuing and except as may arise under a Permitted Lien
or as
may otherwise be contemplated under the Operative Documents, the Lessor will
not, and will not permit any party claiming by, through or under the Lessor
to,
interfere with the peaceful and quiet possession and enjoyment of the Facility
by the Lessee; provided,
however,
that
the Lessor and the Lease Participants and their respective successors, assigns,
representatives and agents may, upon reasonable notice to the Lessee, enter
upon
and examine the Facility or any part thereof at reasonable times, subject
to the
provisions of Section 19; and provided
further,
however,
that
the Lessor is not hereby warranting the state or quality of the title to
any
part of the Facility. Any failure by the Lessor to comply with the foregoing
provisions of this Section 11(c) shall not give the Lessee any right to cancel
or terminate this Lease, or to xxxxx, reduce or make reduction from or offset
against any Rent or other sum payable under this Lease or any other Operative
Document, or to fail to perform or observe any other covenant, agreement
or
obligation hereunder or thereunder. The Lessee will not do, or fail to do,
or
permit or suffer to exist any act or thing, which action or thing or failure
might impair the value, use or usefulness of the Facility for the Permitted
Use
in accordance with the design of the Facility, ordinary wear and tear
excepted.
Section
12. Liens.
The
Lessee will not directly or indirectly create, or permit to be created or
to
remain, and at the Lessee's expense will discharge within 30 days of notice
of
the filing or assertion thereof, by bond, deposit or otherwise, any Lien
upon
the Lease or the Facility except (i) any Lien being contested as permitted
by
and in accordance with Section 13, or (ii) Permitted Liens. The Lessor agrees
that the Lessee shall have during the term of this Lease the exclusive right
(so
long as no Event of Default has occurred and is continuing) to grant, create
or
suffer to exist Permitted Liens in the ordinary course of business and in
accordance with prudent industry practices, provided that the fair market
value
or use of the Facility or the applicable part thereof for the Permitted Use
is
not materially lessened thereby. The Lessor agrees to execute such documents
and
take all other actions as shall be reasonably necessary, and otherwise to
cooperate with the Lessee in connection with the matters described above,
provided that all reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred by
the
Lessor in connection therewith shall be borne by the Lessee, and the Lessor
shall not be required to execute any document that would, in the opinion
of the
Lessor, materially and adversely affect the value or use of the Facility
or any
part thereof for the Permitted Use or otherwise materially and adversely
affect
the transactions contemplated by the Operative Documents or the interests
of the
Lessor or the Lease Participants in the Facility or under the Operative
Documents or otherwise.
(a) The
Lessor will not directly or indirectly create, or permit to be created or
to
remain, and will discharge, any Lien of any nature whatsoever on, in or with
respect to, its interest in the Facility arising by or through it or its
actions, except Permitted Liens.
(b) The
Lessee will not directly or indirectly sell, transfer, or otherwise dispose
of
its interest in the Facility.
Section
13. Permitted
Contests.
Notwithstanding
any other provision of this Lease to the contrary, after prior written notice
to
the Lessor and provided there is no material risk of sale, forfeiture or
loss of
the Facility or any material part thereof, the Lessee may at its expense
contest
any Imposition which it is required to pay hereunder, by appropriate proceedings
conducted in good faith and with due diligence, so long as such proceedings
are
effective to prevent the collection of such Imposition from the Lessor or
the
Lease Participants or against the Facility or any part thereof (or if such
amounts have been paid by the Lessee under protest in connection therewith);
provided,
however,
that
the actions of the Lessee, as authorized by this Section 13, shall be subject
to
the express written consent of the Lessor if such actions would subject the
Lessor or any such Lease Participant or the Facility or any part thereof
to any
liability or loss not indemnified in full by the Lessee hereunder or any
sanction, criminal or otherwise, for failure to pay any such Imposition.
The
Lessee will pay, and save the Lessor and each such Lease Participant harmless
against, all losses, Judgments and reasonable costs, including reasonable
attorneys' fees and expenses, in connection with any such contest and will,
promptly after the final determination of such contest, pay and discharge
the
amounts which shall be imposed or determined to be payable therein, together
with all penalties, costs and expenses incurred in connection therewith.
The
Lessee shall prevent any foreclosure, judicial sale, taking, loss or forfeiture
of the Facility or any part thereof, or any interference with or deductions
from
any Rent or any other sum required to be paid by the Lessee hereunder by
reason
of such nonpayment or nondischarge of an Imposition. The Lessor shall cooperate
with the Lessee in any contest and shall allow the Lessee to conduct such
contest (in the name of the Lessor, if necessary) at the Lessee's sole cost
and
expense; and the Lessee shall indemnify and hold the Lessor harmless from
and
against all liabilities, costs and expenses in connection with such contest.
The
Lessee shall notify the Lessor of each such proceeding within 10 days after
the
commencement thereof, which notice shall describe such proceeding in reasonable
detail.
Section
14. Insurance,
etc.
(a) The
Lessee will, at its own expense, purchase and maintain, or cause to be purchased
and maintained throughout the term of this Lease, insurance with respect
to its
business and the Facility in accordance with the requirements of Schedule
14.
(b) The
Lessee shall bear all risk of loss (including any Loss Event or Casualty
Occurrence), whether by casualty, theft, taking, confiscation or otherwise,
with
respect to the Facility or any part thereof, at all times during the term
of
this Lease until possession of the Facility has been accepted by the Lessor
pursuant to Section 17.
(c) So
long
as no Termination Event or Cancellation Event shall have occurred, any payments,
whether constituting insurance proceeds, amounts paid by any Governmental
Authority or otherwise, received by the Lessee or the Lessor upon the occurrence
of any loss with respect to the Facility or part thereof (other than a Casualty
Occurrence), whether as a result of casualty, theft, taking or other
confiscation, shall be applied in payment for necessary repairs and replacement
to the Facility in accordance with Section 7 or, to the extent the costs
of such
repairs and replacement shall have been paid by the Lessee, to reimburse
the
Lessee. The Lessee shall be entitled to retain any excess funds remaining
after
necessary repairs and replacements have been completed and all costs therefor
paid in full. Upon the occurrence of any Termination Event or Cancellation
Event, the Lessor shall be entitled to receive and retain any such payments
for
application to the obligations of the Lessee hereunder.
(d) Upon
a
Casualty Occurrence, the Lessee shall give prompt notice thereof to the Lessor
and shall within 60 days of the date of such Casualty Occurrence either (i)
offer to purchase the whole of the Facility for the Purchase Price as provided
in Section 15(b)(ii), or (ii) provide the Lessor with a replacement plan
acceptable to the Lessor setting forth how the Lessee shall replace, or cause
to
be replaced, at the Lessee's own cost and expense, in no event later than
the
Scheduled Lease Termination Date such part of the Facility that is the subject
of a Casualty Occurrence in accordance with this Section 14(d) and Section
7. If
the Lessee chooses the option set forth in clause (ii) of the preceding
sentence, within the later to occur of (x) 60 days after the date of the
Casualty Occurrence and (y) satisfaction of all applicable Governmental
Requirements, and obtaining all authorizations of Governmental Authorities,
required therefor (but in no event later than 180 days after the date of
the
Casualty Occurrence), the Lessee shall have commenced repairs or replacements
as
specified in the replacement plan and shall thereafter proceed diligently
with
such repairs and replacements to completion. After completion of the repairs
and
replacements, the Lessee shall demonstrate to the satisfaction of the Lessor
that operations, capacity and production from the Facility have been restored
to
the standards required for “Completion” (as such term was defined and used in
the Original Lease Documents).
(e) All
replacement Property of the Facility (other than temporary replacement parts
and
equipment installed pending installation of permanent replacement Property)
installed pursuant to Section 14(d) shall be free and clear of all Liens
except
Permitted Liens, and shall be in as good operating condition as, and shall
have
a value and utility at least equal to, the Property replaced immediately
prior
to the Casualty Occurrence to which such Property was subject. For purposes
of
this Lease (including without limitation Section 14(d) and Section 7), the
Funded Amount and book value of the replacement Property shall be deemed
to
equal the Funded Amount and book value of the part(s) replaced thereby. All
Property of the Facility at any time removed from this Lease pursuant to
Section
14(d) and Section 7 shall remain the property of the Lessor, no matter where
located, until such time as insurance proceeds have been received by the
Lessor
at least equal to the book value of such part of the Facility or such part
shall
be replaced by suitable items that have been incorporated or installed on
or
attached to the Facility and that meet the requirements specified above.
Immediately upon any permanent replacement Property becoming incorporated
or
installed on or attached to the Facility as provided above, without further
act,
such permanent replacements shall become subject to this Lease and be deemed
part of the Facility for all purposes hereof to the same extent as any other
parts of the Facility. All amounts of insurance proceeds for Property losses
and
all other proceeds (whether resulting from damage or destruction or from
condemnation, confiscation or seizure) relating to the Facility shall be
held
and released, together with accrued interest thereon, as hereinafter provided.
So long as a Cancellation Event or Termination Event shall not have occurred,
and provided that the Lessor shall have received a written application of
the
Lessee accompanied by a certificate of an Authorized Officer of the Lessee
showing in reasonable detail the nature of any necessary repair, rebuilding
and
restoration, the actual cash expenditures necessary for such repair, rebuilding
and restoration, the expected total expenditures required to complete such
work
and evidence that sufficient funds are or will be available to complete such
work on a timely basis (such certificate to be acceptable to the Lessor in
all
respects), then the amount of such proceeds, together with accrued interest
thereon, shall be released by the Lessor immediately upon receipt of such
certification or, if applicable, from time to time on the last Business Day
of
each month during the period of repair, rebuilding and restoration in payment
therefor against presentation to the Lessor of a certificate executed by
an
Authorized Officer of the Lessee to the effect that expenditures have been
made,
or costs incurred, by or for the account of the Lessee or are reasonably
anticipated to be made during the immediately following one month period
in a
specified amount for the purposes of making repairs, rebuilding and restoration
in the amounts specified, that no Event of Default, Cancellation Event or
Termination Event exists and all conditions precedent herein provided relating
to such withdrawal and payment have been satisfied. Upon the occurrence of
any
Termination Event or Cancellation Event, the Lessor shall be entitled to
retain
all such proceeds for application to the obligations of the Lessee
hereunder.
(f) If
any
Loss Event or Casualty Occurrence shall occur, the Lessee shall promptly
notify
the Lessor of such event in writing.
Section
15. Termination;
Cancellation; Purchase Option.
(a) (i) The
termination of this Lease (A) on the Scheduled Lease Termination Date or
(B) by
reason of the occurrence of a Limited Recourse Event of Default and the delivery
by the Lessor (acting, in accordance with Section 9.02(f) of the Investment
Agreement, of its own accord or at the direction of the Majority Funding
Parties) to the Lessee of a notice stating that the Lessor elects to terminate
this Lease by reason of the occurrence of such Limited Recourse Event of
Default, in which case the Lease Termination Date will be the 5th Business
Day
after the date of delivery of said notice to the Lessee, shall be a
“Termination
Event,”
the
effect of which shall be to cause this Lease to terminate on the applicable
Lease Termination Date.
(ii) If
a
Termination Event occurs, the Lessee, on the Lease Termination Date, shall,
in
accordance with the terms of Section 2(b), without further notice or demand
to
the Lessee, either
(A) purchase
the Facility from the Lessor for the Purchase Price; or
(B) so
long
as no Cancellation Event has occurred:
(i) pay
to
the Lessor the Final Rent Payment and provide to the Lessor a satisfactory
update of the Environmental Assessment; and
(ii) attempt
to sell (until such time as the Lessor shall have terminated, in accordance
with
Section 8.30 of the Investment Agreement, the Lessee's obligation to so attempt
to sell the Facility), subject to the Lessor's prior written approval, the
Facility, as agent for the Lessor, without recourse or warranty by the Lessor,
to a Person not affiliated with Lessee for a net cash purchase price not
less
than, and remit to the Lessor the net cash sales proceeds equal to (unless
otherwise approved by all of the Funding Parties), the Termination Value
less
any amount paid pursuant to Section 15(a)(ii)(B)(i), with Lessee’s being
entitled to retain for its own account the amount by which such proceeds
exceed
the Termination Value. The Lessor shall also have the right (but not the
obligation) to sell the Facility and/or solicit bids, each in its sole and
absolute discretion.
(b) (i) Each
of
the following events shall be a “Cancellation
Event”,
the
effect of which shall be to cause this Lease to be terminated in accordance
with
the following provisions on the “Cancellation
Date”
specified:
(A) the
occurrence of (1) a Lease Event of Default (other than a Lease Event of Default
under Section 17(a)(iv) hereof, a Lease Event of Default occurring by virtue
of
an Event of Default under Section 9.01(h) or (i) of the Investment Agreement,
or
a Limited Recourse Event of Default) and the delivery by the Lessor to the
Lessee of a notice stating that the Lessor (acting, in accordance with Section
9.02(a) of the Investment Agreement, of its own accord or at the direction
of
the Majority Funding Parties) elects to terminate this Lease by reason of
the
existence of such Lease Event of Default, in which cases the Cancellation
Date
will be the 5th Business Day after the date of delivery of said notice to
the
Lessee, or (2) a Lease Event of Default under Section 17(a)(iv) hereof or
a
Lease Event of Default occurring by virtue of an Event of Default under Section
9.01(h) or (i) of the Investment Agreement in which cases the Cancellation
Date
shall occur immediately upon the occurrence of such Lease Event of Default;
or
(B) the
occurrence of a Loss Event, in which case the Cancellation Date shall be
the 5th
Business Day after such event occurs; or
(C) the
occurrence of a Casualty Occurrence in respect of the Facility and the failure
of the Lessee to purchase the Facility or to replace or repair the Facility
or
such part thereof in accordance with, and within the time required by, Section
14(d), and the delivery by the Lessor (acting at the direction of the Majority
Funding Parties) to the Lessee of a notice after the expiration of such time
stating that the Lessor elects to terminate this Lease by reason of the
existence of such Casualty Occurrence, in which case the Cancellation Date
shall
be the 5th Business Day after the date of delivery of said notice.
(ii) If
a
Cancellation Event occurs, the Lessee, on the Cancellation Date, shall, without
further notice or demand to the Lessee, either (A) purchase the Facility
from
the Lessor for the Purchase Price, or (B) pay to the Lessor the Termination
Value.
(c) The
Lessee may, from time to time and at any time following the 3rd anniversary
of
the Lease Commencement Date, deliver to the Lessor notice of its intent to
terminate this Lease, in which case the Lessee shall purchase the Facility
from
the Lessor for the Purchase Price on any Rent Payment Date that is not less
than
30 nor more than 60 days after such notice (the “Option
Date”).
Upon
payment in full of the Purchase Price, this Lease shall terminate.
(d) This
Lease shall cease and terminate on the Lease Termination Date, and payment
of
all amounts payable by the Lessee on such date, except with respect to (i)
obligations and liabilities of the Lessee, actual or contingent, which arose
under this Lease, or by reason of events or circumstances occurring or existing,
on or prior to its termination, and which have not been satisfied (which
obligations shall continue until satisfied and which include, but are not
limited to, obligations for Rent and the Termination Value, the Purchase
Price
and amounts owing pursuant to Section 16), and (ii) obligations of the Lessee
which by the terms of this Lease expressly survive termination. Promptly
after
either the Lessee or the Lessor shall learn of the happening of any Termination
Event or Cancellation Event, such party shall give notice thereof to the
other
party hereto.
(e) In
the
event the Lessee elects to purchase the Facility upon the occurrence of a
Termination Event (other than the expiration of this Lease on a Scheduled
Lease
Termination Date) or a Cancellation Event, Lessee in its sole discretion
in
order to ensure the orderly conveyance of the Facility may postpone the closing
date for such conveyance (whether or not extended, the “Purchase
Closing Date”)
to a
reasonable date within 60 days following the Lease Termination Date or
Cancellation Date, as applicable. The Lessor shall notify the Lessee of any
such
postponement and the proposed extended Purchase Closing Date in writing on
or
before the Lease Termination Date or Cancellation Date, as applicable, and
the
Lessee shall be deemed to have been granted a temporary license by the Lessor
entitling the Lessee to retain possession of the Facility through the Purchase
Closing Date provided that the Lessee complies with all obligations of the
Lessee under this Lease as though this Lease were still in full force and
effect
(including without limitation, compliance with permitted use, maintenance
and
insurance coverage requirements). In the event of an extension of the Purchase
Closing Date as herein contemplated, the Purchase Price will be calculated
as of
such extended Purchase Closing Date. This Section 15(e) shall survive the
termination of this Lease.
Section
16. Transfer
of Title on Removal of Facility; Expenses of Transfer.
(a) Upon
any
sale or purchase of the Facility permitted by Section 15, the Lessor will
transfer to the Lessee or the appropriate Third Party all of its title to
and
legal and beneficial ownership interest in the Facility (i) free and clear
of
any Lien created by, through or under the Lessor other than Permitted Liens
or
Liens created at the request of or as a result of the actions of the Lessee
or
anyone acting by, through or under the Lessee, or a result of the failure
of the
Lessee or the Guarantor to carry out any of their obligations under this
Lease
or the other Operative Documents (individually and collectively, as the context
shall require, the “Lessor
Liens”),
and
(ii) without recourse, representation or warranty of any nature whatsoever
(except as to the absence of such Liens as aforesaid).
(b) Whenever
the Lessee has the right to purchase or transfer to itself the Facility pursuant
to any provision of this Lease, the Lessee may cause such purchase to be
effected by, or such transfer to be effected to, any other Person specified
by
the Lessee, but in no event shall the Lessee be relieved from any of its
obligations hereunder as a result thereof.
(c) Upon
any
sale or transfer of the Facility pursuant to any provision of this Lease,
the
Lessee shall pay the expenses of the Lessor, including, without limitation,
reasonable attorneys' fees and expenses, in connection with such sale or
transfer.
(d) If,
on
the Lease Termination Date or on the Cancellation Date, as applicable, the
Lessee or any of its Affiliates has not elected to acquire the Facility,
the
Lessee shall surrender the Facility to the Lessor free from all Liens except
Permitted Liens (other than those described in clause (ii)(b) of the definition
of Permitted Liens), in substantially the same operating condition (except
for
ordinary wear and tear) with the remaining original estimated useful life
contemplated by the Facility Plan intact and having the same capacity and
efficiency as the Facility had on the Lease Commencement Date, and in compliance
in all material respects with all Governmental Requirements and Insurance
Requirements, and free of all Environmental Damages and Environmental
Liabilities. To evidence the foregoing and accomplish the surrender of the
Facility, the Lessee shall provide the following items (x) in the event of
a
Termination Event under Section 15(a)(i)(A) within 9 months prior to the
Lease
Termination Date, with final confirmation of the same at least 30 days but
not
more than 60 days prior thereto and (y) in the event of a Termination Event
under Section 15(a)(i)(B), as soon as practicable but in any event at least
3
Business Days prior to the Lease Termination Date or Cancellation Date, as
applicable, all to be held until the Lease Termination Date or Cancellation
Date:
(i)
evidence satisfactory to the Lessor that all Applicable Permits, Related
Contracts, and all other rights and services reasonably required to operate
the
Facility have been, or on or prior to the Lease Termination Date shall be,
transferred to the Lessor (or the Lessor has been, or on or prior to the
Lease
Termination Date or Cancellation Date, as applicable, shall be, given the
right
to use each such item) and can be transferred to (or used by) any successor
or
assignee of the Lessor without further consent or approval by any Person
(subject only to normal Governmental Requirements);
(ii)
conveyancing, assignment, transfer, termination and other documents that,
in the
sole discretion of the Lessor and the Lease Participants, are sufficient
to (A)
vest in the Lessor (which it holds for itself and in trust for the Lease
Participants) good and marketable title to the Facility, free and clear of
all
Liens except Permitted Liens (other than those described in clause (ii)(b)
of
the definition of Permitted Liens) and (B) terminate the rights of the Lessee
and all other Persons in and to the Facility;
(iii)
evidence
satisfactory to the Lessor that the Facility has been operated and maintained
substantially in accordance with the requirements of the Operative Documents,
all Governmental Requirements, all Applicable Permits and prudent industry
practices;
(iv)
evidence satisfactory to the Lessor that the Facility is being used solely
for
the Permitted Use and is operating substantially in accordance with the
requirements set forth in the Facility Plan, meets or exceeds the original
design specifications and is capable of operating and being used for the
Permitted Use as set forth in the Facility Plan, and has the remaining original
estimated useful life contemplated by the Facility Plan;
(v)
evidence satisfactory to the Lessor, in its sole discretion, that (A) Lessee
has
complied with its obligations under Section 8.30, (B) all agreements and
arrangements to provide the services and rights contemplated by the Section
8.30
are in place, executed by the parties thereto, and are valid, enforceable
and in
full force and effect on or before the Lease Termination Date or Cancellation
Date, as applicable and (C) such agreements and arrangements adequately provide
for the services and other rights contemplated by Section 8.30;
(vi)
an
updated Phase 1 Environmental Assessment; and
(viii)
such other documents, instruments, assessments, investigations, legal opinions,
surveys and other items as the Lessor may reasonably request to evidence
to the
satisfaction of each of the Lessor and the Lease Participants (in each case,
in
their sole discretion) that (A) the Lessor has all Property, services, Permits,
assets and rights necessary to own, operate and maintain the Facility from
and
after the Lease Termination Date or Cancellation Date, as applicable, and
(B) no
Default, Loss Event or Casualty Occurrence then exists.
To
the
extent the Facility is not in the condition required by this Section 16(d),
the
Lessee will pay to the Lessor such additional amounts as are reasonably required
to place it in compliance. The Lessee shall also pay all costs and expenses
relating to the surrender and clean-up in connection with the surrender of
the
Facility as may be required by Governmental Requirements or Insurance
Requirements or which are otherwise necessary to prevent or remedy any
Environmental Damages or Environmental Liabilities or to consummate the delivery
of possession of the Facility to the Lessor hereunder.
Section
17. Events
of Default and Remedies.
(a) Each
of
the following acts or occurrences shall constitute a “Lease
Event of Default”
hereunder:
(i)
default in the payment of the Purchase Price or the Termination Value on
the
Cancellation Date or the Purchase Closing Date, as applicable, or in the
payment
of the Purchase Price or the Final Rent Payment, as applicable, on the Lease
Termination Date; or the default in the payment when due of any Basic Rent
and
the continuance of such default for 5 Business Days thereafter; or the default
in the payment when due of any Supplemental Rent, the amount of any Indemnified
Risk or any other amount due hereunder or under any other Operative Document
and
the continuance of such default for 30 days thereafter; or
(ii)
any
representation or warranty made or deemed made by the Lessee herein shall
be
false or misleading in any material respect on the date made or deemed made;
or
(iii)
an
Event of Default under the Investment Agreement (other than a Limited Recourse
Event of Default);
(iv)
the
Lessee shall fail to observe or perform any covenant or agreement contained
in
Sections 12 and 26 of this Lease; or
(v)
the
Lessee shall fail to observe or perform any covenant or agreement contained
(other than those covered by subsections (i) or (iv) above), and such failure
shall not have been cured within 10 days, with respect to any covenant contained
in Section 14 of this Lease, and 30 days, with respect to any other provision
hereof, after the earlier to occur of (A) written notice thereof has been
given
to the Lessee by the Lessor (acting, in accordance with Section 9.02(a) of
the
Investment Agreement, of its own accord or at the request of the Majority
Funding Parties) or (B) the chief financial, chief operating, chief legal
or
chief accounting officer of the Lessee or the Guarantor otherwise becomes
aware
of any such failure; or
(vi)
Lessee shall abandon the Facility; provided however that for purposes of
this
Section 17(a)(vi), the term “abandon”
shall
not include the mere failure of Lessee to occupy the Facility so long as
Lessee
continues to perform its obligations hereunder and other Operative Documents
including without limitation maintenance of the Facility, maintenance of
required insurance, compliance with Governmental Requirements and Insurance
Requirements and payment of all Rent.
(b) Subject
to Section 9.02 of the Investment Agreement, upon the occurrence and during
the
continuance of any Lease Event of Default, as determined by the Lessor, the
Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement,
of its own accord or at the direction of the Majority Funding Parties) may
do
any one or more of the following (without prejudice to the obligations of
the
Lessee under Section 15(b)(ii)):
(i)
proceed by appropriate judicial proceedings, either at law, in equity or
in
bankruptcy, to enforce performance or observance by the Lessee of the applicable
provisions of this Lease, or to recover damages for the breach of any such
provisions, or any other equitable or legal remedy, all as the Lessor shall
deem
necessary or advisable; and/or
(ii)
by
notice to the Lessee, either (x) terminate this Lease in accordance with
Section
15, whereupon the Lessee's interest and all rights of the Lessee to the use
of
the Facility shall forthwith terminate subject to the Lessee's rights under
such
Section 15 to acquire the Facility on the Purchase Closing Date as provided
herein, but the Lessee shall remain liable with respect to its obligations
and
liabilities hereunder; or (y) terminate the Lessee's right to possession
of the
Facility or any part thereof; and/or
(iii)
exercise any and all other remedies available under applicable law or at
equity.
(c) After
the
occurrence and during the continuance of a Cancellation Event or Termination
Event, in the event the Lessor elects not to terminate this Lease and the
Lessee
has not exercised its option under Section 15(c), this Lease shall continue
in
effect and the Lessor may enforce all of the Lessor's rights and remedies
under
this Lease, including, without limitation, the right to recover the Basic
Rent
and Supplemental Rent, and any other yield protection payments and other
amounts
with respect thereto, as it becomes due under this Lease or any other Operative
Documents. For the purposes hereof, the following do not constitute a
cancellation or termination of this Lease: (i) acts of maintenance or
preservation of the Facility or any part thereof, (ii) efforts by the Lessor
to
relet the Facility or any part thereof, including, without limitation,
termination of any sublease of the Facility and removal of any tenant from
the
Site, (iii) or the appointment of a receiver upon the initiative of the Lessor
to protect the Lessor's interest under this Lease.
(d) If
(i) on
the Lease Termination Date, the Facility is not acquired by the Lessee or
its
designee by payment of the Purchase Price, or (ii) on the Cancellation Date,
the
Lessee or its designee has defaulted in its obligation to acquire the Facility
and pay the Purchase Price, or if applicable, the Termination Value, in
accordance with Lessee's election under Section 15(b)(ii), then the Lessor
shall
have the immediate right of possession of the Facility and the right to enter
onto the Site and to remove any and all of the Property comprising the Facility,
and the Lessor may thenceforth hold, possess and enjoy the Facility free
from
any rights of the Lessee and any Person claiming by, through or under the
Lessee. The Lessor shall be under no liability by reason of any such
repossession or the Facility or entry onto the Site.
(e) Should
the Lessor elect to repossess the Facility or any part thereof upon cancellation
or termination of this Lease or otherwise in the exercise of the Lessor's
remedies, the Lessee shall peaceably quit and surrender the Facility or any
such
part thereof to the Lessor and either (i) deliver possession of the Facility
to
the Lessor or (ii) allow Lessor or its agents or assigns to enter onto the
Facility and the Site to remove any and all of the Property comprising the
Facility at the expense of the Lessee, and neither the Lessee nor any Person
claiming through or under the Lessee shall thereafter be entitled to possession
or to remain in possession of the Facility or any part thereof but shall
forthwith peaceably quit and surrender the Facility to the Lessor.
(f) At
any
time after the repossession of the Facility or any part thereof, whether
or not
this Lease shall have been cancelled or terminated, the Lessor may (but shall
be
under no obligation to) relet the Facility or the applicable part thereof
without notice to the Lessee, for such term or terms and on such conditions
and
for such usage as the Lessor in its sole and absolute discretion may determine.
The Lessor may collect and receive any rents payable by reason of such
reletting, and the Lessor shall not be liable for any failure to relet the
Facility or for any failure to collect any rent due upon any such
reletting.
(g) The
remedies herein provided in case of a Lease Event of Default are in addition
to,
and without prejudice to, the Lessee's continuing obligations under Section
15(b)(ii), and shall not be deemed to be exclusive, but shall be cumulative
and
shall be in addition to all other remedies existing at law, in equity or
in
bankruptcy. The Lessor may exercise any remedy without waiving its right
to
exercise any other remedy hereunder or existing at law, in equity or in
bankruptcy.
(h) No
waiver
by the Lessor hereunder of any Default or Event of Default shall constitute
a
waiver of any other or subsequent Default or Event of Default. To the extent
permitted by applicable law, the Lessee waives any right it may have at any
time
to require the Lessor to mitigate the Lessor's damages upon the occurrence
of a
Default or Event of Default by taking any action or exercising any remedy
that
may be available to the Lessor, the exercise of remedies hereunder being
at the
discretion of the Lessor.
Section
18. Change
in the Lessee’s Name or Structure.
The
Lessee shall not change its name, identity or corporate structure (including,
without limitation, by any merger, consolidation or sale of substantially
all of
its assets) except to the extent permitted by Section 26(a).
Section
19. Inspection;
Right to Enter Premises of the Lessee.
The
Lessee shall permit, and cause each of its Subsidiaries to permit, the Lessor,
the Administrative Agent, any Lease Participant or their respective authorized
representatives but without any obligation to do so) to (i) enter upon the
Facility at reasonable times upon reasonable advance notice in order to inspect
the Facility (subject to compliance with applicable safety requirements of
the
Lessee and applicable Governmental Requirements) and (ii) examine, audit
and
make abstracts from any of their respective books and records and to discuss
the
condition, compliance with Governmental Requirements, performance of the
Facility and the respective affairs, finances and accounts of the Lessee
with
their respective officers and independent accountants. The Lessee agrees
to
coordinate and assist in such visits and inspections, in each case at such
reasonable times and as often as may reasonably be desired.
Section
20. Right
to Perform the Lessee’s Covenants; The Administrative Agent.
(a) Subject
to Section 13, if the Lessee shall fail to make any payment or perform any
act
required to be made or performed by it hereunder, the Lessor, upon notice
to or
demand upon the Lessee but without waiving or releasing any obligation or
Default or Event of Default, may (but shall be under no obligation to) at
any
time thereafter make such payment or perform such act for the account and
at the
expense of the Lessee as, at the Lessor's sole discretion, may be necessary
or
appropriate therefor and, upon the occurrence and during the continuance
of a
Cancellation Event or Termination Event, may enter upon the Facility for
such
purpose and take all such action thereon as, at the Lessor's sole discretion,
may be necessary or appropriate therefor. No such entry shall be deemed an
eviction of the Lessee. All sums so paid by the Lessor and all costs and
expenses (including, without limitation, reasonable attorneys' fees and expenses
so incurred) shall be paid by the Lessee to the Lessor on demand as Supplemental
Rent.
(b) In
accordance with Section 10.02 of the Investment Agreement, Lessee acknowledges
and agrees that the Administrative Agent has been appointed to undertake,
on
Lessor’s and, in certain cases, the Lease Participants’ behalf, certain actions
with respect to the administration of this Lease, the other Operative Documents,
and the transactions contemplated herein and therein. Lessee agrees to abide
by
the provisions of Section 10.02 of the Investment Agreement and other provisions
in the Operative Documents in respect of the Administrative Agent’s role and
function in connection with the administration of the transactions contemplated
therein, including, without limitation, the payment of Rent and other amounts
owing under the Operative Documents directly to the Administrative Agent
for the
account of the Lessor and the Lease Participants, as applicable, the receipt
and
delivery of notices, reports, financial statements, and the like to the
Administrative Agent on the Lessor’s and the Lease Participants’ behalf, and
permitting, where applicable, the Administrative Agent to exercise, on the
Lessor’s and the Lease Participants’ behalf, the rights and remedies afforded
Lessor under the Operative Documents.
Section
21. Participation
by Co-Lessees or Sublessees.
(a) Except
as
otherwise permitted in this Section 21 or (with respect to the Lessor) Section
11.06(b)(i) of the Investment Agreement, neither the Lessor nor the Lessee
may
assign its rights or obligations under this Lease without the prior consent
of
all of the Lease Participants. The Lessor holds the Lien under this Lease
for
itself and in trust for the Lease Participants. The Lessor, acting on behalf
of
itself and the Lease Participants, shall be entitled to exercise all of the
rights, remedies, powers and privileges herein conferred upon Lessor (including,
without limitation, in any bankruptcy proceeding), to give or withhold all
consents required to be obtained from the Lessor hereunder, to give all notices
on behalf of the Lessor including notices regarding Rent, the Final Rent
Payment, and Supplemental Rent due hereunder, to receive all payments to
be made
to the Lessor hereunder and to approve any sale of the Facility pursuant
to
Section 15 to a Person other than the Lessee or any designee of the Lessee
or
for a price less than the Termination Value; provided,
however,
that
nothing herein shall be deemed to be a waiver or relinquishment of the right
of
the Lessor to receive Supplemental Rent for its out of pocket costs and expenses
as described in Section 3(c)(i) or to be indemnified for any matter for which
Lessor is entitled to indemnification hereunder. Lessee acknowledges and
agrees
that certain of Lessor’s and, in certain cases, the Lease Participants’ rights
and duties under this and the other Operative Documents may be enforced or
performed, as applicable, by the Administrative Agent on behalf of the Lessor
or
the Lease Participants, as further described herein and in Section 10.02
of the
Investment Agreement.
(b) The
Lessor and the Lessee may from time to time, so long as no Cancellation Event
or
Termination Event shall have occurred and be continuing, enter into
documentation amending this Lease and, as necessary, the other Operative
Documents, to evidence the undertaking of a Person (a “Co-Lessee”)
to be
responsible for all or certain obligations of the Lessee and the attendant
reduction in the obligations of the Lessee hereunder, subject in every case
to
(i) the prior written approval of the Lessor and each Lease Participant,
each
acting in its sole discretion in approving said Co-Lessee and the documentation
amending this Lease and the Operative Documents, it being understood that
any of
the Lessor or the Lease Participants may for any reason whatsoever elect
not to
grant such approval, in which case this Lease shall not be amended; (ii)
such
documentation expressly stating that such assignment is subject and subordinate
to the terms of this Lease and the Liens created by the Security Instruments;
and (iii) the Lessee remaining primarily liable for all obligations of the
tenant of the Facility under this Lease. Any assignment made otherwise than
as
expressly permitted by this Section 21(b) shall be null and void and of no
force
and effect.
(c) The
Lessee may, from time to time, so long as no Default, Event of Default,
Cancellation Event or Termination Event shall have occurred and be continuing,
enter into a sublease as to the Facility and such other documentation as
may be
necessary with one or more Persons (each a “Sublessee”).
In
any event, any documentation executed by the Lessee in connection with the
subletting of the Facility (i) shall expressly state that such sublease is
subject and subordinate to the terms of this Lease and the Liens created
by the
Security Instruments and (ii) shall not provide for a sublease term ending
after
the then current Scheduled Lease Termination Date. The Lessee will furnish
promptly to the Lessor copies of all subleases and related documentation
entered
into by the Lessee from time to time. No sublease permitted by the terms
hereof
will reduce in any respect the obligations of the Lessee hereunder, it being
the
intent of the Lessee and the Lessor that the Lessee be and remain directly
and
primarily liable as a principal for its obligations hereunder. Any sublease
made
otherwise than as expressly permitted by this Section 21(c) shall be null
and
void and of no force or effect.
Section
22. Notices.
Except
as
otherwise provided herein, all notices, requests and other communications
provided for hereunder shall be in writing (including telecopier and other
readable communication) and mailed by certified mail, return receipt requested,
telecopied or otherwise transmitted or delivered, if to the Lessee, at 0000
Xxxxxxx 000 Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxx,
Telecopier: 000-000-0000; if to the Lessor, at Wachovia Development Corporation,
c/o Wachovia Bank, National Association, 000 Xxxxx Xxxxxxx Xxxxxx, XX XX0000,
Xxxxxxxxx, XX 00000, Attention: Xxxxxxxxx Xxxxxxxxx, Telecopier: 704-715-0065,
or, as to each party, at such other address as shall be designated by such
party
in a written notice to the other parties. All such notices and communications
shall, if so mailed, telecopied or otherwise transmitted, be effective when
received, if mailed, or when the appropriate answer back or other evidence
of
receipt is given, if telecopied or otherwise transmitted, respectively. Each
such notice, request or other communication shall be effective (i) if given
by
telecopier, when such telecopy is transmitted to the telecopier number specified
in this Section and the confirmation is received, (ii) if given by mail,
72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section; provided,
that
notices to the Lessor under Section 3 shall not be effective until received.
A
notice received by the Lessor by telephone shall be effective if the Lessor
believes in good faith that it was given by an authorized representative
of the
Lessee and acts pursuant thereto, notwithstanding the absence of written
confirmation or any contradictory provision thereof. In accordance with Section
10.02 of the Investment Agreement, Lessor and Lessee agree that notice delivered
by the Lessee to the Administrative Agent shall constitute constructive receipt
thereof by Lessor and that notice delivered by the Administrative Agent shall
constitute in all respects notice delivered by the Lessor.
Section
23. Amendments
and Waivers.
The
provisions of this Lease may from time to time be amended, modified or waived
only if such amendment, modification or waiver is in writing and consented
to by
the Lessee and the Lessor (with the consent of the requisite Funding Parties
and
the Administrative Agent, as required by the Investment Agreement).
Section
24. Severability.
Any
provision of this Lease which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof,
and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section
25. Federal
Income Tax Considerations.
It
is the
understanding of the parties that for income tax purposes this transaction
will
be treated as a financing and the Lessee will be treated as the owner of
the
Facility; and the Lessee and the Lessor agree not to take any action
inconsistent with such treatment, subject to the following sentence.
Notwithstanding anything in this Section to the contrary, the Lessor retains
the
right to assert that it is the owner of the Facility subject to this Lease
for
income tax purposes in the event that there is a determination (within the
meaning of Section 1313 of the Internal Revenue Code of 1986, as amended,
or
with respect to state or local income tax, a comparable determination under
state or local law) that the Lessee is not to be treated as the owner of
the
Facility.
Section
26. Other
Provisions.
In
order
to protect the rights and remedies of the Lessor and the Lessee both during
the
term of this Lease and following a Default, an Event of Default, a Termination
Event or a Cancellation Event, and for the purposes of Federal, state and
local
income and taxes, ad valorem taxes, state and local sales taxes, documentary
stamp and intangible taxes and other taxes relating to or assessable as a
result
of the execution, delivery or recording of any of the Operative Documents
and
for purposes of commercial law and Title 11 of the United States Code (or
any
other applicable Federal, state or local insolvency, reorganization, moratorium,
fraudulent conveyance or similar law now or hereafter in effect for the relief
of debtors), the parties hereto intend that (a) this Lease be treated as
evidence of and the agreement of the Lessee for the repayment of the Secured
Amount (as hereafter defined), (b) all payments of Rent, the Purchase Price
and
the Termination Value be treated as payments of principal, interest and other
amounts owing with respect to the Loan (as hereafter defined), respectively,
(c)
the Lessee should be treated as entitled to all benefits of ownership of
the
Facility or any part thereof, (d) this Lease be treated as (i) a mortgage
(this
Lease, as so treated, is the “Mortgage”)
from
Lessee, as mortgagor, to the Lessor, as mortgagee, on that part of the Facility
constituting real property and is made under those provisions of the existing
laws of the State of Alabama relating to mortgages and that the Lessee, as
mortgagor and grantor, hereby irrevocably grants, bargains, sells, conveys,
assigns, transfers, mortgages and sets over unto the Lessor, as mortgagee
and
grantee, for the use and benefit of itself and in trust for the Lease
Participants, Lessee's right, title and interest in and to any real property
of
any kind or character comprising the Facility (including the Lessee’s
sub-leasehold interest in the Site and all estates, easements, and rights,
and
its interest in all fixtures and Improvements) and all proceeds therefrom,
to
have and to hold said real property and all parts, rights, members and
appurtenance thereof to the use, benefit and behoof of the Lessor, for the
use
and benefit of itself and in trust for the Lease Participants, in fee simple
forever (as to the fixtures and Improvements) and Lessee covenants that Lessee
is lawfully seized and possessed of the aforesaid real property and has good
right to convey its interest in the same, that the same is unencumbered except
for the Permitted Liens and that Lessee does warrant and will forever defend
title thereto against the claims of all persons whomsoever; and (ii) a security
agreement from the Lessee, as debtor, to the Lessor, as secured party,
encumbering the Lessee’s right, title and interest in the Facility, including
the Lessee’s subleasehold and leasehold interest, and all personal property
comprising the Facility, and that the Lessee, as debtor, hereby grants to
the
Lessor, for the use and benefit of the Lessor and in trust for the Lease
Participants, as beneficiaries, as secured parties (collectively, the
“Secured
Party”)
a
first and prior Lien on and security interest in the equipment and any and
all
other personal property of any kind or character and fixtures comprising
the
Facility (including all Related Contracts, excluding “Excluded Equipment,” as
defined in Section 6 hereof), and all proceeds therefrom, in each case being
effective as of the date of this Lease. In such event, the Lessor shall have
all
of the rights, powers and remedies of a mortgagee and a secured party available
under applicable law, including, without limitation, judicial or nonjudicial
foreclosure or power of sale, as and to the extent available under applicable
law. The amounts secured by this Mortgage shall be as follows (collectively,
the
“Secured
Amount”):
| 1. |
The
collective amount of the aggregate Unrecovered Lessor Investments
and
unpaid Yield, plus any other amounts owing to the Lessor or the Lease
Participants under the Operative Documents (including, without limitation,
Supplemental Rent, the Final Rent Payment, and all indemnification
amounts);
|
| 2. |
The
portion of the Facility Cost funded by the Lessor representing an
aggregate indebtedness in the amount of $75,000,000.00 (the “Loan”);
|
| 3. |
All
future advances of the Loan (if any) which may be made after the
date
hereof to the same extent as if such future advances were made on
the date
of the execution of this Mortgage, although there may be no advance
made
on the date of the execution of this Mortgage, and although there
may be
no indebtedness outstanding under the Loan or under any other indebtedness
of Lessee to Lessor at the time this Mortgage is executed or at the
time
any advance is made under the Loan or under any other indebtedness
of
Lessee to Lessor. The parties hereby acknowledge and intend that
all
advances under the Loan, including future advances (if any) whenever
hereafter made, shall be secured by this Mortgage and, to the extent
allowed by law, have priority from the time this Mortgage is recorded;
and
|
| 4. |
Any
and all additional advances made by the Lessor or the Secured Party
to
protect or preserve the Collateral (as hereinafter defined) or the
lien
hereof on the Collateral, or for taxes, assessments or insurance
premiums
as hereinafter provided (whether or not the original Lessee remains
the
owner of the Collateral at the time of such
advances).
|
The
filing of this Lease shall be deemed to constitute the filing of a mortgage
and
the filing of any financing statement in connection with this Lease shall
be
deemed to constitute the filing of a financing statement to perfect the mortgage
lien and security interests in the Facility as aforesaid and to secure the
payment of the Secured Amount. If this transaction is treated as a financing,
the obligation arising hereunder shall be with full recourse to the Lessee
and
shall not be treated as recourse only to the Facility. To the fullest extent
permitted by applicable law, the Lessor and the Lessee intend that the Facility
(other than the real property constituting the Site) be and remain at all
times
personal property regardless of the manner or extent to which any of the
Facility (other than the real property constituting the Site) may be attached
or
affixed to any real property. Except as required by applicable law, the Lessee
shall not under any circumstances take any action or make any filing or
recording which would cause the Facility (other than the real property
constituting the Site) to be deemed to be real property or permit any Person
to
obtain any interest in the Facility (other than the real property constituting
the Site) as a result of the Facility (other than the real property constituting
the Site) being deemed to be in whole or in part real property.
In
order
to preserve the security interest provided for herein, each of the Lessor
and
the Lessee agrees to abide by the following provisions with regard to the
Facility (for purposes of this Section, hereinafter referred to as “Collateral”):
(a) Change
in Location of Collateral or the Lessee.
The
Lessee (i) will notify the Secured Party on or before the date of any change
in
(A) the location of the Collateral (B) the location of Lessee's chief executive
office or address, (C) the name of the Lessee and (D) the corporate structure
of
the Lessee, and (ii) will, on or before the date of any such change, prepare
and
file new or amended financing statements as necessary so that the Secured
Party
shall continue to have a first and prior perfected Lien (subject only to
Permitted Liens) in the Collateral after any such change.
(b) Intentionally
Omitted.
(c) Sale,
Disposition or Encumbrance of Collateral.
Except
as set forth herein and for Permitted Liens, as permitted by any of the
Operative Documents or with the Secured Party's prior written consent, the
Lessee will not in any way encumber any of the Collateral (or permit or suffer
any of the Collateral to be encumbered) or sell, assign, lend, rent, lease
or
otherwise dispose of or transfer any of the Collateral to or in favor of
any
Person other than the Secured Party.
(d) Proceeds
of Collateral.
Except
as permitted by any of the Operative Documents, the Lessee will deliver to
the
Secured Party promptly upon receipt all proceeds delivered to the Lessee
from
the sale or disposition of any Collateral. This Section shall not be construed
to permit sales or dispositions of the Collateral except as may be elsewhere
expressly permitted by this Lease or the other Operative Documents.
(e) Further
Assurances.
Upon
the request of the Secured Party, Lessee shall (at Lessee's expense) execute
and
deliver all such mortgages, deeds of trust, deeds to secure debts, assignments,
certificates, financing statements or other documents and give further
assurances and do all other acts and things as the Secured Party may reasonably
request to perfect the Secured Party's interest in the Collateral or to protect,
enforce or otherwise effect the Secured Party's rights and remedies hereunder,
all in form and substance satisfactory to the Secured Party.
(f) Collateral
Attached to Other Property.
In the
event that any of the Collateral is removed from the Facility and is to be
attached or affixed to any real property, the Lessee hereby agrees that a
financing statement which is a fixture filing may be filed for record in
any
appropriate real estate records. If the Lessee is not the record owner of
such
real property, it will provide the Secured Party with any additional security
documents or financing statements necessary for the perfection of the Secured
Party's Lien in the Collateral, as requested by the Secured Party.
(g) Secured
Amount.
Should
the Secured Amount be paid according to the tenor and effect thereof when
the
same becomes due and payable hereunder, and should Lessee perform all covenants
contained in the Operative Documents in a timely manner, then this Mortgage
shall be cancelled and surrendered.
(h) Lease.
The
Lease will not be amended, supplemented or modified without the written consent
of the Secured Party. All payments under the Lease shall be made only to
such
account as specified by the Secured Party.
(i) Receiver
and Mortgage Remedies.
If an
Event of Default (other than a Limited Recourse Event of Default) shall have
occurred and be continuing, the Lessor (acting, in accordance with Section
9.02(a) of the Investment Agreement, of its own accord or at the direction
of
the Majority Funding Parties (subject to the provisions of Section 9.02(d)
of
the Investment Agreement)), may exercise any one or more of the remedies
set
forth below (all or any of which may be undertaken by the Administrative
Agent
at the request or direction of the Lessor or the Lease Participants and in
the
name of or on behalf of the Lessor and the Lease Participants, as
applicable):
(1)
the
Lessor may demand, and upon such demand, the Lessee shall forthwith surrender
to
the Lessor, the actual possession of the Collateral and if, and to the extent,
permitted by applicable law and the Operative Documents, the Lessor itself,
or
by such officers or agents as it may appoint, may enter and take possession
of
all the Collateral without the appointment of a receiver, or an application
therefor, and may exclude the Lessee and its agents and employees wholly
therefrom, and may have joint access with the Lessee to the books, papers
and
accounts of the Lessee pertaining to the Collateral. If the Lessee shall
for any
reason fail to surrender or deliver the Collateral or any part thereof after
such demand by the Lessor, the Lessor may obtain a judgment or decree conferring
upon the Lessor the right to immediate possession or requiring the Lessee
to
deliver immediate possession of the Collateral to the Lessor, to the entry
of
which judgment or decree the Lessee hereby specifically consents. Upon every
such entering upon or taking of possession, the Lessor may hold, store, use,
operate, manage and control the Collateral and conduct the business thereof,
and, from time to time (i) make all necessary and proper maintenance, repairs,
renewals, replacements, additions, betterments and improvements thereto and
thereon and purchase or otherwise acquire additional fixtures, personalty
and
other property; (ii) insure or keep the Collateral insured; (iii) manage
and
operate the Collateral and exercise all the rights and powers of the Lessee
to
the same extent as the Lessee could in its own name or otherwise with respect
to
the same; and (iv) enter into any and all agreements with respect to the
exercise by others of any of the powers herein granted the Lessor, all as
the
Lessor from time to time may determine to be in its best interest. The Lessor
may collect and receive all the rents, issues, profits and revenues from
the
Collateral, including those past due as well as those accruing thereafter,
and,
after deducting (aa) all expenses of taking, holding, managing and operating
the
Collateral (including compensation for the services of all persons employed
for
such purposes); (bb) the cost of all such maintenance, repairs, renewals,
replacements, additions, betterments, improvements, purchases and acquisitions;
(cc) the cost of such insurance; (dd) such taxes, assessments and other similar
charges as the Lessor may at its option pay; (ee) other proper charges upon
the
Collateral or any part thereof; and (ff) the reasonable compensation, expenses
and disbursements of the attorneys and agents of the Lessor, the Lessor shall
apply the remainder of the monies and proceeds so received by the Lessor
in
accordance with the terms of this Lease. Anything in this Section 26 to the
contrary notwithstanding, the Lessor shall not be obligated to discharge
or
perform the duties of a landlord to any tenant or incur any liability as
a
result of the exercise by the Lessor of its rights under this Mortgage, and
the
Lessor shall be liable to account only for the rents, income, issues, profits
and revenues actually received by the Lessor. Whenever all that is due upon
such
interest, deposits and principal installments and under any of the terms,
covenants, conditions and agreements of this Mortgage, shall have been paid
and
all Events of Default made good, the Lessor shall surrender possession of
the
Collateral to the Lessee, its successors or assigns. The same right of taking
possession, however, shall exist if any subsequent Event of Default (other
than
a Limited Recourse Event of Default) shall occur and be continuing. In
connection with any action taken by the Lessor pursuant to this Section 26,
the
Lessor shall not be liable for any loss sustained by the Lessee resulting
from
any act or omission of the Lessor in administering, managing, operating or
controlling the Collateral, including a loss arising from the ordinary
negligence of the Lessor, unless such loss is caused by its own gross
negligence, willful misconduct or bad faith, or the gross negligence, willful
misconduct or bad faith of its officers, directors, employees, agents or
contractors, nor shall the Lessor be obligated to perform or discharge any
obligation, duty or liability of the Lessee. The Lessee hereby assents to,
ratifies and confirms any and all actions of the Lessor with respect to the
Collateral taken under this Section 26.
(2)
The
Lessor, upon application to a court of competent jurisdiction, shall be entitled
as a matter of strict right without notice and without regard to the occupancy
or value of any security for the Secured Amount secured hereby or the solvency
of any party bound for its payment, to the appointment of a receiver to take
possession of and to operate the portion of the Facility constituting real
property (the “Real
Property”)
and to
collect and apply the rents, issues, profits and revenues thereof. The receiver
shall have all of the rights and powers permitted under the laws of the State
of
Alabama. Lessee will pay to Lessor upon demand all expenses, including
receiver's fees, attorney's fees, costs and agent's compensation, incurred
pursuant to the provisions of this Section 26; and all such expenses shall
be
secured hereby. Lessee agrees to the full extent permitted by law, that in
case
of an Event of Default on the part of Lessee, neither Lessee nor anyone claiming
through or under it shall or will set up, claim or seek to take advantage
of any
appraisement, valuation, stay, extension, homestead, exemption or redemption
laws now or hereafter in force, in order to prevent or hinder the enforcement
or
foreclosure hereunder, or the absolute sale of the interests of Lessee in
the
Real Property, or the final and absolute putting into possession thereof,
immediately after such sale, of the purchasers thereat, and Lessee, for itself
and all who may at any time claim through or under it, hereby waives to the
full
extent that it may lawfully so do, the benefit of all such laws, and any
and all
right to have the assets comprised in the security intended to be created
hereby
marshalled upon any foreclosure of the lien hereof.
(3)
Lessor shall have the option (in addition to and in furtherance of Lessor's
rights under this Section 26), to proceed with foreclosure in any manner
permitted by the laws of the State of Alabama, including judicial foreclosure
through the courts or by foreclosure under the power of sale as provided
in this
Mortgage with or without declaring the whole Secured Amount secured hereby
due.
(4)
Lessor shall be authorized, at its option, whether or not possession of the
Real
Property is taken, after giving notice by publication once a week for three
consecutive weeks of the time, place and terms of each such sale (including
a
description of the Real Property or part thereof to be sold), by publication
in
a newspaper published in any county wherein the Real Property or any part
thereof is located, to sell the Real Property (or such part or parts thereof
as
Lessor may from time to time elect to sell) in front of such county's courthouse
door, at public outcry, to the highest bidder for cash, such sale or sales
to be
held between the hours of 11:00 a.m. and 4:00 p.m. unless otherwise provided
by
law. Lessor, its successors and assigns, may bid at any sale or sales had
under
the terms hereof and may purchase the Real Property or any such part thereof,
if
the highest bidder therefor. The purchaser at any such sale or sales shall
be
under no obligation to see to the proper application of the purchase money.
At
any foreclosure sale, any part or all of the Real Property, real, personal
or
mixed, may be offered for sale in parcels or en masse for one total price,
the
proceeds of any such sale en masse to be accounted for in one account without
distinction between the items included therein or without assigning to them
any
proportion of such proceeds, Lessee hereby waiving the application of any
doctrine of marshalling or like proceeding. In case Lessor, in the exercise
of
the power of sale herein given, elects to sell the Real Property in parts
or
parcels, sales thereof may be held from time to time, and the power of sale
granted herein shall not be fully exercised until all of the Real Property
not
previously sold shall have been sold or all the Secured Amount secured hereby
shall have been paid in full.
(5)
Lessee hereby authorizes and empowers Lessor or the auctioneer at any
foreclosure sale had hereunder, for and in the name of Lessee, to execute
and
deliver to the purchaser or purchasers of any of the Real Property sold at
foreclosure good and sufficient deeds of conveyance or bills of sale
thereto.
(6)
Lessor, in lieu of or in addition to exercising the power of sale hereinabove
given, may proceed by suit to foreclose its lien on, security interest in,
and
assignment of, the Real Property, subject to the limitations, if any, set
out
herein, in the Investment Agreement, or in any other Operative Documents
to xxx
Lessee for damages on account of or arising out of said Event of Default
or
breach, or for specific performance of any provision contained herein, or
to
enforce any other appropriate legal or equitable right or remedy.
(7)
the
Lessor may, in addition to and not in abrogation of the rights covered under
this Section 26, (i) exercise all rights, powers and remedies of the Lessee
under this Lease and the Related Contracts, and the Lessee and any other
party
to any of the Related Contracts hereby is authorized and directed to render
performance to and act upon the instructions of the Lessor, (ii) with respect
to
any personal property constituting part of the Collateral, exercise all rights,
powers and remedies of a secured party under the Uniform Commercial Code
as
adopted in Alabama, and (iii) either with or without entry or taking possession
as herein provided or otherwise, proceed by a suit or suits in law or in
equity
or by any other appropriate proceeding or remedy (A) to enforce payment and
performance of the Secured Amount or the performance of any term, covenant,
condition or agreement of this Lease or any other right and (B) to pursue
any
other remedy available to it, all as the Lessor at its sole discretion shall
elect.
(8)
The
proceeds of any sale or other exercise of rights or remedies pursuant to
this
Section 26 shall be paid over to the Administrative Agent, on Lessor’s and the
Lease Participants’ behalf, and applied in accordance with Section 3.05(c) of
the Investment Agreement.
(9)
In
the event of any such foreclosure sale, Lessee shall be deemed a tenant holding
over and shall forthwith deliver possession to the purchaser or purchasers
at
such sale or be summarily dispossessed according to provisions of law applicable
to tenants holding over.
(10)
The
Lessee agrees to the full extent permitted by law, that in case of the
occurrence of an Event of Default, neither the Lessee nor anyone claiming
through or under it shall or will set up, claim or seek to take advantage
of any
appraisement, valuation, stay, extension, homestead, exemption or redemption
laws now or hereafter in force, in order to prevent or hinder the enforcement
or
foreclosure of this Mortgage, or the absolute sale of the Collateral or the
final and absolute putting into possession thereof, immediately after such
sale,
of the purchasers thereat, and the Lessee, for itself and all who may at
any
time claim through or under it, hereby waives to the full extent that it
may
lawfully so do, the benefit of all such laws, and any and all right to have
the
assets comprised in the security intended to be created hereby marshalled
upon
any foreclosure of the lien hereof.
(11)
The
Lessee hereby waives and renounces to the full extent permitted by law all
homestead and exemption rights provided for by the Constitution and the laws
of
the United States and of any state, in and to the Collateral as against the
collection of the Secured Amount, or any part hereof.
(12)
The
Lessor, at its option, is authorized to foreclose this Mortgage in equity,
subject to the rights of any tenants of the Collateral, and the failure to
make
any such tenants parties to any such foreclosure proceedings and to foreclose
their rights will not be, nor be asserted to be by Lessee, a defense to any
proceedings instituted by the Lessor to collect the Secured Amount.
(13)
In
case the Lessor shall have proceeded to enforce any right, power or remedy
under
this Mortgage by foreclosure, entry or otherwise or in the event the Lessor
commences advertising of the intended exercise of the sale under power provided
hereunder, and such proceeding or advertisement shall have been withdrawn,
discontinued or abandoned for any reason, or shall have been determined
adversely to the Lessor, then in every such case (i) the Lessee and the Lessor
shall be restored to their former positions and rights, (ii) all rights,
powers
and remedies of the Lessor shall continue as if no such proceeding had been
taken, including those with respect to each and every Event of Default declared
or occurring prior or subsequent to such withdrawal, discontinuance or
abandonment and (iii) neither this Mortgage, nor the Secured Amount, nor
any
other instrument concerned therewith, shall be or shall be deemed to have
been
reinstated or otherwise affected by such withdrawal, discontinuance or
abandonment; and the Lessee hereby expressly waives the benefit of any statute
or rule of law now provided, or which may hereafter be provided, which would
produce a result contrary to or in conflict with the above.
(14)
No
right, power or remedy conferred upon or reserved to the Lessor by this Mortgage
is intended to be exclusive of any other right, power or remedy, but each
and
every such right, power and remedy shall be cumulative and concurrent and
shall
be in addition to any other right, power and remedy given hereunder or now
or
hereafter existing at law or in equity or by statute.
(15)
If
the Lessor (i) grants forbearance or an extension of time for the payment
of any
sums secured hereby; (ii) takes other or additional security for the payment
of
any sums secured hereby; (iii) waives or does not exercise any right granted
herein or in the Operative Documents; (iv) releases any part of the Collateral
from the lien of this Mortgage or otherwise changes any of the terms, covenants,
conditions or agreements of this Mortgage or any other Operative Document;
(v)
consents to the filing of any map, plat or replat affecting the Collateral;
(vi)
consents to the granting of any easement or other right affecting the
Collateral; or (vii) makes or consents to any agreement subordinating the
lien
hereof, any such act or omission shall not release, discharge, modify, change
or
affect the original liability under this Mortgage or any other of the Operative
Documents or any other obligation of the Lessee or any subsequent purchaser
of
the Collateral or any part thereof, or any maker, co-signer, endorser, surety
or
guarantor; nor shall any such act or omission preclude the Lessor from
exercising any right, power or privilege herein granted or intended to be
granted in the event of any default then made or of any subsequent default;
nor,
except as otherwise expressly provided in an instrument or instruments executed
by the Lessor, shall the lien of this Mortgage be altered thereby. In the
event
of the sale or transfer by operation of law or otherwise of all or any part
of
the Collateral, the Lessor, without notice, is hereby authorized and empowered
to deal with any such vendee or transferee with reference to the Collateral
or
the Secured Amount secured hereby, or with reference to any of the terms,
covenants, conditions or agreements hereof, as fully and to the same extent
as
it might deal with the original parties hereto and without in any way releasing
or discharging any liabilities, obligations or undertakings.
(16)
The
Lessor shall have power (a) to institute and maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Collateral by any
acts
which may be unlawful or any violation of this Mortgage, (b) to preserve
or
protect its interest in the Collateral and in the rents, issues, profits
and
revenues arising therefrom, and (c) to restrain the enforcement of or compliance
with any legislation or other governmental enactment, rule or order that
may be
unconstitutional or otherwise invalid, if the enforcement of or compliance
with
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interest of the Lessor.
(17)
In
the case of any receivership, insolvency, bankruptcy, reorganization,
arrangement, adjustment, composition or other proceedings affecting the Lessee,
its creditors or its property, the Lessor, to the extent permitted by law,
shall
be entitled to file such proofs of claim and other documents as may be necessary
or advisable in order to have the claims of the Lessor allowed in such
proceedings for the entire amount due and payable by the Lessee under this
Mortgage at the date of the institution of such proceedings and for any
additional amount which may become due and payable by the Lessee hereunder
after
such date.
Section
27. Miscellaneous.
(a) ENTIRE
AGREEMENT.
THIS LEASE AND THE OTHER OPERATIVE DOCUMENTS EMBODY THE ENTIRE AGREEMENT
AND
UNDERSTANDING BETWEEN THE LESSEE AND THE LESSOR AND SUPERSEDE ALL OTHER
AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT
MATTER HEREOF. THIS WRITTEN LEASE AND THE OTHER OPERATIVE DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(b) Interpretation.
Captions and section headings appearing herein are included solely for
convenience of reference and are not intended to affect the interpretation
of
any provision of this Agreement.
(c) GOVERNING
LAW; SUBMISSION TO JURISDICTION.
THIS LEASE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO RELATING
TO THE
FACILITY SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW (OR ANY SIMILAR SUCCESSOR PROVISION THERETO) BUT EXCLUDING ALL OTHER
CONFLICT-OF-LAWS RULES; EXCEPT THAT, TO THE EXTENT REQUIRED BY THE LAWS OF
THE
STATE IN WHICH THE FACILITY IS LOCATED, THE LAWS OF THE STATE OF ALABAMA
SHALL
GOVERN (I) THE CREATION AND EXISTENCE OF THIS LEASE, (II) SECTION 26 OF THIS
LEASE, AND (III) THE ENFORCEMENT OF THE RIGHTS OF LESSOR TO REPOSSESS THE
FACILITY FROM LESSEE AFTER THE EARLIER OF THE TERMINATION OF THIS LEASE OR
THE
TERMINATION OF LESSEE'S RIGHT TO POSSESSION OF THE
FACILITY.
(d) No
Third Party Beneficiaries.
Nothing
in this Lease, express or implied, shall give to any Person, other than the
parties hereto and the Lease Participants and their respective successors
and
permitted assigns, any benefit or any legal or equitable right, remedy or
claim
under this Lease including, without limitation, under any provision of this
Lease regarding the priority or application of any amounts payable
hereunder.
(e) Counterparts.
This
Lease may be executed in any number of counterparts, all of which taken together
shall constitute one and the same instrument and any of the parties hereto
may
execute this Agreement by signing any such counterpart.
(f) WAIVER
OF JURY TRIAL.
EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE
OR TO
DEFEND ANY RIGHTS UNDER THIS LEASE OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION
WITH THIS LEASE, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
(g) Invalidity.
In the
event that any one or more of the provisions contained in this Lease shall,
for
any reason, be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of the Lease.
(h) Usury.
Notwithstanding anything to the contrary contained in this Lease or any of
the
Operative Documents, the amounts which the Lessee is obliged to pay pursuant
to
this Lease and the other Operative Documents, and the amounts which the Lessor
and the Lease Participants are entitled to receive pursuant to this Lease
and
the other Operative Documents, are subject to the limitations set forth in
Section 11.15 of the Investment Agreement.
(i) Time
is of the Essence.
Time is
of the essence in connection with the payment of Rent and all other amounts
payable hereunder and the performance of the Lessee's other obligations
hereunder.
(j) Lessor
Recourse.
No
recourse shall be had against the Lessor or the Administrative Agent or their
successors and assigns and their directors, officers, shareholders, employees
or
agents for any claim based on any failure by the Lessor or the Administrative
Agent in the performance or observance of any of the agreements, covenants
or
provisions contained in this Lease or any other Operative Documents; and
in the
event of any such failure, recourse shall be had solely against the rights
and
interests of the Lessor in the Facility; provided,
that
the foregoing shall not relieve (i) any such director, officer or employee
of
personal liability for his or her fraud or intentional misconduct or (ii)
Lessee
from its obligation not to create or permit the existence of “Lessor Liens,” as
defined in Section 16(a)(i) hereof.
(k) Amendment
and Restatement.
This
Lease constitutes an amendment and restatement of the Original Lease Agreement
and does not constitute any new estate or leasehold interest in the Facility
in
favor of Lessee, but rather an amendment and restatement of the terms and
conditions of Lessee’s continuing leasehold interest under the Original Lease
Agreement.
IN
WITNESS WHEREOF, the parties have caused this Lease to be executed by their
respective officers thereunto duly authorized as of the date first above
written.
LESSEE:
PROTECTIVE
LIFE INSURANCE COMPANY, a Tennessee corporation
By:
Title:
Attest:
Title:
[CORPORATE
SEAL]
Mailing
Address:
Protective
Life Insurance Company
0000
Xxxxxxx 000 Xxxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxx Xxxxx
Telecopier:
000-000-0000
LESSOR:
WACHOVIA
DEVELOPMENT CORPORATION, a North Carolina corporation
By:
Title:
Attest:
Title:
[CORPORATE
SEAL]
Mailing
Address:
Wachovia
Development Corporation
c/o
Wachovia Bank, National Association
000
X.
Xxxxxxx Xxxxxx
XX
XX0000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxxxx Xxxxxxxxx
Telecopier
No.: 000-000-0000
Telephone
No.: 000-000-0000
STATE
OF
_____________ §
§
COUNTY
OF
___________ §
I,
the
undersigned, a Notary Public in and for said County in said State, hereby
certify that ______________________, whose name as _________________________
of
PROTECTIVE LIFE INSURANCE COMPANY, a Tennessee corporation, is signed to
the
foregoing instrument, and who is known to me, acknowledged before me on this
day
that, being informed of the contents of this instrument, ____ as such
______________ and with full authority, executed the same voluntarily for
and as
the act of said corporation.
Given
under my hand and official seal, this _____ day of ________________,
2007.
____________________________________ Notary
Public
My
Commission Expires: _________________
[Notary
Seal]
STATE
OF
_____________ §
§
COUNTY
OF
___________ §
I,
the
undersigned, a Notary Public in and for said County in said State, hereby
certify that ______________________, whose name as _________________________
of
WACHOVIA DEVELOPMENT CORPORATION, a North Carolina corporation, is signed
to the
foregoing instrument, and who is known to me, acknowledged before me on this
day
that, being informed of the contents of this instrument, ____ as such
______________ and with full authority, executed the same voluntarily for
and as
the act of said corporation.
Given
under my hand and official seal, this _____ day of _________________,
2007.
____________________________________ Notary
Public
My
Commission Expires: _________________
[Notary
Seal]
EXHIBIT
A
ANNEX
PARCEL
Acreage
situated in the SW 1/4 of the SE 1/4 and the SE 1/4 of the SW 1/4 of Section
8,
Township 18 South, Range 2 West and the NW 1/4 of the NE 1/4 of Section 17,
Township 18 South, Range 2 West, Jefferson County, Alabama, being more
particularly described as follows:
Commence
at the Northwesterly corner of Lot 10-A, Parkway Subdivision, as recorded
in Map
Book 88, Page 38 in the office of the Judge of Probate of Jefferson County,
Alabama, said point lying on the Southwesterly Right-of-Way line of Cahaba
Road
(Old U.S. Highway No. 280), said point also lying on the East line of the
SW 1/4
of the SE 1/4 of Section 8, Township 18 South, Range 2 West; thence run in
a
Southerly direction along the Westerly line of said Lot 10-A and the East
line
of said 1/4-1/4 section a distance of 291.49 feet to a point; thence 55º35’25”
to the right in a Southwesterly direction a distance of 328.53 feet to a
point;
thence 87º34’08” to the right in a Northwesterly direction a distance of 2.20
feet to a point; thence 52º23’58” to the left in a Westerly direction a distance
of 482.90 feet to a point; thence 83º11’36” to the left in a Southwesterly
direction a distance of 16.97 feet to a point; thence 83º16’34” to the right in
a Westerly direction a distance of 65.00 feet to a point; thence 90º00’44” to
the left in a Southerly direction a distance of 20.26 feet to a point; thence
31º54’03” to the right in a Southwesterly direction a distance of 67.66 feet to
a point; thence 90º00’ to the right in a Northwesterly direction a distance of
122.74 feet to the POINT OF BEGINNING of the parcel herein described, said
point
lying on the face of the newly constructed Building Annex No. 3; thence 2º18’03”
to the right in a Northwesterly direction along the face of said building
a
distance of 39.90 feet to a point; thence 90º00’ to the right in a Northeasterly
direction along the face of said building a distance of 5.33 feet to a point;
thence 90º00’ to the left in a Northwesterly direction along the face of said
building a distance of 254.97 feet to a point; thence 90º00’ to the right in a
Northeasterly direction along the face of said building a distance of 21.25
feet
to a point on the face of an existing Parking Deck; thence 90º00’ to the left in
a Northwesterly direction along the face of said parking deck a distance
of
120.80 feet to a point on the face of existing Building 1; thence 90º00’ to the
left in a Southwesterly direction along the face of said building a distance
of
19.09 feet to a point; thence 90º00’ to the right in a Northwesterly direction
along the face of said building a distance of 10.89 feet to a point; thence
90º00’ to the left in a Southwesterly direction along the face of said building
and along the face of the newly constructed Building Annex No. 3 a distance
of
57.38 feet to a point; thence 90º00’ to the left in a Southeasterly direction
along the face of said Building Annex No. 3 a distance of 64.38 feet to a
point;
thence 90º00’ to the right in a Southwesterly direction along the face of said
building a distance of 73.55 feet to a point; thence 90º00’ to the left in a
Southeasterly direction along the face of said building a distance of 2.54
feet
to a point; thence 90º00’ to the right in a Southwesterly direction a distance
of 6.00 feet to a point; thence 90º00’ to the left in a Southeasterly direction
a distance of 27.45 feet to a point; thence 90º00’ to the left in a
Northeasterly direction a distance of 6.00 feet to a point on the face of
the
newly constructed Building Annex No. 3; thence 90º00’ to the right in a
Southeasterly direction along the face of said building a distance of 281.48
feet to a point; thence 90º00’ to the right in a Southwesterly direction a
distance of 4.30 feet to a point; thence 90º00’ to the left in a Southeasterly
direction a distance of 9.17 feet to a point; thence 90º00’ to the left in a
Northeasterly direction a distance of 4.30 feet to a point on the face of
the
newly constructed Building Annex No. 3; thence 90º00’ to the right in a
Southeasterly direction along the face of said building a distance of 1.67
feet
to a point; thence 90º00’ to the left in a Northeasterly direction along the
face of said building a distance of 27.92 feet to a point; thence 90º00’ to the
right in a Southeasterly direction along the face of said building a distance
of
39.87 feet to a point; thence 90º00’ to the left in a Northeasterly direction
along the face of said building a distance of 95.52 feet to the Point of
Beginning.
Containing
51,664 square feet or 1.186 acres.
TOGETHER
WITH, a non exclusive easement for pedestrian and vehicular ingress and egress
to, upon, over and across the Protective Road, Protective Driveway and Orchid
Driveway (as the same are described in the certain Reciprocal Easement Agreement
by and between Orchid, L.L.C. and Protective Life Insurance Company dated
as of
January 19, 1996, and recorded as Instrument #9601/6971 in the Probate Office
of
Jefferson County, Alabama, as amended and restated by Amended and Restated
Reciprocal Easement Agreement dated as of March 16, 2004, and recorded as
Instrument #200405/9866, in said Probate Office), as the same may be modified
or
relocated.
TOGETHER
WITH, (a) a non-exclusive easement for the purpose of pedestrian and vehicular
ingress and egress to, on, over and across the Common Driveway; (b) an easement
along the Common Access Driveway for the drainage of storm water; and, (c)
an
easement along the Common Access Driveway and over the Company Tract for
installing, operating, and maintaining utility facilities (as the same are
described in that certain Reciprocal Easement Agreement by and between
Protective Life Insurance Company and Wachovia Capital Investments, Inc.
dated
as of the 1st day of February, 2000, and recorded as Instrument #200004/0950,
in
the Probate Office of Jefferson County, Alabama, as amended by First Amendment
to Reciprocal Easement Agreement dated as of September 1, 2004 and recorded
as
Instrument #200413/6654, in said Probate Office).
PARKING
DECK PARCEL
Acreage
situated in the SW 1/4 of the SE 1/4 of Section 8, Township 18 South, Range
2
West, Jefferson County, Alabama, being more particularly described as
follows:
Commence
at the Northwesterly corner of Lot 10-A, Parkway Subdivision, as recorded
in Map
Book 88, Page 38 in the office of the Judge of Probate of Jefferson County,
Alabama, said point lying on the Southwesterly Right-of-Way line of Cahaba
Road
(Old U.S. Highway No. 280), said point also lying on the East line of the
SW 1/4
of the SE 1/4 of Section 8, Township 18 South, Range 2 West; thence run in
a
Southerly direction along the Westerly line of said Lot 10-A and the East
line
of said 1/4-1/4 section a distance of 291.49 feet to a point; thence 55º35’25”
to the right in a Southwesterly direction a distance of 328.53 feet to a
point;
thence 87º34’08” to the right in a Northwesterly direction a distance of 2.20
feet to a point; thence 52º23’58” to the left in a Westerly direction a distance
of 310.55 feet to a point; thence 90º00’ to the right in a Northerly direction a
distance of 111.28 feet to a point on the face of the newly constructed parking
deck, said point being the POINT OF BEGINNING of the parcel herein described;
thence 34º26’54’ to the right in a Northeasterly direction along the face of
said parking deck a distance of 200.87 feet to a point; thence 90º00’ to the
left in a Northwesterly direction along the face of said parking deck a distance
of 3.99 feet to a point; thence 90º00’ to the right in a Northeasterly direction
along the face of said parking deck a distance of 13.22 feet to a point;
thence
90º00’ to the left in a Northwesterly direction along the face of said parking
deck a distance of 12.98 feet to a point; thence 90º00’ to the right in a
Northeasterly direction along the face of said parking deck a distance of
4.00
feet to a point; thence 90º00’ to the left in a Northwesterly direction along
the face of said parking deck a distance of 274.49 feet to a point; thence
90º00’ to the left in a Southwesterly direction along the face of said parking
deck a distance of 4.06 feet to a point; thence 90º00’ to the right in a
Northwesterly direction along the face of said parking deck a distance of
13.00
feet to a point; thence 90º00’ to the left in a Southwesterly direction along
the face of said parking deck a distance of 13.02 feet to a point; thence
90º00’
to the right in a Northwesterly direction along the face of said parking
deck a
distance of 3.89 feet to a point; thence 90º00’ to the left in a Southwesterly
direction along the face of said parking deck a distance of 200.93 feet to
a
point; thence 90º00’ to the left in a Southeasterly direction along the face of
said parking deck a distance of 3.91 feet to a point; thence 90º00’ to the right
in a Southwesterly direction along the face of said parking deck and its
extension a distance of 16.06 feet to a point along the roof overhang line
of
the newly constructed pedestrian bridge; thence 90º00’ to the right in a
Northwesterly direction along said roof overhang line a distance of 95.00
feet
to a point on the face of the existing parking deck; thence 90º00’ to the left
in a Southwesterly direction along the face of the existing parking deck
a
distance of 15.94 feet to a point along the roof overhang line of the newly
constructed pedestrian bridge; thence 90º00’ to the left in a Southeasterly
direction along said roof overhang line a distance of 107.90 feet to a point
on
the face of the newly constructed parking deck; thence 90º00’ to the right in a
Southwesterly direction along the face of said parking deck a distance of
6.79
feet to a point; thence 90º00’ to the left in a Southeasterly direction along
the face of said parking deck a distance of 28.64 feet to a point; thence
90º00’
to the left in a Northeasterly direction along the face of said parking deck
a
distance of 21.62 feet to a point; thence 90º00’ to the right in a Southeasterly
direction along the face of said parking deck a distance of 245.90 feet to
a
point; thence 90º00’ to the left in a Northeasterly direction along the face of
said parking deck a distance of 3.90 feet to a point; thence 90º00’ to the right
in a Southeasterly direction along the face of said parking deck a distance
of
13.02 feet to a point; thence 90º00’ to the left in a Northeasterly direction
along the face of said parking deck a distance of 13.19 feet to a point;
thence
90º00’ to the right in a Southeasterly direction along the face of said parking
deck a distance of 3.98 feet to the Point of Beginning.
Containing
74,417 square feet or 1.708 acres.
TOGETHER
WITH, a non exclusive easement for pedestrian and vehicular ingress and egress
to, upon, over and across the Protective Road, Protective Driveway and Orchid
Driveway (as the same are described in the certain Reciprocal Easement Agreement
by and between Orchid, L.L.C. and Protective Life Insurance Company dated
as of
January 19, 1996, and recorded as Instrument #9601/6971 in the Probate Office
of
Jefferson County, Alabama, as amended and restated by Amended and Restated
Reciprocal Easement Agreement dated as of March 16, 2004, and recorded as
Instrument #200405/9866, in said Probate Office), as the same may be modified
or
relocated.
TOGETHER
WITH, (a) a non-exclusive easement for the purpose of pedestrian and vehicular
ingress and egress to, on, over and across the Common Driveway; (b) an easement
along the Common Access Driveway for the drainage of storm water; and, (c)
an
easement along the Common Access Driveway and over the Company Tract for
installing, operating, and maintaining utility facilities (as the same are
described in that certain Reciprocal Easement Agreement by and between
Protective Life Insurance Company and Wachovia Capital Investments, Inc.
dated
as of the 1st day of February, 2000, and recorded as Instrument #200004/0950,
in
the Probate Office of Jefferson County, Alabama, as amended by First Amendment
to Reciprocal Easement Agreement dated as of September 1, 2004 and recorded
as
Instrument #200413/6654, in said Probate Office).
EXHIBIT
B
Other
Defined Terms
“Facility”:
the
collective reference to (i) the Lessor's leasehold interest in the Site,
(ii)
the Improvements, and (iii) all plans, specifications, warranties and related
rights and operating, maintenance and repair manuals related thereto and
all
replacements of any of the above.
“Facility
Plan”:
means
the “Facility Plan” as defined and used in the Original Lease
Agreement.
“Improvements”:
collectively, the building and nearby parking deck to be constructed and
related
enhancements and improvements, including furniture, fixtures and equipment
constructed or installed on the Site in accordance with the Facility Plan,
together with all accessions thereto and replacements thereof, and together
with
all accessories, equipment, parts and devices necessary to achieve completion
as
contemplated under the Original Lease Documents, and all fixtures now or
hereafter included in or attached to the Site, the building and such
enhancements and improvements and modifications, but excluding the
Site.
“Site”:
certain real property located in Birmingham, Alabama, described in greater
detail on Exhibit
A
to the
Investment Agreement and the Lease.
“UCC”:
the
Uniform Commercial Code as in effect in the State of Alabama and any other
jurisdiction whose laws may be mandatorily applicable.
SCHEDULE
14
Insurance
Requirements
The
Lessee will provide, or cause to be provided, insurance in accordance with
the
terms of this Schedule, which insurance shall be placed and maintained with
Permitted Insurers. As to each of the building annex and parking deck portions
of the Facility, until the issuance of a certificate of occupancy as to such
portion, such insurance may be provided through the general contractor’s
builder’s risk and liability coverage.
(a) Insurance
Coverages and Limits
At
all
times subsequent to the Lease Commencement Date, the Lessee shall provide,
or
cause to be provided, the following property and liability coverages with
respect to the Facility:
(i) all-risk
property coverage, with limits of coverage at least equal to the replacement
cost (which limits shall be not less than $60,000,000 for the Facility),
which
insurance coverage may, at the Lessee's option, be included under any “blanket”
policy maintained by the Lessee so long as such “blanket” policy provides for
all-risk property coverage with respect to the Facility and any other Property
covered thereby, with limits of coverage at least equal to the aggregate
replacement cost of the Facility (provided, however, that such insurance,
in
either case, shall provide for replacement cost coverage, provided that the
insured property is replaced, and, provided further, that the insurance shall
not have the effect of causing the Lessee or any of its Affiliates to be
deemed
a co-insurer), with respect to the Lessee and any Affiliate of the Lessee
providing services with respect to the Facility, or if the Lessee elects
to
effect the coverage required by this Paragraph under a “blanket” policy, the
Lessee and its Affiliates insured thereby, such insurance to include, coverage
for (x) floods (if required by applicable law or regulation), windstorms,
hurricanes, tornados, collapse and other perils (including debris removal
and
cleanup) and such insurance to cover equipment separated from the Facility,
transit of equipment and consumables to and from the Site, labor claims,
in each
case with respect to the Facility, and such insurance to include coverage
for
all other risks and occurrences customarily included under all-risk policies
available with respect to Property similar in installation, location and
operation to the Facility (or the Facility and all other Property insured
thereby if all are covered under a “blanket” policy), and (y) “boiler and
machinery” property damage insurance on a comprehensive basis with respect to
damage to the machinery, plants, equipment or similar apparatus (including
production machinery) included in the Facility (or the Facility and all other
Property insured thereby if all are covered under a “blanket” policy), from
risks and in amounts normally insured against under machinery
policies.
(ii)
(1) statutory
workers' compensation and occupational disease insurance in accordance with
applicable state and federal law, and employer's liability insurance with
primary and excess coverage limits of not less than $1,000,000;
(2) commercial
general liability insurance covering operations of the Lessee, contractual
liability coverage, contingent liability coverage arising out of the operations
of the Facility, cross-liabilities coverage, sudden and accidental seepage
and
pollution coverage, and other coverage for hazards customarily insured with
respect to Property similar in construction, location, occupancy and operation
to the Facility, with limits complying with the underlying requirements of
the
excess liability policy described in Paragraph (a)(ii)(3);
(3) excess
commercial liability insurance in excess of the liability policies described
in
Paragraphs (a)(ii)(1) and (2) to bring to limits of not less than $1,000,000
for
each occurrence and in the aggregate per year with respect to the Lessee
and its
Affiliates.
(iii) The
policy or policies providing the coverage required by paragraphs (a)(i) and
(a)(ii)(2) and (a)(ii)(3) may include deductible amounts for the account
of the
Lessee or its Affiliates, as the case may be, not to exceed $25,000 in the
aggregate for all such coverages.
(b) Insurance
Endorsements - Any insurance carried in accordance herewith shall, except
as
hereinafter permitted, provide or be endorsed to provide that:
(i) the
Lessor, as its interests may appear, shall be included as an additional insured
or named as loss payee but only with respects coverages required by Paragraphs
(a)(i), with the understanding that any obligation imposed upon the insured
(including, without limitation, the liability to pay premiums) under any
policy
required by this Schedule shall be the obligation of the Lessee and its
Affiliates) and not that of the Lessor;
(ii) as
to all
policies of property insurance, a non-contributory clause or endorsement
to the
effect that any loss shall be payable in accordance with the terms of such
policy notwithstanding any act or negligence of the Lessee or its Affiliates
which might otherwise result in forfeiture of or denial of coverage with
respect
to such insurance;
(iii) the
insurer thereunder waives all rights of subrogation against the
Lessor;
(iv) such
insurance shall be primary without right of contribution of any other insurance
carried by or on behalf of the Lessor with respect to its interests in the
Facility; and
(v) if
such
insurance is cancelled for any reason whatsoever (including, without limitation,
nonpayment of premium) or any material change is made in the coverage that
affects the interests of the Lessor, such cancellation or change shall not
be
effective as to the Lessor for 10 days for nonpayment of premiums and otherwise
for 45 days, in both cases after receipt by the Lessor (at the address provided
pursuant to Section 22 of the Lease) of written notice sent by certified
mail
from such insurer of such cancellation or change.
(c) Adjustment
of Property Losses - After the occurrence and during the continuation of
a
Cancellation Event or Termination Event, the loss, if any, under any property
insurance covering the Facility required to be carried by this Schedule shall
be
adjusted with the insurance companies or otherwise collected, including,
without
limitation, the filing of appropriate proceedings, by the Lessee in consultation
with the Lessor.
(d) Upon
request, the Lessee will furnish the Lessor evidence of such insurance relating
to the Facility.
(e) Additional
Insurance by the Lessor or the Lessee - Nothing in this Schedule shall prohibit
the Lessor or the Lessee, as their respective interests may appear, from
maintaining for their own account, at the expense of the Person purchasing
such
insurance, additional insurance on or with respect to the Facility, or any
part
thereof, with coverage exceeding that otherwise required under this Schedule,
unless such insurance would conflict with or limit the insurance otherwise
required under this Schedule.
